Witnall and Witnall

FAMILY COURT OF AUSTRALIA

WITNALL & WITNALL

[2019] FamCA 930

FAMILY LAW – CHILDREN – With whom a child spends time – Where final parenting orders have previously been made in 2012 and 2015 and this is the third trial in seven years – Where the most recent order provided that the father have sole parental responsibility, the child live with him and spend alternate weekends with his mother – Where the mother seeks that the child’s primary residence be changed such that the child live with her – Where the mother has demonstrated an unwillingness to accept the father’s role in the child’s life and has repeatedly involved the child in the proceedings, and the child has suffered as a consequence – Where the mother continues to agitate issues raised in the first and second trials – Where the child has expressed a preference to live with his mother but the Court cannot be satisfied that this preference is honestly held by him – Where the independent children’s lawyer proposes that the child should continue to live with his father and that his time with his mother should be significantly reduced – Where the possible adverse effects on the child of a reduction in the child’s time with his mother and brother are outweighed – Where the child will continue to live with his father and spend a weekend day with his mother twice each school term and on special occasions and that the father will continue to have sole parental responsibility, with an obligation to consult with the mother.

Family Law Act 1975 (Cth)

McEnearney (1980) FLC 90-866
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2009) 39 Fam LR 295

APPLICANT:

Ms Witnall

RESPONDENT:

Mr Witnall

INDEPENDENT CHILDREN’S LAWYER:

Tracy-Lynne Geysen

FILE NUMBER:

BRC

11642

2010

DATE DELIVERED:

5 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

27 & 28 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Webber

SOLICITOR FOR THE APPLICANT:

Cooper Maloy Legal

COUNSEL FOR THE RESPONDENT:

Ms Kenny

SOLICITOR FOR THE RESPONDENT:

Brooke Winter Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Geysen
TLG Law

Orders

That all previous parenting orders and plans are discharged.
That the father shall have sole parental responsibility for the child, X born … 2009 (“the child”).
That in relation to any decision the father is required to make in relation to education, religious and cultural upbringing, health or any other decision impacting upon the long-term welfare of the child, the father is to undertake the following actions before making such a decision:
(a)The father is to provide the mother notice of any such proposed decision in writing, no less than 14 days before the proposed decision;
(b)The father shall make a genuine effort to give consideration to the mother’s expressed views; and
(c)The father shall provide the mother with written confirmation of the decision.
That the child shall live with the father.
That the child shall spend time and communicate with the mother as follows:
(a)For the first and fifth Sunday of every school term from 9.00 am to 5.00 pm;
(b)For the first Sunday after the child’s birthday from 9.00 am to 5.00 pm;
(c)For Mother’s Day from 9.00 am to 5.00 pm;
(d)For the first Sunday of every school Autumn, Winter and Spring term holiday from 9.00 am to 5.00 pm;
(e)For the first and fourth Sunday of the Summer term holidays from 9.00 am to 5.00 pm;
(f)By telephone, on the Sunday prior to the visits set out above between 6.00 pm and 6.30 pm with the mother to make the call to the child.
That changeover shall take place at McDonald’s Suburb B (C Street) with neither parent to leave the car they arrive in.
That each parent shall keep the other parent informed at all times of their residential address and contact telephone number and email address and shall ensure that the other parent is notified of any change at least seven (7) days prior to any such change.
That the father shall:
(a)Keep the mother informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the mother with information that they are lawfully able to provide about the child;
(b)Inform the mother as soon as reasonably practicable of any other medical condition or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the mother;
(c)Authorise the school attended by the child to give the mother information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the mother’s cost).
That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child;
(d)Not allow the child to read nor be exposed to any of the court documents;
(e)Not physically discipline the child.
That the Independent Children’s Lawyer shall provide a sealed copy of these Orders to Ms D and Dr E and the father shall ensure that Ms D is engaged as soon as possible after the Orders issue to explain the Orders to the child.
That to be precise, whilst the father does have sole parental responsibility for the child, he is also expressly authorised to apply for a passport for the child without the need to obtain the mother’s signature on any such passport application.
That the father is at liberty to travel overseas with the child, provided that such travel does not compromise the child’s time to be spent with the mother as provided for in these Orders, and he shall provide the mother with advanced notice in writing of any such planned travel as well as a copy of their proposed travel itinerary.
That in so far as is practicable, any further fresh applications between these parents, including any applications for a parent to be dealt with for contravention of these Orders shall be listed before his Honour Justice Forrest in the first instance.
That the Independent Children’s Lawyer be discharged.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11642 of 2010

