Winter and Klemson

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINTER & KLEMSON

[2014] FCCA 1742

Catchwords:
FAMILY LAW – Children – parenting orders – poor co-parenting relationship – family violence alleged – child refusing to spend time with father – mother opposed to child resuming any relationship with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA

Goode & Goode [2006] FamCA 1346

Applicant:

MR WINTER

Respondent:

MS KLEMSON

File Number:

ADC 3502 of 2012

Judgment of:

Judge Kelly

Hearing dates:

14, 15, 16 and 17 April 2014 and

4 June 2014

Date of Last Submission:

4 June 2014

Delivered at:

Adelaide

Delivered on:

8 August 2014

REPRESENTATION

Counsel for the Applicant:

Ms A Horvat

Solicitors for the Applicant:

Nelson & Co

Counsel for the Respondent:

Mr D Childs

Solicitors for the Respondent:

Vicki Lehmann & Associates

Counsel for the Independent Children's Lawyer:

Ms D Fuda

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of SA

ORDERS

The child X born on (omitted) 2006 live with the mother who shall have sole parental responsibility for the child’s care, welfare and development.
Prior to making any decision to change the child X’s school enrolment the mother shall:
(a)notify the father by email of the proposed change and the reasons why she considers such a change to be in the child’s best interests;
(b)invite the father to indicate his views by return email to the email address identified by her, such response to be provided by the father within seven (7) days;
(c)consider the father’s response in accordance with the child’s overall best interests prior to making any final decision; and
(d)upon reaching a final decision, advise the father by email within a further seven (7) days thereafter;
Within 28 days the mother do all things necessary to arrange for the child X to commence counselling with a psychologist, such counselling to address any issues that may arise for X regarding her relationship with her father or any other issues that the psychologist considers appropriate.
Within 28 days, the mother notify the father as to the name and contact details of the child’s treating psychologist.
The mother ensure that X attend all appointments as recommended by the child’s psychologist until such time as the psychologist considers X no longer requires counselling support.
In the event that X does not attend an appointment with the psychologist for any reason, the mother shall contact the child’s psychologist within 48 hours to reschedule the appointment.
Each parent is at liberty to communicate with the child’s psychologist and this Order shall be taken as authority from each parent for the child’s psychologist to contact and communicate with each parent as the psychologist may consider necessary or appropriate.
In the event the child’s psychologist recommends that it would be in X’s best interests to resume spending time with or otherwise communicating with her father, then each party shall act upon and implement the recommendations from the child’s psychologist with respect to the reunification process between X and the father.
The mother attend upon a psychologist or counsellor to address issues arising for her from her relationship with the father, the relationship between the child X and the father and any other issues that may arise, such counselling to continue until such time as recommended by the mother’s psychologist or counsellor.
In the event the child’s psychologist recommends that X re‑establish a relationship with the father, then the father shall participate in such further counselling as may be recommended by the child’s psychologist.
Each party is restrained from:
(a)abusing, criticising or denigrating the other parent in the presence of X and from allowing any other person to do so;
(b)from abusing, assaulting or physically disciplining the child X;
(c)attending at each other’s residential address or place of study or employment unless specifically invited to do so in writing.
The father is at liberty to send cards, photographs and gifts to X on one occasion each calendar month, such items to be forwarded to the mother’s nominated postal address.
The mother ensure that all such correspondence and gifts are provided to X as soon as they are received.
The father notify the mother of his nominated postal and email address within fourteen (14) days and do advise her of any change to either address within seven (7) days.
The mother notify the father of her nominated postal address within 14 days and do advise him of any change to her nominated postal address within seven (7) days.
The father is at liberty to obtain all school reports, photographs, newsletters, attendance records and other information regarding X’s progress at school, provided that he meet any costs associated with obtaining this information from the child’s school.
The mother keep the father informed as to the child’s general progress and development including information in relation to her health, educational progress, sporting or extra-curricular activities, school events or excursions and any other significant events in the child’s life by way of a written summary to be provided to the father by letter or email on four (4) occasions each year in April, July, September and December, commencing September 2014.
The child X born on (omitted) 2006 is restrained from leaving the Commonwealth of Australia until she attains the age of 18 years.
Each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child X born on (omitted) 2006 from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until the child attains the age of 18 years.
This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing of both parties (authenticated as prescribed in accordance with Regulation 12 of the Family Law Regulations).
The appointment of the Independent Children’s Lawyer is discharged.
All applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3502 of 2012

MR WINTER

Applicant

And

MS KLEMSON

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the long term parenting arrangements for the child X born (omitted) 2006. X presently lives with her mother and has spent no regular time with her father since her parents separated in September 2012. Attempts at supervised time through a Children’s Contact Service were largely unsuccessful. Both parents now propose that X live in their primary care.

