Zamora v Eastlund
[2021] FCCA 672
•15 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZAMORA & EASTLUND | [2021] FCCA 672 |
| Catchwords: FAMILY LAW – Parenting – final hearing – dispute in relation to child’s primary residence – where child had lived primarily with mother – where father lacks insight into best interests of child – where limited orders sought by father – where father concedes to lying during cross examination – where child is experiencing high levels of anxiety – consideration of best interests of child. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: AMS v AIF (1999) CLR 160 Betros & Betros [2017] FamCAFC 90 Collu & Rinaldo [2010] FamCAFC 53 Johnson & Page (2007) FLC 93-344 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) 41 Fam LR 483 Moose & Moose [2008] FLC 93-375 Sigley v Evor (2011) 44 Fam LR 439 Slater v Light (2013) 48 Fam LR 573 |
| Applicant: | MS ZAMORA |
| Respondent: | MR EASTLUND |
| File Number: | CAC 1074 of 2015 |
| Judgment of: | Judge W J Neville |
| Hearing dates: | 2 & 3 March 2020 and 19 & 20 October 2020 |
| Date of Last Submission: | 13 December 2020 |
| Delivered at: | Canberra |
| Delivered on: | 15 April 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Haddock |
| Solicitors for the Applicant: | Infinity Legal |
| Solicitors for the Respondent: | Self-Represented |
| Solicitors for the Independent Children's Lawyer: | Boland Legal Family Lawyers |
ORDERS
All previous orders be and are hereby discharged.
The Mother have sole parental responsibility for the child, X (born in 2012).
The Mother inform the Father of any long term decisions for the child including his education, health and medical.
The child live with the Mother.
The child spend time with the Father for two hours, three times per year at dates and times to be agreed and failing agreement on the last Saturday of every fourth month and such time shall be supervised by a professional supervision agency at the Father’s costs.
The parents communicate about the health and welfare of the child only through text message and email except in the case of an emergency.
The child engages with a counsellor, preferably Dr B, and that the counsellor be provided with a copy of the Family Reports prepared by Ms C being the reports dated 11 February 2020 and 20 September 2020, a copy of this judgment and orders made
Absent any other Application being made within 21 days of the date of these Orders, being by 6 May 2021, the issue of costs be dealt with on the basis of written submission of no more than 2 pages in length, which are also to be filed by the parties within 21 days.
NOTATIONS
A.Should the child request to spend time with the Father, the Court requests that the Mother facilitate this time to occur.
IT IS NOTED that publication of this judgment under the pseudonym Zamora & Eastlund is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1074 of 2015
| MS ZAMORA |
Applicant
And
| MR EASTLUND |
Respondent
REASONS FOR JUDGMENT
Introduction
X is the subject child of these rather long-running proceedings. He turns 9 years old this year.[1]
[1] The Mother is of Country E heritage. The parties were in a casual, intimate relationship over a period of years but never in a de facto relationship. It was not disputed that the Mother has been the child’s primary carer throughout his life.
In the proceedings between X’s parents, there have been three Family Reports (all completed by Ms C, one in 2016 and two in 2020), and a psychiatric Report by Dr D in 2020 regarding the Father’s mental health and capacity more generally. Relevant details of the last two Family Reports, and the Report by Dr D, are set out and canvassed later in these reasons.
The procedural history of the dispute is neatly summarised by the Family Consultant in her March 2020 Report. That summary is set out below.
In short compass, the evidence before the Court from the Family Reports in particular, and from the oral evidence presented, highlighted (a) the protracted nature of the contest between the parties, and most concerningly, (b) the deterioration in the co-parenting relationship (which had regularly been problematic), and (c) the significant deterioration in the relationship between X and his Father.
What is almost unnerving is that, notwithstanding (i) the concerns expressed during the trial about the Father’s lack of insight, with similar concerns being expressed by the Family Consultant, in particular in her second Report in September 2020, (ii) the strongly articulated fears of the child having to spend time with his Father, and (iii) the fact that Father and child have not spent any time together since May 2020, the Father continued to press his claims for the child to live primarily with him. Moreover, the Father’s adverse contentions against the Mother (he alleged, among other things, drug and alcohol use by her, and the maternal Grandmother, and involvement with “criminals”),[2] and his claim that he and X have a good and close relationship, were (a) not supported by any relevant evidence, and (b) substantially contradicted by the evidence otherwise before the Court.
[2] See, for example, the Father’s submissions, filed 1st December 2020 at p.2 par.7.
Further, in my view, the evidence set out in these reasons clearly establishes that the Father lacks very significant insight into the fractured relationship with his son, and an equal lack of insight into the very likely adverse impact on X should his primary residence be changed to that of his Father – which is what the Father seeks. The Father denies that the Father/child relationship is fractured. He also denies the clear evidence recorded by the Family Consultant that X is very frightened of, and does not wish to spend any time with, him.
For the reasons that follow, the Orders sought by the Mother (with a small amount of “tweaking”) are clearly, in my view, in X’s best interests. The Independent Children’s Lawyer’s (“ICL”) Orders are largely to similar effect and supportive of the Orders sought by the Mother.
Before proceeding, one procedural matter should be noted here. During what I will call the first iteration of the trial in March 2020, the Father was legally represented. In the second iteration of the trial in October 2020, he was self-represented, although he seems to have received some legal assistance in the preparation of his written submissions. In any event, during the Father’s cross examination during the hearing in March 2020, the Court (and the ICL) became increasingly concerned that the Father was not only having difficulty answering questions, but that he was also exhibiting a significant inability to understand them, as well as their import – potential and actual. The questions put to him were very straight-forward and uncomplicated. When I raised my concerns with the lawyers present for all parties, the Father’s then lawyer, a long-experienced family law practitioner from the Legal Aid Office, expressed her similar concern and agreement with those articulated by the Bench. In the result, I directed the Father to obtain a psychiatric assessment, which he duly did – hence the Report from Dr D, detailed below.
Brief Procedural History
As helpfully recorded by Ms C in her first Report (dated 10th February 2020), the litigious history of the matter in this Court (there have been other aspects of the contest played out in the local Magistrates Court), is as follows:
9. A Family Report was completed in July 2016 by this assessor. The recommendations from that report were for the parents to share parental responsibility, for X to live with his mother, and for X to spend time with his father for two days each week, and alternate weekends with his father at his paternal grandparents’ home. The recommendations were that once X began school, he spend time with his father one school night each week, and alternate weekends. Additionally, it was recommended that the parents continue to engage with the F Counselling ARCK program.
10. Final orders were made in September 2016 for X to live with Ms Zamora and spend time with Mr Eastlund in Week 1 from Wednesday afternoon until Friday morning, and in Week 2 from Friday afternoon until Monday morning. However, Ms Zamora reported in February 2018 that X had disclosed that his father had hit him on multiple occasions. Ms Zamora ceased X’s visits with the father and made a new application to the Court.
11. Mr Eastlund reported that Ms Zamora’s application occurred just prior to a hearing for his application for a contravention order as Ms Zamora had breached the final orders on many occasions. He reported that the judge was considering either a significant fine or imprisonment as penalty for breaching orders, but that this hearing did not go ahead due to the new application.
12. In her initiating application in February 2018, Ms Zamora proposed that the 2016 final orders be suspended, that X live with her, and that X spend time with his father for two hours each week, supervised by a professional agency.
13. In his response to the initiating application, in March 2018, Mr Eastlund proposed that the parties resume the arrangements as per the 2016 orders.
This procedural history was supplemented by Ms C’s further synopsis of the course of the matter in her second Family Report (dated 21st September 2020). I need only record here pars.13 – 15 (emphasis added):
13. A further Family Report was ordered in March, 2019, and was completed in February 2020 by this assessor. The recommendations from that report were that the Court consider whether the parents are able to share parental responsibility or whether some aspects of responsibility should be solely with the mother; that X live with his mother and spend time during the day with his father on alternate weekends; that X and his father attend a psychologist to improve the relationship between them with a view of increasing X’s time with his father; and that the Court consider whether Ms Zamora is likely to adhere to the final orders.
14. In March 2020, a psychiatric assessment of Mr Eastlund was ordered, based on his unusual presentation during cross-examination. This assessment was completed in May 2020 by Dr D.
15. In May 2020, Mr Eastlund kept X in his care at the end of a visit, and returned him to Ms Zamora’s care the following day. Ms Zamora applied for a recovery order and for X’s time with Mr Eastlund to be suspended. On 22 May 2020, all contact between Mr Eastlund and X was suspended, pending X’s wish to communicate with Mr Eastlund.
Issues in dispute
In her September 2020 Report, the Family Consultant identified the following issues, which were generally accepted in slightly differing forms by the parties, thus:
24. The issues in dispute are:
* The time X spends with each of his parents.
25. Issues identified during the assessment:
* The parenting capacity of each of the parents.
* The nature of X’s relationships with his parents.
* The nature of the dynamic between the parents, and their capacity to make decisions and communicate about X’s needs.
There were also ongoing allegations of family violence between the parents, allegations X has witnessed this violence, as well as allegations that the Father has hit the child (which the Father vehemently denies, but has, unfortunately, involved X in this particular aspect by regularly questioning him about the incident). The Mother raised a concern arising from an incident (which seems not to be disputed) where the Father kept X with him, contrary to Orders. A recovery Order was sought but ultimately not required because the Father returned the child to the Mother.
The respective proposals of the parties, as summarised by Ms C in her second Report, were as follows:
16. During the assessment interview, Ms Zamora proposed that X continue to have no contact with Mr Eastlund. She stated that she would support X to communicate with, or spend time with, his father if X expressed that he would like this.
17. During the assessment interview, Mr Eastlund stated that he believed it was in X’s best interests to live with him and for him to have sole parental responsibility for X. He made no specific proposals relating to X’s time with his mother, saying “the decision is out of my hands”. He stated that he would adhere to any order made relating to X’s time with Ms Zamora.
Applicant’s Orders Sought
The Applicant Mother’s Orders sought were as follows:
1. That all previous orders be and are hereby discharged;
2. That the mother have sole parental responsibility for the child X born in 2012 (“the child”);
3. That the mother inform the father of any long term decisions for the child including his education, health and medical.
4. That the child live with the mother.
5. That the child spend time with the father for two hours, three times per year at dates and times to be agreed and failing agreement on the last Saturday of every fourth month and such time shall be supervised by a professional supervision agency at the father’s costs.
6. That the parents communicate about the health and welfare of the child only through text message and email except in the case of an emergency.
Respondent’s Orders Sought
Other than as set out in the second Family Report, and adverted to in the Father’s Affidavit, filed 17th July 2020, it remains somewhat unclear what the final orders sought by the Respondent were. As already noted, the Father certainly wanted X to live primarily with him, but otherwise, details of what time the child should spend with the Mother, were there to be a change in residence, remained elusive.
Independent Children’s Orders sought
The Independent Children’s Lawyer filed on 19th October 2020 a minute outlining the orders she sought. However having heard and considered the further evidence of the father, paternal grandfather, independent expert evidence of the Family Consultant and submissions made, the Independent Children’s Lawyer advised the Court in her Written Submissions filed 13th December 2020 that her position had changed.
