Wallis and Diamond
[2017] FCCA 832
•28 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALLIS & DIAMOND | [2020] FCCA 832 |
| Catchwords: FAMILY LAW – Parenting – parents separating when boy four years old – boy now 10 years old – parents having high conflict post-separation relationship – conflict causing neurological damage to boy’s developing brain – boy sometimes unable to regulate emotions – boy sometimes violent towards others, including his mother – boy preferring to live with his father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MR WALLIS |
| Respondent: | MS DIAMOND |
| File Number: | HBC 1144 of 2010 |
| Judgment of: | Judge Riley |
| Hearing dates: | 9, 10, 16, 17 and 22 March 2017 |
| Date of last submission: | 3 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 April 2017 |
REPRESENTATION
| Counsel for the applicant: | Mr Grant |
| Solicitors for the applicant: | Dobson Mitchell Allport |
| Counsel for the respondent: | Mr Kanarev |
| Solicitors for the respondent: | Borchard & Moore |
| Advocate for the independent children’s lawyer: | Ms Dosanjh |
| Solicitors for the independent children’s lawyer: | Hartleys Lawyers |
ORDERS
All previous orders be discharged.
The father have sole parental responsibility for X born on (omitted) 2006 (“X”).
The father notify the mother in writing of any major, long-term decisions he proposes to make in relation to X 28 days prior to making them, and invite the mother’s input.
X live with his father.
X spend time with his mother:
(a)during school terms, every alternate weekend, commencing on 5 May 2017 from after school, or 3:30pm if it is not a school day, on Friday until before school, or 9am if it is not a school day, on Monday;
(b)from after school on the last day of term until 5pm on the middle Saturday of each school term holiday;
(c)each alternate week, from after school on the last day of term 4, until 5pm seven days later, during the long summer holidays;
(d)from 5pm on the Saturday before Mothers’ Day until the commencement of school, or 9am if it is not a school day, on the following Monday;
(e)from 3pm on Christmas Day until 3pm on Boxing Day in 2017 and each odd-numbered year thereafter;
(f)from 3pm on Christmas Eve until 3pm on Christmas Day in 2018 and each even-numbered year thereafter;
(g)as otherwise agreed in writing between the parents.
X spend time with the parent with whom he is not residing on his birthday from after school until 7pm, if his birthday falls on a school day, or from 12md until 6pm, if his birthday falls on a non-school day.
If X would not otherwise be with his father on the weekend of Fathers’ Day, X’s time with his mother on that weekend finish at 5pm on the Saturday before Fathers’ Day.
If X has any sporting commitments on any weekend that he spends with his mother, she take X to and from at least one of them.
Subject to order 8, the mother be at liberty to include X in (nationality omitted) cultural events and attend (omitted) Church services with X when he is spending time with her.
Changeovers occur at school at school times and otherwise at “(omitted)” in (omitted).
The father not relocate further than 80kms from his current residence.
The mother be restrained from taking X overseas except with the written consent of the father.
Each parent be restrained from physically disciplining X.
Each parent:
(a)attend the Parenting Orders Program at EACH in (omitted) (“the program”) for assessment and family counselling;
(b)follow the recommendations of the program administrator; and
(c)complete all aspects of the program required by the program administrator.
On the day that the father first attends the program for assessment, the father provide to the program administrator a copy of any family report relating to the parents and X, and a copy of the reasons for these orders.
Within 14 days of receipt, each parent serve on the independent children’s lawyer a copy of that parent’s certificate of engagement with the program.
Within 14 days of receipt, each parent serve on the independent children’s lawyer a certificate of completion of the program.
The father authorise X’s school to forward to the mother (at the mother’s expense, if any) school reports, photographs, newsletters and any other material a parent normally receives and the mother be at liberty to attend parent teacher interviews and any other school event a parent would usually attend.
The mother and father keep the other informed of their current residential address and telephone number (including mobile) and inform the other of any change within 24 hours.
In the event there is a dispute about these orders between the mother and father, then the mother and father at first instance attend mediation through Victoria Legal Aid and/or Relationships Australia (or any approved family dispute resolution service) prior to issuing an application in either this court or the Family Court of Australia.
The appointment of the independent children’s lawyer be discharged upon her being satisfied by appropriate evidence that both parents have completed the parenting orders program.
The mother’s application in a case filed on 10 October 2016 and adjourned to the final hearing on 9 March 2017 be otherwise dismissed.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATIONS
A.The purpose of orders 14 to 17 is to assist the parents to address their long-standing conflicted relationship, to better communicate, to develop respect for their different parenting styles and to gradually develop insights into how their conflicted relationship, and the exposure of X to it, is having long term effects on X’s emotional well-being and development.
B.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
C.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Wallis & Diamond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
HBC 1144 of 2010
| MR WALLIS |
Applicant
And
| MS DIAMOND |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of X, who was born on (omitted) 2006 (“X”). X is half (nationality omitted) on his mother’s side. He is now 10 years old. He attends (omitted) Primary School.
The father is 53 years old. He works from his rented home in (omitted) as a (occupation omitted). The mother is 48 years old. She is undertaking a (course omitted) and works part-time as a (occupation omitted) at (employer omitted). She recently bought a unit in (omitted).
The father alleges that the mother physically and emotionally mistreats X. The mother alleges that the father has been attempting to alienate X from her.
X’s parents were married on (omitted) 2005. They separated on a final basis on 26 December 2010, when X was approximately four-and-a-half years old. Since separation, X initially lived primarily with his father but then lived in a week-about arrangement with each of his parents. Initially, the parents lived with X in Hobart. However, in January 2012, after separation, both parents and X relocated to Melbourne.
X’s parents have had a high conflict relationship since separation. It was not alleged that the parents were physically violent towards each other post separation. However, as intelligent and educated people, they have had more subtle ways of waging war against each other.
A neuropsychological assessment of X by Dr C indicated that the high conflict between X’s parents had contributed to him having high stress levels, which have produced high levels of cortisol and adrenaline, which have, in turn, affected the frontal lobes of X’s developing brain. The neuropsychological assessment indicated that the frontal lobes of the human brain deal with executive processing.
The impact of stress on X’s developing brain has had behavioural consequences including that he reacts aggressively and violently with his peers. In other words, X has a history of responding to challenges from other school children by physically fighting them. He has also, on the mother’s evidence, kicked and punched her. X often lacks the ability to appropriately regulate his emotions.
Dr V provided a family report in this matter. In his oral evidence, Dr V said that the deficits in X’s developing brain could not be cured as such. However, Dr V and Dr C both considered that X would be greatly assisted by his parents engaging in less conflict in the future, and by stable and consistent parenting, particularly as he approaches the turmoils of adolescence.
Dr V confirmed in his oral evidence that children identify with each of their parents and internalise criticism by one parent of the other as criticism of the children. Dr V confirmed that the criticism can occur by express words or by actions or by omissions. Dr V also confirmed that express or implied criticism of one parent by the other can have very damaging consequences for children, as X demonstrates.
Both parents appeared to consider that their words and conduct have been absolutely fine and that it is the other parent who has caused all of X’s problems. However, the father said in his affidavit evidence that X referred to his mother in the father’s presence not as “Mum” or “Mummy” but as “someone” or “somebody”. The father appeared to have presented this evidence as proof that X’s relationship with his mother was so poor that X should live with him. It did not appear to have occurred to the father that X felt unable to refer to his own mother as “Mum” or “Mummy”, in the father’s presence, because X knew that his father did not want to accept that X even has a mother.
The father has made 11 notifications to child welfare agencies in Melbourne and Hobart, and three complaints to the police, relating to what the father claims are assaults or other mistreatments by the mother or her friend, Mr L, of X. None of the notifications and complaints have been substantiated or resulted in convictions.
On the other hand, the mother, following one of the father’s complaints to the police, alleged to the police that the father had sexually abused X. That allegation was based on the mother’s perception that X was less physically affectionate towards her than he had been previously. The police did not pursue the allegation of sexual abuse and the mother did not pursue it at the final hearing.
In addition, the mother has completely ignored the fact that X is a talented (hobby omitted), having won a (omitted) award. The mother has never watched X play (hobby omitted), has never taken him to play (hobby omitted) and maintained that he wants to drop that sport. That is inconsistent with oral evidence given by X’s current psychologist, Mr G.
Both parents take X to (hobby omitted) lessons, but the mother takes him to one venue and coach and the father takes him to another venue and coach.
X’s parents have not allowed him to have his own coherent life, which both parents facilitate. Rather, the father treats X as if he does not have a life when he is not with him, and the mother treats X as if he does not have a life when he is not with her. X is forced to have two separate lives, depending on which parent he is with at any given time. This, of course, is very unfair and damaging to him.
The procedural history
The mother first commenced proceedings in this matter by her initiating application filed in the Hobart registry of the Family Court of Australia on 30 December 2010. On 14 January 2011, interim orders were made by consent between the mother and the father for X to live with his father and spend time with his mother each weekend between 9am on Saturday and 6pm on Sunday and communicate with her each night, or as otherwise agreed.
The matter was later transferred to the Federal Magistrates’ Court and an independent children’s lawyer was appointed. On 22 December 2011, Baker FM made final orders by consent for equal shared parental responsibility and for X to live in a week-about arrangement with each of his parents.
The current proceedings were commenced by the father by his initiating application filed on 24 February 2015 in the Melbourne registry of this court. Again, an independent children’s lawyer was appointed. Orders were made for Dr V to prepare a private family report and listing the matter for interim hearing 10 February 2016.
Dr V’s family report was exhibited to an affidavit filed on 2 February 2016. Dr V recommended strongly against the shared care arrangement continuing. Given X’s developmental difficulties, Dr V recommended that X live with one parent and spend alternate weekends with the other and perhaps a night in the off week. Dr V did not express a view about which parent X should live with, saying that it was necessary to test the evidence.
