Beckford & Beckford (No 2)
[2021] FedCFamC2F 657
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beckford & Beckford (No 2) [2021] FedCFamC2F 657
File number: MLC 8078 of 2020 Judgment of: JUDGE CARTER Date of judgment: 19 November 2021 Catchwords: FAMILY LAW – Recovery order application following final orders – whether the children are at risk in the mother’s care – parental responsibility – non-compliance with orders – ongoing parental acrimony – children’s involvement in parental conflict – children’s wishes – where the children have been withheld by the father –best interests of the children – orders made. Legislation: Family Law Act 1975 (Cth), s.60CC
Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (Cth), rr.1.31, 11.75
Division: Division 2 Family Law Number of paragraphs: 63 Date of hearing: 19 November 2021 Place: Melbourne Counsel for the Applicant: Dr Renata Alexander Solicitor for the Applicant: Women’s Legal Service Victoria The Respondent: In person Counsel for the Independent Children's Lawyer: Mr Stragen Foo Solicitor for the Independent Children's Lawyer: VM Family Lawyers ORDERS
MLC 8078 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BECKFORD
Applicant
AND: MR BECKFORD
Respondent
ORDER MADE BY:
JUDGE CARTER
DATE OF ORDER:
19 NOVEMBER 2021
THE COURT ORDERS BY CONSENT THAT:
1.Order 15 of the orders dated 15 October 2021 be varied to provide that the costs of the non-reportable family therapy with Ms J be at the father’s sole expense.
THE COURT FURTHER ORDERS THAT:
2.The father return the children Y born in 2010 and Z born in 2014 (“the children”) to the mother's house by 4:15pm on this day.
3.In the event that the father fails to return the children then a Recovery Order will lay issue in the Registry in the usual terms for the recovery of the children.
4.The children’s time and communication pursuant to Orders 7, 8, 10 and 12 of the orders dated 15 October 2021 be suspended, with such time and communication to resume at the commencement of the new school year in 2022, in the same pattern that would have been in place had there been no such period of suspension.
5.Pending the resumption of the children’s time and communication with the father at the commencement of the school year in 2022, the father is hereby restrained from communicating with or spending time with the children, unless otherwise agreed in writing between the parties.
6.The father forthwith ensure the children’s school uniforms, books, laptops and bags be returned to the mother together with the children.
7.The father, his servants and agents are hereby restrained from removing the children from the mother’s care, or from G School without her prior written consent.
8.All extant applications be dismissed.
AND THE COURT NOTES THAT:
A.In the event that further initiating applications are issued, consideration be given to the matter being transferred to Division 1 of the Federal Circuit and Family Court of Australia, in light of the complexity of the matter and significant court time it will need.
B.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 a pseudonym Beckford & Beckford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTER
REVISED FROM TRANSCRIPT
This is an application by the mother which was filed on 11 November 2021 seeking the recovery of the children, Y and Z, aged 11 and 7 respectively.
There are three children of the relationship. X, the oldest child currently lives with the mother and has remained in her care for some time now. The current application before me deals only with the two younger children, Y and Z.
The father opposes the recovery order. By way of a Response to an Application in a Case that he filed yesterday, he seeks a raft of orders, including sole parental responsibility, that the children remain in his care and that they spend professionally supervised time with the mother.
The father said that the mother’s application is deficient. Counsel for the Independent Children’s Lawyer pointed out that rule 11.75 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) provides that:
A person may apply for an order to which this Division applies:
(a) if there is a current proceeding before the court—by filing an Application in a Proceeding supported by an affidavit; or
(b) in any other case—by filing an Initiating Application (Family Law).
It is quite clear that there is no application on foot, other than what I currently have before me, as I made a final order just a handful of weeks ago. Whilst it does appear that the mother’s application is deficient, as she has filed an application in a case only, and not an initiating application, I note that prior to the court’s merger it was not unusual for a recovery order to have been brought in this way. I note, more importantly and more relevantly, that rule 1.31 of the Rules provides that the court may, in the interest of justice, dispense with compliance or full compliance with any of these Rules at any time.
