Andalis & Andalis (No 2)
[2025] FedCFamC1F 137
•4 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Andalis & Andalis (No 2) [2025] FedCFamC1F 137
File number(s): NCC 3980 of 2020 Judgment of: SMITH J Date of judgment: 4 March 2025 Catchwords: FAMILY LAW – CHILDREN – Where prior decision was made for four siblings – one teenage child’s wish was to live with father - where orders were made for all siblings to live with the mother and relocate a significant distance – three younger sibling including child to spend time with father mainly in holidays - after delivery of judgment child refused to return to mother’s residence after spending time with the father – where it had been established at the prior proceedings that this child had a strong affinity to the father and had expressed a strong desire to live with him – where child continued to maintain this strong view – psychological risks to child of forced change of residence – real risk of absconding - finding in the best interests of the child to vary final orders – child to reside with the father – child’s time with mother and siblings co-ordinated so siblings spend entire holidays together. Legislation: Family Law Act 1975 (Cth), Pt VII, XV, s 60CA, 60CC, 65AA, 117 Cases cited: Andalis & Andalis [2023] FedCFamC1F 597
Rice and Asplund (1978) 6 Fam LR 570
Division: Division 1 First Instance Number of paragraphs: 161 Date of hearing: 16 – 18 April 2024 Place: Newcastle For the Applicant: Litigant in Person Counsel for the Respondent: Mr Bithrey Solicitor for the Respondent: Delaney Roberts Family Lawyers Solicitor Advocate for the Independent Children's Lawyer: Ms Tran Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 3980 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANDALIS
Applicant
AND: MR ANDALIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.These orders vary the final orders of 19 July 2023 in relation to Y (born 2010) (“Y”) only to the extent to which these orders are inconsistent with those orders.
Parental responsibility to father
2.Mr Andalis born 1976 (“the father”) have sole parental responsibility of Y.
3.Prior to exercising parental responsibility pursuant to this Order, the father shall provide written notice to Ms Andalis born 1979 (“the mother”) of any decision that he may make at least 21 days prior to making the decision:
(a)If there is an urgent decision to be made which the father did not have sufficient notice of the father shall notify the mother in writing of the decision that he may make and explain the urgency and provide a timeframe for her to provide input appropriate to the urgency of the decision, or make a decision if there is insufficient time to engage in consultation.
(b)Consider any written input the mother provides prior to making any decision.
(c)Within 14 days of exercising parental responsibility pursuant to this Order the father shall provide to the mother written notice of her decision and actions.
4.Each parent shall be responsible for day-to-day decision making for Y when Y is in their care.
Live with father
5.Y shall live with the father.
Time with mother
6.Y shall spend time with the mother as agreed between the mother and the father in writing and failing agreement as follows:
(a)During each school term Y shall spend time with the mother in the Town D area for one weekend.
(b)The parties may agree the weekend, and failing agreement the mother shall determine the weekend by notifying the father at least 90 days prior to the day on which the time is to commence, or at least 14 days prior for Term 1 2025.
7.Y will fly return from City B area to the Town D area.
8.The mother will book and pay for the flights in the first instance.
9.The father will reimburse the mother for half of the flight costs within 14 days of receipt of a copy of the booking information, a fare schedule establishing payment and the details of a bank account for re-imbursement.
10.Y shall fly to the Town D area after school on the last school day before the weekend, or on the next reasonably available flight that does not involve her missing school, and the flight shall be booked so that she does not miss school and so that, so far as possible, she arrives at the mother’s no later than 9.00 pm.
11.Y shall fly return to City B area on the last day before school returns so that she arrives at City B area no later than 9pm.
12.The mother may nominate a weekend which includes a long weekend where there is no school on days on one or either side of the Saturday and Sunday.
School Holidays
13.Y shall spend half of each of the four school holiday periods with each parent, so that Y’s time is spent with each parent at the same time that the children X and Z are spending with each parent.
14.Y, X and Z, shall spend the first half of each school holiday with the mother in odd numbered years, and the first half of each school holiday with the father in even numbered years. They shall spend the second half of each school holidays with the other parent.
15.For the purpose of these Orders the school holidays are deemed to commence on the day after the last day that any of Y, X or Z attend school and conclude on the last day before any of Y, X or Z are to attend school.
16.In calculating the mid-point of the long holiday period, the last and first days of school shall be excluded, and if there is no mid-point day then the parent with who they are spending the second half of the holidays shall have the extra day.
17.For the purpose of these orders during the short school holiday:
(a)In odd numbered years:
(i)The children’s change-over to the father will occur at 2.00 pm on the second Saturday and the children’s change-over back to the mother will occur at 2.00 pm on the last day of the holiday.
(b)In even numbered years:
(i)The children’s change-over to the father will occur at 2.00 pm on the first day of the holidays and the children’s change-over back to the mother will occur at 2.00 pm on the second Sunday of the holiday.
18.For the purpose of these orders during the long school holiday:
(a)In odd numbered years:
(i)The children’s change-over to the father will occur at 2.00 pm on the day which is the mid-point of the holiday, and
(ii)the children’s change-over back to the mother will occur at 2.00 pm on the last day of the holiday.
(b)In even numbered years:
(i)The children’s change-over to the father will occur at 2.00 pm on the first day of the holidays, and the children’s change-over back to the mother will occur at 2.00 pm on the mid-point of the holiday.
Changeover
19.Change-over for the school holidays shall occur at McDonalds Suburb QQ.
Communication
20.Each parent be at liberty to communicate with Y by telephone and/or video chat on each Monday and Thursday between 5.00 pm and 5.30 pm when Y is not in that parent’s care.
21.Each parent be at liberty to communicate with Y by telephone and/or video chat on special occasions including Y’s birthday, each parents’ birthday, Christmas Day, Easter Sunday, Mother’s Day and Father’s day between 5.00 pm and 5.30 pm when the child is not in that parent’s care.
22.The parent who has care of Y shall do all things necessary to facilitate such communication.
23.Y may further communicate with either parent by telephone or video as she wishes, and if she requests to speak with the parent she is not with the parent she is with will do all reasonable things to facilitate the making of such telephone calls or video calls if facilitation is required.
