Kerr & Lipp [2015] FCCA 1061 (28 April 2015)

Last Updated: 19 May 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

KERR & LIPP

[2015] FCCA 1061

Catchwords: FAMILY LAW – Children – no benefit to child of a relationship with her father – risk to child’s ongoing emotional and psychological health if orders to spend time are made – father has failed to promote relationship with child despite mother’s best efforts – no order for time with or communication with father.

Legislation: Family Law Act 1975

M & M (1988) 166 CLR B & B [1988] HCA 66 MRR & GR [2010] HCA 4

Applicant:

MR KERR

Respondent:

MS LIPP

File Number:

SYC 6260 of 2008

Judgment of:

Judge Henderson

Hearing dates:

11, 12 and 13 March 2015

Date of Last Submission:

13 March 2015

Delivered at:

Sydney

Delivered on:

28 April 2015

REPRESENTATION

Solicitors for the Applicant:

Remington & Co Solicitors

Counsel for the Respondent:

Mr Kenny

Solicitors for the Respondent:

Hamish Cumming Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Guterres

Solicitors for the Independent Children’s Lawyer:

Tiyce Partners Lawyers

ORDERS

(1) All prior parenting orders in relation to the child X born (omitted) 2007, including but not limited to the orders made 16 February 2011, are discharged.
(2) The mother shall have sole parental responsibility for the child.
(3) The child shall live with the mother.
(4) The father shall be restrained from attending at any school at which the child may attend from time to time unless agreed to in writing by the mother.
(5) The father is restrained from coming within 200 metres of the child's current residence at Property O, New South Wales or any other residence she may reside at from time to time.
(6) The mother, Mr M, is authorised to apply for and receive an Australian passport for the child X born (omitted) 2007 without obtaining the written consent of the father Mr Kerr.
(7) The mother may remove the child from the Commonwealth of Australia on any occasion she deems appropriate.
(8) Each of the parties make all such requests and undertake all such activities and execute all such documents as may be required to obtain a “(omitted)” with respect to the (omitted) religious marriage and the parties shall comply with all such requests and undertake or such activities and execute all such documents and provide all necessary consents as may be required within seven days of any request be made by the other party or any other person to give effect to this order.
(9) The father shall be at liberty to provide the child by way of post with gifts and cards for her birthday and on appropriate religious occasions.
(10) The mother shall be at liberty to review any such card and gift to and at her discretion may provide the card or a gift to the child. In the event that the mother does not consider the card or gift to be appropriate then the mother shall be under no obligation to provide the card or gift to the father but shall advise the father by email of that decision and the reasons for the decision.
(11) The mother and father shall keep each other informed of their mailing address and any change made to that mailing address.

THE COURT NOTES THAT:

(12) It is noted that in the event the child requests that her mother make arrangements for her to spend time with the father then the mother shall facilitate time between the child and the father.
(13) Such time shall be upon conditions determined by the mother including with respect to supervision, duration and costs.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYC 6260 of 2008

MR KERR

Applicant

And

MS LIPP

Respondent

REASONS FOR JUDGMENT

1. The matter of Kerr & Lipp was a final hearing commenced by the applicant father in relation to the child, X, born (omitted) 2007.
2. The proceedings commenced in this court in 2009 and X’s parents have been involved in litigation since that time. This is a case of travesty of justice and missed opportunity. One travesty is that proceedings have continued in a Court for, effectively, seven years of the life of a child now aged eight and have not been finalised or brought to an end in that time.
3. The missed opportunity is that the father has failed to take on board any of the recommendations made by Dr C in four reports he has prepared during the life of the matter, or taken heed of good sound practical advice given to him by various contact centre workers when he was spending time with his child. Due to the father’s inability to deal with the consequences of what Dr C says is his narcissistic personality disorder and its impact on his personal functioning, the father has missed all opportunities to develop a relationship with his daughter and, most importantly, his daughter has missed an opportunity to develop a relationship with him, let alone a meaningful relationship.
4. Mr Kenny of counsel acted on behalf of the respondent mother; Mr Simons, solicitor for the father; and Mr Guterres of counsel represented the Independent Children’s Lawyer.
5. The last report prepared by Dr C, dated 17 August 2014, recommended that X have recognition contact with her father only, to preserve the residual relationship she had with him being time on 12 occasions a year, once per month for six hours unsupervised. Dr C was clear the changeovers had to be moderated otherwise time could not be facilitated.
6. In cross-examination on the second day of the hearing, Dr C told the Court he had recommended 12 times a year because that is what the mother said she could deal with. However, he agreed and accepted that recognition contact is usually an event of four to six periods a year and that if the Court made that order that would be sufficient for X to maintain recognition of her father.
7. On the third day of the hearing, the Independent Children’s Lawyer submitted their minute of order. Those orders were substantially in agreement with the mother’s minute of orders namely that there be no orders for contact between the child and the father, that all existing parenting orders be dismissed, the child live with the mother and she have sole parental responsibility for her, that the mother be permitted to obtain a passport for her daughter in the absence of the father’s consent and take her overseas whenever she wished, that there be various injunctions and restraints on the father attending the child’s school and where she lived, and a notation that if X wanted to communicate with her father, her mother would facilitate such communication.
8. The father’s minute of order, which he tendered at the commencement of the trial marked Father’s Exhibit 1 was that he have time on a fortnightly basis on a Sunday from 10am to 4pm and that he be able to attend sporting and cultural events. He still maintained his objection to the child travelling overseas with the mother.
9. In final submissions, and having regard to the weight of evidence against the making of the orders sought by the father Mr Simons said the father would accept any order for any time that the Court was prepared to make.
10. The father only briefed Mr Simons at the last minute and Mr Simons bravely pursued his client’s position.

The evidence

11. For the father.
12. Two affidavits one filed in Court on 11 March 2015 and another filed 26 September 2013.
13. An affidavit of the child’s paternal grandmother, filed 5 March 2015.
14. The father’s exhibits.
15. Father’s exhibit 1 minute of orders.
16. For the mother.
17. Trial affidavit, filed 9 March 2015.
18. A case outline prepared by her counsel.
19. The mother’s exhibits.
20. Mother’s Exhibit 1, a minute of orders sought.
21. Mother’s Exhibit 2, notes of the contact centre for 2012.
22. The mother relied upon the four reports of Dr C.
23. The reports are variously dated 22 December 2009, 22 October 2009 and 28 August 2009 were all marked Court Exhibit 2 and Court Exhibit 1 was the last report of Dr C, dated 17 August 2014.
24. The parents, the paternal grandmother and Dr C we all cross-examined.
25. This sad, history of poor court processes and significant personality dysfunction needs to be spelt out to give the father the best possible chance of understanding the reasons why the Court favours the application of the mother and the Independent Children’s Lawyer, and why I have determined to decline to make a positive order for him to spend time with his daughter.

