A and W

FAMILY COURT OF AUSTRALIA

A & W

[2007] FamCA 1682

FAMILY LAW - CHILDREN - With whom a child lives - Child's views
FAMILY LAW - CHILDREN - With whom a child spends time and communicates - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT:

Mr A

RESPONDENT:

Ms W

INDEPENDENT CHILDREN’S LAWYER:

Reid Family Lawyers

FILE NUMBER:

SYF

3228

2004

DATE DELIVERED:

18 July 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

19, 20, 21 and 22 February 2007 and 2 and 12 March 2007

REPRESENTATION

APPLICANT:

Mr Abrams

RESPONDENT:

Ms Wrobel

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Cleary

Orders

Discharge all prior parenting orders made under the Family Law Act in relation to residence or the time the child F born in July 1994 spends with each parent.
The child F born in July 1994 (“the child”) live with the mother.
The mother have sole parental responsibility for making decisions concerning the child’s day to day care and his long term care and welfare or development.
The mother is to promptly advise the father by email, letter or text message in the event of any of the following:-
(a) Any accident or emergency involving the child
(b)Any serious health issues involving the child including but not limited to matters for which specialist medical appointments are arranged
(c)Any wish expressed by the child to spend time with his father in Australia and/or the United States of America.
Unless and until the child advises his mother and father to the contrary, the time the child is to spend with his father shall be limited to communication between the child and the father by telephone and email in accordance with the child’s wishes.
The mother shall do all acts and things to authorise the child’s school to forward copies of documents to the father relating to the child’s welfare and progress at school including but not limited to school reports, school newsletters and school photograph ordering forms and the father shall keep the child’s school advised of the father’s current address at all times. The father is hereby restrained from attending at the child’s school, home and extracurricular activities without the written consent of the mother.
Without prior order of a Court exercising jurisdiction under the Family Law Act neither party is to remove the child from Australia without the written consent of the other.
The mother is to use her best endeavours to facilitate contact between the child and his father if that is sought by the child.
Each party is to participate in therapy or counselling in which the child is involved at the request of the child’s therapist and provided the child agrees to that participation.
The mother in consultation with the child is to arrange counselling and/or therapy which she believes would be of assistance to the child.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3228 of 2004