It seems to me that it is appropriate in this matter to dispense with the Rules, in so far as the mother ought to have filed an Initiating Application. The reality is that it is a contained and discrete application that she seeks, effectively for the enforcement of the orders that were made just a number of weeks ago on 15 October 2021. Those orders provide for a number of things, including that the children were to live with the mother. The orders further provide for the children to spend time with their father on alternate weekends and for school holidays. The proceedings before me went over a number of days. It was the father’s proposal that he and all three children if practicable, but at least the younger two children, should relocate with him to Cairns, which is where he says he now resides.
The judgment I delivered was regrettably quite lengthy. There is a significant history in this matter. There were multiple allegations and counter allegations of abuse, family violence and poor parenting. It is plain that these children have been exposed to a toxic parental relationship over a number of years.
The background and the history of the dispute and the chronology of events was set out in detail in my reasons for judgment. I will not traverse those matters again here. Unfortunately, neither parent appears to have reflected on the comments and criticisms I made of both of them in the course of those reasons. I note that the father is clearly very dissatisfied with the orders that I made. He has no formal appeal on foot and indeed, is now out of time to file an appeal without leave. He says he has provided evidence that supports that he sought to file an appeal, but he is now out of time to do so. It is a matter for him whether he wishes to proceed with an application for leave out of time.
It is also unfortunate that since those orders were made by me, that Y’s behaviour with the mother, in particular, has continued to be at times problematic. That is a dynamic that was identified in the reasons I gave for judgment. The parties were, under my orders, to engage with Ms J for non-reportable family therapy at the parties’ equal expense. The mother says that she has been unable to afford the costs of that therapy. Very much to his credit, the father had indicated today that he is amenable to the final orders being varied to provide that he will meet the costs of that family therapy. That is very commendable as it is quite clear that the family needs family therapy.
Regrettably, and notwithstanding the orders that I made restraining the parties from recording the children, Y has now apparently commenced recording her mother. The father has attained some of those recordings from Y and included transcripts of those in the affidavit upon which he relies for today’s proceedings. I have serious concerns about Y remaining so embroiled in her parents’ dispute that she is now recording her mother and providing those recordings to the father. The father tells me today that he has told Y that she is not to record her mother, however, he did not depose to that. As observed, he has sought to use those recordings as evidence against the mother in these proceedings.
It is quite clear from those recordings and again, regrettably, that the mother has not been able to reflect on her behaviours regarding denigrating the father and his partner. Her ongoing vitriolic and negative commentary about the father and his partner, and now his partner’s child, to her friend but within the children’s hearing is wholly unacceptable. It must be difficult and uncomfortable for the children to hear. I remain deeply troubled that she cannot apparently control herself in this regard.
As indicated, Y’s behaviour in particular has continued to be somewhat unsettled in the mother’s care. The parties do not agree as to the causes for that difficult and unsettled behaviour. As best as I can tell, what is agreed is that there was a dispute between the mother and Y on the afternoon or evening on 2 November 2021. There is a dispute as to what that was about. The mother says it was about Y’s iPad usage. The father says that his understanding is that it was the result of there being ongoing Intervention Order proceedings and the mother’s unhappiness about that.
According to what the mother says, and what the children appear to have reported to the Department of Families, Fairness and Housing (“Department”), is that there was an argument about the iPad. The mother says this argument occurred at a time Y should have been getting ready for bed. There was a physical altercation, ultimately, between Y and her mother. The Mother says that Y broke some statuettes and various trinkets in her house and there was a tussle between them. There is a dispute as to precisely what happened, with Y and her father asserting she was assaulted by the mother and by the mother’s friend who had come over. He says Y was physically restrained by the mother and her friend and threatened with being hit with a glass object. Y says that she suffered pain and injury after that incident.
The mother acknowledges that there was a physical altercation and that it was over the child’s backpack. The mother says that Y had indeed pushed her and had thrown her phone, but she denies the extent of the altercation. Further, the mother denies there having been an assault or threats to assault Y by her or her friend.
X was interviewed by the Department and she somewhat corroborated the mother’s version of the altercation.
Y then apparently ran away from the mother’s care in the early hours of the morning. She was picked up by strangers to the family who were then able to contact the father. I understand that occurred at about 2.30 am. Ultimately, Y was provided to the father’s brother and the police were involved. From the father’s material, and as best as I can understand it, it seems that although he was aware that Y had been picked up by some people unknown to her at 2.30 am, he says that he informed the mother at 3.01 am that she had been located. I am not quite sure why there would have been that half hour delay.