Dr V recommended that X be assessed, particularly to see if he fell on the autism spectrum, given some oddities in his presentation, and that both parents be psychiatrically assessed. The parents agreed to those assessments being undertaken, which necessarily delayed the final hearing.
On 10 October 2016, the mother filed an application in a case seeking to obtain a passport for X without the father’s consent and for X to be permitted to travel to (country omitted) with her. The father opposed that application. It was adjourned to the final hearing on 9 March 2017.
The father’s initial proposals
In his initiating application filed on 24 February 2015, and in his case outline filed on 8 March 2017, the father sought final orders that:
a)the orders made on 22 December 2011 be discharged;
b)X live with his father;
c)the father have sole parental responsibility for X;
d)X spend time on a supervised basis with his mother every alternate Sunday between 10am and 4pm; and
e)the mother be restrained from allowing X to come into contact with her friend, Mr L.
The mother’s pre-hearing proposals
In her response filed on 30 March 2015, the mother sought final orders as follows:
a)the parents have equal shared parental responsibility for X;
b)X live with her;
c)X spend time with his father:
i)from after school Friday until before school Monday each alternate weekend;
ii)from after school until 7pm each Wednesday; and
iii)for half of school holidays and for special occasions;
d)the father sign all necessary documents for X to receive an Australian passport; and
e)the mother be permitted to take X overseas for a holiday upon providing the father a copy of the itinerary and contact details for X while he was away.
In her amended response filed on 3 February 2017, the mother sought the same final orders as previously except that:
a)the mother have sole parental responsibility for X;
b)X spend time with his father:
i)from 10am on Saturday until 5pm on Sunday each alternate week; and
ii)half school holidays;
c)changeover occur at (omitted) Primary School, in default of agreement;
d)X attend (omitted) Primary School for the remainder of year 5 and year 6;
e)the parents agree on a high school in the (omitted) area for X’s secondary education;
f)the father be restrained from relocating further than 80 kilometres from his current residence in (omitted);
g)X and his father undertake professional counselling specialising in high-conflict relationships and parental alienation;
h)the child support agreement dated 12 October 2011 between the father and the mother be discharged; and,
i)from the date of the final orders in the current proceeding, the rate of child support be assessed pursuant to the Child Support (Assessment) Act 1989.
The mother’s application to set aside the child support agreement was dismissed by consent on 9 March 2017.
In her case outline filed on 7 March 2017, the mother sought substantially the same orders as were contained in her amended response.
The final proposals
During the final hearing, the mother amended her proposal to be that X live with her and spend time with his father from after school Friday to before school Monday in alternate weeks. The father, during cross-examination, eventually agreed that he did not seek for X’s time with his mother to be supervised and instead proposed a mirror of the mother’s proposal. That is, the father proposed that X live with him and spend time with his mother from after school Friday to before school Monday in alternate weeks. Each parent proposed that they have sole parental responsibility for X.
The independent children’s lawyer reserved her position until after the evidence was heard. Ultimately, the independent children’s lawyer proposed that:
a)the parents have equal shared parental responsibility for X;
b)X live with his father; and
c)X spend with his mother:
i)alternate weekends from after school Friday to before school Monday;
ii)half school holidays; and
iii)time on special occasions; and
d)the father undertake counselling to assist him:
i)to encourage X’s relationship with his mother; and
ii)manage his reactions to X’s alleged disclosures.
The evidence
The father relied on:
a)his affidavit sworn on 9 February 2017;
b)the affidavit affirmed by X’s psychologist, Mr G, on 14 March 2017; and
c)the affidavit affirmed by X’s medical practitioner, Dr J, on 20 March 2017.
The mother relied on her affidavit sworn on 23 February 2017.
The independent children’s lawyer relied on:
a)the affidavit sworn by Dr V on 2 February 2016 exhibiting his family report;
b)the affidavit affirmed by Dr G on 28 September 2016 exhibiting his psychiatric assessment of the father;
c)the affidavit affirmed by Dr G on 2 November 2016 exhibiting his psychiatric assessment of the mother; and
d)the affidavit sworn by Dr C on 3 February 2017 exhibiting her neuropsychological assessment of X.
In addition, the parties relied on various documents that were tendered, being exhibits numbered 1 to 20.
The father, the mother, Mr G and Dr V were cross examined. Dr C’s evidence and Dr G’s evidence was accepted by all parties without cross examination. Dr J was not available for cross examination, and the parties agreed that the court should assess the weight to be given to her evidence in circumstances where she was not available for cross examination.
The family report
The family report noted at paragraph 16:
Despite [all] the problems, [the mother] also advised the X was coping remarkably well. She described him as a normal and happy boy, who experiences no difficulties.
In relation to his interview with X, Dr V said at paragraphs 37 to 41 of the family report:
37.X was difficult to engage. His eye contact was variable, his mood was somewhat detached, and he was somewhat withdrawn. He told me that the reason for our meeting was to determine with which of his parents he would live fulltime; in response to my question about his parents being separated, he was immediately brought to uncontrollable tears. He told me that his parents don't live together and that this was something he did not wish to discuss. He described living in two houses as “complicated and frustrating,” and that he found it difficult moving from house to house. He complained that his mother tended to get angry and that this made him sad, and that generally he felt better at his father’s house; he felt that his father was more understanding and more compassionate. When asked to described (sic) his parents, X told me that his mother was “not always nice,” that she got angry a lot and that she withdraws to her room, leaving X feeling confused and isolated. He told me that his mother could be “selfish,” that she was “bossy” and that at times she could be hurtful. In contrast, he described his father very positively, told me that his father was “very interactive, very smart,” that he was “fun and helpful”; he generally conveyed a greater sense of connection to his father.
38.I enquired of X about his parents and them having re-partnered, in response to which he told me that his mother has a boyfriend called Mr L. X tended to be very concrete in his responses and so when I asked him about Mr L and to describe Mr L to me, he replied “ .... he is tall.” Upon further exploration he complained that Mr L is a person who gets angry but that he “ .... also talks about electronics.” He complained that Mr L was not very nice to him and that Mr L and his mother didn’t pay much attention to him. He also spontaneously told me that at the start of the year Mr L got angry at him because he wouldn’t go to the mountains, and that he grabbed him and threw him on the bed; at the time his mother was downstairs washing dishes. X also told me that he was angry, and had kicked Mr L “ …. to the penis” because Mr L had thrown him on the bed, and that Mr L became angry and went downstairs. This recount was somewhat staccato, lacked emotion and conveyed something of a rote quality. It was difficult to get much in the way of elaboration. At times, X[’s] communication style was unusual in rate, rhythm and flow; his responses were concrete and lacked social nuance.
39.X’s presentation was concerning. There were themes of anger, aggression, emotional dysregulation, feelings of isolation and feelings of hopelessness. He identified his father as the person more in tune and in touch with him, and the person upon whom he relied and most trusted. It was difficult however to get any sense of continuity or clarity regarding X’s feelings. He conveyed a strong alignment to his father and a preference to be in his father's care. He expressed a wish to be able to return to Hobart because this was a happier time; he told me that he wouldn’t particularly miss his mother, adding that he doesn't like her that much because she's not very nice to him. When I asked him to elaborate upon this he told me, “ .... she gets angry for anything I do that she doesn’t like and I don't know half the time why she gets angry at me. Then she goes to her room for the whole day and I don't talk to her. When I was little she locked me in the wine cellar because she was angry. I couldn’t reach the door handle”.
40.Throughout, X’s range of affect was restricted; he was tentative, anxious and detached; he was difficult to engage. There was no sense of continuity to his account and he impressed as being particularly stressed and very tense. His behavior at times was quite regressed as his language became quite difficult to understand.
41.He told me that he found the living in two houses difficult, and that he preferred to be able to live in one house, preferably with his father. He told me that compared to his mother, his father never got angry. I asked a general question about smacking to which X told me that his mother used to smack him in the shower when she was angry. He also recalled there was a time when his grandfather intervened because of these concerns. I was not left with the sense however that X was acutely anxious in relation to his mother's maltreatment. He conveyed a sense of caution and apprehension in relation to his mother. He told me he found it difficult to trust her because she didn't believe or listen to him. He complained that compared to his father, his mother became angry, but what was particularly difficult for him was when she withdrew, took herself to her room and wouldn't communicate with X.
In relation to his observations of X with each of his parents, Dr V said at paragraphs 42 to 43 of the family report:
42.X was also seen in the company of his parents. Initially he was seen with his mother, and at first together, they were quite subdued, sitting at opposite extremes of the office. At the beginning, my observation of them was that they were quite awkward and uncomfortable, but as the session progressed, they warmed significantly. They played easily and cooperatively, there was spontaneous affection, they were cooperative and related easily. By the end of the session, they were relating easily and comfortably. There was physical affection, with X showing no hesitation or reluctance; they engaged easily.
43.Because of time constraints, X and his father were seen separately on another day and this too was unremarkable. X does not convey a sense of spontaneity and so his presentation is somewhat constrained and restricted, but he related warmly and easily with his father and seemed to enjoy the time. They shared interest in a range of activities. He was affectionate and also somewhat concrete in his play. He impressed as a boy who lacked imagination and creativity.
In paragraph 45 of the family report, Dr V said:
… my secretary advised that [the father] had expressed concern that [the mother] had been at my office with her ear to the door listening to my interview with X. My secretary then advised that when [the father] left, she had observed [the mother] on four other occasions come to my office door to listen to what was being said. I asked [the mother] about this; at first she told me that she didn’t listen and then diverted the conversation to [the father] having not even spoken to her. She then elaborated that she had listened on one occasion at the door in order to hear “what you were doing to my child”. This is unusual behavior and clearly not appropriate. She became more irritable at this time, stating assertively why would she abuse her son, and demanding that “.... all of this has to stop.”
