ZEFERELLI & HOGAN

FAMILY COURT OF AUSTRALIA

ZEFERELLI & HOGAN

[2018] FamCA 149

FAMILY LAW – CHILDREN – Best interests – Where both parents seek sole parental responsibility and for the child to live with them – Where the respondent mother believes the child would settle down and accept the arrangement if the court ordered for the child to spend no time with applicant father – Where the court has a statutory mandate to make parenting orders with the child’s best interests as the paramount concern – Where there is little doubt that the child would benefit from having a meaningful relationship with both parents – Where the child’s clear views that he does not want to spend time with the respondent mother should be given significant weight in the circumstances – Where the child is of an age, maturity and intelligence to have principally formed his own rationally based views – Where the court is satisfied that it is in the child’s best interests for the presumption of equal shared parental responsibility to be rebutted – Where the respondent father is to have sole parental responsibility and the child is to live with him – Where the applicant mother is permitted to attend certain school and sporting events of the child–Where the child should be able to instigate contact with the respondent mother as he considers appropriate to his needs and circumstances – Where the orders made are least likely to lead to the institution of further proceedings in relation to the child – Where the child is to have the outcome of these proceedings, the effect of the orders and the reasons for judgment explained to him by an expert as soon as reasonably practical .

FAMILY LAW – COSTS– Where the respondent mother insisted on obtaining an updated family report – Where applicant father did not consider it necessary – Where the respondent mother obtained and paid for it – Where recommendations were fundamentally the same as the earlier report – Where there is no justification for ordering the father to pay half of the costs of the updated report or the expert’s attendance at court.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Zeferelli

RESPONDENT:

Mr Hogan

INDEPENDENT CHILDREN’S LAWYER:

Doris Chan

FILE NUMBER:

BRC

13648

2007

DATE DELIVERED:

12 March 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

5 & 6 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Williams Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Rhonda Sheehy & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Doris Chan
Legal Aid Queensland

Orders

That all previous parenting orders are discharged.
That the father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 as amended) in respect of the child, B born … 2003, (“the child”) save that the father shall, prior to making the ultimate decision about any such issue:
(a)advise the mother in writing either by post or email, of the decision about a major long-term issue intended to be made by him;
(b)seek the written response of the mother, 14 days from the date of the father’s written notice referred to above;
(c)consider by reference to the best interests of the child, any such response by the mother, prior to making any such decision; and
(d)advise the mother in writing (by letter or email) as soon as reasonably practicable of his ultimate decision.
That the child shall live with the father.
That the child shall be at liberty to spend time with and communicate with the mother at all reasonable times as he wishes.
That notwithstanding parental responsibility for the child being solely conferred on the father, the mother is authorised by these Orders to obtain from time to time, at her request and cost from the child’s school, copies of his school reports, school photographs, school newsletters and any other information and documentation pertaining to his academic development and progress.
That the mother is authorised by these Orders to attend from time to time any parent/teacher interview as scheduled with the school.
That the child shall meet with Ms C (“Ms C”) at a time arranged with her by the father through the Independent Children’s Lawyer as soon as practicable after the date of these Orders for Ms C to explain to the child the outcome of these proceedings, the effect of these Orders and the reasons for judgment of Justice Forrest.
That conditional upon the child first giving his approval to the concept, communicated through Ms C to the mother, the mother is authorised by these Orders to attend from time to time any school events such as sports carnivals, plays, musicals, assemblies and awards nights in which the child is involved to which parents of students are ordinarily invited to attend, and/or the child’s football games.
That in the event that the child gives his approval to the mother’s attendance at school events and/or his football games, thus invoking the permission conferred by paragraph (8) hereof, should the mother attend at any such events or football games:
(a)she is restrained from approaching the child or attempting to communicate with him unless he approaches or attempts to communicate with her first; and
(b)the mother and the father are restrained from being within 20 metres of approaching, speaking to, arguing with, gesturing to or abusing the other parent; and
(c)the child may withdraw his approval to the mother’s attendance at any such events and/or football games at any time and for any reason by communicating such withdrawal of approval to the mother in writing (letter, text message or email) and the mother shall immediately cease to attend any such events and/or football games.
That the mother is permitted to send to the child a birthday card, Christmas card, and electronic messages on his birthday and on Christmas Day and also she is permitted to send the child a birthday present and Christmas present.
That the mother and the father shall keep each other informed at all times of their residential address, their mobile telephone numbers and their email addresses and each shall notify the other in writing by email or SMS text message, within 48 hours of any proposed change to any of these, AND the father shall ensure that the child has at all times, the mother’s contact details as referred to herein.
That the father shall ensure that the child continues to attend at D School for the remainder of his secondary education.
That the father shall keep the mother informed in writing of the name, address and contact details of the child’s general medical practitioner and any medical specialists that he is referred to consult with from time to time, the child’s dentist and orthodontist, and the mother shall be authorised by these Orders, to obtain at her request and cost, any information and documentation (including the letters of referrals and medical reports) that these persons are lawfully able to provide regarding the child’s health and wellbeing, and, in addition:
(a)in the case of a medical emergency regarding the child, the father shall immediately notify the mother of the medical emergency;
(b)in the event of the child being diagnosed with any long term illness, the father shall immediately notify the mother of the diagnosis.
That the father shall encourage the child to continue to attend his school Guidance Counsellor as and when the child considers it appropriate.
That the father shall ensure that the child attends upon Dr E or any other doctor, psychologist, or social worker as and when the child requests to attend upon same in respect of his emotional health.
The father shall not take the child for the medical examination or testing, his declared intention in respect of which was the subject of evidence given by the father at the trial and discussed with Justice Forrest at the time.
There shall be no order that the father pay any amount to the mother on account of the costs of Mr F’s updated family report or attendance at Court.
That the Independent Children’s Lawyer be discharged after Ms C has completed the tasks requested of her by these Orders.
Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13648 of 2007