Mr A

Applicant

And

Ms W

Respondent

REASONS FOR JUDGMENT

Introduction and background

F is the almost 13 year old son of Mr A and Ms W. He was born on the … July 1994 in the United States of America. He has been embroiled in his parents’ conflict since at least 2003. The state of his current relationship with each of his parents is consistent with the Court’s experience of children who collapse emotionally under the burden of their parents’ conflict and conclude that it is impossible to have a good and close ongoing relationship with each of them.
The father is pursuing a relationship with F which includes the child spending meaningful time with his father. He proposes that at a future date if the child wishes to live in the USA with him then he would facilitate that wish. He says he is no longer wishing to force or convince F to live in the USA.
The application upon which the father moves was filed on the 31^st August 2006. The mother’s response was filed 28^th September 2006 (although titled as an application). The father is seeking an order for residence of F. He seeks other orders outlined in his application. The mother seeks an order for “sole custody” (residence) of F. She asks for the only form of contact between the child and his father to be by telephone.
The evidence before the Court includes reports prepared for a Hague Convention case and Family Reports (written and oral) prepared for this hearing. Those reports are illustrative of a deteriorating relationship between the child and his father.
The mother has re-partnered with Mr Q and they have a son A.
In order to understand the background of this dispute the decisions of this Court in relation to the Hague Convention Application for the return of F to the USA need to be read. To the extent that they are relevant I here incorporate those judgments as background information.
Between early 2004 and early 2006 the father had no physical contact with the child.
The father has another son J from another relationship. F knows that person as his brother. His brother resides in the USA.
When F was seen on the 13^th February 2006 by Ms B, Family Consultant, his conversation with her (as set out in her report) evidenced the still reasonably intact traits of an earlier relationship between the child and his father. F was still compliant with the requirement of the Court and his parents for him to have face to face time with his father. He told Ms B he still loved his dad “since he’s my Dad”. He did however, report a number of significant negative statements about his father and the living arrangements the father might have for him in the USA if he was to return to live there.
F made a clear statement of objection to being returned to the USA as a compulsory outcome of the Hague Convention case. He illustrated a significant attachment to his baby brother and opined that he would not recognize him if he was unable to return to Australia for about five years.
F had a clear understanding from his father that his mother would be put in gaol if she returned to the USA. This was a frightening thought for F and clearly added to his own view that his mother would not return to the USA even if F was required to return by Court order.
The material which appears in the 1st Family Report under the heading “The strength of [F’s] views” is descriptive of the dilemma the child faced and the strength of his resolve not to return to USA.
Ultimately F was relieved of the requirement to return to the USA and the father is left to pursue his relationship with his son with the aid of Court orders which issue under the Family Law Act rather than those made in the USA.
A second report was prepared by Ms B for the Family Law Act proceedings. That report is dated 10^th October 2006. In the preparation of this report Ms B spoke to F on the phone. At that time F was 12 years and 3 months of age. He was described by Ms B as “an articulate, courteous, level-headed boy who has experienced significant trauma in the eight months since he was last assessed.” When dealing with the child’s views about his father Ms B said “[F] appears to have now hardened his views against his father. He repeatedly said that he does not want to see his father, even in the short time remaining before Mr [A] must return to America”.
In paragraph 11 of the report Ms B says “[F] referred to a number of events that he attributes directly to his father, including “being seized by coppers at nighttime”, being in foster care for “two nights and one day” and being pressured to get on the airplane. ... “Eventually I said I’m sick of this. I don’t want to see him.” Ms B said “[F] expects to feel great relief when his father returns to America”.
Under the heading “EVALUATION” Ms B concludes that the child is firmly aligned to his mother. She opines that this is probably the result of a combination of factors. They are listed in the report but conclude with the following: “significantly, the extreme emotional pressure that his father exerts on him.”
Ms Barker said that “There was no evidence … in [F’s] three interviews for the reports that suggest Ms [W] is instructing [F] how to behave or what to say.”
“To [F], his mother represents security and a peaceful life in [C] while his father represents a persistent threat.”
In paragraph 14 of the report the following appears “[F] is adamant that he does not wish to see his father. He says that he will accept telephone and email communication from him, but only if Mr [A] returns to America.”
Ms B recommended that there be no orders for F to spend time with his father, except time initiated by F alone.
Ms B was required for oral evidence.
She said the headaches and tummy aches reported by the child were signs of anxiety and extreme reactions to face to face contact with his father.
Ms B thought that the earlier reported positive and close relationship between the child and his father could be revived however certain events would have to occur first. She said the child has had enough. More pressure from his father will not change his mind about spending time with his father.
In order for F’s relationship with his father to be revived Ms B said that the child needs to feel some security in his home situation. He needs to know that the court cases have concluded and his father has returned to America.
Ms B was asked whether having no contact with his father will impact on F’s development. Ms B said that a male role model is very important. He may have those needs met through his relationship with his step-father.
Ms B was asked about preparing a further Family Report and conducting further interviews between F and his parents. She opined that it would make him anxious. He has missed a lot of schooling. He has gone through a lot. It would only be appropriate if there was no way around it.
In relation to assessing the parties’ parenting capacity Ms B said that she focussed on each parent’s understanding of F’s emotional needs. F’s father has demonstrated a limited capacity to have insight into F’s needs. He focussed and concentrated on his opinion that the mother has been involved in an abduction. She said that the father had unrealistic ideas of F’s feelings and his managing living in C. She thought the mother was more willing to see the child as a separate person with separate feelings. She said the mother denied culpability in the mess that F finds himself in and that is a concern for F. The mother said that she did not flee but accepts that she stayed too long in Australia. Ms B assessed that the mother has a greater capacity for parenting than the father.
Ms B reported on the relationship between the parties. She said there are remarkably different versions of the parties’ relationship and life both in the USA and in Australia. The father talked of long walks together with the mother. He described an environment of congeniality. The mother agrees that she met with the father. She denied congeniality. She said that she was constantly endeavouring to do damage control with the father. She would try to be co-operative but it wouldn’t happen because of the father’s truculence.
When seen together Ms B observed that there seemed to be little convergence of opinion between the parties. She said both parents have a tendency to get off the track. She said the parents have very different views of themselves being able to co-operate.