Background

Mr Winter and Ms Klemson met on-line in early 2004, while the mother was living in (country omitted). The father travelled to (country omitted) where the parties then married on (omitted) 2004. The father returned to Australia and the mother emigrated from (country omitted) in February 2005.
At the start of the relationship the father worked with a company called (omitted) before re-training as a (omitted) and commencing work in that field on a “four days on/four days off” roster. The father works a day shift from 7.00am until 7.00pm for the first two days, followed by a night shift from 7.00pm until 7.00am on the next two days before commencing his four days rostered off.
X was born on (omitted) 2006. The mother took on the role of primary caregiver for X but both parents were involved in her care prior to their separation.
The paternal grandmother played a significant role in the parties’ family life. She was a regular visitor to their home and the family often visited her home as well, particularly on those nights when the father was working night shifts.
The parties each hold a very different memory of their married life together. The mother alleges that the father and paternal grandmother were violent and aggressive towards her and also to X, allegations which the father and paternal grandmother deny absolutely. In turn, the father alleges that the mother was physically and verbally abusive towards him and his mother. He further alleges that the mother’s behaviour extended towards X in the form of unnecessarily harsh discipline and abuse. The paternal grandmother supports the father’s allegations, all of which are denied by the mother.
The only common ground between the parties is that they both acknowledge that their relationship was unhappy and was marked by regular arguments and verbal conflict. It would seem that these verbal arguments deteriorated to physical altercations at times. Clearly, X was present in the house during this conflict, which must have been a distressing experience for a young child.
The parties separated on 5 September 2012 when the mother moved out of the family home with X.

History of proceedings

The father filed his Initiating Application on 11 September 2012, less than one week after the mother left. Orders were made without notice to the mother on 13 September 2012 restraining either party from removing X from the Commonwealth of Australia and placing the child’s name on the Airport Watch system. The proceedings were then adjourned to 24 September 2012 to enable service upon the mother.
On 24 September 2012 the mother attended in person. Following submissions, the Court made interim orders for X to live with the mother and spend limited time with the father each Saturday from 12.00noon until 2.00pm, to be supervised by the mother’s friend Ms K.
The mother had previously applied for an Intervention Order through the State Magistrates Court. That Application came before the Magistrates Court on the next day, 25 September 2012. The Magistrates Court granted an interim Intervention Order naming the mother and X as protected persons and restrained the father from having any contact with them. The Magistrates Court specifically directed that the father was not permitted to have contact with X in accordance with the orders pronounced by this Court on 24 September 2012. Accordingly X did not spend time with her father prior to the next Court hearing on 24 November 2012. By that time the mother had filed her Response and answering Affidavit on 25 October 2012.
Following argument on 24 November 2012 the Court affirmed its authority to make parenting orders for X to spend time with the father notwithstanding any other Orders made by the South Australian Magistrates Court and ordered that X spend supervised time with the father through a Children’s Contact Service. Further orders were made for additional time with an independent supervisor if such a person could be identified and agreed, but only one such visit ever occurred. An Independent Children’s Lawyer was also appointed to represent X.
The Children’s Contact Centre arrangements did not commence until March 2013 as the mother did not register until February 2013. Of the initial six scheduled visits that were ordered, X spent the allocated time with her father on only three occasions in April and May 2013, before then refusing to see him on 19 May 2013. At a subsequent visit on 9 June 2013, X agreed only to say hello to her father. Despite considerable efforts by the father, X asked to end the visit early.
On 15 July 2013 the parties appeared for a further interim hearing. Notwithstanding the above difficulties a further regime of supervised time at the Contact Centre was ordered with the mother directed to do all things necessary to encourage and support X’s participation in the process. Previous orders were continued until further order and the matter was listed for a two day trial on 3 & 4 March 2014. A section 62G family report was ordered and the matter was adjourned for further consideration and trial directions to 8 November 2013.
The family report was completed by Ms G on 25 October 2013. Ms G noted that X had recently refused to spend any time with her father at the Contact Centre and suggested a regime of reunification counselling may help to restore some level of relationship between X and her father.
On 8 November 2013 orders were made for the father and X to participate in “reunification counselling” in accordance with Ms G’s recommendations. The reunification counselling took place between the father and X in January 2014 with the assistance of a psychologist, Dr T.
Dr T’s report was filed by the Independent Children’s Lawyer on 6 February 2014 and concluded that the reunification process was unsuccessful in re-establishing a secure relationship for X with her father. However, this outcome needs to be seen in context. Dr T considered that the mother was not supportive of the process, nor was she actively supportive of X resuming a relationship with her father. Dr T concluded that Ms Klemson was unlikely to support the relationship unless she was faced with significant legal consequences for failing to do so.
The trial could not proceed on 3 March 2014 and was re-listed to 14 April 2014. The Respondent father was granted leave to file a consolidated Trial Affidavit on or before 28 March 2014 and the mother was granted leave to file a responding Affidavit if required on or before 4 April 2014.
The trial commenced on 14 April 2014 but exceeded the two day estimate. The evidence eventually concluded on 17 April 2014 and final submissions were then presented to the Court on 4 June 2014.

