Vinkov & Mertiglio (No 2)

FAMILY COURT OF AUSTRALIA

VINKOV & MERTIGLIO (NO. 2)

[2010] FamCA 916

FAMILY LAW – CHILDREN – best interests – views of the child – parental alienation – family violence – short term and long term effects of possible change of primary care of the child – consideration of the benefits of interim orders rather than final orders

Family Law Act 1975 (Cth) ss 60CA, 60CC(2), 60CC(3)

U v U (2002) FLC 93-112

APPLICANT:

Mr Vinkov

RESPONDENT:

Ms Mertiglio

INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

FILE NUMBER:

SYC

5345

2008

DATE DELIVERED:

12 October 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT:

Justice Rose

HEARING DATES:

30-31 August 2010;

1-3 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	S W Cairns
SOLICITOR FOR THE RESPONDENT:	Vassili Fozzard Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	G Kenny
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Hamish Cumming Family Lawyers

Interim Orders

IT IS ORDERED:

That all prior parenting orders in relation to the child of the parties C born … November 1999 (“the child”) are discharged.

UNTIL FURTHER ORDER:

That the mother and father have equal shared parental responsibility for the child.
That the child live with the father.
That the parties ensure that the child is in the care of and communicates with the mother as follows:
(a)Each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Tuesday and the mother or her partner Mr A shall collect and return the child to school for that purpose commencing on the first Friday following the first counselling session held with the clinical psychologist Ms O, the parties, and the child as referred to in Order 11.
(b)Half of the New South Wales school holiday periods which follow the conclusion of each school term being the first half in such school holiday periods in even numbered years and the second half in such school holiday periods in odd numbered years commencing at 9.00am on the first day and concluding at 6.00pm on the last day unless otherwise agreed between the parties.
(c)From 6.00pm Christmas Eve until 6.00pm Christmas Day in each even numbered year and from 6.00pm Christmas Day until 6.00pm 26 December in each odd numbered year.
(d)For a period of three (3) hours on the child’s birthday following the conclusion of school if on a weekday or from 9.00am if on a weekend.
(e)On Mother’s Day from 9.00am to 6.00pm should it fall on a weekend when the child is not otherwise in the care of the mother pursuant to Order 4(a).
(f)Telephone communication each Thursday between 7.00pm and 8.00pm unless otherwise agreed between the parties and for this purpose the father shall ensure that he has an operating voicemail and/or telephone answering service so that the mother may leave a message for the child in the event that the child is unavailable at the time of her call and the father shall ensure that the child returns the call as soon as possible that evening commencing on the first Thursday after the first weekend referred to in Order 4(a).
(g)Such further or alternative periods or times whether for the purpose of the child being in the care of the mother or for telephone communication as the parties may agree upon from time to time.
That for the purpose of implementing Orders numbered 4(b), 4(c), 4(d) (if a weekend) and 4(e) the father shall take the child to the mother’s premises at the commencement of the relevant period referred to in these Orders and the mother or Mr A shall return the child to the father’s premises at the conclusion of such period unless otherwise agreed between the parties.
That for the purpose of the child being in the care of the mother as provided in Orders 4(a), 4(b), 4(c) and 4(e) the father shall ensure that the child has his necessary clothing, homework and any sporting apparel and the mother shall ensure that all of such clothing, homework and sporting apparel is returned with the child suitably cleaned and packed.
That Order 4(a) and 4(b) are suspended on the following occasions during which the father shall have the care of the child:
(a)Father’s Day from 9.00am to 6.00pm should it fall on a weekend when the child is not otherwise in the care of the father.
(b)Greek Easter Sunday from 6.00pm on the previous day to 6.00pm on that Sunday should it fall on a weekend when the child is not otherwise in the care of the father.
That each of the parties is restrained from denigrating the other parent or members of that parent’s family and each parent will use their best endeavours to ensure no other person engages in such conduct in the presence or hearing of the child.
That each of the parties is restrained from discussing these proceedings with or in the presence or hearing of the child or showing him any document connected with these proceedings.
That each party is restrained from using physical force upon the child.
That the father and/or the mother shall forthwith do all things necessary to cause the child to attend upon Ms O, clinical psychologist for the purpose of any transitional issues the child may have upon commencing to be in the care of the mother and further with regard to his relationships with each of the parents and the father shall facilitate the child’s continued attendance with Ms O as may be reasonably requested by her.
That each of the parties shall attend upon Ms O or other family therapist as recommended by her for the purpose of family therapy for themselves and the child AND the fees of Ms O and the family therapist shall be borne equally between the parties.
That the independent children’s lawyer shall provide Ms O and the family therapist with copies of the following documents:
(a)The Orders made this day.
(b)The Reasons for Judgment given this day.
(c)Exhibit 2.
(d)Exhibit 5.
(e)The transcript of the evidence given by Ms B, family consultant AND the parties shall pay equally the cost of the transcript referred to in this Order.
That the father shall forthwith in writing authorise and request the Principal of S School to furnish the mother upon her request with copies of all school reports, notices and correspondence in relation to the child, relevant school functions and activities and the father shall further forward a copy of such letter of authorisation to the mother’s solicitor on or before 5.00pm 19 October 2010.
That in the event of the child suffering a serious illness or injury whilst in the care of one of the parties then that party shall as soon as possible furnish the other party with details of such injury or illness and the name, address and telephone number of such hospital or medical practitioner who is treating or likely to treat the child.
That each of the parties keep the other informed of his or her current residential address, landline and mobile telephone numbers and shall communicate information in relation to the child by use of a communication book, telephone, SMS message or email.
That the father forthwith use his best endeavours to ensure that Mr D does not:
(a)make any oral representation or statement on behalf of the father or on his own account to any person who has or is likely to have any relationship or contact with the child unless with the prior written consent of the mother or further order AND THAT
(b)Mr D does not draft or assist the father in any way in the preparation of the following:
(i)any court document in parenting proceedings in relation to the child;
(ii)any correspondence or other communication whether email or otherwise in relation to the child; and
(iii)any correspondence with the principal or teacher or staff member of the child’s school or any other person who has is likely to have a relationship with the child.
That the father use his best endeavours to ensure that the child does not communicate or spend time with both or either of the maternal grandparents unless with the prior written consent of the mother.
That the proceedings are stood over for mention for the purpose of directions before Registrar George at 11.30am on 7 March 2011.
Liberty to apply to set aside vary or suspend all or any of the Orders made this day upon seven (7) days written notice being given.
That pursuant to sections 62B and 65DA(2) 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 the parties to adjust to and comply with an Order are set out in the documents annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC5345 of 2008

MR VINKOV

Applicant

And

MS MERTIGLIO

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the applicant Mr Vinkov (who for convenience I shall refer to as “the father”) seeks parenting orders in relation to the child of the parties’ relationship C (“the child”) who is 10 years of age having been born in November 1999.
Orders were sought by the father in his Initiating Application filed 11 September 2008. That application was subsequently amended unopposed by the orders sought by him as set forth in Exhibit 11. The substance of the orders sought by the father in Exhibit 11 is that the parties have equal joint parental responsibility for the child; that the child live with the father and spend time with the mother each alternate weekend from after school Friday to before school Tuesday as well as half of the school holiday periods. In addition, an order was sought that the parties forthwith attend upon Ms O, psychologist for “the purpose of family counselling for a period of 12 months or such lesser period as Ms [O] may indicate and follow all reasonable direction given by her for the purpose of family therapy in relation to the parenting of the child [C]”. Ancillary orders were also sought as well as injunctions to restrain each party from denigrating the other or members of the other parent’s family; not to discuss proceedings in the presence of the child or show him any document connected with the proceedings; and that each party be prohibited from using physical force upon the child.
Significant differences between the orders sought in the father’s application and Exhibit 11 are that in the former document the father had sought sole parental responsibility for the child and that the period of time that the child might spend with the mother be “at times to be agreed between the parties”.
The respondent, Ms Mertiglio (who for convenience I shall refer to as “the mother”) sought parenting orders in her Response filed 3 June 2009. The Response was subsequently amended unopposed by Exhibit 14. In substance, Exhibit 14 provided for the mother to have sole parental responsibility for the child; that the child live with the mother and spend time with the father in two separate categories of periods. The first category was for the first twelve months following the date of orders whereby the child would spend time with the father each fourth Sunday of each alternate month and during that period the father attend fortnightly upon a registered psychologist or psychiatrist to deal with specific issues. The second category is “after 12 months from the date of these orders and upon provision to the mother of a letter from the psychologist or psychiatrist of the father that the father does not present as a risk to the child”, whereupon the child spend time with the father each fourth Saturday of each month and each fourth Sunday of each month as well as on other specified occasions. An order was also sought that the child’s time with the father be supervised for an unspecified period. Ancillary orders were sought. The mother provided an undertaking that she would keep the child enrolled at his present school until completion of the current school year and seek advice in relation to any adverse impact upon the child of a proposed transfer of the child from the present school to a different school.
A significant difference between the mother’s Response and Exhibit 14 is that in the former document the mother had sought an order for equal shared parental responsibility for the major long-term issues in relation to the child. In addition, by way of contrast, the mother in her Response did not seek that the times the child may spend with the father be supervised.
The father is 38 years of age and is self-employed, although recently purchased a shop outlet which he may operate.
The mother is 32 years of age and employed as an executive assistant.
The parties cohabited for a period of approximately three years which commenced on their marriage which took place in February 1999 and continued until they finally separated during April 2002. The parties have lived separate and apart from each other since that time.
The affidavit evidence of the mother, which I accept, is that the marriage was dissolved in the Federal Magistrate’s Court on 18 July 2003. The affidavit evidence of the parties is that they were divorced in or about 2003.
The child lives with the father and spends supervised periods of time with the mother.
The mother lives with Mr A who is 32 years of age and his two children from his prior marriage, JA who is 11 years of age and SA who is 8 years of age.
The mother, Mr A and his two children have lived together since December 2008. The mother and Mr A plan to marry during next year.
The proceedings have been conducted in accordance with the Less Adversarial Trial practice and procedure. The continuation of the hearing, in particular, when the full evidence of the parties was adduced took place in the period 27 August to 3 September 2010.
The mother has been legally represented throughout the proceedings.
The father was unrepresented until the continuation of the proceedings which commenced on 27 August 2010. The father was represented by counsel for the remainder of the hearing.
Counsel was briefed by the independent children’s lawyer. I record my appreciation of the excellent advocacy by counsel for the independent children’s lawyer in relation to all aspects of the proceedings. The proceedings raised complex and sensitive issues to which subsequent reference will be made.
Counsel for the father is to be commended for apparently accepting a direct access brief shortly prior to the commencement of the hearing on 30 August 2010, given the difficulties that must have entailed in terms of preparation and conduct of the father’s case.
The solicitor for the mother undoubtedly did his best in fulfilling the role of advocate in a complex case which was more suitable for competent, experienced counsel.