Chronology

26. (omitted) 2005, the parties marry.
27. (omitted) 2007, X is born.
28. 11 January 2008, the parties finally separate.
29. June 2008, the mother commences relationship with her current husband, Mr M.
30. In 2008, proceedings are commenced in the Family Court.
31. 7 November 2008, final orders made for mother to have sole parental responsibility, child to live with mother and spend from 7:30am to 11am with father each Sunday.
32. 3 February 2009, interim AVO made against the father.
33. 22 February 2009, father arrested for breaches of AVO on several occasions.
34. 25 March 2009, father files a fresh application.
35. 18 May 2009, mother charged with obtaining passport for child dishonestly and is placed on a good behaviour bond for 12 months from 24 August 2009.
36. October 2009, Catholic Care commence supervised changeovers.
37. (omitted) 2010, mother and Mr M marry.
38. 11 November 2009, Dr C first assessment. The father arrives so late for his assessment it is re-scheduled. I note that the mother who gives birth not 3 weeks after this event manages to arrive on time.
39. (omitted) 2009, X’s sister, Y is born.
40. February 2010, first hearing scheduled but does not proceed.
41. 11 July 2010, contact centre ceases to offer their service due to father’s continued lateness.
42. 19 August 2010, updated report prepared by Dr C.
43. 23 October 2010, addendum to report prepared, being answers to questions by the ICL.
44. October 2010, final hearing before Judge Walker.
45. 2012, X begins exhibiting increased resistance transiting into her father’s care.
46. 3 August 2012, contact centre notes report X’s anxiety going into father’s care.
47. September 2012, mother informed by contact centre of difficulties in X going into father’s care.
48. 15 October 2012, contact centre raises their concerns with father of X’s struggles when transitioning to his care.
49. November 2012, contact centre withdraws service due to X’s difficulties in going into her father’s care.
50. 26 September 2013, father files an application to re-institute proceedings but does not serve same until 26 November 2013.
51. 23 July 2014, appointment with Dr C. Father arrives late and appointments need to be re-scheduled.
52. 20 August 2014, further report by Dr C is released.

Court history

53. Judge Walker delivered a judgment on 16 February 2011. Her orders were final and were as follows.
54. That the mother have sole parental responsibility, the child live with the mother and pending a review by Dr C, the father is restrained from instituting further proceedings relating to parenting matters concerning the child without prior leave of the Court.
55. That the child was to spend time with the father only if changeover could occur at the Catholic Care Sydney Children’s Contact Centre.
56. That his ongoing time was conditional upon him satisfying the requirements of the centre in relation to provision of contact changeover.
57. That time was to commence 12:30pm to 4:30pm each second Sunday and after 31 June 2011 from 10am to 4pm.
58. That the father was, on or after 1 June 2012, at liberty to request Dr C prepare an updated report addressing the issue of the father spending increased time with the child, including overnight time.
59. That those costs be equally shared.
60. That the parties have liberty to relist.
61. That the mother was to inform the father of the child’s educational and health details and the like.
62. Curiously, the mother was restrained from taking the child overseas for a period of two years.
63. Although the father had the benefit of orders in 2009 permitting him to spend time with his child they became defunct as the father was late on more than three occasions attending the contact centre and they withdrew their service. Thus the father had to re-commence proceedings.
64. The father’s tardiness continues. He was late when the proceedings were due to commence on the third day of the hearing.
65. He was so late to the last appointment with Dr C he was only able to be observed with his daughter for 13 minutes. He had been late for two reports previously and further assessments had to be rescheduled.
66. He only briefed a lawyer 2 days or so before the trial was to begin.
67. Her Honour’s judgment is extensive, and she had the benefit of the first three reports of Dr C.
68. The mother was proposing at that time that there be no contact with the child and the father. Her Honour used Dr C’ description of the father in her judgment and that description is still relevant today. She says at paragraph 45:
    • Dr C diagnosed the father as having a personality disorder, with narcissistic traits. He assessed the father’s motives towards the mother as being vengeful and expressed the opinion that from both his observation and the history given, the father presented as an unstable man.
69. Nothing has changed for the father. In his last report of August 2014, Dr C confirmed this assessment of the father.
70. In Dr C 2010 report he said:
    • The father should be given the opportunity to understand that he has to adjust his behaviour so it fitted to the needs of the child, rather than the child to his needs.
71. Dr C confirmed that he should be given a chance to demonstrate he can make the changes in his behaviour and he was given that opportunity by Judge Walker by her 16 February 2011 orders.
72. However the father has not taken one step to address his behaviour. Indeed, his conduct towards his daughter has hardened and, as the evidence flowed, he has been on at least two occasions post Judge Walker’s decision positively cruel to his daughter.
73. Dr C noted in his earlier reports that the father has a pathological hatred of the wife’s new husband, Mr M. That was apparent to Her Honour in her judgment and she referred to this poor attitude.
74. That pathological hatred continues today and was noted by Dr C in his August 2014 report. The father was still speaking to Dr C in July 2014 and in cross-examination in 2015 about his wife’s infidelity, her moral turpitude and that Mr M was a man not to be trusted.
75. Her Honour said at paragraph 55:
    • When Dr C saw the father on a second occasion, he observed his presentation was similar to the first. A somewhat odd man with high opinion, self-regard, low insight into the impact of his behaviour on others, and worrying, streak of vengeful animosity, which reflected poorly on his ability to achieve empathy with others. His behaviours and attitudes were persistent; he remained grandiose, inflated in his self-esteem and self-importance and hypomanic. He had an egocentric focus and remained without empathy to others.
76. At that time Dr C was satisfied that the father satisfied the criteria for personality disorder, narcissistic type. Dr C went on to describe the narcissistic personality disorder as a condition characterised by an inflated sense of self-importance, need for admiration, extreme self-involvement and lack of empathy for others. He believed the father’s grandiosity protected him from emotional distress and his narcissism was a problem for him. His lack of empathy meant he was insensitive to X’s needs.
77. That same behaviour and personality disorder and its consequent impact is clearly evident in Dr C’s later report and was evident in Court.
78. The father’s conduct towards his daughter when he last saw her at a contact centre in 2012, his affidavit filed in these proceedings and his evidence under cross-examination are all testament to his continued mal-functioning by way of interaction and understanding of others needs or the impact of his behaviour on others.
79. The father made much at the hearing before Judge Walker and before me that his psychiatrist, Dr J, said he was not suffering from a narcissistic personality disorder and did not have these difficulties. I saw nothing from Dr J. No report or notes or subpoenaed document or a business record from Dr J was presented to me. The only expert opinion I had before me was that of Dr C and that will be the expert opinion upon which I rely.
80. The father had refused to give the mother a (omitted) and refused to allow the child to travel overseas. Her Honour said, at paragraph 63:
    • Dr C said the father’s account was marred by a constant diatribe against the mother, her partner and her father.
81. The father’s account before me was similarly marred five years later. In relation to the (omitted) this is an important matter for the mother. The father did finally agree at the hearing to assist this occurring and orders by consent were made.
82. However, historically the father’s vengeful personality is demonstrated by his initial consent to a (omitted) in 2009/2010 and then withdrawal of the agreement in 2010 after the mother made steps to enact this important event for her and the child.
83. This is a very worrying aspect of this father’s vengeful personality functioning. At paragraph 71 Her Honour described the risks to X as Dr C saw them from his psychological state and functioning:
    • Harm could arise to X from her father’s need to have her see things his way, and if he began to explain to X his vengeful view of her mother and stepfather or discuss cultural and religious issues concerning X’s little sister, it would continue to undermine the adjustment between X, her mother, sister and stepfamily and drive a wedge between X and her mother. He was insensitive to X’s needs, despite having an intellectual understanding of what they might be. Dr C balanced those risks against the risk to X if her relationship with her father was broken and she was left devoid of the relationship with him.
84. Unfortunately in the years since these helpful and insightful comments were made little has changed in the father’s functioning or attitude.

