FEDERAL CIRCUIT COURT OF AUSTRALIA
DALTON & DOOLAN	[2014] FCCA 2300	

Catchwords: 
FAMILY LAW – Parenting orders – best interests of child – child not spent regular time with father – mother opposed to father and child relationship – therapeutic counselling agreed to – sole parental responsibility – travel. 	

Legislation:
Family Law Act 1975 (Cth), ss.11F, 61DA, 61DA(2), 61DA(4)	

Applicant:	MR DALTON	

Respondent:	MS DOOLAN	

File Number:	MLC 6619 of 2011	

Judgment of:	Judge Hartnett	

Hearing dates:	31 July and 1 August 2014	

Delivered at:	Melbourne	

Delivered on:	10 October 2014	

REPRESENTATION
The Applicant:	In person	

Counsel for the Respondent:	Ms Conlan	

Solicitors for the Respondent:	Zeno Family Lawyers	

Counsel for the Independent Children’s Lawyer:	Mr Eidelson	

Solicitors for the Independent Children’s Lawyer:	Lampe Family Lawyers	

THE COURT ORDERS THAT:
(1)	All previous parenting orders be discharged. 
(2)	The mother have sole parental responsibility of the child [X] born [in] 2005. 
THE COURT ORDERS BY CONSENT THAT:
(3)	The child live with the mother. 
THE COURT ORDERS THAT:
(4)	The mother use her best endeavours to facilitate time spent by the child with his father, in the event that the child expresses a wish to her that he spend time with his father. 
(5)	The father be at liberty to send to the child a birthday present and/or card on the child’s birthday and other special occasions. 
(6)	The mother and father keep each other informed of a contact telephone number and/or contact address for correspondence. 
(7)	The mother is at liberty to remove the child from the Commonwealth of Australia at any time and for the purpose of holiday periods of duration of her choosing, but not longer than four weeks.
(8)	The mother is authorised and permitted to apply for and receive an Australian passport for the said child without first obtaining the written consent of the father. 
(9)	Otherwise all extant applications are dismissed and the matter removed from the List of Active Cases. 
(10)	Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne
MLC 6619 of 2011
MR DALTON	
Applicant

