WOODWORTH & ANSLEY
[2019] FCCA 2020
•5 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WOODWORTH & ANSLEY | [2019] FCCA 2020 |
| Catchwords: FAMILY LAW – Parenting dispute – mother entirely accepting child’s disclosures of alleged violence by the father – father convinced mother fabricating child’s disclosures – both parents entirely wrong – child making disclosures but disclosures not true – father’s ongoing anger with the mother – mother’s ongoing fear of the father – both parents lacking insight – order for gradual increase of father’s time as recommended by the family report. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS WOODWORTH |
| Respondent: | MR ANSLEY |
| File Number: | DGC 2408 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 15 and 16 July 2019 |
| Date of Last Submission: | 16 July 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 5 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cranenburgh |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Ms Clarkin Hardy |
| Solicitors for the Respondent: | John Snodgrass & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Glaister |
| Solicitors for the Independent Children's Lawyer: | Dandenong Family Lawyers |
ORDERS
The Mother have sole parental responsibility for the child [X] born … 2011 (“[X]”).
[X] live with the Mother.
[X] spend time with the Father each alternate weekend as follows:
(a)Commencing on Saturday 10 August 2019 for 2 hours at times to be determined by Family Life at Suburb L supervised at the Contact Service;
(b)Commencing on Saturday 24 August 2019 and on alternate Saturdays (or Sundays) thereafter for eight occasions of 2.5 hours unsupervised with changeover to occur at Family Life at times stipulated by them;
(c)Thereafter commencing 15 December 2019 for eight occasions of four hours from 10:00am to 2:00pm on alternate Sundays with changeover to occur at McDonalds Restaurant in Town K at B Street, Town K;
(d)Thereafter commencing 19 April 2020 for seven hours from 10:00am to 5:00pm on alternate Sundays for 2 occasions;
(e)Thereafter commencing 17 May 2020 time is permitted to be at the Father’s home from 10:00am to 5:00pm on alternate Sundays for 2 occasions;
(f)Thereafter commencing 13 June 2020 from 10:00am on the Saturday to 10:00am on the Sunday for 2 occasions;
(g)Thereafter, commencing 11 July 2020 from 10am Saturday to 4pm on the Sunday;
(h)At such further and other times as are agreed between the parents in writing.
[X]’s time pursuant to these orders is not to occur at the Father’s home until the time provided for in sub-paragraph 3(e) commences.
[X] communicate with the Father each Thursday via telephone between 6:00pm and 6:30pm with the Father to initiate the call, to a mobile phone specifically provided to the child for this purpose. Conversations are to be appropriate and child focused with [X] being afforded privacy during calls. The Mother to provide the Father with the telephone number by Wednesday 7 August 2019.
The Mother be restrained by injunction from relocating further than 2 hours drive from the Father’s present home as at the date of these Orders.
The Father is permitted to receive copies of [X]’s school reports and photographs and is to be kept informed of any significant medical event.
The parties make use of an application such as MyMob to communicate, as necessary.
[X] continue to attend counselling with Relationships Australia, but cease counselling with Counselling Service.
The parties are not to communicate directly with each other at changeover.
The parties be restrained by injunction from:
(a)Discussing these proceedings with [X] or in his presence or hearing, beyond what is required to ensure he understands the parenting arrangements;
(b)Making derogatory or belittling remarks regarding the other parent (or any person) to [X] or in his presence or hearing.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Woodworth & Ansley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2408 of 2013
| MS WOODWORTH |
Applicant
And
| MR ANSLEY |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about the best interests of a young boy, [X], born … 2012. His parents have been litigating about him for most of his life and are extremely mutually embittered. The positions adopted by the parties have waxed and waned even during the evidence and submissions made in the hearing, but if I understand the matter correctly, the applicant mother seeks that [X] live with her and spend time, gradually increasing, but, in any event, at all times at a public place and preferably Play Centre in Town K. She is adamantly opposed to unsupervised time other than in such a public place.
The father’s countervailing position is that he should have [X] spend time and communicate with him each alternate weekend and half school holidays. The position of the Independent Children’s Lawyer is that time should gradually increase to an endpoint which involves overnight time, essentially as recommended by the family report writer, Ms C.
For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer.
The Essential Issues Between the Parties
The mother’s case is that the father represents a significant risk to [X]. She accuses him of having assaulted him, holding a knife to his throat, grabbing him by his penis and dragging him to a bath and threatening to drown him in it. She also asserts that the father has made threats to [X] to kill the mother and made remarks generally denegratory of her. These latter remarks are said to have occurred during periods of supervision.
The mother says she is so scared of the father, in respect of whom she has an indefinite Intervention Order, that she is moving shortly to a place in Region M and that her fear is so great she does not wish to reveal her address even to her legal advisors let alone the father.
The father by way of contra-distinction says that all the allegations made to him by the wife are false and malicious (family report paragraph 45) and that there is no good reason why [X] should not spend equal time in his care. The father’s perception is that the system is against him and overly favours the mother, and this perception even extends to the family report writer, Ms C.
As I hope I will be able to make clear, it is entirely apparent that the mother’s allegations are not uniformly false and malicious, but do, indeed, flow from disclosures that [X] has made to her from time to time. The father’s perception in this regard is totally wrong.
By the same token, the father has not assaulted [X] in the manner that the mother describes. He has not held a knife to him, he has not grabbed him by the penis and taken him to the bath and threatened to drown him. He has not threatened to [X] that he will kill the mother. [X] has said these things to his mother because, as I find, that is what he knows she wants to hear.
The Parties’ Affidavits
Given the intensity of the mother’s assertions as to her fear of the father, I have taken it upon myself to read the entirety of this file back to 2014. Whatever may have occurred during the relationship, it is apparent that there was, following earlier orders made in 2015, a period from then until about May 2017 when the relationship between the two parents was essentially good. The mother used to go and stay with [X] at the father’s home, albeit that they were not intimate. All this came to an end when the assertions as to the threats to kill [X] emerged in May 2017. In her subsequent affidavit material filed during this set of proceedings, the mother has not at any point disclosed any assaults by the father on her. Rather she has referred to the long history of Intervention Orders against the father, together with his conviction for stalking and texting her on a grossly excessive number of occasions.
The father’s affidavit material is consistent with his view of the mother more generally. His affidavits contained long histories of denials of the mother’s assertions of violence and threats. He also accuses the mother from time to time of being an alcoholic (which she clearly is not) and makes assertions as to her mental health which have subsisted through to the last paragraph of his most recent affidavit. I do not propose to quote the parties’ affidavits in any detail whatsoever, but the last affidavit the father filed ends with this paragraph:
I find it absurd that a woman who has mental health issues for which she takes antidepressants, who has admitted to suicidal thoughts (as found in the medical material that was previously subpoenaed), who has alienated her three elder children from their two fathers and who has accused me of criminal offending of a sexual nature, which is untrue and has not been proven, has the sole care of our son, when I do not have mental health issues, therefore, I have never taken antidepressants, and I have worked and continued to work and to have raised six children (three of my own, in addition to raising my three grandchildren) with their mother and grandmother, insists on being the sole carer of a child who is displaying erratic tendencies who needs to have both a mother and father in his life.