Behaviour with the child

85. The father behaved cruelly and unfairly to his daughter on his own evidence on at least 2 occasions. On the last occasion he saw his daughter at the contact centre on 3 November 2012 he had been informed that X was not going on contact and the changeover service would cease. The notes reveal the father said, “That’s fine. I would like to see her and give her my presents.”
86. The child came to him and he gave her presents and then said to her, “It’s okay if you don’t want to see me, but I’m going to (omitted) today with your cousins.” The cruelness of that statement was this: The child had been asking for many months for her father to take her to (omitted). He gave excuse after excuse, none of which satisfied the child or the Court for example, that “he didn’t have enough time. The child was too tired. He didn’t want to get back late and miss his time with his child. That he couldn’t get there in time and get back in time.”
87. The grandmother’s evidence was they couldn’t drive from (omitted) to (omitted) because she had to go in a tunnel that could be flooded, or over the (omitted) which could be gridlocked and you couldn’t catch a train from (omitted) to (omitted) as that really was not proper.
88. It is as clear as can be that X had wanted to go to (omitted) for many months and had asked her father repeatedly to take her. The father had not listened to her and he had not taken her yet with at best indifference or at worst intentional cruelty and seeking revenge upon the child tells her he is going to go to (omitted) when he knows she is not going to spend time with him that day.
89. Unsurprisingly X said “I want to go with you, daddy.”
90. The second cruelty was that the father had made no such arrangement. When pressed on this in cross-examination, he said he made this comment to his daughter to prove to the contact workers that she really wanted to go with him. I take from that his need to prove a point he thought was important overtook the needs of his daughter. Dr C said he was still of the view in 2014 that the father’s needs would always overwhelm his daughters, and that is precisely what happened on that occasion.
91. This behaviour supports the mother’s evidence that she cajoled and encouraged her daughter to attend time with her father and wanted her to spend that time as she was concerned if he found out the child was reluctant and yet had gone with him he may take revenge upon her for her reluctance. This is precisely what he did on the last occasion he saw his daughter. The mother was correct with her protective measures and attitude.
92. On another occasion at the contact centre and in order to encourage the child to attend with him, the father said, “Well, let’s go and see (omitted). Would you like to see her?” X said, “I would like to spend the whole day with (omitted).” Her father then responds, “Well, I don’t know whether they are in Sydney.” This is again cruel to the child and is said by him to achieve his end, namely prove a point that the child would come with him. X was close to (omitted) at this time.
93. However it mattered not to the father the cost X paid for him to make his point. The father never once thought of the impact this lie would have upon his child as he is incapable of considering the impact of his behaviours on others. It is little wonder X does not trust him, does not want to spend time with him, and does not miss him.
94. X’s lift phobia. The child developed a phobia of lifts in 2011. The mother was most concerned about this and spoke to the contact centre workers about how best to deal with this as the father took the child to his mother’s home on the 12^th floor of a building every time she spent time with him. Her suggestion was that the grandmother met them in the foyer before they went to the park to feed the ducks which they did every time of contact.
95. The mother promised X her father would not make her go into the lift. The contact centre workers had asked the father to have his mother come down and meet them. Never once did that occur. The father walked the child up on a couple of occasions, but the child complained to her mother that the father made her go in a lift after her mother had promised it wouldn’t happen.
96. Yet the mother is criticised for not encouraging time. As the mother said, “I promised my child she wouldn’t have to go into a lift,” and on that one occasion she came back and said, “Daddy pushed me in the lift.” The grandmother would not even concede in cross-examination that she should have come down to meet her granddaughter. The grandmother could not see there was a problem and neither could the father. They completely ignored what X was telling them about her fear of the lifts and pushed on with their view.
97. The father denied flatly that he had told his daughter that people get stuck in lifts. The father blames this phobia on the mother as he says the child told him she and her mother were stuck in a lift at a shopping centre. He further said if his daughter said he told her this she got it wrong, she was telling an untruth, she was making up a falsehood and he did not know why.
98. However, under somewhat torrid cross-examination by the Independent Children’s Lawyer, the father admitted he had told X that people get stuck in lifts. This statement just slipped out. Thus he did tell his daughter people get stuck in lifts and yet in his affidavit and initially in cross-examination said his daughter got it wrong and that she was lying.
99. The mother is right to be protective of her eight year old daughter’s emotional health from being exposed to her father’s conduct. This 42 year old man blamed his eight year old daughter for lying when he was the one lying.
100. On the second or third occasion before contact ceased the contact workers were endeavouring to encourage X to spend time with her father. Her mother had been discussing with her that perhaps her dad could take her to a movie and X was discussing with the contact centre workers the movie, (omitted), and discussing with these ladies what it was about. The father interrupted her conversation, poked her in the chest and said, “What about Dora? You love Dora, the Explorer.” He did not take up the opportunity to find out about a movie his daughter wanted to see or take her to this movie. He just shut her down and failed to listen to his daughter. Upon her return the workers asked her if her father had taken her to the movies and the answer was no.
101. The father never took her to any movies. He took her to his brother’s café where she was fed for free. I accept X enjoyed pretending to be a waitress at her uncle’s café. The father took her to his mother’s home where she was again fed and entertained for free by her grandmother who described making special breakfasts and packing lunches to take with them when feeding the ducks at (omitted) Park.
102. The activities he engaged in with his daughter were the same each time and they cost him nothing. He took no account of her requests to go to (omitted) or the movies or even the beach. He used his family to provide for his daughter and this sameness of activities is what X has complained of.
103. The child was no doubt looking for time with her father and not sharing him with others on every occasion. Looking for some special times such as movies and (omitted) and this did not eventuate. The father said in evidence when pressed on this:
     • I believed it was more important for her to spend time with her extended family than time with me.

That is not what his daughter asked for, but again, the father was unable to see past his perception and his needs overwhelmed his daughter’s needs.