The Independent Children’s Lawyer advised that she supported the orders sought by the Mother and would also support an order to the effect that X engages with a counsellor, preferably Dr B, and that the counsellor be provided with a copy of the Family Reports prepared by Ms C being the reported dated 11 February 2020 and 20 September 2020, a copy of the judgment and orders made.
Oral evidence of the Applicant
The Mother was cross examined only during the first iteration of the trial, in March 2020. Summarised, that evidence was as follows.
The first part of the Mother’s evidence canvassed, very briefly, the limited detail in her trial Affidavit of “time-with” arrangements between X and his Father. The Mother agreed that there was limited detail in her Affidavit about these matters.
Next, there was an extended discussion about an incident (or incidents) in 2015 between the Mother and the Father, which included the Father claiming that the Mother assaulted him. The Mother said there was a contest but that she did not, for example, kick him. She said that he fell down in part because he was wearing a leg brace at the time. She said that the Father had been strangling her and she had pushed him away from her. The Mother was provided with extracts from Police records (which became Exhibit C) that highlighted some discrepancies with the Mother’s recollection. In my view, given how long ago the incident was (it occurred in 2015), the various and somewhat disparate accounts of it did not necessarily advance matters very much. Indeed, for the same reasons, I need not canvass these matters further. They are simply additional examples of the long-standing difficulties between the parties.
I asked the Mother what would make the co-parenting relationship with the Father work (or somewhat workable)? She said that she felt she had done her best to communicate, but in response, what she had received from Mr Eastlund was “a lot of aggression and abuse.”
I persisted in inquiring of the Mother what would make the co-parenting relationship better. The Mother responded, in similar terms, that she had done her best to take on advice from various sources. She said that she had tried to communicate with the Father but that he essentially manipulated every attempt by her to sabotage or undermine her parenting. The Mother said that she had sought out counsellors and had taken on board their advice. Regrettably, she said, nothing had worked in improving matters with the Father. This included, for a time, “family counselling.”
She said the only positive thing she could say about the Father was that he loves X. She said that the Father was aggressive in his communication with her and tried always to “put her in a corner.”
The Mother also said that she became aware of criminal proceedings between the Father and a former partner, who is a mutual friend. That person was not on Affidavit.
The Mother said that she had been made aware of various behavioural issues concerning X at school because his teacher had contacted her directly. There had been a change in X’s behaviour and demeanour between 2017 and 2019. His earlier school reports were positive but more recently they showed him to be withdrawn and isolated.
The Mother confirmed that she had been referred to obtain a mental health plan for X. The Father was advised of this by her lawyers but, she said, he had refused to engage in this process. Ultimately, she did not continue with matters following the assessment due to financial pressures. She accepted that the Father may have genuinely believed that there were no behavioural issues for X because, in his view, X as not displaying or exhibiting any such issues.
The Mother said that she took X to some counselling at the G Counselling Centre and F Counselling.
In the Mother’s trial Affidavit, filed 24th February 2020, at pars.43 – 48, there are allegations of the Father hitting X and reports of this being made to a General Practitioner, who recommended the Mother contact Care and Protection services. Notwithstanding these reports, there remained, or further negotiated, Orders for the child to spend time with the Father.
Throughout the Mother’s cross examination, she repeated, almost plaintively, that she had tried everything to communicate with the Father, and had always tried to facilitate X’s time with him. She sounded and appeared quite defeated in almost all respects. Put another way, it was as if the Mother had been “ground down” by her dealings with the Father. For reasons given below, in my view the Mother’s frustration and exhaustion was, and is, understandable. As I note later in these reasons, partly through his own lack of insight (and other things also noted later), the Father would be a difficult person to communicate with in relation to matters in which he held a specific, alternative view, such as his relationship with X, and his dealings with the Mother.
At this early juncture in the trial, the Mother accepted that she proposed that X spend only time during the day with the Father but not overnight time because, she said, the child was anxious about going to his Father’s house.
From time to time, the Mother agreed with comments to the effect that she could have, and perhaps should have, advised the Father of certain events or treatment (such as counselling) that X was receiving. She said she had tried to communicate with the Father more regularly, but as already recorded, from her perspective it regularly ended in tears – hers.
For my part, the Mother was a fair witness who, for reasons already given, was quite clearly worn down by trying to deal with the Father. I accept that she has tried to communicate, and to promote X’s relationship, with his Father. I also accept, subject to what is said later in these reasons, that the co-parenting relationship between the parties is consistently fraught and essentially unworkable.
The Mother was not required to give any further evidence at the resumed trial in October 2020.
The Mother’s sister (Ms H) gave very brief evidence on her behalf. It added little to the evidence (not a criticism of the sister). In a very straight-forward, and clearly sincere and gentle way, the sister simply described one incident that involved she (and X) hearing the Father shouting over the telephone. She also confirmed that she and X have a very close, loving relationship. There is no reasons to doubt, and in consequence, I accept Ms H’s evidence.
Oral evidence of the Respondent
The Father’s evidence was in two parts. He first gave some evidence in March 2020. As noted above, in the light of the Father’s responses and his demeanour, the Court (and others) expressed some concern about the Father’s capacity to comprehend the questions he was being asked. Among other things, there was a concern that he may be harming or prejudicing his evidence. After the release of Dr D’s Report (set out below), the Father gave further oral evidence during the October 2020 resumed hearing.
Without canvassing all of the matters addressed in the Father’s March 2020 evidence, summarised, it was as follows.
The Father said that his occupation was “a sportsman.” This was later clarified to confirm that he plays sports, usually, but not always, professionally.
The Father had told the Family Consultant that he was also a public servant. On closer examination, the Father’s oral evidence in this regard was that (a) he had completed three years of a “Master’s” degree, which he commenced in 2001; (b) he did not know when he might finish that degree; and (c) whenever he did any work, he simply obtained a form of “permit.” It would seem that any such work that he did, was related to sport.
Although they were admitted during the October 2020 hearing, it is convenient and relevant here to note the following documents which were admitted into evidence concerning these matters:
(a)The Father’ academic transcript from the G University became Exhibit 1. It showed that between 2001 and 2004, he passed 5 (perhaps 6), out of 24 subjects, for his degree), and that he discontinued his studies in 2005. The Father seems to have either failed or withdrawn from, or otherwise (for various reasons) not completed, or not completed satisfactorily, the remainder of the subjects listed. The Father said that he did not know where the reference to him studying a “Masters” degree came from in the interview with the Family Consultant. Otherwise, subject to what is said later in these reasons, the records, however curiously, essentially speak for themselves;
(b)Part of that same Exhibit was a Permit, which was valid for the period June 2014 until March 2015. The heading “Status” on this card referred to “conditions apply (see reverse”; unfortunately the conditions were not provided to the Court. The Father also provided a copy of his Working with Vulnerable People Card, which expired in 2017. Clearly none of the document produced were complete or current; and
(c)A copy of a contract between the Father and Employer J dated 12th May 2017 became Exhibit 2. Again, its lack of currency, like the other documents provided by the Father, must necessarily raise questions of relevance, and/or the utility, of them.
The Father also confirmed that he pays no child support. He maintained that he has never said that he works full-time, but confirmed again that he gets paid for his sporting activities.
He said that he could not think of him saying anything hurtful to the Mother in his Affidavit. He confirmed that the Mother loves X and has the child’s best interests at heart.
The Father had difficulty accepting that a change in the child’s residence was likely to be viewed as “radical” and very likely to be upsetting for X. He said that he sought the change in residence because in the CIC Memo in July 2018, X said that he wanted to live with his Father. He did not appreciate how much had changed since then, or that X was likely (as discussed later) endeavouring to tell his Father what he wanted to hear.
He said that communication between the parties was a problem. He also said that anything hurtful in his Affidavit about the Mother was something that would “heal over time” because “time heals all wounds.”
The Father accepted that he could be, or could appear to be, intimidating. He also confirmed that he had been convicted for breach of a Family Violence Order. He said that either the Mother, or the extended family, had brainwashed the child, and that the Mother lies and generally fabricates things against him.
The Father explained his understanding of what “equal shared parental responsibility” meant, namely: “Communicate daily about the needs that X has.”
There followed the next series of exchanges:
There is nothing in your affidavit that says you will be able to financially support X if you get the orders sought, there’s nothing that says he has a bed at your place, that you can collect him from school, that you can cloth him?--- No nothing, but I can do that.
Do you say anything about the child’s preferences / friendship/ information about X’s daily life?--- No
Nothing about your annual income from your sport? --- No
Why none of this basic information was in his Affidavit, the Father simply said, without elaboration, that he was “on a tight time-frame.”
In quick succession, a range of matters regarding his income and employment was canvassed, very briefly in the following terms:
When was the last time you were paid to play sport? --- Last year – I got paid weekly from the start to the end of the season
When were you last paid for sport? --- September 2019
What do you do in the off season? --- I train, I work as a personal trainer and in the past I have been a public servant
There are no details about this in your affidavit? Yes
You have worked at … ? --- When a employer requests for me to be a public servant, the institute issues me with a permit
--- In 2015 I was injured at work
After sport what do you plan to do? --- I think coaching is inevitable – I hold a Level 1 coaching certificate and can reasonably easily get further coaching certificates.
At the commencement of the second day of the trial in March 2020, the issue of the Father’s cognitive capacity was raised by the ICL. To this (a) the Father’s lawyer said that she was content and certain in her instructions from the Father up to that point, and (b) the Mother’s Counsel said that the Mother did not have reservations about the Father’s cognitive capacity but rather his significant lack of insight.
In the result, a Minute was agreed between the Mother and the ICL, and neither opposed or consented to by the Father, for him to obtain a psychiatric assessment. The Court made Orders in accordance with that Minute. The Court stressed to the Father that the course proposed by the ICL and the Court was not a criticism of him but was intended to make sure that procedural fairness was given to him to ensure that there was no relevant obstacle or difficulty for the Father in the conduct of his case.
When the trial resumed in October 2020, the Father gave the following further evidence (summarised).
At the outset of the resumed hearing there was a discussion between the Bench and the Father, primarily regarding (a) whether he had read the Orders proposed by the Mother, (b) whether he had read the updated Report of Ms C, and (c) why the Court should or would change the child’s primary residence to the Father’s, contrary to X’s strongly expressed wishes/view, and contrary to the Recommendations of the Family Consultant.
In response, the Father said that (a) he did not have time to read the Mother’s proposed Orders, in part because he did not think that anything would be sent to the parties over the weekend, (b) he had read most of Ms C’s updated report, and (c) he sought a change in the child’s primary residence because of (in his view) a false allegation that he had hit X. This allegation remained a focus of the Father throughout the proceeding. He also confirmed that he had spent quite limited time with the child between 2018 and the present.
The Court expressed significant disbelief to the Father about, apparently, not being sufficiently interested to prioritise matters that related to X’s best interests, including to read what Orders the Mother was seeking.