The father’s documents

The father relied upon the following documents:
a)His Trial Affidavit filed 28 March 2014;
b)Annexures C and D to his Affidavit filed 9 November 2012, being the mother’s SAPOL Affidavit sworn 20 September 2012 and the Magistrates Court Interim Intervention Order dated 25 September 2012;
c)Annexure A to his Affidavit of 10 July 2013, being the Intervention Order dated 18 March 2013;
d)Trial Affidavit of the paternal grandmother, Ms J filed 24 February 2014;
e)Affidavit of Ms L filed 9 November 2012;
f)His Amended Application filed on 24 February 2014.
In addition, the father sought to rely upon various documents annexed to his trial Affidavit, including the report from Dr T.
Initially the mother objected to Dr T’s report coming before the Court unless Dr T was also available for cross examination. The Court queried whether Dr T’s “reunification counselling” should more properly have proceeded on a confidential basis. As it transpired, all parties had already considered Dr T’s report which was filed under cover of an Affidavit of the Independent Children’s Lawyer on 6 February 2014.
In the circumstances, the Court received Dr T’s report into evidence and ultimately the mother did not require Dr T for cross examination, preferring instead to address the Court as to the weight to be attached to Dr T’s report, given the limited nature of his involvement with the family.

The mother’s documents

The mother relied upon the following documents:
a)Her Response filed 25 October 2012;
b)Her Trial Affidavits filed 18 February 2014 and 7 April 2014.

Credibility of witnesses

Both parties were cross examined at some length, as was the paternal grandmother. The mother did not require Ms L for cross examination. Ms G’s report was received into evidence and she was also cross examined by both parties. Ms G’s evidence was of great assistance to the Court.
The father denied that he was ever physically violent towards the mother. In the course of cross examination he was consistent in these denials, conceding only that he may have been verbally abusive towards the mother if they were arguing. Even then, he gave evidence that it was actually the mother who was verbally abusive towards him during their arguments, rather than the reverse.
I accept that the father’s denials reflect his genuine recollection of what occurred during the relationship. The father’s evidence was supported by the paternal grandmother, who was equally vehement in denying that there was ever any violent or abusive behaviour from her or her son towards the mother or X.
Notwithstanding the certainty with which both Mr Winter and his mother presented their evidence, I am not satisfied that their evidence provides the full story regarding the family dynamics between Mr Winter and Ms Klemson prior to their separation. This is particularly so when one takes into account the comments made by X during her interview with Ms G. X clearly described a family environment in which she witnessed her father verbally and physically abusing her mother. Ms G considered that the child’s disclosures were made in a genuine, age appropriate manner and were not the result of “coaching” by the mother, particularly given the background detail provided by X in relation to certain incidents.
While the father no doubt believes that he has given a full and accurate account of his relationship with the mother, I conclude that he has unconsciously “edited out” aspects of his past behaviour that may reflect poorly upon him. The same qualification applies to the evidence given by the paternal grandmother. The only concession made by her was that X witnessed both of her parents fighting on one occasion and asked them to stop. I am not satisfied that either the father or paternal grandmother could be relied upon to give evidence that was in any way critical of each other, or would otherwise undermine the father’s case.
Turning to the mother’s evidence, I find that she was equally one-sided and determined to paint the father and paternal grandmother in the blackest possible light. While the mother clearly believes her evidence to be true and accurate, I conclude that at times her allegations of abusive behaviour by the father and paternal grandmother are overstated. However, I am satisfied that there were occasions when the father was controlling and was physically threatening or physically violent towards her and I accept her evidence to that extent.
It is clear that there is a high level of mutual animosity and antipathy from the mother towards the father and paternal grandmother and vice versa. They were unable to say anything positive about each other and this further undermines the reliability of their evidence.
Based on my observation of the witnesses, I am unable to be satisfied that any of the witnesses were telling “the whole truth” as opposed to a particular version of “the truth” as they now recollect it to be. While the mother may have overstated or embellished past events as she now remembers them, I consider the father and paternal grandmother were equally likely to have understated their past behaviour towards the mother.

Legal principles

In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order, the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in their child’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties and obligations.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode (2006) FamCA 1346 the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.[1] Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346 @ para.10

First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
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 the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the event these considerations are in conflict, issues regarding safety in s.60CC(2)(b) should prevail. Section 60CC(3) then sets out a range of additional considerations which must also be taken into account. The Court must also consider the risk of family violence (s.60CG).
Section 61DA requires the Court to presume that it is in the child’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the child’s best interests to spend equal time, or substantial and significant time with each parent.
Both parties are seeking an order for sole parental responsibility and consider that the presumption does not apply or has been rebutted. For the reasons set out below, the Court accepts that the presumption in favour of equal shared parental responsibility is not in the child’s best interests and does not apply in this matter.

The parties’ proposals

The father’s position

The father seeks orders that X live with him and that he have sole parental responsibility for her care, welfare and development. Notwithstanding his allegations about the mother’s past behaviour, he proposes that X spend regular time with her mother as follows:
a)on alternate weekends from the conclusion of school Friday until 5.00pm Sunday;
b)overnight on the intervening Tuesday;
c)at such other times as agreed;
d)on special occasions such as Christmas and birthdays.
He also seeks to continue the existing order that X not travel outside of Australia and that her name remain on the Airport Watch List.

