Watson and Peterson

FAMILY COURT OF AUSTRALIA

WATSON & PETERSON

[2013] FamCA 541

FAMILY LAW – CHILDREN – best interests of the child – where child smacked causing bruising - where child previously exposed to family violence including animal cruelty, pornography and conflict between adults – mother to have sole parental responsibility – child’s views – significant weight to be attached to views of 13 year old child – child to spend time with the father during the day only and such time to be activity based and in a public place.

Convention on the Rights of the Child

APPLICANT:

Ms Watson

RESPONDENT:

Mr Peterson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Mr M Weston

FILE NUMBER:

DGC

2575

2008

DATE DELIVERED:

11 July 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:	Bennett J
HEARING DATES:	29 April 2013, 6, 10 and 14 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr J Grigg

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Perry Weston

Orders

1.All previous Parenting Orders be discharged.
2.The Applicant Mother have sole parental responsibility for the child B Peterson-Watson born … 2000 ("the child").
3.The Applicant Mother, prior to making any final decision in relation to any matter arising out of her sole responsibility for the child's long term care, welfare and development shall:
(a)     Use her best endeavours to advise the Father in writing of the decision she intends to make;
(b)    Seek the Father's written response in relation thereto within 21 days;
(c)    Consider, by reference to the best interests to the child, any such response from the Father prior to making any final decision;
(d)    Advise the Father in writing as soon as reasonably practicable of her ultimate decision.
4.The child live with the Applicant Mother.
5.The child spend time with and communicate with the Father as follows:
(a)     From 10.00 am until 4.00 pm on each alternate Sunday commencing Sunday 21 April 2013, with such time to be activity based and not at the Father's home (“weekend time”).
(b)    From 10.00 am until 4.00 pm on Father's Day should it fall on a day when the child is not otherwise spending time with the Father.
(c)    On the child's birthday and the Father's birthday should same fall on days when the child is not otherwise spending time with the Father for 2 hours by agreement should same fall on a school day or 4 hours should same fall on a non-school day.
(d)    For the Father’s annual Christmas event … from 10.00 am until 4.00 pm on a date to be advised to the Mother in writing not less than two weeks beforehand and the Mother being responsible for transporting the child to and from the car park opposite ….
(e)    From 10.00 am until 4.00 pm on Boxing Day, 26 December, each year.
(f)     That the child be free to telephone the Father at any reasonable time.
(g)    At such further and other times as may be requested by the child.
(h)    At such further and other times as are mutually agreeable between the parties.
6.For the purpose of time spent by the Father with the child, changeovers take place at McDonald's Family Restaurant ….
7.In the event that the Father obtains tickets for side-by-side seating for himself and the child for a … Football Club home day AFL match and he wishes to substitute his weekend time with the child for time at the football match then the following applies:
(a)     The Father notify the Mother in writing as soon as possible and in any event not later than 7 clear days before hand of his request to take the child to the football;
(b)    The Father be responsible for all costs associated with the football trip;
(c)    The Mother deliver the child to the Father under the clocks at Flinders Street train station not less than forty-five minutes before the commencement of the match and the Father return the child to the Mother at McDonald’s Family Restaurant … by not later than 9 p.m.;
(d)    The trip to the football match be in lieu of the Father’s next weekend time.
8.The Father be, and is hereby, authorised to receive all usual school mailings in relation to the child including school reports, school newsletters and school photos and that he be at liberty to arrange his own separate parent teacher interviews should he wish to do so. The father be, and is hereby, at liberty to attend any school functions usually attended by parents.
9.The Father be, and is hereby, restrained from using corporal punishment of any kind on the child.
10.The child be permitted to have his mobile phone with him, charged and switched on during any time spent with the Father and the father do all acts and things necessary to permit the child to contact the Mother at any time by use of that phone should he wish to do so.
11.The Father and Mother encourage and facilitate the child spending time and his relationship with the other parent.
12.The Father and Mother be, and are hereby, mutually restrained from:
(a)     Discussing allegations in these proceedings with the child or allowing anyone else to do so in the child's presence or hearing.
(b)    Denigrating or otherwise undermining the other parent in the child's presence or hearing or allowing any other person to do so.
(c)    Providing documents or other material to the child relating to these proceedings, including these reasons for decision, or allowing any other person to do so.
13.If a further parenting application or contravention application is filed prior to 1 February 2015:-
(a)     each parent be at liberty to require that the application be listed before me for initial directions in the event that I am reasonably available noting that this Order does not compel them to do so;
(b)    the party filing same serve a sealed copy on the former independent children’s lawyer so as to provide her with notice of the further proceedings and enable her to be in a position to represent the child’s interests if reappointed by Victoria Legal Aid to do so.
14.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC2575 of 2008

Ms Watson

Applicant

And

Mr Peterson

Respondent

AND

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings concern B Peterson-Watson (“the child”) born in 2000 and were heard over four days in May 2013. At the conclusion of the hearing I reserved my decision and gave directions to facilitate the handing down of my decision in Melbourne to the parties in the Dandenong Registry, by audio visual link and for the child to be at the Dandenong Registry so that Mr M, family consultant, could explain the outcome to him.
The family consultant, Mr M, has had an ongoing association with the child having first assessed him just before his eleventh birthday in 2011[1], just before his twelfth birthday in 2012[2] and again in March 2013[3].
[1] Family Report dated 30 August 2011.
[2] Family Report dated 1 August 2012.
[3] Family Report dated 22 March 2013.
Prior to these proceedings being instituted by the wife on 1 March 2011, a number of final parenting orders had been made. That is:-
a)by Federal Magistrate McGuire on 25 June 2009,
b)by Justice Young on 22 November 2005, and
c)by Senior Registrar Wilson when the father failed to appear on 3 May 2003.
In fact, there have been proceedings about the child before this court or the Federal Magistrates Court in every year of the child’s life save for the thirteen months between 16 June 2006 and 24 July 2008. On 16 June 2006, the mother was permitted to change the child’s family name from “[Peterson]” to “[Watson-Peterson]”. On 24 July 2008 the mother made application to the Federal Magistrates Court (as it then was) seeking sole parental responsibility and to limit the father’s time with the child pending an investigation by Department of Human Services and a psychiatric assessment of the father due to the child’s experiences during overnight time in the father’s care including exposure to pornography, animal cruelty and the father’s violent behaviour.
Broadly speaking this dispute is whether parental responsibility should be shared or be solely with the mother and what face to face time the child should spend with the father and how and when they should communicate otherwise.
Pursuant to an order made on 12 April 2012, Michael Weston, solicitor, was appointed as the independent children’s lawyer for the child within the meaning of Division 10 of Part VII of the Act. His role is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in these proceedings in what he believes those best interests to be.[4] Mr Weston is not a legal representative retained by the child and he is not bound by any instructions from him.[5] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the child are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[6] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[7]
[4] s 68LA(2) Family Law Act 1975 (Cth).
[5] s 68LA(4) Family Law Act 1975 (Cth).
[6] s 68LA(5)(d) Family Law Act 1975 (Cth).
[7] s 68LA(5)(e) Family Law Act 1975 (Cth).
The independent children’s lawyer met the child, most recently, on 12 April 2013.
I am satisfied that the child’s interests have been very well represented by Mr Weston ably assisted by Mr Grigg, of counsel.

Parties’ positions

Pursuant to orders made on 20 August 2012 by me, the father has been spending time with the child for three hours each alternate Sunday in a public place. The father’s earlier entitlement, under the Order made in 2009, to overnight weekend and holiday time ceased on 20 January 2011 after the father smacked the child leaving marks described by a protective worker from Department of Human Services as “hand/finger bruising on both bottom cheeks”[8] and the child was returned to the mother.
[8] Department of Human Services, ‘Report pursuant to s 91B of Family Law Act – Matter of Peterson/Watson DGC …/2008’ (18 May 2011) page 2.
At trial, with a few exceptions around Christmas Day and birthdays, the mother and the independent children’s lawyer seek the same outcome[9] which is for parental responsibility to vest solely in the mother and for the child’s time with the father to be confined to day periods in public places with no progression to more extensive, or any, overnight time.
[9] Exhibit “C1”
The father seeks a progression in time so that, by July 2014, he has four days each fortnight during school terms and half the school holidays. This progression, as detailed by the father on the first day of the hearing, was:-
d)For the next six months, each alternate Saturday and Sunday from 10.00 am to 6.00 pm;
e)For the following three months, each alternate weekend from 12 noon on Saturday to 3.00 pm on Sunday;
f)For the following three months, each alternate weekend from afterschool, at school, on Friday to 6.00 pm on Sunday;
g)Thereafter, each alternate weekend from afterschool, at school, on Friday to the commencement of school, at school, on Monday.
The father also set out detailed proposals as an annexure to his affidavit sworn on 24 April 2013 which I read as being augmented by the position he described at the trial. It is apparent that the father has given considerable thought to his proposals.