Mr Zeferelli

Applicant

And

Mr Hogan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The child B turns 15 years of age later this year. He currently lives with his father. He moved to live with his father from his mother’s home in August 2016 and has lived with his father since then. He had been living principally with his mother, spending each second weekend with his father, before then. Sadly, he has only seen his mother twice, for very short periods of time, since moving to live with his father. He wants to continue living with his father and expresses a strong preference not to see his mother at all.
The matter is before this Court for determination as, despite the child’s strongly expressed views, his mother wants the Court to order that the child go back to live with her and not see his father at all. She argues that his views are not really his but are a consequence of the influence and manipulation of his father. She argues that he will not become the adult he could be if he continues to live with his father rather than being made to come back to live with her and keeping his father away from him.
By no means do I consider the child’s father to be the perfect parent. In fact, I am satisfied that the father has demonstrated some flaws in his parenting capacities. However, I have determined to give significant weight to the child’s views and to make orders that allow him to continue living with his father and to determine for himself when and how he spends time with his mother.
As I said during the trial, I acknowledge the depth of despair the mother is currently experiencing in not spending any time with her only child. I acknowledge how disappointed she will be by my decision to reject her application and not to make orders that make the child spend time with her. Needless to say, my statutory mandate is to make parenting orders with the child’s best interests as my paramount concern. Sometimes an objective assessment of what meets the child’s best interests will be at odds with a parent’s perception of what meets those best interests. This is one of those cases.

Some Background

The father and mother began living together in 1997 when the father was 42 years of age and the mother was 28 years of age. They had been dating for a couple of years. He had been married twice before and had four children by his two previous marriages. For the mother, the marriage to the father was her first serious relationship. He was and remains a self-employed tradesman. She was and remains a professional with university degree qualifications.
The child was born in 2003 and the parents’ relationship deteriorated very quickly thereafter. They had relationship counselling to try and address their unhappiness but separation eventuated in May 2007.
The mother commenced proceedings for parenting orders in 2008. A family report was prepared and orders were made that same year by consent. Those orders provided for shared parental responsibility and shared parenting with the child living with each of his parents in a rotating equal time arrangement.
Relations between the parents did not improve. In September 2010 the mother again commenced proceedings in the Court, seeking a change to the equal shared parenting arrangements and a move to an arrangement in which the child lived principally with her and spent alternate weekends and half of school holidays with his father. The father sought to maintain the equal shared care arrangement.
A family report was prepared by Mr G. A psychiatric assessment of both parties was prepared by Dr H. A psychiatric assessment of the child was prepared by Dr J. It is worth, in my view, referring to some of the opinions expressed by the experts who provided reports back then.
Mr G pointed out in his 2011 report:
This is a longstanding matter, in the sense that the parents have been locked in an intractable contest since separation. Even cursory exposure to the parents in a joint interview illustrates an equal intensity of conflict over both trivial and significant issues.
He said of the mother:
My view is that [the mother] has a preoccupation with [the child’s] welfare to an inordinate degree and that her focus on an extremely large volume of issues reaches frantic proportions. She has an unswerving view of the correctness of her attitude compared to the father, such that no real negotiation is possible.
Of the child, Mr G said:
He is anxious about his situation and the conflict between his parents and does express frustration. In his interaction with his father he was relaxed and alert. He was less relaxed with his mother, and although attached, more distracted.
Mr G went on and said:
It is clear that the child has strong attachments to both parents, but that his living arrangements are under emotional duress of a longstanding nature, due to the dynamics between his parents. I do not think these dynamics will ever change greatly and what may change is [the child’s] divided loyalties in the sense that it may be safer for him, as he gets older, to have a stronger bond with one parent over the other.
In part, this seems to be developing at the moment, in that he expresses a desire to spend more time with his father than with his mother, albeit only slightly. I think that this is an unfortunate consequence from the untenable nature of his parents’ relations.
Dr H, in his 2011 report, said:
The mother presents as being significantly obsessional in her personality as evidenced by a need to describe things in intricate detail to the extent that she sometimes gets lost in the detail. She does describe some perfectionist traits. …
The father presents as a much more sanguine character who seems unflappable. …
…
The collateral information confirms the mother has significant obsessional traits in her personality with a need for control and difficulty dealing with ambiguity but what also emerges is a degree of narcissism. She sees things entirely from her own perspective and seeks an extraordinary degree of control with respect to how [the child] is cared for while in the father’s care. She seems to take the position that she and she alone is concerned about [the child’s] safety and wellbeing while the father is indifferent to this, such that his contact with [the child] needs to be restricted and supervised.
…
My concern for the mother is that unless she is able to accept and adapt to the current situation that she has to share parenting with respect to [the child] and that she cannot be in control of every situation and that problems in her relationship with [the child] may stem from her attitude and behaviour rather than be sheeted home to the father, she will paradoxically undermine her own relationship with [the child] over time in a self-defeating manner.
If she relentlessly pursues restricting the father’s involvement with [the child] through the Courts, the danger is that subsequent Court Ordered arrangements with respect to parenting may not be in the direction she desires.
In her report, Dr J said:
… I am particularly concerned that [the child] is aware of the argument between his parents and feels responsible for it. It is also of concern that he has to choose between his parents.
…
… I feel that counselling [for the child] is going to be hindered by the intractable conflict between the parents but I believe that it should be focused on supporting the child and minimising anxiety.
…
… [the child] expresses a desire to be primarily in the care of the father but I don’t believe that much weight can be placed on that because of his developmental level.
The extraordinary prescience of those experts’ opinions, expressed in 2011, is now readily observed. However, notwithstanding what they said, at the trial that took place in October 2011, a settlement was reached between the parents after a couple of days of evidence. That settlement changed the parenting arrangements so that the child lived eleven days a fortnight with his mother and three days over each alternate weekend with his father. Under cross-examination during that trial, the father had, it appears, conceded that the child would be better off living with his mother.
The child began attending an expensive, private school in Brisbane in Grade 4 in 2012. The father conceded that he did not really want him to attend that school, though his reasons for that were feebly expressed and probably masked a lack of commitment to the level of expenditure necessary for the boy to complete his primary and secondary education at that school. The mother alleged, though the father denied, that the father told the boy to misbehave at the school so as to get himself expelled from there. The boy did misbehave there, but I do not accept that he did that at the bidding of his father.
After an incident that saw the child deliberately punch his hand into a glass door panel, smashing it and cutting the palm of his hand, he was expelled from the school, not even completing one term there. He was returned to the State school he had previously been attending. The child was also seeing a psychologist for some ongoing counselling. It appears that he certainly needed that help at the time.
The consent orders of 2011 were extensive. They included provision for both parents to be able to attend school functions or extra-curricular activities to which parents are ordinarily invited including “carnivals, sports days, fetes, concerts, plays, parent/teacher interviews and tuckshop”.
The father began attending at the boy’s school on a very regular basis. His self-employed status clearly facilitated his ability to do this. He volunteered for tuckshop. He joined the P & F and, additionally, he would attend at the school to see and talk with the child. This clearly troubled the mother. She considers that it was part of a strategy of the father to “undermine” her position with the child. She applied once again to the Court for changes to the orders, restricting the father from doing that type of thing.
As for the child’s own views, the mother herself said in an affidavit that the child told her in April 2012, that he wanted “week on, week off” with each parent `and did not want to go back to Court again.
In February 2013, after the mother had again commenced proceedings in the Court, the parties consented to an order that said:
Except as provided in Order 24 of the Orders made by Justice Kent on 26 October 2011, neither party attend the school where the child ... attends save for dropping him to or collecting him from school on days the child is in that parent’s care or attending at parent invited school functions. Further the father is permitted at all times to attend the school for school business (including P&C meetings).