The mother’s position

The mother seeks orders that X live with her and that she have sole parental responsibility for the child. She opposes any orders for X to spend time with her father, but will support an order that she send the father information regarding X’s progress, activities and welfare twice per year. She also agrees to further authorise the child’s school to forward the father copies of school reports, newsletters and photographs, at the father’s own expense.
The mother also seeks to have X’s name removed from the Airport Watch List so that she and X can travel overseas in the future, on the basis that she would notify the father of such travel plans.

The position of the Independent Children’s Lawyer

Counsel for the Independent Children’s Lawyer provided a written summary of her proposed orders during closing submissions. The Independent Children’s Lawyer supported final orders to the effect that X live with the mother who should have sole parental responsibility for decisions about the child’s long term care, welfare and development, provided that the mother makes an effort to consult with the father and consider his views.
The Independent Children’s Lawyer also sought a range of ancillary orders, including orders for the mother and X to undertake separate counselling and for the mother to ensure that X attends all such appointments. Significantly, the Independent Children’s Lawyer proposed that any further attempts at reunification between X and the father only take place if recommended by the child’s psychologist.
In addition, the Independent Children’s Lawyer proposed that the father send letters and cards to X, that he receive information from X’s school and that the mother provide him with a written update regarding the child’s progress four times each year. The Independent Children’s Lawyer also sought a range of injunctive orders and agreed that X’s name should remain on the Airport Watch List.

Section 60CC(2) - primary considerations

(a) benefit for X in having a meaningful relationship with both of her parents

It is well accepted that children generally benefit from having a meaningful relationship with each of their parents. However, for some children, in some situations, that meaningful relationship may not exist, or may have been irreparably damaged.
The mother argues that X never had a meaningful relationship with the father and that the relationship was limited to interaction around the father’s collections of movie paraphernalia and watching DVDs. She further says that the father was violent and abusive within the family and that his violent and aggressive behaviour destroyed any meaningful relationship that he might otherwise have developed with X. The father, of course, denies these allegations. He considers that X enjoyed a strong and loving relationship with him prior to separation.
Whatever may have been the nature of the relationship between X and her father prior to September 2012, the evidence is clear that no ongoing meaningful relationship exists between them at the present time.
X agreed to spend time with her father on only three of the supervised sessions. On a fourth session the father was able to engage her by wearing a Batman costume into the supervision room. On that occasion, some limited conversation took place between the father and X before she approached the worker asking “can I go soon?” and then repeating this request a few minutes later.
Notwithstanding there were a further eight supervised visits scheduled, X refused to spend any time with her father after June 2013.
Equally significant was X’s demeanour during the further attempts at reunification with Dr T in January 2014. Dr T noted that X “rarely seemed to relax and that for the most part she seemed ill at ease”.[2] X engaged briefly with the father on only two sessions with Dr T and refused to see her father at all on the last such session.
[2] Affidavit of Independent Children’s Lawyer filed 6 February 2014, Annexure A, Report of Dr T dated 1 February 2014, page 2
There are many other comments that could be made about Dr T’s involvement and the role that the mother may have played in influencing X’s behaviour and demeanour. However it would seem at this point, notwithstanding the reunification processes and the father’s efforts to engage sensitively with X, the relationship between X and her father is deeply damaged. It is difficult to conclude that there is presently a meaningful relationship between them, that is, a relationship that X perceives as significant and valuable.
There may be many varying explanations as to why this is so. The father argues that the mother has actively undermined the relationship. Both Ms G and Dr T question whether X’s actions in rejecting her father are an unconscious demonstration of loyalty to her mother, in order to preserve that primary relationship. However, determining why the relationship is presently fractured does not change the reality that it is presently fractured.
There is clear evidence that X has a significant and deep emotional connection with her mother. During her interview and observed interaction with X and her mother, Ms G noted that the relationship was warm and that the mother was attentive and responsive in relation to X.[3] X informed Ms G that “she prefers living with only her mother” and went on to verbalise “her love and care for her mother”.[4]

(b) the need to protect X from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence

[3] Family Assessment Report dated 25 October 2013, paragraph 111

[4] Family Assessment Report, supra, paragraphs 97 and 98

I am satisfied that X was exposed to behaviour that falls within the definition of family violence whilst living with her parents prior to separation. I conclude it is likely that some of the arguments between the parents descended into physical altercations and that X would have been frightened by these events within the household.
As discussed elsewhere, the evidence is not sufficient for me to find that specific incidents occurred precisely when and as alleged by the mother, but I accept that the father did behave aggressively towards her at times and that X witnessed this behaviour on occasions. I am satisfied that the mother felt isolated and controlled by the father and paternal grandmother during the early years of the parties’ relationship, even though the father and Ms J do not perceive their actions in that way.
The mother also alleges that X is at risk of sexually inappropriate behaviour from the father, but I reject this allegation. The mother’s evidence on this subject may have been an accurate account of the events as she saw them, but the behaviour described by her is, at best, indicative of the father demonstrating inappropriate boundaries or paying insufficient attention to his state of attire. The father denied any such incidents occurred.
The mother was criticised for failing to raise these issues in her affidavit material, however the mother’s explanation for this was credible, in the circumstances, as was her evidence on this topic. I conclude it is plausible that the father’s genital area may have been visible to the mother whilst he was playing with X and dressed only in his underwear, even though the father may have been unaware of this. However, such a situation does not equate to sexually inappropriate behaviour, nor does it suggest any risk of sexually inappropriate behaviour by the father in the future. I reject this aspect of the mother’s case absolutely.