Conduct of the Proceedings

The trial was conducted over four days. The father represented himself throughout. Ms Macgreggor, solicitor, appeared on behalf of the mother on 29 April, 6 May and 10 May 2013 but on 14 May 2013 the mother represented herself.
The matter was originally listed as a matter which may proceed on an unopposed basis which followed on the father failing or neglecting to attend court when required to do so and failing to keep appointments for assessments by the family consultant. Nonetheless, the father attended each day of the final hearing, punctually, obviously prepared and participated.
These parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply.
The principles for conducting child related proceeding, which I observed, are as follows:-[10]
(a)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(b)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
(c)The third principle is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence
(d)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties
(e)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
[10] s 69ZN Family Law Act 1975 (Cth).
The general duties[11] and the general duties and powers relating to evidence[12] expand the court’s role in the regulation of child related proceedings.
[11] s 69ZQ Family Law Act 1975 (Cth).
[12] s 69ZX Family Law Act 1975 (Cth).
It has not been possible to include in these reasons all aspects on which there was evidence. However, I have taken the totality of the evidence into account. If I have not mentioned something in these reasons, it does not follow that I did not have regard it.
I am satisfied that the case was conducted in such a way as to promote an outcome which would be in the child’s best interests.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the child, I must regard the child’s best interests as the paramount consideration.
The core value or object of the legislation is set out in section 60B as being to ‘ensure that the best interests of the children are met’ by:-
(a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles which underlie the object are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:-
(a)       children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)      parents should agree about the future parenting of their children; and
(e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws so that laws and actions affecting children put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account.
I do not perceive there to be any conflict between children’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act.
The ascertainment of what is in the best interests of the child is a precondition to how the objects and principles can be achieved in this particular case, if at all. The ascertainment of the child’s best interests is informed by ‘primary considerations’ and the ‘additional considerations’ set out in the legislation which I will discuss later in these reasons. Accordingly, the extent to which the father should spend time with the child and participate in his life and in major decisions affecting the child will be circumscribed by what I determine is in the child’s best interests after having regard to all the ‘considerations’ .
Section 65D provides that, subject to some associated provisions to which I will come later in these reasons, the court can make such parenting order as it thinks “proper”.

Proof and findings of fact

Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact is a finding of fact.

Evidence

Section 69ZT operates to exclude various divisions and chapters of the Evidence Act1995 (Cth) which deal with general rules about giving evidence[13], cross examination[14], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, neither s 55 nor s 135 of the Evidence Act 1995 (Cth) are excluded. Therefore it remains the case that:-
a)Only relevant evidence is admissible. Section 55 provides that relevant evidence is evidence which if it were accepted, could rationally affect (either directly of indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings; and
b)The court may exclude or limit the use of evidence which is relevant and thus admissible if the court is satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might:-
i)          be unfairly prejudicial to a party[15]; or
ii)        be misleading or confusing[16]; or
iii)       cause or result in undue waste of time.[17]
[13] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).
[14] With the exception of s 41 relating to improper questions.
[15] s 135(a) Evidence Act1995 (Cth).
[16] s 135(b) Evidence Act1995 (Cth).
[17] s 135(c) Evidence Act1995 (Cth).

The father relied upon his affidavits sworn on 24 April 2013 and 12 April 2011. The father also made reference to reports prepared by Ms E, a Family Court Counsellor, dated 18 February 2005 and 11 November 2005, and a Family Report prepared by Ms F, psychologist, in June 2009.
The mother relied upon her affidavits sworn 29 May and 24 April 2013 and 24 February and 20 December 2011.
The materials and evidence arranged by the independent children’s lawyer were the three reports of Mr M, family consultant. I also had regard to the report pursuant to s 91B from the Department of Human Services dated 18 May 2011.
There were no significant objections taken to the admissibility or fairness of the evidence relied upon.
In addition, there were numerous exhibits.

Credit & impression of the parents

Both parents relied only on their own evidence.
The mother is 49 years old. She is reliant on social security payments, in particular, a Newstart Allowance. She has worked as a cleaner temporarily but now works from home as a designer.
I found her to be a credible witness both in her affidavit evidence and in her vive voce evidence. She was measured and did not waiver from her position which is that she takes seriously her obligation to promote a meaningful relationship between the child and the father. Her evidence, which I accept, is that her position has been based on the child’s views as she has understood them from time to time. When the child wanted more time she was amenable to it and now he wants no progression to overnight time she opposes any progression. My impression is that she does not have much positive regard for the father personally but there was no evidence that she has, in the context of this proceeding, stood in the way of the child having as much involvement with the father as he indicates to her and to the family consultant that he wants to have.
The father is 44 years old. He is unemployed but has previously been a driver. He portrays himself as having fallen on hard times. He has a philosophical objection to drawing social security payments so, without a job, he has no income. He says that he has generous friends who assist him. He does not seek employment but thinks that being self employed would suit him. How he has met his ongoing expenses including rent at $1,400 per month is a mystery although he is now in arrears of rent. He has a four wheel drive car and a boat which he says he might now sell to raise funds to live on. He says he has sold personal possessions in the past to get by. An issue arose for the child whilst spending time with the father at the shopping centre because the father complained that he only had 60 cents which made the child feel uncomfortable. On that occasion, the father’s lack of income impacted on the child as well as on himself. The independent children’s lawyer submitted that the father’s evidence about his financial situation was bizarre, not credible and should, in turn, cause me to have doubt about the veracity of his other evidence.
The father casts himself as a victim of the mother’s determination to minimise any relationship that he can have with the child. He attempted, unsuccessfully, to paint the mother as having exploited his good nature. For example, when some years ago he permitted the mother and the child to stay at his rented accommodation rent free and on the basis of a contribution to expenses. The mother was candid in her responses to the father’s cross examination on this issue. I conclude that the father did open his home to the mother and to the child but was, as promised, largely absent.
I accept that the father has a very strong desire to spend more time with the child. However, I also accept the submission of the independent children’s lawyer that the father, by his presentation in the witness box, by how he comported himself in court and in his evidence generally, appears to regard these proceedings as being a reward or punishment for himself and the mother rather than being concerned with what is in the child’s best interests. I agree with the submission of the independent children’s lawyer that the father’s evidence focuses to a relatively small degree on the child and a lot on himself and the father’s most recent affidavit is a good example of that.
I accept that the father has been less than forthcoming about his financial circumstances. My impression is that he is not prepared to have the mother know anything about his situation even if that lack of candour disadvantages him in this case. He might be too proud or he might be motivated by spite. I draw a distinction between truthfulness and accuracy. The father had a tendency to give evidence of his perceptions rather than of facts. He obviously mulls over past events and reconstructs a history in which he casts himself sympathetically and the mother poorly. He displays little self awareness or insight. I suppose that the father has his own truth, as it were. I conclude that he is a not particularly accurate witness in matters about which he feels strongly or is scrutinised and that covers most things pertaining to the child. Having come to the conclusion that the father is not a careful or accurate witness, it is unnecessary for me to make a finding as to his credit.
I appreciate that the father’s presentation was not filtered by legal representation whereas the mother was represented by her lawyer of long standing for most of the trial. The father was teary and upset in court and frequently too emotional to speak. Informatively, he said that at times he would have appeared to the child in the same way as he was behaving in court.
I found the father’s presentation of his own evidence to be colourful at times. On the third day of the hearing, 10 May 2013, the father was cross examined by counsel for the independent children’s lawyer, as follows:-

MR GRIEGG:          But you just don’t accept do you that if [the child] is alienated from you, if [the child] doesn’t want to see you overnight, it’s not because of anything the mother said to him it’s because what you have done.
[THE FATHER]:       I agree that I take part ownership in it. However I also like to add to it, that the mother still plays on the situation and would refresh---
MR GRIEGG:          But you don’t know that do you?
[THE FATHER]:       I know the mother and I know my son.
MR GRIEGG:          You don’t know---
[THE FATHER]:       You don’t know either one.
MR GRIEGG:          ---that the mother – it's not a question of what I know. You’re the witness. It’s a question of what you know and you don’t know that the mother has attempted to stop [the child] seeing you.
[THE FATHER]:       I tell you this Mr Griggs, and I tell it in all---
MR GRIGG:           Yes or no?
[THE FATHER]:       In all heartily, I bet my left nut that that is correct that the mother has tried to stop [the child] seeing me and I will put it on a bench for you all day long.

