WHYCLIFFE & RAVINSPOLE

[2015] FamCA 275

FAMILY COURT OF AUSTRALIA

WHYCLIFFE & RAVINSPOLE [2015] FamCA 275

FAMILY LAW – CHILDREN – Best Interests – With whom the child lives – with whom the child spends time – parental responsibility – where the father lives at the Region L – where the mother lives in Suburb N with the child – where the child has not seen the father for over a year – where the father was ordered to spend supervised time with the child – where contact centres withdrew their services due to the father’s behaviour – where the parents do not communicate – where the father has made serious allegations against the Court and others involved in the case –– where the child is at risk of emotional harm in the father’s care – order that the child live with the mother – order that the child spend time with the father supervised by the paternal grandmother on six occasions each year – order that the mother have sole parental responsibility for the child.

Family Law Act 1975 (Cth)

APPLICANT: Mr Whycliffe

RESPONDENT: Ms Ravinspole

INDEPENDENT CHILDREN’S LAWYER: Lindsey Miles

FILE NUMBER: BRC 6939 of 2010

DATE DELIVERED: 17 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 20, 21 and 22 August 2014

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Cameron of Counsel

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr Sayers of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kelly Lawyers

Orders

1. That all previous parenting orders in respect of the child, B born … 2009, (“the child”) be discharged.

2. That the mother shall have sole parental responsibility in respect of the child.

3. That the child shall live with the mother.

4. That the child shall spend time with the father on the last Sunday of every second calendar month commencing on Sunday, 26 April 2015 with all such time to be supervised by the child’s paternal grandmother, Ms H.

5. That on the first two Sundays that the child spends with the father pursuant to paragraph (4) hereof, the paternal grandmother shall collect the child from the mother at 10:00 am at a place to be agreed between the mother and the grandmother in advance in writing or, in default of agreement, in the carpark at the Suburb I Train Station, Suburb I, and the paternal grandmother shall return the child to the mother at the same place she collected him from the mother that morning at 2:30 pm that day.

6. That on the third and fourth Sundays that the child spends with the father pursuant to paragraph (4) hereof, the paternal grandmother shall collect the child from the mother at 10:00 am at a place to be agreed between the mother and the grandmother in advance in writing or, in default of agreement, in the carpark at the Suburb I Train Station, Suburb I, and the paternal grandmother shall return the child to the mother at the same place she collected him from the mother that morning at 4:00 pm that day.

7. That from the fifth Sunday that the child spends with the father pursuant to paragraph (4) hereof, the paternal grandmother shall collect the child from the mother at 9:00 am at a place to be agreed between the mother and the grandmother in advance in writing or, in default of agreement, in the carpark at the Suburb I Train Station, Suburb I, and the paternal grandmother shall return the child to the mother at the same place she collected him from the mother that morning at 5:00 pm that day.

8. That the father shall not accompany the paternal grandmother to the point of collection of the child from his mother and shall not accompany her to the point of return of the child to his mother at either the commencement or conclusion of the child’s time with his father and he shall not come within five hundred metres of the mother at any of those occasions of transition of the child between the mother’s care and the paternal grandmother’s care.

9. That the father shall not, at any time, denigrate the mother to or within the hearing of the child.

10. That the father shall not ask the child at any point in time whether he wants to return to his mother’s care or whether he wants to stay in his father’s care or whether he wants to see more of his father.

11. That the father shall not make any audio or video recordings of the child within the last half hour of the child’s time with him and the father shall not make any audio or video recordings of the child at any time in which the father is questioning the child about his mother, anything that is happening in the mother’s care, or any preference or view the child may have in respect of his living arrangements.

12. That the father shall not communicate with the mother or attempt to communicate with her by telephone, text message or email.

13. That the father shall not knowingly enter within five hundred metres of any place of residence or employment of the mother or within five hundred metres of any place the mother is at from time to time.

14. That the father shall not knowingly enter within five hundred metres of any school at which the child is attending from time to time.

15. That the mother is at liberty to travel overseas with the child and shall provide the father with twenty-one (21) days written notice, through the paternal grandmother, of the intended date of their departure, the country or countries of their intended travel and the date of their expected return to Australia along with copies of their return airline tickets, and the mother shall further provide the father with written notice, through the paternal grandmother, within seven (7) days of having returned to the Commonwealth of Australia with the child of their return.

16. That the mother is permitted to obtain passport renewals for the child without the consent of the father and without requiring the father to execute any such passport renewal applications.

17. (a)      That the father, Mr Whycliffe, be restrained and his servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of B born … 2009 (male), from the Commonwealth of Australia.

    (b)That B born … 2009 (male) be and is hereby restrained from leaving the Commonwealth of Australia except in the company of his mother, Ms Ravinspole.

18. That it is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 11 July 2024.

19. A registrar of this Court’s Brisbane Registry shall provide the paternal grandmother with copies of the following documents for her to read:

    (a)       The affidavit of Mr D filed 28 March 2011;

    (b)       The affidavit of Dr F filed 11 August 2011;

    (c)The affidavit of Associate Professor E filed 10 October 2011;

    (d)       The affidavit of Mr D filed 28 February 2012;

    (e)       The affidavit of Mr J filed 15 August 2014;

    (f)       All affidavits filed by the father at any time in these proceedings to date;

    (g)Exhibit 1 in the proceedings, being the addendum report of Dr K dated 20 November 2013;

    (h)       Reasons for Judgment published this day;

    (i)        A sealed copy of these Orders made this day.