And

MS DOOLAN	
Respondent

REASONS FOR JUDGMENT
Preamble
1.	When this matter proceeded to a final hearing, Orders were made on the last day thereof and after closing submissions (being 1 August 2014) by consent as to part, but not the totality of the proceedings nor parenting orders sought. There was reached agreement between the parties that the parties’ son [X] born [omitted] 2005 and now aged eight years (‘the child’) continue his residence with his mother. The father had initially sought that the child live with him.  The main issue before the Court was that of what time the child would spend, if any, with his father. After a hearing of the evidence, it was agreed by all the parties that an intervention such as family therapy was required to assist the child in possibly being prepared to again communicate with and see his father. No other avenue remained available and certainly not, at this time, a Court order compelling him to do so. Accordingly, a facilitative order was made on 1 August 2014. It was a final order as to the issue of the child spending time with his father. It was in the following terms:-
	“1. The parents forthwith do all acts and things necessary to apply to and attend upon Ms B at the [omitted] Parenting Centre (ph. [omitted]) to participate in reportable family therapy as directed by Ms B or her nominee and follow all reasonable directions of Ms B in relation to each parents relationship with the child, [X] born [omitted] 2005 with all associated costs to be shared equally between the mother and the father.”
2.	The remaining matters outstanding for judicial determination were the mother’s and Independent Children’s Lawyer’s application for sole parental responsibility to be placed with the mother, and the father’s application for equal shared parental responsibility between the mother and the father; the mother’s application, opposed by the father, supported by the Independent Children’s Lawyer, for permission to obtain a passport for the child for the purposes of overseas holiday travel, including to visit family members in the forthcoming long summer holiday period, and other ancillary matters. 
3.	The father relied upon as evidence in the proceedings, the contents of his affidavits filed on 16 October 2013, 22 April 2013 and 22 August 2012. Further, he gave oral evidence at the commencement of the proceedings.
4.	The mother relied upon affidavits filed by her on 29 July 2014; 17 February 2014; 23 April 2013; and 12 November 2012.
5.	The Independent Children’s Lawyer relied upon an Affidavit of Ms M filed 17 February 2014. Ms M is a social worker at [omitted] Children Contact Service, [suburb omitted]. The Independent Children’s Lawyer also relied upon the Family Report admitted into evidence, dated 20 January 2014 and prepared by Registry Family Consultant, Ms G. 
6.	Statement of facts in these Reasons are findings of fact on the balance of probabilities. 
7.	For the reasons which follow, the Court determines the applications of the mother and Independent Children’s Lawyer should succeed. 
History
8.	The parties were married on [omitted] 1999 and separated on 2 October 2009 when the child was approximately three years and 10 months of age. The child continued to live with his mother. He has not seen his father in the intervening five years, save for a period of three months in late 2010 and early 2011.
9.	The mother gave evidence that during the approximately 10 years of the marriage she was subjected to regular family violence, being physical, verbal and emotional. She claimed the father, amongst other things, punched her, on one occasion rendering her unconscious, and locked the doors to the house as he left for work, not letting her out or allowing her to go into the backyard without him being present to “supervise” her. She claimed that this treatment of her, which is denied by the father, began to adversely affect the child and she determined to separate from the father for a short time. The father counter-claimed the mother and her family were physically and emotionally violent toward the child. Despite this, the Court notes, he left the child with the mother. The mother left the former matrimonial home and took refuge in her parents’ home which was a few doors down. Following her departure and unknown to her, the father left the former matrimonial home and travelled to the United States of America. He left behind bills, liabilities and unpaid rent. He claimed to have also left $5,000 in cash in the home to meet these debts. The mother denied he did so. The mother applied for an interim intervention order and obtained same in the [omitted] Magistrates’ Court on 20 October 2009. She was concerned the father would remove the child from her care. In the following month, the matter was struck out as the mother did not persist with her application. The mother and child did not hear from, nor see the father until approximately five months later, when he attended outside the mother’s property unannounced. The mother applied for and obtained further interim intervention orders in March and April 2010. The application for a final order was then listed for hearing, after service upon the father, for 20 May 2010. Both the mother and child were named as affected family members. A final Intervention Order was made for a 12 month period in the absence of the father.
10.	In the later part of 2010, the mother received an email from the father. She claimed he told her he had been diagnosed with a brain tumour which was terminal. He wished to see the child. The father denied the mother’s assertion and claimed the parties were considering a renewal of their relationship. Whatever the catalyst, the mother facilitated time spent with, and took the child, over a three month period from October 2010 to January 2011, to visit the father on two or three occasions a week. Photographs of the father and child at this time, which were tendered in evidence by the father, show a happy and relaxed child with his father. The mother failed however to concede this in the witness box.
11.	The mother claims she then discovered the father had been lying to her about his illness, and refused to make the child available thereafter. The father claimed they had a falling out as a result of the mother suggesting to him that she would act in a financially dishonest manner. He then, at one point, commenced to harass the mother, calling her in excess of 20 times an hour. A further Intervention Order was granted against the father with the mother and the child named as affected family members on 24 June 2011 for a period of 12 months. This Intervention Order was made by consent and without admission as to the allegations made. The father had no contact with the mother or child following the making of that Intervention Order, nor did he seek to spend time with the child. His reason for this, which I do not accept, was that he received bad legal advice from Victoria Legal Aid lawyers. His further evidence was that he did not approach a private lawyer to pursue his relationship with his child as he did not want to spend “one cent to a lawyer”. He first acted in August 2012 when he filed his Application for parenting orders in this Court. At that time, save for the brief period at the end of 2010 and beginning of 2011, the father had not spent time with the child since separation in 2009, being a period of nearly three years. 