MR GRIGG:            And I would suggest to you that your actions with [the child] over a long period of time, not only the smacking incident, but that your actions over a long period of time are quite sufficient to explain why [the child] does not want to see you overnight.
[THE FATHER]:       Can you refer to something that you are referring to?
MR GRIGG:            The matters I put to you earlier.
[THE FATHER]:       Which one? Are you talking about the knife incident?
MR GRIGG:            The incident with the knife—
[THE FATHER]:       Wrong.
MR GRIGG:            ---the incident with the dog---
[THE FATHER]:       You weren’t there
MR GRIGG:            ---the incident with the toilet---
[THE FATHER]:       I’ll agree with the dog. I will agree with the dog. For a young child I think that is inhumane and I agree. That has never happened again. However, the flushing incident, no. It was fun and jovial. Guarantee. The knife incident–three tricks, I can show you two tricks right now if you’d like to see ‘em and they were magic which [the child] enjoys, alright? Punching? Never happened, alright. I refer to a family report in which actually [the child] states, ‘Dad never hits me’.
MR GRIGG:            Now you don’t think much of the mother do you?
[THE FATHER]:       I haven’t got an opinion of the mother anymore. I’ve tried to work with the mother and I’ve always been nice to the mother, however I have denigrated the mother and I will own that and I will say it openly and freely, however I do not anymore.
MR GRIGG:            And you denigrate the mother to [the child]?
[THE FATHER]:       [The child] might have been in the presence when I have said it. I am frustrated at the mother’s lack---
MR GRIGG:            When was the last occasion you said something?
[THE FATHER]:       I can’t recall. Today maybe.
MR GRIGG:            In [the child’s] presence. When was the last time you did that?
[THE FATHER]:       Honestly, I can’t recall. And I don’t think it has been in the last six months.
MR GRIGG:            Not in the last six months.

[THE FATHER]:       In saying that, I’ll take that back Mr Grigg. You asked me a question I’d like to answer it. [The mother] had had her hair cut extremely short to a number one and I said jokingly, I said ‘have you turned into a lesbian?’. I asked the question and it gets turned around.
MR GRIGG:            [The child] was there?
[THE FATHER]:       Yes, [the child] was there.
MR GRIGG:            How do you think it would make–how long ago was this?
[THE FATHER]:       In the last six months.
MR GRIGG:            In the last six months. So [the child] was twelve?
[THE FATHER]:       Yes.
MR GRIGG:            How do you think it makes a twelve-year-old boy feel to hear his father describe his mother as a lesbian? Jokingly or otherwise. How do you think that would make a twelve-year-old boy feel? Just tell me that.
[THE FATHER]:       You might be best to ask [the child] that, however knowing [the child]---
MR GRIGG:            You made the comment and I want you to tell this court how you think that would make a twelve-year-old boy feel.
HER HONOUR:       Your son.
[THE FATHER]:       My son? How that would make him feel? If it wasn’t his mother he might have said the---
HER HONOUR:       How do you think it made him feel?
[THE FATHER]:       I’m answering the question to the best of my ability.
HER HONOUR:       Well then answer it. It’s not not your son, it’s not her son, it’s his mother. How do you think he felt when you uttered those words?
[THE FATHER]:       I believe that those words had already been uttered to him prior to me saying it through what he had conveyed to me during that time. I believed that I was not the only person who had said it about his mother---
MR GRIGG:            Yes but you were his father---
[THE FATHER]:       ---and I believe that [the child] would be of the belief that women with extremely short hair have a tendency to be lesbians. Does that answer your question?
MR GRIGG:            You did, Mr [Peterson]. You did.

Notwithstanding the air of simple sincerity which the father sought to project, I remain unconvinced that his behaviour is governed by much else than a sense of entitlement to more and better time with the child. The father was unable to appreciate the importance of indicators, such as the child’s views and the family consultant’s recommendations, contrary to the outcome he seeks. He dismisses this evidence out of hand which leaves me with the strong impression that he would be similarly dismissive of the child’s views which are contrary to his own. It is also likely, in my view, that the father will impress upon the child his significant grievances and frustrations arising, as the father sees it, from his lack of opportunity to spend time with the child and the mother placing obstacles in his way and hindering “fair and equal access with [the child]”.
The tenor and forthright delivery of the father’s evidence leaves me unsatisfied that the father has the perception or ability to empathise to an extent that would enable him to understand or accommodate a perspective by the child that does not coincide with his own perspective. I conclude that a boy of the child’s make up would be easily intimidated by the father’s resolute stance and his requirement that the child (and everyone else) must accept him how he is.
The only witness, apart from the parents, was the family consultant, Mr M.