Principal issues of fact

Whilst there are a number of discrete findings of fact that are necessary for the purposes of ss 60CC(2) and (3), the evidence in the hearing was dominated by the following issues for determination:
(a)       Physical abuse of the child by the mother.
(b)       Unacceptable risk of physical abuse of the child by the mother.
(c)       Alienation of the child by the father against the mother.
(d)Capacity of each of the parties to provide for the physical, emotional and intellectual needs of the child.

Historical background

The following are further uncontroversial brief historical matters in relation to these proceedings.
On 1 October 2002 by consent final parenting and property settlement orders were made. The former provided for the parties to have joint parental responsibility for the child, that the child live with the father from Saturday afternoon to Wednesday afternoon each week, and from Wednesday afternoon to Saturday afternoon with the mother. Ancillary matters were noted.
On 12 October 2004 final parenting orders were made. Certain of the orders made 1 October 2002 were discharged and provision made for a different pattern of periods of time for the child to live with each of the parties. In substance, such provisions included that until the child commenced school he was to live with the father from 4.00pm Saturday until 4.00pm Wednesday in each alternate week, and in the other week the child live with the father from after child care on Wednesday until the commencement of child care on Thursday. Otherwise, the child was to live with the mother. Further orders provided for care of the child between the parties following the child commencing school whereby the child would live with the father each alternate weekend from 3.00pm Friday until 9.00am Monday and in the other week from after school Wednesday until the commencement of school on Thursday; half school holiday periods; and other specified occasions.
On 31 January 2005 in the Federal Magistrates Court, by consent, orders were made which varied in part the orders made 12 October 2004. The new order provided for the father to have telephone communication with the child on certain specified days and times. A notation was made which has significance for an issue in these proceedings. The notation is in the following terms:
“The parties agree that the child is to attend [N] School commencing 1 February 2005.”
In February 2005 the child commenced kindergarten at N School and continued attending that school until the end of the final term in 2008.
During July 2008 the mother and her then partner, Mr H travelled overseas for an intended joint holiday of six weeks leaving the child in the care of the father. Prior arrangements to that effect had been made between the parties.
In about August 2008 the mother and Mr H separated and terminated their relationship.
On about 8 September 2008 the mother returned from her overseas travel. The mother attended the child’s school to collect him. The child was not at the school. The father refused to return the child to the care of the mother alleging that she had physically abused the child.
On 11 September 2008 the father filed an urgent application seeking interim orders that he be granted sole parental responsibility for the child and that the child live with him and spend supervised periods of two hours per fortnight with the mother.
On 12 September 2008 interim parenting orders were made which provided for the child to live with the father until 6.00pm 2 September 2008 and that the child spend supervised periods of time with the mother of four hours each Saturday and Sunday with supervision to be carried out by the maternal grandparents. Other ancillary orders were made. An independent children’s lawyer was appointed. The proceedings were adjourned to 22 September 2008.
On 22 September 2008 interim orders were made which provided that pending further order the child live with the father and spend supervised periods of time with the mother each alternate weekend from 4.30pm Saturday until 6.00pm Sunday and on the other alternate weekend from 9.00am Saturday until 8.45am Sunday. Provision was made for supervision to be carried out by the maternal grandparents. The mother stated that she intended to live overseas.
On 19 December 2008 interim orders were made which provided for a variation of previous orders which enabled the child to live with the mother during specified periods of time during school holidays, Christmas Day and Boxing Day, as well as during school term on alternate weekends from 3.00pm or after school on Friday until 9.00am or the commencement of school on the following Monday.
On about 30 January 2009 the child commenced to attend S School.
On 23 February 2009 interim orders were made which provided for the place and circumstance in which changeover of care of the child from one party to the other was to take place.

On 9 April 2009 interim orders were made providing for the child to spend time with the mother from 10.00am 12 April 2009 until 10.00am 13 April 2009 and from 6.00pm 19 April 2009 until the commencement of school on 29 April 2009.
On 21 August 2009 interim orders were made for the child to spend time with the mother supervised by the maternal grandparents at the mother’s home or at their home. Ancillary orders were made. A family report was ordered to be prepared by Ms B, family consultant (“the family consultant”).
On 3 November 2009 orders were made requiring the maternal grandparents to attend upon the family consultant for the purpose of taking part in the interview process and observations that the family consultant would organise; that the maternal grandparents may be accompanied by the father’s friend, Mr D on condition that he wait outside whilst the actual interview process is conducted by the family consultant. In addition, the Manager Child Dispute Services at the Sydney Registry or her nominee was requested to be present to explain the process to the child for the purpose of the child being seen by the family consultant and observed with the mother. The father was ordered to do all things necessary to ensure the child was brought to the interviews/observation conducted by the family consultant in the presence of the Manager Child Dispute Services or her nominee. Provision was made for the service of a sealed copy of the orders upon the maternal grandparents.
On 6 April 2010 interim orders were made providing for the mother to spend time with the child each alternate Saturday between 10.00am to 2.00pm at a Contact Centre with supervision to be provided by Ms F.
On 4 May 2010 orders were made which crystallised the following issues for determination and directions were also made for the filing and service of affidavits:
“Issues for determination
7.That the issues for determination on the subsequent hearing of these proceedings are as follows:
(a)The nature of the relationship between the child and each of the parties and the maternal grandparents.
(b)Family violence as between the parties, the mother and the child.
(c)Parental alienation of the child by the father against the mother.
(d)The capacity of each the parties to provide for the physical, emotional and intellectual needs of the child.
(e)The willingness and ability of each of the parties to encourage a close relationship between the child and the other party.
(f)The parental attitude of each of the parties.
(g)The likely effect upon the child of ceasing to live with the father and instead living with the mother or spending substantial periods of time with her unsupervised on a regular basis.
(h)The proposals of each of the parties to improve communication between them in relation to matters affecting the child.
(i)The proposals of each of the parties for the future care of the child and the involvement that the other party should have in that regard.
(j)In the event of either party having supervised care of the child, the terms of such supervision and who should be the supervisor or supervisors.
Witnesses and affidavits
8.That leave is granted to the applicant to file and serve the following affidavits:
(a)Affidavit of [the father] in relation to each of the issues itemised in Order 7.
(b)Affidavit of [G Mertiglio] in relation to alleged violence between the mother’s former boyfriend and the child as well as the relationship between the parties with the child and the capacity of each of them to provide for the physical, emotional and intellectual needs of the child.
(c)Affidavit of [A Mertiglio] in relation to those matters as well as alleged violence between them other and her.
(d)Affidavit of [N Mertiglio] in relation to the mother’s alleged verbal abuse of the maternal grandparents in the presence of the child.
(e)Affidavit of [Ms W] in relation to alleged bias of Ms [B], family consultant and her observations of the child then aged four eating food on the floor at the paternal grandmother’s home.
9.That leave is granted to the respondent mother to file and serve the following affidavits:
(a)Affidavit of [the mother] in relation to each of the issues itemised in Order 7.
(b)Affidavit of [Mr H] in relation to family violence alleged between the mother and the child and his observation of the relationship between the mother and the child.
(c)Affidavit of [Mr A], the mother’s current boyfriend in relation to the quality of the relationship between the mother and child.
Subpoenas to produce documents
10.That the following subpoena to produce documents be issued by the independent children’s lawyer:
(a)[Ms P], child psychologist to produce her clinical notes and reports in relation to the child’s consultations with her, diagnosis, therapy and any other relevant matters in relation to the professional consultations between the child and herself.
Further orders
11.That leave is granted to the independent children’s lawyer to subpoena [Ms P], if necessary, to give evidence.
12.That leave is granted to the independent children’s lawyer to endeavour to arrange at a suitable time for a discussion between Ms [B], family consultant and Ms [P] in relation to matters affecting the child which fall within their respective professional capacities and experience.
13.That dates for hearing before Justice Rose are tentatively fixed for the period 30 August to 2 September 2010 and continuing, if necessary, at 2.15pm on Friday 3 September 2010.”
On 24 May 2010 the father’s Application in a Case filed 20 May 2010 seeking orders that I be disqualified and that the proceedings be transferred to the Federal Magistrates Court was dismissed. In addition, the continuation of the hearing on a final basis was confirmed to take place in the period 30 August 2010 to 3 September 2010.
On 21 June 2010 the father filed a Notice of Appeal in respect of the Orders made 24 May 2010.
On 10 August 2010 on the application of the independent children’s lawyer, orders were made for expedition of the appeal and listing it for hearing on 20 August 2010.
On or about 12 August 2010 the father discontinued his appeal.
On 19 August 2010 an extension of time was granted to enable the parties to file and serve the affidavits referred to in the Orders made 4 May 2010 on or before 4.00pm 24 August 2010.
In accordance with the Less Adversarial Trial practice and procedure, the hearing resumed and continued for the period 30 August 2010 to 3 September 2010. Judgment was reserved.