In relation to the parents’ capacity to co-operate Ms B said the father believes there would be no problem. He did acknowledge that F would be reluctant to see him but with assistance he thought it would happen. The mother said that F won’t go. She would not force him.
In relation to the ability of the parents to encourage a relationship between the child and the other parent Ms B said there has been no communication between F and the extended family. The father believes the mother’s family is motivated to prevent the father getting control of a potential inheritance which will go to F. The father believes this inheritance to be worth about $60 million Australian.
Ms B opined that F would like to be more in touch with his brother J who resides in America.
In relation to the capacity of each parent to provide for the emotional needs of the child, Ms B said that the father had trained in communication and worked as a paralegal person. She thought he would provide well for F’s intellectual needs. In relation to emotional needs of the child, Ms B had concerns about the father’s ability to see what F’s emotional needs were. In relation to the mother Ms B opined that she probably has a better understanding of F’s emotional needs than the father. Ms B thought she better understood the difficulties that F faces. She said that F did know of the possibility of the father coming to C and he said that he does not want his father to go to his school or to the town. This information was provided by the mother.
In questions from Mr A, Ms B was asked what insight Mr A lacks. She said, “Your own part in [F’s] condition.” She said that the child had told her that whenever the father spoke to him he would pressure him to return to the States.
The father was pressing for Ms B to interview F again for the purposes of the hearing. Ms B told him that her concern was that if she interviewed F again it would amount to “systems abuse”.
The father asked whether it would be possible through counselling to support F to enter face to face time with the father. Ms B said that she thought it was too late.
Ms B highlighted for the father the trauma experienced by F in being removed from his home by police at night and placed with foster parents. She said that event leads to a situation where she does not believe that F would invite his father to spend time with him.
The father suggested to Ms B that F should effectively be made to come into contact with his father perhaps supported by a counsellor. Ms B rejected that idea.
Ms B concluded by saying that the last year has been extremely traumatic for the child. He has been subjected to being forced onto a plane. He has been placed in foster care. He is under pressure from all sides of his family. He suffers migraines. He becomes anxious when his mother is in court.
A report was prepared by a court appointed expert, Ms C. The report is dated 9 July 2006. Although the report was prepared for the Hague Convention proceedings it was relied on by the parties in the children’s case before me. Ms C is a psychologist. Her curriculum vitae was attached to her report and no attack on her professional status was made by any of the parties.
Ms C reported that F said he was, “really angry at his dad” and that he had “stopped going with him (on contact) because he only took me to internet cafes and because he was yelling at grandma and told her he would kill her and put me in a home.” The child said he had heard this when he was “downstairs refusing to go on contact.” The child further said that he had heard his father say “if she (the mother) tries to come home (the USA) I will get her arrested and she will go to gaol.” The child said that his father had made these statements several times since being in Australia. He told Ms C that his father had been violent to his mother, gambled and used drugs and that he could not look after him.
The following paragraph appears in Ms Condonis’s report:
‘[F] reported that his anger at his father had increased since he was “taken in the middle of the night by police and taken to a house to stay, away from my family, he (the father) did that.” When I explored what role the court may have played in this event [F] indicated “It’s his fault, he knows I don’t want to go back to America with him, if he listened this (removal to foster care) would not have happened.”’
F told Ms C “dad is aggressive, he yells and he scares me.”
The following quote appears from Ms C’s report attributing words to F:
“We ([F] and his mother) were at [P] House it has a big veranda. I was standing on the veranda. I saw dad on a bike, he came over and dropped the bike and ran up to mum, he yelled and slapped her hard on her face, she cried and grabbed her face. He (father), then ran off, I ran up to mum to see if she was okay. I can’t remember why it (this incident) happened. Maybe because mum lived with [P]. He saw me, I was a few feet away from mum, he saw me.”
At the time those words were spoken Ms C described a dramatic change in the child’s disposition.
Ms C reports further as follow:
‘There is evidence from my interview that [F] finds his father a difficult and unpredictable figure in his life. [F] did state after much exploration that he “suppose I love my dad cause he’s my dad but not really, he doesn’t love me, he wouldn’t do this (take him back to the USA) to me if he did.”
[F] stated that “when I was a kid dad brainwashed me to think he was okay, but I now know he isn’t. My big brother knows too, but he’s on dad’s side too now, I won’t get any help from him.”’
Ms C said:
“[F’s] un-ambivalent, strident rejection of his father with no apparent guilt or conflict, seems to be consistent with Kelly and Johnston (2001) and Kelly (2005) reformulation of an alienated child.”
Ms C in her report refers to an interview with Mr A. She reports as follows:
‘I interviewed the father, Mr [A] on the 5^th July 2006. On entering the interview room, Mr [A] launched into his history and how upset he was with our court system for not “forcing [F] onto the plane, they do it with illegal immigrants don’t they!” He reported that he “only thought he would be here (Australia) for a few days, I have no money and it’s ridiculous.” He was clearly distressed by his situation.’
Ms C said that Mr A was clear that F’s current behaviour was solely as a result of his abduction by his mother and the parental alienation F was subjected to. Mr A said the mother had turned F against him by telling him lies. Mr A told her that he believed F and he needed counselling to re-build their relationship.
Ms C raised with Mr A the child’s alleged incidences of abuse between Mr A and Ms W. Ms C says that Mr A described the exact same incident which F had reported. Mr A also indicated that he “plead no contest and did an anger management course”. He otherwise claimed that he had never been violent or abusive to the mother or the child. Mr A claimed that contact between he and F was occurring prior to F being removed from his mother’s care in C and placed in foster care.
Mr A was asked by Ms C what he might do to assist F get on a plane. He said that “it’s the judges and lawyers fault, they should make him go.”
Ms C reported that Mr A stressed several times he would not bring any court proceedings against Ms W.
Ms C records “I was surprised that Mr [A] did not seem to have considered the impact on [F’s] welfare if he was removed from Australia and relocated back to the United States and the emotional and psychological cost of this on [F].”
Ms C spoke to both the mother and her mother. She recorded that they ‘launched into the history of this matter and how “bad he (father) is.”’
Ms C said that in the waiting room after her first interview with the child, Mrs W (the mother’s mother) stated words to the effect that “he is taking me to court for more money, how can anyone suggest leaving a child with a child abuser”. F was a witness to this statement. Ms C also said in her report “if any headway is to be made in healing the relationships in this family counselling for both parents and the child, by an experienced practitioner need to be court mandated. However given the nature of these proceedings I cannot see how this is practical.”