The following evidence was then given by the Father regarding his employment, and related matters:
(a)Early in his resumed oral evidence, the Father was cautioned by Counsel for the Mother to ensure that his evidence was truthful, and that he did not give evidence which he thought the Court wanted to hear. In a follow-up question to this caution, the Father confirmed that he had lied in his earlier evidence given during the March hearing because he had given evidence that he thought the Court wanted to hear, rather than what the actual evidence was in relation to any particular issue;
(b)He said that he was offered regular, casual work, as a public servant;
(c)He was pursing, “gradually” (he said) his degree. This was in circumstances where, according to his academic transcript (noted earlier in these reasons), he has been pursuing this degree for some 10 years or so, and said that he had progressed only 2.5 years into it. As noted above, the Father has not passed many subjects and, assuming that he ultimately follows through on his studies, he has many more years of study ahead of him. This is also in circumstances where he has not done any study since 2015.[3] As an observation only: I have significant reservations about the Father’s intention to finish his studies, and in the light of his academic record thus far, respectfully, if he does so, he has a very long road ahead of him with, it might reasonably be said, some degree of uncertainty – for a number of obvious reasons – about ever finishing his degree;
[3] The Father’s Academic Transcript from the G University, provided by him, Exhibit 1, confirmed that his only period of study at that University was between 2001 and 2004. It also recorded that he had discontinued his course of study for a degree in 2005. In the light of the documents the Father provided to the Court, what more recent formal study he had undertaken, as he said, and at what institution, unfortunately was entirely unclear.
(d)The Father was financially supporting himself (in circumstances where, as recorded in his earlier evidence, he pays no child support) by running multiple businesses. He said that these businesses employed 40 or so people. It was unclear if this employment was full- or part-time;
(e)The Father said that he advised the Child Support Agency (“CSA”) of the commencement of each business. However, it appeared that he did not keep the CSA updated in any relevant way of the development of his various and diverse businesses. Indeed, he said later in his evidence that the CSA did not ask for further information after he advised it (only by telephone) of the start of each business. In order to remedy any such deficiency in complying with his statutory reporting obligations, the Orders in this matter require him to provide relevant details (e.g. ABN, ACN relating to each of his business entities, and tax returns or company accounts, as the case may be) and to provide all of this information to the ICL. The ICL is then requested to provide this information to the CSA (and to the Mother). If the ICL deems it appropriate, she may provide the CSA with a copy of these reasons;
(f)Again the Father confirmed that the reason for seeking a change in the child’s residence was primarily if not solely because of the false allegation against him regarding him hitting X. He did not explain how a change of residence logically (or in any other way), necessarily followed from that allegation. He also confirmed that he had asked X if he had hit him but accepted that asking such a question of the child put X in an awkward position;
(g)The Father also confirmed that his only reasons for contravening an existing Court Order on 20th May 2020 (by withholding the child from the Mother) was because of an earlier report that X said he wanted to live with his Father;
(h)He did say at one stage of his evidence that the Mother was a good Mother to X, although this was not in his Affidavit material;
(i)There were a series of questions arising from the Father stating in his Affidavit material that it was the Mother’s fault that the child was conceived because she did not take contraception. The Father could not explain what the relevance of this historical matter was to in the current parenting proceeding, other than to say that, at the time of X’s conception, he claimed that the Mother was “sleeping with a number of people.” In my view, remarkably and unfortunately, the Father did not think that his comments, attributing “blame” for the conception of X, would be hurtful to the Mother;
(j)The Father also considered that the Mother was “vexatious” about the parenting proceeding and her attitude towards the Father spending time with X;
(k)The Father could not provide the name of X’s current teacher;
(l)The Father said that he had not sought any professional assistance to aid his communication with X and the Mother. He said he thought that seeing someone might help his communication with the Mother. He acknowledged that the Family Consultant had recommended that X receive professional (counselling and psychological) assistance. He said that he agreed with this recommendation. He also seemed to agree that he would (or should) contribute financially to this needed professional assistance for his son. However, no firm commitment in any relevant respect was made. Nor (he confirmed) had he made any inquiry regarding such matters since the first part of the hearing earlier in the year;
(m)The Father also confirmed that he withheld the child in May 2020 (and on one earlier occasion in 2015) because he considered the Mother to be “unfit”. On the occasion in 2015, X was 3 years old, and the Father confirmed that he knew that the Mother wanted the child back in her care. In his view, it was a smart decision to withhold the child (in 2015) but not necessarily in his young son’s best interests. He said he kept the child in 2015 because of a hostile telephone conversation between the Mother and the paternal Grandmother, and because there were no Orders then in place. At that time (and since) X had always lived with the Mother;
(n)The Father further confirmed that, in the past, even though he was required to register at F Counselling so that changeovers could take place there, and he had not completed this registration. Nonetheless, the Mother continued to facilitate the Father’s time with X with changeover taking place elsewhere until F Counselling became formally available. This led the Father to concede that the Mother had, therefore, actively ensured that X spent time with the Father. All of this said, the Father maintained that the Mother was vexatious towards him;
(o)Following on from this view by the Father of the Mother, he said that he would look into ways to perhaps change his negative views towards the Mother. However, he said – in my view, quite remarkably and again unfortunately – that he had not yet had a chance to look into how he might address his perception of the Mother. As a comment only at this stage, the number of times during his oral evidence the Father said that he did not have the time, opportunity or chance either to look at documents or to make other inquiry regarding matters directly concerning this long-running parenting proceeding, was both repetitious and unfortunate. I do not say that the Father was (or is) indifferent to parenting matters. However, according to his lack of action on so many fronts, it is very difficult not to conclude that his relationship with X (and the co-parenting relationship with the Mother) is not a high priority in his life. While he clearly loves X, his actions quite clearly place his own interests first above all else;
(p)The Father confirmed, not for the first time, that communication between the parents is very poor. In the past, this has included communication regarding relatively basic but important things like dental appointments. There have been instances where the Father has taken the child to a dental appointment without notifying the Mother. This is in circumstances where the Father criticised the Mother in his Affidavit material for not advising him of a separate dental appointment for the child;
(q)The Father said that he spoke to X before they saw the Family Consultant, including about X living with him. He partially accepted, albeit reluctantly, that this discussion could have confused the child about living arrangements and highlighted the contest between the parents;
(r)Although the Father proposed that the child live with him, he confirmed that X had never done so. He also confirmed that in the past when X had spent overnight time with him, the child had woken up calling out for his Mother. He had not done anything to address this. In response to any question to the Father about such incidents where X is distressed, he was unable to offer any specific response about any palliative or therapeutic intervention he would take. Somewhat mechanically, the Father regularly and simply said: “I can always look after my son.” Regrettably, details of any relevant kind were missing from the Father’s evidence;
(s)He confirmed that the longest period he had ever had X in his care was 13 days. This was when the child was 5 years old; he is now 9. To emphasis the point, the Father properly confirmed that X had not spent any prolonged time with him since the child was 5 years old;
(t)The Father also acknowledged that, at the present time, based on what is in the most recent Family Report, X is scared of seeing him. At the same time, the Father said that he did not think keeping or restraining X from being returned to his Mother in May 2020 had caused the child to be in any way anguished or upset;
(u)Remarkably, the Father said that, in his view, in May 2020 he was acting properly and justifiably in keeping X with him, contrary to Court Orders. He said that the Orders were insufficient for him to return the child (ultimately, the child was returned following some police intervention – actual or threatened);
(v)The Father said that he also had very negative views of the maternal Grandmother;
(w)He said that he had no specific plan regarding the proposed change of residence of X. He confirmed that he took no legal (or any other) advice following him retaining the child in May 2020. He said he might (or would) seek advice in the future, but could not comprehend, it clearly seemed, that advice in the future would be after the litigation in this Court had finished;
(x)The Father said that he had no details of, nor could he recall, relevant information regarding, a Family Violence Order that had been taken out against him in 2018;
(y)Regarding the retention of X, contrary to Court Orders in May 2020, the Father confirmed that he knew such action was contrary to the Orders. Likewise he confirmed that the paternal Grandfather knew the Father’s actions were contrary to the Orders. He said however that, while ever his son is happy, he was (and is) content to take risks such as breaching Court Orders;
(z)A final aspect related to the Father’s earlier evidence regarding his various business. One of the businesses was called K Group. I inquired of this in the following terms. My understanding was that that is an events business with topless workers. The Father agreed. It was noted that he worked, part-time, at Employer L. The Father confirmed that he had done so, and had worked at other workplaces. It was pointed out that such employers represented and held certain, clear and well-known, values. The Father agreed. The Court inquired how such institutions would react if they found out that one of their workers was running an events business with topless employees. The Father said that the workplaces knew of his business and that some workers wanted to work for him. He said he did not know if the manager of any of the workplaces knew of this unique business venture. Again by way of observation only, the Father’s lack of insight, on many fronts, in my respectful view, was lacking significantly.
By way of further observation but which summary of matters should be treated as formal findings of the Court, the Father’s evidence was generally troubling. In my view, he showed no insight (and little concern or appreciation) in relation to the following matters, which in turn leads me to doubt the reliability of much of the Father’s evidence:
(a)any psychological, emotional or other risk in changing X’s primary residence to that of the Father where the child has always lived primarily with the Mother;
(b)X not having spent any regular time with the Father for quite a long period of time, or having lived with him at all for a number of years;
(c)the fact that X had strongly expressed distress at the prospect of seeing, or spending time, with the Father, and had stated strongly his opposition to do so;
(d)the only “justification” for a change of residence was self-focussed, namely because of a refuted allegation of the Father hitting X;
(e)the lack of financial support for the Mother via child support or, apparently, in any other way;
(f)the Father’s evidence regarding his academic studies, in my view, was strongly compromised by the documentary evidence that he supplied very late in the proceedings. The Court’s doubts about the reliability of the Father’s evidence in this regard included (i) how far the Father had progressed with those studies, (ii) how long he had been studying, and (iii) the fact that he had done no studies since 2015 (as he claimed), which was contrary to the only Academic Transcript before the Court, from the G University, confirmed that his last academic studies (at least at that institution) was in 2004. In saying this, I make no formal criticism of the Father regarding, for example, his academic aptitude, or for how long the Father has been studying from time to time. In my view, the documents speak for themselves regarding how many subjects have been successfully completed, and how many remain outstanding from those already attempted. The documents do not show how many more subjects, for the degree requirements, need to be completed. In fact, the documents before the Court confirm that the Father withdrew from his education degree in 2005;
(g)the Father’s oral evidence relating to his multiple business ventures was not supported by any documentation. Likewise, his account that apparently some workers at one (or perhaps more) workplaces were keen to work as topless employees stretched credulity. The fact that employers did not know about such business one might understand, up to a point. The Father not seeing any ethical or moral inconsistency between such a business and the ethical and moral lodestars of Christian tradition for a couple of millennia, which workplaces such as Employer L publicly profess to follow, was concerning. What the Father believes or considers to be morally or ethically acceptable in any way is not directly for the Court’s consideration. It is relevant however for the purposes of the Court assessing what levels of insight the Father has across a range of issues, this being but one of them.
Oral Evidence of Mr M (Grandfather)
The paternal Grandfather filed an Affidavit in later withdrawn contempt proceedings brought by the Mother against the paternal Grandfather. That Application related to the Father retaining the child contrary to Court Orders in 2020.