104. The father lied to her, he has let her down, he has disappointed her, he has been cruel to her yet the mother is criticised for not encouraging contact.
105. On one occasion X wanted to go swimming and told her father this. The father told her that there were sharks in the water as a means of not having to take her swimming. This frightened the child.
106. Dr C said in his 2014 report:
     • Given the similar issues raised in my earlier reports about the father’s account to X there were sharks in the sea as a means to dissuade her from waning to go swimming, it does raise concerns about how the father may inadvertently or otherwise say things to X that might raise her anxiety.
107. This was poor parenting by the father. To frighten a child about the natural world because you are too lazy or cannot be bothered to take your child on a child focused and appropriate activity bespeaks of limited parenting capacity and no capacity to put the child’s needs before your own.
108. As it now stands X has not seen her father for two and a half years. Her anxiety state has significantly decreased from what it was when she was spending time with him in mid-2012. Her grades at school are good, and she has suffered no detriment that is apparent or was observed by Dr C in 2014 at the report interviews from not spending time with her father. Indeed her life had improved.
109. X saw her father at the report interview with Dr C, and she was not troubled to see him. Seeing the father did not cause her concern. Her father is not threatening or scary to her. X knew and knows who her father was and is and was able to stand up to him and record accurately and correctly all the occasions her father had behaved poorly towards her or let her down.
110. There has been no impact on X’s superficial relationship with her father in not spending time with him because she can only have at best a superficial or vestigial relationship with him given his functioning.
111. Dr C was clear. He said X possibly risked experiencing identity issues in adolescence if she was prevented from having contact with her father now, and that she had a relationship with him, her grandmother and her paternal family.
112. I accept she has a relationship with her grandmother and her paternal family. However, as I asked Dr C at the hearing,
     • Do I now put this child through what was clearly, for her, an anxious and difficult time such that her refusal to leave with her father despite the best efforts of the contact centre workers put an end to time, to protect her from what possibly might be an identity issue in adolescence?
113. Dr C agreed that this was an issue but adhered to his position that identity contact was still his recommendation. He adhered to this position despite it being clear that X does not have a meaningful relationship with her father, cannot have meaningful relationship with him unless he changes, an event Dr C said was highly improbable and derives little benefit from this vestigial relationship other than knowing who her father is. This relationship is at the lowest level and is as Dr C said, some sort of identification relationship or as I have described a vestigial relationship.
114. No order I make can ensure the child has a meaningful relationship with her father due to his significant and serious psychological functioning as a result of his narcissistic personality disorder which he has failed and will continue to fail to address.
115. It is clear X knows who her father is. X knows her father well. He has hurt and disappointed her on many occasions. He does not listen to her and cannot engage with her despite the resources that have been thrown his way.
116. I do not see on the evidence the benefit X derives from any relationship with her father other than to spend time with her paternal family. Such time would come at a significant cost to X as described further and she may experience further psychological and emotional harm as was evident in 2012 when time was ongoing.
117. In 2010 Dr C said to limit the risk to X there should be a pattern of time, but it should be limited, and Her Honour followed that course. Prophetically at paragraph 89 of Her Honour’s judgment, she says:
     • It was suggested to Dr C by the mother’s counsel that the arrangements that he was putting forward would inevitably break down and this would put X in a situation in which she would be reintroduced to her father and potentially go through the same experience. That is, ceasing time with her father.
118. That insight has come to fruition. Arrangements were put in place in 2011 and continued for about 18 months. X became increasingly reluctant to attend contact with her father, and the arrangement ceased as the contact centre withdrew its services due to X’s inability to transition to her father at changeover.
119. What did the father do when this occurred?
120. He filed an application seeking leave to commence proceedings on 29 September 2013 about 12 months after his time had ceased and did not serve it until 26 November 2013.
121. He took no steps to address his personality dysfunction. He took no steps to re-engage with Dr C as he was entitled to do. This step was left up to the mother and she organised a further report from Dr C. When this was attended to by the mother the father then actively pursued the matter.
122. In the 2011 judgment Her Honour referred to the father having brought 14 applications against the mother yet he took no effective steps, to get Dr C to prepare an additional report as was required by Her Honour’s judgment to bring the matter back to Court when his time ceased.
123. Her Honour found, at paragraph 97, that X’s relationship with her father was weak in 2010. It is weak in 2015. It can never be anything other than weak due to the father’s dysfunction.

The mother’s capacity

124. In the 2011 judgment and in Dr C’s report are criticisms by each of the mother’s failure to promote the child’s relationship with the father. This is a second travesty as I see it on the evidence.
125. Judge Walker found, at paragraph 99, that:
     • There can be no doubt the mother does not wish to facilitate the relationship between X and her father having regard to the orders she sought for no time.
126. I disagree with that finding. I am satisfied that then and now the mother did want a relationship between the child and the father, and she has been most supportive of this relationship, has taken extraordinary steps to make sure time occurred, if for no other reason than she knew if the father realised X was resisting time he may seek to vengefully make X pay for her reluctance to attend.
127. This is the action of a protective and insightful mother wanting to protect her child from the clear and evident dysfunction and vengeful character of the father.
128. The mother has been acting protectively and insightfully with her child and no one, including Dr C, has made any mention of this. Both Judge Walker and Dr C say that the mother does not support the relationship. On the contrary, the evidence is precisely the opposite. The mother has supported a relationship. It is the father who has failed to carry out what he needed to do to ensure his relationship moved from a weak recognition-only superficial relationship to a relationship that had meaning or could be of benefit to the child.
129. At Page 5, paragraph 12 of her trial affidavit, the mother said X was doing much better at school since the time with her father ceased in mid-2012. These proceedings have clearly emotionally and financially overburdened the mother and thus X.
130. Dr C said the mother modelled a sense of hopelessness in his 2014 report. That is hardly surprising. What more could the mother have done to make this work. The failure of X’s time with her father lies at his feet not the mother’s feet. The father demonstrated no empathy with his child or any ability to put the child’s needs before his own. I find it is the father who has failed to support and promote the relationship not the mother. I find the father has no capacity to support a relationship with his child.
131. The father filed 14 interim applications before the matter came before Judge Walker for a final hearing in 2010 due to difficulties he said he had experienced in having contact with his daughter. However the contact centre gave him a warning that if his lateness continued, his instability continued, they would cease contact and the majority of missed occasions were due to his failure to attend in a timely fashion.
132. Rather than obeying the contact centre rules and taking on board their appropriate advice he filed multiple applications to the Court. As Dr C said at the trial in 2010 it would have been so much simpler for the father to follow the requirements of the centre rather than attempt to embark on further litigation.
133. This litigation is about him and he enjoys the spotlight. I find whether consciously or not the father’s motive for continuing the litigation has little to do with him resuming a relationship with his child otherwise he would have taken on board the expert advice he has been bombarded with for 7 years.
134. The litigation is a continued harassment of the mother; it continues an engagement with her, continues the father’s attempts to control the mother and is the vehicle to achieve this end rather than that which is proffered being a desire to spend time with his child.
135. I have no doubt the father loves his child. I have no doubt the paternal grandmother loves the child. However the father is more interested in his role as a father or a parent, and his perceived rights which he refers to in his material constantly, than being a father to his daughter, the child that she is.
136. In submissions for the father, Mr Simons was in a very difficult position. The weight of evidence was overwhelmingly against an order for the child to have regular ongoing contact with her father. At its highest it was recognition contact 4 to 6 times a year for 6 hours at a time.
137. Mr Simons asked me to me to read particular sections of Dr C’s reports, particularly his last report. Page 4, paragraph 10; page 5, paragraph 12; page 6, paragraph 13; page 10, paragraph 29; page 12, paragraph 39; page 15, paragraph 49; page 22, paragraph 77; page 23, paragraph 80; page 13, paragraph 42; page 85, paragraph 81 in support of his application that it was in X’s best interests to spend regular and ongoing time with her father.
138. Reading these paragraphs with the contact centre notes and the father’s affidavit is support for a contrary position to that put by the father.