That paragraph, it should be noted, follows earlier paragraphs in which the father continues to repeat his assertions as to the mother’s mental health difficulties and, remarkably in the circumstances, an assertion at paragraph 48 in which he asserts ‘I do not denigrate her’. It should be noted that both parents have been psychiatrically assessed and given what the Independent Children’s Lawyer’s counsel referred to as a clean bill of health. It is plain that neither parent suffers from any form of mental illness such as to impair their capacity to look after the child.
The Exhibits Tendered at Court
Given the way the evidence and submissions advanced, it is appropriate to pay attention to the materials that have been tendered. There was much cross-examination about the numerous Intervention Orders that this case has given rise to. Counsel for the Independent Children’s Lawyer by the consent of the parties tendered as exhibit ICL2 a number of these records. It is apparent that the first Intervention Order taken out by the mother against the father, which included [X] as an affected party, was on 11 September 2012. This was made by consent without admission of allegations in the complaint, and it was to last for one year.
A further Interim Intervention Order was made ex parte on 24 March 2014. On 29 July 2014, a further Interim Intervention Order was made. The father attended Court and did not agree to the order being made. On 12 December 2014, the father was convicted in the Magistrates Court and sentenced to nine months and three months imprisonment, both suspended for two years. That was the subject of an appeal to the County Court of Victoria whereby on 16 July 2015 the orders imposed in the Magistrates Court of Victoria were set aside, and in lieu, the father was released without conviction on an adjourned undertaking to be of good behaviour during the one-year period of the adjournment and to provide a report from Ms D, psychiatrist.
An application and summons for an Intervention Order due for hearing on 16 December 2014 relevantly asserts as the grounds for the necessity of the order:
THE RESPONDENT RANG ME TO ARRANGE TO COLLECT PROPERTY FROM MY HOUSE. WHEN HE ATTENDED, HE WAS VERY ANGRY AND INTIMIDATING, AND HE THREATENED TO HIT MY 17 YEAR OLD SON WHO HAS A DISABILITY. MYSELF AND OUR BABY WERE STUCK IN THE MIDDLE OF THE FIGHTING. PRIOR TO THIS IN 2011 AFTER I HAD COME HOME FROM HOSPITAL FROM HAVING THE BABY, I HAD A VERBAL ARGUMENT WITH MY ELDEST DAUGHTER. THE RESPONDENT PUSHED MY DAUGHTER AS A RESULT OF THIS ARGUMENT. THE RESPONDENT HAS ALSO MENTALLY ABUSED MY 13 YEAR OLD DAUGHTER REGARDING HER WEIGHT. THE RESPONDENT HAS ALSO THREATENED TO TAKE OUR BABY, AND AT SIX WEEKS OF AGE HE FED THE BABY A BEAN.
On 4 February 2015, a further family violence application was heard and a Final Order was made until further order. At that proceeding before Magistrate Lennon, both parties were legally represented and gave evidence.
Finally, noting that I have not referred to all the various legal proceedings between the parents, I note that the father has filed an application on 16 July 2019 seeking to revoke the Intervention Order on grounds that ‘THE PROTECTED PERSON HAS TRIED TO HAVE ME CHARGED WITH BREACHES ON AROUND 8 OCCASIONS NONE OF WHICH HAVE BEEN PROSECUTED SUCCESSFULLY. I BELIEVE THE PROTECTED PERSON INTENDS TO MANIPULATE MY TIME WITH MY SON BY USING THE INTERVENTION ORDER.’
[X]’s school reports for the 2017 to 2018 years were tendered. They show some slight delay in his learning, but to my way of thinking, show marked more recent improvement. I note from the family report and, indeed, the evidence more generally that [X]’s learning difficulties may have been contributed to significantly by his poor eyesight and his failure to wear his glasses, something that is doubtless going to be addressed in the future.
Section 11F Report
This report by Ms C followed the interviews in November 2017. The report noted the indefinite Intervention Order against the father and the father’s denial of stalking and harassing her following separation. The report noted that the parties had a largely amicable co-parenting relationship since Final Orders in 2015 until about February 2017 when [X] started to express reservations about spending time with his father. [X] made a number of allegations including having a knife held up towards him, the father threatening to kill [X] and his mother and the father inappropriately touching [X]’s genitals. It was noted that investigations had not produced any charges. The report noted on the second page:
Ms Woodworth did not seek to denigrate the father however she described ongoing anxiety that he may harm [X] in some manner and she was unable to articulate what would need to occur for her to establish confidence in Mr Ansley’s care of [X]. She remained at a loss in trying to explain what had led to such a drastic change in [X]’s attitude towards his father and said it could only have come about due to Mr Ansley mistreating [X] in some manner, and she believed her son’s account.
The report continued on page 3:
It was apparent Mr Ansley remains extremely angry at the mother and he was somewhat fixated on apportioning blame on her. He expressed feeling unheard in legal and other processes such as police and DHHS investigations, and he was clearly very frustrated at what he described as unfair systems that had favoured the mother.
Mr Ansley’s mistrust and deep seated anger towards Ms Woodworth raises doubts as to the capacity of the parents to engage in any ‘joined up’ parenting in the foreseeable future.
The father complained of the mother’s malicious and fabricated reports about him and he asserted that he had never been convicted.
I note that [X] described a positive home environment and relationship with his mother but did not wish to see his father, as his father had hurt him, touched his private parts and chased him with a knife. In the end [X] did see Mr Ansley, but little warmth was observed in the relationship.
The Family Report
The family report was conducted by Ms C notwithstanding the father’s objections. I have regard to all of it. The mother’s position was that she have sole parental responsibility and that [X] should live with her and spend no time at all with the father. The father refused to offer a formal proposal and put forward various possibilities. I note that [X] had been interviewed twice by SOCIT but no disclosures were made and the allegations were not substantiated. Put broadly, the mother’s concerns were [X]’s safety with his father, the possibility that the father would denigrate her to [X] and/or overhold him as he did in 2014 and a concern that [X] was behaving badly as a result of things his father had told him.
The father’s behaviour is best paraphrased at paragraph 41:
Mr Ansley’s demeanour was angry from the outset and it was apparent he was reluctant to engage in the assessment, often offering only curt responses, if at all. Mr Ansley’s focus on protesting the assessment and legal processes influenced the interview, which was rather disjointed and, to some degree limited as a result.