According to the mother, the father continued to attend at the child’s school, seeing the child. Just how much of this is said to have been in contravention of the existing orders that permitted him to volunteer at tuckshop and attend events at school, is not clear, but the mother continued to be upset by this school based interaction between the child and the father. She responded by moving the child to another State school for grade 6 at the start of 2014. The mother concedes that this was a unilateral action by her, although there was a shared parental responsibility order in place at the time. Nevertheless, the father again took up his involvement at the new school, including on that school’s P&F.
In April 2014, the child was taken to the police by his father and interviewed in a video recorded interview about some allegations the father had made about the mother dealing with the child physically. Police records note the child telling the police of three separate incidents involving his mother. First, the child said he was on his computerised device playing a game when his mother became frustrated that he had not shut the device and got in the car with her to go to church. He is recorded as having reported that he said to his mother “if you want me to come, you’ll have to grab me by the balls”. He is recorded as having told the police that his mother then grabbed his testicles with her right hand for 1-2 seconds causing him pain. Second, the child is recorded as having told the police of a time when his mother had struck him in the face with an open fist during a fight they were having. He is recorded as having said that he was not sure if it was an accident but that his mother had said she was sorry at the time. He did have a bruise as a result. Third, the boy is recorded as speaking of another occasion when the mother accidentally caused a friction burn to his neck by pulling a doona cover off the child with some force during a period of play. Again, he is recorded as having admitted that this was not a deliberate act and that the mother had apologised and treated his injury.
Police records reveal that they took up with the mother later on and that she had admitted the second and third reported incidents, describing them as accidents, but that she denied ever grabbing him on the testicles as alleged. Police records indicate that discretion not to charge the mother with any offence was exercised.
The child continued psychological counselling and therapy and towards the end of 2014 he began seeing Dr E (“Dr E”), a child and adolescent psychiatrist. Indeed, both parents attended with him at his first session with her in October 2014. Dr E’s clinical notes were in evidence. They are very instructive.
Quickly after the first meeting between Dr E and the parents began, the parents started arguing and the doctor then decided to see them separately. Concerns were raised with the doctor about the child (who was only 11 at the time) and the mother being involved in physical altercations with each other and the father is recorded as having told the doctor he was worried that the child might retaliate and get violent with his mother.
In his first interview with the doctor, amongst other things the child told her how much he loved playing football and complained that he was not playing anymore as his mother told him he could not play for three years and had to try other sports.
Dr E then began seeing the child regularly.
On a subsequent visit, the child is recorded as having told her that his mother and his maternal grandmother had both “spanked” him at times on the bottom, with their bare hands and that it hurt but that it was not happening anymore. He also is recorded as having said that whilst his father pulls out the leather belt he had never smacked him with the belt. He is also recorded as having told the psychiatrist that he was disappointed when his 50/50 care regime changed in 2011 and that he would prefer to go back to that, though he had not told his mother that as he considered she would say “your father has been talking to you, hasn’t he?” The doctor records him saying “she always accuses my Dad of stuff”.
In late 2014, the mother and the boy had another altercation in the yard at their home. They were out near the chicken pen and the mother was doing some maintenance on it. She started admonishing the boy for not doing his allocated task of caring for the chickens and an argument started. The boy picked up a hammer that was lying around and acted as if he was going to strike the mother with the hammer. She shouted out loud to him not to hit her with the hammer, so that her neighbours would hear. He stopped, but continued threatening her with the hammer, before eventually putting it down. The neighbours had heard the mother and called the police. Police attended and spoke with both the mother and the child and no further action was taken.
The father asserts that when he heard about this and tried to speak with the mother about it she told him it was none of his business. She did not assert to the contrary.
In 2015, the child started high school, attending grade 7 at the State high school of his preference in the nearby area. Both parents seemed content that he was going to that school.
The mother started letting the boy travel to school on the bus. This required two separate bus trips with a change of busses along the way. The mother became very troubled when she observed the boy meeting up with the father after the first bus journey and apparently being driven to school by the father. This particularly concerned her because the father had not discussed this with her and was, apparently, trying to keep it secret from her. So, too, was the child. The father asserted that the child was contacting him and asking him to meet him as he was getting scared at having to change busses and travel on his own to school. Nevertheless, the father was acting surreptitiously and not in concert with the mother.
The father also began attending at the high school, volunteering for tuck shop and the like, sometimes even embarrassing the child in front of his peers with his interaction with the child.
The conflict between the parents did not abate. Its impact upon the child was clear. His behaviour at school and his academic performance at school were both poor throughout 2015. Indeed, late in that year he was suspended for a few days for throwing his school bag at another boy who annoyed him. In December 2015, the father took him to see Dr E again, reporting to the doctor that the boy had talked of suicide thoughts to him.
The doctor records the boy telling her on that visit that things are okay when he is at his father’s place but not very good when he is at his mother’s place. The doctor records him as telling her that he has tried telling his mother this but that she dismisses it. He said he was scared of going back to his mother’s place after the holidays, reporting that his mother would scream at him. He is recorded as telling the doctor that he has hit his mother but that she has hit him more than he has hit her. The doctor records him telling her that he did not want to go back to his mother’s place at the end of his holiday period with his father. He is recorded as having told the doctor that he has spoken with his school Guidance Officer on three occasions about the issues he was having at his mother’s place and how it could be affecting his school marks. He is recorded as having reported that he was happy at school compared to being at his mother’s place where he and his mother normally have an average of two yelling matches each week. He is recorded as reporting that his mother does not help him with his homework and that when he asks her to she is too busy. He is also recorded as reporting that he had discussed his living preferences with his mother on four occasions but that it just causes conflict.
The child did go back to his mother’s principal care at the end of those holidays with his father, notwithstanding what he was recorded as having told Dr E.
The child’s visits with Dr E then increased to monthly visits. The mother took him to the first one in January 2016. She reported to the doctor that the child had scratched her fridge with a knife that same morning after she asked him to unpack the dishwasher. She also reported the father’s behaviour in picking the boy up from school secretly and then dropping him to the bus stop one stop from home so that the mother would not know. The mother was able to discern this from the boy’s Gocard records that she could access. The mother is recorded as having also conceded that the child had been asking her to let him live with his father for 50 per cent of the time. Significantly, the boy is recorded telling the doctor during that visit that his father had “never really wanted me” which I interpret to mean that he was confirming that living with his father 50 per cent of the time was not something his father was pushing for.
The boy began playing football again in 2016 with a local club team, as well as playing with a team that his father coaches. The child had made his love of football clearly understood by the doctor.
The child’s behaviour and performance in class at school did not improve in 2016 and he also started expressing frustration and disappointment to Dr E about his mother’s dealings with his involvement in football, such as missing a game that he wanted to play because she had arranged to go sailing instead. He reported that he did not want to keep going to air cadets as he was missing football and seemingly was blaming his mother for this. He also reported to the doctor that his mother yells at him in front of his friends and that, consequently, they do not want to visit his home and they prefer visiting him at his father’s place. He told the doctor that he had not tried to tell his mother how he feels about this as he “knows it won’t work”.