Relevant legal principles

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in s 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to a child of the parents having:
“…a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children.” [Emphasis added]
The principles underlying those Objects, in summary, include:
(a) children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”, namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the two children, the subject of these proceedings.
Section 61DA(1) provides a presumption “that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
Section 61DA(2) provides that such presumption does not apply should one or other of the following grounds be established, namely:
Should there be:
“…reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.”
The Court may exercise its discretion for the purpose of rebutting the presumption should it be satisfied “that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[1] The exception is found in s 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[1] Section 60CC(1)
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.”[2]
[2] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Fortunately, the second primary consideration is not relevant in these proceedings.[3]
[3] Section 60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in s 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Credibility of the parties

The issue of the credibility of the parties as witnesses has arisen during the hearing. That has been particularly so with the clash of their evidence where family violence is concerned, whether allegedly perpetrated by the mother against the child, or by her former partner Mr H, or current partner in circumstances in which she was present.
Those are not the only factual circumstances in which the issue of credit has arisen.
After reviewing the evidence of each of the parties, both written and oral, and observing their demeanour as witnesses, I have concluded that I prefer the evidence of the mother wherever it conflicts with that of the father, unless otherwise stated.
My reasons are that the father’s evidence was seriously lacking in truth in relation to his alleged financial resources being of such a degree that he could not financially contribute to the cost of time to be spent by the mother with the child at a contact centre pursuant the Orders made 6 April 2010. The father gave false evidence of his financial impecuniosities at various periods, as well as contradictory oral evidence, although corrected in part of his own volition. That occurred after there had been an adjournment and the father had time to consider the truthfulness of his evidence previously given. This was in the context of the father’s reasons for the child failing to attend the contact centre for supervised time with the mother which became an aggravating issue for the mother at that time as well as adding to the array of conflicts which the parties have had so far as parenting issues are concerned. In addition, the father was loathe to express any positive benefits for the child so far as the relationship with the mother is concerned.
Further, when the father was unrepresented and assisted by his friend Mr D the father made a serious allegation that the family consultant was biased against him, yet when the family consultant was cross-examined by counsel for the father no such allegation, or indeed suggestion was made to the family consultant.
By contrast, the mother conceded a number of positive aspects of the father’s lifestyle and benefits to the child in the future of an ongoing relationship with the father. In this regard, the mother’s evidence impressed me as being sincere and not crafted for the purpose of making a good impression upon the Court. In all other aspects I found the mother to be a truthful witness.
The weight that may be attached to the evidence of each of the parties on a number of issues is of course a different matter.

Views expressed by the child and other relevant factors including family violence and the nature of the relationship between the child and the parties

Parental alienation

Critical to the issue of the views of the child is whether or not the child has been alienated by or is aligned with the father against the mother, and whether irrespective of the finding of fact in that regard, both or one of the parties has contributed to that alienation.
The issue of “alienation” arises out of different aspects of the case for each of the parties.
So far as the father is concerned, his case is that the mother by her physical and emotional abuse of the child and abuse allegedly perpetrated by her former partner, Mr H and current partner, Mr A have been the causes of the child being alienated against her.
Consequently, I have made findings in relation to family violence as that issue is inextricably intertwined with the issue of alienation, especially so far as the case for the father is concerned. The mother also alleges that the father has been violent to her both prior and subsequent to the separation of the parties. However, those findings are not relevant to the issue of the views expressed by the child. Accordingly, my findings so far as the alleged violence by the father toward the mother will be set out separately in a subsequent section of this Judgment.
The case for the mother is that she denies the allegations of abuse by herself and both or either of her former and current partners. In addition, the mother alleges that the child has been turned against her by the father having “brainwashed” the child to suit his own need of maintaining an exclusive close relationship with the child.
The affidavit evidence of each of the parties supports their respective cases.
The father’s affidavit and oral evidence is that the child’s view is that “he does not want to go” to the mother. In addition, the child fears the mother and her partners. The father claims that the child’s views have been so expressed since late 2008.
During the course of his oral evidence, the father said that the child’s views also were that he did not want to see the mother at a contact centre. To some extent, the father departed from that evidence when he also stated that the child “wants to see” the mother but “does not want to be forced”. The father explained that the child wants to see the mother only in the presence of him or the maternal grandparents.
The evidence of the mother is that since late 2008 the child appeared not to want to leave the father to go to her. The mother further alleges that the child has been “brainwashed” by the father to believe that the mother has abused the child. The mother contrasts these alleged views and actions of the child with the period of approximately six years when the mother was the child’s primary carer, namely from 2002 to during July 2008 when the mother travelled on an overseas holiday for six weeks with her then partner, Mr H. The essence of the mother’s evidence is that during the period of her primary care, she cared for the child well and the child did not express directly or indirectly in any way a view that he did not want to be cared for by her or was fearful of her.

The expert evidence

There is considerable expert evidence given by the family consultant, Ms B both written and oral. I accept the totality of the evidence of the family consultant whether written or oral unless otherwise stated. I was impressed by her evidence in that I found her to be considered and sensitive to the complex issues that have been raised and with thoughtful recognition of the difficulties that arise for the child in the context of her own recommendations and their effect, as well as the different proposals and orders sought by each of the parties and the independent children’s lawyer.
In Exhibit 2, being the family consultant’s Child Responsive Program Memorandum dated 17 October 2008. The father is recorded as informing the family consultant that the “child does not want to see his mother at all” and that the child had been physically abused by her. The mother denied any abuse of the child.
The family consultant furnished a Memorandum dated 20 October 2009 which became Exhibit 4. That memorandum referred to an interview that had been organised to take place on that day with the parties and the child. An interview had been held with the parties only on the previous day. Exhibit 4 records that the child stated to the family consultant that “he did not want to be seen with his mother”. The family consultant informed the child that it was necessary for that to take place. Upon being appraised of that view by the family consultant, the father expressed a very strong view that he considered it inappropriate that the family consultant was not respecting the child’s choice. The oral evidence of the family consultant is that the father’s comment was made in the presence of the child. The child at that time was almost 10 years of age. The evidence of the father does not challenge the evidence of the family consultant which I accept and make findings accordingly.
In Exhibit 5, being the Family Report dated 16 February 2010, the family consultant noted that the father resented questions as to whether or not the child may have been influenced by him to express resistance to being with the mother.
The family consultant records that when the child was interviewed by her in October 2009, the child gave conflicting views about the mother, ranging from seeing her every three or four weeks to just wanting to be with the father.

It is relevant to this issue to refer to that part of Exhibit 5 in which the family consultant notes that in October 2009 during the course of interviews with the child and the father, that the father “in front of [the child]” stated “strongly that [the child] had been abused” and that the child should be able to choose whether he saw his mother or not. According to the family consultant the child was clearly anxious so she removed him from the conversation by taking him to the playroom.
In an interview which took place in January 2010 the child stated that he did not want to see the mother. However, upon being informed by the Deputy Manager Child Dispute Services that the mother would join the child in the play room, the two of them then engaged in a board game.
During the course of her “evaluation”, in Exhibit 5, the family consultant was of the view that the child would find it extremely difficult to express any affection or desire for the mother that he may have, so far as expressing those feelings to the family consultant, because “he is well aware that his father took strong issue with the assessment process”.
The family consultant further concluded that the father “discusses matters in front of [the child] in a forceful manner which leaves [the child] in no doubt as to what his father thinks about significant issues”.
The family consultant expressed the opinion that should it be established that the father’s:
“…claims of abuse of [the child] by his mother are exaggerated, then the impact on [the child] is a serious negative one. [The child’s] relationship with his mother, the parent who he was primarily cared for, has come under serious threat as a result of these allegations.”
The family consultant further balanced that opinion by also opining that should it be the case that the child “has suffered ongoing abuse then [the father’s] angry and embattled presentation should be seen in this context”.
The family consultant concluded that:
“Whether or not there is evidence of abuse of [the child] in his mother’s care, the force of [the father’s] assertions would make it extremely difficult for [the child] to have a relationship with his mother whilst he is in his father’s care.”

The family consultant - oral evidence

A summary of the oral evidence of the family consultant is set out in the following paragraphs to 117 inclusive.
At times I have quoted directly from the family consultant’s oral evidence including:
“Alienation is a term that refers to characteristics of children’s interactions with their parents and it refers to situations where children have become rejecting of a parent.”
Distinguishing features include adopting “one parent’s very negative and hostile views of the other parent and it’s generally diagnosed or characterised by children having multiple complaints about a parent that are often very exaggerated or unjustified”.
So far as “alignment” is concerned, that “refers to a similar process but the term came in to try and shift a clinical focus on the behaviour and attitudes of a parent who has primarily shared their negative views with the child to the broader system and looking at how circumstances may also have led the child to be vulnerable to this kind of process and the contributions that the rejected parent might have made”.
The latter refers to the “contributions”, by way of conduct by the rejected parent made to the child then alienated or aligned with the other parent.
It could include “abandonment or perhaps the behaviour of another parent or their style of parenting that contributes”.
Typical characteristics include a child echoing the views of a parent with whom the child is aligned, or a parent who is participating in this alienation of the other parent.
In 2008 the father and the child were quite negative about the maternal grandparents. Now there has been a marked change of attitude by the child in line with the father in that there is a very good relationship with the maternal grandparents:
“That has been a clear example of how the child’s views are moulded and shiftable depending upon his father’s communications and attitudes.”
In relation to Exhibit 2 the child’s antipathy to the mother seemed to come out in:
“…a generally rehearsed manner and in a kind of repetitive manner. It echoed a lot of the language the father had used. Characteristic of children in this situation in that they present one parent as being all good and faultless without strengths and weaknesses and the other parent as completely evil, bad or abusive. Very little grey area in how they present each parent.”
That is what the family consultant saw from the child.
Snippets were noticed in discussions the child had had with counsellors to the effect that the mother was still significant to him. However, the child’s comments were often quickly cut-off by him. As soon as he consciously expressed something, he often would retract things or move back from what he had said which might be perceived as loyal or supportive of her.
In Exhibit 5 it was noted that the child did not want to be seen with the mother and seemed to be worried that the father would find out about the observation.
Whist attempting to have the child see the mother for the purpose of the observation, the child was upset and reluctant to do so. When the family consultant spoke to the father to let him know what was happening, he started saying that the child “has been abused by the mother” that the family consultant was traumatising him and it was inappropriate not to listen to his wishes.
“The child must have felt very restricted in his ability to relate to the mother as he was worried about the father’s reactions.”
“There are multiple issues for the child. He is overly concerned about the father. He has a sense of needing to support him, being worried about him and worried about the father being alone. There is a whole factor of fears that the child has.”
“He has come to fear a number of things, but sees his father as the person who has undertaken to keep him safe and protect him, so that has created extra dependency on his father and extra fears of some people or some situations.”
“Should this situation be allowed to continue it is likely to lead to many significant problems. In adolescence where children are developmentally and biologically required to become more independent and to gradually move out into the world away from their parents. It is often a fraught time for children managing a level of dependence and level of independence.”
“I think it would be very difficult for [the child] if he was living with his father to gain a higher level of emotional independence because he is the only child. I think he feels very responsible for giving his father a sense of purpose and meaning and replacing the family – his parents who died. I think that [the child] would be likely to perhaps have ongoing difficulties in relationships in the outside world. He hasn’t seen the last two years very good conflict management. I don’t think he would have developed very good skills in managing issues of abandonment, rejection and conflict in relationships. He is becoming increasingly wary and scared of the outside world which would increase his sense of dependence on his father but also be likely to create difficulties for him independently forming relationships and trusting people.”