The father refused to see [X] and was highly critical of the mother. As earlier indicated at paragraph 45, he said all the allegations made against him by the mother were false and malicious. He repeated about having been ‘cleared of everything’ and that neither the police nor the DHHS had proven anything against him. He was either not able or unwilling to describe any concerns he had for [X] in the mother’s care other than the claim that [X] is unable to read and write.
[X] was interviewed and perhaps unsurprisingly (paragraph 53) at times appeared to be sad and rather tired of the circumstances of his life. When informed that he would not see his father and asked if he had been hoping to, he responded, “Kind of.” I note that his only concern about his home life was ‘he sometimes hears sounds at night and gets scared’ (paragraph 58). At paragraph 60, the report noted:
[X] thought that spending short periods of unsupervised time with his father would be okay, so long as time did not place at
Mr Ansley’s home. [X] preferred time to take place at a play centre or similar, activity focused venue in the community, with other people around; he did not want to spend time with
Mr Ansley on his own. [X] said “two or three hours” would be sufficient time. [X] said he was worried that if he went to Mr Ansley’s house “probably something would happen – lizards would come”. He said his father has a big house “full of creatures”, which makes him scared. He could not articulate further on this.
I note that at paragraph 62 ‘[X] said his mother generally does not talk to him about his father; he said neither Mr Ansley nor Ms Woodworth make derogatory comments about the other parent, and he was unsure how they felt about each other’.
Under the heading Evaluation at paragraphs 68 - 69, the report noted:
[X] has spent largely consistent supervised time with Mr Ansley during the past year; the predictability of such would likely have been of comfort to [X] after a period of considerable disruption in that relationship. Given his earlier life experiences it seems unsurprising that [X] stated he preferred what he likely considers to be the ‘safest’ option in respect of future time arrangements – in both a physical and psychological sense. Whilst content with the prospect of continuing to spend time with his father, [X] very clearly preferred this occur in a manner that minimises any potential perceived risk and that is focused on play. This is also a developed and clearly appropriate sentiment for a nearly eight year old boy to hold.
Mr Ansley’s fixation on having greatly increased time with [X] shows a deeply concerning lack of insight into [X]’s current needs and psychological capacity. Mr Ansley’s (unclear) proposal of a shared cared arrangement appears much more focused on his perceived rights as a parent and on ensuring that Ms Woodworth has no ‘advantage’ over him, than it is on establishing the optimal parenting arrangements for [X].
Having recommended against a shared care assessment, the report continued at paragraph 71:
Mr Ansley’s continued anger with Ms Woodworth, and frustration with the processes the family have been subject to during the parental dispute, raises the query as to whether Mr Ansley will be able to refrain from placing pressure on [X] to spend increased time with him, or from making negative, angry comments regarding Ms Woodworth. There is no strategy available to categorically ensure this does not occur, other than to withhold all time. Given that [X] places some value on his relationship with his father and has enjoyed spending time with him such a measure does not appear warranted, particularly in the absence of having attempted at least limited periods of unsupervised time. However, the future and the success of time arrangements remains incumbent upon Mr Ansley, and it would behove him to ensure time spent with [X] is positive, enjoyable and devoid of any inappropriate behaviour towards or around his young son.
I note that at paragraph 73 Ms C observed that there was no evidence to suggest that the mother had fabricated allegations against the father and that SOCIT did not find that [X] had appeared to be coached.
At paragraph 73, Ms C opined:
It is possible Mr Ansley may have sometimes used inappropriate discipline with [X] in the past and it is of course possible he may do so in the future, however, [X] has not demonstrated that he feels fearful of his father and they readily demonstrate mutual affection. A further point that would seem to ameliorate potential risk in this regard is [X]’s ability to report any inappropriate treatment, as he has done previously.
Paragraphs 76-77, the report continued:
Whilst the family life reports indicate that, in the mean, Mr Ansley and [X] share a positive and affectionate relationship, it is noted during spend time there were numerous occasions with little or no interaction or conversation between them sometimes for up to thirty minutes. It is possible Mr Ansley’s age and health may have contributed to these instances however the reports would also seem to indicate that [X] would at times pay his father little attention. This has some relevance for the recommended future time arrangements as it will be important (especially in the first instance) that quality over quantity is the primary consideration while their relationship develops.
Considering [X] has spent no time with his father outside of a facilitated, supervised setting for over two years it would be rash to hurriedly force him beyond a similar scenario. [X] needs to develop a deeper sense of trust in Mr Ansley, prior to him feeling confident that his father is a safe person whom he can rely on and enjoy time with beyond rather limited arrangements. Until [X] feels more assured in this relationship it is highly likely that any significant alteration to spend time arrangements, outside of his psychologically safe zone, will be detrimental to his emotional wellbeing and may ultimately damage the relationship that currently exists.
The report went on to note the undesirability of continued Counselling Service for [X], noted the impracticability of equal parental responsibility and noted [X]’s views, albeit that the recommendations of the report are likely to be in accordance generally with his wishes.
The report recommended that [X] spend time with the father each alternate weekend on either a Saturday or Sunday for a maximum period of two hours initially at a public venue. After eight occasions, this could increase to four hours’ duration, and after eight further occasions, this could extend to seven hours and possibly be permitted to occur at the father’s home. The report also made a recommendation for telephone contact once a week and ancillary orders relating to communication, [X]’s counselling and ancillary matters.
It should be noted that I do not propose to deal with the affidavits from the various contact centre workers who have observed [X]’s time with his father, as they are consistent with Ms C’s observations above.
The Submissions Made and Evidence Given at Court – The Case for the Mother.
What follows is taken from my notes.
I note that the mother is selling her home in Suburb N and looking to move to Region M, although she will be no farther from the father’s residence when she does so. Counsel indicated that the mother had refused to make her address known even to her as a result of her concerns. It was proposed that time can take place at Play Centre in Town K on Sundays. Telephone time would be once per week and she would buy a children’s mobile phone for this purpose.
The mother was called and adopted her affidavits as true and correct. Without objection, some further evidence-in-chief was led.
The mother said she had never lived with the father but had stayed over on some occasions. She stated “what [X] has stated to us is the truth”. She opposed shared parental responsibility as a result of [X]’s allegations. She has a poor relationship with the father and has no communications with him. She was in the process of buying a new home, which would be about one hour from where the father lives. She opposed time each alternate weekend because of [X]’s allegations and seeks changeover at a police centre. She said the father was estranged from his three children.
When asked about Ms C’s recommendations, the mother said she would like to not agree. She felt she had no choice that [X] spend time with the father. There should be no overnight time or time at the father’s home. She just wanted [X] safe. That was it.