Family consultant, Mr M

Mr M, family consultant, prepared three family reports for the purposes of these proceedings. Mr M was called on the first day of the trial, as the first witness and treated as a witness of the court. All parties were given the opportunity of recalling Mr M at the conclusion of the other evidence and before final submissions but none did so.
I will discuss each report and then the family consultant’s oral evidence. The father cross examined the family consultant extensively but did not make any inroads into the family consultant’s opinion. I found Mr M’s evidence to be sound, I accept it and accord it weight when coming to my decision in this case.
On 27 May 2011 Senior Registrar Fitzgibbon ordered that a family report be prepared by Mr M. The father initially did not attend for interview on 25 July 2011 as required but Mr M was ultimately able to get in touch with the father and made arrangements for a further interview time for the father two weeks later. The mother was seeking sole parental responsibility, that the child live with her, and that the child only spend daytime contact with his father. The father was seeking equal shared parental responsibility, that the child live with his mother and that the child spend time with the father on alternate weekends as well as half of the school holidays and additional time on special days.
Mr M observed that the mother presented as someone who “clearly wished to appropriately balance her son’s right to have a relationship with his father with his right to be safe and protected whilst in his father’s care”. He stated that the mother expressed concerns however, about the behaviour and activities the child had been exposed to while in the father’s care such as animal cruelty, pornography, and his father’s violent behaviour and sexual activities. Mr M stated that the child’s primary attachment was with his mother who also provided for his emotional, psychological and physical needs. Mr M’s opinion was that the mother “seemed genuine in her desire to promote [the child’s] relationship with his father”.
Mr M stated that the father presented as “a loving father” who wished to maintain the relationship he had had with the child since he was young, but whom he observed to have a limited capacity to provide for the child’s emotional and psychological needs. Mr M was concerned about the frequent involvement of DHS with the family prompted by apparently non-child focused incidents, particularly an incident where the father smacked the child causing bruising. Mr M also expressed his concern about the father’s lack of insight into the consequences of his behaviour and lack of awareness of the effect on the child. Mr M stated that the father’s refusal to give consent for the child to attend counselling after being exposed to pornography and exhibiting sexualised behaviour raised questions about the father’s parenting skills and his ability to be child focused.
At the time of the child’s first meeting with Mr M, the child was eleven years of age and had not spent time with his father since February 2011, a period of some six months. Mr M noted that it had been recommended in a previous family report that the father complete parenting education and orders had previously been made for the father to attend counselling, however the father had failed to attend any counselling or programs as ordered. Mr M was concerned about the father’s level of involvement with the child when in his father’s care, as the child had told him he mostly played alone or with his father’s dogs and made his own breakfast and lunch. Mr M reported that the child’s views were that he did not want to see his father for a while and would be willing to spend time with his father in the future but not overnight time.
Mr M’s recommendation in his first report dated 30 August 2011 was that the mother and father have equal shared parental responsibility for the child. Mr M recommended that the father contact the Men’s Referral Service and complete counselling or services as directed before spending any time with the child. Mr M proposed that the child then spend time with his father for up to three hours each alternate Saturday or Sunday for three months with the time to be spent in a neutral setting and activity based, such as a park or cinema. Mr M also recommended that the child attend counselling to assist him to re-establish his relationship with his father. Mr M proposed that consideration be given to the child spending time at his father’s home at a later date, subject to the child’s views.
The Senior Registrar made orders by consent on 21 October 2011 which provided for the father to enrol in and complete such parenting course as nominated by the independent children’s lawyer. The consent orders also provided that upon the father giving evidence to the independent children’s lawyer of having commenced the parenting course, the father was to begin spending time with and communicating with the child from 10.00 am until 1.00 pm each alternate weekend, on Saturday and Sunday alternatively, and by telephone each Wednesday. The independent children’s lawyer was to monitor the progress of the father’s completion of the parenting course and in the event that the father failed to attend or the independent children’s lawyer formed the view that his progress was unsatisfactory the father’s time with the child was to be suspended.
On 25 July 2012 the family attended upon Mr M for an updated report pursuant to an order made 23 May 2012. My reasons for ordering a further reportable assessment are published under the case neutral citation [2012] FamCA 1148 and I incorporate those reasons into these reasons. Essentially, both the mother and the independent children’s lawyer stated that the child had become oppositional to spending time with the father and it was conceded that further evidence of his views would have to be obtained. The updating report was published on 1 August 2012.
Following the preparation of the family consultant’s first report dated 30 August 2011, the father had not spent time with the child until the day of the interviews for the updated report, even though consent orders were made on 21 October 2011 for the father to spend three hours with the child each alternate weekend.
At the time of interview the mother was seeking sole parental responsibility and that the child live with her and spend no time with the father. The father was seeking that the parties have equal shared parental responsibility and that the child live with his mother and spend increasing time with the father commencing with a period of three to four hours.
The mother advised Mr M that the father was yet to complete any parenting or anger management courses and that the child had told her that he did not want to spend any time with his father. Mr M stated that the mother expressed concern for the child’s welfare while in his father’s care. The mother reported that the father had not attempted to contact the child at all since January 2011 and that the child has a ‘deep sadness’ about his father because his father can’t be the person the child wants him to be. Mr M stated that the mother said she was willing to promote the child’s relationship with his father “if she thought this would be in his best interests and it was something [the child] wanted”.
Mr M observed that the father presented differently to the previous report as he was neatly dressed and his attitude was “much more positive, agreeable and less confrontational”. Mr M stated that the father frequently became emotional while speaking about the child and the length of time since he had seen the child. Mr M reported that the father attributed his difficulties in spending time with the child to the mother’s resistance and was suspicious of the mother influencing the child against him. Mr M reported that the father said that he had not spent any time with the child pursuant to the Orders made 21 October 2011 as the child had resisted doing so. The father told Mr M that he had completed an anger management course and a parenting course but hadn’t forwarded copies of the certificates of completion to the independent children’s lawyer. The father advised Mr M that if the child were to spend time with him it would not be ‘boring’ as he was no longer working and would have more energy to join in activities with the child.

Mr M stated that the child’s views were virtually identical to those expressed in the previous report in that he was not ready to spend time with his father but would be willing to spend time with his father in the future during the day only. Mr M stated that the child wanted an apology from his father for the smacking incident (January 2011) and that the father subsequently gave the child what appeared to be a genuine and sincere apology during the observation.
Mr M reported that it was significant that the child was not anxious or resistant to spending time with his father during the observation and actually asked for them to spend more time together. Mr M also observed that it appeared that the child had received a message from his mother that he was not safe when he was with his father. Mr M opined that the father presented as more child focused than during the previous report and that perhaps “he has finally ‘woken up’ to the fact that time with his son is a privilege rather than his right in law”. Mr M was hopeful that the father had truly benefited from the parenting courses he had completed.
The recommendation of Mr M in the second family report was that the mother and father have equal shared parental responsibility for the child, but that the mother have sole responsibility for decisions regarding the child’s schooling. Mr M also recommended that, conditional upon the father providing evidence of the programs he had completed, the child spend time with his father for up to three hours each alternate Saturday or Sunday for three months with the time to be spent in a neutral setting and activity based (as previously recommended in the family report of 30 August 2011). Mr M also recommended that the father be restrained from using corporal punishment and be authorised to receive all the usual school mailings for the child. Mr M again recommended that the child attend counselling to assist him to re-establish his relationship with his father and that, if the time was progressing well, consideration be given to some of the time being spent at the father’s home. Mr M clearly recommended that future time with the father should be guided by the child’s views and that overnight time should only be considered if the child desired it.
I made orders by consent on 20 August 2012 which provided for the child to continue living with the mother and spend time with the father from 10.00 am to 1.00 pm each alternate Sunday commencing 2 September 2012, with such time to be activity based and not at the father’s home.
On 18 March 2013 the mother and the child attended upon Mr M for a further updated report pursuant to my Orders made 20 August 2012. The father did not attend for interview, could not be contacted by telephone and subsequently did not contact the Registry as requested. Therefore, the report was prepared without any information provided by the father and without an observation of the father interacting with the child. At the time of interview the mother was seeking that the child’s time with his father be increased by one or two hours but that the frequency remain unchanged. As Mr M could not contact the father he was uncertain whether the father’s proposal had changed from that outlined in the updated family report dated 1 August 2012.
The mother told Mr M that the Orders made 20 August 2012 were progressing well and the child had been spending time with his father pursuant to the orders. However, Mr M stated that the mother thought the father regarded his time spent with the child as his “entitlement” and was concerned that the father accepted no responsibility for his previous abusive behaviour towards the child. The mother expressed her fear to Mr M that the father’s current self-control was for the sole purpose of the proceedings and that he might revert back to his past behaviour upon the proceedings being finalised, thus placing the child at risk. Mr M also reported that the mother remained concerned about the father’s anger towards her and described being tense at changeovers.
Mr M stated that the child said he had been enjoying spending time with his father and wanted an extra hour or two to enable them to do more activities together. However, the child complained to Mr M that his father constantly denigrated his mother and that his father rarely had much money to enable them to do things together. Mr M stated that the child also complained of an incident where his father put his fingers down the back of his pants when the child was tying his shoelaces on an escalator in a shopping centre which caused him embarrassment in a public place.
Mr M specified in his report that the child wanted to spend an additional hour or two with his father each alternate weekend but did not want to spend time at his father’s house or stay overnight with him. Mr M observed in his report that there had been “a marked change” in the child compared to the previous reports. Mr M said that the child spoke positively about spending time with his father, but was also more assertive and was able to challenge his father and disagree with him at times. Mr M opined that it was a positive development but “also creates an increased likelihood of conflict between the child and his father”.
The recommendation of Mr M was that the mother have sole parental responsibility, in contrast to the previous two reports. He recommended that the mother advise the father in writing of the decision she intends to make, give consideration to any written response of the father and then advise the father of her ultimate decision.
Mr M recommended that the child spend time with the father from 10.00 am to 4.00 pm each alternate Sunday with such time not to be spent at the father’s home.
On 29 April 2013, Mr M was cross-examined about the contents of the three family reports he prepared for the purposes of these proceedings.
In relation to the question of parental responsibility, Mr M stated that in his previous reports he had been hopeful that a greater degree of cooperation might develop between the mother and father. However, Mr M stated that the failure of the father to attend the interview for the family report “didn’t auger well for good cooperation and problem solving between the parents”. Additionally, his interview with the child gave him further reason to believe that equal shared parental responsibility was not a viable option. Mr M stated that his concern was that there was no communication between the parents and the child would suffer from a situation where the parents had equal shared parental responsibility but were unable to communicate and problem-solve to make decisions for the child.
Mr M agreed with the suggestion of the independent children’s lawyer that part of his reasoning behind his recommendation of sole parental responsibility was that if there was equal shared parental responsibility, there would be a risk of the matter returning to court due to the parties’ inability to come to an agreement and he thought it desirable to bring the matter to a conclusion as soon as possible.
Mr M also gave evidence that he had observed a change in the child, in that the child had matured and was now able to “speak his mind and express his views”. Mr M stated that the child had expressed his views clearly and wanted to spend some more time with his father but was adamant that he did not want to spend overnight time.
Mr M opined that if the orders did not reflect the views the child had clearly expressed, it would likely have quite a negative psychological impact on him and would possibly contribute to his fears about his father’s prior behaviour. Mr M also agreed when I asked whether making orders contrary to the child’s wishes could affect his ability to function at school and his ability to enjoy the relationship he has with each of his parents. Mr M further stated that there was no reason to believe that the child’s views had been influenced by his mother and that the views he expressed were not rehearsed.
The independent children’s lawyer also asked Mr M about two incidents deposed to by the mother in her affidavit sworn 24 April 2013. In that affidavit the mother deposed that the child had told her about an incident which occurred when the child was with his father at a shopping centre on 24 March 2013, two days after the family report interviews. The mother deposed that the child had told her that the father had become upset with the child because the child hadn’t asked the family consultant to recommend that the child spend overnight time with the father. It is alleged that the father told the child that he had been unable to sleep, eat or work because he was depressed due to the court proceedings. I am satisfied, largely by the father’s own responses to subsequent cross examination, that he withdrew from the child and did act as the child alleged. Mr M stated his opinion that such behaviour would be inappropriate, completely disrespectful to the child and could serve to remind the child about his father’s tendency to become angry. I agree.
In that same affidavit the mother deposed that the child had attended a football match with his father, but the father did not sit next to the child and spent the afternoon talking to his friends and drinking beer. The football match had been raised in Court at an early mention when the father sought to make an oral application to enlarge the time to be spent the next Sunday so that he could take the child to a football match (“the game”). Seemingly unbeknownst to the father the game was on Saturday so Sunday would have done them no good at all. However, the mother agreed and the child attended the game on 20 April 2013 with the father but commented to the mother that the father chose not to sit with him. The independent children’s lawyer began to ask Mr M his opinion about the events as allegedly relayed by the child, however the father objected on the basis that he had only been drinking light beer and the child was sitting with the father’s friends who the child had met previously but had not seen for several years. When asked to comment by the independent children’s lawyer, Mr M stated:
I think that no matter what [the father] says, I think at the end of the day, we need to be seeing a dad here who is wholly committed and focused on what his child is needing and expecting….the trust needs to be rebuilt and the fears need to subside and that’s going to take time.
Mr M further stated that the time the child spent with his father at the football match seemed to have done “very little in terms of building a relationship”. He stated that the child was seeking “attention and reassurance and enjoyment” but was getting a father “who behaves inappropriately, who is angry, who denigrates his mother, and who isn’t focused on the kinds of things that make him feel comfortable and feel happy and satisfied in the time that they spend together.” The balance of the evidence in the case supported the family consultant’s opinion which I accept.
Finally, during cross-examination by the father, the father asked Mr M if it would be in the child’s best interests to re-evaluate his wishes in six months time. Mr M stated that he stood by his opinion expressed in his report that a further family report would not be advisable because it would only prolong the proceedings. My impression was that Mr M sees finality in these proceedings as a priority, particularly given the numerous occasions on which the child has been seen for assessment and asked to provide his views.
Mr M gave his evidence in a balanced and reasoned manner. He responded to all matters raised in cross examination in a considered way. I give significant weight to his evidence.