In paragraphs 47 and 48 of the family report, Dr V summarised his discussions with the principal of X’s primary school as follows:
47.Ms [X] described X as a boy who has experienced significant problems. She described him as withdrawn, that at times he struggled with eye contact and that he had had difficulty maintaining healthy social relationships. She described X as a boy who tends to gravitate to the lowest social denominator and consequently made poor social choices by associating with other children who struggled in a similar way. She told me that his behavior had at times been highly dysregulated, that he had enormous difficulty acknowledging his own behavior or admitting the truth; she told me that at times, he was dishonest.
48.Ms [X] also noted that X struggled behaviorally, academically and socially, that his behavior easily regressed, that at these times he spoke in a baby voice, and that he could be obsessive. She noted that he did better with strict and consistent routine. I also note that according to Ms [X], that X could show an excessive interest in some topics to the exclusion of others, that he was prone to temper tantrums, that he could become very fixated on particular topics and that his behavior was quite different to that of other children. Ms [X] also described X as a boy who was very reluctant to engage in communication at school, that he often wouldn't speak, that he did not engage easily, that he was very emotionally constricted and shut down; she told me that he was a boy who would simply not acknowledge his behavior or his contribution to a problem.
In paragraphs 50 to 61 of the family report, Dr V summarised his discussions with Mr G, X’s psychologist, as follows:
50.Mr G first met X in around April 2014, after an appointment was arranged by [the father]. Initially, [the father] spent a fair bit of time showing him documentation of a history of issues (including legal) between him and [the mother]. He agreed to initially meet with X, but made it clear that he would require approval from [the mother], if [he] was to continue to see X.
51.Mr G described his early impression of X as quite “robotic’ in his movements, expressions and general behaviour. He described any conversation that involved emotions or even a bit of seriousness, that X would resort to acting and talking in [a] very childish/baby like manner. For example, if he asked X anything about his family, he would respond by saying “banana” repeatedly.
52.Mr G recalled that when X slowly started engaging and talking a bit about his parents, he referred to his father in an extremely positive way. X was always keen to talk about interests that he and his father shared such as the (omitted), (omitted) band, animals and boats. Whenever X referred to his mother, he would say that she is boring and would often repeat that “ .... she hit me and kicked me a lot and pushed my face into the pillow” Mr G advised that when he tried to elaborate on the details, that X referred to just one incident that occurred when he was much younger, and that he would try to steer the conversation elsewhere. Mr G also noted that X also seemed extremely emotionally disconnected and robotic when he would talk about this incident, leaving Mr G unsure whether he had genuinely disconnected as a coping mechanism or whether he was being coached to report on something that may not have happened. Mr G commented that, on one hand [the father] seemed absolutely devoted, committed and caring of his son’s wellbeing, but on the other he appeared fairly pushy or at least appearing that he might be more consumed in the battle with [the mother], and perhaps a desire to live with X in Tasmania. This description is certainly in accord with my observations of [the father] and his style.
53.By August 2014, Mr G met with [the mother]. He reported that she was initially hesitant and withdrawn. She explained that she did not believe that X had any issues and that she did not believe he needed counselling. She explained that she was cautious with everyone because [the father] was so manipulative, portrayed her negatively and that others had believed him; as was the case in her interview with me, [the mother] described [the father] having spent years trying to make her life difficult. She described [the father] to Mr G as having been unwell, and that at one point he was suicidal, something [the father] vigorously denied, as well as the fact that he was extremely wealthy but pretended that he was not.
54.Mr G broached directly the issue of physical discipline of X, which she denied. [The mother] told him that X would at times refuse to engage in anything she tried to do with him which sometimes led to arguments between them. In a later session he asked X indirectly around the activities he did when he was at his mother’s house. X explained that his mother either ignored him and did nothing with him, or when she asked him to do something it was always “very boring”; again this is very similar to what X reported to me. Mr G reported that X explained that he spent many boring hours in his bedroom and that his mother would hit him a lot.
55.In an attempt to seek some clarity around these issues, Mr G asked X if he would be comfortable to discuss this matter with his mother. When the issue was raised, X became very nervous, initially stated that his mother hit him on his shoulder, chest and leg, but when she said that this was not true, he very nervously downgraded claims by stating that she would rather tap him in these places.
56.Mr G explained that his attempt to clarify the situation had somewhat backfired; he could not tell whether X had changed his story because he was scared of his mother’s reaction or whether he was reporting a false positive, that is, that he was reporting something that didn’t happen. Mr G subsequently received an email from [the mother] that she could not understand why she was being asked these questions when she had clearly told him in a previous session that [the father] had been aggressive and violent in the past with X, even though this had NOT been raised with him, by her previously, and that she was disappointed with his questioning of X and that X did not want to continue seeing him, and that X had a “shuttered nervous system” and that all the professionals he had seen only made things worse for him. She explained that [the father] was determined to convince X that she hit him and was not a good mother.
57.[The father] brought X to the next session. X was very engaged and happy, and when Mr G discussed the last session, X seemed un-phased.
58.In early 2015, Mr G received phone calls and emails from [the father] who was extremely concerned after X came back from spending time with his mother, who now had a boyfriend named Mr L. [The father] told Mr G that X reported that Mr L got angry with him and threw him across the room, and that he then blocked his door so nobody could come in after that. When Mr G spoke with X about this alleged incident, he said that Mr L had never hit or thrown him before, but rather would only get angry at him. X confirmed in a later appointment that this had in fact occurred and that he did not want to be around Mr L. He also later explained that his mother and Mr L had told him that this did not occur and if asked, to tell people that this never happened.
59.Mr G also confirmed that from his discussion with the school, they were concerned with X, his strange behaviour and presentation, and that in particular that he seemed to show no emotion or empathy, and did at times engage in physical fights with other children. Because of these concerns, he emailed [the mother], requesting a meeting; after a second attempt, he received an email from [the mother] stating “ .... I was sick and was not able to attend to your email. I am not sure why you insist that I should continue to attend your practice.”
60.Following this, Mr G spent some sessions with X trying to engage him around emotions. Once again, X would regress to childish/baby talk. A few sessions later, [the father] reported that he was concerned with X who had started making statements that he was going to stab his mother and kill her with a knife and that she deserved it and he would not care; X confirmed this, and despite attempts to have him emotionally connect or show empathy to this idea, X would disconnect. Mr G described his therapeutic endeavours with X, whilst [the father] was in the room, including discussing the movie 'Inside Out' and reflecting on each character[’]s feeling and what he thought about when thinking about each feeling/character. When they got to ‘Sadness’ - with no prompting, X turned pale, clearly began having flashbacks to the past and began to cry silently whilst staring at the wall. When probed what he was thinking about, X did not respond. [The father] then asked X if it had to do with his mother when he was younger, X nodded in agreement. [The father] asked if it had to do with the cellar and X again nodded whilst tearing up. [The father] later explained that there was an incident when X was around 3 or 4 years old whereby his mother had locked him in the wine cellar and turned off the lights.
61.Given X’s presentation, not surprisingly, Mr G has considered the possibility of him being on the spectrum, but also notes that his behaviour such as eye contact, emotional engagement/empathy, appear inconsistent depending on his comfort levels.
In paragraphs 62 to 71 of the family report, Dr V summarised his conclusions as follows:
62.This is a matter that has a long and difficult history. The allegations and the counter allegations are substantial. According to [the father], his concerns can be proven, that is, that [the mother] has significant problems, that she is volatile, moody, irrational, that her behavior becomes dysregulated, all of which he attributes to her history of extreme trauma and abuse. According to [the father], there is documented evidence in the medical files that report on [the mother’s] unfortunate history. [The father] attributes [the mother’s] alleged problems with and maltreatment of X to her history of abuse and the impact on her mental health and personality functioning. He claims that [the mother] has over the years physically abused X, that she emotionally abuses him, that she is neglectful, that she has exposed him to physical harm and that more recently, she has colluded with [Mr L] having physically abused him. [The father] is concerned that the cumulative impact thereof has been substantial on X, who has manifest[ed] a range of behavior problems, in particular at school.
63.[The father] however presents with a driven, incessant quality to his concerns. It is difficult to ascertain, based on the information available, whether this is behavior driven by parental concern and parental frustration as a consequence of the lack of action and acknowledgement of the maltreatment to which he son has been exposed, as compared to incessant obsessive behavior reflective more of a person with personality difficult[ies] or dysfunction, unable to accept any point of view different to his own. The polarities of these possibilities is significant. At one end of the continuum is a parent who is frustrated by the ongoing abuse of his son whilst confronting a system that places obstacles before him. At the other end, is a person with a likely personality disorder who splits the world into those who are with him or against him, and who attacks and criticizes anyone who has a view different to his own. The implications of this second possibility are Cluster B Personality dysfunction, in particular along the narcissistic end of the continuum, with antisocial traits. Again, I note that contained in the affidavit and supporting material are suggestions by [the mother] that [the father] has trouble feeling how other people feel, that he considers himself to be more important than anyone else and that he has a history of violent behavior, including towards his previous wife and his sister. It is important to emphasize that individuals with this cluster of difficulties are not consciously aware that their behavior is a problem or that it is perceived by others to be a problem; instead, they are driven by an internal construction of reality that causes to (sic) them anxiety from which they seek relief; in the case of [the father] this might be the need for him to be believed, and the ongoing untenability of his feelings being disregarded, quite independent of the facts.
64.Depending on which end of that continuum the evidence falls, would cast a very different perspective in relation to [the father] and his behavior towards the police, DHS and other persons involved with this matter; his criticism and pursuit of DHS might reflect the sort of behavior that people with personality disorders engage in when they pursue people or institutions for years, and when they split people and organizations in to those who believe and agree with them, and those who do not – this continuum reflects people who are all good versus those who are all bad. The alternative of course is that he is a reasonable parent who is acting out of frustration because of the lack of acknowledgement of his concerns in the context of such longstanding problems; the evidence he claims to have will provide a critical window in to either position.