Ms C said “[F] retains a strong conviction that he objects to being returned to America. He stated several times during our three sessions that he will struggle, kick, scream and try and run away if any attempt is made to return him to America.” She further said “It seems given that [F] sees his father as unsafe and someone who does not listen to him, he has no faith that his father will keep him safe in a place that is more unsafe than Australia.”
Ms C said of the child:
“He stated he feels Australian, and this is a strong feeling. He stated that he loves the country, he loves the people, “I know all the kids at school, it’s safe they don’t shoot you in the street because you’re white.” He said “I don’t like America it’s too big”. He said “I am worried about how my lifestyle will be in America, because when I was in Florida he fed me junk food all the time, and when I came back to New Orleans I was fat as a pig.”
The concept of feeling at home is a complex one for an adult to articulate let alone a twelve year old. It is also likely his feelings about the USA have been influenced by his mother and her family. Additional sources of influence include news reports, movies and TV shows that depict America in ways that to a young person who is vigilant about disrespect, abuse and violence may impact on his sense of America as an unsafe place.”
Ms C records that the mother is convinced that Mr A would prosecute her if she returned to America.
Ms C reports:
“for children who reject a parent or reject contact there is evidence of a negative impact on reality testing, tolerance for ambivalence and the development of less realistic views such as father is all bad mother is all good. This in my opinion is more likely to lead to an escalation of bad feelings toward the father over time and further breakdown the father/son relationship, and an increased likelihood of depression, acting out behaviours, self harming behaviours and school failure.”
Ms C said:
“It is also clear that [F] has changed his views, for example in the past believing his dad to be okay, then rethinking his position particularly of being taken to foster care, thinking about the allegations of violence and how his father “never listens not even to him” and changing his behaviour for example ceasing to go on contact with his father. [F] was able to provide a coherent explanation for each of these changes.”
Ms C concluded by saying:
“In my opinion [F] has demonstrated a sufficient level of maturity that is appropriate to take his views into account.”
In paragraph 16.4 of her report Ms C says as follows:
“The child has attained a degree of maturity which warrants his views being taking into account. This has been demonstrated by [F’s] ability to take responsibility for telling his father, mother, grandparents and the separate representative why he does not want to re-located to America. He articulated a complex sense of feeling like he belongs within an Australian context, and in particular a country Australian context.”
The final paragraph of Ms C’s report is as follows:
“I was concerned about [F’s] demeanour in describing the incident outlined in paragraph 8.7 to 8.8. It is clear to me that whether he carries other painful and difficult memories, this memory is distressing to him. I respectfully suggest that [the child] be provided with assistance from a counsellor to explore this event, and to bring some sense of closure to this memory. Who else may be involved in counselling will be dependent on the court’s decision regarding the relocation matter.”
Ms C gave oral evidence.
Ms C was required for cross-examination by the father. She was asked whether she had any special training in international abductions to which she replied no. She was asked whether abducted children were harmed emotionally and psychologically. She replied that as a global answer she would say yes however individual cases may prove differently.
Ms C was asked whether in this case she thought the child was aligned with his mother. She replied no in this case it seemed to her to be more a form of estrangement to the alienated position. She said she did not have data to support an assertion that F was aligned with a parent. She was asked about parental alienation but said that she does not use that term. Ms C said that F had told her when he did spend time with his father they did things that the father liked not things that made F happy. He told her that he and his father went to internet cafes and on the whole he found it boring. F had expressed a fear of being put on an aeroplane.
Ms C was asked whether it would be useful to have face to face contact between the child and his father. She said she did not know at this time.
Ms C was asked about therapy for the family in C. She said that a substantial amount of work would need to be done with F and his mother before considering therapy involving the father and F. She opined that face to face contact between F and his father would not build a relationship it would destroy it.
On 9 November 2006 I made directions for the filing of affidavits. I required each of the parents within 14 days to file an affidavit which dealt with the following topics:
“1.     the relationship between [F] and each of his parents and any other significant family members
2.     the proposals of each party in relation to the following:
a.schooling for [F]
b.residential accommodation for [F]
c.the details of all proposed members of the household in which it is proposed [F] will reside
d.proposed extracurricular activities it is proposed to enrol [F] in
e.proposals for the time [F] will spend with the other parent (when, for how long, where, travel arrangements and payment of travel costs).
3.     the circumstances in which [F] was removed from the United States of America.
4.     proposals of each party to support [F’s] ongoing emotional needs (eg. proposal for counselling or any other like support)
5.     the financial position of each party and the ability of each party to support the proposed orders for the care of [F] and the cost of time to be spent with the other parent.
6.     the residential status of Mr [Q].”