Ms Witnall

Applicant

And

Mr Witnall

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

X was born in 2009 after his parents married in 2008. They separated in July 2010. Soon after separation, X’s mother commenced court proceedings for parenting orders. There was a trial in the Federal Circuit Court and final parenting Orders were made on 20 December 2012 for X to live with his father and to spend time with his mother on alternate weekends and for some of the school holidays. Parental responsibility was allocated on an equal shared basis between the parents.
In 2014, when X was five years old, his mother commenced fresh proceedings in the Federal Circuit Court for new parenting orders. Again, she wanted X to be living with her and spending alternate weekends with his father. After a trial in August 2015, new final Orders were made that conferred sole parental responsibility on the father and left X living with his father and spending alternate weekends with his mother.
The mother appealed against those Orders but later discontinued her appeal. Just a year later, in August 2016, she commenced a new set of proceedings again in the Federal Circuit Court seeking to change the orders again so that X would live with her and spend alternate weekends with his father. Two years later, in August 2018, the proceedings were transferred to this Court. The matter worked its way up the pending cases list and I heard it over two days on 27 and 28 November 2019, over three years after it had been started again in the Federal Circuit Court.
X’s mother and father have now had three trials in seven years. Each time the proceedings have been instituted by his mother. On each of the first two occasions, the mother was unsuccessful in obtaining the parenting Orders that she wanted. Again, this time she has been unsuccessful and, in fact, will now be having even less time with X than she has been for the last seven years. I consider that is in X’s best interests. It would also be in X’s best interests if the court proceedings his parents have been involved in for most of X’s short life now cease and his mother lets his father get on with parenting him.
Ten year old X is clearly exhibiting the negative effects of being almost ceaselessly exposed to conflict between his parents. I am quite satisfied that most of that conflict emanates from his mother. She has personality difficulties that she has clearly struggled with most of her life. The evidence shows that she was exposed to significant childhood trauma herself and that, as an adult, she has not been able to maintain stable relationships with her chosen partners or her own immediate family members. She has never had counselling or therapy specifically targeted at helping her come to terms with the trauma of her own childhood. She has not been able to accept previous decisions of the Court determining that X live with his father and she has worked, either consciously or unconsciously, to undermine that arrangement and the stability that it gives X.
It is unlikely that the mother’s behaviour will change now, so X needs to be better protected from the negative impacts that behaviour has upon him at this critical stage of his life as he transitions from childhood to adolescence. The experienced Family Consultant who assessed this family (the fourth one in seven years) strongly recommended that this should be done by significantly reducing X’s time and contact with his mother, such as to two days each school term and no overnights. The Independent Children’s Lawyer (“ICL”) submitted that was what this Court should now order. That is what the Court will do, satisfied, having regard to the paramountcy of X’s best interests, that such orders are proper at this time.

Some Relevant Principles in the context of this Matter

In her reasons for judgment in Rice v Asplund (1979) FLC 90-725, Evatt CJ said the Court should not “lightly entertain an application to reverse an earlier custody order”. Her reasoning for that was expressed as follows:
To do so would be to invite endless litigation for change is an ever present factor in human affairs.
In his reasons for judgment in McEnearney (1980) FLC 90-866, Nygh J said on point:
... the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict legal principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
Whilst his Honour Warnick J in SPS v PLS (2009) 39 Fam LR 295 acknowledged the usual practice of determining at a preliminary hearing arguments as to whether a significant enough change in circumstances has occurred since final Orders were previously made to justify embarking on a fresh hearing of a parenting orders dispute, his Honour also observed:
There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Second, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
Warnick J went on to observe that if the “rule in Rice v Asplund” is applied at the end of a full hearing of parenting issues, the rule cannot achieve all its ends, but can achieve some and ought still receive consideration. I respectfully agree.
In this particular matter, the Court was informed that a Judge of the Federal Circuit Court had already been asked to determine the “Rice v Asplund” question as a preliminary issue. The Court was told that a Judge had decided in August 2018 to permit the mother’s application to proceed to trial, albeit in this Court and not the Federal Circuit Court. The Judge’s reasons for judgment were not adduced into evidence before me. Therefore, I do not know, what her Honour’s reasons for permitting the matter to proceed to a further trial were, but, presumably, her Honour considered that there had been a change in circumstances of some kind since 2015.
It is in that context that I therefore accept, as Warnick J observed, that the “rule in Rice v Asplund” should still receive some consideration in my determination of this matter, albeit after the completion of a two day “best interests” hearing. Of course, it cannot be used to avoid a trial, as that has now already taken place, but nevertheless, s 60CC(3)(m) of the Family Law Act 1975 (Cth) (“the Act”) permits consideration of “any other fact or circumstance that the court thinks is relevant” in the determination of what is in the child’s best interests. That permits me, I am satisfied, in the context of there being a final judgment of a Federal Circuit Court Judge made after an earlier contested trial between the parents, to look for (in addition to considering the other matters listed in s 60CC of the Act) a change of circumstance since her Honour’s Orders were made sufficient to justify a change to those Orders having regard to the best interests of the child.
Ultimately, after considering all of the evidence that was before me in this matter, I was not persuaded by the mother that circumstances had so changed since the 2015 determination that X continue to live with his father such as to justify ordering him to live with his mother instead. Unfortunately for the mother though, I was persuaded that the circumstances now justify a significant reduction in the time X spends with her and in the contact he has with her.