65.The same polarity can be applied to [the mother]. She portrays herself as a victim of [the father’s] unrelenting campaign against her. She denies categorically that she has maltreated X in the way alleged or that she has colluded with the physical maltreatment of X by [Mr L]. She describes [the father] as aggressive, unrelenting, critical and that she was exposed to years of emotional and physical maltreatment. I note the letter from Tasmania Legal Aid that at least suggests that in 2004 she had concerns about [the father], however [the mother] maintains that X is a boy who has no problems, that he is normal and that the only difficulty he experiences is the unrelenting pursuit by his father of false and fictitious claims. However, the school suggests that X has significant problems, that he has problems with socialization, communication, behavioral regulation and that [the mother] is not particularly present or involved in the school. The school also notes that [the father] is very involved, possibly excessively so. My assessment of X was that he engaged in an unusual, stilted manner, that he lacked emotional reciprocation, and that his communication style was detached and almost mechanical; he appeared to me to lack an appropriate range of affect; I note that Mr G described this same quality as at times, “robotic”.
66.The polarities in relation to [the mother] can also not be ignored. X most certainly spoke about her in a more negative way, describing her as angry and more inclined to withdraw and punish him in this emotionally abusive manner. Again, a testing of evidence will be a critical consideration and in particular looking at medical notes that, as suggested by [the father], portray a very different picture in relation to [the mother]. The polarities for her would also implicate personality dysfunction and personality disorder; it is commonplace that people with personality problems split the world and project, that is, that there is a mirroring of allegations such that they perceive in others the behavior more characteristic of themselves and their motivation. [The father] described [the mother] as emotionally dysregulated, at times paranoid and distorted in her thinking, however she portrays herself as devoted to her son, caring, committed, loving him and doing only what is best. She denies categorically that [Mr L] abused X, but she also communicates a underlying level of irritability and intolerance, is quick to project blame, and with me at least, was intolerant about any questioning or enquiry that did not accept her construction of events; her listening at my office was odd behavior, reflected undue suspicion, was a transgression of boundaries, and in some ways more importantly was off the radar of what was appropriate behavior in the context; she did not acknowledge her actions but rather distracted and diverted responsibility; again 1 note that these can be characteristic of personality problems.
67.X's presentation was most unusual. He shows many features of developmental difficulty and aspects of his social and pragmatic communication are areas of concern. He is rigid and obsessive, he presented as being emotionally constrained and the possibility that he falls on the Autism Spectrum Disorder should be considered. Further assessment and cognitive assessment of X would seem sensible, as would psychiatric assessment of both parents.
68.X was observed in the company of his parents and given the history, my observations were generally positive. He certainly related warmly and spontaneously with his mother, there was affection and once they became comfortable with the environment, there was a real spontaneity to their interaction that was difficult to ignore. X also related well with his father, but this tended to be a bit more constrained and mechanical, notwithstanding that X was obviously comfortable and relaxed. X spoke about his father in more idealized terms and described his mother as more negative and angry.
69.This is a matter that will require a careful testing of evidence. Unfortunately, the DHS report was not made available and their findings are obviously significant. If there is no basis to [the father’s] concerns, then his preoccupation and obsession with negative beliefs pertaining to X would take on very significant proportions. It may well be that X is not being coached by his father but rather in conjunction with his father he is co-constructing a negative account of his relationship with his mother which is perpetuated as fact but not substantiated because there is a lack of evidence. However it may also be that X is reporting accurately a history of maltreatment from a parent who is emotionally dysregulated and damaged as a consequence of her own traumatic past; [the mother] presents superficially well, but her presentation conveyed an underlying irritability, intolerance and aggression - this is likely to be justified on the basis of external factors, because of feelings of being doubted or attacked somehow in the process; her lack of appreciation for the extent of X's obvious problems, and her perception of him as a normal child, ignores the realities of his presentation. Again, careful testing of evidence and psychiatric assessment of both parents 1 believe is extremely warranted. X also presents with significant problems of his own, and the developmental vulnerabilities are obvious.
70.There is strong indication in my view to suggest that X should not be living in a shared care arrangement. Apart from the fact that there are none of the fundamentals in place to warrant shared caring, and in particular I refer to the level of conflict and discord between his parents, but given his developmental difficulties, it would appear that he needs more structure, consistency and routine. The failure of shared care based on the previous consent Orders should be obvious, and I would implore that the same mistake not be colluded with again.
71.A testing of evidence will be a vital consideration but ultimately I would recommend that X reside with one parent and spend time with the other on weekends and possibly a night overnight in the other week. Psychiatric assessment of the parents, access to their medical records, and at least a cognitive assessment of X would in my view be minimum requirements.
Dr V was cross-examined, as discussed below.
The neuropsychological assessment of X
In her neuropsychological report on X, Dr C made the following observations:
X’s basic attention was above age-expectation (75th percentile) and working memory capacity within Average limits (50th percentile). He had difficulty dividing his attention efficiently between two aspects of a task – his performance slowed and he had some difficulty monitoring his responses. X’s ability to inhibit verbal responses was reduced (16th percentile), he had trouble switching his attention and thinking flexibly (2nd percentile), and was prone to making errors (2nd percentile). He demonstrated trouble generating ideas when structure was not provided, and when planning and organising his approach to tasks. Together, these difficulties mean X is likely to have trouble regulating his behaviour (particularly in challenging situations), adapting to change, and processing multiple sources of information at once. This impacts X's ability to apply his sound intellectual skills in a learning environment, and for the development of his interpersonal skills and social relationships.
… X’s teacher … identified severely elevated behavioural troubles (98th percentile) and moderately elevated impulse control and anger management (97th percentile).
…
Results demonstrated that X has a strength in his ability to process verbal information, including his ability to understand, reason with, and remember information he is told. There were however, some areas of cognitive weakness. X had difficulty dividing and switching his attention, which impeded his ability to multi-task efficiently. He was impulsive and had trouble monitoring his behaviour, which resulted in him making errors and not recognising the consequences of his actions. He also had trouble planning and organisation (sic) his approach to activities, which impacted his ability to problem solving (sic). These difficulties are consistent with X’s behavioural presentation, including his tendency to be physically aggressive towards his peers (i.e. his ability to stop his reactions is reduced), as well as his academic challenges.
The types of difficulties X shows are associated with the set of skills known as ‘executive functioning’. Children with difficulties in this area are more likely to become distressed by changing and inconsistent environments, have trouble regulating their emotions and behaviour, have difficulty concentrating on more than one task at a time, and they can find it challenging to manage demands of daily life without structure and support. This can result in lowered tolerance, aggressive outbursts, and psychological distress.
Executive functioning is associated with the frontal lobes of the brain, which have a significant period of growth during childhood and are particularly vulnerable to the impact of stress hormones (cortisol and adrenaline). Prolonged stress can compromise frontal lobe functioning and result in cognitive difficulties similar to those demonstrated by X. X certainly has an increased tendency to behave aggressively, which may reflect the daily stress he experiences in relation to the family conflict and an unstable home environment. (emphasis added)
Given X's cognitive profile on this assessment, it would be expected that he will benefit from a stable home entailing less change and disruption, and with one set of consistent and predictable rules. This may be achieved across two homes if [the mother] and [the father] can come to parental agreement, or only one if they cannot. Currently however, [the mother] and [the father] appear to have largely contrasting approaches to parenting, which is stressful and confusing for X, and it is likely that he will find moving between their homes more difficult. It may be a different case if his parents were co-operative, cohesive, and consistent, but the history suggests that they are not. This discrepancy in parenting appears to be having both a psychological and cognitive impact on X, and he will likely have ongoing difficulty should he continue to live in this setting. Importantly, ongoing stress may further compromise the development and functioning of his frontal lobes, particularly as they mature into adolescence.
X’s demeanour was anxious and hypervigilant, which again likely reflects the lack of consistency in his environment. Anxiety in children can also contribute to the cognitive difficulties X demonstrates. Together with a stable home setting involving consistent parenting and predictable rules, it is recommended that X continues to seek counselling for the management of his mood, anger control, and to support his social skills development.
At school, X will benefit from encouragement to check his work for errors, and taking a few moments to consider his actions and responses before performing them. He will also benefit from regular rest breaks, written instructions to help plan and structure his approach to tasks, and from working in a quiet environment when possible. These strategies may assist in reducing the impact of X's cognitive difficulties on his learning.
Dr C’s evidence was not challenged and I accept it.
The psychiatric assessments of the parents
In his psychiatric assessment of the father, Dr G said:
Upon the history available, this examiner is of the opinion that [the father] does not suffer from a psychiatric disorder.
…
Upon the history available, this examiner is of the opinion that [the father] is unlikely to suffer from a psychiatric disorder that would impact upon his parenting capacity in the future..[1]
[1] Dr G, psychiatric assessment of the father, 26 August 2016, p.9.
In his psychiatric assessment of the mother, Dr G said:
In the absence of further information, this examiner is of the opinion that [the mother] is unlikely to be suffering from a psychiatric disorder. However, if it is deemed that she has been untruthful about her behaviours towards her son, and taking into account the possibility that she may quickly become angry in certain circumstances, possibly even to the point of paranoia, then there would in that case be significant concerns about whether she has suffered from a longstanding personality disorder, even with the possibility, albeit unlikely, that she has suffered from some psychotic features.
…
Again, if one takes the totality of the history at face value, and leaving aside the possibility that [the mother] has assaulted her son repeatedly, it would not appear that she is likely to suffer from a major psychiatric disorder that would impact significantly upon her parenting capacity in the future.
However, if it is deemed that she, in all likelihood, has in fact repeatedly assaulted her son, then there would of course necessarily be significant concerns with regard to her future behaviours.[2]
[2] Dr G, psychiatric assessment of the mother, 17 October 2016, p.13.