At any rate, what is common ground is that since that time Y has remained in her father’s care, and the father has refused to return Y to the mother. Y did not attend school on 4 November 2021, and indeed, has not returned to the physical classroom since being retained by the father. It was the children’s weekend with the father to commence that afternoon. Pursuant to the orders, Z went into the father’s care. It is common ground that the father has retained Z in his care since that time, and the father did not deliver the children to school on 8 November when they were due to return to the classroom.
It is common ground, as well, that there has been no face-to-face time facilitated by the father for the children to spend time with the mother since being in his care. That is similar to a situation that occurred earlier this year when the father retained Y, and again, did not during that period of retention make her available to spend time with the mother. The father has offered some communication between the children and the mother. He offered a phone call and suggested such communication could occur on 9 November 2021 at 6.00 pm. The mother, in the flurry of correspondence between the parties, said that she wanted to speak to the children at 4.00 pm on 8 November 2021, but apparently that does not seem to have been facilitated.
The father has also offered that the mother could have some supervised time at a supervised contact centre. That was an offer he made on or about 12 November 2021. However, it is apparent from the questions that I put to the father today, that he had made no enquiries as to which centre could potentially accommodate the family, where that centre might be, what cost that might be to the family, or whether there was any availability. I note that the father says he has also offered video communication each Wednesday. For whatever reason, that has not occurred either. Since the children were retained by the father, the mother has repeatedly requested their return in accordance with the orders and the father has not, as is apparent, complied with those requests.
On 10 November 2021, the father applied to the Magistrates Court to vary the existing Intervention Order that he has in place for the protection of the children, essentially so that he could retain the children through that mechanism. I was told today that the application was listed before the Magistrates Court, I believe, two days ago, and from what I was told my understanding was that the father sought to proceed on an ex parte basis. There is some dispute as to whether or not a Magistrate was informed of the Court orders that were made by me just last month. If it is correct that the father did not tell the Magistrate about that, then that would of course be very troubling. I understand that ultimately, the Magistrate declined to hear the variation application, and that has been adjourned to a date in February, 2022.
In his material, the father says that the Victorian Police have been involved with the family since the orders were made by me. He says that it is his understanding that the mother is going to be charged with breaches of the Intervention Order he had obtained back in August in relation to, he says, the assaults on Y. He also says that the actions of the mother’s friend on that evening are under investigation by Victoria Police. In his material, he refers to Y having provided a Video and Audio Recorded Evidence (“VARE”) statement.
Additionally, the father deposed that the police are considering charging the mother in relation to the incident that occurred in July 2021. That incident was referred to at length in my reasons for judgment. The mother instructs through her counsel, that she has not been interviewed by police. There is no evidence before me that any charges have at this stage been laid. I am unclear as to whether or not they will be.
Whilst the children have been with the father, he has facilitated Y attending upon Ms K, who is her psychologist. It appears that she has liaised with the Department regarding her concerns about what has been going on for the children. Whilst the children have been with the father, and notwithstanding the order that the mother have sole parental responsibility for medical issues regarding the children, he has taken Y to a psychiatrist. He told the Court today that he informed the mother before making that appointment, but that is denied by the mother. The only correspondence or communication that he has attached to his lengthy affidavit about the psychiatric appointment, that he sent to the mother, is one that was clearly sent after that appointment. It refers to Y having been prescribed medication by the psychiatrist for sleeping issues. My understanding is that what the father says is that the child has been prescribed some melatonin.
It is common ground that the children have not attended school since they have been retained by the father. He says that has partly been because they are worried and stressed, and he says that he is concerned about their safety if he sends the children. I assume he means that the mother could attend at the school and collect the children pursuant to the orders. The father says he has arranged for the children to do home schooling whilst in his care. I understand that at least for a period of the time that the children have been in his care, that there has been positive COVID-19 cases at the children’s primary school, which has resulted in shutdowns or some form of restriction on children’s attendance. It remains unclear as to when the school shutdown took effect, or whether or not the children were close contacts. At any rate, the father says that the school will be reopening for all children as of Monday.
It is, as I said, clear that Y and Z have not been physically attending school since being retained by their father. It is obviously deeply regrettable that the children have yet again missed out on the limited opportunities that they will have had this year to physically attend school and interact with their peers and playmates.