At the session with Dr E in May 2016, the child is recorded as telling the doctor that he was aware he had “broken everything in Mum’s culture – school work (less), not armed forces, hair style (likes it longer than Mum) food, like [football]”. The doctor recorded that she asked the child straight out “do you want to live with dad?” to which he responded “yeah”. She asked him had he told his mother that, to which he said he had and that she had responded with “think about all that I can do for you”. He is recorded as having said “I’ve been asking Mum for 50 per cent since I was 10 years old but it has never happened, never”. He is recorded as having said that he would even be happy just to stay each weekend with his father but would much rather have a week in-week out arrangement.
In June, Dr E recorded the child telling her that he had explained to his mother that he has no power in respect of her parenting choices for him. He told her that she chooses rather than the two of them agreeing.
Throughout the early part of 2016, attempts were made by both parents to organise mediation. The father sought to arrange it through a solicitor. The mother sought to arrange it through K Group. They both attended K Group for family dispute resolution counselling in early May, 2016. A s 60I certificate issued showing they had both made a genuine attempt to resolve their disputes.
The evidence supports findings that the mother and the child had an escalation in the difficulties in their relationship over the first week or so in August 2016. The mother deposes to having had an argument with the child in the car about whether they would have a take-away Chinese meal one night or on another night. She said the boy swore at her in a degrading manner and that she told him she would confiscate his mobile phone for the rest of the week. She said the argument then went on and she stopped the car and told him to get out so that they could each have some “space” for a moment. She said that she remained parked there on the side of the road. A minute or so later she asked the child to get back in the car and he defiantly refused. She said she then “sounded the horn” and he quickly got back in the car. She said that after he went to the father’s place for the weekend he was again rude to her.
On Thursday, 11 August 2016, the child did not catch the bus home as his mother expected he would. He did not have his mobile phone as it had been confiscated by his mother earlier in the week. At around 5:00 pm the father rang the mother and, according to the mother, asked her if she knew where the child was. She said she responded by saying she presumed he was with the father. She said that the father then abused her and she asked him to bring the child home. He did that at 5:30 pm. The mother said that when the child entered the home she told him how disappointed she was and that he did not respond, just hanging his head instead.
The mother said that the next morning, Friday, 12 August, the child kissed her goodbye and promised her he would catch the bus home that afternoon. She said he did not return home that afternoon and that she later discovered that he had packed all of his requirements for school the following Monday on the Friday morning and taken them with him.
The father has said that on Friday, 12 August, the child contacted him and was very upset. The father said that the child told him he had had enough of his mother, that she kept hitting him and pushing him around and that he was going to run away from her home. He had told the father, the father alleged, that he had retaliated against his mother and had pushed her away, causing her to fall over on the floor. He said that the child had asked him if he could stay with him and not have to return home to his mother’s place.
The father clearly agreed to let the child stay with him. He said that he notified the mother by text message that the child would not be returning to her. The father acknowledged that he received messages from the mother demanding he return the child to her care but that he had determined not to.
The father said that on Monday evening, 15 August 2016, the child told him that if he was forced to go back and live with his mother he would hurt her and “stab her”.
On 19 August 2016, the father filed an Application in the Federal Circuit Court seeking to confirm, through orders, the change in living arrangements. The mother opposed that. It is those competing positions that ultimately came before me for trial on Monday, 5 March 2018.
On 22 August 2016, the father took the child for his regular monthly appointment with Dr E. The immediate circumstances were explained to Dr E and her notes reflect she was told that the disagreement between the boy and his mother was to do with his mobile telephone and that the mother had confiscated it from him for a week and banned the boy from attending football training for the week as well.
Dr E’s notes of her session with the boy reflect him speaking a lot of his enjoyment of football. Her notes do record the child reporting to her the following of relevance:
Mum talks to me about Dad - & what he’s put her thru - & I’m sick of it - have asked her to not - but she can’t drop the subject; Mum has some form of hatred for my father
My Dad barely talks about my Mum - & like, he’s more calm
The doctor’s notes reflect the boy conveying to her no immediate intention or desire to go back to, or even see his mother.
The parents then agreed to engage Mr F to interview the family and to prepare a family report to be available for the court hearing that was scheduled for 24 October 2016.
Mr F had a private interview with the child. The boy had not spent time with or even communicated with his mother for about two months before that. According to Mr F, the child expressed a lot of negative sentiment about his mother and his time with her. He is recorded as having said “I have 0 per cent tolerance for her” and “I don’t want to see her face again… it might sound brutal”. Of his mother, he said “she talks negative about him (the father) ... has never said one positive thing about him… she hates him with a passion.” Of his father, he said “he sounds mostly negative… sometimes he talks positive a bit about history ... Dad wouldn’t mind getting on with her if she didn’t do what she does … he despises her.”
Mr F asked the child what he would say if talking to others about his ideas and he records the boy responding “I want to live with Dad… spend no time with Mum, I can’t stand her … if I see her I feel like I’ll stab her … she’s given me black eyes… has driven away and left me in the house unlocked … hit me in the testicles”. He said that if he was ordered to resume living with or spending time with his mother “bad things will happen to her … not just her, me… I’ll stab her … she’s a violent person… I must have got that from her… her genes… I’d like to give her back her own medicine.”
Mr F recorded the child reporting to him that neither of his parents had advised him what to say to him and that he refused to be interviewed with either parent or to share his thoughts and feelings with them for the family report.
When offering his opinions, Mr F pointed out that the child “invites the understanding” that what he had said were his own thoughts and feelings and what he wants, reflecting his own experiences and perceptions. Mr F offered the opinion that the child is of an age and developmental stage (he was 13 at that time) where he could reasonably be expected to be able to differentiate, largely or to a reasonable degree, between his own thoughts and feelings and perceptions and experiences, and those of his mother and father. Mr F conceded that this does not exclude the possibility that there may be some element of parental influence which may reinforce the child’s feelings, but he also points out that the child has had some years of counselling where he has been assisted in his processing his experiences and perceptions and his own part in parent-child and family relationship dynamics.
Mr F pointed out that the child’s return to his mother is an outcome he will apparently not accept. He also said it is “questionable” whether the mother could physically and emotionally contain the child if he experiences and perceives her as not listening and responding to his expressed wishes and needs. He also offered the thought that as a boy who was nearly 14 years of age, the child is at a stage of his life where he is further evolving his sense of identity, including gender, making it not unusual for him to want more relationship opportunities with his same gender parent and primary male role-model.
In that late 2016 report, Mr F recommended that the child continue to live with his father, and for two to three months that he not spend any time with his mother. He recommended that the father have sole parental responsibility for those few months and that there be intense therapy for the child with a helping professional, to include separate sessions with the mother and the father as well as joint mother-son, and father-son sessions as well as whole family sessions.
On 24 October 2016, Judge Howard of the Federal Circuit Court made interim orders with the consent of the parties in accord with the recommendations of Mr F. He also ordered the appointment of an Independent Children’s Lawyer (“ICL”) and transferred the matter to this Court. Ms Chan was re-appointed as the ICL. She had been the ICL in the previous litigation in this Court in 2011.
The child saw Dr E again in November 2016. He is recorded by her as happy not to be seeing his mother for six months.
Experienced social worker, Ms C (“Ms C”) was appointed to provide the intensive therapy for the family with a view to repairing the relationship between the mother and the child. That began in mid-January 2017. She convened the first mother-son session on 1 March 2017 and by all reports it went well. Indeed, Ms C was very happy that it went better than she had expected it would. However, a week after that, the mother and the child had a chance encounter at a Brisbane shopping centre that did not go well. After coincidentally running into the child whilst both were at the shopping centre for their own purposes, the mother approached the child and asked him to give her a hug. The child reacted negatively to that and refused. The mother pressed him for his reason for not wanting to give her a hug. He told her that he never wanted to see her again and he hurried away from her company. It is understood that there were peers of the child’s in the vicinity.