Section 60CC(3) – additional considerations

(a) any views expressed by the child

X was interviewed by Ms G in the course of preparing the family assessment report and, accordingly, the Court has independent evidence in relation to the child’s thoughts and views regarding her parents and her future living arrangements.
Ms G noted that X was aged 7 years 8 months at the time of her interview and presented as a polite and thoughtful child whose responses appeared spontaneous and age appropriate.[5]
[5] Family Assessment Report, supra, paragraph 81
In the course of the interview X was clear that she did not want to see her father or spend time with him. Initially X was reluctant to be drawn on details, but she subsequently went on to recount a number of incidents where her father was violent or aggressive towards her or her mother. She talked about her father smacking her hard on the bottom many times and described having seen her father hitting her mother. She also made a number of critical comments in relation to the paternal grandmother, stating that the paternal grandmother had hurt the mother “lots of times”.
By contrast, X spoke positively about living with her mother. Ms G concluded her assessment of X’s interview as follows:
“X’s report of a loving and secure relationship with Ms Klemson contrasted dramatically with her description of a lack of attachment relationship with Mr Winter.”[6]
[6] Family Assessment Report, supra, paragraph 100
The Court must be cautious in placing too much weight upon the views of such a young child. The father argues that even greater caution is required in the current situation and urges the Court to find that any critical comments made by X are a result of the mother coaching her, rather than the child’s own memories.
There is no doubt the mother has a hostile and critical attitude towards the father and clearly X is aware of her mother’s views. However, Ms G did not raise significant concerns that X presented as a child who had been coached or who had “learned what to say”. On the contrary, she noted that the child’s narration provided detail and context to many of her disclosures in a way that added to the reliability of the child’s reporting.

(b) the nature of the child’s relationship with her parents and other persons (including her grandmother)

The strength of X’s relationship with her mother is clear and does not require further discussion.
The father argues that X had an equally strong relationship with him prior to separation, notwithstanding the negative comments she made to Ms G. In support of this argument the father referred to various cards or letters that X wrote to him and to the paternal grandmother, which are annexed to his trial affidavit. I accept there may well have been times in the past when X enjoyed a positive relationship with her father and grandmother. Such relationships can be maintained even if the adults have exhibited other behaviour that a child may find frightening or abusive.
At the present time however, X is unable to remember any positive aspects of her relationship with her father and paternal grandmother. As discussed, this may reflect X’s adaptation to her present emotional circumstances, living in the primary care of her mother. Equally, it may also reflect that the negative memories she holds of her father’s behaviour, in terms of him yelling, smacking her and fighting with her mother, are dramatic and frightening memories that outweigh and override any other positive experiences with her father and paternal grandmother.
Whatever the explanation, it is clear that X presently sees nothing positive in maintaining a relationship with her father or paternal grandmother.

(c) extent to which each of the parents have taken or failed to take the opportunity to participate in making decisions about the child and to spend time with the child

The father has been actively pursuing a parenting role in X’s life since the parties separated and cannot be criticised for the fact that presently he is unable to play any meaningful parenting role.
Neither party has put any specific evidence before the Court regarding allocation of decision making responsibilities prior to separation. I accept that the father was significantly involved in X’s day to day life. He would regularly deliver X to, or collect her from school when he was available to do so. He and his mother assisted X with her homework. On the available evidence, I conclude that both parents would have been involved in making decisions about X’s day to day and longer term care and welfare prior to separation.

(ca) the extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The father worked during the marriage and provided financial support for the family. Neither party has provided any evidence to the Court about the financial arrangements post separation or the current financial support for X, but I assume the father is paying Child Support.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect of any separation from either parent or any other person

This is a significant factor. While the Court is unable to make findings in relation to the precise allegations of violence and is further unable to be satisfied that the father’s past behaviour was at the level alleged by the mother, that situation is overtaken by the present emotional reality for X.
X is deeply bonded to her mother. Neither Ms G nor the Independent Children’s Lawyer support an outcome where X is removed from her mother’s primary care.
The present situation is one where X is living with the parent with whom she feels a strong and secure attachment and is not spending any time with the parent with whom she has a much more ambivalent relationship. Attempts to facilitate the resumption of a relationship between X and the father have been unsuccessful. However, the Court is not satisfied that the answer to this dilemma is to now place X in the primary care of her father.
Ms G was concerned that a dramatic change of primary caregiver would severely disrupt X’s emotional security and could reinforce any sense of loss and grief that she may already be experiencing as a result of her parents’ separation. Ms G considered it was likely that a sudden change in primary caregiver would cause X significant emotional trauma. By contrast, she noted that it was impossible to predict whether such a change would achieve the desired outcome and improve X’s relationship with her father. On the contrary, she commented that it may equally entrench the child’s hostility and resentment towards her father.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent

This is not a factor that weighs in the Court’s decision. Both parties live in the Adelaide metropolitan area and if it was determined to be in X’s best interest that she spends time with each of her parents then appropriate handover arrangements could be put in place.
Any safety concerns that either party may hold could be dealt with by directing handovers take place through a Contact Centre or inside a police station. However, the prior difficulties in facilitating supervised visits through a Contact Centre are noteworthy. There is no obvious solution to the “practical difficulty” of convincing X to spend time in her father’s care.