The Grandfather gave very brief oral evidence. Respectfully, it added little to what was otherwise before the Court. In short, the Grandfather supported his son, and his son’s actions, including the retention of X in May 2020, contrary to Court Orders.
Psychiatric Report of Dr D
For reasons given earlier, notably regarding the Court’s (and the ICL’s) concerns about the Father’s capacity to give evidence (based on evidence the Father gave during the first iteration of the trial in March 2020), the Court requested, indeed directed, the Father, to obtain a psychiatric report. The concerns expressed by the Court were also shared by the Father’s then lawyer from the Legal Aid office. The Report by Dr D, dated 22nd May 2020 (which became Exhibit G), was as follows (paragraph numbers have been slightly amended, noting that there was no par.33 in the original report):
1. Mr Eastlund (DOB: 1982)
2. Mental state examination
3. Mr Eastlund was interviewed over 90 minutes via a Zoom videoconferencing link. He established a good rapport and was a clear and articulate historian. His account was consistent with his Affidavit material. His thoughts were well organised. He was orientated in time, place and person. His affect (emotional responsiveness) was reactive to the issues explored. He denied any abnormalities of mood or behaviour. He minimised any experience of frustration or anger but repeatedly stated that he had been disappointed by the mother’s actions and the Court process. It was understood that he had thus used his cross-examination as an opportunity to highlight his concerns to the Court. There was no evidence of abnormal form or content of thought. There was a lack of specificity in his answers, in matters as diverse as the alleged Family Violence and his career path, consistent with his response to cross-examination in Court. This was not identified to be related to cognitive impairment or a Psychiatric Disorder.
4. Family violence
5. Mr Eastlund was single and resided on his own in an apartment in Suburb N, an inner suburb of Canberra. He had last been in a relationship with Ms O approximately two years ago. Their relationship had ended after seven months.
6. When asked about the history of family violence, Mr Eastlund was less than forthcoming. He explained that there had been a Family Violence Order (FVO) against him “by the other party but there had been no breaches at all of that”. He described this as “her way of dealing with the separation, so that the space could be kept legally”. In response to further questioning, he denied that there had been any violence, charges, or Police intervention. He denied that there had been a specific incident. He stated that the FVO was ordered “because of the paperwork lodged by the other party”. A 24-month FVO had been ordered. He repeated that there had been no breaches.
7. In response to further questioning, Mr Eastlund informed me that there had been a number of allegations made related to phone calls. Ms O had raised “some things with the Court”, yet “a number were not true”. He explained that he had made repeated phone calls post-separation to arrange to collect his belongings. She had complained that his communication was “too negative”. He acknowledged having made excessive phone calls. There had been allegations regarding “some dirt being left somewhere”, which allegedly “related to a grave”. He further explained that there had been “a boy in the relationship”. It was alleged that he had walked past an open door while the boy was sitting on the toilet had been “some sort of incident”.
8. Contact arrangements
9. When asked about his son, I was informed that X was eight years old, having been born in 2012. He attended Year 3 at P School. Mr Eastlund, however, was not able to identify X’s teacher’s name but he understood that it started with the letter M.
10. He told me that his son was “a wonderful little boy, very talented, very good-looking”. He had the capacity to pick up new information and apply it. He was interested in building, was creative, active and a very talented sports player. Mr Eastlund thought it sad that X was no longer engaged in competitive sport. While in Mr Eastlund’s care, X had been enrolled in the Q Sports team where he demonstrated natural talent. X was reportedly motivated to play and “loved it”. It was thus very disappointing that his mother did not support his attendance at weekend games and had failed to maintain his engagement in sport. He denied having felt frustrated or angry.
11. Mr Eastlund had maintained supervised contact every Wednesday from 3.00pm to 5.00pm and every second Saturday from 12.00pm to 2.00pm. The partial supervision by the paternal grandfather allowed for unsupervised sporting activities, including bike rides and runs. He explained that supervision had been required due to false allegations of child abuse, “me hitting my son, which I have never done”. This had been introduced in March 2018 on the application of the ICL, “because the other party hadn’t read her paperwork”. These “strong restrictions” to contact had been maintained over the past two years.
12. Psychiatric assessment
13. Mr Eastlund denied any current, past or family history of mental health problems.
14. He understood that a psychiatric assessment had been ordered, “possibly because of my answers during the Court appearance”. He explained that this had been “a very emotional period”. He felt strongly about the handling of his case. Prior to his cross-examination he had not had the opportunity to voice his opinion directly before the Court leading him to “raise issues that the Court didn’t want to hear”. He had questioned the professionalism of the lawyers as he had never hit his son. He had been the subject of longstanding “vexation”. He had tried hard to progress the case and was unhappy with the process. He did not view the timeframe to be “ethically correct” as his case dated back six years. He complained that “the other party” had used “every excuse” to obstruct his contact. He was now being subjected to “yet other vexation”. He had “used the Court process to illustrate some of these things” yet understood that “my actions might have alarmed”. It was understood that, when asked questions, he had taken the opportunity to raise his difficulties regarding the case. He acknowledged that he had not answered the lawyers’ questions and had failed to accept the direction from the bench.
15. He had previously contacted the ACT Law Society. After the other party’s lawyer removed herself from the case he had discontinued the professional standards complaint at the paternal grandmother’s request. He had made two subsequent complaints to the ACT Law Society regarding the ICL and the other party’s lawyer. He complained that the ICL was yet to speak to his son despite this being ordered at the final hearing on 3 March 2020. He had been advised by the ACT Law Society that the best way to progress his complaint was for this to be addressed by the Court.
16. Mr Eastlund explained that, when in Court, he had refused to answer the questions from the barrister and the Judge had asked whether he understood the question. He explained that he had been asked about a breach of a DVO from the other party in 2015 but that this was due to the maternal grandmother breaching the DVO. He complained that the barrister misidentified the DVO as an FVO. Mr Eastlund explained, “I breached the DVO because of the maternal grandmother’s family orders. I took that opportunity to raise additional issues and concerns.”
17. Mr Eastlund detailed his healthy lifestyle which included regular exercise; maintaining an active sporting career; eating a healthy, clean diet without supplements, cigarettes, alcohol or drugs; and a good sleep habit. He denied having used supplements, anabolic steroids or performance-enhancing drugs.
18. Mr Eastlund repeatedly referred to his mood as “very happy”. When it was put to him that he must be frustrated by the legal process and with the mother’s actions, he repeatedly stated that “frustration is not the word for that. I have been disappointed.” He denied having been angry, having raised his voice, screamed or yelled, sworn, struck or pushed anyone.
19. He denied having been depressed or anxious. He denied being concerned by stigma regarding mental health.
20. When asked about X’s referral to a psychologist, he emphasised that this had been by the mother and not by him, given his mood swings while in her care. He insisted that X had always been very happy with himself and his family. He did not believe that his son had required psychological intervention. X had been taken by the mother for a single appointment but follow-up appointments had been cancelled. When asked if this was due to his intervention, he denied that this was the case. He identified this as due to the mother’s actions, “that’s another vexatious claim”. Nonetheless, it was understood that he refused consent for psychological intervention and had initiated legal correspondence to object to this. He concluded, “I said no through the lawyers. I didn’t cancel an appointment directly.”
21. Mr Eastlund identified himself to be generally physically fit. He had required ankle surgery and arthroscopies and had suffered hamstring injuries and broken collarbones in the context of his extensive sporting career.
22. Mr Eastlund provided a detailed account of his engagement with sport since the age of five. He had gone on to represent Australia in international competitions and Country R in sports. He had spent a season with the S Team in 2010. He had played for various clubs locally and internationally.
23. Mr Eastlund denied having suffered significant concussions during his career. At the age of 19, he had been tackled from behind. There had been a brief loss of consciousness. He had not required a brain scan or hospitalisation. There had been no other trauma. There was no history indicative of an Acquired Brain Injury (ABI).
24. Although Mr Eastlund denied being a current drinker, he acknowledged a history of social binge drinking until 2014 which had been “part of the culture” in the sports world. He denied having any history of alcohol-related problems. When asked about fights, he acknowledged that there had been “some issues” but stated that this was “not too bad”. Although the Police had been involved on occasion, this had always been with groups of players getting into arguments. He denied that he had ever been the focus of any intervention. He had never been charged or injured in such fights.
25. Mr Eastlund identified his personality to be positive, confident and very happy. He was identified to be proud of his achievements; however, there was no indication of narcissistic preoccupations. He was noted to have Obsessional Personality traits. He was a hard worker, who paid attention to detail. Although he denied being frustrated by the performance of others, he did expect people to work efficiently, be effective and productive. This enabled him to establish an effective daily routine. It was evident that his concerns regarding X’s dental work had related to his motivation to ensure that X did not have problems with his teeth later in life. This view was based on professional advice and consistent with his motivation to do the right thing.
26. Developmental history
27. Mr Eastlund described a “fantastic” developmental experience. He had been raised in a happy family, with attentive parents. Both his parents had successful careers. He had maintained a good relationship with his younger brother, who had gone on to work in the Employer T.
28. Throughout his childhood, he had enjoyed a healthy lifestyle and was well-engaged in sport. He had attended local Catholic schools. He had been a social and successful student, who had been voted into the Student Representative Council (SRC) throughout his high school years.
29. He had a successful career both locally and internationally as a sportsman. Although he led me to believe that he had successfully completed qualifications at the G University and had worked as public servant at local employers, in response to direct questioning he identified that he had failed to complete these qualifications. He informed me that he had established several businesses in the event, promotions industries. He had reportedly been unable to maintain long-term relationships due to his international sporting commitments.
30. Co-parenting
31. When considering his approach to co-parenting, Mr Eastlund used a concrete analogy of having been “Subject A”, identifying that anyone in such a position would have struggled to resolve the problems. He identified the maternal grandmother as “the source of all the problems that have ever arisen. She’s the main perpetrator for the actions of the other party.” He asserted that Ms Zamora’s actions were under the direction of the maternal grandmother who had been responsible for the false allegations. He further alleged that the maternal grandmother’s circumstances were “very alarming”. He alleged that Ms Zamora’s father had been gaoled for attempted murder. He alleged that the maternal grandmother had abused alcohol and drugs and, on occasion, had been violent. He indicated that such matters had not been taken into consideration.
32. Mr Eastlund was not identified to have any history of litigious behaviour. No evidence of delusional preoccupations or paranoid ideation was identified. That said, it is a matter for the Court to determine whether such matters have a factual basis.
33 Opinion:
34. As per Terms of Reference
35. Any history of the psychological or psychiatric health of the father including previous diagnoses:
36. No psychiatric history was identified in this assessment. The father denied having had any current history, past history or family history of mental health problems which had required assessment or intervention. He had not attended counselling or psychological intervention to date. He had attended a parenting program post-separation.
37. His mental state examination was unremarkable and was consistent with his detailed account of his personal circumstances. He reported a stable developmental history. There was no evidence of alcohol or drug use contributing to any emotional or behavioural disturbance.