20. That should the father seek counselling or psycho-therapy at any point in the future he is at liberty to provide any such counsellor or therapist with copies of any of the documents referred to in paragraph (19) hereof.

21. That any Application for Contravention filed in this matter be listed for hearing before his Honour Justice Forrest in the first instance.

22. That the Independent Children's Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6939 of 2010

Mr Whycliffe

Applicant

And

Ms Ravinspole

Respondent

REASONS FOR JUDGMENT

1. When a relationship breaks down and there is a child of that relationship, it is in the best interests of that child if its parents can reach agreement about how they parent the child. Typically, the parents of the child know that child better than any other person does, putting them in the optimum position to be able to make decisions that are in the best interests of that child. Difficulties often emerge when, following separation, the parents are unable to communicate with each other, or one or both of the parents act in a way, consciously or even unconsciously, that undermines the child’s relationship with the other parent. These difficulties are generally exacerbated if a parent who is undermining the child’s relationship with the other parent fails to appreciate the impact their actions are having, or are likely to have on their child. B, who is five years old, is a child in the midst of such difficulties.

2. The child was living with his parents in Region L and had just celebrated his very first birthday in 2010 when his mother made the decision that she could not live with the child’s father anymore and left the home. After leaving, she took the child to live with her at a refuge for women escaping family violence. the child’s father quickly filed an application in the Federal Magistrates Court (as the Federal Circuit Court (“FCC”) was then known) seeking parenting orders. A few weeks later, the mother and the father agreed, after intercession by the father’s sister, for the child to spend time with his father for Father’s Day. Contrary to the agreement, the father did not return the child to the mother and retained him in his care until the FCC Judge ordered the child to be returned to live with the mother after hearing evidence from an experienced Family Consultant who interviewed the parents and observed them with the child.

3. The father and his sister, who is sadly now deceased, fell out badly over the father’s decision to retain the child in his care on that occasion. Apparently, she was most unhappy about it. The father’s decision not to listen to his sister and his determination to do things his way was a portent of things to come.

4. The FCC Judge accepted the Family Consultant’s opinion evidence that the one year old child’s principal attachment was with his mother. He made orders that the baby live with his mother and spend time with his father on a regular and frequent basis. The father did not accept the Judge’s decision and, unsurprisingly, difficulties continued to plague the co-parenting relationship.

5. An Independent Children’s Lawyer was appointed and she engaged a psychologist to prepare a family report to assist this family and the Court. That psychologist recommended that the child continue to live with his mother but spend time with his father from Friday evening to Sunday evening each week. He also recommended that the Court appoint a paediatrician to assess the child’s development and provide advice in respect thereof.

6. In March 2011, the father, the mother and the ICL all agreed to orders being made by Judge Howard in accordance with the recommendations of the psychologist and the matter was transferred to this Court.

7. The father’s recorded consent to those orders belies his true feelings about matters at the time. He was very unhappy with the psychologist’s family report, particularly the assessment of the child’s principal attachment being with his mother. He made a complaint to the Australian Health Practitioner Regulation Agency about the psychologist that was assessed by the Agency as lacking in any substance. He began posting written expressions of his thoughts and feelings on the internet. He made numerous notifications of his concerns for the child’s care in the hands of the mother to the Queensland Department responsible for child safety. He made video recordings of the child at and around transitions from the mother’s care to his care and from his care back to the mother’s care. He began what can only be described as a campaign of complaint about the ICL, the Legal Aid Office, the original Family Consultant, the psychologist and the judicial officers involved in the case that has never really ceased.

8. At that early point in the proceedings, the child was assessed by a paediatrician and determined to have a developmental profile mostly within expected age limits, apart from a mild delay in expressive language that the doctor considered could either be maturational or the first signs of an underlying language disorder that might become further evident over time. She did not recommend any specific interventions at that time.

9. A very experienced psychiatrist, engaged by the ICL, then saw both parents later in 2011. He considered the mother had no mental health disorder and a personality within the normal range, with significant personality strengths. In contrast, whilst he considered the father did not have any mental illness, he did consider the father had personality vulnerabilities that probably constitute a personality disorder. The psychiatrist considered the father narcissistic and only able to see things from his own perspective; as being obsessive with a need for control; and as having a paranoid and persecutory stance towards community institutions and government. Significantly, the psychiatrist expressed an opinion that it would be difficult to see, in this particular case, how a shared care arrangement could work in circumstances where the child is so young, the parents do not communicate and the father has such a need for control of the parenting of the child even when the child is in the mother’s care.

10. The psychiatrist concluded with a lament that he feared the father’s personality issues would, over time, result in “progressive Court Orders that would have the effect of reducing his time with the child”.

11. The father did not accept that psychiatrist’s opinion either and began to include him in his campaign of complaint, even alleging that the very experienced doctor, along with many others, was involved in a conspiracy to deprive the father of a meaningful role in the child’s life.

12. Sadly, for all involved, the psychiatrist’s lamented fear came to pass. The matter came before a Judge of this Court in 2012 and after three days of trial it was adjourned with the father ordered to have reportable therapy to assist him to identify and implement appropriate behaviour and strategies around the child’s transitioning between the parents’ care, and to assist the father to better co-parent with the mother. That Judge also restricted the child’s time with the father to supervised time for up to 2 hours each fortnight at a children’s contact centre.