The Mother’s Case

Almost half of the mother’s affidavit evidence related to historic matters that pre-dated the Judge’s decision of 2015. Some of those matters even pre-dated the earlier decision of 2012.
Principally, in that evidence, the mother repeated allegations she has previously made against the father about the level of family violence that he subjected her to during their marriage. Those matters were well and truly ventilated during the previous proceedings and were subject to findings made by her Honour not ever challenged on appeal. The mother continues to claim, I discern, that those allegations were not taken seriously by the previous Judge, that her Honour’s findings were wrong and that the allegations should be considered afresh by this Court. The mother clearly asserts that findings in accord with her allegations would have, or at least ought to have a determinative impact on the outcome of her fresh application. As I said from the bench during the trial, I am satisfied that the principles of issue estoppel apply in respect of the findings made by her Honour.
Where there have been determinations of fact made by a judicial officer in proceedings between the same two parties in respect of which those matters of fact have been in dispute, those parties are, in my judgment, estopped from revisiting those factual findings in fresh proceedings between them. A contrary proposition was not put to the Court by counsel for the mother before me, even after I raised issue estoppel with him as a matter I considered problematic for the mother’s case.
In her August 2015 reasons, Judge Purdon-Sully found in respect of allegations of family violence:
a)That the parties had a toxic marital relationship which involved them both in verbal and/or physical contact with the other during disputes;
b)That both parties have been a perpetrator of family violence towards the other;
c)That both have at one time or the other sustained injuries as a consequence of family violence perpetrated by the other;
d)That a common feature of their family violence was the parties’ use of alcohol with the parties drinking either at a hotel or at their home at the time of incident with the police in attendance noting the parties’ intoxication levels;
e)That the police records note the conflicting versions and the parties’ tit for tat complaints against the other, a continued theme in these proceeding;
f)That both parties have sought protection orders and/or sought police action arising from their altercations, notwithstanding the protection orders sought by them and/or their seeking assistance from the police from time to time, the parties continued to maintain contact with each other;
g)That both have sustained serious physical injuries during some of their altercations, those injuries being observed by police. For example:
i)on 19 August 2009 the police observed scratch marks on the neck of the mother’s son, damage to the dwelling doorway, bruising to the mother’s wrists and redness to her lip, and the following day the police took photographs of the mother’s injuries, consisting of bruising to the right upper arm, right thigh, right torso, left inner elbow and left upper arm; and
ii)on 19 July 2010, the father was observed by police to have a split lip, scratches to his nose, two bumps to the left side of his head and bruising to his left eye, and the mother was observed to have a bump to the left side of her head. Police photographs were taken of the father’s injuries;
h)That one or more children were present at some incidents of family violence involving referral of the matter by police to external welfare agencies on at least one occasion because of a concern of emotional harm to the children;
i)That on one occasion the mother was transported to a hospital by ambulance at the request of the police after they attended at the residence following an altercation between her and the father; and
j)That on 8 October 2009, the father was convicted in the Suburb K Magistrates Court of a breach of a domestic violence order relating to an order served on him on 9 August 2009 with a penalty of no conviction recorded and a fine.

Her Honour accepted the view of the family report writer who gave evidence at the 2015 hearing that it would be:
simplistic to focus on a particular alleged serious incident of violence perpetrated by the father in these proceedings against the mother and attempt to then extrapolate from that incident who may have been more accountable or who of the two protagonists was the worst offender.
Her Honour went on to say:
A reading of the police documents would suggest that both engaged in family violence and that the mother had a history of engagement with violent relationships before her involvement with the father.
However, although those findings had previously been made, the mother was clearly intent on revisiting the issue in this latest trial. In that vein, the father was cross-examined about incidents that took place back in 2009 and 2010. He carefully gave thoughtful evidence about the incidents that occurred that led to the injuries that her Honour referred to in her judgment that I have listed in paragraph [17] (g) above.
In respect to the first incident in which the mother and her then fifteen year old eldest son, Z, were both injured, and there was damage to the door of their dwelling, the father said that he was leaving the mother and told her so as he could no longer tolerate the her behaviour towards him. He said that he went to go out the door to leave when the mother physically attacked him. Defending himself from her physical attack, he fended her off and pushed her off him. He said that her teenaged son, Z, saw this and ran to his mother’s assistance and began to attack the father as well. The father said that in response he fended him off and pushed him to the lounge. The injuries to the mother and her son, he said, must have happened in that context.
In respect to the second incident, the father said that again he told the mother he was leaving her and in response she physically attacked him, inflicting those injuries upon him that her Honour recorded in her reasons. He grabbed her to restrain her and in this struggle that took place on a loose piece of carpet on the floor, the carpet slipped and the struggling couple fell to the floor, the father falling on top of the mother and the mother hitting her head on the floor. It was after that incident that the mother was transported by ambulance to hospital because of the blow to the head she suffered in the fall.
Having seen both the mother and the father in the witness box being cross-examined before me, I considered the father to be the party whose evidence should be preferred as the more likely to be honest on the balance of probabilities. The mother did not impress me as a reliable witness at all. There were a number of occasions during her cross-examination that she went from a complete denial of propositions put to her to a grudging acceptance of the truth of the same propositions within a few minutes. There were a number of occasions where she gave completely contrasting, inconsistent evidence virtually within the same sentence, without any apparent compunction.
In respect of the violence that took place between the parties during their marriage, I accept the father’s evidence as to what actually happened. Whilst he conceded that he was a ‘perpetrator’ of violence as found by Judge Purdon-Sully, he put that violence within the context of striking, pushing, grabbing and physically restraining the mother and her fifteen year old son in the process of defending himself from attack from them.
Judge Purdon-Sully observed that the mother was in a number of previous relationships in which there was violence. There is no evidence that the father was, and his wife, who he has been with now since the end of 2010, gave convincing evidence that he has never been violent or aggressive with her. I got the impression from her that she would not tolerate staying with him if he was. I accepted the truth of her evidence.
Further of significance, the mother gave evidence in these proceedings that the father violently raped her during a stay at a resort hotel in the M Region in October 2010 during an attempted reconciliation. She said that his mother, from Country N, was staying with them at the time. The mother conceded that she had never given evidence about that before she said it in her affidavit of evidence-in-chief filed for this recent trial – not in the 2012 proceedings, not in the 2015 proceedings or any other time. There is no evidence of her reporting it to Police, medical professionals, friends, family or anyone else.
The father denied the allegation and said the alleged rape just never happened. He said he thought the visit to the resort hotel with his mother was in 2009 as he did not recall her coming out to Australia in 2010.
The mother’s only explanation for never having raised it before was that she was scared of the father.
After appropriate consideration, having regard to the provisions of s 140 of the Evidence Act 1995 (Cth), I am not satisfied that the mother’s allegation has been proved on the balance of probabilities. In fact, I accept the father’s denial and reject the mother’s evidence about that as false and recently invented. I accept the father’s evidence about the way in which injuries were inflicted on the mother, him and the mother’s eldest son back in 2009 and 2010.
Much was also made by the mother of the fact that a Magistrate made a family violence order against the father in 2015 just after the 2015 trial in the Federal Circuit Court. That Order was made on a private application brought by the mother following incidents that happened at handovers of six year old X from the father to the mother in February and March of 2015. Both those incidents were the subject of evidence considered by Judge Purdon-Sully at the August 2015 trial, but the trial in the Magistrates Court at Suburb L on the family violence application took place in the short period during which her Honour’s judgment was reserved.
A few pages of transcript of the Magistrates Court proceedings were adduced into evidence by the mother. That transcript revealed that the Magistrate made the Orders, apparently satisfied that an order was needed as between the father and the mother and that family violence had occurred between them on those occasions, though it was “low level”. Her Honour clearly considered the father’s demands to see a child restraint seat in the mother’s car and for the mother to move from the middle of the car park to the safety of the footpath beside the car park before he would deliver X into the mother’s care to constitute “family violence”. Her Honour expressly would not make a finding that the father pushed the mother on one of those occasions as the mother alleged.
When Judge Purdon-Sully handed her judgment down, though a little troubled about what happened on those two occasions earlier that year, she also expressly stated that she was not sufficiently satisfied that the father had pushed the mother as the mother alleged so as to make a finding to that effect. Indeed, her Honour rejected the mother’s evidence about the way the March incident unfolded.
Accordingly, the mother’s reliance on the fact that a family violence order was made against the father in 2015 takes her case about him really no further than was presented by her to Judge Purdon-Sully at the trial that led to her Honour’s 2015 Orders.