On 22 November 2006 the father filed his affidavit.
The first comment which should be made about the father’s affidavit is that it is all in the nature of a submission. That being the case it would normally be seen as not being capable of being given any real weight. However in this case many of the matters referred to by the father in his affidavit have been the subject of discussion/evidence in Court before me over a lengthy period of time and in many instances the facts being referred to indirectly in the affidavit are well known to the mother and myself.
In his affidavit the father asserted that prior to August 2003, when F lived in America, he had a good and close relationship with his father. This fact has been acknowledged by F in his early interviews with the Family Consultant. However, it seems that F had been exposed to violence by his father inflicted on his mother on one occasion and the memory of that episode has remained with him. There must at least be some prospect that the incident described by both the child and his father to Ms C has affected the relationship between F and his father.
It is common ground that following the separation of the parties and prior to the mother travelling to Australia with F the father spent time with F. In her oral evidence the mother said the order was for each Saturday. She said that from 2000 the Father saw F each Sunday from 9.00 am to 5.00 pm. She said that the Father was not to go to F’s school. The Father said that prior to F travelling to Australia with his mother he spent half his time with his father. The father said it was from Thursday to Monday or Friday to Monday each week. There does not appear to be any independent evidence to corroborate either parties’ version of this fact. Given that so much time has now elapsed since the time when the contact took place in America and given that F acknowledges a former good relationship with his father, I find it is unnecessary to make a finding on this disputed fact. To the extent that this issue impacts upon an assessment of credit there was nothing about the evidence of either party or the way in which they gave it on this issue which enables me to determine that I should accept one version or the other.
I should also add at this stage that in her oral evidence the mother acknowledged that the Father loved F and she believed that F still loved his father.
The father asserts that after his arrival in Australia and following the commencement of face to face time for he and F their relationship was “showing signs of improvement” until F was permitted by Court order to live with his mother in C. The father says “Their relationship has worsened due to the present “no face to face contact” interim order.”
The father alleged that F has been alienated from him by the mother and her family. It is as plain as it can be on the evidence before me that F’s relationship with his father is one where he does not want any face to face time with his father. I would not and cannot on the evidence before me conclude that the position taken by F results from “alienation” created by the Mother and her Family.
In paragraph 1(g) of the father’s affidavit the last sentence of that paragraph reads as follows:-
“To date, [F] blames his father for being seized, placed overnight in foster care, and escorted to the airport by federal police; when, in fact, the Court(s) instigated these frightening actions.”
This statement has a footnote to it which reads as follows:
“This Honourable Court also mistakenly believes the father told Ms [C] that the police should have used force on his child, when he actually said he told the police they were forbidden to use force. The Court is urged to read the father’s affidavit relating to the contentious, unexamined “[C] Report” that contains many errors and is misleading.”
To the extent that it may be necessary I find that the evidence of Ms C on the fathers’ statements to her is accepted as evidence of truth. There was nothing about the way in which she gave her evidence or the questions which she was asked and answered which would lead me to doubt her accuracy in reporting the father’s statements which are now complained of by the father.
The portions cited above from the father’s affidavit illustrate to me an attempt by the father to “wash his hands” of any responsibility for the circumstances now facing him namely that his son does not wish to have any face to face contact with him. The father could have prevented the removal of F from his mother’s home by the police. The father had the capacity to say to the Court on each occasion he was present when orders were made which may have led to F being removed from his mother’s home by police “I don’t want my son treated in this way.” He failed to do this. I am satisfied from the evidence that the father was supportive of the action of removal of F from his mother’s home by authorities and supportive of F being placed on a plane bound for the USA and the father’s care. Not withstanding his now protestations that he did not support “force” being exerted by the police to place F on a plane to America there is evidence that the father held a different view at the time. In the report of Ms C the following is set out; “‘I interviewed the father, Mr [A] on the 5^th July 2006. On entering the interview room, Mr [A] launched into his history and how upset he was with our court system for not “forcing [F] onto the plane, they do it with illegal immigrants don’t they!” He reported that he “only thought he would be here (Australia) for a few days, I have no money and it’s ridiculous.” He was clearly distressed by his situation.’
In the evidence of Ms B she said that the father had said F should be required (against his will) to come into contact with his father, perhaps supported by a counsellor.
In his oral evidence before me and/or in his submissions the father drew analogies between requiring children to eat foods they don’t particularly like but which are good for them and the situation of requiring/forcing F against his will to come into face to face contact with his father.
There is sufficient evidence for me to comfortably conclude that the father’s parenting style includes an approach that children should be required to do what their parents require of them irrespective of the circumstances. That F’s wishes, views, concerns, in relation to his seeing or being with his father or being returned to America should be either ignored or seen as irrelevant in the exercise to be undertaken by the Court.
Another matter of conjecture between the parties is the lack of material support provided by the father for F since at least the time he left America. It appears that at some time prior to the mother leaving America the father had been receiving a payment from an insurance company or some other source which included a component for the support of F. For some reason that payment was paid to a bank account of the mother’s which has now been frozen. The account is in an American based bank. The father, following F’s removal from America obtained orders from the relevant Court which discharged his obligation to pay any form of Child Support. The evidence is that the father has paid no child support since that time.
The father is unemployed whilst living in Australia although he has said at times that he either is doing some work for an American based Attorney or that such work may be available to him. As best I can understand the father has lived in Australia on money advanced by family and friends in America together with whatever resources he had at the time of his arrival in Australia. In answer to a question from me asking How do you support yourself? The father said “Loans and donations from relatives and friends. I have a little income coming in from the Federal Government (USA). I have a social security fund which provides $US950 each four weeks of which $US450 is for [F].” As best I understand the $450 per month for F is paid to the frozen bank account of the mother and therefore is not available for the support of F.
If the father is successful in obtaining an order that F live with him he proposes that they live in Florida or alternatively Sydney or C. He would support himself with the proceeds of a costs order or damages claim he is pursuing against the Department of Community Services. Otherwise he does not say how he would support himself or F. One of his proposals is that F live in Sydney with the Maternal Grandmother and spend time with the father.
The father gave oral evidence. Matters of note from that evidence are as follows.
Contrary to the assertion of the mother the father says the parties are able to converse civilly and have a friendly relationship when they “have long walks and chats”. He said he last had a “decent conversation” by phone with the mother just before Christmas 2006.
The father told me he regards his son as having been abducted by the mother’s partner and also the Australian Government through this Court is abducting his son.
The father was asked “Do you say the position that [F] should have a say when he sees you is wrong?” To which he replied “Yes he is a child”. “You wouldn’t agree to back away as he wants?” “No he is totally confused. Alienated.” “Are you considering abduction proceedings/charges against the mother’s partner?” Answer “not presently.” “have you decided not to file abduction charges against the mother?” Answer. “If I do I will pursue against the abducting step father. Not against the mother.” “Do you not consider that would effect [F]?” Answer “No the guy abducted my son.” “Why would it be in [F’s] best interests to prosecute the step father?” Answer “The State Department would plea bargain to drop the charges in exchange for the mother bringing the child back to America.”
The father was asked about F’s extra curricular activities in C and what he knew of them. He said F does nothing apart from playing video games. He was asked if he had read the mother’s affidavit and in particular what she said about his activities out of school. He said he had only glanced at it. When he was asked why he had not read the mother’s affidavit he said “The mother is the abductor and she will lie about those things.”
The mother filed an affidavit and gave oral evidence.
The affidavit of the mother contains hearsay, submission and fact. This effects the weight which can be given to her evidence.
In her affidavit the mother sets out the living circumstances for F and her proposals for his future care. She says that F has agreed to have telephone contact with his father however he refuses to spend face to face time with him whether in Sydney or at C.
The mother says that the C Community Health Centre have children and adult services to help children and families with problems. She says Ms K from Community Health has been contacted by F’s Child Representative and will assist F if he needs help or has problems at school.
The mother gave oral evidence. Matters of particular note from her oral evidence are as follows.
The mother owns the accommodation in which F resides.
The father has telephone contact with F. This occurs on a mobile phone which F uses only for the purpose of speaking to his father. The phone stays at home it does not go to school. Sometimes F calls his father at the invitation of the mother if there have not been calls from the father for a while. F also has an e-mail address which he can access at the town library or at an internet café.
The mother was asked “Do you agree that [F] had a good relationship with the father?” Answer “No. It was for the good times. He was the provider of gifts. He was there for the good stuff.” She conceded that the father loves F. She said that F loves his father “in his own way.”
The mother was asked “If [F] said he wanted to go and visit his father what would you say?” Answer “Fine. Who is paying for the ticket”. The mother said, if necessary she would pay for F’s ticket to see his father.
The mother said she agreed with the recommendation of Ms C that there be family therapy. The mother agreed to provide the father with copies of F’s school reports.
The mother professed to have the capacity to speak with the father about F and discuss matters about F’s future.
In the mother’s household they need about $1,500 per month to live. They are able to achieve this income from a variety of sources.
The mother said she encouraged contact between F and the father.
The mother said she was frightened for her own liberty if she returned to America because of the father’s proposed actions against her partner.
Mr Q, the mother’s partner filed an affidavit and also gave oral evidence.