The father’s insight and functioning

139. The father’s position is that the contact centre notes did not reveal any reluctance on the part of his daughter to attend contact with him. In his affidavit, sworn 20 March 2013 but not filed until 26 September 2013 her asserted:
     • I did not detect any reluctance from X to attend the contact centre.
140. In reality the father was not in a position to make this statement as the child was at the centre before he arrived. The father completely missed the point. The issue was not so much the child not attending the centre rather her refusal to transit into his care and leave the contact centre with him.
141. Upon reading the notes the father has misled the Court or chosen to ignore the notes he did not like. There are many occasions from about late June 2012 of the child’s increasing reluctance to leaving with her father until time ceased in November 2012. I accept that prior to June 2012 there were many occasions where the child was happy to leave with her father.
142. The father said to Dr C in 2014 at paragraph 10:
     • Any misbehaviour from X was because she was being put up to it by her mother. Any issues that might have arisen was due to X being manipulated.

He reiterated the contact centre notes did not reveal any issues with X spending time with him or separating from her mother and going to him. This is incorrect. The notes reveal a meeting with him on 15 October 2012 on this very issue.

143. This evidence only adds to my opinion that the father is incapable of seeing matters as they really are or that he deliberately misleads.
144. The mother is the child’s sole emotional, psychological and financial provider. The father, despite describing himself as a business man and having a fledgling (omitted) company and running a (omitted) business in (omitted) Sydney is on a Newstart allowance and does not pay nor has ever paid child support.
145. The father is 42 years of age and unable to live independently of benefactors such as friends, his mother or business partners. He says he lives in an apartment in (omitted) yet pays no rent as this is paid by his business partner. Sadly the father has nothing of his own, no job, no home and no relationship and he is not stable in his accommodation or in paid work. Contrast this with the life the mother solely provides for the child, a stable home, income, a sibling and father figure in her new husband with a loving extended family.
146. The father’s delusions of grandeur were evident in his evidence. He told me sincerely in the witness box that he can cure people of phobias such as seagulls and dogs and has done so for friends, cured his daughter’s lift phobia for a time, helped the mother’s parent’s business as the turnover of their business doubled in the 12 months when he was involved, helped the former in-laws of Mr M to deal with their emotional issues when the marriage between Mr M and their daughter broke down, is someone who helps people because he is a good listener. The lack of reality in his stories was apparent.
147. It is apparent that the mother has been placed in a most difficult position. The mother did not want to continue with litigation yet was endeavouring to protect her daughter as Mr Kenny’s skilful cross-examination along with Mr Guterres revealed this to be the case given the father’s extraordinary answers at times.
148. The father is almost impossible to deal with. He has refused to seek treatment or accept his responsibility for this sad state of affairs, as is evident in his own affidavit and his comments to Dr C.
149. Page 12, paragraph 39 of the July 2014 report,
     • X was concerned that her father would get to read some of the things she was saying to me.

This is echoed by her mother wanting to protect her child from the father’s vengefulness.

150. Dr C continued:
     • Nonetheless X went on to tell me she did not miss seeing her dad and she did not think much about him. She said she thought more of her “other family” now and she would prefer to see her Dad once a year
151. At Page 15, paragraph 49 of Dr C’s 2014 report I accept when X saw her father she gave him a kiss. She knows him. This does not satisfy me that spending time with her father is in her best interest. It does satisfy me she does not need recognition contact as she knows perfectly well who her father is and she has formed a clear view of him and the time she can tolerate spending with him which was once a year.
152. At paragraph 50 of the report Dr C says:
     • At one point the father raised the issue of (omitted). X said, “But you never took me.” The father remonstrated with her, saying, “Do you remember the last occasion when you refused to go with me?”

Dr C reports,
He had apparently promised to take her to (omitted) with cousins, but there is no doubt he never got around to taking her.

153. The father did not make a serious offer to take her to (omitted). He said those words to demonstrate to the contact centre workers that she wanted to go with him. He had no intention of taking her and had made no such arrangements for her.
154. Page 22, paragraph 77 of Dr C report:
     • The principal harm that will be identified in regards to X and her father is simply that X will continue to feel her needs are not being met. He has a clear idea of what he regards as the appropriate routine for maintaining X’s connection with the extended family, and in the absence of him being more attuned to her needs it is not likely the routine will change and she will continue to feel disregarded by her father. The principal harm is simply that irrespective of whether contact occurs or not X will continue to drift away from wanting to have contact with her father.
155. At paragraph 78, Dr C says her view is simply she does not want to have any contact with her father. X said at paragraph 39:
     • She did not miss seeing her dad and she would prefer to see her dad once a year.

This is the child’s strong and clear wish and in this matter I will give her wishes weight as the ICL said I should.

156. At Page 23, paragraph 80 Dr C says:
     • Critical issues emerge. The difficulties associated with the father having an inability to spend reasonable time, particularly over the last two years due to cessation of contact.
157. I agree that this is a critical issue and it has come about due to the father’s apparent lack of ability to work out he needed to be more responsive to X and more attuned to her needs when they spent time together. The father presents to the Court and Dr C that the difficulties with X are solely – “due to alienating behaviours by the mother”.
158. Dr C says:
     • I do not believe that to be the case, rather I think the father has simply failed in his ability to be attuned to her needs. And while she was able to extract some pleasure in seeing her grandmother and her cousin, (omitted), she did not particularly enjoy the sameness on any occasion.
159. The father does not accept this is the child’s position. When he was pressed on any changes he might make to the routine he had established with her if time resumed he said “I will take her to (omitted)”. He could think of nothing else to do to make time for X and be more attuned to her needs.
160. I see no evidence that the father can change. This is who he is and how he responds to the needs of others. That is a real and ongoing risk to X’s wellbeing. The father has no insight into her needs and thus none if any capacity to provide for her higher level needs such as being nurtured, safety for her in expressing her feelings, safety in being heard and listened to and fostering of a relationship with himself and/or the mother and X’s extended maternal family.
161. At page 85, paragraph 81 Dr C says:
     • X was able to engage with the father in a reasonably pleasant style. She did not appear to have an unrealistic expectation that time would be unpleasant, just did not gain a deal of satisfaction from it.