(f) parental capacity to provide for the needs of the child, including her emotional and intellectual needs

The Court is satisfied that the mother is able to meet X’s day to day needs, including her intellectual needs. The child is progressing reasonably well at school and Ms G noted that X presented as “a polite, thoughtful child”. She went on to say that “her responses appeared spontaneous and age appropriate and no concerns regarding her development were noted”.[7] This all suggests that the mother is generally able to provide a suitably supportive emotional and intellectual environment for X.
[7] Family Assessment report, supra, para 81
The father has not had the opportunity to demonstrate his capacities in this regard, given that X has not spent any time in his sole care since the parties separated. I note that prior to the parties’ separation, the father routinely supported X’s school attendance by delivering her to or collecting her from school and actively supported X with her homework.
The father works full time on a set four day rotating roster, which would affect his availability to care for X. While this is a practical problem, I accept that he would receive assistance from his mother and other family members when necessary.
The father’s capacity to meet X’s emotional needs remains untested. There are aspects of the father’s past behaviour that suggest a degree of emotional dysregulation, such as his comments to a staff member at the Children’s Contact Service on 15 September 2013[8] and his distress during the interview with Ms G. I note the father has since commenced counselling and hopefully this support will assist him to develop better coping strategies in the future.
[8] Father’s trial affidavit filed 28 March 2014, annexure “O”, Children’s Contact Service report dated 19 October 2013 at page 3
Both parents failed to protect X from the emotional repercussions of their hostile and dysfunctional relationship prior to separation. These repercussions continue for X, given the child’s fractured relationship with her father. Following separation the mother also failed to focus on her daughter’s emotional welfare, by actively seeking her daughter’s approval to separate from the father.
Ms G commented upon the risks faced by young children where one parent is totally removed from their emotional landscape. These children can find themselves either “demonising” or “idealising” the absent parent in a way that may prove damaging to the child’s own emotional development as they grow older.
There is uncertainty about the mother’s ability to prioritise X’s emotional needs ahead of her own emotional needs. Ms Klemson‑Winter was unable to contemplate that X could ever benefit from resuming a relationship with her father. The mother would prefer that she and X were left to go about their lives free from any contact with the father. She could not or would not contemplate that this outcome may not necessarily be in her daughter’s best interests.

Dr T was particularly critical of the mother’s behaviour during his sessions with X and the father. He concluded that the mother was very hostile towards the father and that X would be unable to re-engage with her father, in the face of her mother’s opposition. Dr T could not see any way forward, unless the mother was faced with some enforceable consequences should she fail to support the reunification process.[9]
[9] Affidavit of Independent Children’s Lawyer filed 6 February 2014, Annexure A, Report of Dr T dated 1 February 2014, pages 6,7
The mother disputes Dr T’s account of their interactions. Given the mother’s clear evidence that she does not believe it is in X’s best interests to resume a relationship with her father, I accept that she would have struggled to positively support the reunification process. I am satisfied that Dr T accurately identified her opposition to the process and do not need to further determine whether or not she behaved precisely as reported by Dr T.

(g) the child’s maturity, sex, lifestyle and background

X is still a young child. She is clearly very attached to her mother and this relationship is of primary importance to her. Ms G gave evidence that it would be emotionally distressing for X to be removed from her mother’s primary care. This is a significant factor to address when considering the father’s proposed orders.

(h) This consideration does not apply.

the attitude each parent demonstrates to the child and to the responsibilities of parenthood

The father has had very limited opportunities to demonstrate his attitude to the responsibilities of parenthood since the parties separated. He clearly loves X and wants to play a significant parenting role in her life. At times he may have failed to act appropriately prior to the parties’ separation, particularly with respect to his behaviour towards the mother. Nonetheless, he demonstrated an appropriate attitude towards his parental responsibilities in other ways, such as supporting X with her schooling.
The mother is also committed to the child’s welfare. X appears to be progressing well and I am satisfied that the mother has generally exercised her parental responsibilities appropriately since separation. The only criticism that can be made of the mother, and it is a significant criticism, is in her willingness to consider whether X may benefit from resuming a relationship with her father. She remains unmoved in that regard.