Mr D (a friend, and at times a “McKenzie” friend of the father)

One of the difficulties in interviewing the maternal grandparents was their insistence on Mr D being present. They said they had a lot of discussion with him in the lead up to their attendance. So they would certainly have been influenced by his suggestions or information shared with them. The family consultant did not have any interview with Mr D by himself. There was neither a need nor a requirement to do so.
The family consultant did have discussions with Mr D in the waiting room as he was voicing opinions and suggestions which placed her in an unwarranted difficult position. Mr D said he there as the father’s “McKenzie friend”. Mr D did not refer to any order which enabled him to participate in the counselling sessions. The family consultant told him that she was having the matter re-listed to clarify the position.

Child memory

The family consultant stated that there is common belief that children should be believed but there is a huge amount of research that memories can be altered in different ways.

Child’s relationship with the mother

The mother loves the child. The mother has been the primary carer for the child from birth until during July 2008 when the child moved into the care of the father by arrangement between the parties due to the mother’s impending overseas travel with her then partner for about six weeks.
Intrinsic to the father’s case is that the child had been abused by the mother during that period of primary care, such allegations only having been made following her return to Australia in September 2008 and my findings in relation to those matters.
I accept the evidence of the mother, corroborated by earlier affidavit evidence of the maternal grandmother, that she had provided appropriate care of the child and had a loving relationship with him.
Subsequent to September 2008, the mother has had a fractured relationship with the child due to the alienation of the child against her, the maternal grandparents’ support of the father against the mother, the difficulties associated with the maternal grandparents supervising periods of time that the mother has had with the child and last, but far from least, the tension created by the chronic parental conflict exemplified by the litigation between the parties.
The family consultant’s evidence is that the mother had a far more sophisticated and empathic understanding of the child’s position. The family consultant found it very difficult to engage in any conversation with the father about the possibility that the child had confused feelings, mixed feelings, anxious or worried feelings.
The mother had much more ability to understand the complexity of the dynamics and the child’s vulnerabilities and concerns, so far as the family consultant was concerned.
The family consultant did not see in the mother any resentment or anger towards the child because of the allegations she was facing. This is a significant matter in this current situation because the prospect of the child re-uniting or seeing that parent it is a very important thing to consider how that parent is going to respond and relate to the child. When the observations were being carried out the mother managed the child who was quite withdrawn very well.
The family consultant also gave evidence that if the relationship between the child and the mother had been severely disrupted and the allegation of abuse is not true, it often makes a child fearful of reconnecting with that parent and makes them resistant to seeing that parent because the child feels guilt and anxiety about how the child may have contributed to the conflict and hurt and upset the parent. In addition, if the child is carrying around a sense of guilt and remorse, the child often self-punishes in various ways.

Child’s relationship with the father

The child and the father share a loving relationship. The child is closely attached to the father. Though, there are concerning aspects of the relationship given my findings of alienation of the child by the father against the mother.
The child has a large sense of responsibility and concern for the father’s emotional wellbeing and his potential loneliness and need for him.
With regard to the 2009 school counsellor’s notes being Exhibit 16, the child refers to still feeling sad about the father, even if the child related to the mother. That is characteristic of the child sensing the father’s emotional dependence upon him or the father’s emotional vulnerability. The child made similar comments to the maternal grandparents when he was with them, in that he was still worried about the father’s wellbeing.
The maternal grandparents’ evidence of the child not having stayed overnight for a significant period of time because the child did not want to be away from the father or would be concerned about him, would be consistent with material in the last paragraph.
It is not a healthy relationship for the child to be feeling anxious about the father at that age. There are a number of problems in the relationships which are affecting his healthy emotional development. That includes being overly concerned for a child of his age in looking after a parent. That is likely to lead to future problems as well, including the fears and anxieties for the father and also for himself.
With regard to the father, it was very difficult to elicit any sense he had about his role as a parent and how the manner in which he has managed things may have contributed to the situation.

Family violence

Each of the parties alleges that the other has engaged in family violence.
Evidence was given by the father in his Affidavits sworn 11 September 2008 and 24 August 2010. In the father’s first affidavit he claimed that during their relationship the mother:
“…was verbally and physically abusive to me on a large number of occasions. [The child] was present on some of those occasions.”
No evidence is given by the father in that affidavit of the factual basis which demonstrates verbal and physical abuse.
The father also contends that after the child came to live with him in 2008, the child alleged that he had been abused by the mother in that she had forced him to eat beans until he vomited. Further, the father alleges that the child made frequent disclosures to him of being physically abused by the mother.
The father claims that on or about 14 August 2008 during the course of a meeting between himself, the child’s teacher and the child at N School the child made disclosures of being physically abused by the mother which included: hitting the child with her hands and with a blue toy golf club; as well as being kicked. The father claimed that he was informed by the teacher that the school principal had made a notification to the Department of Human Services (Community Services) (“DOCS”). The father stated that he made reports and sought advice from the police, DOCS and a chamber magistrate. The police interviewed the child but did not take action. The father further contends that no action emanated from the other sources to which I have referred although he did receive advice from the chamber magistrate referring him to the domestic violence liaison officer at the local Police Station.
In support of the father’s affidavit evidence, the maternal grandparents swore affidavits on 24 August 2010. Each of the maternal grandparents allege that the mother was abusive to the child although did not provide evidence of any specific instances. The maternal grandmother claimed that the child informed her and the maternal grandfather that he was in fear of the mother. The maternal grandparents also alleged that the child had been physically abused by the mother’s former partner Mr H.
Exhibit 2 records the allegations made by the father to the family consultant during the course of one or both meetings held on 18 September 2008 and 2 October 2008. The father repeated his allegation that the child had been physically abused by the mother. That allegation was subsequently denied by the mother.
In Exhibit 2 the family consultant noted that the child claimed that the mother “slaps me, kicks me, hits me, I don’t like it, she forces me to eat beans til I vomit”. The family consultant expressed the opinion that the child showed:
“…obvious signs of stress and anxiety about talking about family matters. He listed abusive things that had allegedly occurred in a rote, rehearsed manner devoid of much emotional expression. This is not to say that the things he described did not occur but [the child] did not wish to be questioned further about them and seemed to be preoccupied with primarily supporting his father. [The child] was nervous about expressing anything that might be perceived as supportive of his mother.”
In that regard, the family consultant expressed the view that:
“Even in situations where children have suffered abuse by a parent they generally experience a range of mixed feelings about that parent and still generally want the parent’s love and affection.”
The family consultant concluded that she was not in a position to determine whether or not there had been physical abuse of the child as alleged.
In Exhibit 5 the family consultant refers to the father’s allegations of abuse made in an interview on 2 October 2008.
Exhibit 5 also refers to the father’s allegation in his parenting questionnaire that the child had “welts, bruises, cuts, colds, diarrhea and ulcers after visits with his mother”. In addition, during the course of an interview between the father and the family consultant on 19 October 2009 the father alleged that upon him collecting the child from school on the Monday following a weekend visit with the mother at the end of June 2009 the child had a cold sore and a “massive” bruise to the top of his right arm. The father stated that he took the child immediately to his counsellor Ms P that afternoon and subsequently attended a doctor and the Police.
The family consultant inspected Ms P’s notes of a consultation dated 29 June 2009 which recorded that the child told her that the mother had pinched him. In addition, Ms P noticed that the child had a stubbed toe and a mouth ulcer but “there were no marks evident in relation to the alleged pinching”.
The family consultant noted in Exhibit 9 the allegations by the father that the mother “becomes uncontrollably angry and could kill [the child]” and that the mother has allegedly told the child “she will kill him” (the child).
The mother denied the allegations of physical abuse of the child and threats to kill him. The mother herself makes allegations that the father had been violent to her.
The father further alleged during an interview with the family consultant on 19 October 2009 that the mother tried to “rip” the child out of his car seat and “basically strangling him” during the course of an attempt at contact changeover in a McDonald’s car park. The mother for her part informed the family consultant that she had undone the child’s seat belt and had tried to encourage him to leave with her. In addition, she stated that the father caused a commotion and falsely accused her of hitting the child as well as trying to run her over when driving off whilst part of her was still in the car. The police attended that incident.
The family consultant having referred to the allegations recorded in Exhibit 2 arising out of the child’s statements to her noted that in subsequent interviews the child did not say anything further in relation to the abuse allegations, although in October 2009 he made a reference to being scared at the mother’s home due to the “people” who visited. No further explanation was given by him.
Exhibit 5 records the maternal grandparents having furnished the family consultant with copies of documents that included statements where the mother was “very violent and abusive” towards to the child, yet in the course of the interview “they stated their belief that her failure was rather in not protecting [the child] from her former partner”.
Exhibit 9 includes Ms P’s clinical notes for the meeting with the child dated 14 July 2009 in which it is recorded that the child did not want to go to the mother as “I’d miss out on soccer games”. There is a notation that the child informed Ms P that the mother had pinched him on the arm. There is also a note that no mark was observed. An ulcer was sighted in the child’s mouth. There is also reference to a cut to the child’s right wrist which allegedly took place in the bathroom at the mother’s place.
Exhibit 16 comprises the notes of the school counsellor at S School which is the school attended by the child. The notes include the following in relation to counselling sessions with the child. The record of the counselling session held on 3 February 2009 contains the child’s reporting of the mother physically and emotionally abusing him. The child stated with reference to the mother that “he does not want to go back to her – not because he does not want to see her but with supervision”. The child claimed that he was scared of the mother. A report of the further session on 17 February 2009 reiterated that the mother had physically abused the child but “that she had not hit him in recent times”.