It is clear X derives little if any benefit from time with her father and has little expectation of such an experience. This is sad for X, her father and her mother. Thus assessing the benefit to the child of a relationship with her father is that there is little if any benefit.

162. Further, I find there may be a positive harm to the chid if the relationship is continued by order at any level. This sad situation can only be retrieved if the father changes and Dr C said this is highly unlikely.
163. Mr Kenny, the ICL and I found a significant disconnect between the recommendation in Dr C’s report of 12 times a year or even four to six times a year recognition contact with the person the father presented to the Court, to Dr C and as reported by Dr C.
164. The father’s time at the contact centre ceased in 2010 because he was late to the contact centre on 3 occasions, he was late to the 2009 report, the 2010 report and the 2014 report. He was late on the third day of the hearing. He was so late to the 2014 report interviews that Dr C was only able to observe he and the chid for 13 minutes.
165. When asked for an explanation he said he got lost. Clearly he placed so little importance on this event he did not make sure well prior to the appointment that he knew where it was to be held and thus give himself sufficient time to arrive punctually. This behaviour is all the more inexplicable when he knew his time had ceased in 2010 due to lateness and that one of his excuses for never having taken X to (omitted) was because he did not want to be late on his return to the centre.
166. Dr C says in his first report dated 22 December 2009 at paragraph 50:
     • Mr Kerr is a very difficult man to interview. He likes to dominate conversation, tends to wax towards philosophical and is difficult to keep on track. He appeared grandiose at times and unrealistic about the things that he was telling me about himself. His account was marred by his constant diatribe against the mother and her husband, and his account is one of vengeanceseeking for what he views as wrongs done to him.
     • He became involved with Ms Lipp to help her out, that Ms Lipp’s mother still regards him fondly. He has skills in is running a business. When he was married to Ms Lipp he helped to run his wife’s’ parents (omitted) business into the (country omitted) and he enjoyed doing that,. There is a mutual respect between he and the Lipp extended family which is missing between Ms Lipp and her family.
     • Although he is not a lawyer, he has a good understanding of the legal system. He has worked as (omitted).
     • He tracked down Ms Lipp’s now husband’s exwife’s family and offered sympathy and help because of how destroyed they were by Mr M’s behaviour in having an affair with and marrying his former wife.
167. In cross-examination the father was asked how he had found out the address of Mr M’s former in-laws. He replied that when he issued subpoenas in a criminal matter concerning the forging by the mother and Mr M of his signature on X’s passport their address appeared and he then tracked them down. That conduct was an abuse of Court process. It is vengeful and is most concerning as the father is still embroiled in what he regards as his former wife’s’ immoral behaviour in forming a relationship with Mr M while still married to him.
168. He told Dr C he scraped through the HSC, had ADD, and did not realise this at that time. He tried to study (omitted) at university, and even then he was always late to class.
169. Under cross-examination he denied he told Dr C he had attempted to study (omitted) at University.
170. Dr C was clear in his evidence. This is exactly what he said to him. I prefer Dr C’s evidence rather than the ramblings of the father and I find he lied.
171. At paragraph 94, Dr C reports:
     • Mr Kerr presents as a somewhat odd man with a high level of selfregard, low insight into the impact of his behaviour ... worryingly, a streak of vengeful animosity that reflects poorly on his ability to achieve empathy with others. He presents as utilitarian in his approach to others, and I wonder at his capacity to form a genuine attachment with others. In any case, both observations and the history provided presents an unstable man who is unable to achieve independence on his own right.
172. I am not sure what business the father runs. He has had some connection with the (omitted) industry and now tells me he is engaged in a fledgling (omitted) business which he says he operates out of the garage under the unit in (omitted). Mr Kenny obtained a concession from him that this business was not council approved, that if he was actively engaged in such a business in a residential block of units it is likely illegal and maybe downright dangerous for other occupants of the unit block.
173. He has no independence, no income and receives Newstart. The father most unfortunately has little if anything yet persists in his grandiose opinion of himself.
174. Dr C said in his report of December 2009:
     • I am concerned he revealed traits of narcissism to a rather worrying level.
     • Such personality features have implications for the evolution of his relationship with X. Whether he could sustain a child focus for more than a short period of time is questionable. He has no ability to form a genuine interpersonal contact. The account he gives of his suffering and tolerating relationships with others, his selfabsorption and boastful manner concern me greatly, and I suspect that as X ages and wishes to assert herself and grows in her identity, Mr Kerr will find such behaviours a challenge to his authority, and a poorquality relationship will evolve.
175. This is unfortunately precisely what has happened. X’s increasing reluctance to spend time with her father from mid2012 till November 2012 is in large part due to the consequences of the father’s narcissistic personality and he has struggled to form a relationship with her. He does not know what her needs are, appears disinterested in her needs as she grows and changes and has no capacity to put her needs before his own. This last failing has been demonstrated at this hearing and at the contact centre changeover notes. He has laid blame at his daughter’s feet for his conduct.
176. Dr C’s assessment in December 2009 is as accurate and relevant today as it was then. The father has been unable to effect any change in his functioning and behaviours as at March 2015.
177. The contact centre notes paint a picture of a selfabsorbed man focusing on his needs rather than his child and her development as a person. He has taken her nowhere she wanted to go.
178. I accept that the mother and Mr M forged the father’s signature to obtain a passport for the child to be able to take her overseas. That was wrong and bespeaks of poor judgment.
179. The wife and Mr M were prosecuted in the criminal courts for this, however, the reality is the father had not one decent reason for withholding his consent to travel. He was punishing the mother by his refusal to consent and thus punishing his daughter in order to fulfil his need to punish the mother whenever and wherever he could.
180. This vengeful behaviour continues and was evident to Dr C and in Court. To prove his point he will punish whoever he needs to punish including his daughter. Unfortunately Judge Walker’s restriction on overseas travel for 2 years in 2010 played into his hands.
181. His attitude to overseas travel is untenable. He said in the witness box initially, “I don’t mind if she goes to (country omitted),” then he changed it to any Hague country. This child will travel wherever her mother deems to take her and I will so order. She is no flight risk with her mother.