The significance of my rejection of the Mother’s allegations that the Father is violent

My rejection of the mother’s case that the father is a violent man is significant because I understood it to be the foundation upon which the principal part of her current application was built.
There is evidence that X has had some behavioural problems, both at school and at home in his father’s household. The mother attributes those behavioural issues to X’s exposure to family violence, both when he was a baby whilst the mother and the father were together and in the seven years that he has been living with the father since 2012. The mother’s position is that X is misbehaving in the father’s care because he is mimicking the father’s violent behaviour. Relevantly, the mother adduces no evidence that supports findings that the father is violent in his current household, either to his current wife or to X. She does not even say that X has told her that his father is violent towards him or his current wife. Her case is, as I fundamentally understand it, that the father was violent to her when they were together and that he, therefore must be still violent today. Indeed, she agreed with counsel for the ICL when counsel put to her in cross-examination that she considered the father to be a “violent, narcissistic rapist” – a description of the father that the ICL did not support and which I completely reject.
Of course, rejection of the mother’s case that X’s behavioural problems are caused by the alleged violence of his father nevertheless still means that a careful consideration of the evidence about X’s difficulties, his father’s parenting capacities, his mother’s parenting capacities and X’s own expressed wish that he wants to live with his mother is required to determine if his best interests may nevertheless require a change in his principal care arrangements from living in the father’s household to living in the mother’s household – a notion that neither the family consultant nor the ICL countenanced at all (and one that none of the previous three report writers involved in the case over the years countenanced either).
I also understood the mother to be advancing a case that she is the parent more capable of parenting X and dealing with his behavioural issues. Her case was based on the argument that X does not display any behavioural issues in her care and the further argument that she has demonstrated superior parenting capacity by being the parent who sought out professional assistance for X even though his father had sole parental responsibility.