13. By the time the matter came back before me for trial in late August last year, the father had been excluded from several children’s contact centres around Brisbane for his failure to comply with their standards of behaviour and directions. He had also had a serious falling out with the psychologist who he had gone to following the previous Judge’s orders, who he sought to engage to assist him in mediating with the mother and to prepare a report for the Court for him. The fallout included that psychologist giving evidence at the trial before me that did not assist the father’s case at all, adding weight to all the evidence given by other independent experts about the father, his attitudes and his personality.

14. Unfortunately, at the time of the trial, the child had not seen his father, other than on one brief occasion, for nearly a year. The father attributed that all to circumstances totally beyond his control, including what he said was the mother’s anti-social personality disorder and the conspiracy against him. Notwithstanding that, the father asked the Court to make parenting orders that provided for the parents to have equal shared parental responsibility for the child and for the child to live week about with each parent. His answer to the proposition that such a regime would be difficult having regard to the fact that he lives in Region L and the mother  lives at Suburb N, north of Brisbane, was simply that the Court should order the mother to move back to the Region L. His answer to the proposition that leaving the child for 50 per cent of the time with his mother could hardly be in his best interests if the mother’s parenting capacities are as deficient as the father asked the Court to accept was simply that an equal time care arrangement between separated parents was clearly in a child’s best interests and fair to each parent.

15. The father told the Court in no uncertain terms that he would accept nothing less than equal shared parental responsibility and an equal time care arrangement for the child and that if he did not get that, he would not rest until he did, foreshadowing appeals all the way to the High Court as well as further political activism until he achieved the only outcome that he would accept. I told the father, of course, that such is his right.

16. My judgment has been reserved for eight months. That is because of the many other equally difficult cases that I have been required to hear and to determine in the months following the trial. I regret any distress or anxiety the delay may have caused the parties in this case; additional to any they must already be experiencing being involved in proceedings in this Court about their child.

17. Litigation in this Court certainly does not always result in outcomes that parties hope for. In parenting cases, seldom is the outcome one that satisfies even one parent completely. That is the nature of parents putting decision making about their parenting in the hands of a Court. In this case, I have determined not to make parenting orders conferring parental responsibility equally on each of the parents and not to provide for the parents to share equally in the child’s care. All of the evidence in this case points away from those outcomes, demanded by the father, being in the child’s best interests. Instead, by my orders, the child will continue to live with his mother. She will have sole parental responsibility for the child and he will spend limited time with his father – one day every second month – as long as the child’s paternal grandmother is able to collect him and return him to his mother from the designated changeover location and is able to stay with him and his father during all of the time the child is in his father’s care.

18. I accept that the father loves the child dearly and desperately wants to be a parent to him, but in my determination, the arrangements for the child’s time with his father provided for by this Court’s orders should not change until the child’s father demonstrates that he has gained insight into the degree to which he is responsible for the restrictions placed on his involvement in the child’s life. All the experts who gave evidence at the trial in front of the father said that would require lengthy psycho-therapy, over a period of years, with a properly qualified therapist of the father’s own selection. The father heard all of that evidence. Whether he acts on it or chooses to continue to blame the Court, the experts, the lawyers, the Legal Aid Office, the mother and all of the others he blames is now a matter for him. He will not be ordered to undertake such therapy.

Some further relevant information

1. The child’s parents met through the internet in 2006. The mother is a Country M woman and was living in Country M at the time. She was a student, studying in Country M towards an undergraduate degree. The father is an Australian man. He was self-employed as a tradesman and was living here. They communicated via the media of computer and telephone for some months before arranging to meet in person and to holiday together in Country M. Upon the father’s return to Australia, the couple agreed to marry. They also agreed that the mother would move to Australia to live here with the father. There was no evidence that the father had considered moving to Country M. The mother finished her university studies in Country M in March 2007 and they commenced cohabitation in Region L in September 2007 and married in 2008.

1. The mother fell pregnant with the child later in 2008. The father said he was surprised by the news as he did not think she would be able to have children, being aware that she had previously had one ovary surgically removed. Indeed, he said that apart from having talked about the mother’s ovarian surgery they had never much spoken about having children before they married or before the pregnancy. Nevertheless, they were both understandably very happy when the child was born.

THE PARENTS’ ATTITUDES TOWARDS EACH OTHER

1. Unfortunately, their relationship very quickly deteriorated after the child was born. They each give quite contrasting accounts of the reasons for that. The father asserts the mother was lazy and uninterested in parenting the child and that after he came home from work he would be the parent doing all of the housework and all of the caring for the baby, whilst the mother lay around. The father asserts that the baby’s principal attachment was with him at separation and still would be four years later at the time of the trial. The mother asserts the opposite, that when the father came home from work he would just sit down in front of the television and show little interest in the housework or caring for the baby. She says he would simply tell her that it was a mother’s job to look after her child. She asserts the father was single minded, controlling and uncompromising when it came to decision making around the home and in respect of managing and spending their money. 

2. The mother asserts that the father did not appear to respect her during their marriage. She says he would say to her “you are very lazy”, “you are a bad mother”, “you are useless”, “you did not make any money”, “I am the boss, you just do as I say”. She says he would abuse her and call her “dumbass” and “retard” and tell her to “go back to [Country M]”. The father denies that he would say these things. 