Exhibit 16 also includes a diary note dated 30 January 2009 that stated “[the child] picked up at 2.30pm due to a threat by his mother that she was going to pick him up ‘even if she had to come and drag him out of the classroom’ herself”.
Surprisingly, there was no cross-examination of the father by the mother’s solicitor in relation to the issue of alienation of the child against the mother or, her alleged physical and/or emotional abuse of the child, other than one faint reference to the circumstances of attempted removal of the child from the father’s car at the McDonald’s car park. Nor was there any cross-examination by the mother’s solicitor of the father with regard to the views expressed by the child and circumstances which are alleged to have influenced those views. Due to my concern that perhaps the mother’s solicitor had overlooked in his cross-examination of the father issues that had been crystallised for the hearing, I drew his attention to that situation at a time when he indicated he did not have any further cross-examination. However, the mother’s solicitor chose not to extend his cross-examination of the father.
During the course of cross-examination of the father by counsel for the independent children’s lawyer, the father stated that whilst the child has his own room he does sleep from time to time in the father’s bed of his own accord.
In subsequent oral evidence given by the father, he stated that the child’s views were his own without being influenced by the father. The father stated that he did not recall saying in front of the child during the interview with the family consultant that the child had been abused and should be able to choose whether he saw his mother or not. The father claimed that he does encourage the child to see the mother through the maternal grandparents. The father queried that nothing had changed so far as the mother was concerned that would enable him to agree to give her unsupervised time with the child. That was said in the context of the child having “opened up to me” after the mother went overseas implicitly in 2008.
With regard to the mother’s alleged physical abuse of the child on 29 June 2009 which the father reported was demonstrated by “a massive bruise” at the top of the child’s right arm and that Ms P, psychologist, saw the bruise. Notwithstanding that the father’s attention was drawn to her notes indicating “no visible mark noted”, the father denied having misled the family consultant in relation to that bruising or that he had lied about it. Ms P’s notes are included in Exhibit 9 to which earlier reference has been made.
The father stated, inferentially, that he believed the child had been abused by the mother prior to her overseas travel in 2008. The father claimed there had been reports made to DOCS which were not included in the subpoenaed documents. The father became aware of the specific allegations of the mother’s abuse of the child about one or two weeks after she had travelled overseas in 2008 which he learned of at a function at his sister’s home. The father stated that the mother hitting the child with a golf club is information the teacher was able to gain from the child, and further stated that he was aware of the child being abused by the mother prior to attending the school. The father’s attention was drawn to the inconsistencies in that history compared to the content of Exhibit 5 at paragraph 11. In that regard, the father claimed he was possibly confused or did not give the information properly. The father also stated that he learned of the mother kicking the child during the course of a fight with her then boyfriend in October 2008. The father accepted the information given by the child as he “doesn’t lie”. The father emphasised there was no doubt in his mind that the mother had been physically abusive to the child, notwithstanding the lack of any intervention to protect the child by DOCS or the Police.
The father stated that he believed the child “wants to see” the mother and in that regard, his evidence was that the child had told him that he wants to see the mother when he chooses without being forced to see her. In addition, the father stated the child informed him that he only wants to see the mother in the presence of the maternal grandparents and that was the only way there could be a relationship until there is something done emanating from counselling.
The further evidence of the father is that the child does not want to be with the mother “because of how she is and I would just like to fix that up and fix [the child] up and move forward”.
During cross-examination the father stated that he recollected having told the family consultant that he believed that the mother might kill the child if she is allowed to see him. The father stated that is still his view. Notwithstanding that view, the father said that his proposal is that the child spend time with the mother four days unsupervised every fortnight and that “we get counselling, therefore everything else can take place, because things have been fixed”. In relation to the father’s view that the child could be killed if he is with the mother, the father gave an example of the context of such scenario is an outing with the mother and her partner where there was a speed boat and they were tying a rope and a car tyre to it and that creates a dangerous situation. The father stated that the mother might involve the child in a dangerous activity as a result of which the child might get killed. The father agreed that his affidavit evidence also contained material to the effect that there was a likelihood of the child being killed by the mother in a fit of rage.
With regard to the prospect of counselling overcoming the risks associated with the mother’s temper referred to in the last paragraph, the father stated that his understanding was that counselling would be conducted by a qualified psychologist and the parties should be guided by the psychologist so far as the commencement of unsupervised periods of time in the care of the mother.
The father further claimed that Exhibit 5 incorrectly reported his position of proposing unsupervised time of the child with the mother in that it was taken out of context. Subsequently, the father agreed that paragraph 23 of Exhibit 5 is accurate and his view had changed with counselling.
With regard to the past proposal of the mother spending time with the child at a contact service, the father stated that he had not made any enquiries of that service as to the action they would take to ensure the safety of the child. In any event, the father stated that he informed the child of the proposal to utilise the contact service and he refused to go. The father emphasised the child fears the mother and feels safe with the maternal grandparents. Therefore, the father was not prepared to force the child as he had become anxious and panicky.
With regard to the allegation that the mother’s former partner Mr H was violent to the child, I prefer his evidence to that of the father and maternal grandparents for the following reasons.
The father did not observe the conduct complained of, but instead relied upon what he was told by the maternal grandparents. I do not accept the evidence of the maternal grandparents given their passionate support of the father in these proceedings and the deep criticisms and antipathy that they have towards the mother. My impression of their evidence and the manner in which they gave it satisfies me that they are not reliable witnesses in relation to this issue particularly when contrasted with the evidence of Mr H.
Mr H’s evidence, which I accept, is that he did have physical contact with the child from time to time including at the premises of the maternal grandparents. However, that was only in the course of boisterous play between the child and him. The child was not hurt. Mr H’s evidence was not demonstrated to be false in any aspect and I was impressed by him as a witness of truth.
So far as Mr A is concerned, he was not cross-examined in relation to any alleged violent conduct by him to the child. The affidavit of the father sworn 24 August 2010, makes a general allegation he does not set out the basis for it. The affidavits of the maternal grandparents do not contain any allegation of violence against Mr A. Accordingly, I find that Mr A has not been violent towards the child.
The child and the father share a loving relationship. The child is closely attached to the father. There are concerning aspects of the relationship given my findings of alienation of the child by the father against the mother.
The child apparently has a fond relationship with the maternal grandparents consistent with the relationship that the father has with them, notwithstanding that in about 2004 the child expressed adverse views about the maternal grandparents consistent with the views that the father then held.

Findings

I make the following findings of fact which are made on the basis of my acceptance of the evidence of the family consultant, unless otherwise stated, relevant evidence of the parties to which I have referred, the credit of the parties as witnesses, as well as by reference to my findings on the issue of the mother’s alleged violence towards the child. In addition, I have taken into account my findings with regard to the relationship between the child and each of the parties.
I find that the views of the child are that he prefers living with the father to living with the mother but wants to see the mother and be with her to a greater extent than has been articulated by him as evidenced by the family consultant’s observations of the child with the mother.
In addition, I am satisfied on the balance of probabilities that the mother has not been violent to the child. Indeed, a high point of the father’s evidence of his observations of a mark or marks of violence allegedly perpetrated by the mother and was not substantiated by the clinical notes and documents of Ms P, psychologist to which earlier reference has been made.
In addition, I am satisfied that the father has embarked upon a process of alienation of the child against the mother which commenced during the period that the child lived with him in 2008 whilst the mother was overseas. There has been conjecture as to the father’s motivation in that regard. I do not have evidence from a psychiatrist or psychologist which may have explored the father’s mental process on that issue. However, the father’s concerted effort to have the child enmeshed with him as described in the evidence and making his attitude known to the child in terms of not spending time with the mother, except on a supervised basis preferably with the maternal grandparents, are all factors upon which I have given weight and in particular the expert evidence of the family consultant.
The father’s demonstrated attitude to the mother and on the issue of the relationship between the child and the mother to which I have referred has not been assisted by the influential role that Mr D has played.