Credit

Both parties and Mr Q appeared to give there evidence in a straight forward manner. There was nothing about the way they gave their evidence or the content of it which made me suspect any witness was being untruthful.
The evidence of the parties was at times diametrically opposed. Clearly one version or both are untrue. I refer particularly to the assertion by the father that he and the mother took long walks together in Australia. That they had conducted a cordial relationship and had good discussions on those walks. The mother denied this. Their evidence was in substantial conflict in relation to the time the father spent with F whilst they all lived in America.
If I was required to make findings as to the truth of these assertions I would opt for the version given by the mother. I would do so only on the basis of consistency in her evidence and what I see as a more balanced and even temperament. I was also concerned on occasions that the father was indulging in theatrics in Court. He would become apparently very upset, loud, assertive and bordering on rude. I stopped him and pointed out his behaviour. He would change his demeanour immediately and smile at me then proceed in an orderly manner with his submission or questioning of a witness.

Relevant Law

The principles governing this case are set out in Part VIII of the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must 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.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

As a guiding principal there is no issue in relation to consideration (a) in this section of the Act. In this case the challenge for the Court is contained in determining how to provide for F to have a meaningful relationship with each of his parents. I will address aspects of this later in these reasons.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In this case it is asserted that there is a risk to F in being abused at the instigation of each parent. The father asserts that F is the subject of abuse by reason of his having been abducted by his mother. The mother denies abduction however concedes she overstayed her holiday in Australia. The mother says that F has been abused by being exposed to the father’s violence against the mother committed in the presence of F and she also says that to subject F to an order for face to face time with his father contrary to F's wishes will be abusive. I find there is merit, at least to some extent, in each party’s position on this issue. I will deal further with these matters later in these reasons.

Additional considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

I have set out the evidence of the views expressed by F. His views/wishes are very clear. He does not wish to have face to face time with his father at the moment. He is almost 13 years of age. He is described by Ms B the Family Consultant as “an articulate, courteous, level-headed boy”. He has, in my view reached an age where the Court should give significant weight to his views and wishes.