Under cross-examination by the counsel for the father, the mother said that [X]’s statements were the truth. She referred to a phone call on 26 May 2017. The father had phoned. He was concerned that Mr E had hurt [X]. [X] had disclosed that the father had threatened to kill him twice. He put a knife to his throat and took him to the Town F police station. He had grabbed his penis and dragged him to the bath and said he would drown [X] and then kill the mother.
On 11 June 2017, [X] disclosed that, if he told the police, his father would kill him.
The mother confirmed that she proposes to move to Region M. Mr O has recently moved out. She is working at the moment but not 9.00am to 5.00pm every day. The Family Court proceeding is stressful. She had not lied once in her affidavits. She was worried that the father would kill [X]. He may touch him again or may drown him. She does not want [X] to see the father. All the problems started when she ended the relationship.
The mother conceded that the father had offered her firewood and she stayed at his farm in his spare room. There was an Intervention Order in place at the time but she got the no contact condition removed. The father had given her $3000 for [X]. She said that the father liked to control her with money. Once she stopped going to the father’s home is when it all started. She was the subject of harassing phone calls from the father who was always questioning if she had a partner. It was nice to go to the father’s premises. This happened for a few months but she could not remember when or how long. It was not as long as Wednesday to Sunday. They would go there on the weekends.
The counsellor seeing [X] at Relationships Australia is Mr G, and has been seeing him for two years. He sees Mr H at Counselling Service, but she ceased this after the family report. She said she believes her son. The troubled streak referred to in the family report is [X]’s behaviour. He recently said he would kill her and grabbed two knives. She told him to put them down and he did. He started hitting her increasingly hard and she told him to stop. This all started out once [X] saw his father again. [X] has said “You haven’t protected me, mummy”.
When it was put to her that she had not encouraged phone calls, the mother said [X] was having the calls but did not want to speak to his father.
Cross-examination about the Intervention Orders was bedevilled by the sheer number of Court proceedings.
The mother was taxed with [X]’s school reports, to which I later refer. When it was pointed out to her that [X]’s reading and writing were below the expected area, the mother said she did not agree with the school reports at all. [X] can read and write quite well. She accepted he had to work on these. He was a very good read and writer. She did not agree that the 2018 report indicated a need for improvement in movement. He is very good at catching and kicking. [X] sometimes refuses to wear glasses.
When she was asked if she would consider communication with the father she said this was not possible because of the allegations. There will be no problem with [X] moving schools. She told [X] not to fight with P. Sometimes she sends him to his room. She accepted that [X] had told Ms C that the parents do not speak badly of one another. She also accepted that the contact centre had observed a good relationship generally between the father and [X]. She would not accept that [X] made the allegations up; those were his words. She does not know what [X] means by “creatures in the father’s house”. [X] needs to continue his Counselling Service , which is suspended after the family report.
The mother was cross-examined about her three other children. Their father chose his dog over his children. She was further cross-examined about her own brother. She had reported him some years ago. Mr Q (the brother) had babysat [X] for a few hours. Mr Q is currently in gaol for abusing his own daughter. The mother was adamant that her bother had never touched [X], and said he had told her so from gaol.
The mother does not take Lexapro, but takes mirtazapine at nights. She smokes 20 to 30 cigarettes per day. She does not like her father and does not see him much. She is staying on her medication. She does not recall any suicidal thoughts. This might have been possible in her 30s. She does not accept [X] makes anything up.
Under cross-examination by counsel for the Independent Children’s Lawyer, the mother conceded that there were no references to injury to [X] in her affidavits. He only had a cut knee on one occasion. The Department for Health and Human Services have interviewed [X] at school, and no injuries were reported. The police did not notice any injuries either.
She had dated Mr E in 2014. He had a criminal record relating to drink driving. She had never left Mr E alone with [X].
The first disclosure made by [X] was in fact not made to her, but to her daughter R. [X] had told her he was hit by his father several times and was really sad. There were no signs of injury. The threats about the knife and drowning were made.
SOCIT interviewed [X] in July 2017 and found his answers inconsistent and not credible. The mother was reluctant to accept this, but grudgingly did so. She did not remember the police record. It was put to her that [X] made no disclosures to the police or the DHHS. The mother agreed that [X] had said these things repeatedly.
When it was put that [X] might have been wrestling with his father and might have been hitting and slapping in a play fight, the mother said she had never seen the father play fight with [X], but it was possible. Mr G had told her what was disclosed. The mother eventually conceded that [X] might have exaggerated an incident where he has said he was kicked hard by the father. She said she saw a bloodshot arm on 25 June 2017, but conceded it was not in any affidavit. When it was put that what [X] had said to the counsellor might be exaggerated, the mother reluctantly conceded this was possible. She agreed that there had been 13 reports to the Department of Health and Human Services in 2012 and 2017 by both parents.
When it was put to her that in June 2017, the father made a report about Mr E injuring [X], the mother said things were going well until Mr E came down on 25 May. She said Mr E never hurt [X].
When it was put that [X] had spoken about the mother pushing him over, the mother said this was just a few months ago. She had not threatened to kill his father. [X] must have made this up. The mother confirmed that she was in a relationship with Mr E in June 2016, but ended it in July 2016. When it was put that the report said that [X]’s sisters told him to spend more time with his father and not with his mother and not his father, the mother said this was not true. She has spoken to her daughters and this was a lie. It was possible the father was playing a game when he slapped him.
When it was put that the department contacted the school and there were no reports of problems at school of sexualised behaviour, the mother had little to say by way of answer. She conceded that filming [X] would be putting pressure on him, and it was not a good thing. She was aware that fights in Court were not in [X]’s best interests, but I should observe that it’s clear that she blames the father entirely for the Court proceedings.
The mother has ongoing anxiety, and some depression. She is nonetheless a good mother. When it was put to her that the father’s psychiatric assessment was unremarkable, the mother made no clear response. She said it would be in [X]’s best interests to have a better relationship with the father. When asked if time should be unsupervised as recommended in the family report, the mother said she still believed [X]. She had done what she did to protect him. She nonetheless would comply with any court orders made.
The mother was most reluctant to concede that the contact centre reports suggested a good relationship between [X] and the father, but ultimately accepted that those reports were likely correct. She would abide by Court orders to cease if the Court ordered the cessation of time with Counselling Service. She agreed that [X]’s phone calls with the father should be private, and said that time should increase gradually.
In re-examination, the mother confirmed that she would buy a mobile phone for [X]. She remained not confident about overnight time.
The evidence of the father.