38. That said, he minimised his experience of frustration, anger and family violence.
39. His account of his educational qualifications and experience was incomplete. His responses were inconsistent with his statements to the Family Report writer and when cross-examined in Court. Although he led me to believe that he was a qualified public servant and employed in this capacity, on further questioning it was understood that he had failed to complete this degree and thus had been employed on short-term contracts as a public servant. Similarly, when asked about the businesses that he had established, he stated that they were all still running but there was a lack of detail regarding these enterprises. He minimised aspects of his life experience which may be viewed as shameful, such as his failure to complete his degree. He identified his Sporting contracts as a key factor in his educational, occupational and relationship status. Given these circumstances, the need for a detailed CV was identified. The document provided was consistent with his account of his circumstances.
40. Whether the father currently suffers from a mental illness, disorder or other mental health issue as outlined in the DSM-5:
41. The father was not identified to suffer from a mental illness, disorder or other mental health issue as outlined in the DSM-5. He was not identified to have a Personality Disorder.
42. If a problem is identified, what is the severity of the illness, disorder or problem:
43. Not applicable.
44. If a problem is identified, in what way does the illness, disorder or problem impact on the father’s functioning and ability to parent:
45. Not applicable.
46. If possible, please comment on the likely cause of the father’s mental illness, disorder or problem (if any). Please include details of any predispositions or precipitating factors:
47. Not applicable.
48. If a problem exists, the Court Expert outline his opinion as to the father’s insight into any mental illness, disorder or problem:
49. The circumstances resulting in the Court Order for this assessment were explored in detail. The father justified his inappropriate behaviour in Court as this was an opportunity to put his concerns before the Court. He asserted that the legal process to date had resulted in persistent obstacles to contact and parenting his loved child. He had done so due to advice from the ACT Law Society that the best way to progress his complaint was for his concerns to be validated by the Court. He accepted that such behaviour had been inappropriate and unhelpful. That said, he minimised his experience of frustration and anger. There was no evidence of an underlying delusional belief system, overvalued ideas or Psychotic Disorder.
50. If a problem exists, the Court Expert set out his prognosis for the father’s mental illness, disorder or problem:
51. The father was identified to have a good prognosis regarding the management of his emotions and behaviour, based on the account obtained.
52. If a problem exists, the Court Expert’s recommendations for treatment or management of the father’s illness, disorder or problem:
53. Based on the history obtained and the mental state examination conducted, there was no indication for treatment or management of an illness, disorder or problem.
54. The father insisted that he had maintained a healthy lifestyle and that he had adequate social support. He did not identify a need for psychological intervention.
55. If a problem exists, the Court Expert’s opinion on whether or not this impacts the father’s capacity to provide for the child’s emotional, psychological, developmental and physical needs:
56. There was no indication that there was a disorder affecting the father’s mental health that impaired his capacity to provide for the child’s emotional, psychological, developmental and physical needs.
57. If a problem exists, the Court Expert’s opinion on whether or not this impacts the father’s capacity to care for the child
i. On his own during the day; or
ii. On his own overnight:
58. This was not applicable.
59. Any other comments regarding the father’s physical, psychological or psychiatric health:
60. The father reported having been under sustained stress, given the longstanding obstruction to his active engagement in parenting his son. He expressed his “disappointment” regarding these circumstances and the Family Court process to date.
Primary Family Report
The first, or primary, Family Report of Ms C, dated 10th February 2020 (which became Exhibit A), beginning with her section headed “Observations of interactions”, was as follows:
OBSERVATIONS OF INTERACTIONS
54. X and his father entered the room together and Mr Eastlund rubbed X’s head vigorously while greeting him. X spoke to his father about his drawings and about his recent trip to a theme park in Queensland. At one point, Mr Eastlund said “I know, I talked to you” to which X replied “Oh sorry, I forgot”. They chatted easily together about the rides at the theme park. Mr Eastlund placed his hand on X’s chair or on his arm and leaned in close to X. X did not react to this or reciprocate the physical tough.
55. Mr Eastlund corrected X’s speech a number of times, such as when X said “buyed” instead of “bought” and when X used the American pronunciation of “glass”.
56. At the end of the observation session, Mr Eastlund gave X a hug and a kiss and said “give Dad a kiss?” X then gave his father a kiss on the cheek.
57. At the beginning of the observation session with his mother, X took his mother’s hand and held it for a couple of minutes. X and his mother spoke comfortably about watching a movie, with Ms Zamora noting that she found it scary, and X laughing and saying “of course it freaked you out – it is a horror movie”. Ms Zamora replied “I’m glad I watched it with you – you’re so brave with that stuff”. Ms Zamora asked X whether he was feeling alright, to which X responded “yeah” and she then guided him to build a train track together. She said to him “you used to love trains when you were little” to which X responded “liar liar” and she added “you did. I know you don’t like looking at your baby photos”. The pair then laughed together about making a roller coaster train track and chatted about their rollercoaster experiences in Queensland. At the end of the observation session, they packed up the train set together.
EVALUATION
58. The priorities for X, based on his developmental level, are to have a safe living environment with a warm, attuned relationship with his primary caregiver, quality time with other family members, and a stable child-focused routine including opportunities to engage in his education and extracurricular activities, and develop peer relationships.
59. The previous Family Report identified that X, at that time, appeared to have close relationships with his maternal grandmother and paternal grandparents. However, X currently has very restricted time with his paternal grandparents. So long as children are protected from family conflict, it is generally beneficial for children to maintain their extended family relationships. In planning care arrangements for X, it would be beneficial for this to be taken into consideration.
60. Ms Zamora described a settled home routine, and a focus on developing X’s emotional regulation and growth mindset. Ms Zamora appears to have maintained good communication with X’s teachers and there have been no concerns raised about X’s school attendance or performance. Mr Eastlund raised concerns about X’s health and dental care. However, it appears that the poor communication between the parents (and reciprocal cancelling of X’s dentist appointments by each parent) has been the most significant contributor to this.
61. While Ms Zamora appears to have confidence in her capacity to put in place appropriate boundaries for X, X’s reports of his favourite movie genre being horror films, and that he is allowed to have his own Instagram account, may demonstrate that he is exposed to media that is not age-appropriate. While it will be important for X’s parents to foster his individual interests (such as YouTube and watching movies), X will also need encouragement to maintain a balanced, healthy lifestyle, including regular physical activity.
62. Mr Eastlund raised concerns about Ms Zamora’s drug and alcohol use, and her family members’ affiliations with gangs and violence. However, Ms Zamora has denied using illicit substances or alcohol, and there have been no other indications of substance abuse.
63. Mr Eastlund also raised concerns about Ms Zamora’s lack of adherence to Court orders, and that he believes she is trying to limit his role in X’s life. Ms Zamora presented a very different explanation of her non-adherence to the Court orders, and believes that she has consistently acted in X’s best interests. Many of incidents that Mr Eastlund views as Ms Zamora breaching orders appear due to the lack of communication between them, and as most communication has been via lawyers, changes to visits have been complicated. However, if the Court finds that Ms Zamora has consistently breached Court orders in an attempt to restrict X’s relationship with his father, and has lied about her reasons for doing so, it indicates that Ms Zamora is unable to understand or prioritise X’s need to maintain his connection with his father as part of his developing identity. Mr Eastlund’s proposal of addressing this by removing Ms Zamora’s parental responsibility and severely limiting her role in X’s life seems drastic, and unlikely to be in X’s best interests. It will, however, be vital that Ms Zamora understands both the importance of adhering to Court orders and the negative impacts on X of damaging his relationship with his father.
64. Ms Zamora raised concerns about Mr Eastlund’s violence and aggression, describing aggression towards her and others. She also alleged that X had disclosed being hit by Mr Eastlund. Mr Eastlund has denied any violence or aggression towards Ms Zamora or X, and X did not report any aggression from his father, though he did appear fearful of upsetting his father. If the Court finds that there is an ongoing risk of X being exposed to violence or aggression while with Mr Eastlund, it may be more appropriate for X to spend time with his father in the presence of his paternal grandparents.
65. In contrast to the previous Family Report, which found no behavioural changes before, during or after X’s visits with his father; his mother has now identified that X is sometimes unwilling to attend visits, appears anxious prior to visits, and seems more unsettled when he has more regular visits with his father. Ms Zamora’s description of X as being “robotic” while with Mr Eastlund, and her concern that X is not able express himself when in his care was consistent with X’s reports of not wanting to tell his father he did not enjoy the same activities as his father.
66. While Mr Eastlund generally remained focused on X’s needs and best interests during the observation, he appeared to have a somewhat limited sense of X as an individual with his own identity, referring to him solely as “my son”, alluding to changing X’s name as he had not had the opportunity to sign the birth certificate, and presenting a somewhat generic view of X’s needs and preferences. Mr Eastlund may need some assistance to develop his understanding around connecting with X in a more attuned, child-centric manner.
67. Both parents hold very negative views of the other parent, and it appears unlikely that either parent is able to shield X from such strong negative views. They each believe that the other parent is untrustworthy, aggressive, and attempting to damage their relationship with X. This attitude has already had practical impacts on the parents’ capacity to meet X’s health needs (such as cancelling appointments made by the other parent), and is likely to have a significant negative impact on X’s psychological wellbeing and sense of self. These factors make it very unlikely that the parents would be able to coordinate a shared care arrangement, due to the need for frequent communication between them.
68. Ms Zamora has proposed that that X spend time with his father for short periods on weekends, with no contact through the week, noting that she has noticed positive changes in X’s mood and behaviour with less frequent visits with his father. However, this arrangement relies on direct handovers between the parents, which have been described as hostile, and allows for limited time for X to spend with his paternal extended family. Ms Zamora and X both stated they did not wish for X to have overnight stays with Mr Eastlund.
69. Mr Eastlund has proposed that he take over fulltime care of X, as well as sole parental responsibility. While Mr Eastlund was confident that X would quickly adjust to this, such a drastic change would be very likely to have serious long term impacts on X’s psychological wellbeing, particularly as X has expressed that he does not feel comfortable expressing his wants and needs to his father.
70. It is possible that with some parenting intervention, Mr Eastlund and X could develop their relationship to allow X to more freely express his wishes in Mr Eastlund’s care. This may lead to X feeling more comfortable spending some overnight time with his father (or with his father and paternal grandparents) , which would also reduce the amount of direct contact between the parents at handovers.
RECOMMENDATIONS
i.It is recommended that:
ii.The Court consider whether the parents are able to share equal parental responsibility for X, with major decisions discussed in a mediated environment, or whether some aspects of parental responsibility should be solely with one parent.
iii.X live with his mother.
iv.X continue to spend time with his father for six hours on Saturday and Sunday each alternate weekend, and that X phone his father once each week at a time that both X and his father are available with minimal distractions.
v.X and his father attend a child psychologist to improve the dynamic between them, with a view to increase visits with his father to alternate weekends, from Friday afternoon until Monday morning, at the paternal grandparents home if recommended by the treating psychologist.
vi.The Court consider whether Ms Zamora is likely to adhere to the final orders, and whether sanctions need to be planned in the event Ms Zamora does not adhere to them.
Supplementary Family Report
Following the release of Dr D’s report, and prior to the resumption of the trial in October 2020, Ms C prepared a supplementary Report, dated 21st September 2020, which became Exhibit A2. Because of pandemic restrictions, there were certain restrictions in the interviews of the parties. Also, on this second occasion, X confirmed to the Family Consultant that he did not wish to see his Father, Mr Eastlund.[4]
[4] See p.4 of the Supplementary Report.