The Evidence about these matters

The mother adduced evidence in the form of some records of the G School from 2014, X’s Prep year at that school. The records reflected that “Positive Behaviour” on X’s part was recorded on 26 February 2014, followed up by the record of X’s involvement in some fighting and swearing with some other boys on 27 February 2014. Then, more “Positive Behaviour” was recorded on 26 March and 13 and 15 May that year. Then there were some more incidents of poor behaviour by X recorded on 20, 26 and 28 May 2014 that involved him in some rough, bullying activity. X was suspended for one day following that final reported incident.
X changed schools to F School in 2015 after his father and step-mother moved houses. The mother adduced a copy of a letter from the Principal of that school into evidence. It is dated 30 March 2015. X was reported to have been seen urinating into the rubbish bins in the boys’ toilets and was spoken to and disciplined for that. He was also reported for hurting another child by grabbing that child’s arm and twisting it. The latter incident was reported to the father and step-mother who had a conversation with the Principal about it. The mother also attended at the school to speak with staff about these matters.
I observe that all that evidence was about matters that predated Judge Purdon-Sully’s August 2015 Orders.
Another email from X’s Grade 1 teacher to the mother dated 8 November 2015 was adduced into evidence by the mother. In that, the teacher reports that X was having trouble staying focused on task and obeying the teacher’s instructions. The teacher reported that he could be easily distracted by others.
The mother’s evidence was that she wrote to the father in November 2015 suggesting that X have some counselling. She adduced into evidence a copy of the father’s email response but not her initial email. As such, it is impossible to see how she dealt with it. In his response, the father said:
I have been informing you through email since court orders were made about X’s behaviour, schooling and extracurricular activities and up until last week X’s behaviour has been great. The incidents X has been in trouble for are minor and as a result he has had punishment from school in the form of lines which I made him do more than requested by his teacher. I am confident that X’s behaviour is no different from any other six year old and sure he is far from being a problem child in need of counselling.
X has told me and other family members that dad punched mum in the face and mum showed me photos of her with a black eye stating your dad hit me. …
Please read … the existing orders and please think of the impact denigrating myself in front of X has on him. X won’t be attending any counselling he has just been through a family report which said is a normal six year old (sic).
The mother said in her trial affidavit that she emailed the father in response pointing out “signs such as aggression, hyperactivity, disobedience, poor concentration, disturbed sleep, some nightmares and many other signs concerning the impact on our son’s health and well-being”. Again, interestingly, she did not put a copy of that into evidence. Again, it is impossible to see how she dealt with it in her email. She said that the father “responded again by brushing [her] off”. She exhibited his response in which he said to her, amongst other things, “if X was in need of counselling I would be more than happy to discuss this matter with you but he is a happy normal six year old”.
The mother then exhibited another letter she received from X’s father in August 2016 (nearly a year later) in which the mother was told that X’s behaviour “since the school holidays” had been “uncharacteristically poor”. The father told the mother that X’s behaviour had been poor from the first day he returned back from the mother’s holiday care. The father said X told him that the mother had said to him to “keep the naughtiness for Dad’s house” and that he was told by the mother just to call her and that she would come and pick him up. The father told the mother that X had told him he had been in trouble at school on Monday and Tuesday 25 and 26 July and that when he (the father) spoke to the teacher about that she told him that X had been in trouble but that his behaviour had been manageable. The father also told the mother that X had been rude and aggressive with his step-mother telling her he does not have to listen to her. X’s step-mother had reported that X told her it was his father’s fault that he is like he is “because he hit my Mum, ... Mum told me.”
The mother also exhibited a copy of an email that the father had received from X’s Grade 3 teacher in early March 2017. It was informing the father that X had been recommended for a program modelling more positive behaviour because he had received some minor referrals for poor behaviour in the playground.
The mother exhibited a copy of an email she received from the same teacher in August 2017 informing her of X’s slipping behavioural and disrespect levels and looking for her to reinforce the need for better behavioural standards with him when he is in her care. The father also received an email at around that time, informing him of Xs’ inappropriate behaviour at school.
The mother said in her evidence that it was she who initiated some intervention with X by seeing the school’s Guidance Counsellor in August 2017. She said the school counsellor suggested that each parent and teacher complete a confidential questionnaire online. The mother did not adduce any evidence in the form of records or correspondence from the school or the guidance officer that corroborated her assertion that it was her initiative that commenced this process.
The father gave evidence that as far as he understood, it was X’s teacher who had commenced this process by referring X to the school guidance counsellor who had spoken to both parents about the questionnaire. There was evidence that the father had texted the mother on the same day that he had received a call from the Guidance Counsellor informing the mother about the program for X and that the Guidance Counsellor told him she would inform the mother about it. That text was sent on the same day that the mother received an email from the Guidance Counsellor confirming their conversation that same day.
None of that evidence conclusively proves that it was the mother who initiated the process of having the child assessed and assisted. In these circumstances, I am not prepared to find that it was the mother who initiated the process. Even if she did and the teacher did not (as the father said he believed had happened), the evidence suggests that the father then acted completely appropriately in any event and co-operated with the process from the moment it commenced and continues to. Even if I found that the mother initiated the process, I would not be persuaded that somehow proves the mother’s parenting capacities are superior to the father’s.
The father said that he completed the online questionnaire and when the resulting report was issued to him, recommending some further action, he arranged for X to start seeing a counsellor, Mr H, who is a psychologist.
I am satisfied that the mother learned of X’s involvement with Mr H before Christmas 2017. It is likely that she began telephone communications with him at that time. There is evidence that the mother quickly told Mr H that she had been a victim of family violence at the hands of the father during their marriage. There is evidence that she also questioned Mr H’s qualifications to be seeing X. In early January 2018, the mother took X to a local general practicing medical practitioner (“GP”). That doctor contacted the father and invited him to discuss X’s health situation with him. The father answered that invitation and spoke with the doctor. The doctor then contacted Mr H and raised the possibility of X seeing a behavioural paediatrician if necessary. Soon thereafter, Mr H notified the father that he had decided to discontinue working with X as he did not want to communicate with X’s mother if that was required, having regard to the communication he had already had with her. He also indicated that he felt he was not the right professional to be helping X at that time.
In March, 2018, a referral to Dr E, a paediatrician, was made and in the letter of referral the GP observed, amongst other things:
X’s life has been made quite tumultuous due to his parents’ separation, going through court processes and sometimes being caught in the middle.
The ICL adduced a report from Dr E dated 22 October 2019. Dr E said she had seen X five times since March 2018. She said that X had been accompanied by his father for each of his appointments. She said that she had had separate, private conversations with the father about X and also telephonic conversations with X’s mother who wanted to know about his condition and management. She said that she has diagnosed X with Attention Deficit Hyperactivity Disorder (“ADHD”) of a predominantly inattentive type, generalised anxiety, moderate receptive language delay that impacts upon his learning, and neurodevelopmental trauma through exposure to a difficult relationship between the parents during his early childhood. She reported that he was on medication and was also well engaged with a behaviour management specialist and a speech therapist. She reported there had been “significant improvement in behaviour and concentration” and that his overall grades at school have improved whilst his reading comprehension remains at below expected levels.
The ICL also adduced into evidence a report from Ms D, the behaviour management specialist X has been seeing. She reported that the father had engaged her services from mid-December 2018. In the November 2019 report, Ms D reported that she had seen X on four separate occasions and was in regular communication with the father, particularly when it was needed. She said the father was seen with X on each of those four occasions. She reported that she has offered her services twice to the mother to work with her and X in her home or any other settings, but it seems as if the mother declined as she said “she has no problem with X when he is in her care”. The mother is reported to have “insisted that X has no issues, concerns or challenging behaviours at all”. Clearly, the mother must have been referring to her own experiences with X during the time that he is with her as that is not consistent with the reports of the father and his wife or the school.