3. All of the evidence that I read and heard in the case, particularly the evidence the father gave both in his affidavits and orally, satisfies me that the mother’s evidence about this is more likely to be true than the father’s denials. The father struck me as a single minded person with very little capacity for compromise. He maintained unwavering commitment to the belief that the child is principally attached to him and not his mother. He argued that his opinion was supported by video footage that he put into evidence of the child at transitions. After my own consideration of the video evidence, I failed to see how the videos demonstrated principal attachment to the father. Independent experts who observed the child with both his parents opined that the child’s principal attachment was clearly with his mother. The father said they were wrong. I do not consider that they were.

4. The father’s stance on this issue and others assisted me in forming the view that the mother’s evidence about the difficulties in their marriage is more likely to be true than the father’s evidence.

5. I read evidence of the way in which the father expresses himself and just how he refers to people he is unhappy with. Some of it was disrespectful, disgusting, intimidatory and threatening. I am satisfied the mother’s evidence about the way the father spoke to her during the marriage is true. I prefer the mother as a more accurate historian on these matters than the father.

6. The father surprised me with evidence he gave at the trial that he was only really attracted to the mother as she was studying when they met, as he, too, was interested in the subject she was studying and they had something to talk about. He denied that there was anything else at all about the mother that attracted him to her when he determined to ask her to marry him and move to Australia to live with him. He actually denied ever turning his mind to consideration of her potential parenting capacity, something he now asserts she does not have at all.  His evidence demonstrated he holds little respect for the mother and I do not accept that is simply a post-separation phenomenon. Throughout these proceedings the father demonstrated very little respect for any one or any institution.

7. On the other hand, the mother, who was criticised during the trial by the father and by her former mother-in-law for leaving the father within a few weeks of obtaining permanent residency status in Australia, demonstrated, I thought, some respect for the father. She is recorded by the psychiatrist as saying she did love the father and expressing regret that the relationship had not endured, in fact, accepting some responsibility for its failure. On the other hand, the father is recorded by the psychiatrist as saying that he was not upset by the breakdown of the relationship.

8. Although the mother initially withheld the baby from the father for six weeks after separation, that followed the circumstances surrounding the separation from him. When the mother first left, the father refused to let her take the child with her as she was leaving and police who were called would not let her take the child with her because there were no Court orders in place at that time. the child came into the mother’s care after that by her returning to the home and the father taking her back in, whereupon she waited until the father was out one day and again left, this time taking the child with her to the women’s refuge. Eventually, as already observed, the mother agreed to the child spending time with his father and, on the first occasion that occurred, he did not return the child as he agreed he would. I am satisfied that the mother’s withholding the child from the father for the first period of weeks after separation was out of justified concern that her care of the child would be compromised by the father rather than lack of respect for the father’s position in the child’s life.

9. Just prior to the matter coming before me for trial in August last year, at a time when the father had not had the child spend any time with him for around a year, the ICL commissioned a further family report from a consultant social worker. The father obstinately and abusively refused to attend any interview with that social worker. In the process of informing of his refusal, he referred to his desire to “send the mother to prison”. The social worker nevertheless saw and interviewed the mother and observed her with the child. He reported his observations of the child as a happy, robust and active little boy. He observed the child being affectionate to his mother and her responding appropriately to him. He assessed the child as having a strong attachment to his mother.

10. Significantly, in my view, the social worker assessed the mother as being “positive about the child’s feelings for his father”. The mother told the social worker that the child loves his father and asks for him. She related a story of when the child has some good cookies he tells her that he wants to save one for his father and have one himself. The social worker expressed the opinion that the mother presented appropriately and was expressing a desire to reinforce a positive perception of the child’s view of his father, despite her own personal fear of the father. At trial, the social worker highlighted the fact that given the child had moved away from his father at one year of age, and had not seen much of his father outside of contact centres from 2012 to 2013 and not at all since then that for him to have any form of memory of his father, let alone a positive one such as that reflected in the cookie story, reflects well on the mother who must, if her story about that is to be believed, be keeping that memory alive for the child.

11. I have no reason to doubt that the mother told the social worker the cookie story or that she was actually relating a true story. There is indeed merit, in my view, in what the social worker said about that.

THE FATHER’S COMPLAINTS ABOUT THE MOTHER AND THEIR CURRENT CIRCUMSTANCES

1. The father complained that the mother was lazy and had no work ethic. He attributed this to her family background, saying that in Country M her family just sat around and did nothing. Part of his case was that she marked him for marriage and to father her child so she could get access to permanent residency in Australia and access to this country’s social welfare system. He complained that she was living in public housing in Suburb N, asserting that was a most undesirable place for the child to be brought up. He asserted that she should have obtained employment by now and should have concluded more study to ensure her Country M qualifications were recognised here.

2. He complained about the diet she has the child on, her management of his health and her supervision of him. He complained that she actually physically abuses the child. He alleged that the child had been found wandering the street unsupervised on several occasions, just being ignored by the mother.

3. The evidence certainly confirms that on one occasion the child was found in the street by a neighbour without the mother supervising him and was returned home to the mother. The evidence also confirms though that the incident was investigated by child safety officers of the Queensland department who were satisfied that no further departmental intervention was necessary. The mother gave evidence that the child had a little friend with him at their home playing one day and that she took a moment to lie down for a rest and inadvertently fell asleep. She said the back door was apparently not locked as she thought it was and that the two boys took themselves outside and out onto the street where they were spotted by the neighbour and returned home. She said that it only happened once and that she took steps to ensure that all of the locks on the doors were working after that and it has not happened again. I have no reason not to accept her evidence about this. There is no evidence to contradict it other than the father’s unsourced assertion.