182. Crossexamination of the father revealed his strange views. He selfdiagnosed himself as having effectively a leaky colon because he had hair follicle testing which showed excessive amounts of calcium in his bloodstream, and he has been much better since he has gone on the (omitted) diet, which is fruit juices and the like, to cleanse and detoxify your body. He made this diagnosis from information he read on the internet.
183. The father said he had been on dexamphetamine for about nine years in 2009. He was on this drug until August 2014 a period of 12 years when he determined to take himself off the drug. Despite the father’s feeble attempts to satisfy me this startling decision was taken under medical advice it was not. The father attempted to cover this decision with an aura of medical advice with his vague ramblings that he had been diagnosed with a particular long term condition and had been advised to cease using dexamphetamine as a consequence.
184. The truth is a friend of his works in a pathologist laboratory who he says told him he should get a hair follicle test due to his complaints of poor health and failure of orthodox medicine to assist him. This friend carried out the test and then the father with the use of the internet diagnosed his condition which he says is colloquially a leaky bowel.
185. It is clear the father made his own decision eight months ago to cease abruptly using a drug he had been on for 12 years and failed to tell Dr C this at the interview in 2014 despite his denials of so failing. The father lied to the Court and his feeble attempts to add medical weight to his decision was dispelled under cross-examination.
186. Dr C said in his latest report at paragraph 76:
     • My concerns are X will need to have some relationship with her father in order to maintain a sense of identity and extended family connection when she becomes older. However, it doesn’t appear to me X has a strong investment in her father and nor is she desiring of that. I suspect that what has taken place is her father’s inability to meet her needs have led her to reject him. This was a consequence previewed in my earlier report.
187. When Dr C says this failure of a relationship, which I find it to be, has been assisted by the mother’s negative view, I disagree.
188. I find to the contrary. This failed relationship has been as a consequence of many things. The mother’s protective instinct and not a negative view of the father, of the mother complying as best she could in extremely difficult circumstances, of poor Court process and lastly and most importantly the father not taking up any opportunity to retrieve his functioning. I am at a loss to understand how the mother fostering a relationship with her child and her father would have ensured there was a relationship given the father’s difficult functioning.
189. The father’s reasons for this failed relationship are set out chapter and verse to Dr C in all four reports. He blames the mother entirely. There is not one insight into his responsibility for this sad situation.
190. I find consistent with the ICL’s submission that X’s view must be heeded by me. Her views will be given weight for the following reasons.
191. X gave Dr C sound reason why she did not want to spend time with her father and Dr C said her story was her experience. At paragraph 35:
     • She told me she stopped seeing her father because he always lied to her, and gave the (omitted) example. She said occasionally what would happen is he would say, “Okay. I will give (omitted) a call.” Then he would pretend to call (omitted) and then say, “There isn’t space there,” or they were closed. She complained every time she went with the father she had to go to her grandmother’s place and she didn’t like the lift, and this was an issue of trust. She was scared – scary things, and sometimes her father would tell her stories about people getting stuck in lifts.
192. This evidence is as Dr C said similar to his tale to X of sharks in the sea to dissuade her from swimming.
193. This lying and ignoring his daughter’s most reasonable request for some fun time with him are true; this is how he behaved and will continue to behave as Dr C opined his behaviour will not be retrieved.
194. I accept X said there were times she enjoyed being with her father, that she was not alienated from him and did not have an unrealistic or negative view of her father. Dr C said X was voicing in somewhat adult terms her concerns about what she saw as the sameness of the routine, its boring nature and lack of sensitivity to her needs.
195. X told Dr C that she did not miss her dad and he noted she felt empowered to complain. Dr C asked X to reflect on why she did not really trust her dad. “Because he always tried to trick me”. She gave as an example one time she asked to go to the movies and he said, “No. We will watch Dora.” She said, “I don’t like Dora”. He would go to the video store to get another movie, but he only pretended to go, and when he came back he said the video store ran out. When asked how she knew he only pretended to go, she said because he was only outside for a short time and she knew how long it would take to get to the video store and he would be back well before that would have happened.
196. X said she was really over it now, and I accept this. This child has been through hell and back. In everyone’s endeavours to promote a relationship between the father and the child the only person who has put no effort into this is the father. The only one who has done nothing is the father.
197. The father told Dr C at paragraph 52 he recognised the avoidance that was present in X in the contact. That is not what he said in his affidavit and again he lied. He further said that due to the passage of time he has been shut out. That the child has been trained to shut him out. X has been manipulated into her current position. The mother is unreliable, referring to the forged passports and the AVO hearing.
198. That there is no reason for his daughter to be avoidant of him. He remained firmly locked into finding fault with the mother at every possible opportunity. The only problem at changeover was the mother. He has been put at a disadvantage. There is no problem with X and him.
199. It was a big issue for X that she had been unable to travel to (country omitted). When asked about this the father said it was not anything to do with him, because the judge made an order she could not travel.
200. The only reason such an order was made was because the father did not consent. Her Honour could have made an order she go overseas and she did not, because of the father’s objection to it. This is another lie.
201. The father and no one else caused this problem for his daughter. He told Dr C he would still object to her having a passport, because of the mother’s history. Dr C said his comments that it was the judge’s fault about her lack of overseas travel were indicative of the disingenuous manner in which he approaches issues.
202. Dr C continued:
     • The father is concerned that Mr M has been promoted as a father to X and continues to assert that he is immoral, having walked out on his family, and he sees that as a breach of character: that Mr M’s children do not see him any more.
203. Dr C expressed surprise that he would have contact with Mr M’s ex-wife’s family. The father said he had a yearly visit with them.
204. When this comment was put to the father in cross-examination the father said he was talking about the past, and that Dr C got this wrong because of his hearing difficulties. Dr C was clear. He recalled the conversation. I prefer Dr C’s evidence to that of father. The father is not a witness of truth. I do not believe a word the father says.
205. At Paragraph 65:
     • I spoke to him about (omitted). He told me X had been obsessed with (omitted) and said on the last occasion he went to pick up X he had actually organised for her to go to (omitted) –But she was the one who said no. She did not want to go with him.