The capacity of each of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

It is not a matter of controversy that the father has the capacity to provide for the physical needs of the child in that there is no evidence to suggest that the father has provided anything other than appropriate premises for himself and the child and otherwise attends to his physical needs. Indeed, no submission to the contrary was made.
So far as the father’s capacity to provide for the emotional needs of the child, this is a significant issue in the proceedings. That is reflected in the issue in the mother’s case that the father has alienated the child against her. In that regard my findings demonstrate that the father has a significantly qualified capacity to provide for the child’s emotional needs. In that regard, the father’s capacity is also the subject of the following evidence of the family consultant set forth in paragraphs 163 to 166 which I accept for the reasons previously set forth so far as the totality of her evidence is concerned.
Should there be a court decision that the child commence to live with the mother, the situation is that it is likely that the father would be extremely distressed by such an outcome.
Should the father consider that that is a likely outcome it will be a very difficult time for the child and the father because of the amount of dependency that there is in their relationship. That runs a risk of a child becoming scared and apprehensive and increased sense of fear and apprehension about how the father is coping, the possibility of being separated from the father. There is a risk of a unilateral action being taken – the father would see that as protecting the child by taking him out of the country. But the emotional intensity would be increased the longer there was a sense of a decision like that pending for the father the more desperate and concerned he may become. It would be an amplification of like fears and anxieties. I do not know if he would take further action to try and remove the child from the environment.
In Exhibit 2 there is reference to the father continually responding to questions about the child by saying “ask him”. That illustrates two very significant problems. One, a kind of abdication of any responsibility in managing the situation and the child’s relationships, but also a sense of the father’s preference for the child being interviewed and telling his story, rather than him having to deal with these problems. It is difficult to get a sense of the father’s ability to empathise.
If the child is to remain living with the father and to have a relationship with the mother in the future, there has to be a significant change compared to what is happening to date. The family consultant was not optimistic regarding such very significant change occurring.
An issue also arose in relation to the father’s capacity to provide for the intellectual needs of the child. That issue was in the context of the child having been moved from the N School to his current school. The enrolment was a unilateral decision by the father. The child has been enrolled and attending his current school since first term 2009.
The child’s progress at his current school has limitations as demonstrated by Exhibits 13 and 16. Whilst that may not reflect any shortcomings on the father’s part, nonetheless the child is recorded as being late for school on several occasions and the reason given in the many instances is the child having “slept in”. The father’s evidence, which I do not accept, is that he disputes the school record both in terms of the number of those occasions and the reason recorded. Whilst it is understandable that the school may have made an error on one, maybe two occasions, I do not accept the father’s proposition that the school had entered their records erroneously for the number of occasions to which I have referred.
The mother’s capacity to provide for the physical needs of the child, so far as the features of the premises that she and her partner together with his two daughters occupy, is not the subject of any adverse evidence.
However, the father’s case is that the mother has a significantly limited capacity to provide for the physical needs of the child due to her historical propensity to be violent and the likelihood that she could “kill” the child due to her ill-temper or exposing the child to dangerous situations.
I have made findings that the mother has not been violent towards the child. I do not accept the father’s evidence of the possibility that the mother may kill the child in either of the scenarios painted by the father. One might have expected that with such a serious issue being raised, the mother would have been cross-examined in relation to it. However, no such cross-examination took place. In addition, there is no evidence which can be reliably accepted which expressly or inferentially supports the fears that the father claims he has.
Consequently, I find that the mother does have the appropriate capacity to provide for the physical needs of the child in the context of the issues raised in these proceedings.
Some years ago the mother unilaterally caused the child to change school to the N School including kindergarten. The evidence satisfies me that the child made satisfactory progress at that school. There is a lack of evidence upon which I can rely that the change of school caused by the mother was not in the best interests of the child.
With regard to the mother’s capacity to provide for the emotional needs of the child. I accept the following evidence given by the family consultant in addition to that referred to in paragraphs 108 to 110.
Regarding a relationship with the father, should the child live with the mother, there would still be “very significant difficulties” for the child. The mother is more able to facilitate a relationship than the father facilitating the child having a relationship with the mother. The concern would be that the child would then spend time with the father and the issues of worry about the father and dependency and difficulty separating from him to return to the mother, would continue to be evident and be difficult for the child.
It would be very demanding for the mother to have the child live with her, as well as her parenting role with her partner’s two children.
Based on what she has seen, the family consultant felt that the mother was a capable person with a lot of empathy for the child. One of the challenges will be that the child is quite sensitive to her loyalties and affection to her partner’s children. The child will be quite sensitive and the mother will need to attend to that carefully, perhaps sparking difficulties for the child. The family consultant’s sense was that even though it may be difficult for the child integrating with that family unit, after a period of time he may connect with them and integrate well with them. Should there be a lot of transitions if he was going to and from the father’s home, there would be frequent periods when he would probably be having difficulties re-entering that household again. However, the family consultant’s sense was that he was welcomed and involved in that household as a significant person. That would ease the transition.
The family consultant considered that the potential of someone trying to help manage the transitions of care from the child leaving the father to go to the mother, that anyone involved in trying to facilitate that could be seen as perpetrating abuse and someone to be fearful of.
Should there be a change of the child’s residence, the family consultant’s suggestion had been that there is a period of three months without contact with the father. It is somewhat arbitrary. Three months is suggested because it would be a minimum amount of time for the child to integrate into the mother’s household, without being confronted with the transitions on pulls on his loyalty. He would benefit from someone getting indirect reassuring messages from the father that the father is okay and loves him and that the father thinks it is important for him to reconnect and make up time he’s missed with the mother. That could be indirectly by letter. Phone calls would be problematic.
Those recommendations are considered to be best for the child, but at the same time suggesting that the father does something that he has not been able to do before. However, if the family were involved in family therapy he could work with the family therapist about how he is going to continue to help the child.
“I think I need to say what [the child] would ideally benefit from, but I also have huge concerns about the father’s ability to support his relationship with the mother in whatever form.”
Even with genuine commitment for therapy to take place, it takes some time. Without genuine commitment, it is a waste of time and money.

In the meantime, the child needs to be protected from the parental conflict – if he was living with the mother, from just moving between his parents because that would undermine any ability for him to feel secure and stable in her household. Some period of not transitioning would be necessary. The family consultant did not contemplate that he would be able to integrate efficiently within much shorter space than a couple of months, three months. After that, based on what she saw the child would still have enormous difficulty transitioning after he is more established with the mother.
The family consultant also expressed the opinion that should the child commence to live with the mother, then there would be a change of school necessary at some point. It is probably better that the change occur earlier and more quickly for the child because if he was living with the mother and still attending his current school it would be like part of him partly living with the father and wouldn’t provide the kind of relief of loyalty conflicts necessary for him to integrate sufficiently in the mother’s household.
I find that the mother does have the capacity to provide for the emotional needs of the child. However, based upon the evidence of the family consultant, which I accept, the exercise of that capacity will be fraught with significant difficulty and the child is likely to suffer emotional trauma at least in the short term.
I am also satisfied that the mother has the capacity to provide for the intellectual needs of the child notwithstanding the issue that has arisen and which would need sensitivity in handling namely, possible change of school from the child’s current school to a local school.
I further find that the mother’s partner Mr A has the necessary capacity to provide for the physical, emotional and intellectual needs of the child. The only issue that was raised with respect to those matters was the allegation that Mr A had been violent to the child. I have previously found that there is no substantial basis for such an allegation. I was impressed by Mr A as a sincere and committed parent to his own children and is likely to demonstrate the same attitude to the child.
With regard to the capacity of the maternal grandparents the only issue that has arisen is in terms of their respective capacities to provide for the emotional needs of the child.
Whilst I am satisfied that each of the maternal grandparents loves the child and has facilitated the relationship between the child and the parties and in particular the mother by agreeing to provide their home on a regular basis for time to be spent by the mother with the child under their supervision, those occasions have taken place in an atmosphere of criticism and acrimony directed by the maternal grandparents to the mother.
Regardless of the reasons for the attitude of the maternal grandparents to the mother, it is obvious that their strongly critical attitude towards the mother and each of her past and current partners could hardly be conducive to a relaxed and friendly atmosphere for the mother to have spent time with the child who is still young.
Accordingly, I find that the maternal grandparents have a significantly limited capacity to provide for the emotional needs of the child.

Family violence - the mother’s case against the father

The mother alleges that the father has assaulted her and threatened her with further violence both prior and subsequent to the separation of the parties during April 2002.
The mother has provided detailed affidavit evidence of the alleged assaults and threats. That evidence is set out in her Affidavits sworn 14 December 2003, 15 June 2004 (largely a repetition of her prior affidavit) and 18 August 2010.
In relation to one particular incident of violence, the mother’s evidence is corroborated by the Affidavit of the maternal grandmother sworn 10 February 2004.
The mother was not cross-examined in relation to her affidavit evidence.
The maternal grandmother gave oral evidence. During the course of cross-examination, she stated that she did observe the father grabbing the mother by the neck and shoulders but did not see him push the mother against the fence. I accept the evidence of the maternal grandmother’s observation of the father being violent to the mother.
During the course of his oral evidence the father was not cross-examined by the mother’s solicitor in relation to any of the assaults or threats alleged to have been carried out or made by the father against the mother.
In the course of cross-examination of the father by counsel for the independent children’s lawyer, the father denied assaulting the mother in 2002 and 2003 or pulling her out of a car or pushing her against a fence. The cross-examination was brief, although one might have expected the mother’s solicitor rather than counsel for the independent children’s lawyer, to have cross-examined the father, to obtain admissions from him if possible. However, as previously referred to the mother’s solicitor did not cross-examine the father at all in relation to family violence alleged by the mother.
I accept the affidavit evidence of the mother which was detailed and plausible. The mother was not cross-examined. Whilst the father was cross-examined to some extent by counsel for the independent children’s lawyer rather than the solicitor for the mother, I have nonetheless preferred the evidence of the mother to that of the father principally as I have preferred her credibility to that of the father on matters of conflict. Accordingly, I find that the father has been violent to the mother as alleged by her.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party

As is apparent from Exhibit 11 the orders now sought by the father are that the mother have unsupervised periods of time with the child to take place on the basis that contemporaneously the parties and the child have the benefit of counselling.
However, Exhibit 11 is qualified by the father’s oral evidence that he considers that the child may be killed by the mother due to neglect of him in dangerous activities or as a result of the mother being unable to control her temperament.
Consequently, I find that the father has demonstrated by Exhibit 11 that he is willing to facilitate a continuing relationship between the child and the mother qualified by his concerns that she may imperil the child’s life. In those circumstances, I find that the father is neither willing nor has the ability to facilitate and encourage “a close” relationship between the child and the mother.
So far as the mother is concerned, Exhibit 14, as well as her evidence, demonstrates a willingness and ability to facilitate a continuing relationship between the child and the father, qualified by the strict terms and conditions including supervised time as set forth in Exhibit 14.
Exhibit 14 and the evidence of the mother make it clear that the mother is not willing, nor does she have the ability, to facilitate and encourage “a close” relationship between the child and the father. I accept her evidence that at the heart of her proposals is her concern that the father will continue to undermine the relationship that she has or may develop with the child.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from the mother or any other person with whom she has been living

Time to be spent with the mother if child lives with the father

A summary of the evidence of the family consultant is set out in these paragraphs and earlier paragraphs.
With regard to the child seeing the mother at a contact centre, the family consultant could not see any other way of a transition into her care being effected without conflict and without the child becoming emotional and embroiled. It needed the intervention and support of a person with experience in dealing with these situations and someone outside of the family dynamic.
The key to the relationship with the mother against the background of the child having lived primarily with the father, is that if the father was actively encouraging and reassuring the child about seeing his mother, it would assist the child greatly.
With regard to a paid experienced supervisor in the home environment, the family consultant did not think that the mother’s interactions need to be supervised so much as how is the child going to be able to transition from the father to the mother’s care.
However, it is the beginning of the visits and transition from the father’s care that is the problem for the child. Once the child has had the chance to relax with all the people that he is familiar with, including the mother’s partner’s children, (he gets on with them well) then he will begin to settle.
The father’s current orders sought are different to the past. That is, that his current proposal is that the child continue to live with him and there be periods of time spent with the mother unsupervised. That should go hand in hand with the parties taking part in counselling, including the child. In that context, seeing a family therapist has some potential for help, but it would largely depend upon the father’s commitment to it and also a clear commitment to what the goals would be. It would perhaps worsen the problem if it was just used as a venue to reignite assessments and allegations.