24.During any such communication, the parent who has care of Y shall ensure Y has privacy during communication with the other parent.
Orders dated 19 July 2023 continue except as expressly amended
25.Orders 37 onwards of the Orders dated 19 July 2023, other than orders 48, 50 and 51, are to remain in force with regard to Y.
26.Vary order 48 of the Orders dated 19 July 2023 so that it reads:
(a)The father is restrained from consuming alcohol whilst either X and / or Z are in his care, or for a period of 48 hours prior to X and / or Z come into his care.
(b)The father is restrained from having a blood alcohol concentration (BAC) exceeding the lower of, the legal limit at which he can operate a motor vehicle in NSW or a BAC of 0.05, whilst Y is in his care.
27.Discharge orders 50 and 51 of the Orders dated 19 July 2023 only in so far as they relate to Y. In their place, only in so far as they relate to Y, order instead:
(a)Pursuant to section 11(1)(b) of the Australian Passports Act 2005 the father be permitted to obtain a passport for Y without the consent of the mother.
(b)The father shall hold Y’s passport to be released to the mother upon compliance these orders and Y’s passport to be returned by the mother to the father at the first changeover of Y upon Y’s return to Australia.
28.A copy of these orders may be provided to any school or medical or allied health practice attended by Y.
29.A copy of all Family Reports or Child Impact Reports and Judgments in these and the prior proceedings may be provided to any clinician treating Y, together with a copy of these orders to give them notice of the requirement not to distribute or publish the content of the same.
30.Within 28 days of these orders the father is to pay to the Legal Aid Commission of New South Wales $5,351.50 in relation to the costs of the Independent Children’s Lawyer, unless he obtains an exemption from Legal Aid Commission of New South Wales.
THE COURT NOTES THAT:
A.The father advised the Court that he had no intention to change Y’s schooling and agreed to this being noted in the Orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Andalis & Andalis has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These proceedings are about Y (born 2010) aged 14 (“Y”) and the parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), as at the date of trial, which are in her best interests.
The applicant mother is Ms Andalis (born 1979) aged 45. The respondent father is Mr Andalis (born 1976) aged 48.
Following a six day final hearing before me in early 2023 a Judgment was delivered ([2023] FedCFamC1F 597) (“the 2023 Judgment”) and final orders were entered on 19 July 2023. It was not contentious that the findings in the 2023 Judgment would be taken into account in these proceedings.
These reasons for decision should be read together with the 2023 Judgment.
In brief summary, the final orders required Y, and her three siblings W, now aged 17, X, now aged 16, and Z now aged 8 (jointly “the children”), to live with the mother, who was granted sole parental responsibility for the children. The mother was also permitted to relocate with the children from the City B area, where the father still lives on a rural property about a 50 minutes drive from City B, to the Town D area of NSW, to be closer to maternal family supports.
Given his age and views W was permitted to spend time and communicate with the father in accordance with his wishes. The final orders provided for Y, X, and Z (who I will again refer to as “the girls” consistent with the conduct of the proceedings) to spend time with the father for one weekend during each school term, along with half school holiday time, with alternatives for changeover arrangements.
The relatively limited time with the father during school term time was primarily a factor of the significant travel time between the households, and the impracticality of more frequent time during term time.
The decision that the children live with the mother was consistent with the views and wishes of W and X, and to the extent relevant Z, but contrary to the consistently and firmly held and stated views and wishes of Y. Y’s consistent position was that she wanted to live with the father.
W, X and Z (“the other children”) have relocated with the mother pursuant to the orders.
Y initially relocated. However, at the conclusion of a period of ordered time with the father Y barricaded herself in her room at the father’s home and physically resisted attempts to compel her compliance with the orders to return to the mother.
Y remains living with the father. Y resolutely maintains her position that she will not live with the mother.
It is in this context that the proceedings return for further consideration of the final orders. There was no opposition to a further hearing. The threshold in Rice and Asplund (1978) 6 Fam LR 570 is met by reason of Y’s persistent refusal to comply. No formal application was made to vary or amend the final orders in relation to the other children.
After the mother relocated, she entered a relationship with a Mr RR but says that relationship has finished. She remains in Town D with the other children.
The father is now engaged to Ms M, and they live together with Ms M’s two children, SS (aged about 7) and TT (aged about 6) and, for the present, with Y.
Y’S VIEWS
The 2023 Judgment considered Y’s views and the risk of her non-compliance, including at paragraphs [151]-[152] and [167]-[168] which I set out for convenience:
151[Y] has a good relationship with the mother and the father. She is more closely aligned with the father but the reasons for that are not clear. The evidence does not suggest that her alignment with the father is indicative of any issues in her relationship with the mother. [Y] will doubtless be unhappy with the order requiring her to live with the mother and in [Town D] away from the father. The additional support from the [Ms T and Mr U], particularly around [W’s] and [X’s] needs, may reduce some of the stresses in the mother’s household which may have contributed to [Y’s] preference to live with the father.
152There is a real prospect that sometime in the next year or two [Y] will self-place with the father despite these orders and so these orders involve a risk of further litigation. I will structure the orders to try to accommodate [Y’s] views so far as possible, as recommended by the expert, by indicating that the parties may agree to [Y] spending additional holiday time alone with the father. I do not think it appropriate to try and formulate specific orders about that at this time.
…
167 I find it is in the girls’ best interests to live with the mother. I accept the expert’s opinion that it is inevitable that [X] should and will live with the mother and that [Z’s] age and the mother’s role as her long term primary carer make it in [Z’s] best interests to live with the mother. I find that despite [Y’s] views it is in [Y’s] best interests to remain living with her siblings and the mother.
168 In relation to [Y] I make that order acknowledging there is a real risk that [Y] will eventually self-place contrary to these orders, and that this may lead to further litigation. I will not make orders for additional holiday time with the father for [Y] as was canvassed in submissions, but note that as she progresses through high school if she seeks to spend more time with the father the parties should consider allowing her to spend some additional holiday time with the father, including alone, subject to the practicalities of transporting the girls to change overs at different times.