In his report about the mother, Dr G went on to alter the opinion he had previously expressed about the father and elaborated on the opinion he had expressed about the mother. Dr G said:
3.Now that additional information is available, and taking into account [the mother’s] direct reporting of events involving [the father], as well as comments from his sister and his general practitioner records, the situation appears to be more complex than was originally considered.
4.In particular, depending on whose account is deemed more accurate, but taking into account the abovementioned concerns expressed by others about [the father], there must be some concern about whether or not he himself suffers from some anger management problems and a degree of personality dysfunction, which in turn would likely be harmful for his son psychologically and emotionally.
5.It must be considered possible, from a psychiatric perspective, that [the father] has deliberately attempted to alienate his son from the mother.
6.If one takes at face value the version of events provided by [the mother], there would appear to be insufficient evidence to suggest that ongoing care by her of her child is contraindicated for psychiatric reasons. In this version, psychiatric disorder would not appear to be a significant factor with regard to her ability to provide a reasonable level of positive parenting and have the children (sic) live with her.
7.Conversely, if one takes at face value the comments by [the father] and the allegations by the child, there must in turn be some concerns about [the mother’s] personality and motives, as well as a propensity to anger management problems. If she is angry to the point of sometimes being paranoid, and even lacking insight into her behaviours, it must naturally follow that from a psychiatric perspective there is a significant risk of further emotional and physical harm towards the child.
8.The outcome of the current police investigation into the latest allegation of assault by [the mother] of the child may provide some clarity.
9.However, there is a possibility that uncertainties will remain, and in any case, an independent child psychologist or family report writer will be best placed to comment upon the child’s mental state, motives, and truthfulness in that context. Also, Dr V’s comments on 21 June 2016 would appear to be of importance.
10.One or both of the parents are likely to be suffering from significant problematic personality traits, thus requiring counselling to enable them to more fully appreciate the nature of their behaviours and their likelihood of it continuing to impact upon their child. This high conflict divorce is associated with alienating behaviours by one or both of the parents.
Dr G’s evidence was not challenged and I accept it, as far as it goes. Clearly, it requires the court to determine the basis facts, and then apply Dr G’s opinion accordingly.
Dr J’s evidence
Dr J was unavailable for cross-examination. The parties were content for the court to give her affidavit evidence such weight as the court deemed fit.
Dr J’s affidavit had exhibited to it a letter she had written on 12 March 2015 regarding an incident involving X on 14 February 2015. It said:
To Whom It May Concern
X attended myself on the 14th February 2015, in the company of his father.
X’s father indicated that X has been assaulted by his ex wife’s boyfriend some 6 days earlier.
The incident reported by X to his father was that X was grabbed by this man by his right shoulder and subsequently thrown across the room onto wooden slates (sic) of the bed in the room thereby bruising his left anterior thigh.
X confirmed this story was correct.
I observed two bruises corresponding to these areas - i.e. X’s right shoulder - consistent with a thumb or finger mark and his left anterior thigh consistent with compression or direct trauma against a solid object.
I understand during that consultation that the Police were to be informed and that solicitors and psychologists were already involved in the case which was thus ‘on foot’
It can immediately be seen from this letter that X did not himself tell Dr J what had happened. Rather, X confirmed a story told by his father. Dr J said that X’s bruising was consistent with the story told by the father. However, it might also have been consistent with normal playground bumps, or outright physical fights, that X was known to be involved in from time to time. On Dr J’s own evidence, six days had passed from the time of the alleged assault before X saw her. That was plenty of time for any number of intervening events to have caused the bruising. It is noteworthy that Dr J did not say that, in her opinion, the bruising appeared to be six days old. In all the circumstances, it seems to me that very little weight can be given to Dr J’s letter dated 12 March 2015.
Dr J’s affidavit also had exhibited to it her notes of a consultation with X on 20 August 2016. It said:
Progress notes for X
Saturday August 20 2016 08:27:12
Dr J.
Visit type:
Surgery Consultation
attended with father stating that on Tuesday 16th August whilst staying with mother > X held down by the neck and punched in the back of the head 3-4 times by his mother and kicked by his mother in his lateral Right knee scratches and slight bruising to his R neck is visible and a mark corresponding to the region of the Right knee where alledgedly kicked.
Father rang 000 and police who attended and reported that X was not in danger and that he told them that it was a minor incident
X denies saying this
discussion with father about next actions
(errors in original)
Again, the version of events related by Dr J appears to be a summary of what the father told her, rather than what X had told her. The bruising described by Dr J, which she observed four days after the alleged event, could have had any number of causes. In all the circumstances, it does not seem to me to be appropriate to give this evidence very much weight.
Dr J’s affidavit also had exhibited to it a medical certificate dated 14 November in respect of X. It said:
Medical Certificate
THIS IS TO CERTIFY THAT
Mast X
HAS ATTENDED THIS SURGERY OVER THE PAST 2 YEARS WITH EPISODES OF ALLEDGED [sic] ASSAULT.
No authorities have contacted myself or the clinic about these episodes.
This Certificate was completed on 4/11/2016
This medical certificate is too vague to be given any weight at all. The medical certificate gives no clue as to who might have perpetrated the alleged assaults, the dates when they are said to have occurred or the circumstances in which they were said to have occurred. It is noteworthy that, notwithstanding mandatory reporting requirements, Dr J did not report the alleged assaults to the authorities. This supposed medical certificate is quite odd in that it is not directed to X having time off school or any usual purpose of a medical certificate.
Mr G’s affidavit evidence
X’s psychologist, Mr G, said in his affidavit evidence:
4.when I first met X, [the father] and [the mother] … I did not know who to believe … . I thought [the father] did an injustice to himself because although I felt that he was parenting X extremely well with consistency and nurturance, … his demeanour and eagerness to protect his son and in turn the overzealous panic and manner in which he would persist with his conversation made him sometimes frustrating to talk to and could potentially cause people to doubt his motives. …
…
7.… whilst still not completely certain of what was going on in this dynamic, my view was that X was strongly attached to his father as his father provided consistency, nurturance and common interests like music, (hobbies omitted). I believed that whilst his mother was well intended and at times X did get on with her … I believed that perhaps [the mother] was very inconsistent in her approaches. This may have been because X was not overly compliant as he often reported being bored or left alone for hours in his room and sometimes locked outside. I suspect the difference in what he was experiencing with his father (constant attention, bonding and consistency) compared to with his mother (much less attention, less commonalities etc) may have caused X to not be overly compliant which then caused [his mother] to become very reactive- sometimes by leaving X to his own devices for long periods of time and from what X reported could become very aggressive with him either in a showing of a threat to physically hurt him and sometimes actually being physical with him. …
Issues in dispute
Dr V said in his oral evidence that this case turned on whether the father’s allegations about the mother’s mistreatment of X were well-founded. If they were, in Dr V’s opinion, X should live primarily with his father. If they were not, in Dr V’s opinion, X should live primarily with his mother.
The parents gave diametrically opposed versions of events. There were numerous documents in evidence but none of them were of much assistance in proving or disproving the allegations. Consequently, much turns on the credibility of the father and the mother.
Overall, the father presented poorly in the witness box. He appeared to be incapable of giving a direct answer to a question. Rather, and despite numerous warnings, he seemed to treat questions in cross-examination as an invitation to say whatever he wished about the subject matter of the question. At least at the commencement of his cross-examination, the father appeared to be very sure of himself and attempted to dominate the proceedings, albeit in a civil manner. However, the father was not demonstrated to have lied about anything.
The mother appeared in the witness box to be calm, composed and balanced. This was surprising, given that she had been described in the material as volatile, and prone to anger management problems.
On the other hand, the mother admitted in the witness box that she had made a false statement in connection with a compensation claim for financial benefit. She explained this conduct by saying that it was the father’s idea. There was no evidence to substantiate that assertion. Basically, the mother admitted that she lied for financial gain.
However, the statement that the mother said was false was a note in her then psychiatrist’s records from 11 September 2008 (exhibit 18) that said that the mother told her psychiatrist:
- v. low couple of days ago
- I got angry and slapped and slapped X
- I’m angry at [the father]
The mother claimed that her psychiatrist’s notes reflected a false statement that she had made to improve her prospects of getting a higher workers’ compensation payout. I do not accept that claim, in all of the circumstances of this case. It seems to me to be much more likely that the mother told her psychiatrist the truth, that is, that she had slapped X. That is somewhat consistent with her admission to Dr G and X’s report to the Department of Health and Human Services (“DHHS”), both of which are discussed below.
In addition, the mother was deceitful about putting her ear to the door while Dr V was interviewing X. Dr V said that his secretary had told him that the mother had put her ear to the door five times during X’s interview. There is no reason to doubt the accuracy of Dr V’s evidence about this, or his secretary’s version of events. They are independent third parties, who have no reason to lie.
When challenged by Dr V, the mother at first denied listening, then engaged in a diversion tactic, then admitted to listening but only on one occasion.
When it was put to the mother in the witness box that she had not initially told Dr V the truth, the mother said that she had been told the interview would go for 40 minutes but it went for two hours and she was concerned X would be getting tired. This answer, of course, did not respond to the question, and was a diversion tactic.
The mother later admitted that she might have listened at the door “a couple of times”. She then said that she had lied to Dr V:
Because I realised that it’s probably something that I shouldn’t have done. It’s not something that I’m proud of. … It wasn’t right. … It was wrong … of me to do that.
In other words, the mother lied to Dr V to conceal her actions that she knew to be wrong. It seems reasonable to conclude that the mother might have lied on other occasions to conceal her actions that she knew to be wrong. Indeed, the mother lied to the court when she said that she had listened at the door on “a couple” of occasions, when Dr V’s evidence, based on what his secretary had told him, was that the mother had listened at the door on five occasions.