Ms C, who had a session with the child only three days later, reports that the child felt embarrassed and pressured. Ms C offered the opinion that the mother should have been more restrained, and should have just acknowledged him with a smile and moved on, rather than putting him in that position. Ms C determined that the process had been quite adversely impacted by those events and determined that no further sessions be scheduled. She informed the parents of that.
Ms C did have another session in May 2017 with the child to gauge his needs, attitudes and wishes and to assess whether it would be productive and therapeutically appropriate to schedule further sessions. After speaking with the child, she determined that it was not.
Ms C brief written report was adduced into evidence. She said that the child presented as needing to be insulated from the adult conflict and is keen to avoid becoming further embroiled in the adults’ dispute. Ms C said, that “the best outcome for the child would be for the parental conflict to cease”.
Appropriately, Ms C turned her mind to the issue as to whether the child has been alienated from his mother. She said that, rather than alienated, the child displays signs of “realistic estrangement”. She said:
… He can give examples of why his mother’s behaviour distressed him. He can recall positive times with her. He was prepared to meet with her for a session. He can politely explain his feelings about her behaviour and acknowledge he is sorry for upsetting her when he outlined his feelings.
He presents as having reached a position where he has chosen to side with one parent as this is where he feels most comfortable. This also creates a sense of peace as he does not have to feel divided loyalties or to have to consider both parents’ feelings and he does not have to constantly adjust to different parenting and expectations in each household.
It is assessed that the relationship between [the mother] and [the child] is deeply damaged.
It is noted as a concern that [the mother’s] behaviour has caused damage to the relationship and that her behaviour has been self-defeating.
…
[The child] presents as definite in his view that he does not want further contact with [his mother]. It is assessed that [the child] has given considerable thought to his views. These views present as his own. Although there had been a mellowing of his views and there was progress made on 1 March, this was then negated. He has been consistent in his views. His views were more adamantly expressed at the May interviews. It is assessed [the mother’s] actions in March served to reinforce [the child’s] concerns about her.
It is assessed that to pressure [the child] into spending time with [his mother] at this stage would only serve to deepen his negative opinion of her. The unfortunate end result is likely to be that he maintains the severing of his contact with her into his adult years.
…
It is assessed that further intervention and further sessions at this time would not be useful in repairing the relationship between [the mother] and [the child].
Ms C recommended that any future contact between the child and his mother be initiated by the child and that the father actively encourage the child to contact the mother at a minimum of three occasions per year on his birthday, on Mother’s Day and on Christmas Day.
The child saw Dr E again in October 2017. The doctor recorded that she asked the child what he would want her to say if she was asked to go to Court and he said “I don’t really have anything apart from I just don’t want to see my Mum.”
The matter came before me for trial management in October 2017. I was informed, though the mother did not attend that day, that she wanted the matter to go to trial notwithstanding all the evidence about the boy’s expressed views and the expert opinion that had been offered. The mother pressed for an updated family report to be prepared by Mr F. The father did not agree that another one was needed. He argued that the boy’s views were already clear. As it was to be privately funded, I ordered the mother pay for it in the first instance with the question of how the cost was ultimately to be borne to be a matter reserved to trial.
Mr F saw the family again and prepared an updated report. He saw the child on his own again. In this report, he records that the child acknowledged that his father “doesn’t want me to have a broken relationship with Mum… be confused… he wants me to see her and not have regrets … Mum wants to get me back … full-time.”
Of the shopping centre meeting, the child told Mr F:
[The child] “heard, ‘[the child]…[the child]’ …turned around…it was awkward…she approached me…said, ‘How are you?’…asked for a hug…I said, ‘No’… She said, ‘Why not, I’m your mother’…I tried to walk away…she followed”. … [It] “was a surprise…made me angry…I’d been told she was not to approach me…she was not allowed…unless it was organised…and she deliberately approached me…it changed my perspective against her…it set the tone”.
Mr F reported that he asked the child what he might do if orders were made for him to have visits or live with his mother and he responded “I wouldn’t go … near her … or her car” and that he would remove himself to stay at a friend’s home. When asked what might be the outcome if police or other authorities delivered him or returned him to his mother’s place he said he would simply continue to remove himself and he said “keep running away … it wouldn’t end… If she’s dumb enough it increases ruining the relationship.”
Mr F’s concluding recommendations were that the child live with his father and not be ordered to spend time with his mother and that the father have sole parental responsibility for him.