The evidence establishes that Y’s views have not changed. Indeed, if anything Y’s views appear to have hardened, in particular as a result of the events of 5 August 2023 during which she barricaded herself in her room.
BACKGROUND TO THIS PROCEEDING
The mother relocated to Town D on 20 July 2023, the day after delivery of the 2023 Judgment.
The girls spent the weekend of 28 to 31 July 2023 with the father pursuant to the orders. Y then refused to return with the mother. The father contacted City B Police Station due to his concerns about being in breach of the final orders. On 1 August 2023 the father says, and I accept, that he tried to get Y to return to the mother’s care, but she would not go.[1]
[1] Affidavit of the father filed 10 April 2024, paragraph 47-50.
On 2 August 2023 the mother commenced these further proceedings, the matter was transferred to my docket and was listed on 4 August 2023 for Interim Hearing, on which day the parties reached Interim Consent Orders for the father to return Y’s belongings and to deliver Y to the mother at the changeover location, with the Independent Children’s Lawyer (“ICL”) to explain the interim order to Y. The ICL was re-appointed.
On Saturday 5 August 2023 the mother attended the father’s home, Y barricaded herself in her room and refused to leave.
On 6 September 2023 Interim Consent Orders were made for Y to be re-enrolled at I School as a temporary student with the father solely responsible for the costs.
Further Orders were made requiring the ICL to provide Y with a copy of these Orders and telephone or videocall Y in order to explain the Orders to her.
A Child Impact Report (“CIR”) was prepared by Court Child Expert (“CCE”) Mr UU dated 26 September 2023. At that time Y had not spent any time with the mother since 28 July 2023.[2]
[2] Exhibit ICL1, Child Impact Report dated 26 September 2023, paragraphs 2-3.
On 6 October 2023 the parties reached further Interim Consent Orders that Y should live with the father and spend time with the mother during the remaining 2023 school term as follows:
(1)In City B during the weekend of 20-22 October; and
(2)In Town D during the weekend 18-19 November.
It was further agreed that Y would spend time with the mother during the December 2023 school holiday period from 16 December 2023 until the midpoint of the school holiday period, where Z and X would commence spending time with the father in City B.
Further orders were that Y was to commence counselling or psychological support at whichever service had the first available appointment.
On 18 December 2023 the matter was set down for Final Hearing commencing on 16 April 2024 in person at Newcastle.
TRIAL
The final hearing was held in person at Newcastle for three days from 16 to 18 April 2024. The ICL and father were legally represented, including by counsel. The mother was self-represented.
The mother read or relied upon the following documents:
(1)Application for Final Orders filed 2 August 2023,
(2)Notice of Child Abuse, Family Violence or Risk filed 2 August 2023,
(3)Trial Affidavit of Ms Andalis filed 14 April 2024.
The father read or relied upon the following documents:
(1)Response to Final Orders filed 19 September 2023,
(2)Trial Affidavit Mr Andalis filed 10 April 2024,
(3)Affidavit of Ms M, the father’s fiancé, filed 10 April 2024,
(4)Case outline filed 15 April 2024.
The Independent Children’s Lawyer tendered or relied upon the following documents:
(1)Child Impact Report (“CIR”) dated 26 September 2023 prepared by Mr UU (tendered as exhibit ICL1); and
(2)Case Outline filed 12 April 2024, which included a proposed Minute of Order sought by the ICL.
Various documents were tendered.
The mother, father, Ms M and the CCE were required for cross examination.
MAJOR EVENTS AND ISSUES
The parties gave evidence about the events and interactions which occurred between them, and involved Y, between the 2023 Judgment and this hearing. I have reviewed and considered that evidence.
I consider it unnecessary to detail the majority of it, which primarily establishes the high level of ongoing hostility and animosity between the parents and their inability to co-parent in any meaningful way. In that regard there is no change from the position at the time of the 2023 Judgment.
20 JULY 2023 - MOTHER’S RELOCATION
The mother relocated on Thursday 20 July 2023, the day after delivery of the 2023 Judgment.
This decision was, as the CCE noted, “seemingly hastily as described by [X] and [Y]” (CIR at [2]).
X told the told the CCE (CIR at [12]) it “felt rushed with limited explanation as to why apart from believing that her mother did not trust her father to do the right thing” and further that Y and Z’s experience may have been:
12.…better if the relocation was not so rushed. She explained that a more planned relocation may have provided the children an opportunity to say goodbye to people they wished to say goodbye to, an opportunity to better consider and gather which belongings they wished to take with them and leave and may have ultimately provided the children with “closure” about leaving.
Y (CIR at [31]) expressed distress and also told the CCE she heard W, X and the mother discussing the maternal uncle’s advice to “just go” which she assumes was to avoid giving her the chance to refuse to leave.
The mother’s decision to take the children from school and relocate with no notice did nothing to help Y’s emotional state, and clearly contributed to her distrust, or increased distrust, of the mother. It clearly also contributed to Y’s subsequent refusal to spend time with the mother, due to Y’s fear the mother would retain her permanently. In that context Y told the CCE at CIR [33]:
33.…When asked specifically about her mother, [Y] acknowledged that she is also important but explained that her feelings towards her have waned over the last 3 years due to “the way she stripped me of my Dad.” [Y] became very teary at this point, indicating that her perceived experience of her mother making [Y’s] relationship with her father difficult and limited has had a profound emotional and psychological impact on [Y] and has possibly also exacerbated her longing to be with her father to the point of her now refusing to return to living with her mother.
In cross examination the mother was challenged on the wisdom of her decision to relocate so quickly without notice to the children, but did not accept that it was not a good decision.
Y’s refusal to return to the mother
31 July to 3 August 2023
On 28 July 2024 the father collected the girls from Suburb VV McDonalds, with the girls due to be returned to the mother on Monday, 31 July 2023.
The father recalls that on the Sunday night the girls were all sad about having to leave and that on Monday morning he observed Y to be sobbing in her bed.[3]
[3] Father’s affidavit filed 10 April 2024, paragraphs 22-25.