4. As to physical abuse, the father clearly asserted that he had seen bruising on the child that he attributed to physical abuse of the child by the mother. In fact, one day at one of the contact centres when the child was spending supervised time with the father, the father saw some bruising on the child’s leg. He immediately demanded the centre staff call the police, blaming the mother for physically abusing the child. They did not call the police and the father became enraged and abusive. He went outside and called the police himself. Members of the staff at the centre were apparently so concerned about his behaviour that they initiated emergency lockdown procedures. There was no evidence as to how that matter was resolved but there was also no evidence that the mother was considered by authorities to have been responsible for physically abusing the child. In fact, there was no other evidence before me about this issue but for the father’s assertions of his belief. I am not satisfied, on the balance of probabilities, that there is any substance to these allegations.

5. The evidence also shows the father holding the view that the mother has an anti-social personality disorder and that if the Court did not make orders such as those sought by the father that leaving the child in the mother’s full-time care would be mentally and emotionally damaging to the child.

6. Having read and heard the evidence that I did, I was left struggling to try and understand the basis for the father’s assertion that the mother’s full-time care of the child is mentally and emotionally damaging to the child. There was absolutely no evidence to support the father’s opinion that the mother has an anti-social personality disorder. The psychiatrist’s opinion on that issue, which I have already referred to, was clear and firm. I accept his opinion. Even the psychologist the father saw did not share the father’s opinion on this point, such that the father actually tried, albeit unsuccessfully, to get that psychologist to reconsider the views he expressed about it in a draft report he had shown the father. The psychologist’s refusal to amend his draft in this respect was, I am satisfied, a contributing factor in the breakdown of the relationship between the psychologist and the father.

7. All of the evidence satisfied me that the mother’s level of physical and emotional care for the child is such that the Court can comfortably leave him in her care on a full-time basis and have an expectation that he will be looked after appropriately. The mother’s financial position is not great, of course, thus explaining her need to use public housing. But her position is not aided by the fact that the child support she receives from the father is relatively limited. The father attributes that to the fact that he has been on social security benefits himself for the last few years whilst the work he has been able to get has been severely limited by his own physical incapacity due to a shoulder injury he has sustained. There was little evidence about that and certainly no medical evidence to support the assertions. However, the mother did say that the father’s working capacity was impacted late in the marriage by what he told her was a shoulder injury.

8. I must say though that after hearing the father’s evidence and the evidence of his own mother, I was left a little concerned about the veracity of the father’s evidence about his incapacity for work and left thinking that he is probably working more regularly and frequently than he was prepared to admit.

9. As to the possibility of the mother working, the mother gave evidence that she certainly intends seeking work in the future and did not intend just to continue to live by social security benefits. I considered her to be genuine about that. the child was due to start kindergarten this year and this change will give the mother some opportunity to find employment. I expect she will look for some.

10. In respect of accommodation, the father is a touch more fortunate than is the mother. He lives at O Town in an apartment purchased for him by his own mother not long before the mother and the father separated. That, and the fact that the mother left there at separation and resettled in Suburb N, and his expressed desire to send the child to a Region L private school, perhaps explain the father’s position that the mother should be ordered to move back to live at the Region L. However, he also made it clear that it is his opinion that O Town is a far better place to bring up a child than Suburb N.

11. When it was suggested to the father that some people might not necessarily share that opinion about which place is a better place to bring up a child, the father expressed apparent surprise and an inability to understand how that could be the case. That was, I am satisfied, consistent with the personality traits with which he had been assessed by the psychiatrist and the psychologist and which I considered he displayed throughout the proceedings. 

12. The mother expressed no desire or intention to move back to the Region L and I do not consider it at all appropriate to make any orders prefaced or conditioned around her doing so. Notably, the father did not seek orders for the child to live full-time with him, preferring to maintain the stance that equal shared care is in the child’s best interests, notwithstanding all of his complaints about the mother’s parenting. This supports a view, I consider,  that his position may be more an ideological or politically based one rather than one that is truly child focused. It would seem that he is prepared to forgive the mother all of what he considers to be her unacceptable parenting as long as he has the child with him for an equal amount of time as she does. At the same time, his position raises real doubts about the honesty of the beliefs he says he holds about the mother’s alleged poor parenting capacity.

13. I hasten to say that I would not have considered it in the child’s best interests to go to live with his father full-time in O Town in all the circumstances, even if the father had asked for that. Now, having regard to the mother’s circumstances of not being willing or even able to move back to the Region L, I cannot begin to even think how equal shared care, now that the child is at school, could be reasonably practicable with a parent living in O Town and the other parent living in Suburb N. However, were it the case that the mother still lived in Region L, I am satisfied that the father’s attitudes to the mother and to the way in which shared parenting is to be conducted, as patently demonstrated by him over the years of these proceedings and in his conduct towards the mother during their marriage, would still rule out equal shared care as being in the child’s best interests.

14. Towards the end of my consideration of this matter, I was left concluding that all that is left to decide in this case is whether or not it is in the child’s best interests to be spending any time with his father at all and, if so, in what circumstances should that take place.

SUBMISSIONS MADE ABOUT THAT

1. Counsel for the mother made some very powerful submissions as to why there should be an order that the child spends no time with his father. At the same time, counsel for the ICL made equally powerful submissions in favour of orders that the child should spend some time with his father, albeit fairly restricted, including by the requirement that it be supervised by the paternal grandmother.