The father was called and adopted his affidavits as true and correct. He is unemployed and on a pension. His usual work was as a labourer. He denied the assertion that he had held a knife to [X] and tried to drown him or chase him onto the main road. On the occasion of the phone call about Mr E, [X] had wanted to talk to his mother. [X] was not screaming. He was on loudspeaker. He could hear the mother screaming, “Bring my son back”. He was not going to do that and went to Town F police to have [X] checked. During the interviews, (although the father was not present), [X] made allegations about Mr E’s treatment of him, and he took him home.
Under cross-examination by counsel for the mother, the father said that at one time there were ten Intervention Orders. He was cross-examined in detail about the history of the Intervention Orders. He said he agreed the 2012 Order was by consent with a denial. He did not recall the 2013 order. He said nothing has been proven as yet. He recalled the 2014, the second Intervention Order proceeding. The matter ran before the court and both parties were represented. Both gave evidence. He agreed that there was a final order on 4 February 2015 which he had not agreed to and at which he was represented.
The mother had come to his home and slept in the spare room. The order was varied. It lasted until further order.
When asked what he understood about what constituted family violence, the father said that you cannot do it. He had never done it. His appeal was heard in the County Court. It was put to the father that family violence is also control and can involve yelling and screaming and hundreds of messages and the father responded that it was family violence if you had been doing it. Things were going well until 2017. He said he had lived in the mother’s house for three years. The relationship ended when he was on his way to Brisbane but she would not answer his phone calls in September 2012. He did not know she had a new boyfriend called Mr S. He had a few altercations with Mr S. Mr S had eventually come to live with him for a little while (Mr S is on affidavit although he was not called). He had never seen the video Mr S took of the mother and never showed it to [X]. He thought [X] makes things up. Nothing had happened to [X] in his care. He was not aware that the mother’s brother Mr Q had head injuries. He is in jail for rape. When it was put to him that [X] made allegations in 2017, the mother said Mr Q was in jail. It was put to him that he believed that Mr E had hurt [X]. The father suggested this was irrelevant. He was, I should note, angry at all times and exceedingly unresponsive to the questions put.
The father confirmed that the mother complied with the extant orders until June 2017. He was unprepared to concede that the mother had been the primary carer of [X] since his birth. He denied making any reports to the Department of Health and Human Services. He had been to a meeting at DHHS about him putting a knife to [X]. He did not know about the relationship with Mr E. It annoyed him a little bit that the mother stopped coming to see him. He lives on the farm and has four acres. He does not leave [X] by himself.
The father was cross-examined about the extract of the family report referring to thousands of creatures at his home. He said there were lizards at his property and [X] could be afraid of them. He is not scared of cows and bulls. The father was not able to say why [X] did not want to spend time with him. He said he was prepared to go half but wants equal time. He is going to court on Wednesday to try and remove the Intervention Order. He has no communications with the mother, who lives one hour’s drive away. He said it was not as much as one hour from him. He was only aware that [X] was at Suburb J School when he saw the reports. He was prepared to move wherever [X] is and had told Ms C this. In two hours of contact they would sit down and read a book. [X] tells him to read the book. He does not have his glasses. He just said [X] cannot read and write. He was not being critical of the mother. He confronted the centre about [X]’s sexualised behaviour with the black doll. The contact centre is filthy. He is 70 and the mother is 46. He is recovering from cancer. He recently injured his hip. [X] is lively and likes to run around. He would keep up with [X] and look after him. He said he has someone with him who is a friend that has moved in with him. She will help him. He has had eight months with [X] in eight years.
When it was put to him that it would be distressing to [X] to move to half time with him the father said it would be distressing but [X] would get around it. He never gets to see [X]. He asked, “How do you think I feel?” On the occasion of the telephone call, [X] wanted to talk to the mother but was not upset. There is a close relationship between [X] and the mother. He could not see why it was not practical to have equal time. He did not agree with sole parental responsibility. When taken to paragraph 81 of the family report in which Ms C opined that equal parental responsibility was impractical, the father said he wanted somebody other than Ms C to do the report. He accused Ms C of inventing things although I did not understand him to particularise. He said [X] is never naughty and he has never had to punish him. If he was naughty, he would talk to him.
When cross-examined about his own children, the father said that when he divorced, his children took the mother’s side. He saw his son for the first time a couple of months ago.
The father was cross-examined about his granddaughter Ms A who was on affidavit. I suggested that questions should more appropriately be put to her.
The father denied showing [X] any sexually explicit games. They play games on the PlayStation. There are no physical games although they have fun fights on the couch. [X] undresses himself and gets in the bath. He has never told [X] that the mother has a gun. He has never waved a knife at him. He believed this happened in his own home.
The father was cross-examined about the outcome of his appeal to the County Court but did not appear to accept that the convictions were not materially overturned, but only the sanctions imposed for his conduct were varied.
He said he had not wanted to see [X] when he was with Ms C because he, the father, was sick. [X] suffers from asthma and he has all the stuff at home. He cannot communicate with the mother because of the Intervention Order. The Intervention Order has caused all the problems. He sought a new family report.
Under cross-examination by counsel for the Independent Children’s Lawyer the father conceded that he had breached the Intervention Order and been fined $800 in 2013. In 2014, there were two counts for breach of an Intervention Order and he had received a nine and three months suspended sentence for those respectively. On his appeal, the sentence was altered to a good behaviour bond. He did not accept that it was found he had breached orders. It was put to him that he had not learnt his lesson by sending text messages. He conceded that he was angry that Ms C had been appointed to do the family report over his opposition. He had been let down by the court. This is what he had told Ms D in 2015. When it was put to him that this was still his view and he was angry about it, he said “not really”. He agreed that he was angry with mother and apportioning blame at the time of the section 11 report. He denied being angry with the mother and said he did not really blame her. He said he was probably angry because he lost the argument about Ms C. When it was put to him that his anger might affect his capacity to see what was best for [X], he said “possibly”. He accepted that it would damage the relationship if it moved to half time. Time should move gradually to alternate weekends. He will not be best friends with the mother tomorrow. He was not sure if he would be able to use the MyMob computer app. He can text.
The father was cross-examined about an episode at the contact centre when he offered to provide a cat to [X]. He said he did not remember even though it was in the notes. [X] was happy to see him but was sometimes quiet. He gave the mother credit for bringing the child regularly to spend time with him. The mother was a pretty good mum. [X] knows his mother and father do not like each other and he agreed that it would be better to rebuild the relationship slowly. [X] needs to develop trust in him. He disagreed that changeover at a police station was not a good idea. He agreed that there should be telephone even though there had not been thus far. He was prepared to contact [X]’s school to get on the mailing list. He would avoid the mother. He was prepared to have just one GP so long as he got reports. He would tell the mother if [X] was sick in his care. He said [X] should go to counselling but he did not know about Counselling Service. He would accept orders prohibiting discussion of adult matters and denigration.