He said that Y shut the door to her bedroom and refused to let him in, despite him attempting to open to door at least 20-40 times. He said Y kept yelling “I’m not going”.[4]
[4] Father’s affidavit filed 10 April 2024, paragraph 28.
By 8.00 am on the 31 July 2023 the father sent a message to the mother on the parenting app informing her of the situation. He said he attempted various methods, such as naming Y’s friends from Region C, and encouraged her to go back to the mother.
The father then arranged for his parents to take the younger two girls back to the mother, which then occurred.
It is the father’s evidence that Y then left her bedroom but continued to refuse to go back to her mother. He claims this continued over the next few days.
On 2 August at around 7.00pm the mother called Y, and they spoke for around 30 minutes. The father said Y told him “Mum was calling me a liar, she was making it out that I love [Region C] and my life down there, but I don’t”[5] and said that “[W] slammed me up against a wall in the [City B] rental in the hallway of the house.”[6]
[5] Father’s affidavit filed 10 April 2024, paragraph 59.
[6] Father’s affidavit filed 10 April 2024, paragraph 59.
The father maintains that he has every intention of complying with the orders, and that Y has not been returned because she refused to go.[7]
[7] Father’s affidavit filed 10 April 2024, paragraph 62.
The mother holds concerns that the father may be influencing Y, and intentionally persuaded her to stay with him.[8] That possibility cannot be excluded. However, the father maintained that while he explained to Y that she needed to follow the court orders, and that it had been decided it was best for her to live with the mother, he denied ever reading paragraphs of the 2023 Judgment to Y.[9] He further denied ever encouraging Y to refuse to return to the mother.[10]
[8] Mother’s affidavit filed 14 April 2024, paragraphs 36-39.
[9] Father’s affidavit filed 10 April 2024, paragraph 45.
[10] Father’s affidavit filed 10 April 2024, paragraph 46.
4-8 August 2023
Orders were entered on 4 August which required the father to deliver Y’s belongings to the mother on 5 August and then to facilitate changeover on 6 August.
The father’s evidence is that Y again refused to leave, and the mother and her brother then attended his residence. His parents and Ms M were also present. He claims the mother was rude, argumentative and critical on this occasion, saying things such as “I’ve just driven 10 hours because you can’t do your parental duty”.[11] Ms M’s affidavit contains a record of the same words being spoken by the mother.[12]
[11] Father’s affidavit filed 10 April 2024, paragraph 74.
[12] Affidavit of Ms M filed 10 April 2024, paragraph 13.
The mother alleges that Ms M was attempting to record her and that that is why the affidavits record identical wording.[13] She further alleges that the father has consistently brought at least one person to every changeover or meeting for the purpose of intimidating her.[14]
[13] Mother’s affidavit filed 14 April 2024, paragraphs 70-71.
[14] Mother’s affidavit filed 14 April 2024, paragraph 165.
When the mother tried speaking to Y the father claims Y eventually became hysterical, screaming at the top of her lungs. At about 6.25 pm the mother left the premises.
As mentioned above, Ms M detailed this occasion in her affidavit. It is her evidence that the mother argued with Y about her friendships, suggesting to her she had friends in Town D and not in City B.[15] She stated that after this Y became hysterical.
[15] Affidavit of Ms M filed 10 April 2024, paragraph 18.
The following day the mother arrived at the father’s hours at around 11.00 am to again attempt to collect Y. It is agreed that again Y refused to leave with the mother.
The mother referred to this as the father “withholding [Y] from me 2 weeks after Judgment”.[16] Independent evidence, including both X’s (CIR at [14]) and Y’s (CIR at [27]-[29]) statements to the CCE, suggests the father was asking Y to go and that Y barricaded herself into a room when attempts were made to enforce compliance with the orders.
[16] Mother’s affidavit filed 14 April 2024, paragraph 6.
Y saw her GP on 8 August 2023.[17] In the absence of the father she told the GP that she had locked herself in the room on 5 August 2023, the mother tried to force the door and said “mean and abusive words during the ordeal to demean her”[18] which Y said left her “physically and emotionally traumatized by this ordeal”.[19] She also said that the grandparents were there and were distraught over the situation, and that she felt unsafe at the mothers. The GP recorded that “[s]he appeared quite resolute with her decision”.[20]
[17] Exhibit 1.
[18] Exhibit 1.
[19] Exhibit 1.
[20] Exhibit 1.
There can be no doubt as to Y’s resolution.
The mother put to the CCE in cross examination that the father acted improperly by not doing things such as removing the door from its hinges, or breaking it down, in order to physically compel Y’s departure. The CCE disagreed.
The CCE said in oral evidence, and I agree and find, that the father’s actions were reasonable and appropriate and that it would not have been in Y’s best interests for the father to break down or remove the door and physically compel Y’s removal.
I accept the CCE’s opinion and am satisfied that breaking down or removing the door would not have been in Y’s best interests, and further that if that had occurred at the mother’s insistence there would have been a real risk of a complete destruction of Y’s already tenuous relationship with the mother.
The mother’s evidence that she believed the appropriate action was to break down the door and physically force a hysterical 13-year-old girl into a car to compel her relocation against her will causes me concern about the mother’s capacity to prioritise Y’s best interests and psychological and emotional needs over her own, in the context of her own strong negative feelings towards the father.
The mother also complains that the father did not notify police or DCJ (the Department of Communities and Justice) that Y was hysterical in her bedroom and did not notify the Child and Adolescent Mental Health Service ( CAMHS) or a mental health unit, but was unable to offer any explanation as to why police or DCJ would be involved, or what CAMS could have done on the day, noting that the specific stressor was the attempt to force the door, which the mother maintains should have occurred.
21 OCTOBER 2023
There was evidence of an incident in October 2023 in which the mother complained that the father came and picked Y up when Y asked him to.
That was, as the ICL submitted and I accept, unwise of him. It would be problematic if it was to occur repeatedly, however the evidence was that this was the only occasion on which it occurred and otherwise the evidence indicates that the father has been facilitating, and Y complying with, the time and communication agreed under the interim orders.
Of more concern was the mother’s oral evidence that, in the context of Y telling her that she wanted to live with the father, the mother removed herself from the conversation with Y to “process” Y’s statements.