(j) family violence; and (k) any relevant family violence orders

On 18 March 2013 a final Intervention Order was issued by the Elizabeth Magistrates Court. This Order relates only to the mother and X is no longer listed as a protected person. The Intervention Order came about by negotiation and no evidence was taken or findings made by the Magistrates Court. To that extent the weight to be placed upon either the interim Intervention Order or the final Intervention Order is limited.
The mother has made a range of allegations of family violence against the father, including allegations of physical assault and emotional/ psychological abuse. It is not necessary for the Court to determine each allegation of violence and abuse raised by the mother. I am satisfied that the mother experienced the father’s behaviour as controlling and isolating at times, even though there were other occasions when he or the paternal grandmother assisted her with transport or medical issues.
The father and the paternal grandmother were able to provide corroboration that certain allegations could not have occurred on the specific dates as alleged. When confronted with this evidence, the mother conceded that the alleged dates may be incorrect, but this does not mean that all of the mother’s evidence is therefore inherently unreliable.
The evidence does not safely support formal findings that the father behaved violently towards the mother or X on specific dates. However, I am satisfied that there were times when the father was physically violent or verbally abusive towards the mother and that X has witnessed this behaviour. I am satisfied that both X and the mother were frightened by the father’s behaviour on occasions.
The father argues that X has been coached by the mother and that no weight can be placed upon any of the child’s statements to Ms G. I disagree.
Ms G is an experienced report writer. She noted that the detail reported by X confirmed aspects of the mother’s allegations, for example, the allegation that the father had locked the mother outside on one occasion. Ms G concluded that X’s disclosures were unlikely to be the result of “coaching” by the mother, given the child’s demeanour and the level of detail provided by her. I accept Ms G’s evidence on this issue.
I am satisfied that the father smacked X on occasions. Whether this physical discipline occurred frequently, as the mother and X allege, or on two or three occasions, as claimed by the father, Ms G considered that these past episodes of physical discipline have had a significant impact upon the child’s sense of safety in her father’s care.
By contrast it does not appear that the mother has behaved in a manner that caused X to feel similarly fearful towards her. Nothing in the child’s interview or observed interaction with the mother would support the father’s allegation that X was the victim of ongoing physical and emotional abuse from her mother. X tells Ms G that her mother “… had only ever tapped her.” While this indicates some form of physical discipline by the mother, it does not seem to have undermined the child’s sense of safety and attachment with her mother. However, I am satisfied the mother participated in arguments with the father and paternal grandmother and that all of the adults have behaved rudely and abusively towards each other at times. The mother’s comments to the paternal grandmother regarding her husband’s death were particularly cruel. X was exposed to this hostile and abusive behaviour at times and the resulting trauma is evident.
I do not consider the remaining s.60CC(3) factors are relevant.

Conclusion

This is not a matter where an order for equal shared parental responsibility will be in X’s best interests, regardless of which parent assumes primary care of the child. The parties have no capacity to communicate effectively with each other, given the present level of hostility and mistrust.
There is no doubt that the mother’s attitude towards the father is a major cause of these difficulties, but it is not the only cause. I am satisfied that the father behaved aggressively towards the mother at times during their relationship and that this behaviour undermined the potential for a workable co-parenting relationship between the parties after separation.
While the father says that he is willing to engage co-operatively with the mother now, I am extremely doubtful that the father and paternal grandmother will be able to set aside their own anger and disapproval towards the mother. All of the adults are responsible for the toxic emotional landscape that now exists between them. Despite the father’s apparent willingness to co-operate with the mother, his hostility is such that he struggled to identify any positive feature of her parenting. The mother was equally unwilling to acknowledge anything positive about the father’s parenting.
Given these difficulties, it is impossible to see how the parties would be able to share parental responsibility effectively. On the contrary, such an order may provide further areas of dispute that would exacerbate the current tension and hostility between them. In the circumstances I conclude that the presumption in favour of equal shared parental responsibility is rebutted and the parent with primary care of X should also exercise sole parental responsibility for her care and welfare.

Should X live primarily with her father, or with her mother?

Both parents seek primary care of X. The Court’s responsibility is to make orders that are in the child’s best interests. The father says that he will support his daughter’s relationship with her mother and thus X will have the benefit of an ongoing relationship with both of her parents. He is confident that X would settle easily into his primary care. However, this confidence is not supported by Ms G, who expressed real concerns about the emotional cost to X, should she be removed from her mother’s primary care.
Ms G’s evidence is crucial on this topic. X is a young child whose emotional wellbeing is dependent upon her mother. X has consistently refused to spend any time with her father and has no meaningful relationship with him at the present time. This is a tragic outcome for the father, but the Court is not convinced that the solution to this tragedy lies in exposing X to the further trauma of being removed from her mother’s primary care.
At just eight years old, X is unlikely to have the emotional maturity needed to process a change of this magnitude. The father demonstrated little insight into the emotional impact that a change of primary care may have upon his daughter and this lack of insight is particularly concerning.
The Independent Children’s Lawyer did not support an order that X live with her father. I agree that the evidence before the Court, particularly Ms G’s evidence, leads to the conclusion that it would not be in X’s best interests to move into her father’s primary care. Accordingly X will remain living with her mother, who will exercise sole parental responsibility for her.