Determining what is in the child’s best interests

In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. I am required to consider two primary considerations and several additional considerations, listed in

s 60CC of the Act.
The primary considerations are set out in s 60CC(2) and are described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence –
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[18]
[18] s 60CC(2)(b) Family Law Act 1975 (Cth).
In this case both of the primary considerations are relevant.
I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parents, but particularly the father, and the child by reference to additional considerations. It is a prospective enquiry. I will evaluate the extent to which a meaningful or significant relationship with both of parents is going to be beneficial and of advantage to the child now and into the future. In this regard, neither party contends that the other ought not have a meaningful relationship with the child. The father does not seek to alter the mother’s role as primary care giver but alleges that the mother “has tried to hinder and cease access forever”. He is aggrieved that he has missed out on spending Christmas, the child’s birthday and Easter with the child for the last five years.
The mother and the independent children’s lawyer contend that the most beneficial, and therefore meaningful, relationship that the child could have with the father is one which involves limited face to face time and is confined to daytimes in a public place and participation in or spectating activities of mutual interest, like football. The father, on the other hand, seeks extended periods, holidays in destinations of special interest to the family including skiing and a return to overnight spend time arrangements in the near future. In cross examination by the father of the mother, the mother stated that she was not seeking to stop the father having a relationship with the child but that she does not want parenting arrangements and time spent “to go back to the way it was before the assault”. The mother and the independent children’s lawyer seek orders which provide for time spent which accords with the limited time that the child has said that he wants and which is also what the family consultant, Mr M, recommends.
The second of the primary considerations recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
As these proceedings were commenced prior to 7 June 2012 when the Family Law Legislation Amendment (Family Violence and Other Measures) reforms to the Family Law Act 1975 (Cth) came into effect, those parts of the current Act do not apply to these proceedings. ‘Abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’ (s 4(a)) or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person. ‘Family violence’, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[19] A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act. In this case, I do not perceive there to be any alleged conduct which would fall outside the pre-amendment legislation (applicable here) but within the new definition which applies to proceedings instituted after 7 June 2012.
[19] s 4 Family Law Act 1975 (Cth).
I will assess the future risk of exposure by the child to physical or psychological harm and formulate orders which protect him from that harm.
It is common ground that the child has been:-
a)exposed to family violence between the mother and father by way of shouting, denigration and argument; and
b)assaulted (hit) by the father in January 2011, so that the child occasioned bruising to his buttocks and the Department of Human Services intervened and returned the child to the care of the mother.
By the s 91B report dated 18 May 2011, the Department of Human Services (‘DHS’) detailed their most recent involvement with the family at that time, which began after they received a report on 20 January 2011 of the child being physically abused by the father while residing with him during the school holidays.[20] The report was that while spending time with his father, the child had contacted his mother and stated that it was “elephant time”, a code word to be used between them if something was wrong. The mother had then attended the father’s house and the child told her that the father had hit him on the bottom two nights prior. The mother observed that the child’s bottom was covered in bruises. The father’s explanation was that the child wouldn’t go to sleep and had been crying and waking the father up, therefore he had warned the child that he would hit him. The mother took a photograph of the bruising on the child’s bottom and drove to the local Police Station, however it was closed. The mother then made a report to DHS the following morning. DHS child protection workers conducted an urgent outreach with police support at the father’s home. The child requested to return to his mother’s care and the protective workers assessed that the child should be returned to the mother as he was distressed in his father’s care. The s 91B report stated that the protective workers were also concerned that the father had “demonstrated limited capacity to calm and reassure his son when he was frightened, but instead inflicted physical punishment” and it was not evident that the father would act differently if the child behaved the same way that evening. The report stated that a week later the mother advised one of the protection workers that police had obtained an interim intervention order preventing the father from coming within 200 metres of the child.
[20] Department of Human Services, ‘Report pursuant to s 91B of Family Law Act – Matter of Peterson/Watson DGC …/2008’ (18 May 2011) page 3.
The recommendations made in the DHS report were that the child continue to reside with his mother and that the child should determine when he is ready to spend time with his father. It was recommended that the child should spend no overnight time with his father unless requested by the child. It was further recommended that the father comply with previous orders by undertaking counselling and parenting courses, and that the child continue to attend counselling. It was on the basis of this incident that the child ceased to spend any time with the father for a short while but, thereafter, spent no overnight time with the father or time in the father’s home.
It was also alleged by the child to DHS[21] on 30 May 2008 that his father had placed his head in the toilet and flushed it, threatening future punishment for misbehaviour. On 6 October 2008 the child returned home from spending time with his father with bruises on both arms and he disclosed that his father had pushed him to the ground. On 3 March 2009 the child reported that he had witnessed family violence between the father and the father’s partner. The father denies that these assertions by the child are truthful. He says that he has only ever hit the child on one occasion, being in January 2011, albeit repeatedly and that he will never do so again.
[21] Ibid page 2.
Further allegations by the child included the father hog tying the dog to teach it a lesson. At the trial, the father explained that he tied the dog’s paw to its collar but that it could have hopped around the yard if it wanted to. He did not cavil with the mother’s description that the child perceived the father’s treatment of the dog to be cruel and that the child sat with the dog to comfort it whilst it was restrained.