Before me today, the father remains, as he was at trial, firmly of the view that the mother is a significant risk to the children, that she provides an unsafe environment for them, that she has threatened the children, that she has serious deficits in her parenting ability, and that the children are stressed, unsafe, and highly anxious in her care. He says he remains very concerned about the children’s wellbeing and safety if they are to be returned to, or remain in her care.
During the course of submissions today the father said that if I make orders for the return of the children he will appeal those orders. He did not indicate that he would comply with any orders I make, including if I make the orders for the return of the children. Regrettably, that would mean that if I do determine that orders should be made for their return, it would once again involve the police. It is particularly troubling that the father would again seemingly prefer to allow the police to effect the recovery of the children rather than him attending to that himself, notwithstanding that he must be highly aware of how traumatic the recovery order must have been for the children in November 2020. That raises serious concerns about his level of insight.
The Department have once again been involved with the family. I have had the benefit of a letter from them dated 18 November 2021 released just yesterday. They set out, in that letter, the lengthy history of their involvement with the family. Prior to the current report, the most recent report was received by them in October 2021. That involvement was closed after an investigation with Child Protection, assessing that there were no immediate protective concerns for the children in either parent’s care. The current report was triggered as a result of the incidents of 2 and 3 November 2021.
Child Protection interviewed Y and she told the Department, notwithstanding what Mr Beckford says about the dispute relating to the intervention order proceeding, that the mother had wanted to look through her computer. Y did not want her mother to do so. Y reported she had been physically pinned down by her mother and her mother’s friend; that she was held, that her hand was against her face and mouth; and that she was leaned on. She says her mother’s friend threatened to hit her with a glass object. Certainly, the description that Y gives is deeply troubling. Y told Child Protection that she felt unsafe and scared in her mother’s care and did not want to return to live with her. Z said that she saw the incident and said that X was in her bedroom. She also said that she wanted to live with her father, and she did not appear, at that time, to want to have any overnight stay with her mother.
X was also interviewed. She said that the incident was provoked, essentially by Y being disrespectful towards her mother, that she was refusing to have a shower and that she was swearing at her mother. X said that Y threw various items around the room and smashed some objects. She said that there was no pinning down of Y by her face, as she had described, and she said that she had only seen her mother put her hand on Y’s knee to hold her down. She said she did not see her mother’s friend raise any objects towards Y.
The mother was also was interviewed. She denied the events as described by Y, that she had put her hand on Y’s mouth or face. She also denied that her friend raised an object. The mother described Y as being disrespectful at times and not listening to instructions.
The Department note that the incident is concerning, which is unarguable. The Department says the dispute appeared to stem from Y not wanting to reside in her mother’s care, and feeling that her views and her wishes about wanting to live with her father were not being taken properly into account. The Department noted that the mother struggles with boundary setting and can struggle at times to manage Y’s behaviour when she does not listen. None of that is new. These were issues that were well and truly canvassed in the proceedings before me, and were part of the matters that were dealt with in my reasons for judgment.
The Department in their letter wrote further that they have concerns about the ongoing parental acrimony and their children’s involvement in their conflict. They observed, as I did in my reasons, that the parental conflict and the children’s ongoing exposure to that would most likely have an ongoing impact on the children’s mental health.
The Department noted that they have assessed the children as not being at significant risk of harm in either parent’s care. However, Child Protection do say that they have concerns about the impact on Y’s mental health if she is required to live with her mother against her wishes and that in light of the escalating behaviours it could result in Y’s relationship with her mother breaking down further.
The Department recommended that the children’s wishes should be honoured. I note they have not issued a protection application. They have not sought to intervene in today’s proceedings, and no one from the Department has sought to appear today as amicus curiae or otherwise.
Before me today, the mother and the Independent Children’s Lawyer urged that there be a recovery order made, and that the children’s time with their father over the remainder of this year and the long summer holidays be suspended. They say this is a significant – even draconian step. However, they say it is necessary to give the children a respite from the conflict and an opportunity to settle in the mother’s care, free from the father’s influence.
I note that there was a period when the children had no time or communication with the father, when they were initially placed in the mother’s care in November 2020, and they did not resume having time with the father until, as best as I understand it, February 2021. According to the findings that I made in the reasons that I delivered last month, in that period between November 2020 and February 2021, when the children were with the mother and did not have time with the father, it appears that that was a period of relative calm. However, following the children’s resumption of time with the father, there was an altercation between Y and the mother on 16 February 2021. Further, there have been a number of other altercations between them and again, they were all set out in detail in my reasons and traversed in the final hearing before me.