At Trial

The mother, who was represented by experienced counsel and solicitor at trial, maintained the position that all of the experts were wrong, that the father was entirely responsible for undermining her relationship with the child and that the best interests of the child demanded he be returned to her sole care and parental responsibility immediately and for all time and contact with his father to be prohibited.
She expressed the strong held opinion that she would be able to deal with any difficulties that might emerge on such arrangements being ordered and that the child would settle down and accept that arrangement, particularly if he knew he would, and could have no contact with his father. However, counsel for the mother could take me to no evidence that would, objectively, support a confident finding that the mother was correct about this. In fact, he conceded that the only evidence that supported such a position was the opinion evidence of the mother alone.
Much weight was sought to be placed on the father’s 2011 concession and settlement by the mother, and the Court was asked to accept that the current circumstances came about simply because the father deliberately went about fastidiously undermining the parenting regime that he consented to, out of malice towards the mother. When asked in cross-examination whether she accepted any responsibility for the current circumstances, the mother asserted that the father was 99 per cent responsible for them whilst she was only 1 per cent responsible for them and that 1 per cent was because she had imposed rules on the boy in her household.
As I had expected after reading the affidavits of evidence in advance of the trial, the father did not present at the trial as a parent who does not warrant criticism. His attitude toward the mother reflected her attitude towards him. I was satisfied that neither had much respect for the other parent’s role in the child’s life and I am satisfied that the child understands and is burdened by that.
The father has, no doubt, contributed to the child’s feelings by his own actions and words. However, as Mr F opined, I consider that such actions and words have simply reinforced the feelings that the child has developed through his own experiences and perceptions rather than singularly having shaped them.
I am satisfied that the child, so burdened by the parental conflict that he had grown up with, without memory of any other co-parenting relationship between his parents, simply got to the point of deciding for his own emotional self-preservation to go with one of his parents and exclude the other. It is apparent that he went with the parent who he perceives meets his needs and wants at this stage of his development. Am I to say that he is wrong?

How is the case to be decided?