It is important to record the following brief sections from this Report regarding Ms C’s discussions with the Father, thus:
37. Mr Eastlund said that prior to the suspension of visits with X, the visits were going well, and added “he misses me a lot”. He said that at the at the beginning of X’s visit on 20 May 2020, X said that he wanted to live with him, and that he repeated this to his father. He said that he asked X “have I ever hit you?” and X had said “no”. He said that at the end of the visit, X refused to leave. He said that he phoned Child and Youth Protection Services (CYPS) to raise his concerns, and that they said they would look into these concerns, but did not give him any advice about whether he should keep X in his care or return X to Ms Zamora. When asked about whether he made any specific allegations about X’s physical or emotional safety, he said “no”. He said that X was very happy to spend the night with him, and that he arranged for X to return to Ms Zamora the next day “due to the orders”.
38. Mr Eastlund said that Ms Zamora attempted to take legal action against his father, but that it was dismissed, saying “it is negligence and incompetence that they went after a 70 year old man”.
39. Mr Eastlund stated that the impact of X of having no contact with his father was “not good but was out of [his] hands”. He agreed that it would be beneficial for X to speak to a psychologist to help process his emotions around this.
40. Mr Eastlund was adamant that it is in X’s best interests to live with him and for him to have sole parental responsibility. He raised no new concerns about Ms Zamora or her mother, but said that his prior concerns remain. While he did not elaborate, in previous assessment Mr Eastlund raised concerns about Ms Zamora restricting his relationship with X, her drug and alcohol use, and her capacity to meet X’s health and educational needs.
41. Mr Eastlund was unwilling to provide opinions about whether, if X moved to his care, it would be better for a sudden or gradual transition, and what contact arrangements should be made for X and his mother, saying “these decisions are out of my hands”. He stated that he would adhere to all Court orders and communicate with Ms Zamora in a way that ensured X maintained his relationship with his mother. When asked about the difference between adhering to Court orders in the future and in May this year, Mr Eastlund said he had been listening to what X had wanted, but if X was in his care fulltime, he would encourage X to attend visits with his mother.
42. When Mr Eastlund was told that X had raised concerns about resuming visits with him, he said “there’s never been tension between me and my son”. When it was suggested that beginning with supervised visits may reassure X, Mr Eastlund said “no” and went on to say that F Counselling was not suited for people like him and his son.
43. Mr Eastlund said that he would support X speaking with a psychologist to manage any worries about resuming contact with him, and that he was happy to be involved in that process.
The next sections of this Report, in my view of most direct relevance, are the Family Consultant’s discussion with X, and the section headed “Evaluation” (emphasis added):
47. X presented as a polite and articulate eight year old. He communicated confidently, and was clear in his opinions. He was interviewed by himself, and displayed no concern separating from his mother.
48. X was in Year 3 at the time of the assessment, and is reported to be improving academically at school.
49. X stated his visits with his father earlier this year were “sometimes fine but sometimes he would make me feel uncomfortable”. He gave an example of his father giving him lots of very sweet food, and said that his father would express frustration if he could not run fast enough. He added that his father has said about his maternal grandmother “Grams is stupid” and that his mother is “a lazy head”.
50. X said that he does not always tell the truth when talking to his father, “because he is quite a strong man and I’m scared what he might do”.
51. X said that he did not like when his father made him sleep at his house. He said he agreed to stay for dinner with his father because he did not want him to be angry, but that he did not want to stay overnight. He added that a police officer visited, but that he was his father’s friend. He said “I was begging to go home but the policeman did nothing to help me”. X expressed that he would be nervous to see his father, because he is unsure what his father might say. He also expressed fear that his father may not return him to his mother’s care, saying “I think if he takes me again, he’ll never give me back to Mum. I made Mum drive to his house so if he took me, she can come and check because she knows where he lives”.
52. X stated that he has had a nightmare about his mother being kidnapped by his father, and that at times he wakes up and checks that his mother is still there. He added “One thing I can’t get out of my brain is Dad. I always think about everything that happened…. At school I try to black out my mind and have fun”.
53. X reported that his mother has told him that he can talk to his father on the phone, but he does not want to, adding “I wonder whether he thinks Ms Zamora won’t let me”. He said that he might like to talk to his father at some point, but would prefer to decide when he felt like calling him.
54. X said that he would still be “super stressed” about seeing his father, even if it was supervised at F Counselling, but agreed that this would be manageable if there was supervisor nearby. He said that he does not trust his paternal grandparents to supervise visits, and added “I think I should never go to his house – I’m nervous about the things he might do there”.
55. When asked about Christmas or birthday visits with his father, X said he would prefer not to, as “it would keep me nervous every single holiday”. He was however, happy to send and receive cards and letters from his father. He said that he felt “a bit negative and positive” about visiting his paternal grandparents’ house, saying “the only bad thing they did is lie and yell at Dad” but added “I’m not sure about Nan. Something makes my skull shiver”.
Child’s relationships
56. X expressed significant apprehension about seeing his father, and a high degree of anxiety about spending time with his father in the future. He expressed ambivalence towards his paternal grandparents, and described a close relationship with his mother, saying “I trust her”.
OBSERVATIONS OF INTERACTIONS
57. Observations were not completed as part of this assessment. Please refer to the previous Family Reports for details of previous observation sessions.
Collateral Information
58. Psychiatrist, Dr D, completed an assessment of Mr Eastlund on 18 May 2020. He found no apparent indications of a mental health or personality issue, but did note that Mr Eastlund minimised his frustration, anger, and history of domestic violence. Mr Eastlund gave a solely positive account of his developmental history and career success, which may indicate positive impression management.
EVALUATION
59. The priorities for X, based on his developmental level, continue to be a safe living environment with a warm, attuned relationship with his primary caregiver, quality time with other family members, and a stable child-focused routine including opportunities to engage in his education and extracurricular activities, and develop peer relationships.
60. In the previous assessment, Ms Zamora described a settled home routine, and a focus on developing X’s emotional regulation and growth mindset. Ms Zamora appears to maintain good communication with X’s teachers and there have been no concerns raised about X’s school attendance or performance. Mr Eastlund previously raised concerns about X’s health and dental care; however, Ms Zamora described responding appropriately to concerns about X’s health over the past six months (such as her concerns about his breathing).
61. Mr Eastlund previously raised concerns about Ms Zamora’s drug and alcohol use, and her family members’ affiliations with gangs and violence. However, Ms Zamora has denied using illicit substances or alcohol, and there have been no other indications of substance abuse. Mr Eastlund previously also raised concerns about Ms Zamora’s lack of adherence to Court orders, and that he believes she is trying to limit his role in X’s life. Since the previous assessment, Ms Zamora has been reported to adhere to the orders, and X has consistently stated that his mother is supportive of him speaking to, and spending time with, his father.
62. Mr Eastlund’s presentation during the current interview was dramatically different to the previous assessment. In the two previous interviews, Mr Eastlund has spoken expressively about his opinions, and answered questions in an articulate manner, while in the current interview he responded with one word answers or stated “I’ve never hit my son. Change of residence”. This could potentially indicate a cognitive or mental health issue (though this was not indicated in his assessment with Dr D), or an unwillingness to engage fully in the current assessment.
63. Mr Eastlund is proposing that he have sole parental responsibility for X, and that X lives with him. Mr Eastlund gave no indication of understanding the significant impact that a change of residence would have on X’s wellbeing, and did not engage in discussion about whether there were ways to support this transition if X were to live with him. While Mr Eastlund stated that he would support X’s relationship with his mother, there have been numerous allegations by Ms Zamora and X that Mr Eastlund speaks negatively about X’s maternal family in front of X. Additionally, Mr Eastlund appears adamant that his decision to breach the orders in May this year was warranted. It is very possible that Mr Eastlund will continue to breach orders in the future if similar circumstances arise.
64. In his affidavit and assessment interview, Mr Eastlund noted that he asked X directly “Have I ever hit you?” when X suggested that he wanted to live with him, which may indicate a focus on the Court process rather than on attuning to his relationship with X. Based on the contentious history around X’s care (including a number of allegations of physical abuse), it is very likely that it would be uncomfortable for X to answer this question during a visit with his father. In the assessment interview, Mr Eastlund refused to consider the possibility that X may feel uncomfortable expressing his opinions to him, and was adamant that X had been encouraged to lie during his interview. He maintains that X has always felt comfortable with him and does not believe any assistance is required to improve their relationship. Combined, the factors above indicate that it is very unlikely that X’s needs would be best met by being in Mr Eastlund’s care, or for Mr Eastlund to have sole parental responsibility for X.
65. X displayed a high level of anxiety about seeing his father, due to his concerns about his father being upset with him and concerns that his father may again withhold him from his mother. X reported finding it difficult to stop thinking about his father, even when at school, and stated that he has had nightmares about his mother being kidnapped by his father. While Ms Zamora has reported that X is generally less stressed since ceasing visits with his father, this level of anxiety warrants further exploration and support, such as through connecting with a psychologist.
66. The previous Family Report recommended that X and his father engage with a psychologist to improve the dynamic between them. This may still be possible, once X has strategies to manage his anxiety about speaking with his father. X is very apprehensive about seeing his father without an independent supervisor present, and it appears that having some professionally supervised visits to reconnect X and his father would be most successful, despite Mr Eastlund’s insistence that such a service is unsuitable.
67. The parents do not appear any closer to improving their communication with one another. It appears unlikely that they would be able to manage any parenting decisions in a collaborative manner. Based on the level of hostility between the parents, it does not appear that they can successfully share parental responsibility of X.
68. The previous Family Report recommended that X remain connected to his paternal grandparents by having regular time with them. X reported mixed feelings about his recent time with his grandparents, as it included conflict between his father and grandparents. It would most likely be in X’s best interests to spend time with his paternal grandparents without his father present. The Court should consider whether the paternal grandparents are able to ensure that this occurs, or whether this time occur in a supervised environment to ensure that Mr Eastlund is not present.
By way of general observation only, two comments need to be made.
First, there are a number of needless but distracting typographical errors in these submissions. A simple example comes from par.31, which reads:
There is a live question in this case father’s capacity to provide child.
Presumably, this (along with a number of similarly syntactically obtuse sentences) is – unfortunately – simply a lack of proper proof-reading. They are straight-forward errors and omissions, which should (and would) normally be picked up and corrected in the usual revision that would typically and properly occur before submitting documents to a Court. Regrettably, it seems that such proof-reading and checking did not occur here.
Secondly, at par.28 of the submissions, there is the following reference:
By contrast, the relationship between the child and father and the father's family can only be strained. Despite the evidence of the father, it is clear that his relationship with the child is not the Elysium Field he would have the court believe…
The Court is dealing with a serious parenting matter. Submissions should be focussed on assisting the Court. A very occasional rhetorical flourish can be tolerated, perhaps, usually in oral submissions rather than written, to minimise risk of errors of the kind here. However, such flourishes tend (as here) more to be distractions and really do not assist anyone, least of all the Court, unless there is a direct correlation between, for example, some allusion or reference and the issues before the Court.