As I said, both counsel for the Independent Children’s Lawyer and for the mother say it is necessary to take a significant step and suspend time. They submit that whilst it may be distressing in the short term for Y and Z not to see their father, in the longer term that will give them the respite from the conflict and the opportunity to settle in their mother’s care that they so desperately need.
The father strongly opposes any suspension of time. Essentially, he says that would be utterly devastating for the children and unsafe for them.
This is effectively an interim hearing, and I cannot make findings of fact about the most recent incident, but I have set out what is agreed about the events that has occurred in the relatively short time since judgment delivery.
I have identified the parties’ competing proposals, and the issues in dispute are essentially:
(a)whether Y and Z are at risk in their mother’s care such that they should be immediately placed with their father; or
(b)whether they should be allowed to remain with their father, and spend only professionally supervised time with the mother.
The issues include what weight I should attach to Y’s views at 11 years of age, and Z’s views at seven years of age, that they want to live with their father, given all the circumstances. Alternatively, whether or not the children should be immediately returned to the mother’s care, and if so, should time then be suspended effectively over the next two months.
I note that the father in his response seeks that all orders made on 15 October 2021 be suspended. He also seeks an order that he have sole parental responsibility for the children. That issue was dealt with comprehensively in my reasons for judgment delivered last month. It does not seem to me that there is a basis to vary the order I made regarding the allocation of parental responsibility at this time as I am not, for the reasons to which I will now turn, minded to make the orders sought by the father and change residence.
In coming to that determination, I am obliged to consider the multitude of factors set out in s 60CC of the Family Law Act 1975 (Cth). That includes the two primary and multiple additional considerations. As I have already said, the real crux for today is whether the children are at risk in the mother’s care, such that they should not be returned to her. As already indicated, this is an interim hearing, and there is no testing of the evidence as to what actually happened on the night and afternoon of 2 and 3 November 2021. That does not mean that I am required to ignore the allegations of risk and violence if plausibly made simply because they are denied.
It is certainly very troubling that Y ran away from the mother in the middle of the night. It is also very troubling that the father did not return her and, indeed, has subsequently collected and then retained Z. Notwithstanding the father’s ongoing complaints about the mother’s parenting and his insistence that she is a risk to the children, I note that Child Protection, in their very recently concluded investigation, have once again determined that the children are not at significant risk of harm in the care of either parent.
The father’s case at trial focused on risk issues and I made findings in relation to those matters, and as observed, those orders have not been appealed at this time. It is in my view, not appropriate for the father to effectively use the mother’s Recovery Order application as a mechanism for him to now agitate again for the primary care of the children. If he is dissatisfied with my orders, as he quite clearly is, he needs to appeal those orders. He is now out of time to do so, and he can seek leave to have time extended if he wishes to do so. It is not open to him to decide to contravene the orders and retain the children because he disagrees with what has been ordered.
Y’s defiant and difficult behaviour is troubling, and it is quite clear that the mother continues to struggle to manage that behaviour. However, I am not satisfied on the evidence that is currently before me that Y or Z are at such risk in the care of the mother to the extent that an immediate change of residence is required.
As observed, it is of course, very troubling that Y has run away from the mother, and that certainly does place her at risk. I do take that into account. The father says before me that he has told Y she is not to do that.
As Child Protection has observed, and as is plain from my judgment, the greatest risk of harm to these children arises from the complete failure by each of their parents to shield them from the conflict and their wholly dysfunctional parental relationship.
It is, as I have already said, deeply disappointing that the mother continues to denigrate the father and his partner and her child in the presence and hearing of the children. It is unacceptable and extremely damaging to the children and to her relationship with them. She needs to immediately address these serious deficits with her parenting. I am also troubled that the mother has not returned to her counsellor and the orders I made for the children to reside with the mother were made dependent upon her continuing to engage with the mental health treaters. That must be immediately addressed.
In terms of the second primary consideration, I have taken into account the benefit to the children of having a meaningful relationship with both of their parents. Again, that was a matter that was dealt with extensively in my reasons for judgment.
Ultimately, I determined the father was less likely than the mother to promote and facilitate Y’s relationship with the other parent. I am deeply troubled that in the last two weeks when the children have been in the father’s care there has once again been no face to face time arranged. I have already said that this was similar to the situation when Y was retained earlier in the year. There is of course, also the significant history in this matter where there was no face to face time between the children the mother from March until November last year following the father’s unilateral removal of the children from the state of Victoria.