Subject to the presumption of equal shared parental responsibility contained in s 61DA of the Family Law Act (“the Act”), the Court may make such parenting order as it thinks proper, but in doing so the court must regard the best interests of the child as the paramount consideration. (s 60CA)
Section 61DA requires the Court to apply a presumption, when making a parenting order in relation to a child, that it is in the child’s best interests for the child’s parents to have equal shared responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence (s 61DA(2)). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him.
In this particular case, neither parent contends for anything other than sole parental responsibility being exercised by one parent. Clearly, each parent considers that equal shared parental responsibility would not be in the child’s best interests.
Mr F does not consider anything other than sole parental responsibility being conferred on the father in this case would be in the best interests of the boy.
Without even turning to a consideration of the question of whether the presumption does not apply by reason of the fact that one of the parents has abused the child or committed family violence, I am quite satisfied, on the evidence, that the parents and Mr F are correct and that the presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility is rebutted.
Section 65DAC of the Act mandates certain obligations where parental responsibility is shared and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Those who share parental responsibility are obliged to consult each other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue. Finally, they must make the decision jointly. It cannot be made unilaterally by one of them. If it cannot be made jointly then, in my judgment, the law does not permit it to be made unilaterally by either of them. Where the evidence demonstrates that parents could not comply with these obligations and would not be likely to be able to jointly make these decisions then it is, in my judgment, not in the subject child’s best interests to put orders in place that would then lead to such impasse. The evidence in this case satisfies me that this is such a case.
I could not make an order for shared parental responsibility in this case. I am not satisfied it would be in the child’s best interests.
Accordingly, the determination of the proper parenting order requires regarding the best interests of the child as the paramount consideration and does not require mandatory consideration of whether the child spending equal time with each of the parents is reasonably practicable and in the child’s best interests. (s 65DAA)
That observed, when determining what is in a child’s best interests, this Court must consider the matters that are set out in s 60CC(2) and (3). (s 60CC(1)). Furthermore, the Court must, when considering what order to make, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. (s 60CG)
I do not understand there to be a current family violence order in place.
The Court is to consider the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
There is little doubt that it would benefit the child to have a meaningful relationship with each of his parents as he develops into adulthood over the next few years. However, as I have said, I accept that the child has determined for himself that his own emotional well-being requires him to forego, for the moment, his relationship with his mother. The evidence satisfies me that his relationship with his mother was creating trauma for him and that he determined to take action himself to effectively suspend it.
The law requires the Court, in any event, to give greater weight to consideration of the need to protect the child from physical or psychological harm (s 60CC(2A)) and I do that in this case. I am seriously concerned that making an order that forced the child to live with his mother or spend time with her against his strongly expressed views and in the face of his own assertions as to what the potential consequences of that might be, would expose him to an unacceptable risk of psychological harm and, potentially, physical harm, at the hands of his mother. There is a real risk that the child will run away from his mother’s home, that he will attempt to physically hurt his mother and thereby expose himself to being physically hurt by his mother and there is a real risk, in my judgment, of the child even self-harming if he was to feel as if he has not been listened to. I consider there is a very high probability of one or more of these terrible outcomes occurring if I make an order contrary to the child’s own views. The high probability of physical or psychological harm to the child as a consequence I am satisfied makes the risk an unacceptable one.
By law, I must consider any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks relevant to the weight that should be given to the child’s views. I am readily satisfied that the child’s views should be given very significant weight in all the circumstances of this case. He is almost 15 years of age. Several experts have worked with him and talked to him over the last seven years. All have recorded his expression of a desire to spend more time with his father and, more recently, to live with his father and not to see his mother. Mr F and Ms C have given considered reasons as to why they consider the child’s views to be well founded. I accept the accuracy of the factual reporting of the experts and the soundness of the opinions they have formed as a consequence of their observations, training and experience.
Whilst I do accept that the child’s feelings would have been reinforced by his father’s words and actions to a degree, I do not accept, as the mother would have me accept, that the child’s views are simply a product of his father’s malevolent influence. The child is old enough, apparently mature enough and of sufficient intelligence to have principally formed his own rationally based views.
I do consider and weigh up in this determination process, my acceptance of the mother’s submissions that by allowing the child to continue to live solely with the father that he could very well grow to model some of his father’s identified poor behaviour and attitudes, with potentially poor outcomes for him as an adult. For example, the father has a history of not being able to maintain relationships with other adults, particularly women, and he admitted a lack of respect for authority, rules and boundaries. As I have already observed, the mother argues that if the child grows to model these behaviours and attitudes he will not become the adult that he could otherwise become.
The mother might very well be right about this, but these best interests determinations in this Court often involve weighing up competing matters, both sides of which present with some potential negative outcomes in varying degrees. Sometimes the Court is required to ultimately determine what may be the ‘least worst’ outcome for a child. Whilst I acknowledge that the father’s attitudes and behaviour do not necessarily reflect what might be considered best parenting standards or those of the ideal citizen, and whilst I accept that some of his past behaviour might warrant criticism, I am satisfied, after weighing up all of the evidence and considering the various possible outcomes, that leaving the child living with his father is the better outcome in all the circumstances.
Not only does this arrangement accord with what the child himself wants, but the evidence in the form of the child’s school reports provided by the high school he has been attending for 2015, 2016 and 2017 reflects noticeable incremental improvement in his observed behaviour and academic performance at school, particularly in the period since he has remained in his father’s sole care from August, 2016. His own feelings about himself and how he sits within his school, social and sporting peer group also appear to have improved since removing himself from the parental conflict he was so clearly exposed to going backwards and forwards from one home to the other.
Also of relevance, the father has formed another relationship with a woman and they are now engaged to be married. The father and the child have moved into and live with her in her home in the south of Brisbane. She is widowed from a former marriage and has independent, adult sons and grandchildren of her own, with whom she has reportedly intact, sound, loving relationships. Mr F reported that the boy asserted a good relationship with her and a fond regard of her. She gave evidence in Court and impressed as having an appropriate respect for the circumstances the child finds himself in and his emotional needs in these circumstances. If the father can maintain that relationship, at least for the next few years, I consider that her presence in the child’s life during that time should be a positive experience for him.
I have no reason to consider that the father cannot satisfactorily meet the child’s needs over the next few years. I accept his assurances that he is committed to the child remaining at the same high school that he has been attending for the last three years and going through to complete Year 12. The child’s attending to and completing homework tasks has noticeably improved in the last year and I am satisfied that is reflective of what is happening in the child’s home and life. I accept that the father is completely committed to encouraging and facilitating the child’s involvement and participation in football and that the child’s understanding and appreciation of that has probably played a fairly significant part in the development of the child’s feelings and position over the last few years. In contrast, though the mother asserted total commitment to facilitating the child’s involvement in football, that certainly was not the child’s perception when he was living with her.
I am satisfied that the proper parenting orders to make in this case include a sole parental responsibility order in favour of the father and an order that the child continue to live with his father. I will make such orders. In respect of parental responsibility though, I will nevertheless make orders that require the father to consult the mother in writing when he is making a decision about a “major long-term issue” in respect of the child as that term is defined in the Act. He will be obliged to ask for her input, consider it and then advise her in writing of the ultimate decision he makes exercising his sole parental responsibility.
Counsel for the mother informed the Court during his oral submissions that he held his client’s instructions that if she was unsuccessful in obtaining the orders she seeks to have the child live with her and not spend any time with his father, that she seeks, alternatively, orders that the child spends each alternate weekend and half of the school holidays with her. That position was not advanced by the mother in her written material or evidence and I respectfully observe that no questions were asked of the father or the experts going to the issue at all.