The fact that the mother was unable to stay and calmly engage with Y in that conversation, in which Y expressed the same view she has held and expressed throughout, was strong evidence of the mother’s inability to manage her own emotions and to meaningfully engage with Y about Y’s emotions and wishes.
It was, if any more evidence was required, persuasive evidence of the strength of the mother’s animosity towards the father, and of the negative impact that animosity has had on the mother’s parenting capacity to consider Y’s views and wishes, and more importantly on the mother’s parenting capacity to empathetically and calmly engage with Y about the fact that Y does not feel towards the father as the mother, and W, do.
Y’S VIEWS
There is no doubt as to Y’s stated view.
It has remained consistent in her statements to the CCE, the ICL, on the mother’s evidence to the mother. It was confirmed by Y to her GP in the absence of the father. The ICL had met with Y six times and submitted that Y’s view was persistent and strongly held.
The issue for the mother is that she does not accept that Y’s expressed view was her own and was not improperly influenced by the father.
It was put to the mother that she simply could not accept the fact that Y did not share the same negative view as she and W hold about the father. The mother said that she would have been more accepting of Y’s position had there been a forensic investigation undertaken by a psychologist and a report prepared, to make her more confident that Y was not exposed to systematic abuse. No such forensic investigation was requested, and no such report exists. Based on the available evidence I do not consider this a limitation on the court’s capacity to consider and finally decide the issues before me.
When pressed the mother said she could not accept that Y’s expressed view was Y’s genuine view, uninfluenced in some improper way by the father, based on her own experiences of living with the father for 17 years, during which she said she was coercively controlled, and noting she believed that Y had been subject to the same behaviours.
The mother’s inability to consider the possibility that Y could legitimately hold a different view to her own and W’s view of the father is, as the ICL submitted, a significant factor in Y’s responses to the mother and father in the case.
In this context, I note that while X prefers to live with the mother, X’s view of the father is far more nuanced than the mother’s as discussed in the 2023 Judgment, and that there are rational reasons why Y may prefer to live with the father as also discussed in the 2023 Judgment.
I note that another factor which appears to have influenced the mother’s position in this hearing was her apparent concern that if Y is allowed to live with the father, then, someday, Z might decide to do the same. That is not a consideration that I give weight to in determining this proceeding.
Y’S LIKELY COMPLIANCE WITH ORDERS TO LIVE WITH MOTHER?
The CCE noted the “clear level of mistrust” Y holds toward the mother, with the relationship in need of reparation.[21] If Y were required to live with the mother, the CCE stated “there is a real potential for this to be emotionally and psychologically destabilising for [Y] and other members of the mother’s household”.[22]
[21] Exhibit ICL1, Child Impact Report dated 26 September 2023, paragraph 46.
[22] Exhibit ICL1, Child Impact Report dated 26 September 2023, paragraph 46.
The CCE also noted that:[23]
36.[Y] was asked about how she would feel about some general hypothetical scenarios. When asked how she would feel if her parents and the Court decided that she needed to return to living with her mother and spend time with her father say one weekend during the school term and half holidays, [Y] initially said “I’d go up there and I’d do it,” albeit begrudgingly. However, upon considering this further, including a hypothetical scenario of spending more time with her father than one weekend per term and half school holidays, [Y] said “I think I’d run away.” While [Y] may be genuine in expressing that she may run away if made to live with her mother, the father’s reporting of [Y’s] expressed statements would appear more overstated than [Y’s] actual expressed sentiments in interview. [Y] expressed not knowing what would need to happen for her to be happier and/or more comfortable living with her mother.
37. When asked how she would feel if there was a decision by her parents or the Court that she remain living with her father and spend time and communicate with her mother, [Y] said she thinks she would “cope” with this and thinks this would “be a lot better.” Asked how she would feel about spending time and communicating with her mother in this scenario, [Y] said “I think I’d be fine with it.”
[23] Exhibit ICL1, Child Impact Report dated 26 September 2023, paragraph 36-37.
In oral evidence the CCE said that given Y’s mistrust of the mother, and refusal to comply to date, there is a real chance she will not comply with a further order in the same terms, and that despite the lack of a definite stated intention, there was a risk that Y would abscond if compelled to relocate.
The mother did not accept that there was a risk that Y would abscond.
Given the strength of Y’s views, her behaviours to date, the mother’s lack of demonstrated capacity to engage with Y around Y’s wishes and view of the father, Y’s age, and the CCE’s opinion, I am satisfied that if compelled to live with the mother there is a risk, though not a certainty, that Y would abscond, either to the father’s, or if she is afraid that this will merely result in a further return to the mother, to the streets. I give weight to this risk in my assessment.
Y’S COUNSELLING
There was a short note from a family counsellor at PP Counselling who had seen Y on four occasions. She stated that he believed Y was “either unwilling or unable to engage with the Counselling process” and in those circumstances were no longer providing counselling to Y. [24]
[24] Exhibit ICL2, email dated 31 January 2024
There was evidence that Y was having sessions with the school counsellor at I School, but that was not specifically directed to the repair of her relationship with the mother and, whilst it was good that Y has engaged with someone, the CCE did not consider it was adequate to address the issue of Y’s relationship with the mother.
It is clear that Y would benefit from specialist counselling, in particular directed to helping her to repair her relationship with the mother.
FATHER’S ALCOHOL CONSUMPTION
The mother maintains the concerns that she raised at the first trial that the father poses a risk to the girls in general, and to Y in particular if she lives with him, due to his history of aggressive behaviour, particularly exacerbated by alcohol consumption, and his coercive controlling behaviours.
The father’s alcohol consumption proved to be a significant issue at the original trial, with findings that the father had engaged in excessive alcohol consumption, but that he had worked to address the issue and did not pose an unacceptable risk.[25]
[25] 2023 Judgment, paragraph 89.
The father reported to the CCE that he had not consumed alcohol “since the days prior to [Y] living with him in July 2023, and that his use prior was 1-2 mid strength beers per night when the children were not with him”.[26] He reported that he was continuing to comply with the current restraint. There is no evidence that this is not correct.