(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

It is clear that F has a good and close relationship with his mother and his brother A. He has s good relationship with the mother’s partner Mr Q.
F does not currently have a good relationship with his father or his brother J. He does not wish to spend time with his father for the reasons outlined in these reasons. He does not presently wish to return to America with his father. He feels pressured by his father when he meets with him. F acknowledges a prior good relationship with his father.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Each parent professes to be willing to do this if that should coincide with F’s wishes. The mother will not force F to spend time with his father if that is contrary to F’s wishes.
There is still a high level of antipathy between the parents as illustrated in the references to the evidence outlined in these reasons. There is also a high level of antipathy between Mr Q and the father. F would be expected to have a clear understanding of the antipathy between the parents and between the father and Mr Q.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

If F was required to live with his father or even to spend time with his father in a face to face situation I doubt the mother could ensure that would happen. F is old enough and emotionally strong enough to simply say “NO”.
If F was to be required to live with his father and in fact he complied with that direction I anticipate he would very much miss his baby brother and his mother and Mr Q. His mother has been his primary carer for at least the time since F left America with her. Some time in the recent past he was living with his grandmother while his mother was in C because there was a Court order preventing the mother from removing F from Sydney. Apart from that period of time he has been primarily cared for by his mother.
The evidence from Mr Q shows that F has a great deal of quality time with him and the two of them engage in activities which I imagine would be very attractive to F.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

This is a very real consideration in this case. In the not to distant future I conclude the father will return to America. If F is to have face to face time with his father it will involve one of them travelling at considerable cost. Both the mother’s and the father’s financial circumstances are meagre. The father does not work and receives a payment from a social security policy. The mother works in a limited way in order to provide the family from all sources with an income of about $1,500 per month.

(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

Ms B, the Family Consultant, was critical of each party’s capacity to provide for the emotional well being of F. However, she thought of the two parents the mother had the best insight into F’s needs. I have referred to her evidence in this regard earlier in these reasons. I accept her opinion.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

F is a thirteen year old male child. He was born in America. He has parents with different cultural backgrounds. His step father Mr Q is an American. The parents lived in New Orleans whilst in America. F has spoken of the violence he recalls whilst living and attending school in America. F’s maternal grandparents live in Sydney.

(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

This section does not apply.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

This subject took up a great deal of time in the hearing. The father said that the mother was a child abusing abductor. He said that abducting children is abuse. He expressed an attitude that F should be made to return to America. He drew an analogy between F and an illegal immigrant. He said illegal immigrants are required to leave Australia and so should F be. The father vacillated between an opinion that the Court/Government should use force to have F returned to America and a position where he said no force should be used.
The father appeared to hold the view that if F was returned to America to live with him everything would work out. F would willingly live with his father once he was in America.
The mother in the broad sense appeared to have a good and appropriate attitude to F and the responsibilities of parenthood. The one gaping hole in her approach was the failure to return F to America after the holiday in Australia in 2003. By failing to return to America she thrust F into headlong conflict with his father. She has caused F to be exposed to these proceedings which have been stressful for him as shown by the Family Report. Accordingly that action must be seen as a very significant deficit in the mother’s responsibility of parenthood.
It must be said that the removal from America, on its’ face has completely changed the relationship between the father and F to a point where he now effectively has no meaningful relationship with his father.

(j) any family violence involving the child or a member of the child’s family

The only family violence which has been the subject of evidence relates to a assault by the father on the mother whilst they lived in America. This was observed by F and must have been a very traumatic experience for him.

(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

There appears to have been some order made in America against the father.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

This is not a case which in my opinion would benefit from the making of an interim order.

(m) any other fact or circumstance that the court thinks is relevant

The father appears as a confident gregarious and interesting person. I am sure F would benefit from spending time with his father if they could repair their relationship. Ms B says that the only way the relationship can be repaired is if the father returns to America and allows F some space and respite from the threat of being forcefully removed from his mother’s home.

Section 60CC(4) & (4A)

As mentioned elsewhere in these reasons I conclude that each of the parents have failed to fulfil their obligations as parents in different ways. On the mothers’ part she failed to return F to America following a holiday trip to Australia. She has failed to shield F from the parental conflict.
On the father’s part he has failed to contribute to the financial support of F in any meaningful way. He failed to protect F when orders were sought by the Central Authority to have F removed from his mother’s care by police and placed with foster parents. He failed to protect F when force was required by police to place F on a plane to America with the father. He has failed to understand the circumstances F finds himself in resulting from the conflict between the parents. He has failed to shield F from the parental conflict.
The father for a variety of reasons was unable to attend in Australia to collect F following the orders being made under the Regulations for the return of F to America in 1994. He was therefore unable to avail himself of any time to spend with F. The mother failed to return F to America following the orders made under the Regulations. That has meant F has been unable to spend face to face time with his father for a significant and lengthy period of time.
I have otherwise considered the relevant events which have occurred and the circumstances which have existed for F following the separation of the parents.

Balancing of all considerations under Section 60CC

Considering all of the matters set out above I am led to the sad conclusion that the only way forward for the relationship between F and his father is to take the somewhat extreme step of blocking face to face time for F and his father. Such a proposal could not be seen as enabling a meaningful relationship between F and his father. However, it is the only way I can see to create an environment where F may be able in the future to enjoy a meaningful relationship with his father.
In many respects the father has a great deal to offer F through a “normal” father and son relationship. Although it is a sad and regrettable fact for F that his parents separated, the fact that he has the opportunity to live in two countries in the future with one of his parents in each does open avenues for F’s future which are not available to most children. I am sure that he will come to understand and value these matters when he is a little older and better able to weather his parents’ conflict.
F has been badly let down by his parents. They each appear to have selfishly pursued their own agenda’s and needs and have ignored F’s needs. F needs parents to co-operatively parent him in a harmonious environment. He needs to be shielded from their conflict and he needs for them to work out together where and how he should live with each of them. None of this has happened and consequently F has been robbed of an important part of his childhood.

Section 61DA

This section requires me 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. The presumption does not apply if there has been child abuse or family violence.
The Independent Children’s Lawyer submitted that there should not be an order for equal shared parental responsibility.
In this case there has been family violence. That in itself would not prevent the making of an order for equal shared parental responsibility. The father contends that there has been child abuse by the mother abducting the child. I find that the mother’s actions in not returning to America with F was abusive of him in that it has resulted in the situation F finds himself in today. His relationship with his father on all the evidence is significantly different to that he enjoyed in 2003.
I conclude that in this case it would not be appropriate to make an order for equal shared parental responsibility as I conclude the parties would be unable in many respects be able to agree about matters which need decisions relating to F’s future. I also have grave reservations about their ability to agree on any matters relating to F. Notwithstanding the assertions from each side about ability to communicate I hold no confidence that their level of communication is sufficient to hold a reasonable discussion about important matters relating to F’s future. I conclude that it would simply create a further circumstance in which F would be stressed and exposed to his parents’ conflict. I am not confident that either of the parties would have the capacity to put F’s needs above their own selfishness.

Section 65DAA

As I do not propose to make an order for equal shared parental responsibility I do not need to consider shared time. I do need to consider whether F spending substantial and significant time with each parent is in his best interests.
For the reasons already stated I find it is not in F’s best interests to spend any face to face time with his father in the immediate future. F should be able to spend time with his father when F is comfortable about doing so. At the moment he feels under considerable pressure from his father and it seems most unlikely their relationship can progress under the current circumstances. F should have telephone and email contact with his father at times which F can cope with and which might allow their relationship to return to that which they enjoyed in the past.
In the matters recited by me in these reasons I have dealt with the matters required to be considered in section 65DAA(5).
I referred earlier to section 60CC(a) of the Act earlier in these reasons. This section requires me to consider the benefit of F having a meaningful relationship with his parents. Clearly what has been set out in these reasons paints a picture of a relationship between F and his Father which is not a meaningful relationship as best I understand the meaning of those words. On all levels the relationship is significantly less than meaningful. The time the father spends with F (currently nil face to face) does not in my view permit the development or maintenance of a meaningful relationship even having regard to F’s age. The emotional relationship is unsatisfactory at least from F’s side.
This is a case which I conclude does not permit the making of orders at this time (or probably at any time into the future given F’s age) which would enable a relationship which remotely resembles a “meaningful relationship” between F and his father.
I referred earlier in these reasons to section 60CC(b) and said I would deal further with this consideration later in these reasons. I now do that.
I conclude that to force/require F to have face to face time with his father or to require him to participate in counselling with his father would be a futile exercise because I am convinced that he would refuse to comply with such orders. I am satisfied such orders would place more pressure on F and that he is unlikely to cope well with such further pressure. Quite simply he has had enough of being involved in his parents’ disputes. I conclude it would be abusive to impose orders of the nature sought by the father on F.

The Orders

The Independent Children’s Lawyer submitted a set of proposed orders.
The orders of the Court should provide for the mother to be solely responsible for the long term care of F. She should make all the day to day decisions about his care, education and advancement in life.
The father should be kept informed about F’s progress and he should be provided with photographs and also school reports.
The father should have telephone and email conversations with F at reasonable times. The mother should ensure that F does have conversations with his father by phone or email at frequent and regular intervals.
The cost of the communication should be primarily paid for by the father as he is not contributing to the financial support of F and it seems will not do so in the foreseeable future. I should add at this stage that the father does not have any proposal voiced to me to solve the problem of the funds in the mother’s American bank account not being available to assist with the support of F. I am left with the feeling that the father proposes to somehow access these funds for himself when he can. I would suggest action by the father to cause funds to be provided for F’s support may well assist in restoring the relationship between he and his son. It must be obvious to F firstly that his father pays nothing towards his support and secondly that his mother could provide a better standard of living for F if she had some financial assistance from the father.

I certify that the preceding 160 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice Le Poer Trench

………………………………………………………..
Associate:
Date: 18 July 2007

[2007] FamCA 1682

18 July 2007

Key Legal Topics

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Family Law

Legal Concepts

Jurisdiction

Natural Justice

Procedural Fairness

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