12.	The mother alleges the child was, and is, scared of the father; that as he got older he grew to understand the family violence perpetrated upon the mother by the father and as a consequence engaged himself in anti-social behaviours. He would wet the bed and wake screaming at night. The mother says such behaviours settled after separation but recurred in the period when the father was re-introduced into the child’s life. The child underwent extensive counselling sessions after separation to assist him as a consequence of the detrimental effects of him being exposed to family violence, as claimed by the mother. I note however the Family Consultant’s evidence that the mother experienced difficulties in separating her views, wishes and experiences from what the child may or may not have witnessed and that the child was only three years of age when his parents separated.  
13.	The child is now in year level three at [omitted] Primary School in [suburb omitted]. He is progressing well. He is a bright and inquisitive child, well-liked by his teachers and classmates. 
14.	During the course of these proceedings various attempts have been made by court order, and otherwise, to have the child spend time with his father. The parties placed the child’s name on the waiting list with a contact centre. Time spent with between the father and child was then attempted but to no avail. The evidence of Ms M was that out of eight two hour supervised visits scheduled at the [omitted] Children’s Contact Service (‘the Contact Centre’), pursuant to court order and up to 22 March 2014, the child had attended only three. The dates of such attendances were 16 November 2013, 30 November 2013 and 14 December 2013. On each occasion the visit did not proceed. The child refused to see his father saying he was scared (of him) and did not wish to have any more nightmares. The child was not forced to attend for time spent with his father and no further attempts were made by the Contact Centre after the child’s third refusal. Instead, it was suggested that therapeutic intervention was needed. On each presentation at the Contact Centre, the mother had accompanied the child and made him available. But she had not encouraged the child to see his father. 
15.	The child has attended the [omitted] branch of FMC Mediation and Counselling Victoria, for the purposes of family counselling through the Supporting Children after Separation Program between 19 March 2014 and 29 July 2014. As at the date of the hearing, he had some small number of sessions remaining to attend. Such counselling is confidential. Although this was ordered by the Court, the mother has supported the child’s attendance in that she transports him to and from. Both she and the father have separately attended, and on their own, on one occasion. 
16.	The Family Consultant in these proceedings also attempted to have the child communicate with his father. Ms G did inform the mother that she intended to place the child and father in close proximity, but did not ask the child if he wanted to see his father, and did not tell him that he was going to spend time with him on the day of the interview. Instead, she brought the father into the child’s presence in the playroom. She described what then occurred in paragraphs 38 to 42 inclusive of her Report as follows:-
	“38. When Mr Dalton was escorted into the playroom, [X] was observably shocked.  At first he ducked behind the foosball table, but then looked up and stared at his father before taking a few steps back.  Mr Dalton greeted [X] from the doorway and then proceeded to join a group of children playing foosball and invited [X] to play with them.
	39. While Mr Dalton was laughing and talking to other children in the playroom, [X] stared at his father from a distance away.  [X] stared at his father for around 3-4 minutes before walking over [to] the Family Consultant stating “I said I didn’t want to see him, he is scary”.  [X] was asked by the Family Consultant if his father was currently doing anything ‘scary’ to which [X] replied “No”.  [X] then returned to where he was standing previously and continued to watch his father for another 3-4 minutes.  Mr Dalton asked [X] a couple of times whether he would like to play with him and the other children, to which [X] shook his head, indicated he did not wish to play.
	40. Mr Dalton did not approach [X] until he was asked to by the Family Consultant at the end of the session, when Mr Dalton and [X] were informed that this was only a short visit and that it was now time to say goodbye.  Mr Dalton approached [X], game him a quick hug and told him he loved him and kissed him on the hand twice. [X] accepted this physical affection begrudgingly and then Mr Dalton left the room.  Mr Dalton was visibly crying with joy as he left the room. 
	41. Upon Mr Dalton’s departure, [X] became visibly distressed and anxious, started physically shaking and requested to see his mother.  [X] was clearly more distressed and anxious around the need to see his mother than when he was in the room in the presence of his father. [X] was reinterviewed briefly to ascertain his experiences within the playroom with his father given his currently observable anxiety. He reiterated that he did not want to see “that man”, and that he was “scary”.  When he was again asked whether his father said or did anything ‘scary’ today, [X] replied “no” and acknowledged that the other children in the playroom did not appear to be scared by him. [X] stated “I’ll have nightmares now” and repeated that he wished to see his mother.
	42. Upon Ms Doolan’s entrance into the playroom, both [X] and Ms Doolan appeared to be visible (sic) distressed.  Ms Doolan lifted [X] up and carried him like a much younger child in order to comfort him. After a number of attempts, the Family Consultant encouraged Ms Doolan and [X] to participate in an activity together.  [X] and his mother chose to play on the WII (sic) and therefore they sat and engaged with this activity in an uneventful manner for approximately 10-15 minutes, prior to leaving the playroom. [X] was observed to interact with his mother in a calm and affectionate manner.”
17.	The mother does not speak to the child at all about his father. She has undergone years of counselling since separation for the physical and psychological abuse she claims to have suffered during the marriage. Whilst she has complied with court orders and supported them formally, she does not otherwise encourage the child to have a relationship with his father. This is because she considers him a violent man who has emotionally harmed her child. She describes him as manipulative. She told the Family Consultant that she could not identify any positive quality of the father herself, and was unsure how she would be able to promote the child’s relationship with his father in the future. She repeated that the child had experienced family violence “for 10 years”, albeit his age of three at separation. The photos of a happy child, which the mother refused to concede, in his father’s presence around Christmas of 2010, the mother claims were always taken in a public place because the mother remains fearful of the father.  This was not an accurate claim given some photos were taken in the mother’s home.