2. Counsel for the mother grounded his submissions in the proposition that any time the child spends with his father presents an unacceptable risk of emotional harm to the child whilst ever the father continues to hold the attitudes that he does and lacks the insight that I accept he lacks. Counsel for the ICL pointed out that there is no evidence that the child is at risk of physical harm if he spends time with his father. He observed that the risk of harm that the child is likely to be exposed to if he spends time with the father is the risk of emotional harm through the impact of the father’s personality and his attitude to the child’s mother. I accept that as an appropriate observation.

3. Further on the point, counsel for the ICL submitted that, whilst it is a finely balanced matter, the Court would not be persuaded that the risk to the child of emotional harm by exposure to the father is an unacceptable risk, if ameliorated by the presence of the father’s mother and fairly tightly restricted in frequency and duration. Counsel went as far as submitting that orders for the child to spend some time with his father would, on the one hand, permit and facilitate a relationship between the child and his father, as well as the paternal grandmother, in circumstances where the child’s thoughts and memories of his father have been positively kept alive by his mother, thus allowing the child to further develop and maintain a relationship without the risk of false idealisation of his father. At the same time, counsel submitted, that the Court might, on the other hand, consider that the father appeared to be intent on promoting himself as a victim of a broad conspiracy involving the Courts, the Legal Aid Office, the independent experts, the mother, her lawyers, and the ICL, and that to make an order that the child spend no time with him would somehow serve his purposes in this regard.

4. Ultimately, I consider that there is merit in the submissions of the ICL as to the question of risk and as to the benefit for the child of spending some time with his father on a regular basis. On the other point, I am not convinced that much weight at all should be given to the notion of denying a parent the opportunity to promote himself as a victim of a broad conspiracy when determining the proper orders to make in the best interests of a child. It is for others reading these reasons for judgment to consider whether the father has been a victim of an enormous conspiracy or is responsible for his own actions that have, at least in my judgment, brought him to the place he currently finds himself in.

1. Just before setting out my reasons for making the orders that I do in respect of the child spending time with his father, I shall just set out, briefly, my understanding of the principles of law by which parenting disputes such as this one are to be determined.

THE APPLICABLE PRINCIPLES OF LAW

1. Parenting disputes in this Court are determined according to law and not pursuant to some arbitrary whim of some unaccountable person. The father made much of his belief that injustice must be stood against where ever it is encountered. That is an admirable belief. Maintenance of the rule of law, administered in open, transparent and accountable courts and tribunals is an essential part of that fight against injustice.  In the determination of this dispute between two residents of this country about their child, the provisions of the Family Law Act 1975 (Cth) (“FLA”) apply. Pursuant to those statutory provisions, this Court is empowered and obligated to make such parenting orders as the Court thinks “proper”. In doing so, the Court must regard the best interests of the subject child as the paramount consideration.

2. In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm. Those matters also include a long list of other matters including one as sweepingly broad as “any other fact or circumstance that the court thinks is relevant”.

   [1] That list is set out in s 60CC of the FLA

3. Additionally, in determining the proper parenting orders to make, the Court should also be mindful of the Objects and the Principles underlying those Objects that are expressly set out at the commencement of the Part of the FLA within which the power to make parenting orders is conferred on the Court. However, it is to be remembered, those Objects and Principles are ultimately subordinate to the obligation to make orders that are in the best interests of the subject child having regard to the matters set out within s 60CC of the FLA in so far as they are relevant.

4. Of course, the actual weight to be attached to the various components of all the applicable statutory provisions will vary from case to case having regard to the evidence and the Court’s factual findings.  If it is necessary to make orders that properly protect a child from risks of harm that are determined to be unacceptable, then of course, the amount of time that a child might otherwise spend with a parent who it is determined presents that unacceptable risk cannot go unfettered. 

5. Parenting proceedings in this Court are not about enforcement of parental rights. Sadly, that is sometimes forgotten. Parents who seek parenting orders from the Court must appreciate that the Court is statutorily obligated to independently determine what orders it considers meet the child’s best interests as opposed to simply rubber stamping a view that the parents might have of what their rights are or, indeed, the parent’s view of what is in the child’s best interests.

6. Importantly, the process of determining what are “proper” orders to make is also subject to the application of a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] Even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, that the presumption should not apply.

   [2]          Section 61DA(1) and s 61DA(2) of the FLA

7. “Parental responsibility” is defined in s 61B of the FLA. It means, in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. It seems to matter most when it comes to decisions about what are defined in the Act as “major long-term issues” in relation to a child. That term is defined in s 4 to mean “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 the child’s education (eg what school he goes to), the child’s religious and cultural upbringing (eg should he be brought up as a Christian or without taught adherence to a particular faith), the child’s health (eg should he have elective surgery to have his tonsils removed or not), and the child’s name.

PARENTAL RESPONSIBILITY IN THIS CASE

1. I am satisfied that the presumption in favour of equal shared parental responsibility in this case is rebutted. It is rebutted by the factual findings that the father was abusive, at least verbally, to the mother during their marriage, which, in my view is covered by the relevant definition of “family violence” within the FLA. Even if I am wrong about that, I am more than satisfied on the evidence, including the independent experts’ evidence and the evidence of the father and the mother, that an order conferring equal shared parental responsibility on the two parents is not in the child’s best interests.