Significantly, in my judgment, Ms D went on to report her concern about the mother’s assertions. She said that would be “contra to the information that X’s diagnosis would indicate.” She said that she would expect, given the levels of X’s anxiety that drive much of his behaviours, that it would manifest in many of his activities and integration within all settings and occasions. She expressed the expectation that his anxiety would manifest itself around the transition periods between the two homes and other events. She went on to express the expectation that his ADHD would manifest in behaviours that were “impulsive, challenging, and could even be disruptive and destructive.” She considered this behaviour would be apparent regardless of where X was or who he was with. She expected a consistency in the diagnosis regardless of where he was living.
Neither Dr E nor Ms D were cross-examined by counsel for the mother (or other counsel, for that matter). The mother asks the Court to accept her assertions that X displays no concerning behaviours when with her. Having regard to my findings about the mother’s credibility, her absolute determination to get X back into her care whatever it takes, and the opinions of Ms D just referred to, I do not accept the truth of those assertions.
The mother also relied on an affidavit of Mr J, a man she met in November last year with whom she has developed a very close relationship. Though the mother asserted Mr J was not her “partner” and Mr J himself said “I support her reasons to not get involved in a relationship”, X is reported to refer to Mr J as his mother’s “boyfriend” and it appeared to me that that is how he might appropriately be described. Irrespective of the “status” of their relationship, Mr J said he has “found X to be a well-behaved boy, well-mannered who loves to be in his mother’s presence” (sic).
With respect to Mr J, he also said “I have had limited contact with X” and had only spent time with him “on several occasions”. He told the Court that he does not live with the mother and has not stayed over at her home very often when X has been there. Additionally, his affidavit included unnecessary criticism of the ICL in the case that was, I am satisfied, unjustified and that Mr J was not qualified to give, as well as several paragraphs of evidence criticising the father straight after saying, “I have not met Mr Witnall”. He thereby demonstrated his determination to try to assist the mother’s case for reasons best known to him, even where his evidence was of little assistance. With respect, I give his observations about X’s behaviour very little weight.
X’s ADHD and his other difficulties may have some aetiology in the violence he was exposed to as a baby in his parents’ household, but, as the GP correctly put it in the 2018 referral letter that I quoted from earlier in these reasons, being caught in the middle of the ongoing dispute between his parents is most certainly not improving things and has contributed to his problems, in my judgment.
I am quite satisfied that the mother has acted in ways that have exacerbated X’s anxiety and that have significantly contributed to the difficulties he experiences in his father’s household. The evidence of the father and his wife, that I have no difficulty accepting, is that X has over the years told them and other family members that his mother has told him that the father was violent to her and that the father is the reason why X has behavioural difficulties. X has told them that his mother has shown him photographs of bruises and a black eye that she suffered back during the marriage and told him that his father had done those things to her. X has told his step-mother that he does not have to listen to her or do what she tells him.
In the Child Inclusive Conference Memorandum to the Court prepared by a Family Consultant in June last year, that consultant reported that X told her that the mother had been asking him who he wants to live with. Immediately after reporting that, she said that X asked her not to record “certain information” and that he expressed concern about how “both of his parents” may react to the information if they learned of it. She also reported that X “appeared apprehensive when discussing his mother’s feelings”. The Family Consultant also reported that at the end of her interview with X, she asked him if he had “anything further he wanted to say, and whether either parent had asked him to say anything during the interview”. He is recorded as having said “Mum said to tell you that Dad used to smack me because if I don’t they won’t do anything” about his living arrangements.
The Family Consultant who prepared the most recent family report, when reporting on her interview with X, wrote that X told her that his mother told him “my Dad did something bad to Mum on their wedding and I was only a little baby.” She reported that X revealed to her that his mother told him sometime this year that his father “punched her”. He told the report writer that there were bruises on his mother. He was reported to have told the report writer that if he lived with his mother he would not get mad, and not think of the things his mother has told him about his father.
The mother took an incredible approach to the reporting by the father, his wife and the family report writer of the things X had told them his mother had said to them. She denied she had ever said any of the things he reported. Remarkably, she asserted, firstly, that the family report writer was lying when she wrote that X had told her those things. Then, seemingly stepping back from that assertion, she claimed that the father had manipulated X to get him to say those things. As the mother’s counsel did not challenge the Family Consultant in cross-examination about the honesty of her reporting of X’s comments, I interpreted that as the mother effectively withdrawing that disrespectful allegation made against the family consultant.
I also reject her assertion that the father had manipulated X into saying those things. I am quite satisfied that X was reporting honestly that his mother had said those things to him that the father, his wife and the Family Consultant all reported X telling them. I am equally satisfied that the mother shares much with X and does not actively shelter him much at all from the emotions she experiences with respect to the father, involving him significantly in the complexities of this dispute. I am satisfied that the mother’s denials of these matters reported by X were deliberately false and consciously so because of her awareness that truthful answers might hurt her prospects in the proceedings.
Another aspect of the mother’s case also highlights her willingness to give false evidence where she thought truthful evidence could hurt her prospects. She initially gave evidence that she and the fathers of her two eldest boys have amicable co-parenting relationships and that they communicate well. The evidence did not persuade me that is true in respect of the father of her teenage son, Y. As for the father of her eldest boy, there was no evidence that the mother and he have any form of ongoing relationship. Their son is in his mid-twenties and is reported to live in Country I.
The mother told the Court when being cross-examined about her teenage son, Y, that he was not always in her care on the weekends when X is with her. She admitted that her co-parenting relationship with Y’s father was not good enough for them to agree that Y stay in her care on each second weekend when X has been staying with her since 2012. The co-parenting relationship between the mother and Y’s father was also not good enough for them to work out arrangements for Y’s father to sometimes take Y to his weekend sporting commitments so that the mother could take X to his or so that she could attend X’s weekend sporting events. It emerged that virtually never in the time that X has been living with his father during which he has generally played football every winter season, has the mother ever taken X to football or gone to watch him play. She offered as an explanation for that the need to take Y to his weekend events. In contrast, X was reported to have told the Family Consultant that it was because it was too far for his mother to travel. That answer itself is to be considered in the context of it being about an hour’s travel one way.
In the end, the mother told the Court that Y does not even spend any time with his father anymore and had stopped going in recent weeks. Without any evidence from Y’s father before the Court supporting the mother’s claims of a good co-parenting relationship, I do not accept the mother’s evidence that she communicates and co-parents well with Y’s father. I am satisfied she just said that to make her case against the father in these proceedings look better.