Family therapy

It may be possible for one therapist to work with each of the family members but it may be useful and workable if the father’s commitment to it primarily is genuine. The interviews conducted and observations of the family consultant did not lend to a view that there was anything which would indicate a commitment to that process, but perhaps there has been significant change. A therapist would need some clear direction from the Court or the independent children’s lawyer about what the parents might agree upon as being the focus of therapy. There would have to be a clear focus on helping the child have good relationships with both parents to deal with any kind of fears and anxieties that he has to support him moving between them. The goals would need to be clearly mapped out for the therapy to be useful.
The family consultant recognised that setting the goals may not be difficult, but getting the genuine commitment to it by each of the parties might be another matter.
The family consultant said that she would be surprised if the father is saying he feels so differently to what he did when met by the family consultant about the value of rebuilding the child’s relationship with the mother. One of the difficulties will be if the child will be moving between them, as the child for some time will continue to show resistance to seeing the mother, even if he is enjoying his time with her. It takes a very strong determination by a parent, and a very clear view that they are doing the right thing in the long term for the child, by sending the child to a parent to cope emotionally with the difficulty in making the child do something in the face of that resistance. If it is against belief of the parent, often there is very ambivalent kind of body language, ambivalent confused messages being given to the child about the transitions and the worth of the time with the other parent that could give rise to ongoing very serious problems. If there is a sense of the parent’s interpretation of things that the child says, or exaggerated language, then that could give rise to new concerns.
At some time the family consultant wondered whether the father had made an agreement or pact with the child to make sure he was never in a situation where he can be harmed by the mother again.
I accept the evidence of the family consultant that should there be a finding that the child has been alienated by the father against the mother, there are long term benefits for the child in reversing his residency in that the child move into the primary care of the mother.
The family consultant also emphasised that the child is likely to suffer significant trauma in the short term should an order be made that he no longer live with the father but commence living with the mother in her household. The family consultant considered that for a successful transition to take place, the child would need the support of both parents. The family consultant considered that the nature and extent of the interdependence of the father and the child in their relationship made it difficult to predict the period of time that might elapse so far as the child no longer showing adverse emotional effect of being compelled to no longer live with the father and to live with the mother instead. The family consultant raised significant concerns as to the father’s capacity to support such a transition in a positive and encouraging way.
Consequently, I find that whilst there are indeed long term benefits for the child in moving into the primary care of the mother in terms of re-establishing an healthy relationship with her, the child is likely to suffer significant emotional distress which implicitly may hinder his own ongoing emotional development and as a result may not be in his best interest.

Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Neither of the parties gave evidence of any practical difficulty and/or expense relevant to this particular consideration. Indeed, no submissions were made which attract this particular consideration.

The maturity, sex, lifestyle and background of the child and with either of the parties

I am satisfied that the child, who is a young boy ten years of age, has the maturity commensurate with a child of his age.
However, the conflicted relationship between the parties and the actions of the father in promoting alienation of the child against the mother have undoubtedly created the serious stresses and tensions for the child impacting in particular upon his relationship with the mother.

The parental attitude of each of the parties

I find that each of the parties has an appropriate parental attitude to the child borne out of their love for him.
I find that the father’s parental attitude is compromised by alienation of the child against the mother principally caused by him.
I find that the mother has an appropriate parental attitude to the child. The real issue is the conflicted parental relationship which has manifested itself in the various matters the subject of my findings.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the child

I am unable to find that there is a preference for any parenting order of substance compared to the alternative or alternatives given that whatever parenting orders are made carry with them the likelihood of ongoing parental conflict which may lead to the institution of further proceedings in relation to the child.
Indeed no submission to the contrary was made.

Any other relevant fact or circumstance

At the commencement of a number of court events for the purpose of hearing interim applications or to make directions, leave was granted for the father to be assisted by a McKenzie friend. The person concerned is Mr D. On one or two occasions leave was refused.
The relevance of Mr D in relation to the issues in these proceedings includes, but is not limited to, his influence over the father and his witnesses in relation to the parenting issues in these proceedings, such as by the settling of affidavit evidence filed on behalf of the father, the maternal grandparents and the maternal uncle. All of those witnesses were relied upon by the father. Indeed, each was cross-examined.
The relevance of Mr D’s role in providing “assistance” to the father is reflected in the evidence that the father gave as follows.
Mr D provided handwritten replies to correspondence sent to the father by the mother’s solicitor. The evidence of the father is that Mr D fulfilled that role as the father considered that Mr D was “a good writer”. The father informed Mr D of his feelings about particular matters referred to in correspondence and Mr D then expressed those feelings “into words”.
The father’s evidence also is that Mr D drafted the affidavits to which I have referred and which were ultimately sworn to or affirmed by the father and his witnesses. That process came about by the father and his witnesses informing Mr D of the substance of their proposed affidavits and Mr D then proceeded to draft and settle the relevant affidavits before they were completed.
In addition, the father forwarded correspondence to the principal or appropriate staff member at the child’s current school of no relevance to the school which amongst other matters, cast aspersions on the mother’s character and her relationship with Mr A. That correspondence was prepared by Mr D having been given the authority and the information that he required for that purpose by the father.
The father’s evidence is that he paid Mr D approximately $3,000.00 for carrying out the work in relation to these proceedings to which I have referred.
A measure of the influence of Mr D so far as the father’s affairs are concerned is that the father granted him a power of attorney “because he was dealing with issues to do with the settlement of my mother and father’s property”. There was no evidence in the proceeding of the terms and conditions of the power of attorney nor, why it was that the alternative of the father giving Mr D information from time to time, leaving the father as the sole decision maker, was not a course that was adopted by the father.
In addition, Mr D attended at the interviews which took place between the parents and the child with the family consultant on 20 October 2009. Mr D did so without any authorisation in terms of court order or consent by or on behalf of the mother. Mr D claimed he was there as the father’s “McKenzie friend”. That was simply a serous misrepresentation by the father and Mr D. Ultimately, the interviews did not proceed and the matter was relisted before me so that appropriate orders could be made. Mr D at the time of attending at the venue for the proposed interviews inappropriately decided that it was his place to engage the family consultant in conversation as to matters that he, Mr D, considered relevant.
On another occasion early this year when Mr A’s two young girls decided to approach and speak to the child who was in the company of the father in the vicinity of the court building, Mr D took it upon himself to intervene and to tell those girls that they should, in effect, stay away.
I accept the evidence in relation to all of the matters concerning Mr D to which I have referred in earlier paragraphs.
Having regard to the nature and extent of that evidence I have concluded that Mr D is a person who, at best, has been a well-meaning paid assistant for the father and the maternal grandparents, albeit a meddler in matters relating to the child.
At worst he has been a Svengali-like figure paid for work which arguably only a legal practitioner may charge.
In response to my query during the hearing as to whether or not Mr D would be called as a witness on behalf of the father, the father’s counsel stated that Mr D would not be appearing as he did not wish to give evidence. That may have been a wise course in the circumstances so far as Mr D was concerned.
I trust that the father will consider obtaining as soon as possible legal advice from an experienced solicitor in relation to the immediate discharge of the power of attorney held by Mr D and refund to the father of the money paid to him. Were it not for the absence of Mr D as a witness, and consequently a lack of direct evidence from him, I would seriously consider sending the papers to the New South Wales Attorney-General to decide whether or not Mr D may have committed an offence for which he should be prosecuted in terms of being paid for the performance of legal work which only a practising legal practitioner may charge.