2. It was quite clear that the parents in this case have an absolute inability to communicate reasonably with each other about their child. In fact, the father pointed out that he chooses not to communicate at all with the mother to avoid certain conflict. Any order conferring equal shared parental responsibility upon them would bring into operation the provisions of s 65DAC of the FLA. That provision requires any decision about a major long-term issue in relation to the child to be made jointly by the parents after consultation with each other and also requires genuine effort to be made to come to that joint decision. There is no default provision if the parents cannot make the decision jointly, even after genuine effort. If the decision cannot be made jointly, neither parent can make it unilaterally.

3. I have said many times before that I regard it as difficult to see how, when parents themselves concede that they cannot communicate reasonably about their child, it could be in the child’s best interests to require decisions about major long-term issues to be jointly made by them or not made at all, except by the Court. As such, being quite satisfied that the child’s mother has the capacity to make appropriate decisions in the exercise of parental responsibility for the child after careful, child focused consideration, even having consideration as to what the father might have liked to be decided, I consider that an order giving the mother sole parental responsibility for the child is a proper order to make in the child’s best interests. Such an order will be made.

THE TIME the child IS TO SPEND WITH HIS FATHER

1. I am satisfied that it is in the child’s best interests to see his father. His father loves him and cares about him. His father wants to be a good father to him and to help raise him to be a good person. As counsel for the ICL submitted, there is no evidence that the father presents an unacceptable risk of physical harm to the child. I do not consider that he does.  

2. The evidence supports findings that the child’s memories and thoughts about his father have been kept positively alive in his mind by his mother. On balance, I consider it is in the child’s best interests to reacquaint himself with his father again and to get to know him and have a father and son relationship with him as he grows. It is, I find, in the child’s best interests to be able to form his own views, based on his own experiences with his father, of the man that his father actually is, with all his good qualities and his faults, rather than risking the child developing a false belief system about his father as he grows and matures.

3. That said, I am nevertheless quite satisfied that whilst ever the father maintains the attitudes towards the mother and the lack of insight as to the consequences of his own behaviour that he currently displays that it is in the child’s best interests for his time with the father to be spent in supervised company. I do not consider that the father, unsupervised, is likely to be able to restrain himself from denigrating the child’s mother or continuing to seek to undermine the child’s relationship with his mother with a view to trying get the child to live with him. Even though I expect that if the father did continue that behaviour it would be likely to drive the child from him, emotionally, I consider that such behaviour, unchecked, would not be in the child’s best interests and would be quite emotionally harmful for him. If the child is driven from the father, emotionally, by the father’s own actions, that, too, is not in the child’s best interests.

4. Of course though, as the social worker identified, and as the evidence incontrovertibly establishes, the father will not accept supervision at a children’s contact centre. Further, I am satisfied that he will not accept supervision from any independent third person. For the mother, it might thus be said that must then be the end of it. However, upon careful reflection I do not consider that it is.

5. The father’s mother gave evidence in support of her son, both in affidavit form and orally, under cross-examination. She seemed to me a relatively strong-minded independent woman in her own right, who raised her own two children mostly as a single mother after separation from their father when they were little. In that regard, I am satisfied that she would have some appreciation of the circumstances the mother of her grandson finds herself in, notwithstanding the fact that she was critical of the mother for leaving her son after obtaining permanent residency in Australia.

6. The paternal grandmother also struck me as a woman who dearly loved her little grandson, who enjoyed every minute that she got to spend with him, was prepared to sacrifice much for him (such as the offer to pay private school fees for him) and dreadfully missed having him in her life. I was favourably impressed that she would not wish to see any harm come to her grandson, either physically or emotionally, and accepted her sincerity when she said, under oath, that she would intervene to protect her grandson if necessary in any circumstances.

7. Of particular significance, in my view, was the revelation by the paternal grandmother that she had not read the reports of the independent experts in this case and was not aware of the contents of those reports. She said that those reports were not given to her. She also said that she had not read the affidavits that her son had filed and relied upon in the proceedings.

8. It seems, therefore, that she was not as aware of all of the issues surrounding her son and his behaviour and the professional assessment of his behaviour over the last several years as the Court was. I expect the father probably did not want her to know all of that and did not want his mother to see what sort of things he wrote about others. This fact suggests to me that the father does not necessarily believe that he would be able to convince his mother that all of the opinions expressed about him are wrong and without any foundation, or that all of the views he has expressed about others are correct.

9. The paternal grandmother did give evidence that she had told her son that he was going about this matter in the wrong way but was seemingly unsurprised that he did not act on her advice. She went on, though, to quite vehemently assure the Court that she was a woman who would ensure that the Court’s orders were followed as far as that was within her power. She said that she would get involved and notify the mother of any problems, even if her son asked her not to. She asserted she is not bullied by her son and I saw no evidence that causes me to find to the contrary.

10. Considering all these matters, I am satisfied that the time that the child shall spend with his father pursuant to the Court’s orders is appropriately supervised by the paternal grandmother. I expect that after the paternal grandmother is provided with all of the father’s affidavits and the reports of the experts in the case and these reasons for judgment and has carefully read them all, she will have a much deeper appreciation of the reasons why all of her son’s time with her grandson is required to be supervised by her. I also expect that she will have a greater appreciation of the reasons why the father is not to be permitted to denigrate and undermine the mother when the child is in their company and I consider that she will prevent him from doing that or take appropriate steps to protect her grandson if the father does.