The evidence of Ms A
Ms A adopted her affidavit as true and correct.
Under cross-examination by counsel for the mother, Ms A confirmed that her grandparents had brought her up. She would stay with the maternal grandmother on weekends. Cross-examination expanded to some past drug issues and other difficulties which I regard as irrelevant.
Ms A has seen [X] having a good time with the father but had not seen any rough play. She did not see any play fights. [X] was not upset in the father’s presence. It was a good few years since she had seen [X] with the father. The father had told her about the mother making allegations.
The evidence of Ms C
Ms C adopted her the 11F and family reports. Under cross-examination by counsel for the Independent Children’s Lawyer Ms C confirmed that the father was angry with the mother during both reports. [X] was aware that the parents do not like each other. [X] has mixed feelings about his father. Ms C was aware of the contact centre reports which were largely positive. She raised unsupervised time with [X]. This should be gradual. In the last 18 months there had only been time in a controlled centre which was an appropriate venue. [X] was familiar with it.
When asked about overnights in the father’s home, Ms C said that if everything went well [X] would be more secure with the father and in that case overnight time would be appropriate. She said that after eight times where seven hours were spent, then overnight could be introduced. Holiday time was appropriate but should be day time only. Changeover should involve at least eight visits at a contact centre. Changeover was a risk because the parents’ relationship was so challenged.
There are no parental communications whatsoever. Any safety net about communications would be desirable. Each parent entirely blames the other. Ms C was prepared to explain the orders to [X].
Under cross-examination by counsel for the mother Ms C said that the mother was not fabricating the disclosures. They had been made but not had not been found to have occurred. She saw [X] and the father during the 11F interviews. There was no reference to play fighting by [X]. [X] is softly spoken and gently natured.
[X] can read and write. He said his eyesight was poor and needed to wear glasses but was refusing. A child-play centre for spending time would be acceptable if it was child-focused. Gradual increases in time will enable [X] to spend overnight time in some months’ time. The mother should have sole parental responsibility. There are no communications between the parents and shared parental responsibility was unlikely to work for [X]. The father is resentful of the mother and angry. The mother is fearful of the father.
Ms C made no recommendations for special days. The relationship needed to be established. Multiple interviews had not substantiated safety concerns about the father. Ms C was opposed to there being two counsellors and particularly Counselling Service as there was no substantiated sexual abuse. The counselling at Relationships Australia should continue.
Under cross-examination by counsel for the father Ms C was concerned that the father was still so angry with the mother. This might affect the relationship with [X]. The contact centre was necessary for the first few months as [X] was familiar with it.
In further questioning by leave by counsel for the Independent Children’s Lawyer Ms C said that requiring the mother to consult with the father about long-term decisions would be unworkable. She should simply inform him. The father could visit [X]’s school for parent-teacher nights provided they were at different times. Attendance at concerts and the like was not desirable because the mother was so scared of the father.
Final Submissions – the Independent Children’s Lawyer
Counsel submitted the father had not established that the mother coached the child. The child was in the middle. Animosity was evident to everyone. The mother had not established sexual abuse. [X] made disclosures when he was five years old but he has said things that were not true. The father was not a risk to the child. Both parents can inflict harm on [X] by not shielding him from their animosity. Counsel agreed with Ms C that there should be sole parental responsibility to the mother but the father be kept advised.
The father could attend school if the mother was not there. Changeover for the two hours and four hours session should be at the contact centre but then there should be a Mr E’s at the midway point. Communications should be by text only and about the child alone. The father should have phone calls in private. The report writer should explain the orders to [X]. The mother should be restrained from moving by reference to time or distance even if her address was not to be provided. Restraints as to non-denigration and discussion of the court proceedings were necessary.
Submissions of Counsel for the Father
Counsel submitted that time should be at the weekends, school holidays and special days. The father agreed with non-denigration and non-discussion orders and the geographical restraint as to the mother’s residence. The father, however, does want involvement in long-term decisions. He had missed a lot of time with his son and would never get this back.
Submissions of Counsel for the Mother
Counsel submitted that the mother remained concerned about [X]’s disclosures which she believes. She had, nonetheless, facilitated time pursuant to the orders in 2015. Time had gone on until it was suspended. Father denies play fighting, but the mother is protective. The father is not complimentary about the mother who is the primary carer. The father is very angry but needs to put [X] first. The father was saying things should be fair to him. Safety is still a concern. The mother only agrees with short, supervised time and no overnight or weekend time.
[X] has said he does not want to go to the father’s house. There had been a snake at the property. [X] was too young for his views to be decisive. The mother proposed time at Play Centre in Town K which is halfway at the father’s expense. It is $40 to $50 per time and open 9.00am to 5.00pm every day. Otherwise, time should be in a public place. There is a close relationship between [X] and his older siblings. There was no evidence about the relationship with [X] and the father’s family. Ms A had not seen him for years.
[X] is still hesitant about seeing the father outside the secure environment. The child could read. The mother seeks sole parental responsibility. Acrimony is not in [X]’s best interests. The father may not have hit the mother, but there was still family violence. Counsel traversed the Intervention Order history in some detail. Family violence was the big issue. Counselling with Mr G should continue. There should be orders as per the family report paragraph 21. The mother is to inform the father of decisions and there should be time each alternate weekend on Sunday for two hours at a public venue, Play Centre .
After eight times, this could move to four hours for a further eight times and then seven hours. All of this was to be in the public place. Telephone calls once per week were acceptable and the mother will buy a mobile phone for private calls to take place. The father can have school reports and photographs provided he pays for them and it was acceptable for the mother to inform the father of medical events. Texts were acceptable provided they were strictly about [X]. [X] should continue with Mr G. The mother wants changeover at Play Centre but wants to start off at the contact centre. If necessary, she would accept Mr E’s.
The father’s counsel indicated finally that he was going to access the MyMob app.
Findings About the Credit of the Witnesses
The Court always endeavours to avoid saying things in judgments that may be distressing or hurtful to witnesses or parties. This is only common courtesy and its desirability is self-evident. Because of the sort of case that the parties have seen fit to run, however, it is not possible to avoid making findings about the witnesses that are in part critical of them. The mother’s evidence involved extensive, lengthy, non-responsive answers. She was critical of the father gratuitously at every turn. She purported to have no memory of a number of matters, but I note that she had an excellent memory for dates when it suited her.
She was entirely reluctant to make any concessions and although she conceded that poor inter-parental relationship was a difficulty for [X], it was quite clear that she blamed the father entirely for the state of affairs. Although counsel for the Independent Children’s Lawyer managed to eventually have her concede that [X] gilded the lily or made things up on occasions, these concessions were made in the most reluctant way possible. Having said this, on the critical issue as to whether or not the things the father was alleged to have done to [X] did, indeed, occur, I have no doubt that the mother entirely believes what [X] has told her. She lacks the insight to posit the possibility that they may not have occurred. She believes them in their entirety and fervently. She has not made them up.