Here, the reference to “Elysium Field” is, respectfully, inapt for the following reasons:
(a)According to the Oxford Classical Dictionary (Third Edition Revised, 2003) (typically abbreviated as “OCD”), the correct or usual reference is to either of the following: Elysium, Elysian Fields (not in the singular), or Elysian Plain. A tad more “down-market” but nonetheless accurate, Maximus Decimus Meridius, of the movie Gladiator fame, correctly refers to his troops being in “Elysium” only when they are dead;
(b)According to the same [academic] source, the OCD, Elysium is (emphasis added): “a paradise inhabited by the distinguished or (later) the good after their death …”;[5]
(c)In the current proceeding, fortunately, there is no “death”. It is precisely because of this specific fact that the reference to Elysium was and remains completely inapt and inappropriate. One can surmise what the attempted allusion sought to convey, but Elysium was neither accurate nor apposite. There is a time and place for allusion (ensuring that it is both correct and apposite); this was not one of them;
(d)Only to give force to, and to provide the formal evidentiary base for, the following remarks, not too gauchely I note that (i) more than 40 years of practice in different fora, (ii) the formal study on three continents of famous rhetors and similar eminenti in the academy and public discourse, and more than passing familiarity with their work (from Aristotle, to Cicero, to Augustine, to Aquinas, and many others), and (iii) having worked with the best advocates in Australia in the highest Courts in Australia and the United Kingdom (e.g. Privy Council), perhaps offered in something of a propaedeutic manner, I suggest that the best advocacy (oral and written) is almost invariably characterised by precision, brevity and understatement, with primary focus on precision. Should it also need to be stated, a constantly unspoken part of any advocacy is to ensure that its focus is not to try to impress the Bench – hence the important focus on understatement.
[5] It is unnecessary to note here the usual and various classical references in Homer and Virgil on this subject.
Written Submissions by the Respondent
The Respondent Father’s Outline of Submissions, filed 1st December 2020, was as follows (footnotes omitted). It is clear that, helpfully, he obtained some legal assistance in their preparation:
RESPONDENT’S WRITTEN SUBMISSIONS AFTER FINAL HEARING (Filed pursuant to Order 3 of the Orders dated 20 October 2020)
Parental responsibility
1. The father seeks an order for sole parental responsibility for the child, X, born in 2012. The mother seeks the same order in her favour.
2. The father says that the presumption in s61DA of the Family Law Act (the Act) does not apply. The father’s evidence about the communication and conflict between the parents demonstrates that equal shared parental responsibility is not appropriate for the reasons set out in Marvel & Marvel (No 2).
Meaningful relationship
3. Pursuant to s60CC(2)(a) of the Act X is entitled to have a meaningful relationship with both of his parents. The circumstances to date have mean that X has been deprived of having a meaningful relationship with his father.
4. Despite Court Orders being in place, after separation, the mother did not facilitate X spending any time with his father for the following periods of time:
a. 2 July to 4 September 2015 (prior to interim orders being made);
b. February to August 2018;
c. February to March 2019.
5. The father’s position is that the mother is not willing or able to facilitate X’s relationship with his father.
Protection from harm
6. Pursuant to s60CC(2)(b) of the Act, the Court is required to make orders protecting X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
7. The father’s evidence is that X is at risk of harm in the mother’s care for the following reasons:
a. The mother has a history and drug and alcohol abuse, and association with criminals and criminal activity;
b. The mother has repeatedly failed to facilitate X’s relationship with his father;
c. The mother has repeatedly made serious and unsubstantiated allegations against the father of violence and inappropriate behaviour towards her, and X;
d. The mother refused to allow X to access urgent and critical dental surgery;
e. X was exposed to the mother and maternal grandmother being violent towards the father in his home in July 2015.
8. It is the father’s position that X would be exposed to an unacceptable risk of abuse if he were to spend overnight, or otherwise significant, time with his mother, for the reasons set out in M & M.
X’s views
9. X has expressed a desire to live with his father since July 2018, when he expressed this view to the Child Dispute Conference report writer. The father’s evidence is that X has expressed this view as recently as 20 May 2020.
10. The report writer also stated, in the July 2018 report, “X said if he was the Judge he would say live with Dad” and “X advises there is nothing that makes him feel sad, worried or scared when he spends time with Mr Eastlund”.
11. The father submits that X is of an age where his views can be given considerable weight.
X’s relationships
12. The father’s evidence is that, despite the mother’s unwillingness to facilitate X’s relationship with his father, X has a close and loving relationship with both of his parents. X’s strong relationship with his father is supported by the three supervised contact reports prepared by F Counselling in 2018, which are annexed to the father’s Affidavit filed on 10 February 2020.
13. The father’s evidence is that X has strong and positive relationships with both his paternal grandmother and grandfather, who are both retired and able to spend significant time with X.
14. There is no evidence before the Court that the mother is willing or able to facilitate X’s relationships with members of the paternal family. It is the father’s position, therefore, that a continuation of the current arrangements will mean a deterioration of X’s relationships with his father and his paternal family.
Participation in decision making
15. The father has used his best endeavours to be involved in making decisions about major long-term issues in relation to X. The mother has, however, prohibited the father from being involved in some of these decisions. For example, the mother enrolled X in school without the father’s consent.
16. The father submits that it is, therefore, in X’s best interests for him to have sole parental responsibility for X, but that he be required to consult with the mother in relation to any major long-term decision proposed for X.
Time and communication with X
17. The father’s evidence is that he has taken every opportunity presented to him to spend time, and communicate, with X, despite the mother’s unwillingness to allow this to occur. The father has attempted to comply with all orders of the Court, however, has often been unable to do so due to the mother’s contraventions of the orders in relation to both time and communication.
Obligations to maintain X
18. The father’s evidence is that he has consistently fulfilled his obligation to maintain X. The father pays child support to the mother in accordance with the assessments issued by the Department of Human Services – Child Support from time to time.
19. The mother, however, has not fulfilled her obligations to maintain X, in particular, she:
a. Has not facilitated X having the medical and dental treatment he has required. The father’s evidence is that he made appropriate dental appointments for X, which the mother subsequently cancelled;
b. Did not ensure that X attended the school the parties agreed he would attend in 2016.
Effect on X of a change in circumstances
20. The father’s evidence is that the current circumstances mean that X is unable to have a meaningful relationship with his father. His position is that a change in residence for X will enable X to have a meaningful relationship with both of his parents, and that such a change will not negatively affect X given his age and views, and the already strong relationship he has with his father.
21. The father’s evidence is that the change in circumstances he is proposing will be beneficial to X because:
a. The father will be able to take better care of X’s mental and physical health;
b. X’s exposure to alcohol, drugs, gangs and violence, which he asserts he is exposed to in the mother’s care, will be significantly reduced;
c. X will be able to have a meaningful relationship with both of his parents;
d. It accords with X’s views;
e. X will no longer be living primarily with his maternal grandmother, who the father asserts is an alcoholic and regular drug user, and who has been encouraging of the mother’s non-compliance with Court orders;
f. X has a strong relationship with both of his parents, and the father is willing and able to ensure that X maintains his relationship with his mother.
Practicability
22. The parties both live in Canberra. There is no practical difficulty or expense associated with X living with his father and spending time with his mother. Such an arrangement will also not affect X’s right to maintain personal relations and direct contact with both parents on a regular basis.
Capacity of parents and family members
23. The father’s evidence is that his capacity to care for X is strong for the following reasons:
a. He is a public servant, with experience in raising, educating, mentoring, and being a role model for, young boys aged between 9 and 18 years;
b. He is able to provide for X’s emotional and intellectual needs;
c. He has a residence that is suitable for X, and one which X calls home. X has his own bedroom there;
d. He does not have any cognitive or mental health difficulties, and lives a healthy and positive lifestyle;
e. His work arrangements are flexible, and he is able to structure them such that he is able to care for X before and after school.
24. The father’s position is that the mother is not capable of caring for X as she has been a drug user, and alcohol abuser, since she was a teenager. The mother is also not capable of adhering to Court orders and facilitating X’s relationship with his father.
25. The father’s evidence is that the paternal grandparents are capable of caring for X if the father needs assistance from them. The maternal grandmother, however, has a history of violence and drug and alcohol abuse and is not capable of caring for X. The maternal aunt is married to a member of a motorcycle gang, who has been charged with a violent assault.
Family violence
26. The father’s evidence is that, in July 2015, the mother and maternal grandmother were violent towards the father in X’s presence. The mother attacked the father in his home, and damaged property. The mother subsequently claimed that the father choked her and the maternal grandmother claimed that the father punched her. Both allegations are denied by the father and are not supported by police reports.
27. The father has witnessed the maternal grandmother be violent towards X, in the mother’s presence, and the mother was unwilling to intervene.
28. In July 2015 the mother obtained a Family Violence Order against the father. This Application was resolved [how] in [when]. The father’s evidence is that the mother’s Application for a Family Violence order was not based on any fear for her, or X’s, safety, but was instead made in an attempt to bolster her position in the Federal Circuit Court.
Order least likely to lead to the institution of further proceedings
29. The orders as they currently stand are not being complied with by the mother, meaning that there will be consistent Contravention Applications, and potentially more substantial applications, made by the father in the future.
30. The father’s evidence is that he is willing and able to facilitate X spending time with his mother, meaning that there will be no reason for further proceedings for breaches of the orders.
Subject to what has already been noted about the Father’s evidence, and what is said later in these reasons, in my view, the Father’s submissions are unsupported, and indeed contradicted, by the evidence, most notably from the Family Consultant, Ms C, in her two Reports and in her oral evidence.
Further, the Father’s submissions completely ignore some critical matters. For example, the Father’s submissions do not even refer to (a) the Father retaining the child in May 2020 in breach of Orders, and the adverse flow on effects for the child, and (b) the child’s very high levels of anxiety about the prospect of seeing or spending time with his Father. The Father’s submissions focus exclusively on historical claims that have been very much overtaken by more recent events, which are deliberately, or conveniently, ignored.
Additionally, the submissions pay scant, if any, attention to the obvious and discernible risks to the child (also canvassed by the Family Consultant) should his residence be changed from his long-time primary carer (his Mother) to that of his Father.
One part of the Father’s submissions are apposite, however, but not as he would suggest. At par.11 of his submissions, the Father said: “… that X is of an age where his views can be given considerable weight.” In my view, this is reasonably correct, having proper regard to X’s age of 9 years. Unfortunately, from the Father’s perspective, he only takes account of a curious and earlier “view” expressed by X prior to the incident in May 2020 regarding living with the Father. The May 2020 event of X being retained by the Father was an incident of enormous significance to the child. Its impact was recorded by Ms C in her evidence (her second Report and orally). X’s strongly expressed later views and heightened anxiety about spending time with his Father were completely ignored (or wrongly dismissed) by the Father.
Finally, the Father’s submissions have a complete air of unreality about them. As already indicated, they are presented on the basis of incomplete evidence, and they crucially ignore vital, more recent evidence, especially from Ms C. Such omissions in addressing critical evidence is a fundamental flaw in the submissions. Other critical omissions in the Father’s submissions are identified by the ICL in her written submissions.