Co-parenting between the Mother and the Father

All of the evidence, including admissions from each of the mother and the father, was to the effect that there is no co-parenting between them. As I have said already, I reject the mother’s efforts to blame the father for that. There was ample evidence in the form of copies of emails and text message exchanges between the two of them to give a good indication of how they communicated.
The evidence satisfied me that the father was prepared to compromise and offer flexibility and co-operation whenever the mother requested it in terms of changing telephone contact times, for example. It equally satisfied me that it was a one way street in that respect and that the mother was totally inflexible and sometimes rude and hostile when the father requested any flexibility from her.
There was an email exchange between them where they were expressing different views on the interpretation of part of Judge Purdon-Sully’s August 2015 Orders that dealt with when the child was to be picked up from school by the mother for her alternate weekends to start. Her Honour’s Orders in that respect were clear and easily understood, I respectfully note. The mother’s interpretation of them was plainly incorrect and the father’s was plainly correct. Nevertheless, the mother became rude, hostile and demeaning of the father in her email claims and insistence that she was correct and was going to collect the child as she determined. Her position was unreasonably wrong and inflexibly presented. That is my assessment of her style of communicating with the father, given the evidence I had before me.

The Boy’s Views

Perhaps the strongest part of the case for the mother was the fact that X said he wants to live with the mother. There was evidence that X has expressed the view that he wanted to live with his mother and to spend unsupervised regular time with his father, step-mother and his siblings in that family.
The father and his wife both accepted that X had said, in the past, that he wanted to live with his mother. They said that X usually expressed that wish whenever they were having difficulties in the household with his behaviour and he was not getting his own way. I am satisfied that is correct.
The Family Consultant who wrote the memorandum last year reported that X had said it was not “fair” that he did not get to see his mother more.
The Family Consultant who wrote the most recent family report wrote:
When I asked X about what he wished the Judge to know about his time with his parents and/or about any changes he sought regarding his time with each of them, X told me he wanted to live with his mother. He wished to reverse the existing parenting regime.
The first reason X is reported to have given for such a preference is because he does not currently get to see his brother “for that long”. He then said that he does not get to see his mother for long periods of time either, save for holidays and he said he does not like that. He then explained that he does not “really like staying” with his father as it feels as if his father’s two younger children are treated better. The Family Consultant reported that X made it clear to her that he would be “significantly disappointed” if it is determined that he could not live with his mother.
If the child’s views were solely determinative of the matter, the outcome might be a clear one in favour of the mother in this case. But they are not. Though sections 60CC(3)(a) and 60CD of the Act require the Court to consider any views expressed by a child in deciding what parenting order to make in relation to that child, so, too, must the Court consider:
… any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Apart from the fact that X is only ten years old and not yet mature enough for his preferences to be decisive, I am also troubled about a number of other matters pertaining to his expression of these views.
As for the expression of them to the family report writer, she noted that it was “clear [X] experienced participating in this assessment as burdensome”. She observed that he cried when they talked about his views about his future parenting arrangements, attributing that to feeling dizzy because he was feeling hot and had been sitting for too long. Clearly, he was not feeling comfortable in being interviewed yet again or with the prospect of discussing his future parenting arrangements. I consider that reflects a lack of comfort in reporting, as he later did, that he wanted to live with his mother.
I have already covered the fact that the evidence satisfied me that X’s mother talks with him about his preferences and gives him information designed to colour his feelings towards his father and step-mother and living in their household. The evidence also satisfied me that she talks to X about the content of his interviews with report writers both before and after those interviews, including giving him encouragement as to some of the things he is to report. I cannot be satisfied that his expressed preference to live with his mother is a preference honestly held by him or that it is soundly and reasonably based.
The Family Consultant who wrote the most recent family report considered X is a conflicted child who is in a “loyalty bind”. She said though unambiguous in his stated preference, the grounds he relied upon and his expression of such were less certain. She said that he put his preference down to the way in which the father manages his less desirable behaviour but she considered him “unable to commit to” the picture of his father he was trying to portray. She said it was a pattern for him to make definitive comments “only to waver soon after”. The family report writer expressed the opinion that X only said what he did about his father so as not to displease his mother. She opined that it might just be natural curiosity of a child who has primarily lived with one parent about what it might be like to live with the other that actually motivated his preference.
For these reasons, X’s preference, as expressed to the family report writer is given very little weight by me in my determination of this matter.