The views of the child are clear. He wants no time with his mother. The opinions of the experts are clear. They do not consider it would be in the child’s interests to force him to spend time with his mother, but rather they recommend leaving it to him to instigate contact with his mother as he considers appropriate to his needs and circumstances. As I have already determined, these matters attract significant weight in this case.
I must also consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. (s 60CC(3)(l)). In this respect, an order that the child spends time with his mother that he does not want is more likely to lead to the institution of further proceedings in this family’s circumstances, in my judgment, than an order providing for the child to determine for himself the time, if any, he spends with his mother.
The child is recorded as wanting the conflict between his parents to stop. I consider it best to make orders that provide him with the best prospect of that, so I will not order him to spend alternate weekends and half holidays with his mother.
The ICL proposed to the Court, through her counsel, at the end of the trial orders that the Court should make. Those included sole parental responsibility to the father, the child living with the father and spending no time with the mother. Those I accept as in the child’s best interests. However, the ICL also proposed an order that permits the mother to attend parent/teacher interviews scheduled at the child’s school, as well as events such as plays, musicals, assemblies and awards nights to which parents of students at the school are ordinarily invited. She also proposed that the order permit the mother to attend at any of the child’s football games.
The father did not oppose the mother attending at parent teacher interviews but he did oppose the balance of that proposed order.
Mr F was asked his opinion about it and did say that if the mother availed herself of such permission (and I expect that she would if permitted) that this allows the child to have “a passive experience” of the fact that his mother remains interested in him, that she is still accessible to him and has time for him. In the event that they have a later reconciliation, which is hoped, they would at least have a “narrative of past events” that they have shared, even if only “the threads of a shared narrative”. He said this could make any reconciliation a better experience for the child.
When he was asked if there was a potential for the mother’s attendance at football games to backfire, Mr F conceded that is possible but went on to say that “the mother would be propelled to demonstrate an active engagement within those parameters.” He said it would be best if she was “the statue” and the child was “the mover” at any such events.
Counsel for the father submitted that the risk of the mother’s attendance upsetting the child or resulting in conflict between the two parents again in front of the child was too high to allow her to attend at these events. There is some foundational merit in this submission. There is evidence of historical conflict and abuse between the parents at football games and the attendant embarrassment that caused the child. I consider there is a risk that either the mother or the father might not be able to restrain herself or himself from confrontation, argument and abuse if they are in proximity to each other at such events. I am concerned that would lead to more emotional trauma for the child and potential further proceedings in this Court.
The ICL proposed that Ms C be asked, through the orders, to speak with the child and to explain to him the outcome of the proceedings. I consider that to be an appropriate course. Neither parent opposed that proposal. Ms C will be able to tell the child, amongst other things, that he was listened to by the Court.
I will make an order that permits the mother to attend at the child’s school events that parents are ordinarily invited to and at his football games only if the child communicates his approval of that concept in the first instance through Ms C at their meeting at which she explains the orders to him and discusses this judgment with him. If he tells her he is fine with that idea, then Ms C can communicate that to the parties in writing and it can happen.
My orders will include restraints on the mother from approaching the child or trying to communicate with him at any such games or events without him first approaching her or communicating with her. They will include restraints on the mother and the father from approaching, speaking to, arguing with, gesturing to or abusing the other parent, if the mother does attend at any such events. Ms C can also explain to the child that such orders will be in place, in the event that he approves the concept of his mother attending such events or games.
If the child does not approve of the concept through Ms C, then the mother will not have the Court ordered permission to attend any such events. In the event that the child approves of the concept through Ms C, then the mother does have that permission, but my orders will also provide for the child to be able to withdraw that permission at any time, by communicating that in writing to his mother. He can do that if he is unhappy with how his mother conducts herself at any such events or games that she does attend. If he does withdrew that permission at any time by communicating it to the mother in writing, then the mother must cease attending and no longer has the Court ordered permission to do so. Any further attendance at any such events or games then would put her in contravention of the orders.
There was another order proposed by the ICL that the father opposed. It was proposed that the father ensure that the child continue to attend at Suburb L Medical Centre whenever he needed to see a medical practitioner, except in the case of an emergency. The ICL proposed that, I presume, as Mr F had recommended that in his 2016 report.
Counsel for the father submitted that as the father and the child were now living in a different suburb further to the south west in Brisbane that it was not really practicable for the child to continue to attend at the Suburb L Medical Centre, with the father preferring to take the child to a local one.
I do not consider it necessary in meeting the boy’s best interests for him to have to attend upon a doctor at Suburb L and I have decided not to order that. For an otherwise healthy fifteen year old boy, I am not persuaded that continuity at the same general medical practice matters to any serious degree.
The evidence suggested that the child attends upon his school Guidance Counsellor from time to time. He should be encouraged to continue doing that as he determines necessary. His father should also ensure the child attends upon Dr E as and when the child might request or, in the event that the child asks to be able to consult with any other doctor, psychologist or social worker in respect of his emotional health, the father should ensure such opportunity is facilitated for the child.
Further, there was a passage of oral evidence during the trial in which the father told the Court he intended taking the child for some medical testing in a few weeks’ time. I do not intend to go into it in any more detail in these reasons. The father’s expressed intention immediately struck me as inappropriate and not one that would advance the child’s best interests. I made that clear to the father and asked him whether he would be prepared to undertake not to do that or whether I would need to restrain him from doing so. The father quickly understood my disapproval of his proposed course and confirmed that he would not carry through with the plan. At the end of the trial, it was simply inconvenient to require a written undertaking to be prepared and handed to the Court, so I indicated it would now be easier for me to simply make an order restraining the father from the course of action he proposed. I accept he was prepared to give the undertaking though and did not force the Court to grant the restraining order. I will word the order in a manner that does not expressly refer to the matter in any clearer detail, satisfied that the father will understand precisely what he is being restrained from doing and that he will appreciate the potential consequences of a breach of the order.
Finally, I will not make the order the mother asked for in respect of the costs of Mr F’s updated family report and his attendance at the Court. When the matter came before me for the trial management hearing in October last year, the parties had available to them Mr F’s 2016 family report and Ms C’s short report. The recommendations of both of those experts were absolutely clear and easily understood by anyone who read them.
At that hearing, the mother insisted on obtaining an updated report from Mr F. The ICL was not going to get funds from the Queensland Legal Aid to pay for it. The father did not consider it necessary and did not want to have to pay out more money for an updated report.
The mother obtained it and paid for it. Mr F’s recommendations were, fundamentally, no different from the recommendations he had made in his first report. Indeed, he firmed up on his recommendation that the child not be ordered to spend time with his mother other than in accordance with the child’s own views. In the circumstances, and despite being satisfied that the father has not shielded the child from the conflict between his parents as much as he could have and should have, I do not consider there is justification now for ordering the father to pay half of the costs of Mr F’s updated report or his attendance at the trial to give evidence.
In conclusion, it is the hope of the Court that the child will understand how much his mother loves him and despairs at not being involved in these great years of his life and how much she wants to have a relationship with him. Perhaps one day the child might himself learn that parenting is not always an easy task and that parents, being the human beings that they are, sometimes, or even often, make mistakes. Whatever be its flaws, the child’s relationship with his mother has much to offer the child in the long-term. It will be good for the child if he can see some way in which he can renew the relationship with her as soon as possible. It will be good for the child for the father to continue to encourage that idea, too.
It is also hoped that the mother appreciates that the position the Court has adopted in no way involves considerations of “punishing” her as she averted to during the trial. It is rather one based on the best objective assessment of what is in the child’s best interests that the Court can reach.
I make the orders that are set out at the commencement of these written reasons.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 March 2018.

Associate:

Date: 12 March 2018

[2018] FamCA 149

12 March 2018

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