[26] Exhibit ICL1, Child Impact Report dated 26 September 2023, paragraph 44.
Further, the final orders that mother seeks to enforce do involve Y spending extended periods of time with the father.
In the absence of evidence of an increase in drinking and noting my prior findings on this topic which the mother did not explicitly dispute, the issue of the father’s alcohol consumption is not a factor I give significant weight.
The father sought a variation of the final orders in relation to the alcohol he may consume at his proposed order 15. The father did not seek a complete discharge of an alcohol restraint but proposed instead a variation. The current order (final order [48]) is that the father is restrained from consuming alcohol whilst the children are in his care or for a period of 48 hours prior to the children coming into his care.
The father proposed, at his proposed order 15, that he be restrained from consuming alcohol which would cause him to have a blood alcohol limit exceeding the legal limit at which he can operate a motor vehicle whilst the children are in his care.[27]
[27] Father’s Case Outline filed 15 April 2024.
The father led evidence that he had complied with the current order, had completed CDT tests on 3 October 2023 and 28 March 2024 as annexed to his affidavit, and that he did not want to drink to excess.[28]
[28] Father’s affidavit filed 10 April 2024, paragraphs 153-158.
The submission was that the final order as made was anticipated to apply in circumstances where the girls would be spending regular time, but not primarily living with, the father. In that circumstance it was submitted that the overall circumstances, and practicality of the final order, was different.
The father’s proposed amendment affects not only Y, but also X and Z, and the CCE was concerned that the children could be triggered if the father returned to drinking while in their presence. I consider that a significant concern.
In that context, on balance I consider it inappropriate to vary order 48 as it applies when X and Z are in the father’s care as there is no relevant change of circumstance, and no proper application before me to vary orders relevant to X and Z.
However, the situation with Y is different, as she now lives with the father full time. Given that the father appears to have addressed his drinking issues, and where Y will be living with him full time pursuant to these orders, and where he does not seek a complete discharge but a change to what is in effect a 0.05 BAC reading, on balance, I am satisfied that this variation will not be adverse to Y’s interests, and will relieve the father of the need for effective complete abstinence until Y is 18.
I will structure the order so that it is clear it applies only when Y is present, and that final order 48 continues in place whenever X and/or Z are in his care.
PROPOSALS AND SUBMISSIONS
The mother pressed for orders in line with her Initiating Application filed 2 August 2023, largely seeking orders in line with final orders of 19 July 2023 with some modifications. The mother set out her proposed orders in her affidavit at paragraph 192, which she said she believed would make it possible to enable Y to have a meaningful relationship with her and her siblings.
The mother sought orders that Y live with her, however with equal shared responsibility for all matters but for health, with health remaining solely with the mother. Consistent with that she sought Y’s enrolment at EE School with the other children. She proposed that Y spend her holidays primarily with the father, to allow her more time with the father. She also made proposals for term time.
In the alternative the mother proposed that Y should be free to live with either parent at her own wish, on the same basis that this order was made for W.
The mother also sought a series of orders around payments for school fees and medical and other ancillary matters which were, as the father correctly submitted, not parenting orders and not properly before the court as a child support departure application. I will not deal with these further.
The ICL sought orders, as contained within their Case Outline, that Y live with the father, who would have sole parental responsibility with an obligation to notify, consider and inform the mother prior to exercising parental responsibility. They sought for Y to spend time with the mother as agreed but failing agreement, on one weekend each school term with the mother to have the choice of weekend including a long weekend, with Y to fly and the parties to pay half the cost each, and for half of school holidays with each parent, so that Y’s school holiday time is spent with X and Z, with the changeover at McDonalds Suburb QQ. They further sought orders governing communication between the parties, with orders 37 onwards of the final orders, covering parental communication, keeping informed, medical, school and extracurricular activities, restraints and international travel and passports, to remain in force. The ICL amended their proposed order 12, better defining school holidays. The ICL sought costs from each party which the father agreed to pay, and the mother opposed on capacity grounds.
The father sought orders in line with his Response filed 19 September 2023 and Minute of Order contained in his case outline which were in very similar terms to the ICL’s proposal, which the father ultimately adopted, with the additions, noted elsewhere, that he sought to vary the alcohol order to be that he not have a blook alcohol limit exceeding the limit for operating a motor vehicle, and that he have parental capacity in relation to Y’s passport.
The ICL submitted that given her age and stage of development Y’s persistent and strongly held views ought to be given significant weight and that she should live with the father.
This was also submitted to be supported by Y’s refusal to comply with the court’s original order, and the risks associated with requiring Y to relocate against her will and live with the mother given the tenuous nature of their current relationship, Y’s distressed psychological state, the mother’s limited capacity to acknowledge the validity of Y’s expressed view and engage with Y, the risk of ongoing refusal, and the CCE’s evidence that there is a risk of Y absconding.
The ICL submitted the mother was unable to separate her own, negative views of the father from Y’s experience and could not accept that Y’s view of the father was different to her own. The ICL submitted the mother’s refusal to consider the possibility Y might run away, given the history, to be concerning.
The ICL submitted that the father could encourage and maintain the relationship with the mother and had been complying with orders and doing so. The ICL also submitted, and I accept, that Ms M, whose evidence was relatively confined, impressed as a genuine witness and that she is likely to be a supportive presence in Y’s life, and it was submitted that her presence would give the court comfort in making a live with order for the father.
In response to the mother’s proposal that Y should be free to live with either parent, as W is, so that she could live with the mother if she changes her mind, the ICL submitted that it would create a situation where Y might be subject to ongoing pressure from the mother to change primary residence, and that this would be contrary to Y’s best interests
The ICL submitted that parental responsibility for Y could not be effectively shared given the high conflict between the parties and should be allocated to the live-with parent. The reasoning was the same as the basis on which the mother was granted sole parental responsibility as the live with parent in the 2023 Judgment.
The CCE had raised the requirement for therapeutic work to repair Y’s relationship with the mother which had not occurred in the context of the current dispute, and the ICL referred to this. While I agree that it would be in Y’s best interests for both Y and the mother to engage in therapeutic counselling to repair their relationship, I do not consider it appropriate to make an order to that effect.