Independent Children’s Lawyer written submissions
The Independent Children’s Lawyer filed Written Submissions on 13th December 2020, which were as follows (footnotes omitted):
Submissions of the Independent Children’s Lawyer
1. The ICL supports and echoes the submissions made by counsel on behalf of the mother filed on 9 November 2020.
2. It is submitted by the ICL that while the court has the ability to make orders outside of what is applied for by either of the parties, in light of the evidence the mother’s position should be preferred and adopted.
3. The orders sought by the mother are as follows:
1) That all previous orders be and are hereby discharged;
2) That the mother have sole parental responsibly for the child X born in 2012 (“the child”);
3) That the mother inform the father of any long term decisions for the child including his education, health and medical.
4) That the child live with the mother.
5) That the child spend time with the father for two hours, three times per year at dates and times to be agreed and failing agreement on the last Saturday of every fourth month and such time shall be supervised by a professional supervision agency at the father’s cost.
6) That the parents communicate about the health and welfare of the child only through text message and email except in the case of an emergency.
4. The orders sought by the father are that X lives with him and spends unspecified time with the mother. Despite the submission at paragraph 21(c) of submissions filed by the father on 1 December 2020 (“the father’s written submissions”), the father has not particularised what time he proposes X will spend with his mother. Furthermore, despite the submission at paragraph 21(a) the father has not particularised how he is better able to provide for X’s mental health in the face of unequivocal independent expert evidence that a change of residence for X will have a detrimental and devastating effect upon the child. This even being the case after having time in the adjourned period to reflect upon his own evidence and that of the Family Consultant.
5. The ICL filed on 19 October 2020 a minute outlining the orders she sought. Having heard and considered the further evidence of the father, paternal grandfather, independent expert evidence of the Family Consultant, submissions made by the counsel on behalf of the mother and the father; the ICL supports the orders sought by the mother, with one notation, outlined below at paragraph 5. It is submitted by the ICL that such orders are supported by the expert evidence contained in the Family Report and offered by Ms C under cross examination.
6. It is the ICL’s view that X would benefit from ongoing psychological support. It is of great concern to the ICL the degree to which X is scared and anxious about spending time with the father. The particulars of X’s reality following the 20 May 2020 incident, which as submitted by counsel for the mother, are detailed at paragraphs 49 to 52, 54 and 55 of the Family Report. It is submitted by the ICL that in her view it would assist X to engage in therapeutic counselling. It is the ICL’s view that this would benefit X not only generally but also when spending time with the father as proposed by the mother. X had previously engaged with Dr B and the mother’s evidence was that she conceded it would benefit X to return to seeing Dr B. The ICL would therefore support an order to the effect that X engages with a counsellor, preferably Dr B, and that the counsellor be provided with a copy of the Family Reports prepared by Ms C being the reports dated 11 February 2020 and 20 September 2020, a copy of the judgement and orders made.
7. The reasons for the ICL’s change in position from the minute filed on 19 October 2020 are as follows:
a. The father has showed little to no capacity to be able to communicate effectively with the mother. It is therefore submitted that the proposition that the mother consult with the father as to decisions she will make for X is unworkable and likely to entice conflict, particularly in light of the father’s attitude towards the mother and her parenting.
b. The ICL formed the view that the father lacks the capacity to in any way improve his communication (or lack thereof) with the mother either in the short or long term.
c. The father lacks the insight or understanding into the impact his behaviour has had upon X, particularly most recently when X was retained by him on 20 May 2020.
d. The father’s attitude towards the mother who, undisputedly, has been X’s primary care for the whole of his life together with his continued, unsupported, assertion that the mother ‘has been a drug user and alcohol abuser.’
e. The expert evidence from the family consultant that for therapy (as proposed by the ICL in the minute filed on 19 October 2020) to be successful it would need to be handled sensitively by the father and would require a change in the father’s attitude.
f. Furthermore, the family consultant was unable to say with any degree of certainty how long the proposed therapy would take as it, to the ICL’s understanding, would depend on the engagement from the father and a noticeable change in his attitude. The family consultant accepted that, given the father’s attitude historically, that he would be able to change.
8. In conclusion the ICL echoes the submissions made by counsel for the mother and supports the orders sought by the mother, with the except that in the ICL’s view X should engage with Dr B as outlined above.
9. The ICL would like the opportunity to be heard on the question of costs, particularly in relation to the costs associated with the commissioning of the expert report from Dr D, in circumstances where the father admitted to Dr D that he had ‘used the court process to illustrate some of these things” referring to his displeasure at the time it has taken to get to trial, the professionalism of the lawyers and that he was subject to longstanding ‘vexation.’
In general terms, I agree with, accept and adopt the submissions of the ICL, noting in particular the recommendation that X have psychological assistance, preferably with Dr B.
In light of the ICL’s submission at par.9, the Orders below make provision for an Application to be made, within 21 days, regarding costs. This is not a formal invitation to make such an Application; rather, it is simply a facility that may (but need not) be used by any party or the ICL.
Outline of Principle
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[6]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[6] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68]. See also comments by later Full Court decisions in Slater v Light (2013) 48 Fam LR 573 and Betros & Betros [2017] FamCAFC 90 (“Betros”), this last case is particularly relevant to considerations regarding supervised time with a parent.
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined various other points of reference. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[7]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[7] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks. The same remarks of Brown J in Mazorski v Albright were also endorsed by the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [131] – [136].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In addition to these comments, it is useful to recall some earlier comments by the High Court in AMS v AIF. In that case, Kirby J observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[8] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an application regarding “relocation.”
[8] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted):[9]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[9] AMS v AIF (1999) CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important and apposite to the matters currently before the Court.
Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases. They apply, and are particularly relevant, to the matter currently before the Court given its “complicated mass” of human problems from which the Court has to fashion Orders that are in X’s best interests.
Consideration and disposition
The primary matters that govern the Court’s Orders in the current proceeding arise, in particular and most acutely, from (i) the compelling evidence (including the lack of it on the Father’s part), and (ii) matters that might generally be described as arising from significant dysregulation between the parties and the child as noted above. More directly, the issues concern: (a) the child’s very high levels of anxiety about having any contact with his Father, (b) the Father’s acute lack of insight into his son’s anxiety, (c) the child’s needs more generally, and very close relationship with his Mother, and (d) the Father’s significant lack of ability to comprehend, or to focus, on much else other than justifying his own conduct, including retaining the child, contrary to Court Orders, in May 2020. The Father was singularly unable to grasp that there would very likely be serious adverse consequences for X should the child’s primary residence be changed from his Mother to his Father. As well, there is a singular lack of appropriate and mature communication between the parties.
In terms of the “considerations” under Part VII of the Act, summarily, I note the following. Whether referred to specifically or not, I should be taken to follow sequentially the order of the considerations in s.60CC(3). The summary of matters that follows should be taken as formal findings of the Court, unless otherwise specified.
The most recently recorded “views of the child” are from the Family Consultant’s most recent Report, and from her oral evidence. As earlier described, X is highly anxious about seeing or spending any time with the Father. Given his age, some weight should be given to these views.
The relationship of the child with the Mother is close and appropriately dependent. As may properly be inferred from the evidence, (a) from X’s perspective, his relationship with the Father is highly strained, anxious and problematic, and (b) from the Father’s perspective, he sees there to be little or no problem with the relationship with X. The dissonance between X and his Father is replicated in the relationship between X and the paternal family, particularly the Grandfather. The evidence also indicates that X has a good and close relationship with the other members of the maternal family, notably his maternal Aunt, Ms H. The matters canvassed here are also relevant to sub-paragraph (g) of s.60CC(3).
There are a number of matters to consider under sub-paragraph (c), (ca), (e) and (i) of s.60CC(3). It is sufficient to note that the Father continues not to financially support X. This is in circumstances where there is a paucity of evidence, other than his oral evidence, regarding the Father’s employment, and his various business ventures. It is important again to record that the time-with arrangements between X and the Father have been seriously problematic since the May 2020 incident where the Father with-held the child contrary to Court Orders. Otherwise, the daily parenting of X, in all its dimensions, has been the responsibility of the Mother and her family. The Father’s allegations against the Mother regarding use of drugs and association with criminal elements were never established, and seemingly not remotely pressed or pursued. There was no relevant evidence of any kind to support such contentions. Otherwise, there was certainly no complaint by X about the care he receives from his Mother. Indeed, quite the contrary.
In relation to sub-paragraph (d), it was remarked a number of times earlier in these reasons how oblivious the Father was to the likely adverse impact upon the child if his primary residence was changed from that of his Mother. Again the evidence of Ms C was clear and unchallenged regarding the likely very negative impact on the child were such a change in primary residence to occur. On the evidence, separation from his Mother would certainly lead to greater anxiety for X, and would have flow-on effects, as articulated by Ms C, including upon his education, emotional security, and development.
The issues of “practicality” (and related matters) have been addressed, at least inferentially, in the course of the evidence. There is effectively no communication between the parties. As noted in various ways throughout these reasons, the Mother looks after X, while the Father does little to contribute to his care at all.
Regarding sub-paragraph (f), in the light of the evidence, and the comments above, the Court may properly consider that the Father’s parenting skills and capacity more generally to support, care and provide for X, are very limited. Notwithstanding his assertions to the contrary, his lack of insight regarding X’s anxiety and views, indeed his almost abject rejection of them in the face of clear evidence to the contrary, indicates a very concerning inability of the Father to see anything in proper perspective regarding his son. The Father’s views regarding parenting (and quite a few related matters noted in the course of the evidence) are seriously blinkered, and in turn, inappropriate to assist in the parenting of X.
Nothing was formally made of the Country E heritage of the Mother and the child. The Father never raised it, and he is not of the same heritage in any event. I need not say anything further.
The issue of a domestic violence Order, and breach of it, was the subject of evidence and submissions. I accept the Mother’s submissions in this regard.
In my view, subject only to the Order proposed by the ICL regarding X resuming (or continuing) his counselling, I accept and endorse the submissions of the ICL, and with the qualifications noted, the submissions by the Mother. It follows that the Orders sought by the Mother, as slightly revised by the ICL, are, in my view, in X’s best interests. Those Orders also, in my view, will be least likely to lead to further litigation.
It is the Court’s fervent hope that both parties and the child can have some respite from litigation and focus all of their endeavours on what is in X’s best interests. The Court also fervently hopes that the relationship between X and his Father will be repaired. This is likely to take some time and significant effort by everyone, including the Father undertaking relevant courses as suggested by the Family Consultant. It would certainly be in the Father’s interests to follow this advice. To do so would also, more particularly, be in X’s best interests.
In my view there should at least be some provision or facility in the Orders by which, should the child specifically wish to do so, be able to spend time with his Father and for the Mother to facilitate this. Accordingly, there is a notation to this effect.
Finally, as referred to above, in the light of par.9 of the ICL’s submissions, filed 13th December 2020, absent any other Application being made within 21 days, the issue of costs be dealt with on the basis of Written Submissions of no more than 2 pages in length, which are also to be filed within 21 days.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge W J Neville
Associate:
Date: 15 April 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
Legal Concepts
-
Costs
-
Damages
-
Remedies
3
2