11. By requiring the child’s time with his father to be supervised by the paternal grandmother, the child will, at the same time, be able to maintain and further develop his relationship with his grandmother. I conclude that is in his interests.

12. I do not consider though that the child should be spending any more than day time with his father and paternal grandmother at this point in time. He is only five years old and has not spent lengthy periods of time with his father now since he was two years old. Those matters and his father’s attitudes and lack of insight cause me to take a cautious approach to the determination of the amount of time that he spends with his father and grandmother. I am also of the view that it is not appropriate to impose the supervisory obligation on the paternal grandmother for longer than a day, even if she was prepared to take it on.

13. Having regard to the fact that so many activities that are arranged for children take place on a Saturday and that Sundays are generally regarded as more recreational, I will order that the time the child spends with his father and his grandmother shall be on a Sunday.

14. Counsel for the ICL submitted that such visits should take place on four occasions for a year before unsupervised time with the father takes place. With respect, I am not persuaded that is the most appropriate course. I consider that a visit every two months is more appropriate, thus six times each year. This, in my view, will appropriately facilitate the reestablishment and maintenance of a relationship between the child and his father and, at the same time, between the child and his grandmother whilst providing the appropriate respite for the child between visits where he possibly could still be subjected to inappropriate emotional pressure from his father in respect of his parental relationships. Change to unsupervised time should only come with demonstrated attitudinal change by the father.

15. The paternal grandmother lives in Suburb P. I expect that is not much short of halfway between Suburb N and O Town. Given the evidence about difficulties that have happened at transitions of the child between the parents, I am also of the view that the child’s best interests are served by having the paternal grandmother collect the child from the mother at the start of the time that the child is to spend with the father and her and for her to return him to his mother’s care at the end of that time. I also consider that she should be unaccompanied by the father for that collection and return.  I expect that will reduce the likelihood of conflict between the parents and I do not expect conflict between the two women. 

16. I do not consider it appropriate to impose the burden of undertaking all of the travel on the paternal grandmother though and consider a handover at a location that the mother has to travel to as well to be appropriate.

17. The arrangements that the father and the paternal grandmother make between themselves as to where the child’s supervised time with his father takes place is of course a matter for them. My orders will be framed with an understanding that such time may be spent at the paternal grandmother’s Suburb P home, the father’s Region L home, a combination of both, or on appropriate outings as a family group. There is to be no mistake though, the paternal grandmother is required to be present around the child and his father at all times during these days.

18. The Court’s orders will contain injunctions restraining the father from going within five hundred metres of the mother or any place of residence or employment of the mother or any school that the child is attending. I am satisfied that such restraint is necessary so that conflict between the parents and between the father and teachers and staff at the child’s school is prevented, so that the child is not exposed to any such conflict.

19. It is appropriate that the father be restrained from denigrating the mother to or within the hearing of the child. He shall also be restrained from questioning the child as to whether he wants to return to his mother’s care, whether he wants to stay in his father’s care or whether he wants to see more of his father. The evidence is that the father has done that sort of questioning in the past in such a way that has put inappropriate emotional pressure on the little boy. He shall not do it when the child is in his care in the future. Similarly, he shall be restrained from videoing or audio recording the child around the time he is to return to his mother’s care as he has done in the past as an evidence gathering exercise to try and prove the argument that the child is principally attached to him and not the mother. He shall also be restrained from recording any questioning of the child at any time the child is with him.

20. The father told the Court at the end of the trial that he would enjoy whatever time the Court determined the child should spend with him although he would not just accept it and would still appeal if it was less than what he was asking for. Having heard that, the Court expects that he will spend time with the child as provided for in the orders, that he will abide by the orders in all respects pending the determination of any appeal he feels compelled to file and that he will listen to any advice his mother might give him along the way.

21. It is to be further hoped that he will, if he has not already, seek out a suitably qualified therapist and begin therapy to assist him to gain insight and become an even better parent. From my perspective, at least, I consider it difficult to foresee any significant change to the orders that I have made in respect of the child’s time with his father, unless and until the father demonstrates a change of attitude towards the mother and an acquisition of insight into what has brought him to this point.

22. The mother sought orders that she be at liberty to travel overseas with the child. I consider this appropriate having regard to the fact that her family continue to live in Country M and her, no doubt, natural desire to take the child to visit them from time to time. I am satisfied that the mother will return the child to Australia after each such visit and have no cause to consider her an unacceptable flight risk.

23. I will include in the orders some obligation on the mother to inform the father, through the paternal grandmother, in advance of the details of any such travel plans as well as notice upon their return, so that the father is aware of the travel and reassured as to the child’s return.

24. The orders will, though, restrain the father from taking the child from the country and require the child’s name to be kept on the Airport Watch List as a protective measure in this regard. The father’s position throughout the conduct of this matter, causes me to be satisfied that such restraint is necessary to prevent the child being secretly removed from the mother’s care by the father.

25. Having presided over the trial in this matter, I consider it also appropriate to make an order that any contravention application filed by either the mother or the father in this matter in the future, be listed, if practicable, before me for hearing.

1. I will also discharge the ICL, considering the child to still be too young for the ICL to be involved in any process of informing the child of the outcome of these proceedings. I expect the mother will appropriately inform the child that he will be going to see his father and grandmother again and will do her best to help him look forward to those visits.

2. I make the orders set out at the commencement of these reasons.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 April 2015.

Associate: 

Date:  17 April 2015