At the trial the father provided his perspective on various incidents of family violence with, I am satisfied, the intention of reducing the significance which could be attributed to them. Significantly, he also described the mother as “extremely overprotective” and stated that the child was feeling responsible for the mother. My impression, with which the family consultant concurred, is that the child feels an inappropriate sense of responsibility for both of his parents. The father was critical that the mother permitted the child to sleep in her bed on occasions, he inferred that the mother mollycoddles the child and that she has also made too much of past events involving family violence and is motivated to do so in order to damage his relationship with the child.

Treatment of the additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the child what benefit that may flow from having a meaningful relationship with both parents and so as to ensure that he is protected from harm and exposure to abuse, neglect or family violence.
Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[22]

The child’s views[23]

[22] B and B: Family Law Reform Act (1997) FLC 92-755.

[23] s 60CC(3)(a) Family Law Act 1975 (Cth).

In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.
The requirement to focus on the child’s views, as opposed to wishes, means that I have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make specific enquiries or elicit the child’s ultimate preference or wish. This is consistent with the reference in the Revised Explanatory Memorandum[24] that consideration of the children’s views will:-
allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[25]
However, consideration of a child’s views does not exclude consideration of a child’s wishes.
[24] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[25] Ibid paragraph 56.
Once a child's views are ascertained, the court is required to consider them in concert with the primary considerations and such of the other additional considerations relevant to the child's welfare. This process was described by the Full Court in R v R: Children’s Wishes (2000) FLC 93-000 as follows:-
42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[26] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer[27] and I do so.
[26] ss 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[27] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
In this case, the child’s views from time to time have been heard through the independent children’s lawyer, the family consultant and the parents. There is no controversy around the fact that the child says that he wants to spend regular and frequent time with the father in a public place and not overnight. The father contends that the child is unduly influenced by his mother’s expectations of him or otherwise so that I ought not give much weight to his views. The father also contends that, just as the child changed his mind about spending time with the father in 2012, the child may shortly want to spend more time with the father so I should not finalise matters consistently with what the child says he wants now. I accept that in an early counsellor’s report, of February 2005, in concluded proceedings and when the child was much younger, the child was assessed by Ms E to be expressing negative views about the father which she opined were the mother’s views rather than his own and that he had been coached and conditioned by the mother to express certain views. I also accept that, whilst it is possible that the child may alter his views and want to spend more time with the father, I do not think that it is probable that he will do so in the short term.
I have listened carefully and with an open mind to all of the evidence in order to track how the child places himself in this litigation. I have heeded the very many statements made by the father about the child’s views not being genuinely expressed and the child needing to spend more time with him to counter balance the mother’s greater influence as well as that the child needs a male role model as he moves towards manhood. Also, that the father considers that he has been forbearing as he has, effectively, waited for the child to be untied from the mother’s apron strings. I have no doubt that the father believes what he says but those views do not accord with the impressions that I have formed after hearing all of the evidence.
I am satisfied that the child well knows how his father feels including that he is aggrieved and affronted at the relatively minor amount of time that they get to spend together and at the restricted circumstances in which that time is spent. My impression is that what the child says now is genuinely felt by him and that he has been quite courageous and strong to express himself as he has done. I am satisfied that he is a sensitive and empathetic young man who appreciates that his views will disappoint his father but he has provided them nonetheless. I accept the expert opinion of the family consultant that final orders which do not take into account and give voice to the child’s views could have a negative psychological impact on the child and be counter-productive. In these circumstances, I accord the views expressed by the child, that time should be restricted to day time activities in public, significant weight.
I am not inclined to accede to the father’s requests to make my determination subject to any contrary views which the child may express in the future. I am confident that to do so, would encourage the father to entreat and place pressure on the child to change his mind and, in all likelihood, expose the child to a repetition of the father’s appalling behaviour on 24 March 2013 when the father sulked, and walked away from the child in a shopping centre as retribution for the child expressing a view to the family consultant which did not coincide with what the father wanted him to say.

The nature of the child’s relationships[28]

[28] s 60CC(3)(b) Family Law Act 1975 (Cth).

I consider the nature of the child’s relationship with each of the parents and other persons inclusive of grandparents and other relatives.
I accept the family consultant’s evidence that the child is primarily attached to the mother but that he is growing into a young man who holds views and feelings independently of his mother. The child is disappointed when the father denigrates the mother and, in all likelihood, that is one of the greatest difficulties which the child experiences with the father. By the same token, the child loves his father and has considerable affection for him. If that was not the case, it would have been reasonably easy for the child to stop seeing the father (but he has not done so). I accept that, after the mother, the father is the most important person in the child’s life.
The relationship that the child has with the mother is more secure and safer for the child than the relationship that the child perceives that he has with the father. The child resists spending time at the father’s home or otherwise than in a public place. The child does not want to disappoint the father or to hurt the father’s feelings but, nonetheless, the child is prepared to stand up for himself when expressing his views to the family consultant which, in turn, indicates to me that the father/son relationship is viable and based on a healthy foundation. However, it is not so strong that it will withstand a lack of respect for the child’s considered and, I am satisfied, well founded views.
The father makes much of relationships which the child is missing out on because of the very limited time that they spend together. These relationships include the father’s adult and younger relations, such as the child’s cousins, and the father’s friends and the children of those friends. I accept that the child might enjoy spending time with these people but not at the expense of spending time with the father and not until the relationship between the father and the child is consolidated and more secure. I understand that the father is very keen to show the child that he is not just a solitary figure but part of a community of friends and family with whom the child can relate and enjoy himself. However, the need to shore up the relationship between the father and son before involving other personalities was demonstrated poignantly by the child’s disappointment at the father’s behaviour at the game on 20 April 2013. The father says, and I accept, that he placed the child with friends closer to the child’s age and then watched the game with their host and drank some light beer. I suspect that the father was trying to construct a normal and natural environment. However, it is apparent that the child felt ignored by the father and anxious about the father’s consumption of alcohol.
My impression is that the child’s expectations of the father are still much affected by the father’s past unsatisfactory and sometimes abusive conduct towards the child and the father’s negative and angry attitude to the mother. On the other hand, the father’s expectations of the child are all forward looking, positive and characteristic of an idealised father son relationship where affection and mutual interests can at last blossom away from what he perceives to be the mother’s negative influence. So, whilst I am satisfied that the father and the child want to share a meaningful and positive relationship, they come to it from disparate starting points. I conclude that the relationship between the father and son is positive but fragile and considerable care must be taken not to break it whilst trying to make it better.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child[29]

[29] s 60CC(3)(c) Family Law Act 1975 (Cth).

The family consultant observed, and I agree, that the mother has in fact acted alone in making decisions about major long-term issues in relation to the child. The father complains that he has had little input but my impression is that he has not made himself available or been approachable in this regard. Statements made by the father in court lead me to conclude that he has been waiting until the child is old enough and sufficiently independent for him (the father) to be able to transact about major long terms decisions directly with the child, bypassing the mother.
I am not critical of the mother’s past actions.
The father’s past actions, or inaction, do not give me any confidence that he and the mother could have a cooperative or even civil interaction about major long-term issues in relation to the child.
I am satisfied that, if I imposed a parenting arrangement predicated on the father and the mother conversing, even by email, it would be fraught with difficulty and with recriminations both ways and would be wholly unsatisfactory for the child.

The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[30]

[30] s 60CC(ca) Family Law Act 1975 (Cth).