Dr G recorded in his psychiatric assessment of the mother that she told him that she had never hit X and had “never even spanked him once”. However, Dr G then noted that the mother later admitted that she had “maybe smacked him slightly a number of times”. There was no suggestion that Dr G’s report was inaccurate in this respect. Again, the mother initially lied to an expert engaged for the purposes of these proceedings to hide her poor behaviour.
In addition, there were the mother’s lies to this court and the police in relation to the alleged assault by her then partner, Mr L, of X. This matter is discussed in more detail below.
There were numerous allegations that the father made against the mother, to the effect that she was generally volatile and prone to anger and violence. However, there were a few allegations that the father made against the mother that took on particular significance in this case. I will deal with them in chronological order.
a. Being locked in the wine cellar
In his affidavit, Mr G said at paragraph 6:
… I asked X to recall anything that upset him when he was younger. He turned a bit pale and just glanced into a trancelike state. He kept quiet and began to tear up heavily. He did not want to talk and I could see that he clearly had connected with a memory from the past. After some gentle probing, X explained that he remembered being locked up in a wine cellar by his mother for ages and was fearful that she would never open it up. He also explained that he remembered her shoving his face into the bed on many occasions.
It was not suggested to Mr G in cross-examination that his statement as set out above was inaccurate any way. Rather, it was put to Mr G that X may have confused his mother with his kindergarten teacher, and confused the wine cellar at home with the bag room at kindergarten. Mr G agreed that confusion was possible, but did not express an opinion about its likelihood.
The mother denied in cross-examination that she had locked X in the wine cellar when he was three and a half years old. She said that it was actually a kindergarten teacher who had locked X in the bag room at kindergarten.
The mother produced some notes from X’s kindergarten from 29 July 2011 (exhibit 16). The notes were headed, “X’s behaviour” and began with a note that the kindergarten teacher had spoken to the mother about X’s behaviour that day and stressed the importance of him seeing a psychologist as soon as possible.
The note went on to explain that:
The mother said that X had been very upset the previous evening because the father had told him that he was going to take the mother’s job away and X was worried about her having no money. When X arrived at kindergarten, he was visibly upset. The mother was advised to leave and did so. X then started screaming “No” very loudly, and pinching, hitting, biting and kicking the kindergarten teacher. The other children present were visibly upset about what was happening. X ran for the front door, but the kindergarten teacher blocked him. X was still screaming and kicking and punching the kindergarten teacher. She picked him up and carried him to the bag room, while X continued to kick, punch, scratch and yell.
The kindergarten teacher put X on the floor in the bag room and three quarters closed the door while she remained just outside the door. While X was in the bag room, he pulled boxes of craft materials off the shelves and threw them on the floor. After about two minutes, X stopped yelling. The kindergarten teacher asked him what he had been angry about. He said that his mother had told him that he could not sleep in her bed any more. He said that she had been cross because he had wet his bed after having a bad nightmare. The kindergarten teacher had visible scratches and pinch marks on both of her arms.
Obviously, X could have been put in the bag room by his kindergarten teacher on one occasion and put in the wine cellar by his mother on another occasion. Contrary to the mother’s position, the evidence about the kindergarten teacher putting X in the bag room does not establish that the mother did not also put X in the wine cellar.
While I accept Mr G’s evidence that it is possible that X, being very young at the time, has in his recollection confused his mother with his kindergarten teacher and confused the wine cellar at home with the bag room at kindergarten, that seems to me to be unlikely. In view of the mother’s established willingness to lie to cover up her mistreatment of X, it seems to me to be more likely that the mother did in fact lock X in the wine cellar for what seemed to him to be a very long period of time.
Additionally, it seems unlikely that X would have confused the bag room with the wine cellar at home because X was clearly not locked in the bag room. The kindergarten teacher said specifically that the door was three quarters closed. However, it was a significant part of X’s memory of the incident that he was locked in a room and was fearful of never getting out.
To the extent that the mother might have intended the wine cellar to be a form of time out, it was clearly excessive to put a three and a half year old child in a dark room for a prolonged period. Obviously, he would have felt abandoned and unloved. The fact that X went pale and became tearful many years later when remembering the incident shows the complete inappropriateness of that method of discipline.
b. The “suffocation incident”
The father said in his affidavit that, on 7 December 2013, X told him that, a few days previously, his mother had kicked him, thrown him on the bed, and held his face down into the pillow so that he was unable to breathe.
The father said without challenge that:
a)he took X to his scheduled appointment with his then psychologist, Ms B;
b)towards the end of the appointment, Ms B asked the father to come in;
c)she then explained what X had told her, and said it was a mandatory reporting matter;
d)she said that she would notify DHS;
e)however, it later transpired that she did not.
The father reported Ms B to AHPRA.[3] The outcome of the report to AHPRA was not made known to the court.
[3] Australian Health Practitioner Regulation Agency.
As set out above in the quotation from paragraph 6 of Mr G’s affidavit, X also recounted to Mr G that he remembered the mother “shoving his face into the bed on many occasions”.
The mother said in her affidavit that the suffocation incident was fictitious, had been investigated and found to be unsubstantiated.
It is possible that the father has somehow “planted” memories in X’s head. However, in all the circumstances of this case, that seems to me to be unlikely. The fact is that the mother has lied to experts engaged for the purposes of these proceedings, and has lied to this court about the number of times that she listened at Dr V’s door, and about the incident in which Mr L is alleged to have assaulted X. It seems to me to be more likely that the mother has also lied about this matter than that the father has “planted” memories in X’s head.
Having said that, I consider that it is an exaggeration to suggest that the mother actually attempted to suffocate X. In view of X’s disclosures in the later DHS case note set out below (exhibit 10), I consider on the balance of probabilities that the mother has at least hit X and shouted at him on numerous occasions. I also consider that the mother has had difficulty managing X’s behaviour and has on occasion resorted to holding him down on the bed.
c. The 2015 assault by Mr L
The father said in his affidavit that, on Sunday 8 February 2015, X told him that the mother’s boyfriend, Mr L, had become angry at him and thrown him across the room earlier that day. The father took X to the police station. X was given a physical examination but the police were unable to detect any bruising or other marks on his body. The police made a note of the complaint but said they were unlikely to take matter further.
The following day, on Monday 9 February 2015, X attended a prearranged appointment with Mr G.
On 13 February 2015, Mr G wrote an email to the father in which he said that X had reported to him the previous Monday that Mr L had thrown him across the room. Later on 13 February 2015, the father noticed bruising on X’s right shoulder where he said Mr L had grabbed him and on his left leg where he said he had struck the timber on the bed.
On 14 February 2015, the father took X to Dr J, who observed the bruising. The father then took X to the police station, where the police saw the bruising, commenced an investigation, and arrested Mr L the following day. The matter had also been reported to DHHS.
A DHHS worker made a case note on 15 February 2015 (exhibit 12) saying that:
Concerns are being raised to the Division regarding an alleged physical assault of X by the stepfather. Police have issued a safety notice today and X cannot have contact with the stepfather, he has been excluded from the home. Mother has said she suspects the father has sexually abused X, she is basing this on X been very upset, refusing to hug her and refusing to allow her to help him undress.
There is a significant history of both parents making allegations against one another and previous assessments have suspected the parents of coaching X around this. It is likely X has suffered emotional harm as a result of the parents[’] past actions. The mother’s current concerns have been raised with SOCIT who will follow up. Sufficient safety is currently demonstrated as X is in the mother’s care and the mother’s boyfriend is excluded from the home. Therefore NFA is required by AHCPES at this time.
There was no suggestion that case note was inaccurate. A DHHS worker made a further case note on 17 February 2015 (exhibit 11). It said the following:
(omitted) Police Station interviewed mother’s partner and FVSN served, Mr L indicated that X had kicked him in the genitals and Mr L pushed X onto the bed. Mr L provided police with photos of the day out after the incident had occurred where X was observed as happy and playing in the park.
Police conducted VARE interview with X and ascertained that the disclosure of “throwing” was not as significant as first thought as the room is very small and X was standing in front of his bed and was pushed back onto his bed rather than thrown across the room.
…
… [A police officer] explained that NFA from SOCIT at this time, [was] more concerned with the impact the parents[’] acrimony and constant allegations is having on the child. (emphasis added)
There was no suggestion that case note was inaccurate.
A family violence application was heard in the Magistrates’ Court on 17 February 2015. The applicant was a police officer, the affected family member was X and the respondent was Mr L. The outcome of the proceeding was that the application was withdrawn. The decision sheet includes a handwritten note from the magistrate which stated as follows (exhibit 9):
The father of the affected family member is aggrieved by the decision of the applicant’s legal representative to withdraw the police application. The decision to withdraw followed a discussion I had with the prosecutor and counsel for the respondent about the possible impact of the decision of the Court of Appeal in Weinstein v Medical Practitioners Board of Vic [2008] VSCA 193 on s.65(1) of the FVPA and s.215(1)(d) of the CYFA. I did not say in that discussion that the prosecution could not call hearsay evidence originating from the 8 year old afm. I simply pointed out that s.215(1)(d) and hence s.65(1) was subject to the rules of procedural fairness. Although this Court likes as far as possible to avoid very young children being required to give evidence in Court, it happens often enough in criminal proceedings. The Child Witness Service has been set up for this purpose and when they give evidence in this Court children usually give evidence by video link from the supportive environment of the Child Witness Service. I understand and accept that the afm’s father does not want his son to come to Court to give evidence. However it appears to me that the prosecution has decided it would be difficult to succeed in its application in the light of Weinstein v Medical Practitioners Board of Victoria and I also understand and do not criticize that view of the prosecution.
In other words, the proceeding was withdrawn by the police after the father said that he did not wish X to be subjected to cross-examination and the judicial process generally.
On 27 February 2015, a DHHS worker interviewed X at school in the presence of the principal. The DHHS summary of the interview is as follows (exhibit 10):
CP role and mandate was explained to X.
PW[4]-Can you draw a house X?