Conclusion

Each of the parties and the independent children’s lawyer have made proposals and sought relevant orders in relation to the party with whom the child should live and the periods of time that the child should be in the care of the other party including communication with that party. I have provided the salient features of the orders so sought earlier in this judgment. The minute of orders sought by the independent children’s lawyer became Exhibit 17. Exhibit 17 provides for the mother to have sole parental responsibility and that the child live with her. Counsel for the independent children’s lawyer during the course of his submissions made it clear that those orders are sought as “final” orders and that the orders sought in relation to periods of time to be spent by the child with the father and the terms and conditions that relate to such periods, together with ancillary orders, are sought as interim orders.
As the High Court has made clear in U v U[4] a trial Judge is not bound by the orders sought by either party but may make different orders should it be in the best interests of the child to do so. The trial Judge is also not bound by a recommendation of the family consultant[5].
[4] (2002) FLC 93-112
[5] Ibid at 89,089 and 89,102
I have determined that it is in the best interests of the child that there be interim parenting orders made which in substance provide for the child to continue to live with the father and spend periods of time in the care of the mother on alternate weekends and during school holiday periods, as well as on other special occasions supported by consultations with Ms O, clinical psychologist and a family therapist recommended by her.
In making those orders I emphasise that this is a finely balanced and very worrying case fraught with significant difficulties for the child’s emotional development and ongoing healthy relationship with both parents. There are good reasons to support the proposals that each party has made, as well as of course the independent children’s lawyer. I have found it difficult to harness the competing considerations in a way which will foster a solution which promotes the best interests of the child with the least possible trauma for him. It must not be overlooked that this child is still young, being ten years of age, approaching his eleventh birthday. For the past two years the child has been at the centre of a continuous conflicted parental relationship in which allegations have been hurled by one party against the other in circumstances which have created tension and pressure upon this young child.
Matters have not been helped by the strong antipathy towards and criticism of the mother by the maternal grandparents, nor by Mr D’s influence so far as the father and the maternal grandparents are concerned. I have made findings in relation to those matters.
My reasons for the orders that I will make are as follows.
There have been a number of important issues in these proceedings that required resolution by findings. Amongst those matters, included whether or not the child is alienated against the mother and if so, whether such alienation has been caused by the father or, the mother or both of them. The child has been alienated against the mother and that such alienation has been brought about by the father. The case for the father has been that the mother has been the cause or largely contributed to such alienation due to her physical abuse of the child prior to her overseas travel in 2008. I have made findings which reject those allegations.
Whilst the father raised the spectre of the mother potentially killing the child due to placing the child in a dangerous situation or, as a consequence of her temper, I do not find that there is an unacceptable risk of such physical abuse or any physical abuse of the child by the mother. Whilst the father voiced his fears in that regard, I find that there is no evidence of any substance to support the father’s views. Indeed, counsel for the father did not make any submission which invited me to make a finding consistent with the father’s alleged anxiety.
In view of the findings that I have made whereby I accepted the case for the mother that the child has been alienated against her by the father, I would have been satisfied that there is an unacceptable risk of such alienation continuing, were it not for the substantial change in the father’s attitude to the child spending periods of time with the mother on an unsupervised basis, supported so far as the parties and the child are concerned by consultations with Ms O, clinical psychologist. Indeed, counsel for the father did not oppose the potential for family therapy to also take place.
The proposals of the parties and the independent children’s lawyer also need to be considered in terms of the difficult assessment of the short term, as well as the long term, benefits to the child of him remaining in the primary care of the father or, alternatively with the mother.
I have accepted the evidence of the family consultant and made findings that there are certainly long term benefits for the child in being in the primary care of the mother in order to thereby overcome the harmful effects to the child due to the alienation that has taken place. The findings that I have made as to her capacity to provide for the physical, emotional and intellectual needs of the child are of course relevant in relation to that issue.
There are also significant concerns that such long term benefits in the emotional development of the child and his relationship with the mother may well not be supported by the father in view of the history of the conflicted parental relationship and the causes of it.
That is not the end of the matter. I must also give weight to the evidence of the short term effects on the child of being immediately moved into the care of the mother on a primary basis. As the family consultant emphasised in her oral evidence:
“…the child has been subjected to huge pressure, turmoil and tension because of the parental conflicted relationship. In the short term it would be a traumatic change for the child.”
The family consultant, understandably, was not in a position to forecast the period of time that difficulties would remain for the child as a result of such a traumatic change for him. Indeed, as the family consultant stated, no amount of research can properly deal with the individualised situation of the child.
The family consultant stated that the child would be angry, distressed and have difficulty separating from the father. The family consultant considered that signs of the child’s distress would likely continue for some weeks or, until some point when he could be reassured that the father was alright and loved him. In addition, there would need to be a process for the child over some weeks of struggling to establish his place in the mother’s household with Mr A’s children and implicitly him as well. The family consultant considered there would be mood changes, conflict and a very demanding period on the mother. The family consultant referred to other difficulties with which this young child would have to face and cope. I do not accept her evidence that the intensity of the child’s reaction was likely to be for six hours to one day. No evidentiary basis was given for that forecast and indeed, it seemed to me to be in contradiction to the very matters that she emphasised in terms of the manifestation of trauma for the child.
I should also point out that I was not assisted by expert evidence from a child psychiatrist or psychologist. That is not a criticism of the family consultant, but rather the outcome of the parties not being in the financial position to meet the expense that would necessarily have been involved.
The father demonstrated a dramatic change of approach to the issue of time to be spent with the mother and willingness to engage in consultations with a psychologist and assistance for both him the child and the mother by taking part in family therapy. The father was quite emotional at times during the course of giving his oral evidence. I was left with the impression that he is internally conflicted and confused. However, his emphasis on wanting to put an end to the conflict with the mother and to ensure that the child is able to redevelop an appropriate relationship with her seemed genuine, notwithstanding his rather bizarre anxiety of future harm that may be caused by the mother to the child to which I have referred.
All parties support the need for professional assistance from a psychologist and family therapy. The father made his proposals as reflected in Exhibit 11 of his own volition, in contrast to other cases where such concessions are only forthcoming (if at all) during the course of cross-examination.
Consequently, I have placed more weight upon the likely adverse emotional effects upon the child in the short term, compared to the long term benefits which are likely to develop, when considering the difficult issue of whether the child should continue to live with the father, as opposed to moving now into the primary care of the mother.
I have concluded that it is in the best interests of the child that there should be interim orders made, rather than final orders. I have done so as it is not possible to confidently evaluate, from the evidence before me, the full nature and extent of the effect upon the child of transition from the father’s care to the mother’s care on an unsupervised and extended basis. As the family consultant emphasised, it will require a sincere commitment by both parents, supported by professional help such as a from a psychologist and family therapist for a more healthy chapter in this young child’s life to develop for his benefit. The father has stated that he would like that outcome to be achieved. That is apparent from both his oral evidence and also the orders that he himself has sought being Exhibit 11.
The father needs to understand that the issue of whether he has indeed provided genuine sincere commitment to the child having the relaxed and secure relationship that he deserves with the mother, as well as with the father, will if necessary, be reviewed and assessed in a subsequent hearing. Should it emerge that the father’s evidence was a mere ploy to avoid the worse outcome from his viewpoint, then it may well be that orders will be made which not only cause the child to be living primarily in the care of the mother, but that the father’s influence over the child will be reduced to a minimum for a considerable period of time.
Interim orders will enable progress in the proposed rejuvenated relationship between the chid and the mother to be assessed having regard to not only the parties’ actions, but also their commitment and progress due to psychological advice and therapy which will be provided.
The orders that I will make for the child to spend time with the mother largely mirrors the periods that the father himself sought in Exhibit 11. In order to lay the ground for that regime of periods of time to be spent with the mother to take place, the parties will first have to engage in a consultation with Ms O, clinical psychologist and involving the child if she so deems it appropriate.
I will allow a period of approximately four months before the matter is relisted for further directions if necessary. In the meantime the professional assistance to which I have referred will have taken place and substantial periods of time should have passed during which the child will be in the care of the mother. That will include not only alternate weekends but also half of the December January school holiday period.
I have considered “equal time” and the other matters in s 65DA as required but due to my conclusion that an interim order shall be made for equal shared parental responsibility. That is required to ensure wider co-operation for implementation of the orders for attendance on the psychologist and therapist and to promote constructive communication between the parties. Neither of the parties sought “equal time” or implementation of the other matters in s 65DA.
I had raised with counsel and in particular counsel for the father, the prospect of an order being made requiring the father to use his best endeavours to ensure that Mr D no longer is involved in the preparation of any future court document or communication in relation to matters affecting the child. Counsel for the father informed me that such an order was not opposed. In addition, he submitted that the father was in an emotionally vulnerable state as a result of the issues in these proceedings and the pressure that the proceedings have created which enabled him, in effect, to fall under the influence of Mr D who he eventually paid some three thousand dollars. Accordingly, I will make an order which captures the essence of the approach to which I have referred. Hopefully, the father will, if possible, avoid any future influence from Mr D in relation to any matter or aspect of future proceedings between the parties and instead seek and rely upon legal advice from an appropriately competent and highly experienced legal practitioner.
One particularly sad aspect of the evidence in these proceedings has been the role played by the maternal grandparents in the parental conflict.
Whilst I made findings as to maternal grandparents’ love of the child and the assistance that they have provided by ensuring that their home is a venue for supervised care of the child by the mother, it has been made clear by the maternal grandparents and in particular the maternal grandfather, the vehemence of their criticism and rejection of the mother. I am satisfied that on the balance of probabilities their attitude in their regard has indirectly, if not directly, escalated the tension between the parties which cannot have been in the best interests of the child.
Accordingly, I have decided to make an order requiring the father to use his best endeavours to ensure that the maternal grandparents are not in a position to communicate with the child on an interim basis, unless with the prior written consent of the mother. Such an order is likely to remove one further obstacle in the way of restoration of a healthy relationship between the child and the mother. However, as with all interim orders, if necessary a different order may be made upon the application of one or more of the parties or, with their written consent.
It follows that on an interim basis in order to ensure maximum stability and routine for the child as part of a platform for a relaxed and beneficial relationship between the child and the mother, I have declined to make an order which would cause the child to be enrolled in a different school to his current school. In view of the scheme of the orders, it seems only sensible to minimise changes to which the child will have to become accustomed. A change of school is obviously a significant change which the child would otherwise have to meet. This child has had enough tension and trauma which must be put to an end, so far as it is possible to do so.
Orders will be made restraining the parties from denigrating each other or members of that parties’ family, or from discussing the proceedings with the child or, from using physical bore upon him. In addition, an order will be made requiring the father to immediately authorise and request the principal of the child’s school to furnish the mother with copies of all school reports and other material in relation to the child. None of those matters are of controversy in the proceedings.
In addition, the parties will need to communicate with each other in the event of the child suffering a serious illness or injury. Communication between them also needs to be greatly improved. Appropriate orders will be made in relation to all of those matters.
The parties must realise that this is probably the last opportunity for them to turn a new leaf in their relationship. Their commitment to do so will if necessary be assessed at a subsequent hearing. Hopefully, such a hearing can be avoided, but directions will be made in that regard when the matter is listed before Registrar George on 7 March 2011.
It would be tempting for the mother or others associated with her cause to perhaps react to these orders on the basis that the father has been rewarded for his unacceptable conduct and in particular alienation of the child. However, parenting proceedings are not concerned with concepts of reward or punishment. The Act requires that the best interests of the child is the paramount consideration for the purpose of making parenting orders[6]. I have endeavoured to make such orders on an interim basis for the reasons that I have given and having regard to any review of the relevant evidence, findings of fact made and the weight that should be attached to such findings. I urge the parties to apply themselves to the full extent possible to ensure that the orders made will operate in a way which will enhance the child’s relationship with each of them, regardless of the periods that the child spends in the care of one or the other. Should such a development be achieved, then the parties will truly have acted in the best interests of the child which should be the ultimate focus for them. The primary consideration required in the legislation of the benefit to the child of a meaningful relationship with the child’s parents will then have been achieved[7].
[6] Section 60CA
[7] Section 60CC(2)(a)
The suite of orders that will be made will in due course avoid or reduce the potential of psychological harm being caused to the child, being the other primary consideration which I must give effect to, so far as it is possible to do so.[8]
[8] Section 60CC(2)(b)

I certify that the preceding two hundred and seventy three (273) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 12 October 2010.

Associate:

Date: 12 October 2010

[2010] FamCA 916

12 October 2010

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Procedural Fairness