In terms of school term time, the ICL proposed that the mother would be given the power to determine the weekend Y would spend with her, and to choose a long weekend, to address the mother’s concerns about logistics and planning to ensure that weekend occurs.
The ICL’s proposal for sole parental responsibility for the father effectively mirrored the reasoning behind the mother’s holding sole parental responsibility for the other children. There is no prospect of these parents co-parenting. The ICL submitted that the mother’s suggestion for a dispute resolution mechanism would not only potentially delay decision making about Y’s needs, but lead to more conflict and litigation, all of which would be contrary to Y’s best interests.
The ICL proposed specific communication orders, based on the CCE’s opinion, because of the risk that it might not occur otherwise.
The ICL sought costs of $5,351 from each party within 28 days unless they obtained an exemption from Legal Aid, submitting that the mother is employed as a public servant and can seek a waiver.
The father largely reiterated and adopted the ICL’s submission and adopted the ICL’s proposed orders with the addition of orders around alcohol and passports.
The father submitted Y’s view was strongly held, was not improperly influenced by the father, and that Y had always had a greater affinity with the father based on mutual interests. It was submitted that Y was happy and well living with the father, and doing well at school, noting Y’s school reports at I School suggest she is going well. [29]
[29] Annexure C to the father’s affidavit filed 10 April 2024.
It was submitted that the father had complied with interim orders and had encouraged Y’s relationship with the mother and recognised that picking Y up during her time with the mother had been a mistake. He had offered additional time to promote Y’s relationship with the mother.
The mother submitted that Y’s best interests require her to live with the mother and her siblings, submitting that the risk to the sibling relationship of Y living with the father, which was a significant factor in requiring Y to relocate against her wishes in the 2023 Judgment, remained the same and should be given great weight.
The mother’s submitted that Y’s long-term stability and living arrangements should be settled and be sure and that Y needs to spend more time with her siblings to rebuild those relationships which have been damaged by recent events.
The essence of the mother’s submission was that Y had been manipulated by the father and that, despite being 14 years old, having firmly expressed the same view over an extended period of time, and having physically resisted removal from the father’s residence, the court should nevertheless order Y to change residences against her stated will and despite her actions to date.
The mother raised the concern that if Y stays with the father, then at some stage Z may also be influenced by the father, and or Y, and want to change primary residence. This concern appeared to be a major factor in the mother’s opposition to permitting a change of residence for Y.
The mother also raised the message being sent to Y of being able to defy court orders and obtain her own way, and the need to learn the lesson that everyone has to comply with the rules and in particular court orders. She also raised the need for Y to have counselling, her ongoing concerns about the father’s alcohol consumption, particularly where he seeks a variation of orders.
DECISION AND FINDINGS SUMMARY
The 2023 Judgment and final orders allocated sole parental responsibility to the mother, on the basis that these parents are unable to co-parent, and that it was not in the children’s best interests for the parents to attempt to share parental responsibility. The evidence in this trial merely reinforced that fact.
I find that there is no possibility of the parents effectively co-parenting Y given the long-term hostility between them. I find that sole parental responsibility must reside with the live with parent. In Y’s case that will now be the father.
The time Y will spend with the mother is largely determined by the physical distance between the parties and issues of reasonable practicability. Even if there were equal shared parental responsibility it would not be reasonably practicable for Y to spend equal time, or substantial and significant time, with the non-live-with-parent, in the same way and for the same reasons that is not practical for Y’s sisters to spend much school term time with the father.
The ICL’s proposal adopted by the father is reasonably practicable and will allow Y to spend time with and maintain, or rebuild, her relationship with the mother and her siblings.
I find that Y’s views are genuinely and firmly held and that it is likely that Y will continue to refuse to voluntarily comply with any order to relocate. I find that she has the maturity to know her own mind and, though I cannot exclude the father having influenced her, that there are rational reasons, as discussed in the 2023 Judgment, why she might prefer to live with the father.
I find that Y would be highly distressed by a further order that she live with the mother. I find that the mother has limited capacity to engage in an empathetic way with Y’s views. I find that requiring Y to relocate to live with the mother would create a real risk of psychological harm as described in oral evidence by the CCE.
I also find there is a small but real risk Y would abscond from the mother’s residence, and if she was concerned the father might reject her or the court again enforce the orders, a risk that she might become a runaway placing herself at risk of grave physical and psychological harm.
The paramount consideration is Y’s best interests (s 60CA and s 65AA) taking into consideration the factors set out in s 60CC.
The two primary considerations are firstly the need to protect Y from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to Y of having a meaningful relationship with both parents.
I am satisfied that Y is not at risk of physical or psychological harm in the father’s primary care, but that she is at risk of psychological harm if again ordered to relocate to live with the mother against her will.
The mother does not intend Y any psychological harm, but that this is nevertheless a risk of forced relocations against Y’s will, particularly given the parlous nature of Y’s relationship with the mother and the mother’s limited capacity to accept the legitimacy of Y’s views which is likely to exacerbate their conflict and Y’s psychological trauma.
I also find that there is a risk to Y, as the CCE identified in oral evidence, of emotional and psychological harm as a result of the ongoing and entrenched parental dispute, which must be reduced so far as possible.
As the CCE said in oral evidence, continuing to expose Y to high levels of conflict creates real risks of Y disengaging, of suffering significant mental health issues such as depression and anxiety, developing a propensity for risk taking behaviours such as engaging with illicit drugs, and the range of other adverse and potentially persistent long-term consequences associated with poor adolescent mental health.
That risk is not trivial and, whilst it is likely to continue in the father’s household given Y’s conflict with the mother, I find the risk is higher if Y is ordered to live with the mother as the father is less likely to expose Y to the conflict. While the orders I will make cannot completely protect Y from this risk, particularly given the mother’s ongoing antipathy towards the father and refusal to acknowledge that Y may genuinely hold a different view of the father to her own, an order for Y to live with the father is the order most likely to minimise the risk of psychological harm to Y from the ongoing conflict.