[4] Protection Worker.
-X drew a picture of a house
PW-Tell me about your house?
X-It’s flat, doesn’t have a small roof
PW-Draw who lives in that house?
X- Dad lives in the house with me, I have lots of books
PW-Tell me about Dad
X-He’s tall, he’s nice, he’s friendly, he’s old,
PW-How old?
X-51
PW-Tell me about you?
X-I’m in year 3, I’m a bit friendly, I have short hair. I like Harry Potter, I like tv
PW-Who else is in your family?
X-Pop, he has a walking stick, he’s very old, he’s a (occupation omitted), he lives in a high rise, he goes (hobby omitted) a lot, he lives in Brisbane, then there’s ma, she’s short, she knits a lot, she doesn’t like the cold,
PW-How often do you see pop?
X-Every eight months
PW-Tell me about mum?
X-she’s sometimes a bit mean, she sometimes a bit nice, she’s short, she always wears dresses, she lives in the unit
PW-Do mum and dad not live together?
X-shakes head
PW-How long are they not living together?
X-Since I was four
PW-How often do you see mum?
X-Every second week, one week with dad & one week with mum
PW-How do you find that?
X-not always good, sometimes mum gets angry and locks me outside (teary eyed)
PW-Are you feeling upset?
X-sometimes mum hits me
PW-When did this happen?
X-A year ago
PW- A year ago?
X- about 7 months ago, she got angry because I didn’t want to turn the tv off
PW- Describe what happened?
X-when she got angry she turned the tv off, unplugged it, then she hit me once there (points to ear)
PW-Anyone else live with mum?
X-no
PW-Mr L?
X-he doesn’t live there
Who's Mr L?
X- he’s a man, mum’s friend
PW- What can you tell me about him?
X-he’s not very nice, he threw me a couple of weeks ago on a Sunday morning, he said we were going to the mountains, I said I didn’t want to go and he got angry and threw me across the room
PW-Tell me about that?
X-I was at the wardrobe, he came in after 5 minutes and picked me up by my shoulder and threw me onto the bed, got my shoulder, this one (points to right shoulder) and my leg hit the bed,
PW- Throw?
X- he picked me up and threw me onto my bed
PW-Has this ever happened before?
X-No
PW-Has mum ever hit you before?
X-yes she hit me there (points to side of face) a few times
PW-When did that happen?
X-when we were in Hobart
PW-What does Dad do when your naughty?
X-sends me to my room
PW-Tell me about what Dad says about mum?
X-we don’t talk about her, mum talks about daddy not being nice, says I don’t need a psychologist
PW-what’s a psychologist?
X-I tell Mr G the psychologist when mum hits me
PW-what’s his job?
X- to report mum
PW-who told you that?
X-Mr G
PW-how does dad get on with mum?
X-daddy doesn’t like mum
PW-How do you know that?
X-daddy told me mum isn’t nice
PW-How did that make you feel?
X-not very nice
PW-asked X to draw a safety scale (refer to paper notes)
PW-when feeling happy? what are you doing?
X-making things with my paper, putting stuff onto my billycart
PW-what about what makes you sad?
X-curling in a ball with the blankets because no one can see him
PW-last time you did that?
X-a year and a half ago, mum was getting angry the first time she hit me
PW-How safe do you feel when with dad?
X- draws mark at the top of the scale, dad won’t get angry and hit me
PW- What about mum?
X- draws mark in the middle of the scale, mum might get angry..
PW- Why does mum get angry?
X-When I don’t listen to her, when I don’t put on my clothes or eat my breakfast
PW-What does mum do?
X- she goes to her room
PW- How do you know she’s angry?
X-gets angry before, she’s shouting at me you have to get changed, sometimes at the weekend, she gets really angry and she hits me
PW- Last time?
X- about seven months ago
PW- How safe would you feel if mum left you with Mr L?
X-draws mark at the bottom of the safety scale
PW- Why feel unsafe?
X- he might hurt me
PW- How long you know Mr L?
X-10weeks
PW- Have you been with mum this week?
X-no
PW-Week before with mum?
X-yes
PW-Any good things about Mr L?
X-no
PW- How safe you feel when with mum and Mr L?
X-draws mark in the middle of the scale
PW- Good things about mum?
X-When she’s happy she’ll buy me something, she’ll take me to (hobby omitted) on the Saturday
PW-Good things about dad?
X-when he’s really happy we go out on Saturday and Sunday
PW- Imagine you have a super power, when you wake up you’ve one wish, what would you wish for?
X- go to Hobart, flying on a rocket ship, go with dad & duck, duck is a duck who thinks he’s a chicken and lives in Hobart in our old house
PW-Hobart?
X- I like Hobart more because my favourite school teacher is there
PW- How long are you living in Melbourne?
X-lived here three years
PW- Any question for us?
X- no
(errors in original)
There is no suggestion that summary was inaccurate.
At the hearing before this court, the mother said that she attended court with Mr L on 17 April 2015 to provide evidence for and support Mr L. In other words, the mother’s intention was to oppose the application that was being brought by the police on X’s behalf.
The mother said that she was in X’s bedroom when this incident happened (Tr. p.364). She said that X kicked Mr L, Mr L was in pain for a few seconds, and then Mr L sat X on the bed and told him to sit there and think about his behaviour.
However, X told Dr V that the mother was downstairs washing dishes when the incident occurred.[5] X also told Dr V that he had kicked Mr L “to the penis” after Mr L had thrown him on the bed, rather than before, as Mr L had told the police.
[5] Paragraph 38 of the family report.
I do not accept the mother’s evidence that she was in X’s bedroom when this incident happened. The mother on her own evidence wished to support Mr L’s version of events rather than her own son’s. She could only do that if she was an eye witness. She had a reason to lie about where she was.
On the other hand, it is difficult to see a realistic reason for X lying about where the mother was during this incident, even allowing for the father coaching him. It is particularly difficult to see why X would have said that his mother was washing dishes if that detail was not true.
That is, I consider that the mother has lied to the police and to this court about where she was during this incident.
There was some debate about whether X had kicked Mr L first, or Mr L and assaulted X first. Mr G thought it was possible that X had tried to falsely present himself as the innocent victim, and reversed the timing of his assault of Mr L. This is in keeping with X’s school principal saying he was sometimes dishonest. I consider that it is more likely than not that X kicked Mr L first.
I also consider, on the balance of probabilities, that Mr L pushed X onto the bed, as he admitted to the police. That is, I do not accept the mother’s claims to this court that Mr L simply sat X on the bed and told him to think about his behaviour.
I consider, on the balance of probabilities, that X has exaggerated his claim that Mr L threw him across the room. I accept the conclusion in the DHHS case note (exhibit 11) that X was not thrown across the room, as it was very small, and that he was instead pushed back on to the bed by Mr L. I consider that Mr L pushed X with a good deal of force, and this could have felt to X like being thrown.
As is well known, bruises can take a day or two to become visible. However, there was plenty of time for X’s bruises, that were first noticed several days later, to have been caused by some entirely unrelated event. I do not know whether X’s bruises at around this time were caused by Mr L or by some other circumstance. However, I consider that Mr L pushed X forcefully enough to have caused the bruising.
d. The 2016 assault by the mother
In the evening of 16 August 2016, X was in his mother’s care. X sent his father an email at 7:01pm saying:
Bring me home some one [ie the mother] just kicked and punched me
The father acknowledged in the witness box that there was no extant injunction restraining the mother from taking X to (nationality omitted) School or (omitted) Church. However, there was an order for equal shared parental responsibility. This meant that any decisions about religion needed to be made jointly. Section 65DAC of the Act provides that:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
It is clear from the father’s email that he had no intention of making a bona fide attempt to consult with the mother and reach a joint decision about X’s attendance at the (omitted) Church. To that extent, the father was himself in breach of the existing orders, although he was accusing the mother of being in breach. The father was also in this email being threatening and overbearing, or, in other words, bullying.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have demonstrated a reasonable attitude to the responsibilities of parenthood, save for the matters addressed elsewhere in these reasons.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The mother’s and Mr L’s violence towards X has been discussed elsewhere in these reasons. In addition, the mother and father each maintained that the other was violent towards them during their relationship. This issue did not figure prominently in the trial. As it is historical, it seems to me that it is not of great significance in determining with whom X should predominantly live in the future.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There are no particular family violence orders that were brought to the court’s attention.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to X. Legal proceedings are obviously very stressful for all concerned.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
When asked to say three positive things that the mother had done with X, the father took some time to think of anything. He eventually said that the mother had taught X to ride a bike. He was not able to identify any other positive things that the mother had done with X. The father was then asked then to say three positive things about the mother generally, accepting that teaching X to ride a bike was one of them. The father struggled to think of anything, but eventually said that she did her best to look after X. When given an additional opportunity to answer, the father said that the mother was getting further education to get a good job.
On the other hand, the mother appeared to speak warmly and genuinely when saying that she told X that:
a)his knowledge of cars was because his father was a very good (occupation omitted);
b)he excelled in (hobby omitted) because his father was a good (hobby omitted) and X was taking after him; and
c)he was a great navigator just like his father.
Admittedly, the mother had witnessed the father struggle with the “three positive things” question, and had the benefit of several days to think of a suitable response if the same question was addressed to her.
Parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a 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.
(3)….
(4)The presumption may be rebutted by evidence that satisfies the court 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.
In the present case, the presumption of equal shared parental responsibility has been rebutted by the mother’s violence towards X. In any event, the parents’ obvious inability to communicate with each other in a civil, respectful and constructive manner means that equal shared parental responsibility is not viable for X.
The parents both acknowledged that by seeking sole parental responsibility for themselves. The independent children’s lawyer proposed equal shared parental responsibility. However, I do not accept that there is any reasonable prospect of these parents being able to work through issues together. There will be an order for sole parental responsibility to be vested in the parent with whom X predominantly lives.