18.	There are otherwise two matters the Court can make a finding with regards to concerning the parties respective allegations:-
a)	the mother’s parents resided a few houses away, whilst the parties were together. The mother was often at their house and often ate there. Contrary to her assertion that she was unable to leave her home, I find she did so, at will, and attended upon her parents’ home frequently. She also took the child to kindergarten, church and his other activities, sometimes accompanied by the father and sometimes not. Her evidence as to this particular form of alleged abuse, the Court does not accept; and 
b)	the father denied that he told the mother he was ill and refers to their re-commenced contact in October 2010 as a reconciliation that existed until 12 January 2011. He said “we were living together as a family and [X] was with us all the time”. They had not reconciled in that manner. In fact, the father lived at [omitted] and the mother and the child in a type of temporary public accommodation. I find during this period the parties did not reconcile, nor attempt to, and the father did not give credible evidence as to this matter. The mother lied in her evidence when she claimed she had not disclosed her place of residence at that time to the father, and that she had never invited him to her home. The photos tendered in evidence by the father, and subsequent cross-examination of the mother showed that to be entirely untrue. The father had been inside her home on approximately four occasions. 
Evidence of Ms G and Ms D
19.	Ms D, Family Consultant, said, in her s.11F of the Family Law Act 1975 (Cth) (‘the Act’) Memorandum to Court, that the child shared his feelings openly during the interview with her, which occurred not long after the commencement of these proceedings.  Ms D said:-
	“[X] reports being considerably fearful of his father given his reported experiences of Mr Dalton and, as such he does not want to spend any time with Mr Dalton at present.  He reported that he has nightmares about an angry monster with red eyes.  He reported the monster is his father.  He reported that his father was violent towards his mother.  He is fearful his father will come and take both him and his mother.” 
20.	Ms G’s Family Report is dated 20 January 2014. At the time, she recommended that parental responsibility of the child be shared between his parents. At trial, many months later, she acknowledged that if the father refused to attend on and contribute to one half of the costs of therapeutic counselling, which was the position of the father at that time, then no time should occur between the father and the child. This was because the child has no significant positive memories around living with his father. Whilst the origins of the child’s anxiety are disputed between the parties, and on the evidence not able to be determined by the Court, the Family Consultant considered any time spent now between the child and his father is traumatic and distressing to the child. The child’s response, and the negative attitude of the mother, do not support a father/son relationship. Therapeutic counselling is needed for all. The father himself acknowledged that without the mother’s support, he will not have a relationship with the child.
21.	Section 61DA of the Act provides for the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply or can be rebutted (for a final order) in circumstances as set out s.61DA(2) or s.61DA(4) of the Act. Upon the evidence before the Court, the Court is satisfied that it would not be in the best interests of the child for the parties to have equal shared parental responsibility. 
22.	The child’s father has seen him for approximately three months in the last five years. The father has not participated in any long term or day to day decision-making for the child. The father first absented himself for a five month period when the child was three years old. He then did not commence legal proceedings for a number of years, despite the lack of agreement between the parties as to his spending time with the child. The child has no current positive relationship with the father. The mother and father do not communicate in any way, save by Court order. The mother claims to be fearful of the father. The father claims the mother has brainwashed the child and that she is a liar. Neither of them put before the Court any corroborative evidence. The intervention orders were obtained without consent or admission. The mother was not fearful of the father during the three months in which they spent some time together. There is however a complete lack trust in their relationship and the child is scared of his father. It would be impossible for the parties to communicate at any level to promote the child’s best interests. Any form of joint decision or equal input and consideration of a matter going to the child’s welfare, has not happened since late 2010, and is unlikely to happen again. The child’s best interests are served by his long-term primary carer, being his mother, solely making parental decisions in respect of his care.
23.	The mother has the opportunity to travel to the United States of America with the child to spend holiday time with extended family at Christmas. She has found the proceedings stressful and a cause of great anxiety to her. The United States of America is a Hague Convention country. The mother’s immediate family is no longer in [country omitted] but here in Australia. She does not intend to relocate overseas. She wishes for a holiday and for the child to have an opportunity to get to know his cousins and extended family members overseas. The father opposes the child being issued a passport to travel. The father put before the Court however no reasonable objection to this otherwise advancement of the child’s best interests. The father indicated that he thought the extended family members would “brainwash” the child and otherwise simply stated “that’s unfair”. He expressed concern about the duration of any overseas travel but failed to respond when asked by the Court what he might propose as in the child’s best interests. His consideration of the matter was self-absorbed and showed little capacity to thoughtfully examine what might be beneficial to the child.  The child will enjoy the experience. He has a comfortable, loving, trusting and secure attachment to his mother. He will be exposed to her wider family at an age when he can understand broader family relationships. He has spent long periods away from his father whilst in the same State and country and currently would not miss his father. Indeed, he is strongly determined not to see him. The mother’s welfare will be advanced by having the holiday. The mother’s application should be acceded to. 
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:  

Date: 10 October 2014