That is a lie and he admitted the same in cross-examination. He had made no such plans.

206. The father misrepresented what occurred. The father put his daughter in the frame to cover up his poor behaviour, and he will continue to act this way.
207. When Dr C was apprised of the truth he said the father’s behaviour was extraordinary given that Dr C knew the child had been opining to go to (omitted). This is but a further example of his redolent and self-justificatory comments that Dr C said he made to him on the last occasion.
208. Paragraph 67 of the July 2014 report:
     • Mr Kerr’s needs were such that if there was a competition between his needs and that of X, he would simply disregard any needs X had in favour of his own, and he has continued to do it again and again and again and he will always do it.
209. He told Dr C at paragraph 69 he is involved in a start-up (omitted) business, (omitted) and (omitted):
     • He began to tell me how he was an expert or a leader in the field, but inhibited that conversation, I think being aware of the comments I’ve made in the past about his grandiose approach to life.

He denied that he said this to Dr C but I find that is exactly what he did.

The law

210. In M & M^[1] the High Court dealt with the concept of unacceptable risk in parenting proceedings at paragraph 25:
     • Efforts to define with greater precision the magnitude of the risk justifying a Court in denying a parent access to a child have resulted in a variety of formulations...
     • To achieve a proper balance the test is best expressed by saying a court will not grant custody or access to a parent if that custody or access would expose a child to an unacceptable risk of sexual abuse or as here “abuse”.
211. In B & B^[2] the High Court endorsed the Full Court’s statement that the assessment of the risk to a child is the ordinary civil standard. At paragraph 7:
     • If a trial Judge considers upon the balance of probabilities that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur then a trial Judge may, in our view, suspend access.
212. The law is not that a child must have a relationship with each parent at any cost.
213. Going to the legislative pathway I am to follow.
214. The first task is whether I rebut the presumption of equal shared parental responsibility.
215. Section 60B of the Act sets out that the objects of Part VII are to ensure the best interests of children are met and ensure children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children, protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to help them achieve their full potential; and ensuring that parents fulfil their duties and meet their responsibilities concerned the care, welfare and development of their children.
216. Section 60CA determines that the Court must, in deciding whether to make a particular order in relation to a child, regard the best interests of the child as the paramount consideration.
217. Section 65D gives the Court the power to make a parenting order and section 64B defines the terms and identifies the matter that may be dealt with by a parenting order.
218. Parenting orders are subject to the presumption under section 61DA(1). The Courts should presume that it is in the best interests of a child for the parents to have equal shared parental responsibility.
219. When the presumption is not rebutted by virtue of section 65DAA I must consider whether the child spending equal time with each of the parents would be in their best interests and to answer this question I must consider both whether it is in a child’s best interests to spend equal time by reference to the section 60CC (2) & (3) factors and whether such an order is reasonably practicable.
220. If I do not find such an order is appropriate then I must consider whether a child spending significant and substantial time with a parent is in their best interest and to consider that question I follow the same pathway.
221. Significant and substantial time is defined in the Act to mean days that fall on weekends and holidays; days that do not fall on weekends or holidays; days that include part of the child’s daily routine; special occasions and events.
222. The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in their decision of MRR & GR^[3] where the Court said:
     • Each of subsections 1(b) and 2(d) of section 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court must have regard to certain matters such as how far apart the parents live from each other, the capacity to implement the arrangement in question and such other matters as the court considers relevant in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parent.
223. The High Court went on to say that section 65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.
224. The mother has had sole parental responsibility for the child since 2009 and that is the only order that can be made in X’s best interest. Her father has no capacity to put her needs to the fore, does not know his child, having not seen her for over 2 years, has not been involved with her for over two years and I accept the mother cannot deal with him at any level. It is not practical and not realistic that this responsibility be shared.
225. Having so found I need not consider an order for equal or significant and substantial time and must now determine whether I make any order for time.
226. I have found that X receives little benefit from a relationship with her father other than seeing her extended family. Dr C said X’s relationship with the father is complex and is attenuated.
227. X has at best a vestigial relationship with her father and it can never be a meaningful relationship due to his functioning.
228. I find for X to have any relationship with her father comes at a significant cost to her emotional and psychological functioning. The law is not that a child must have a relationship with a parent at any cost.
229. X is expressing a strong desire not to have contact with her father. She is not scared of him but she does not want to be confronted by him of the things she said about him of a negative nature. Her father is irrelevant to her. I accept that this is the reality and the father has no one to blame for this but himself. He has not put one jot of effort into finding out what his daughter would like and how he could improve his relationship with her.
230. The reality for X is that the father is not a part of her life and to now re-introduce him into her life is too high a price to pay for her ongoing emotional and psychological functioning and health.
231. Currently the father lays blame for this sad state of affairs on the mother. If I make an order for X to have even recognition contact and X, as she will, challenges him, he may then lay blame on X as a means of him avoiding his responsibility.
232. Dr C says she should have recognition contact with her father in order to maintain a sense of identity and extended family.
233. However X knows her identity and most importantly she knows her father and knows him well. X knows precisely the sort of man he is. She does not trust him and is right to do so. He has let her down and treated her cruelly to prove his point at times. He has blamed her for his conduct or for a consequence which he caused. X is right to be concerned about repercussions if she makes a complaint of her father and he finds out.
234. A relationship with her father is too painful for her. X was described by Dr C in an earlier report as a sensitive child and she is. Even if I ordered time to continue, the father will not be able to maintain it. He will take her to places where he does not have to spend any money and continue to rely upon other family members to feed her and entertain her.
235. The law is not that a child has a relationship with a parent at any price rather it requires I assess the benefit to a child of a meaningful relationship with both parents. X’s only parent is her mother. She is her sole psychological, emotional and financial provider. As such the Court must act to maximise and sustain that relationship rather than what has been done namely giving the father opportunity after opportunity to show that he can change his behaviour and put his child’s needs first which has put an enormous and unfair burden on the mother in her parenting of the child and upon the child as well.
236. The father has failed to take on board anything Dr C said or the contact workers said in relation to changing his approach with his daughter. Indeed he argued with these professionals. He does not support his child financially, emotionally or psychologically yet criticises the mother for not supporting his relationship with his daughter when that failure lies solely at his feet.
237. In the light of these findings to make the order the father contends for will significantly change what, for X, is now a well-settled and supportive care arrangement, which is living with her mother, stepfather and sister and not spending time with the father.
238. Spending time with her father will raise her anxiety levels, will disrupt her routine and her usual activities and relationships and will cause her and her mother to have difficulties in their relationship, because her mother knows she cannot protect her child from the father’s behaviours. That has been demonstrated clearly. This man cannot protect his child from his behaviours as he does not see he is at all at fault.
239. The mother has been left to deal with the consequences of the father’s poor behaviour upon her child. This consequence is not in the child’s best interest, is unjust to the child and unfair to the mother.
240. The father has no insight into his child needs, no capacity to provide for her emotional or psychological health and is limited in his capacity to provide for her educational needs.
241. His attitude to parental responsibility is egocentric and focused on his needs not the child’s. Dr C said his needs will always take priority over the child needs. He is unstable in his own life and relies upon others to assist him with her care.
242. There is no possibility of a moderated changeover which Dr C said was a prerequisite for time to occur. Changeover can only be carried out by a professional organisation such as a contact centre and that is now impossible due to the father’s conduct and the resulting intransigence of X to transitioning into his care. The father did not put up any alternate proposal for a moderated changeover such as Dial An Angel and I opine that the father may be unable to afford their fees.
243. I see no benefit for X in having a relationship with her father at this point in time save she will no longer spend time with her extended paternal family. The father would need to undergo an epiphany for time with him to be of benefit to the child. The loss of contact with her extended paternal family is a real loss for X. However the benefit to X of having communication with and time with her extended family would be swamped by the negative consequences of spending time with them and her father.
244. In the event the child wishes to reunite with her father and/or paternal family I am confident the mother will not only permit this to occur but will be encouraging. The mother agrees to such a notation being made.
245. I find the mother genuinely wishes for her child to have a relationship with her father and paternal family; however protection of her daughter’s emotional and psychological state has properly tipped the scales against the child being able to have such a relationship.
246. For all the above reasons I will not make an order for the father to spend time with the child as this is the order I have found to be in the child’s best interests and will make the orders contended for by the mother and supported by the ICL.

I certify that the preceding two hundred and forty-six (246) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:

Date: 28 April 2015

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^[1] (1988) 166 CLR.
^[2] [1988] HCA 66.
^[3] [2010] HCA 4.