However, as is desirable wherever possible, the parent with sole parental responsibility should give the other parent 28 days notice of any major decision intended to be made, and ask for the other parent’s input. Whether that input is accepted will be entirely at the discretion of the parent with sole parental responsibility.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent.
As there will not be equal shared parental responsibility in this case, it is unnecessary for the court to consider whether equal or substantial and significant time is in X’s best interests. In any event, both parents, and Dr V and the independent children’s lawyer agree that the arrangement that is in X’s best interests is for him to live with one parent and spend alternate weekends with the other. I accept that such an arrangement is in X’s best interests.
With whom X is to live
It seems to me that it is in X’s best interests to live with his father. Dr V said that, if the court were satisfied that the father’s allegations that the mother had physically and emotionally mistreated X were true, then it would be in X’s best interests to live with his father. I accept Dr V’s opinion on this question. I consider, for the reasons discussed above, that the mother has physically and emotionally mistreated X, although not to the extent alleged by the father. Even though the mother’s physical and emotional mistreatment of X was not as severe as the father alleged, I consider that it reached a level where it is in X’s best interests that he live with his father.
If I am wrong about the mother physically and emotionally mistreating X, I would still consider that it is in X’s best interests to live with his father, for the reasons that follow.
Firstly, the observations by Dr V of X with each of his parents showed that X related warmly and easily with his father but took some time to reach that point with his mother.
Secondly, X expressed to Dr V a preference for living predominantly with his father. This is objective, third party evidence of X’s wishes and is inherently reliable. X displayed a greater sense of connection to his father. X, on the other hand, said that his mother was frequently angry with him, hit him and withdrew from him for long periods. Given X’s vulnerabilities, his wishes should be accorded significant weight.
Thirdly, X told Mr G that he would stab his mother if he had to spend more time with her. X, on the mother’s own evidence, has hit and kicked her. There is a real risk that, if X were to live predominantly with his mother, their relationship would deteriorate further. As X reaches adolescence, the consequences of him being violent towards his mother will become much more serious, for both of them.
Fourthly, if X were to live predominantly with the mother, he would need to change schools. Dr V thought that a fresh start might be good for X, as he has perhaps been branded as a violent person at his current school. Dr C thought that X needed stability, as did Mr G. While I take the point about a fresh start, I consider that a change of schools and a change to living predominantly with his mother would be very difficult for X. He is getting close to adolescence, with all the stresses that brings for even the most well-adjusted child. He does not need any additional stresses in his life at this stage.
Fifthly, the mother maintained that X did not want to play (hobby omitted) any more. That is contrary to Mr G’s evidence. It is likely that the mother would not facilitate X playing (hobby omitted), if he were to live predominantly with her. That would be unfortunate, given X’s interest in (hobby omitted) and given that he has won a (omitted) award. X obviously has real skills in that area, and it is important for him that he is encouraged to develop them. Success in sport, and bonds with teammates, can be very valuable sources of support for vulnerable children.
Sixthly, if X were to spend less time with his mother, she may be less inclined to withdraw from him for prolonged periods, and more inclined to give him the attention that he needs from her.
There are obviously other factors that tend against X living predominantly with his father. The first is that the father might seek to further restrict X’s relationship with his mother. The father struggled to identify anything positive about the mother and has done much to undermine her in X’s eyes. X referring to his mother as “someone” in the father’s presence is indicative of how well X understands his father’s animosity for his mother. It would be very unfortunate and not in X’s best interests for his time with his mother to be restricted to less than alternate weekends and half school holidays. Hopefully, both parents have learned something from this litigation and the father will be more supportive of X’s relationship with his mother in the future.
The second factor is that the father is unlikely to foster X’s sense of his (nationality omitted) identity. That would not be in X’s best interests. The father ought to make a real effort to speak to X about some positive things about (country omitted), such as that they (omitted), and they have outstanding (omitted).
Notwithstanding these two factors, on balance, I consider that it is in X’s best interests that he live predominantly with his father.
Consequently, the orders will be for X to live with his father and spend time with his mother from after school each alternate Friday to before school the following Monday during school terms.
The parents and the independent children’s lawyer agreed that X should spend half of his school holidays with each parent, though there were some differences in the mechanics proposed. I consider that the arrangements should be kept simple in this case, so X should spend the first half of each term holiday with his mother, from after school on the last day of term until 5pm on the middle Saturday of the school term holidays.
In relation to the long summer holidays, the father proposed that X spend alternate weeks with each parent. The mother proposed that X spend the first half of the holidays with his father. The independent children’s lawyer proposed that X spend the first half of the long summer holidays with his mother. I consider that it would not be in X’s best interests to regularly spend three or four week blocks with either parent, unless they get to the point where they can agree on this. Clearly, one consequence of this will be that neither parent will be able to take X on a long holiday unless the other parent agrees. More particularly, it will mean that it is impracticable for the mother to take X to (country omitted). Those consequences are preferable to X not seeing one or the other of his parents for weeks at a time.
In relation to Christmas, the father proposed that X spend from 3pm Christmas Eve until 3pm Christmas Day with the father in odd numbered years and with the mother in even numbered years and from 3pm Christmas Day until 3pm Boxing Day with the mother in odd numbered years and with the father in even numbered years. The mother did not address this issue. The independent children’s lawyer’s proposal was essentially the same as the father’s. In the absence of any submission on the point from the mother, I accept the proposal of the father and the independent children’s lawyer.
In relation to Mothers’ Day and Fathers’ Day, the father proposed that X spend time with the relevant parent from after school Friday to before school Monday in the relevant weekend. The mother did not address this issue. The independent children’s lawyer proposed that X spend from 5pm the Saturday before the relevant day to before school on the following Monday. I consider that the independent children’s lawyer’s proposal is in X’s best interests on this point.
In relation to X’s birthday, the father proposed that X spend time with the parent with whom he would not otherwise be on that day from 3:30pm until 5:30pm if it is a school day, or from 12md to 5pm if it is a non-school day. The mother did not address this issue. The independent children’s lawyer proposed that X spend time with the parent with whom he would not otherwise be on his birthday from after school until 7pm if it is a school day and from 12md until 6pm if it is not a school day. I consider that the independent children’s lawyer’s proposal is in X’s best interests on this point.
Changeover
The father and the independent children’s lawyer agreed that changeover should occur at school at school times, and at “(omitted)” in (omitted) at other times. The mother proposed that changeover should be at school at school times and at (omitted) railway station at other times. As X will not be living with his mother in (omitted), it makes sense for changeover to be at “(omitted)” in (omitted).
Physical discipline
The father sought an order that neither parent physically discipline X. Neither the mother nor the independent children’s lawyer opposed that order, possibly because it was raised for the first time in the father’s closing written address, which was filed last.
In any event, it is clearly an order that is in X’s best interests. The mother maintained that she did not hit X any way, so she could not be heard to oppose such an order.
Counselling
The mother proposed that the father and X attend upon a counsellor specialising in high conflict relationships and parental alienation. The independent children’s lawyer proposed that the father attend counselling to assist him to encourage a relationship between X and his mother, and to address his manner of reacting to X’s alleged disclosures and to address any other matters that the counsellor considered relevant. The father did not propose that he attend any counselling. The proposal of both the mother and the independent children’s lawyer are open to interpretation. It seems to me that it would be preferable for the father and mother to both attend a parenting orders program. These programs have a specified content and are provided by recognised organisations. They could less easily be circumvented than the proposals put forward by the mother and the independent children’s lawyer.
Supplementary orders
The independent children’s lawyer proposed additional orders of a standard nature dealing with medical emergencies, school communications, current addresses, and mediation. There was no opposition to those orders. They are in X’s best interests.
(nationality omitted) heritage
The mother only faintly pressed her claim to be able to travel to (country omitted) with X. In all of the circumstances of this case, it does not seem to me to be in X’s best interests that he be permitted to travel to (country omitted) with his mother. Firstly, it does not seem to me to be in his best interests that he be away from his father and in his mother’s sole care for more than a week at a time. Secondly, the outcome of this proceeding increases the risk that the mother would not return to Australia with X. As has been determined above, it is in X’s best interests that he live predominantly with his father. It follows that it is not in X’s best interests that his mother be permitted to take him outside Australia.
Having said that, there is no reason that the mother should not include X in (nationality omitted) cultural events in Australia. While the father has sole parental responsibility for X, and that includes his religion, that does not mean that X cannot sometimes attend the (omitted) Church. However, it would preclude him from being baptised in that church, or otherwise formally becoming a member of it.
Sport
It is very important that the mother recognises that X has his own life to live, and part of that life, at present, is being in a (hobby omitted) team. It seems that X is potentially a very talented (hobby omitted). He has won a (omitted) award. It is an area where he can excel. Consequently, it is very important for X that the mother not impede X’s involvement in (hobby omitted). That means that the mother should take him to his games, even if they fall on her weekend with him, and even if she would rather attend a (nationality omitted) cultural event.
Additionally, the mother should make a point of watching X play a few times a year, cheering him on, and getting to know the other members of the team and their parents. This is what parents do, whether they like the sport that their child is playing or not.
There will be an order requiring the mother to take X to at least one sporting event that he is involved in on each of the weekends that he spends with her. There will not be an order requiring the mother to stay and watch, but she is strongly encouraged to do so at least sometimes.
Relocation
The mother also sought an order that the father not relocate more than 80 kilometres from his current residence. It was not opposed. It seems to me to be in X’s best interests that such an order be made. It will promote his relationship with his mother, which is very important to his proper psychological development.
Discharge of ICL
The independent children’s lawyer sought an order that she be discharged forthwith. I consider that it is in X’s best interests that the independent children’s lawyer not be discharged until both parents have completed a parenting orders program. Obviously, if the parents do not complete the program within a reasonable period, the independent children’s lawyer should seek appropriate enforcement.
I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 28 April 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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Injunction
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