The mother has had the almost sole financial support of the child. Child support paid by the father has been modest and, at the moment he is not paying any regular child support at all. The father has paid camp expenses, of $65, which enabled the child to do an optional surfing activity and which money the father informed the court was contributed by one of his generous friends. The father last paid any child support in October 2012. The current assessment is $44 per month. He is about $4,000 in arrears of child support payments.
I note that the father permitted the mother and the child to stay in his house for a period in 2010 without the mother having to pay rent but paying for household utilities. The father was not staying there most of the time. Clearly, his actions greatly assisted the mother and the child when they were in need of alternative accommodation and the mother could not afford four weeks rent plus bond to relocate. However, the responsibility to maintain the child has been ongoing.
I am not satisfied that the father has made a reasonable attempt to contribute to the child’s maintenance. More likely than not, the father’s neglect of the child’s financial support has been to spite the mother and to make life difficult for her, at least in the last two years.
If the father’s lack of employment and funds endures, it will inevitably create some tension in his relationship with the child. The father is reliant on the generosity of his friends for treats like taking the child to a major football game and to a post-game dinner at Chinatown with the consequence that the child must share the father’s attentions with others on these occasions. As the child grows older, he may not want to feel at all beholden to the father’s friends for their generosity or to participate in activities with them.
The father has asked the child if he would like to spend some “adventurous times” with the father such as skiing in Victoria or visiting Venus Bay or Queensland but the father has no apparent means of paying for these holidays. The father says that he is behind in his rent which is $1,400 per month and has sold, or is contemplating selling, his jewellery, boat, motor vehicle and guitar. Against this backdrop, it is unlikely that the father will be making much, if any, contribution to the child’s upkeep by payment of child support. As the child matures and becomes aware of the magnitude of the expenses borne solely by his mother, I expect that he will wonder about the real cause of his father’s impecuniosity and may well challenge the father about the fairness of it all.

The likely effect of any changes in the children’s circumstances[31]

[31] s 60CC(3)(d) Family Law Act 1975 (Cth).

In determining what is in the best interests of the child I am required to consider the likely effect of any change in the child’s circumstances particularly in relation to separation from his parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
At the moment, the child sees little of his extended family on the paternal side partly as a consequence of not seeing much of the father. The father’s case is that the mother has impeded the child spending time with his mother, the paternal grandmother, but she does live in Queensland so she is not readily accessible.
There is no proposed significant change to the general arrangement of the child residing with the mother, attending school from her home and spending time with the father. The father seeks far greater time than the mother is prepared to countenance, in particular, regular weekend overnight time and block periods of holidays, but arrangements in line with what the father seeks would not disrupt the child’s schooling.
Orders sought by the father would, I assume, provide the child with a greater opportunity to spend time with his cousins and other paternal family members. However, I am satisfied that there are deficits in the father-son relationship which should be healed before other family relationships are necessarily brought into the equation. I understand this will not be the father’s perception. He is likely to perceive his family and friends as being attractive to the child and, therefore, a valuable attribute for his relationship with the child but that is not what I perceive to be in the child’s best interests. Accordingly, I am not inclined to increase the time the child is to spend with the father merely to create the potential for the child to be re-introduced to members of the paternal family and the father’s friends and their children and to spend time with them.

Practical difficulty and expense associated with face to face time and/or communication with the other parent[32]

[32] s 60CC(3)(e) Family Law Act 1975 (Cth).

I consider the practical difficulty and expense of the child spending time with and communicating with the father with whom he is not living and whether this will affect his right to maintain personal relations and direct contact with both parents on a regular basis.
The difficulties in this case do not originate because the parents are physically remote from one another.
The child seeks to spend time with the father otherwise than at the father’s home and not overnight. The shopping centre is, for the time being, a practical compromise. I understand that the father does not like the current restrictions. However, to my mind, they are better than nothing and the eventuality of no time spent at all is a likely consequence of orders which disregard the views expressed by the child to the independent children’s lawyer and to the family consultant and what the family consultant opines is the best way forward.
The father seeks time on Christmas Day and the independent children’s lawyer supports that position. The father’s uncontradicted evidence was that he has not spent time with the child on Christmas Day since 2010. The mother opposes the child spending time with the father on Christmas Day because there is no convenient place for them to do so.
The orders proposed by the independent children’s lawyer at the conclusion of the hearing, and adopted by the father, included four hours on Christmas Day by agreement, or in default of agreement from 4.00 pm to 8.00 pm. Ms McGregor for the wife asked Mr M during cross-examination whether it would be preferable from the child’s point of view for him to spend time with his father on Christmas Eve or Boxing Day, for example, when public and community facilities would be more likely to be open. Mr M’s view was that it was essential that any time spent with his father over the Christmas period should be of benefit to the child. He said, “…it needs to be an enjoyable time. Christmas is meant to be that for children and certainly the restriction in terms of trading hours [in the shopping centre) and so on is an issue that comes into that”.

In closing submissions the independent children’s lawyer acknowledged that changeover presented a difficulty because shopping centres are not open on Christmas Day. Furthermore, the parties live approximately half an hour from each other.
The father raised the fact that he could take the child to the home of a family member. The independent children’s lawyer did not support this proposal. I will not make orders in those terms. To do so would be contrary to the child’s views and to his expectations and, due to the unusual circumstances of this case, I do not consider orders which run contrary to the child’s expectations to be in his best interests particularly as I assess those expectations as reasonable and soundly based.
I am satisfied that spending time with his father on Christmas Day would not be in the child’s best interests and therefore I am not prepared to make an order in those terms.
The mother proposes that the child spend time with the father for the father’s annual Christmas event from 10.00 am until 4.00 pm on a date as advised by the father and on Boxing Day from 10.00 am until 4.00 pm. I am satisfied that the orders proposed by the mother give the child sufficient time with his father during the Christmas period and are in the child’s best interests.
There were lengthy submissions in relation to the practicality of the child going to football games with the father (if he can procure tickets), having a kick of the football in the park afterwards and sharing a meal with the father and the father’s friends in Chinatown. I am impressed that the parties were able to resolve the issue in such a way as the mother and the child are not required to travel by train late on an autumn/winter night and I will make the order sought by them in that regard.

Capacity of the parents to meet the child’s needs[33] and their attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents[34]

[33] s 60CC(3)(f) Family Law Act 1975 (Cth).

[34] s 60CC(3)(i) Family Law Act 1975 (Cth)