While I considered, on balance, that it was in Y’s best interests to relocate so that she lived with the mother and her siblings, and so previously made that final order, the further circumstances resulting from Y’s refusal to relocate, which was always a risk, mean that I now consider the greater risk to Y comes from trying to compel her to relocate against her wishes.
I have considered the additional statutory considerations. Y’s views, age and maturity and level of understanding weigh, in my view, to making orders consistent with her wishes. I do not consider it appropriate, however, to make the order proposed by the mother that would allow Y to live with whichever parents she chooses as I find that would be likely to put Y in a position where she would be the subject of the mother’s efforts to persuade her to change her mind, which would increase the risks of psychological harm to Y when in the mother’s care and would not be in Y’s best interests.
The nature of Y’s relationship with each of the parents is discussed elsewhere. Her relationship with the mother is strained and requires therapeutic work. There do not appear to be any significant issues in her relationship with the father.
I urge the parties to consider working together to obtain counselling to assist Y. However, unless and until the mother can recognise and accept the validity of Y’s decision to reside with the father, it seems unlikely that relationship will be repaired. Accordingly, I urge the mother to consider undertaking counselling too. These are not matters for orders.
Y’s sibling relationships have been damaged by this conflict, but hopefully will be able to be repaired in due course. I find that forcing Y to relocate against her wishes is likely to harm, rather than progress, the process of repairing the sibling relationships as it is likely to harm Y’s psychological wellbeing and Y may also resent her siblings.
Each parent has engaged in and taken the opportunity available to participate in decision making, and to spend time with and communicate with Y, limited only by geographic and court ordered circumstances, and have maintained Y appropriately.
The likely effect on Y of being required to relocate away from the father to live with the mother and her siblings is likely to be psychologically damaging. I find that Y’s relationship with the mother is likely to have more chance of repair if her wishes are respected. I find that her relationships with her siblings are likely to be better if Y is not forced to relocate against her will. The orders proposed by the ICL make adequate arrangements to allow Y to spend time with X and Z through school holidays, and with the mother and W in part of each school holiday, in order to rebuild those relationships over time.
There are real issues of practical difficulty and expense of Y spending time with the mother and her siblings during school term time given the geographic separation, for the same reasons as explained and explored in the 2023 Judgment. This is a factor that arises in such a geographically large country and especially given the two regional locations the parents live in.
Nevertheless, as with the 2023 Judgment orders, it is possible for there to be sufficient time between Y and the mother and W, and by co-ordinating Y’s holiday time with X’s and Z’s holiday times with the other girls, to allow Y to maintain a meaningful relationship with her siblings, and with the mother if that relationship can be repaired with counselling assistance.
I find that the father has the capacity to provide for Y’s needs, including her emotional and intellectual needs, and that the mother has the capacity to provide for Y’s needs other than Y’s emotional and psychological needs. The mother’s inability to accept that Y may genuinely have a different view of the father to hers, and that Y may genuinely want to live with the father, has negatively impaired the mother’s capacity to provide for Y’s emotional and psychological needs. Unless and until the mother addresses this deficit the chances of a substantial repair of their relationship is limited.
I have taken into account Y’s maturity, sex, lifestyle and background, including lifestyle, culture and traditions as discussed in both the 2023 Judgment and elsewhere here, to the extent relevant. Y is 14. While still not a mature adult, she has attained a sufficient age that she knows her mind and has the capacity to act on her wishes. She is of an age where her views cannot be ignored and must be given significant weight.
There is no issue with either parent’s attitude to Y and they both seek to take responsibility for her care.
The issues of family violence, family violence orders and s 60CG are addressed more fully in the 2023 Judgment and I have that discussion and those findings in mind now. I have considered this is also a significant factor, given my findings concerning the father’s alcohol consumption, however, overall, I consider Y’s best interests require the orders I make, noting the father appears to have addressed his drinking and related family violence behaviours and that I do take this into account as one factor in the weighing process.
I am satisfied that the proposed orders are those least likely to result in further litigation. I have real doubts whether Y would comply with an order to relocate which she has previously refused to comply with. Consequently, the likelihood is that the parents would again need to return if such an order was made.
Similarly, shared parental responsibility is likely to lead to conflict and a real possibility that not only will Y’s needs not be addressed in a timely fashion, but that ultimately the parent’s would eventually end up back before the Court over one issue or another.
I consider the mother’s proposal, to the extent it anticipates further potential court involvement and interviews by a Court Child Expert, to not be in Y’s best interests.
ORDERS
I am comfortably satisfied that it is in the best interests of Y to make an order that gives effect to her wish to live with the father and that the father exercise sole parental responsibility with the proposed obligation of consultation, as well as other orders largely in line with those proposed by the ICL and supported by the father.
Y is to spend time with the mother one weekend each school term, with the mother having the choice of weekend including a long weekend. To facilitate this time Y is to fly, the parties to again share the cost. Y will spend half school holidays with each parent so that they align with X and Z, with changeover at McDonalds Suburb QQ as agreed. I will make a host of definitional orders to avoid confusion and communication orders to ensure communication occurs, in particular with the mother.
Otherwise, the 2023 final orders shall continue subject to a variation of the alcohol order [48], as outlined elsewhere, and a change to the passport orders at [50]-[51] so that the father, as the primary live with parent, shall hold the passport but otherwise the final orders from order [37] onwards shall apply.
The ICL made an application for costs in the sum of $5,351.50 from each party.[30]
[30] ICL Costs Notice (MFI 6).
Section 117 sets out the relevant factors especially at (2A) and (4) and (5). Generally, parents who can afford to pay should be equally responsible for the costs of a child representative so that the cost does not fall to the public purse and noting the limited resource must be allocated amongst many parties for the benefit of children, including those children whose parents are impecunious.
The father did not oppose this order and that was appropriate.
In relation to the mother, she is employed full time as a public servant, but carries a heavy financial burden in caring for the children, two of whom have high needs. On balance, despite my concerns that the mother has conducted a case with little prospect of success, in these all of the circumstances and in particular given the high needs of W and X, I do not consider it appropriate to order the mother to pay the ICL’s costs.
Those are my reasons.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 4 March 2025
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