The father’s proposal today for supervised time is also troubling. It is not supported by the Child Protection report. Whilst the father makes the proposal for professionally supervised time, he has made no enquiries at all in relation to what services are available, whether they could assist, or the costs associated. That is, his complete failure to make any enquiries about those services undermines his assertion that he would genuinely support a relationship between the children and their mother if they were to remain in his care.
On the other hand, the mother’s proposal to suspend time for the next month or two, at first blush, could be considered to fly in the face of the consideration that the children will benefit from having a relationship with their father. However, it seems to me that it is an unfortunate but necessary step to be taken to ensure that the children have the benefit of a meaningful relationship with their mother. Unless such a step is taken and the children have the opportunity to have uninterrupted time with their mother and a respite from moving between two warring households, the children’s relationship with their mother, in my view, is at risk of becoming further undermined.
In my view, a suspension of time will provide the children with some stability in the mother’s care in the next couple of months so that they can settle and readjust.
In relation to the additional s 60CC considerations, of course, they were all extensively canvassed in my reasons for judgment. In relation to the children’s views, I note that Y is clearly expressing a view that she wants to live with her father. However, she is 11 years old and her views are not determinative of the matter. I note further the content of the interview that the Independent Children’s Lawyer had very recently with Y, in which the Independent Children’s Lawyer reported that Y said she does feel very stressed, very unsafe and anxious around her mother.
However, I note that Y’s views have been changing across the course of these proceedings. To the Family Consultant when the family report was prepared, Y did not express a preference as to whether she lived with her mother or father, but she was very clear she wanted to be the one that made the decision. To the Independent Children’s Lawyer in July 2021, she said she was happier with her father and she had a feeling that she wanted to stay with the father. She also told the Independent Children’s Lawyer she wanted to see both parents as much as possible. Again, Y said she wanted to be the one who made the decision as to who she lives with and who she spends time with. To Ms J, the family therapist, she said she wanted to live with her father, but notably did not express any concerns about being in her mother’s house, and said there was nothing else wrong in the mother’s house, but she just did not want to live there.
It is notable that in my judgment I expressed concern that Y’s reports to the various independent professionals did not corroborate the high level of distress, trauma and anxiety that the father asserted that Y experiences when with the mother. For the first time, now we have Y apparently telling the Independent Children’s Lawyer that she does feel stressed, unsafe and anxious in the mother’s care. I note, though, through counsel, that it was reported that the Independent Children’s Lawyer asserted that Y did not appear to be upset or distressed when speaking about her mother and her views about her mother. Y was described as being calm when spoken to. The Independent Children’s Lawyer has some concerns that Y was potentially using language that reflected language that was used by the father.
The father strenuously denies that he or any member of his family have influenced or coached Y. However, given the history of this matter, and the level of parental conflict and Y’s embroilment in it, I cannot discount that Y may have been influenced, even if that has not been done so deliberately.
In terms of Z’s views at seven, it is evident that not much weight can be given to that. I note that the basis for her views was not explored in any meaningful sense by Child Protection.
My reasons for judgment dealt extensively with the three children’s relationship with each of their parents, their siblings, with other people, with the effect of any changes in their circumstances, the capacity or incapacity of the parents to meet the children’s needs, and the raft of other considerations that I am required to take into account. There was little additional evidence in relation to those matters before me now beyond what I set out in the reasons for judgment, and the matters that I have already canvassed in these reasons. The issues, as I said, between Y and the mother are not new, and the parties’ flaws and failings as parents were canvassed before me and dealt with in detail in my reasons for judgment.
I do note in relation to financial support that there is some indication that the father is in arrears of child support of about $8000 now. I understand that the father says that figure is in dispute and he is currently, I understand, on a payment plan. The mother says that he has paid no child support since the start of the year. The father acknowledged to the court today that he is not currently paying any child support. However, as I said, and very much to his credit, he has said that he will meet the costs of family therapy.
Doing the best I can and balancing the competing considerations, I am satisfied the children’s best interests will be met by them being immediately returned to their mother’s care, and that the father’s time and communication with the children should be suspended until the start of the school term next year.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carter. Associate:
Dated: 24 December 2021
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