The father impressed me very much as he did Ms C. He is a man whose entire demeanour, what he said and the way that he said it and his body language while he was in the witness box, shows that he was angry and combative at every stage. He was unresponsive to questions he did not like. He would not even concede that the mother was the primary carer for the child. His answers seeking equal time showed no insight whatsoever. He answered questions with questions and was combative and rude to Counsel. His answers showed clear degree of self-orientation. When asked about non-denigration, he did not really answer the question. One must have doubts as to his capacity to control himself.
Findings About the Facts
These parents had a relatively brief relationship and [X] was not a planned baby. I accept the mother’s affidavit assertion that she thought she was too old to have another child. It does not matter whether they cohabited for any great length of time because the relationship was not a lengthy one. After its end, the mother re-partnered with a man who has gone so far as to put on affidavit material making scurrilous attacks on the mother. That relationship was brief. She had another brief relationship with Mr E thereafter. That relationship has not subsisted either.
The mother is, it would seem, now single. The father, who as recently as June 2019 told Ms C he had not re-partnered, appeared to suggest that he had a partner when he was in the witness box. He has not put this person on affidavit. Her very existence was unknown to anybody until he gave that evidence. On any view of the matter, it must be a very recent relationship.
The father is, of course, now 70 years old, and the mother is 46 years old. The father was on crutches throughout the trial, and his assertion that he needs a hip replacement seems entirely likely to be true. The father behaved in such a fashion that the mother took out Intervention Orders against him, and he plainly breached these Intervention Orders on numerous occasions. He was convicted by Magistrate Cripps, and although he appealed successfully in the sense that the convictions were formally set aside, the findings of his misconduct were not.
Contrary to the father’s assertion that nothing had ever been proved against him, the Intervention Orders were made on at least two occasions against his opposition and when he was present. On one occasion, it is conceded by the father that an Intervention Order was made against his opposition when both parties were legally represented and evidence was given. Plainly, the magistrate found that he had misconducted himself. His stentorian assertions that nobody has ever proved anything against him are plainly untrue. They are reflective of his self-righteous lack of insight.
Following Final Orders in 2015, things went reasonably well for a while. The mother eventually decided to stop spending time at the father’s house. This appears to have been as a result of the disclosures made to her by [X]. The father was angry about it then and still is.
It is appropriate at this stage to deal with the kernel of the substantial dispute in the case.
Has [X] made allegations to the mother and are they true
I have no doubt whatsoever that [X] has made the disclosures that the mother asserts. They have not been maliciously and falsely fabricated by the mother. She continues to believe them.
The difficulty, however, is that I do not accept that the violence asserted by the mother has taken place. The father is right to say that it would have been beyond him to hold a knife to the child’s throat all the way to Town F Police Station. He did not do so.
The father has not grabbed the child by the penis and dragged him to a bath and threatened to drown him and to kill the mother. He has not threatened [X] with a knife. I have heard the father’s denials in this regard and, while I regard him in many ways as an unsatisfactory witness, I accept this evidence entirely. It should be noted that it is not just a matter of the demeanour assessment of the father, however, that leads to this conclusion. The objective evidence supports it.
Despite various interviews with SOCIT and interviews by the Department at [X]’s school, no believable disclosures have ever been made sufficient to ground any kind of charge against the father. I note that SOCIT did not think that [X] had been coached and I accept that that is so. Nonetheless, the fact is [X] has never made believable disclosures to the police or other third parties save, possibly, for Mr G.
Not only does this objective evidence not support the lurid tales of assault that the mother entirely accepts as true, but [X]’s behaviour with his father is not consistent with it either. [X]’s relationship with his father is a matter to which I shall return, and the matters about which one might express reservation probably owe a lot to the father’s lack of social skills and natural empathy, the fact is [X] is not in any way scared of his father when he has been seen with him over extended periods of time at the contact centre.
Having made these findings, I turn to the statutory pathway. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental responsibility
The father and the mother detest one another. In their evidence, they were both keen to blame the other entirely for all the problems that have occurred and to attribute the most awful motivation to one another in doing so. The father roundly accuses the mother of maliciously inventing disclosures that have never occurred to exclude him from [X]’s life, and the mother believes that the father has behaved in the most atrocious way to [X]. They are both wrong. Nonetheless, this appalling interpersonal dynamic is a current, and likely continuing, fact of life. I did not discern in either parent any measure of likely insight that is going to change the current picture.
The father’s personality is much given to a sense of his own entitlements. His claim to have equal time, albeit abandoned in final submissions, was all about him and his needs. If I was to provide for equal parental responsibility or even a requirement that the mother consult with the father, there will simply be a further battleground. The mother is the primary carer of [X] and has been all his life. The only workable outcome, therefore, the only outcome in [X]’s best interests, is that there be an order for sole parental responsibility to the mother, with the mother, as the Independent Children’s Lawyer and Ms C recommended, informing the father of major decisions.
Having made that finding, I move now to the child’s best interests.
The primary considerations
Everybody agrees in principle that it is desirable that [X] have a meaningful relationship with both of his parents. The Court is, of course, however, required to consider any need to protect [X] from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence. This consideration requires greater weight (section 60CC(2A)).
There is no suggestion, and in the light of my findings about the central issue there can be no suggestion, that the father has been physically violent to [X]. I share Ms C’s surmise that the father may have physically disciplined [X] at some stage in the past, but there is no direct evidence to corroborate this. Rather, to the extent that there has been any hitting, it would have been in what the father described as play fights, a description I can readily understand. Where there is, however, a real risk is in terms of the father’s capacity to contain his detestation of the mother while [X] is in his care.
Abuse of the mother in [X]’s presence would plainly be a very significant matter. I note, however, for all his vituperation, the father had accepted, through Counsel, that there be non-denigration orders. He is going to have to pay careful attention to those orders. I note that his conduct at the contact centre over a very considerable number of visits did not involve any denigration of the mother.
The additional considerations – section 60CC(3)(a)
[X] has expressed a degree of equivocation about spending time with his father. As Ms C and the evidence generally demonstrates, he needs to build further trust with his father. His views, however, are not adamantly opposed to spending time with his father and his age is such that his views must be approached with caution.
Section 60CC(3)(b)
[X] has a secure and loving relationship with his mother who has been his primary carer all his life. Indeed, given his age and the fact that he still wishes to sleep with his mother, it may be that the relationship is perhaps slightly more dependant than would be otherwise normal. His relationship with his father has developed to a point where [X] is in favour of short periods of unsupervised time.