The Family Report Writer’s Conclusions

The Family Consultant was firm in her view that there are no grounds to warrant X changing residence to live with the mother. I accept that as correct. She then went on to discuss the “pros and cons” of the various scenarios of time that X should spend with the mother.
She first considered the existing regime and expressed the view that the risk in leaving things as they are is that X will continue to experience the loyalty bind as the conflict between the parents will probably not abate. She then turned to the possible reduction in time X spends with his mother. She pointed out that X would not like this, so the Court would have to consider whether the benefits of such a reduction would outweigh the adverse effect on X, including possible deterioration in his relationship with his mother and his brother, Y. The Family Consultant did not really outline what she considered would be the benefits of this approach, though I am satisfied that it would reduce X’s exposure to the loyalty bind and the negative influence of his mother on his relationship with his father and his step-mother and give him the chance to settle into a greater stability where his interests are being suitably considered and advanced by his father and step-mother.
Lastly, the report writer referred to the scenario of no time with his mother which would completely mitigate X being exposed to the ongoing conflict and loyalty bind but would upset X considerably. Committing herself to a recommendation amongst the options, the report writer wrote:
On balance, I am of the view that X should spend time with his mother, but it should be in a reduced capacity, such as twice a school term for a full day.
The ICL submitted, with some strength, that the Family Consultant’s recommendation should be accepted by the Court. Counsel for the father also submitted that this is the course that should now be adopted.
As I have already made clear, I accept those submissions and will make orders that significantly reduce the time and communication that X has with his mother, convinced that is in his best interests.
The mother’s unwillingness to accept the father’s role in X’s life as determined by the Federal Circuit Court Judge in 2012 and in 2015 has led to continued, unabated conflict with his father that she is principally responsible for. It has also brought the parties back to Court for a third trial in seven years, not to mention all of the interim applications, contravention applications and directions hearings for which they have had to come to Court during those same seven years. It continues to have an increasingly detrimental impact upon X, with clear negative developmental outcomes for X.
The father and his wife are truly committed to helping X with his difficulties. X’s father impressed me as a man determined to be the best parent he can be for X whilst at the same time struggling to deal with the difficult relationship that he has with X’s mother. X’s step-mother impressed me as a woman also completely committed to X’s well-being and achieving the best developmental outcomes for X that can be achieved. The evidence of Dr E is that X has improved in the time she has been seeing him. That is to the credit of his father and step-mother.
I am quite satisfied that if X simply continues to go spend each alternative weekend with his mother and half of his school holidays, and is required to communicate with her by phone on two nights each week, that the mother will increase her efforts to win his loyalty in the loyalty bind he finds himself in and to draw him, one way or another, into her full-time care. If that happens, I am satisfied that she will then do her best to remove him from the influence of his father and his step-mother completely. I have no faith in her claims that she would encourage the relationship between X and his father. All the evidence belies the truth of such claims.
X is approaching adolescence. He has been diagnosed with ADHD and anxiety and some learning challenges. I am satisfied that his father and his step-mother are best equipped to help him satisfactorily meet those challenges. They will only continue to be hampered in that task if their best efforts are undermined by X going off each second weekend and half of the school holidays to spend time with his mother and to continue to be subjected to her very negative views of his father and her marginalising influence. Their efforts will also continue to be hampered if X is rigidly and inflexibly required to speak to his mother on the phone between 6:00 pm and 6:30 pm two evenings per week.
I accept, as X is reported to have said, that he might well be disappointed by such an outcome. However, there is nothing in the evidence that causes me to find that he will not accept it and that he will not simply get on with his day to day living and learning at school. The evidence satisfies me that he loves and appreciates his father and step-mother and his younger siblings and does mostly enjoy being with them. I consider that the proposed outcome gives X the real chance of finality to the litigation that has beset his life to date and a great chance of maintaining the stability that is in his best interests at this time.

The Orders I will make

The father will continue to have sole parental responsibility for X but will still be obliged to inform the mother that a decision is to be made and invite and consider her views.
As per the submissions of the ICL, the child will spend a day with the mother two times on weekends each school term, again shortly after his birthday, as well as on Mother’s Day and he will spend days with her during his school holidays. In this way, his relationship with his mother and his brother, Y, will be able to be maintained but protection from psychological harm will be prioritised.
X will transition from the care of his father to the care of his mother and back to the care of his father at McDonald’s Restaurant at Suburb B and neither the mother nor the father shall get out of their car whilst transitions are happening.
There will be orders obliging each parent to keep the other informed of address, telephone number and email address for communicating with each other and orders relating to information the father is to continue to provide to the mother about X’s health and schooling.
There will also be injunctions restraining each parent from inappropriate behaviour around the child.
The father sought to have the mother declared a vexatious litigant but, as I informed his counsel during her submissions, I am not convinced such an order is required. However, having now heard and determined this matter, I will make an order that any fresh applications, including applications for the other parent to be dealt with for a contravention of the parenting orders, be listed before me in the first instance, unless that is impracticable.
I will also order that the ICL provide a copy of these Orders to Ms D and Dr E and for the father to engage Ms D to explain the outcome of these proceedings to X as soon as possible.
I will also make a specific order, though not absolutely necessary given the sole parental responsibility order in favour of the father, that the father is authorised to apply for a new passport for X without requiring the mother’s signature on the application and he shall be at liberty to travel overseas with X for holidays. When he does that he shall inform the mother and provide her with a copy of their itinerary.
I make the orders set out at the commencement of these written reasons.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 December 2019.

Associate:

Date: 5 December 2019

[2019] FamCA 930

5 December 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies