Abadi & Sokulsky
[2022] FedCFamC1F 500
Federal Circuit and Family Court of Australia
(DIVISION 1)
Abadi & Sokulsky [2022] FedCFamC1F 500
File number: SYC 3215 of 2010 Judgment of: GILL J Date of judgment: 15 July 2022 Catchwords:
FAMILY LAW – PARENTING – Unsuccessful transition of child from mother to father following his granting of sole parental responsibility – Rice & Asplund threshold met for reconsideration of parenting orders that are in the best interests of the child – Influence of the views of the child who has demonstrated significant resistance to change of residence and care arrangements – Where relationship with father is not considered workable – Mother granted sole parental responsibility of child.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA Cases cited: Rice v Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 102 Date of hearing: 5 May 2021 and 4 June 2021 Place: Canberra Solicitor for the Applicant: Brigitte Smithies & Associates Solicitor for the Respondent: Litigant in Person Solicitor for the Independent Children’s Lawyer: Boland Legal Family Lawyers ORDERS
SYC 3215 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ABADI
Applicant
AND: MS SOKULSKY
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
15 JULY 2022
THE COURT ORDERS THAT:
1.All previous orders in relation to B, born in 2009 (also known as B) (“B”) are discharged.
2.Ms Sokulsky (“the mother”) has sole parental responsibility for B.
3.B shall live with the mother.
4.B’s name may be removed from the Family Law Watchlist.
5.The mother is entitled to collect from the Registry of the Federal Circuit and Family Court of Australia:
(a)Any passport in B’s name; and
(b)B’s birth certificate wherein Mr Abadi (born in 1981) is named as her father.
6.Any other birth certificate for B and the Apostille lodged at the Registry of the Federal Circuit and Family Court of Australia, shall continue to be held by the Registry pending further order of the Court until B reaches the age of 18 years.
7.The mother is restrained by injunction from allowing or otherwise facilitating B being brought into contact with Mr L.
8.The mother is at liberty to provide any of the family reports prepared in relation to these proceedings to any therapist retained to assist B.
9.It is directed that the Canberra Registry of the Federal Circuit and Family Court of Australia provide this judgment and these orders to the Location W child welfare authority.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abadi & Sokulsky is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction
This judgment concerns the reopening of child related proceedings concerning the child of the parties, B (born in 2009), immediately following the delivery of final judgment on 20 April 2021. By that final judgment, Mr Abadi (“the father”) was granted sole parental responsibility and that B would live with him, whereas she had been living with Ms Sokulsky (“the mother”) and not spending time with him in the lead up to those orders.
B’s facilitated transition into the care of the father was unsuccessful, B presenting as highly resistant and distraught at the prospect of such a change, to a degree that demonstrated that the Final Orders made on 20 April 2021 were unworkable to the extent that they could not be regarded as in her best interests.
The proceedings promptly reopened on the failure of the transition, so as to allow consideration of what would be in B’s best interests given such a failure.
In assessing what is in B’s best interests, it is helpful to set out the progression of the matter following the delivery of those Final Orders on 20 April 2021.
20 April 2021 - Delivery of Final Judgment
On 20 April 2021, Final Orders were made for B to live with the father, the father to have sole parental responsibility and handover to occur on 22 April 2021. The Family Consultant, Ms D, and the Independent Children’s Lawyer (the “ICL”) were to meet with B on 22 April 2021 to facilitate the handover.
Despite the short summary set out below, it is necessary that the judgment of 20 April 2021 be read in conjunction with this judgment.
In summary, the judgment identified the history of the relationship between the parties, and between the father and B. That history included the circumstances of the parties’ relationship, a volatile and sporadic relationship conducted in an ambiguous manner while the mother was also in some form of relationship with her then husband, the father of her older three children, Dr Aluru, and, as far as B knew, her father.
Of particular importance in that history was the therapeutically facilitated reintroduction of the father to B in October 2016, at a time when B, then aged almost seven, was unaware that the father was her father. While this was not the first time that she had spent time with him, there being significant care and interactions in the past, the nature of those interactions, and the arrangements in the mother’s household where B lived, combined with a hiatus in the time that the father and B had spent together, meant that she was unaware that he was her father. The mother was not agreeable to the reintroduction, and identification of the father as B’s father.
The expert who facilitated the introduction, a psychologist, Dr C, informed the Court in a subsequent report that the mother was undermining the process of reintroduction.
In June 2017, the supervised time between the father and B increased by consent.
However, after a dispute about B being on the Family Law Watch List arose in January 2018, the father’s time with B ceased. The father then did not take adequate steps to enforce the Final Orders upon the mother.
The history of B’s living circumstances and care, as identified in that final hearing, were characterised by a tumultuous relationship between the mother and B’s three older sisters (X, Ms K and Y), as they, and at times B, moved between her care and the care of the sisters’ father. In particular, B’s older sister X was assaulted and kicked out of the mother’s home, at times finding refuge with her sister Ms K and their father. The relationship between B and her sisters were of considerable importance to B.
Of direct impact upon B, gross deficiencies were identified in the mother’s care of B, illustrated in her response to B’s report to her of being sexually interacted with by another child. The mother declined to accept that the incident had taken place and then, after purportedly accepting that it had, declined to obtain professional support for B, considering that she, as a medical professional could provide such, including if necessary performing a genital examination. There is no indication that the mother possesses the particular skills or training to render her intervention effective for B, despite her description of some psychological training.
Further, B’s reports of being slapped by the mother’s then current partner (not the father of B’s sisters) were rejected by the mother.
Woven through these incidents was a pattern of abusive and neglectful care by the mother.
The mother withdrew from the proceedings and indicated that she would not participate prior to the conduct of the hearing.
By the time of the hearing, which involved the father’s application that B live with him, B had been the subject of four reports prepared by Ms D who had the opportunity to provide the Court with a substantial longitudinal perspective upon B and her care arrangements.
In her fourth report, Ms D identified that the issues faced by B were “unsolvable,” with “no good solutions,” and with “considerable risks to all possible parenting solutions for B.” She observed that B was frightened of the mother, but held a negative view of the father. By the time of the final hearing, B hadn’t spent time with her father since January 2018.
Ms D further identified potential benefits for B in each household, identifying that the mother (potentially the least worst option) would give some consistency, although not enough to sustain B in her development. As against that, if a transition to the father was to be successful, B would be given the chance to flourish with a parent who strongly cared for her. She identified risks to this if the transition was not successful, including B forming a stronger negative view of the father, and potential compromise to her well-being. As to the transition, she identified that due to the extent of the dealings that she had with B, she was appropriately placed to facilitate such a handover.
Balancing the benefits, risks and deficits between the households, in particular, the mother’s deficient response to risk and potentially destructive relationship with B, I determined that B would move into the father’s care, via facilitated transfer taking place in the precincts of the Court.
However, the risks of such a step, as identified by Ms D, came to fruition. Those circumstances, as set out below, require a reading, in conjunction with this judgment, of the judgment of 25 May 2021 that deals with the failed move into the father’s care.
22 April 2021 - Unsuccessful Attempt to Transition into Father’s Care
In accordance with the Final Orders to facilitate the transition, B and the mother attended court on 22 April 2021 for the handover, with the mother initially declining to leave the court building.
Mr R, the mother’s husband later gave evidence describing the lead up to B attending court for the handover, describing B crying and saying both that she would not go and that she would kill herself. She also expressed distress at not being able to come back to her mother for a period of six months under the orders.
B initially refused to attend upon the Ms D who was to facilitate the transition into the father’s care. The matter was brought before the Court at short notice, and the mother was directed to leave the building. B then attended upon the Family Consultant, the ICL and, ultimately the father. During this process, B was highly distressed and ultimately left the court building, unaccompanied.
At short notice, and on an ex parte basis, the father then sought orders for the enforcement of the Final Orders, including the issue of a recovery order. This was declined and the matter was listed for the following day, with the parties to attend in person.
23 April 2021 - Family Consultant’s Evidence About Transition
On 23 April 2021, the father orally sought orders for the enforcement of the Final Orders.
Ms D then gave evidence in relation to the attempted transition.
She described that B was distressed from the point of her arrival in the court building, expressing various concerns about whether she would be able to see her sisters, or forced to change schools. Despite assurances about such, B was not comforted. She asserted that she did not want to live with the father and that he had abused her mother. B became more and more distressed. After the father was brought into contact with B, and attempted to console her, B said to him “don’t come near me. Don’t touch me.” B subsequently left the room. She said things such as that she was going to kill herself and called her sisters.
B became “quite hysterical” and left the Court building in a “highly distressed state.”
Ms D assessed that B’s response was genuine, observing that “her whole body was shaking at one point.”
Appropriately, no attempt was made to physically restrain B.
Ms D further observed that:
I think within her realm of understanding this is such a seismic shift in her living arrangements that she can’t contemplate it occurring, plus she does have that element of fear that has been instilled in her through things that have been said to her about [Mr Abadi]. So she’s convinced that she could not in any way live with him and would run away if she was forced to reside with him... I don’t think that she would kill herself but I think she would make good on running away and so there would be this perpetual situation that [Mr Abadi] is in of having to somehow retrieve her.... I don’t know that [Mr Abadi] really knows how to handle that situation... I just don’t think there’s enough connection there with [B] for him to have any influence or way over her thinking...the more he got involved the more heightened her distress became.[1]
[1] Transcript 23 April 2021, p.3 lines 20–36.
Ms D assessed that a further attempt to transition into the father’s care was not viable, and that there was no available mechanism by which it could be facilitated, placing B at “very high risk of physical and emotional harm.” Ms D further identified that attempting to involve the police in enforcement by the issue of a recovery order would be “wholly unworkable and potentially harmful to B.”
She considered that the primary motivation for B to remain with her mother was the maintenance of her relationships with her sisters which, for B, were her primary attachments, who she assessed as together forming a strong cohort who looked after each other.
Ms D identified that there would be benefit to B if she and the ICL were to communicate to B that the father was not pursuing the enforcement of the Final Orders, and why, if he chose not to do so. She considered that, to allay B’s fears it was important to give her a feeling of empowerment in relation to her living arrangements, and at the same time give B the assurance that the father remained an “interested and caring parent” even if he was accepting of her wishes not to have involvement with him.
The mother initially did not appear on this occasion but subsequently attended by telephone, and the orders that related to B living with the father, and that restrained the mother from coming into contact with B were stayed. The proceedings were then adjourned to 5 May 2021 for further hearing.
5 May 2021 - Suspension of orders
Both parties appeared in Court on 5 May 2021.
The father indicated that he no longer intended to enforce the orders that B live with him given the events following the delivery of the final judgment. However, he pursued an Application in a Case that he attempted to file on 4 May 2021 (having not complied with orders in relation to the filing of orders sought).
Perhaps this should have been brought by way of a further Initiating Application, however, I indicated at the time that the application in a case would be treated as though it was an Initiating Application. To the extent that any question arose as to the propriety of the immediate recommencement of proceedings following the delivery of a final judgment, it may be observed that the events following that judgment justify such a course, as illustrated by the father’s proper relinquishing of his pursuit of enforcement of the change of living arrangements. That is, the circumstances that arose immediately upon the making of the orders, in B’s refusal and distress, amounted to a sufficient change in circumstances so as to justify the reopening in accordance with the principles set out in cases such as Rice v Asplund.[2]
[2] (1979) FLC 90-725.
Rather than enforcement, the father sought a regime for reintroduction to B, in substitution for the final orders that B live with him. Although he did not consent to the discharge of those orders (including the order that he have sole parental responsibility and the order restraining the mother from coming into contact with B), nor did he wish to be heard against such a course. The father also pursued the opportunity to obtain further expert psychological advice on how to deal with the emerging circumstances as they impact upon B.
The mother attended, but on conceding that she had not complied with Order 18 of the orders of 20 April 2021, which required her to surrender B’s birth certificate, passports and an Apostille to the Registry of the Federal Circuit and Family Court of Australia (“the Registry”), was directed to do so immediately. She did so, lodging the documents with the Registry, and the hearing then continued with the mother giving oral evidence in support of a discharge of the orders of 20 April 2021, and the replacement of those orders with orders that B live with her, that she have sole parental responsibility, that B have no contact with the father, that B’s name be removed from the Family Law Watch List, that the mother hold passports for B, and that the father be restrained from making any further applications to the court.
The mother described that B had struggled to adjust to the new family living arrangements whereby the mother has remarried, such that B had been attempting to “get rid” of the mother’s husband, but asserted that over the last few weeks B’s attitude had changed and that she was no longer pursuing such an objective. She said that B was, at the time, living with the mother, her husband, and step siblings.
She further described that the previous regime of supervised visits had ceased based upon B’s feelings.
The mother described that B had commenced seeing a psychologist, Mr T from the V Clinic in part to assist her to express her emotions in an emotionally acceptable way. Those visits were facilitated as part of a mental health plan allowing twenty visits, such that generally B was seeing Mr T each two to three weeks but was then scheduled to see him weekly for a short period.
The mother described that B also had the support of her sisters, although the sisters were then living with their father, Dr Aluru (save for her oldest sister who was then living in East Asia).
The mother denied having negative feelings toward the father, despite asserting that he had been abusive of her and had mental health issues.
The mother asserted that B had recently made comments about killing herself or running away if the father was to have any access to her. She did not regard B as being of an age where the mother was able to force her to do anything.
The mother further alleged that the father had stalked her in the past and had recently stalked her husband, Mr R, although the evidence that she subsequently relied upon to suggest that the father had been in the vicinity of her husband did not go close to establishing such a proposition.
Ms D gave further evidence after hearing the mother’s evidence and considering the father’s application and its proposals for reintroduction to B.
In summary, Ms D expressed the view that prior to consideration being given to steps toward the reintroduction of B to the father, it would be necessary to tell B that the father no longer pursued or sought to enforce orders for B to live with him, or which prevented B from living with the mother. This was a task, she said, that should be engaged in by herself and the ICL, either at the ICL’s offices or at the school. It was not a process that could involve the father directly as it would cause B to go into “panic.” She considered that forcing B to do something that she did not want to do would be unhelpful. Although she offered the opinion that it was beneficial not to do so at the school, in order to attempt to quarantine the school from the dispute for B, she accepted that there were benefits in doing so at the school including ensuring support for B from the school following contact with herself and the ICL. Ms D also emphasised the importance of taking this step quickly as B had been unsettled greatly by the attempted transition.
Ms D thought that such an opportunity for communication with B would remove pressure from B, and also give the opportunity to gauge B’s reaction to potential further contact with the father, which would in turn inform the making of a decision in relation to the steps involving therapy proposed by the father.
Ms D considered that proposals for psychological intervention could only be assessed after gauging B’s response, and would also require the “unwavering support” of the mother. She thought that a letter from the father may be helpful to B. Aside from that she considered that in the event that B declined all contact with the father, that the best that he could do would be to accept that to be the case.
25 May 2021 - Family Consultant to Inform B
Orders were made for Ms D to meet with B at her school.
The proceedings were then adjourned for further hearing to 4 June 2021 at 10.00 am.
4 June 2021 - Completion of Reopened Hearing
Ms D gave both oral evidence and prepared a report which was directed to the process undertaken by her and the ICL attending upon B at her school to inform her that:
(a)there are no longer orders for her to live with her father, nor are there orders preventing her from being with her mother;
(b)that the father no longer pursues or enforces such orders; and,
(c)to obtain and assess any views offered by B as to future contact with the father.
Ms D communicated this to B. B expressed in strong terms to Ms D her anger at the attempted transition and her negative view of the father, asserting that he had been violent to the mother, and insisting that he be referred to as Mr Abadi rather than as her father. Ms D considered that B’s reaction to her indicated that B associated Ms D with the court and was angry with her, that she was tarnished in B’s eyes and that it was better that she not have further direct involvement with B.
Ms D’s view was that there was little doubt that long-term damage would be occasioned to B if she remains of the view that the father is violent and not to be trusted. However, she was unable to identify any means of mitigating this risk.
B asserted that she wanted no contact with the father in any form, although she desired contact with his daughter, her sister, X. B also described conflict between her mother and her mother’s husband, Mr R, in their home surrounding the court proceedings. It was explained to B that the court had concerns for her safety.
Ms D described that B appeared relieved on being told that the father was no longer pursuing orders that she live with him, observing B to apparently physically relax.
Ms D gave an assessment following her interaction with B:
In assessing the views of [B] as to future contact with the father, it seems that these are currently the only views [B] can hold, in order to manage the cognitive dissonance. Cognitive dissonance refers to the discomfort [B] feels at the discrepancy between what she already believes about [Mr Abadi], that he is dangerous and not to be trusted, and the proposition that she have contact with [Mr Abadi]. To accept this new proposition would require [B] accept that her mother’s sentiments about [Mr Abadi] are incorrect. In this sense [B’s] views are a self-protective mechanism, and, to reduce her anxiety and discomfort, she must resist any new information about [Mr Abadi]. It seems that any contact with [Mr Abadi] is likely to overwhelm [B] emotionally and cause further distress. However, [B] is now aware that [Mr Abadi] is receptive to any interest [B] would have in meeting him in the future, if and when she would wish to do so.
It seems that the previous assessment of [B’s] views did not give sufficient weight to the strength and currency of [B’s] negative ideas and narrative of [Mr Abadi]. It appears that [Dr S]. has persisted in expressing to [B] her view that [Mr Abadi] was violent, and that he is therefore a danger to [B]. [Dr S]. has done her daughter no favours by casting [Mr Abadi] as “all bad.” This creates pressure for [B] to reject [Mr Abadi] and risks [B] having to cast-off part of her identity, which may be psychologically damaging.[3]
[3] Family Report dated 4 June 2021, p.4–5.
In conclusion, she observed that the current situation for B was unlikely to change, pointing to the proceedings being brought to an end. She, however, identified a benefit to have come with the engagement with B, in that she had been left with the understanding that the father remained receptive to seeing her in the future.
Evidence was also given on this occasion by the mother’s husband, Mr R, and by the father.
He however described that he had since consulted two psychologists seeking support for dealing with B. When asked what orders should be made, the father indicated firstly that he would like to have advice from one of two psychologists he had recently consulted for support in dealing with B after that psychologist has read material from the case. He seeks that B know him, and that:
the negative information that [B] has of me is gradually removed from her through therapy or some other way... so that she has the freedom to start seeing me or to seek my help.[4]
[4] Transcript 4 June 2021, p.62 line 42.
The father indicated that he had no further information about, or communication with B since the previous hearing when B had run away.
In terms of a present solution, the father wanted to send letters to B through her school, on the basis that B would be curious about the father, and for B to spend some time with the father’s other daughter, X (who the father spends time with from Thursday to Sunday each second week), potentially facilitated through the father’s mother, B’s paternal grandmother. This was proposed in a context where B has no relationship with the paternal grandmother, her exposure to her being restricted to being shown photographs of her paternal grandparents by the father during their supervised visits, occurring a significant number of years ago.
Hence the father’s proposal was that he be able to send letters, that B meet X, and that the father obtain some expert advice. He asserted that these arrangements should be made on an interim basis, and he have the opportunity to return to the court after consulting with the psychologist further. He further sought that if the psychologist was to provide a further opinion to the court that the mother bear half of the costs of such.
The father further sought a notation that the rule in Rice v Asplund,[5] should not apply to the proceedings, and that there should be an order for equally shared parental responsibility.
[5] (1979) FLC 90-725.
The father indicated that while he supported B having the benefit of international travel, he still opposed unfettered overseas travel for B, out of concern for where the mother might send her should there be conflict between B and the mother. The father said that he was concerned to ensure that B is returned to Australia. He asserted that should the mother want B to travel there should be an application made by the mother to the court, or for him to be given information about proposed travel and placed on notice as to the proposed travel, and that the mother be required to lodge a surety in respect of such travel.
The mother sought an order that she have sole parental responsibility, that B have no contact with the father, that the father be unable to bring further applications and that B be removed from the Family Law Watch List.
The mother sought the return of the birth certificate that correctly identifies the father as B’s father, that she had been required to lodge at the Registry. She had no issue with the Registry retaining the birth certificate that incorrectly identified Dr Aluru as the father, and the Apostille obtained in reliance upon that birth certificate.
There was debate as to whether the family reports and local child welfare authority, V Services, material should be provided to him to assist him to deal therapeutically with B, the father asserting both that he wanted B to continue to see a psychologist and that he wanted the psychologist briefed with such material.
While the mother did not oppose the sending of various documents (the family reports and tender bundle of documents provided by the Director General) from the proceedings to B’s psychologist, she expressed concern that it may impact negatively on the therapeutic work being undertaken by the psychologist.
The parties differed in relation to whether this judgment should be provided to the Director General, the father supporting, the mother opposing.
The ICL supported the mother having sole parental responsibility, that final orders should be made in order to bring the proceedings to an end, and that potentially orders be made facilitative of B meeting X. The ICL did not support orders for the father to send letters to B, considering that sending those through B’s school may undermine the school’s status as a safe place for B, but rather correspondence may occur if B seeks it out. She supported the provision of material to B’s psychologist and the judgment to the Director General.
Principles
In determining children’s cases, it is important to note that the court is not enforcing a parental right, but is pursuing, as its paramount consideration, the best interests of the child the subject of the proceedings, here B.
That involves consideration of the matters set out at s 60CC of the Family Law Act 1975 (Cth) (“the Act”), in the legislative context of the objects and principles set out in s 60B of the Act and, where applicable, following the reasoning process set out at s 65DAA of the Act.
The objects and principles contained at s 60B of the Act provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction and that they, themselves, are subject to the pursuit of the child’s best interests. For example, while s 60B(1)(a) is directed to children having the benefit of both parents having a meaningful involvement in the child’s life, it is qualified in that the pursuit of that is only to the extent that it is in the child’s best interests.
The considerations at s 60CC also do not necessarily point in the same direction, and it is their synthesis that determines the orders that will determine the child’s best interests. Amongst those considerations, particular emphasis is given to the primary considerations which focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations.
Here the considerations, in particular the protection from harm and the prospect of B enjoying the benefits of meaningful relationship with her father pointed to the move into the father’s care as provided for in the Final Orders. However, there has been a fundamental shift in B’s circumstances that arose immediately upon the application of those arrangements to her.
Where there has already been a final determination, the Court’s redetermination of best interests turns on the principles contained in the line of authorities following Rice v Asplund,[6] which directs the Court’s attention as to whether there has been a sufficient change in circumstances as to warrant the further consideration.
[6] (1979) FLC 90-725.
Here, the impossibility of the transition into the father’s care, as seen in the events immediately following the making of the orders is more than sufficient to meet this test.
Here, the reconsideration in large part involves questions of whether a meaningful relationship is available to B with the father, and whether benefits can flow from such a relationship. Further, in a context where significant consideration has already been given to issues of neglect and abuse, how, in the limited range of options available, she may derive the benefits of meaningful relationship from her mother, and receive appropriate care from her mother, sisters, and those otherwise involved in her care.
Discussion
The final judgment of 20 April 2021 determined that the benefits for B in the father’s home outweighed the benefits in the mother’s home as those benefits were impacted by risks presented by the mother that undermined B’s proper development. That weighing exercise took place in a context where B had no relationship with the father and whose benefits were only available on a successful transition between the households.
The transition was unsuccessful. The circumstances of that attempt, and its sequelae indicate a transition is now impossible, and that further attempts at any contact would impact heavily and adversely upon B, without any prospect for a successful transition to follow such attempts. That is, further attempts are likely to be harmful to B without producing the benefits of a relationship with the father. This tells against the intervention proposed by the father.
Absent a prospect for a successful transition, the benefits of meaningful relationship with the father have evaporated, as there is now no prospect of any relationship with the father for B.
This also tells against the father’s proposal that the proceedings be continued with further expert evidence. The father’s pursuit of further expert evidence is highly speculative, and to be weighed against the benefits of finalising the proceedings for B. Finalisation of the proceedings will likely bring relief to B, which outweighs the father’s speculative pursuit of further evidence.
It is also not to B’s benefit to provide her with correspondence from the father. Her reaction to the father is of such intensity that the prospect of such communication is both unlikely to give her the benefits intended to come with such communication, and likely to destabilise and traumatise her.
Similarly, despite B’s curiosity about her sister X, no adequate mechanism has been identified to allow such contact in a manner likely to work for B in the context of her hostility toward the father. The proposal that such be facilitated by the paternal grandmother, who B does not know, is an inadequate arrangement. The prospect of organising time with X carries with it the prospect of upset and destabilisation for B, given the close connection between the father and X, and B’s hostility to the father.
The only option for B is under the compromised and potentially deleterious care of the mother. B’s best interests lie in salvaging what benefits can be from that relationship, by ordering that B live with the mother.
There is no prospect for the sharing of parental responsibility between the parties, or for any communication between the parties. Further, the prospect of meaningful input by the father is also compromised by virtue of there being an absence of relationship between him and B.
Under these circumstances, an order should be made for the mother to exercise sole parental responsibility. Accordingly, she should receive back B’s proper birth certificate and Country J passport.
The father’s pursuit of a notation regarding inapplicability of Rice v Asplund,[7] is unavailable as a matter of principle. Whether circumstances warrant re-opening is governed by the binding authority of Rice v Asplund,[8] as applied by any future trial judge.
[7] (1979) FLC 90-725.
[8] (1979) FLC 90-725.
As to international travel, while there may be concerns flowing from the mother’s previously compromised parenting, where there is no provision for B to have contact with the father, where parental responsibility rests with the mother, where B has previously expressed frustration at her inability to travel overseas, no sufficient risk is identified to warrant any restraint regarding travel.
Conclusion
In this case, B’s best interests do not equate to a positive outcome for B. Rather they represent the best available outcome, involving the pragmatic recognition that in reality there is only one outcome available for B’s support, and that even if deficient, such should be given the best conditions in which to nurture B.
Accordingly, orders will be made in accordance with those sought by the mother.
However, in accordance with the previous judgment in this matter, it remains appropriate to restrain the mother from permitting B to come into contact with Mr L. It also remains appropriate that documents that wrongly record her paternity that are held in the Registry remain so held pending B reaching 18 years of age.
The mother should be at liberty to provide the family reports in this matter to any therapist for B.
This judgment should be furnished to V Services so that they, having been heavily involved with this family, are fully aware of the arrangements for B’s care and why they came about, in case of the need for future interventions by that body.
Postscript
This was a matter in which both the Family Consultant and the ICL undertook very difficult tasks involving meeting and communication with B under difficult circumstances.
While family consultants are called upon to engage in such tasks, their difficulty, and the commitment required of the family consultant to do so should be recognised.
It should also be recognised that the ICL reflected the very best of what it is to represent a child’s interests as an ICL. It is worth repeating what was said to her at the conclusion of the hearing in this matter in recognition of the work that she undertook:
Ms U], if I can say something to you in your role as the independent children’s lawyer, you deserve very high commendation in your discharge of your duties. You’ve dealt with very difficult, confronting and challenging matters. You’ve undertaken tasks which you were not obliged to undertake as the independent children’s lawyer, yet you’ve shouldered those tasks, and you did so in a way that was likely to be quite beneficial for [B]. Your conduct in the last number of months in relation to [B] as an ICL is exemplary.[9]
[9] Transcript 4 June 2021, p.84 lines 3–10.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 15 July 2022
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