It is most unfortunate that the father’s immature tantrum in refusing to see [X] during the observations with Ms C has deprived the court of the evidence that would have been gathered had this occurred. It would appear that [X] has a good, if slightly occasionally fractious relationship with his half-siblings. It does not appear that he has seen the father’s extended family for a considerable period of time.
Section 60CC(3)(c)
The mother has undoubtedly taken all the major long-term decisions in relation to [X] and has been his primary carer throughout his life. The father has not been able to participate in making decisions about major long-term decisions as he has, with the exception of the relatively brief period from 2015 to 2017 where the parents were not acrimonious, been largely excluded from [X]’s life. There is no doubt that he has sought to spend time and communicate with the child and, indeed, he has prosecuted his case, angrily, to judgment.
Section 60CC(3)(ca)
The conduct of the mother in fulfilling her obligations to the child is wholly unexceptionable. So far as the evidence goes, it does not appear that the father has done much to assist the mother in bringing [X] up. He has, however, advanced her some $3000 over time. I accept the mother’s evidence that this is more probably attributable to a desire to control the wife than to any genuine charity on his part. He did not strike me as a person concerned to assist the mother unless he perceived it to assist him. It should be noted, however, that the father is living on a pension and his capacity to assist financially is obviously limited and his current physical afflictions make any other form of support problematic also.
Section 60CC(3)(d)
[X] is still apprehensive about spending extended amounts of time with his father. Any endeavour to move too rapidly, as Ms C correctly, in my view, opined, to spending substantial time with his father is likely to be counterproductive and [X] is likely to resist. Further, the mother’s excessive fears of the father and his likely conduct mean that any rapidly expanded amount of time is likely to affect her mental health severely and this will not be in [X]’s best interest either. Additional time with the father is, of course, what he wants but his desires are very much predicated on his own needs and interests and his perception that as a parent he is entitled to have the child with him half the time.
Section 60CC(3)(e)
The mother is in the process of moving to Region M. She will be no farther away from the father’s home than she presently is. There are, therefore, no significant issues to the practicalities of [X] spending time with his father in terms of travel. The mother’s proposal that time take place at Play Centre in Suburb T will involve some measure of expense but not an excessive one. Her proposal that all time be at Play Centre, or some similar public place, is, in my view, impracticable if time expands out anything beyond four hours at the most. It is probably impractical if the time is more than two hours. The child is likely to become enervated and/or bored by a play centre. Even an exuberant seven-year old can only run around for so much time.
Section 60CC(3)(f)
The mother is generally well able to provide for [X]’s needs. Even the father grudgingly admits that she is a good mum. Her, as I find, excessive concerns and misfounded fears of the father’s likely behaviour with [X] is, however, something she will need to confront. It is to be hoped that this judgment will enable her to move forward. She may be well advised to engage in counselling to enable her to cope with the sequaelae to the conclusion of this case. The father’s capacity to provide for [X]’s needs, including his emotional and intellectual needs, is a more open book. His angry self-absorption is not a good harbinger.
Nonetheless, despite his present infirmities, there is nothing to suggest that he will not be able to provide adequately for [X]’s physical needs when [X] is in his care, even if this does require the assistance of his unnamed unidentified un‑particularised partner. The father needs to understand, as does the mother, the court is not persuaded that the kernel of his case is any way made out. He needs to adjust his mindset from one of gross criticism and incessant criticism of the mother or things are not likely to go well.
Section 60CC(3)(g)
The mother is, of course, very substantially younger than the father. Her lifestyle and background appears to me to be unremarkable. She is in employment. She still has one other child living with her and appears to have a good relationships with her children. The father is, of course, 70 years old. He is presently only able to walk on crutches and is awaiting a hip replacement. His lifestyle is uncertain in the sense that he has asserted at the last moment that he has a new partner but has told the court nothing whatsoever about her. His personality is, at times, given to immature tantrums such as the refusal to see [X] when he was interviewed by Ms C and, indeed, his behaviour with Ms C and his demeanour in court, generally.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The mother is an understandably protective mother. Her desire to protect [X] is interrelated, as I find, with her desire to exclude the father from her life. She would, in truth, rather [X] spend no time with the father so that she does not have to deal with him. Having seen and heard him give his evidence, I can understand why. His minimisation of his past misconduct giving rise to Intervention Orders made after contested hearings speaks for itself. The father’s attitude towards the child is one of love and affection but also contains a strong self‑oriented possessory quality. He does not appear to understand that [X] is not to spend time with him to meet his own needs but rather needs to focus on [X]’s best interests.
Section 60CC(3)(j)
The father has not assaulted the child in the florid ways that the mother has asserted and which [X] has revealed to her. [X] has made these disclosures because they are what his mother wants to hear. [X] knows this and that is why he has done so. The father has, however, committed family violence against the mother, although this appears, so far as the materials reveal it (I do not have the Intervention Order applications in the main before me) not to have involved physical assaults. Rather, as I would have no hesitation in finding, the father would have been domineering, aggressive and bullying and his conduct of breaching the Intervention Orders from time to time by sending multiple texts seeking to control and otherwise, no doubt, abuse the mother are very concerning.
Section 60CC(3)(k)
There have been multiple Intervention Orders and legal proceedings arising from the father’s breaches of them. I bear them steadily in mind but it is not necessary to rehearse them further.
Section 60CC(3)(l)
It is plainly desirable that these parties cease litigation. It is doubtless stressful to both of them. The stress upon them necessarily communicates itself to [X] who is young and sensitive enough to be affected. It is plainly desirable for this sorry saga to come to an end now that the catharsis of the court’s findings has been made available to the parties.
Section 60CC(3)(m)
In the end, the position contended for by the Independent Children’s Lawyer is plainly the preferable one. [X] needs to develop further trust with his father through the somewhat longer process of introduction that the ICL has indicated. In the fullness of time, and providing only that the father can contain his behaviour while [X] is in his care, a move to enable [X] to spend overnight time with his father was recommended by Ms C and I accept that recommendation.
Conclusion
It is to be hoped, however forlornly, that these reasons for judgment will burst the bubble of the parties’ mutual resentment, at least to an extent. The primary position contended for by the mother that the father has threatened to kill [X] and the like is simply not made out and the primary position adopted by the father that the mother has invented all these disclosures maliciously is, likewise, completely rejected. It is to be hoped that with these findings before them, the parties are able to take the step that they desperately need to take in [X]’s best interests to move to a more cooperative and less acrimonious interrelationship in the future. I note that the parties did, indeed, manage to behave themselves appropriately for some two years or so between 2015 and 2017. Now that this judgment is before them, it is to be hoped that things return to something more of that character.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 5 August 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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