Further parenting orders

The Court must consider whether it is in X’s best interests to continue efforts aimed at re-establishing her relationship with the father. This is not a case where the Court’s findings about the father’s past behaviour should per se preclude him from any future parenting role in his daughter’s life. However to date, all attempts to re-establish the relationship between X and her father have failed. X has refused to spend time with her father through the Children’s Contact Centre and the reunification process with Dr T was unsuccessful.
Dr T suggested that further reunification attempts could be made, particularly if the mother was under some compulsion to comply. Ms G was also reluctant to abandon any effort to re‑establish the relationship between X and her father. However, she was very clear that the notion of ‘compulsion’ upon the mother should not include the possibility of X being removed from her mother’s primary care, because that change would not be in the child’s best interests.
In her closing submissions, counsel for the Independent Children’s Lawyer concluded that other potential forms of compulsion, such as imposing financial penalties upon the mother, were also not in X’s best interests and that the mother’s limited financial resources would be better directed towards the cost of counselling support for X. I concur with that view.
X has been through a range of interventions, from supervised visits at a Contact Centre, the family assessment and the reunification counselling with Dr T. All of these processes exact an emotional toll upon X, as she is repeatedly placed in the centre of the parental conflict. There comes a point in time when the emotional cost for X in trying to re-establish the relationship with her father outweighs the potential benefit and I conclude that point has now been reached, at least at this stage in X’s emotional development.
The Independent Children’s Lawyer was concerned to ensure that X be provided with the opportunity for future counselling support, given this outcome. The mother opposes any such order, arguing that she and X are both settled and happy and do not require any such support.
I consider the mother’s view is short-sighted. Whether or not X is spending time with her father, she knows that he is her other parent. The absence of her father may well bring up emotional issues for X, as discussed by Ms G. X may not feel comfortable raising such issues with her mother and her mother may be ill equipped to respond to them, given her own hostility towards the father. I am satisfied that it is in X’s best interests to have ongoing counselling support, until her consulting psychologist recommends otherwise. This may involve the mother with ongoing expense, but that does not alter the Court’s decision. The mother may be able to access community based counselling, or obtain a Mental Health plan referral for X through her treating GP.
At a practical level, the mother will need to notify the father of the name of the psychologist working with X. The psychologist will be authorised to communicate with both parents to the extent he or she considers necessary, particularly in the event X expresses any wish to re-connect with her father. Both parties will also be authorised to communicate with the counsellor.
The Independent Children’s Lawyer proposes that any further attempt at reunification occur at the discretion of X’s psychologist. The Court expects that the parties would act upon any advice or recommendation made by their daughter’s psychologist and it is appropriate to make an order in those terms.
I conclude that both parents should also participate in counselling, as recommended by Ms G and the Independent Children’s Lawyer. The father is already doing so. The mother will also benefit from this support given that she will have a range of ongoing responsibilities pursuant to these Orders, particularly an ongoing requirement to communicate with the father, which she will no doubt find challenging.
I am satisfied that X’s name should remain on the Airport Watch List. While the father will not be exercising a parental role in his daughter’s life at the present time, he is nonetheless entitled to express a view in relation to any proposed overseas travel for X in the future. Such travel should only occur with the consent of both parents, or by Order of this Court.
The Independent Children’s Lawyer proposed that the mother first consult with the father before exercising sole parental responsibility on any given issue. While I appreciate the intention behind the proposed order, I conclude that it is unrealistic and could well lead to further conflict between the parents if they disagree on a topic. The only exception in this regard will be X’s future school enrolment, where I will order that the mother consult with the father before moving X to a new school.
It is appropriate that the mother refrain from physically disciplining X and from abusing, criticising or denigrating the father in the presence of X. The proposed injunctive orders have little application to the father as X is not presently spending time in his care, but there is the possibility of their relationship resuming in the future, if requested by X or recommended by her psychologist. In those circumstances it is appropriate that the injunctive orders apply to both parties. I will also restrain the parties from attending in the vicinity of each other’s home or place of study/employment, to minimise any opportunity for conflict between them.
The mother agreed that the father should be able to send letters and gifts to X and will need to nominate a reliable address in that regard. I consider a monthly regime for such communication is appropriate. This communication will demonstrate to X that her father is still concerned for her welfare, without unduly exposing her to the emotional uncertainty that she has come to associate with her father.
The mother also agreed to forward a written update regarding X’s activities and general progress, but only twice a year. The Independent Children’s Lawyer proposed four times each year which I consider to be a more appropriate framework, structured around the end of each school term in April, July, September and December. This information will provide a basis for the father to engage with X through his letters and cards. The father will need to be careful and ensure that his written communication with X does not place any emotional pressure upon her.
This has been a particularly sad and difficult case to determine. The father will be devastated at the loss of his relationship with X at this particular time in her life. The mother will be frustrated that she is required to maintain a level of communication with the father, and that the father will be maintaining regular written correspondence with X. However the Court is satisfied that these orders represent the best outcome for X, given the very difficult dynamics that exist within her family.
I now make orders as published at the commencement of these Reasons.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Associate:

Date: 8 August 2014

[2014] FCCA 1742

8 August 2014

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