In determining what is in the best interests of the child, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs. I have discussed earlier in these reasons the respective contributions which each parent has made to the child’s maintenance and the extent to which he/she has been involved in the child’s day to day life and decisions about major long term issues.
The mother has her vulnerabilities and limitations but I am satisfied that she has been as good a parent to the child as possible. The father raised continually that the mother had pawned personal possessions including an iPod belonging to the child. The mother’s evidence was that she retrieved the items and returned them to the child. The mother admitted to playing poker machines previously and to the extent that she obtained counselling for her gambling problem. The father glossed over the fact that he held onto personal items belonging to the child without any economic imperative.
The mother is now providing adequately for the child’s physical needs. Earlier in these reasons I have discussed the father’s lack of resources and doubt about his ability to stay in his rented accommodation. For those reasons, I must have doubt that the father has the wherewithal to house and maintain the child in a stable and familiar home environment.
I agree with the family consultant that the mother is reasonably attuned and responsive to the child’s emotional needs. I do not have the same view of the father.
I accept that the father is really struggling at the moment. He is in financial hardship. He may think that this final resolution has come at a inopportune time for him and the outcome may have been different if he was in secure accommodation, with a regular income and paying child support. However, I don’t think that is the case. The real difficulties in the father’s case are the deficits in his relationship with the child and that the father appears to lack the personal resources and empathy to concentrate more on how the child feels about his parents and less about himself.
The father says that emotionally he is at a low ebb. He stated in court “I am in a depressed state due to not seeing my son. I am not able to cope.” In the witness box, the father was teary, huffing and puffing and upset to the point of not being able to speak. However, it is the father’s apparent lack of insight which causes me to doubt that he is equipped to care for the child on an emotional level.
I am satisfied that the father is unable to subjugate his resentment of and disregard for the mother to a position in which it does not intrude into his relationship with the child. The child has complained that he does not like the father denigrating the mother but the father continues to do so such as, not so long ago, asking the mother in front of the child “have you turned into a lesbian?” by reference to her hair being cut short. When I asked the father what impact he thought his comment would have had on the child, he said “I think [the child] already knew, he’d discussed [that women with short haircuts are lesbians]” or words to that effect. Perhaps feeling censured in court, the father went on to say “I’m being myself.” This is an incident which reflects poorly on the father’s ability to meet the child’s emotional and intellectual needs.
On one occasion the father facilitated the child receiving an invitation to a special party from a child of the father’s friend. The father well knew that the event fell totally outside his entitlement to spend time and that the mother would not agree to the child’s attendance. When I asked the father what purpose he believed was served by the child being disappointed at missing out on the event his reply was that “maybe my son actually gets to see what she’s like”. This incident demonstrates that the father prioritised his desire to project a poor image of the mother to the child over his regard for the child’s sensibilities.
The father agreed that there was at least one occasion when the child was exposed to extreme conflict between himself and a woman companion of the father and another event when the child accurately recalled a companion of the father, Ms X, crying and screaming under a bed. On another occasion, the father directed the child to take care not to mention to one of his female friends who was going to stay the night that another woman had stayed the previous night. These vignettes go some way to explaining why the child expresses a strong view not to spend time at the father’s home where the father invites other people and the child has little or no control over what transpires. The father’s apparent inability to acknowledge that the child’s views may be soundly based is indicative of an inability on his part to meet the child’s emotional and intellectual needs.
I share Mr M’s criticism[35] of the father for refusing to consent to the child obtaining counselling after the incident involving pornographic images viewed by the child on the internet at the home of the father’s friend, Mr W, and his sons. However, the starkest instance of the father falling far short of being able to identify, much less meet, the child’s emotional and intellectual needs, occurred when the child first saw the father following the father’s assault on him by smacking on 17 January 2011 and them both being at the Children’s Court for the hearing of the application by Victoria Police for a family violence order against the father. The mother’s evidence was that the child spoke with the father, and thereafter became upset and said “Daddy said now I am going to gaol and asked me why I said it and now I am going to be in trouble” or words to that effect. Before me, the father took issue with the fact that anyone overheard what he said to the child whilst they were alone in the men’s lavatory at the Children’s Court but he fell short of denying that there had been no conversation at all to the effect that the child’s complaint to the mother about the smacking and bruising had set in train a series of undesirable consequences which reflected adversely on him. The mother had earlier told the family consultant much the same thing which is described in the family report of 30 August 2011 at paragraph 23 as follows:-
According to [the mother], when the matter was heard in the Children’s Court on 2/02/2011, [the father] enticed [the child] to sit with him in the waiting area and told him he was responsible for what was happening that day at Court, that he should not have messaged his mother about being smacked, and that he had made his father out to be unsafe and consequently he could be sent to jail. [The child] has therefore felt guilty and responsible about what has occurred, and is increasingly apprehensive about seeing his father in future, and is reluctant about spending time with his father at present.
[35] See paragraph 51 of these reasons.
I note that the family consultant discussed the child’s reluctance to spend time with the father with the father and reported[36] at paragraph 34 as follows (emphasis added):-
[The father] stated he did not have any problems with [the child] during his weekends [before the assault], and seemed perplexed when asked what difficulties or challenges he might face in the event his application to spend time with [the child] is successful. When advised the question had been asked because of the events in January and because he had not spent time with [the child] over the ensuing months, [the father] repeated that he did not expect any difficulties. He regretted that he had not been able to speak with [the child] or explain anything to him, and said there had been a lot of unnecessary “hoo ha” over the smacking incident. He then asked what [the child] had said during interview and when advised that his son had stated he was not ready to spend time with him yet but expected to do so at some (undetermined) time in the future, [the father] said he would be agreeable to a phasing in of time if this would assist his son.
[36] Family Report dated 30 August 2011.
I am satisfied that the father did speak with the child in such a way that the child felt responsible and bad about having complained of the father’s treatment of him. The father’s attitude to the child in this context was abusive in itself and I am critical of the father in this regard.
I conclude that the mother has discharged her parental responsibilities to the best of her ability and more than adequately. She has prioritised what she perceives to be the child’s needs over her own. Not so the father. I accept the submission of the independent children’s lawyer that the father looks upon these proceedings, and I think parenthood in general, as an apportionment of blame and reward as between himself and the mother rather than in the child focussed way that the child’s best interest require.

The children’s maturity, sex, background and other characteristics[37]

[37] s 60CC(3)(g) Family Law Act 1975(Cth)

I consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and the parents.
I accept that the child is of appropriate maturity for his age. I record that there is no controversy between the parents about the child’s allegiance to the Z Football Club in the AFL competition.

Any family violence involving the children or any member of the children’s family and family violence orders[38]

[38] ss 60CC(3)(j) and (k) Family Law Act (Cth)

As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.
I am satisfied that the child has been exposed to family violence and has been subjected to family violence.
There is currently no intervention or family violence order in place in relation to the mother or the child.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[39]

[39] s 60CC(3)(l) Family Law Act (Cth)

I declined the father’s request for a further family report from Mr M, making only interim orders at this stage and looking at the matter afresh in six months or a year. I accept the opinion of Mr M in his final report dated 22 March 2013, when he stated at paragraph 35:
It is also proposed that a further Family Report may be disadvantageous to [the child] in that it may lead to him forming the (erroneous) view that the court is not listening to him. It is suggested that to interview [the child] again may well constitute a form of ‘systems abuse’ with minimal likelihood of a benefit to him.
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation. Ideally courts should make parenting orders that minimise the prospects of future litigation.
My impression is that the father recognised that he was able to represent himself more than adequately at the final hearing. He was from time to time upset but appeared entirely comfortable with the process. The father indicated that he would make further applications to the court if this determination falls short of what he considers appropriate (and I am confident it will) and that he is prepared to make application after application until he achieves a result which is acceptable. It would be most unfortunate if the father sought to prosecute applications through this court in preference to doing the hard yards which Mr M opines he needs to do on his relationship with the child. Whereas further proceedings might be attractive to the father, absent appealable error, his energies would be best directed to making the child feel good about himself and good about the father than engaging in more court cases.
Further proceedings would be quite daunting for the mother. The mother’s lawyer of long standing represented the mother at the final hearing without fee. Ms Macgregor’s representation of the mother to the extent that it was pro bono is admirable and in the best traditions of our legal profession but it is also untenable into the future.
I will make final orders.
I will grant liberty to the parents to have any future applications listed directly before me for directions if I am available and if they wish to do so. However, it is not my intention to encourage further proceedings.

Any other fact or circumstance the Court thinks relevant[40]

[40] s 60CC(3)(m) Family Law Act (Cth)

There was extended consultation between the parties about the form of orders. I will adopt their suggestions.

Parental responsibility

Section 61DA provides that when making a parenting order[41], I must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for him.
[41] s 64B(2)-(4A) Family Law Act (Cth) defines “a parenting order” and what a parenting order may provide.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[42] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[42] s 61B Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[43] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[44] and to ‘make a genuine effort to come to a joint decision about that issue’.[45] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[43] s 65DAC(2) Family Law Act 1975 (Cth).
[44] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[45] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the child that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[46] or abuse of the child or another child who is a member of the parent’s family;[47]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[48] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[49]
[46] s 61DA(2)(b) Family Law Act 1975 (Cth).
[47] s 61DA(2)(a) Family Law Act 1975 (Cth).
[48] s 61DA(3) Family Law Act 1975 (Cth).
[49] s 61DA(4) Family Law Act 1975 (Cth).
In this case I do not regard equal shared parental responsibility to be practicable or in the child’s best interests. The parents do not communicate constructively. The father has previously failed or neglected to attend family consultant assessments and court hearings to an extent that I have considerable concern that he might elect to ignore matters which do not suit him rather than to engage constructively with the mother. In fact, I have no confidence that the father has any capacity to engage constructively with the mother over issues pertaining to the child or at all.
Taking all of the above considerations into account I am satisfied that it is in the child’s best interests for the mother to have sole parental responsibility and to keep the father informed of what she is considering and decides to do.

Consideration of equal time or substantial and significant time with both parents

By virtue of having previously determined that it is not in the child’s best interests for the parents to have equal shared parental responsibility, it is not necessary for me to consider whether it is in the best interest of the child or reasonably practicable for him to spend equal or substantial and significant time with each of the parents.

Conclusion

I am satisfied that the best determination for the child is one which is consistent with the view which he most recently expressed to the family consultant. That is, for regular but limited time between himself and the father. I understand and take into account that the father seeks a much more extensive involvement in the child’s life but, for the above reasons, I do not consider what the father wants to be consistent with what the child needs to function well emotionally and to grow up in a way in which he will reach his full potential.
For the above reasons, I conclude that the parenting arrangements proposed by the mother and the independent children’s lawyer are consistent with and reflect the child’s best interests and I will order accordingly.

I certify that the preceding one hundred and sixty five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 11 July 2013

[2013] FamCA 541

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation