BENSON & HIGGINS

[2019] FamCA 331

FAMILY COURT OF AUSTRALIA

BENSON & HIGGINS [2019] FamCA 331

FAMILY LAW – CHILDREN – Parenting – Contravention – Where orders were made after trial for the child to spend time with her father – Where the father alleges the mother contravened the orders – Where the mother submitted that the child’s experiences whilst in the father’s care were the reason for her contraventions – Where the mother had a reasonable excuse for contravening the orders – Where the parenting orders in place are varied to not require the child to spend time with her father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Benson

RESPONDENT: Ms Higgins

FILE NUMBER: BRC 10827 of 2007

DATE DELIVERED: 15 January 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 6 December 2018 and 15 January 2019

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

Orders

IT IS ORDERED

1. That the Contravention Applications filed 8 November and 22 November 2018 be dismissed.

IT IS FURTHER ORDERED

1. That paragraph 3 of the Orders made 14 September 2016 be varied to read:

   That the child shall spend time with the father as may be agreed between the mother and the father.

2. That paragraph 4 of the Orders made 14 September 2016 be discharged.

3. That paragraph 13 of the Orders made 14 September 2016 be varied to read:

   That the mother shall keep the father informed of her telephone number and postal address and will notify him immediately of any change to her telephone number and postal address.

4. That the father shall remain at liberty to send text messages to the child through the mother’s telephone number and he shall be at liberty to send letters, cards and presents to the child through the mother’s postal address that she provides him with from time to time, and the mother shall ensure that all such messages, letters, cards and presents are passed on to the child when received. 

5. That the mother shall also keep the child informed as to her right to contact her father to either speak with him or spend some time with him as she may choose, with the mother to facilitate that, if and when the child makes such request.

IT IS FURTHER ORDERED

1. That the Contravention Application filed 8 January 2019 not be listed for hearing, as having regard to the findings in today’s hearing, it would have no reasonable prospects of success.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Higgins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10827 of 2007

Mr Benson

Applicant

And

Ms Higgins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 14 September 2016, I made orders and published Reasons for Judgment in parenting proceedings between these two parties, Ms Higgins and Mr Benson. The parenting dispute between them relates to their only daughter, B, who was born during their marriage in 2003. B turned 15 years of age just last November.

2. The parenting dispute between B’s parents has a long history. It began, at least, at their separation around 2006 when B was only 2 to 3 years old. Final parenting orders were first made by the Court in June 2009 after a trial that took place. Soon after that though, difficulties with compliance emerged and proceedings commenced again.

3. Another trial took place in early 2013, but only interim orders were made by the trial Judge at the conclusion of that hearing. Those orders provided for B to live with her mother, her mother to have sole parental responsibility for her and for B’s time with her father to be supervised. It seems, apparently, that B’s father’s capacity to care for B was compromised to some degree by his health. The Judge who heard the trial was concerned about that, having heard some particular evidence that troubled him significantly. The father has, the evidence satisfies me, suffered from a mild form of medical condition for many years, from even before the time of his marriage to Ms Higgins, the marriage that produced B.

4. Later in 2013, further interim orders were made by another Judge, a visiting Judge, discharging the requirement for B’s time with her father to be supervised and providing for B to continue to spend some time with her father on weekends, but also during school holidays.

5. The matter eventually went to trial before me in 2015. At that trial, the mother wanted to cut B’s time with her father back to one short visit with the father each Saturday morning. The father wanted it increased to entire weekends, in addition to the school holiday time he was already getting.

6. My orders of 2016 provided for B to spend alternate weekends from 9.00 am on Saturday mornings to 5.00 pm on Sunday afternoons with her father and for a week during each school holiday period, including the Christmas holidays.

7. I said in my Reasons for Judgment the following:

   ... the mother has developed a very strong relationship of alignment with the child and … she does little to promote and encourage the child’s relationship with her father. Indeed, I formed the impression that the mother is satisfied to hear information from the child that reinforces her position that the child should not be spending time with her father, such as the information about the food she eats or does not eat when she is with him. I also formed the impression that the mother would most likely do little to try to shape, influence or modify the child’s behaviour in any way that might make things easier or better for B when she is with her father.

8. I also referred to the evidence of the Family Consultant, Ms L, who had reported on the family over a number of years during the proceedings to that point in time. Relevantly, I said:

   The evidence the Family Consultant, Ms [L], gave of her interaction with [B], in my opinion, reinforces my satisfaction that the mother does not assist the process of [B] maintaining a good relationship with her father. When Ms [L] last interviewed [B], it was in 2010 and she was only 10 years old, and Ms [L] reported [B] speaking negatively about her father who she described as “annoying”. The matters [B] is reported to have complained about though, in my assessment, were fairly trivial and apparently blown out of proportion by her. Ms [L] expressed the opinion that they were matters that “essentially derive from differences in [the parents’] parenting styles, with [the mother’s] appearing more flexible”. I formed the impression that Ms [L] also considered the matters complained of to be relatively trivial. She clearly also considered… that [B] is capable of manipulating information and situations out of loyalty to her mother or to simply get what she wants.

   Ms [L] also expressed the opinion that the relationship dynamics between the parents do not assist, as a poor pattern of non-communication between them has developed, and that makes it far more difficult for the mother to contextualise the information that [B] relays to her. Consequently, the mother is more likely to accept it as true, when it may not be.

   Nevertheless, Ms [L] acknowledged that the father and [B] have not shared a close relationship and that there had been “some challenges”. Ms [L] opined, with expressed empathy for the father’s position, that [B] might very well find her father a bit too intense and might seek to distance herself from him.

9. Those words were somewhat prescient. Since I made those final orders in 2016, things have really not improved. The father has brought the matter back before the Court on a couple of occasions alleging the mother was not complying with the orders and facilitating the time between B and him. On one of those occasions, I found the mother had contravened the primary orders and I imposed a monetary fine upon her after she refused to enter into a good behaviour bond. On another occasion, after some discussion between the parties, who have, I add, always appeared without legal representation before me, the father discontinued his contravention application. That was, I seem to recall, only several months before he filed yet another contravention application that brings the matter back. 

10. The matter is now back before the Court on this fresh Contravention Application.

11. This time, difficulties arose in the interaction between the father and B in the September school holidays of 2018. The father had arranged for him and B to have a holiday at Town Q, just over the border in New South Wales – an idyllic holiday location by anyone’s assessment. He had booked and prepaid for accommodation there, accommodation that they had both stayed in together before. B and her father were to travel there and spend several days there from the first weekend of the September/October school holidays, which was during the time that B was to spend with her father pursuant to my 2016 orders.

12. The difficulties arose because the father did not have a car and did not have access to a car. He had an arrangement in place to borrow a car from a friend but he learned on the Wednesday preceding the start of the holidays that he would not be able to use that car. For some reason, he did not have any really suitable alternative plan in place by the time B came into his care on the Saturday of the weekend that started the holidays. Apparently, his first alternative plan was to travel via the rideshare system known as Uber. That is rather curious as I am aware that the father’s employment is casual and he does not have a substantial income or significant financial resources at his disposal. Nevertheless, he was prepared, apparently, to spend a large amount of money on paying for an Uber driver to drive him and B from Brisbane all the way to Town Q on the other side of the border.

13. That plan progressed all the way to the point of him putting all of their possessions that they were going to take to Town Q onto the footpath outside his house in expectation of the arrival, apparently, of the Uber driver. It seems though, at the last minute, the father realised that he did not have the use of his credit card, probably it seems because he had recently exceeded his credit limit, and the plan very quickly changed, quite suddenly. He said that he then made a plan to travel down to Town Q on a 10 seater commercial bus service that would be leaving Brisbane later that day and dropping them near where they needed to be in Town Q.

14. It does not seem to be disputed that B did not like that idea. He said that she made it clear to him that she did not want to travel on public transport but preferred to travel in a taxi. He could not afford that and an impasse quickly developed. B, who was interviewed by a police officer from the Child Protection and Investigation Unit four days later, a subject I shall return to, told the police officer that the father was presenting confused plans around the idea of catching a taxi or a train and she became quite concerned about whether they would actually get there to Town Q in the end and/or whether she might have to walk some of the way.

15. In any event, an impasse developed and disagreement between the father and B took hold. B told the police officer that the father told her to leave his home, opened the door for her and showed her the way out. The father said that he gave B a choice. He said he told her she could either prepare to travel down to Town Q with him or go home to her mother. He accepts that B opted for the latter, to go home to her mother, taking her possessions with her onto the footpath outside his home without further ado and texting her mother to come and collect her.

16. There is no dispute that the father made no effort to persuade her to change her mind. Indeed he took something that she had left behind in the house out to her and set it down beside her on the footpath, saying, he concedes, as he walked back inside, loud enough apparently for B to hear, “I don’t know you and I don’t want to know you like this.”

17. The father watched from the window as B was collected a few minutes later by her mother. That was the last time the father saw B and it is now Tuesday 15 January 2019. From that time on, namely Sunday 23 September 2018, B has not been delivered to the father for any further time in his care in accordance with my orders of 2016.

18. The father’s Contravention Applications (he filed two within a couple of weeks of each other in November last year, within several weeks of the first weekend that B was meant to spend with him that she did not) specifically allege that the mother contravened the primary order by not delivering B to him for the alternate weekends of 13 October, 27 October and 10 November 2018. Just prior to each of those weekends, I accept, he contacted the mother by text asking her to deliver B to him, as required per the orders, at 9:00 am on the Saturday morning. Each time, B was not delivered. There does not seem to be any dispute, having regard to the evidence I have heard today, that each time the father sent a text to the mother asking her to deliver B the next morning, the mother did not even respond with a text message to him telling him she would not and why not.

19. The mother concedes, in answer to the alleged contraventions, that she did not deliver B on those weekends but she asserts that she had a reasonable excuse for not doing so. Her evidence today was that B was so upset about what had happened on the Sunday that she was in an emotionally tumultuous state for about up to eight weeks afterwards. The mother said that she became very concerned for B’s wellbeing after what B had told her had happened on the Sunday, and that that became extenuated even more when on Tuesday 25 September 2018, she received a message from the father in which he was asking if the mother would return B to him for the rest of that holiday week and in return, he would give the mother money to pay for her petrol and also would give B $100 allowance for her to use during the holiday period, or the remainder of it. The mother said that was not something the father had ever offered her before and that she was very concerned this showed a certain level of desperation on the father’s part to get B back into his care. That concerned her greatly she said.

20. Clearly, by that Tuesday, the father had reflected upon his actions and regretted what had happened, particularly the fact that he had made it clear to B that she could return to her mother’s care. In addition, in the meantime, he had ridden his bicycle all the way down to Town Q to stay in the cabin that he had pre-paid for. Just how he was going to have B delivered into his care is not clear to me, save for the suggestion that he would pay the mother $50 for petrol in the text that he sent her, which seems to convey the impression that he was wanting her to deliver B down to him at Town Q, though that is not entirely clear.

21. In any event, the mother did not return the father’s message of Tuesday 25 September 2018. She says, as I have already outlined, that it heightened her concerns for her daughter’s wellbeing having regard to what she perceived as the father’s desperation to get the child back into his care after what had been conveyed to the mother about what had happened on Sunday. 

22. As I have already observed, the mother took B to see the police on Thursday 27 September 2018. B was interviewed by a police officer from the Child Protection and Investigation Unit at the Suburb R Police Station. The interview took 18 minutes. Only B and the police officer were present. It was all recorded onto a CD. The mother, who was not present during the interview, was given a couple of copies of the CD. She tendered one into evidence attached to her affidavit in defence of these contravention proceedings. I, for reasons I do not need to go into at this point, heard it in Chambers first and then heard it in open court. Both parties heard it in Court. Both said it was the first time each had heard it. The interview was voluntarily entered into by B; that much is made clear at its commencement.

23. B sounds quite happy and very relaxed in the interview. That is remarkable, I might just add here, because the mother’s evidence was that B was emotionally extremely traumatised by the experience that she had been through on the Sunday of that week. B is cooperative with the police officer and at no stage displays, at least audibly, any sound of being distressed or traumatised in any way. There is no audible suggestion of emotional turmoil or trauma on her part, even when she carefully explains the events of the previous Sunday.

24. However, the content of the conversation that she had with the police officer was quite concerning. I will not go through it in full detail, suffice to say this:

    ·At the start, it is clear B did not want to give her residential address to the police officer (she must have considered that her father might hear the recording of the interview at some stage);

    ·When asked what she was there to speak to the police about, B said something to the effect of her dad was being mean to her and she wanted it to stop;

    ·B complained to the police officer that on the first day that she spent in her father’s care on the weekend of the holidays, he provided her with no lunch or dinner and that on the next morning he did not want to give her any breakfast;

    ·She complained to the police officer about the type of food that her father offers her whenever she is at his house;

    ·She complained to the police officer that she became very concerned surrounding the plans her father was telling her about in respect of their travel arrangements to Town Q. She told the police officer that she was not sure how she was going to get there and she was not sure if she was going to have to walk, as I have already observed;

    ·She told the police officer that her father started getting angry with her, throwing things around. She said that he started yelling at her. She told the police officer that her father told her he wanted her to leave his home and he opened the door for her. She told the police officer her father said to her at some point during the set of circumstances, “I don’t know you anymore and I don’t think I want to know you”; 

    ·Then she went into some more details about her complaints about the food, conveying an impression that her father never satisfied her preferences or desires in respect of food and never provides her with enough dietary options;

    ·She told the police officer that when she visits her father she normally stays in her room and that she did not want to interact with him because “I don’t want to be there with him”;

    ·She told the police officer when asked questions about the planned trip to Town Q that she does not like going out of Brisbane. She said “I want to be near mum because I feel safer”;

    ·She went on, in this set of circumstances, about the planned trip to Town Q, saying that her father had come in and yelled at her, and he had said things to her like “he has done all this for me”. She said she could not remember all the things he had said to her as she tries to “black them out”. She did not remember exactly what he had said although she did say that he had sworn at her. She said that he was standing in the doorway during this argument and she was sitting on the bed. She said he then came back in a little later and started laughing at her. She said she was crying, he had caused her to cry with this argument and he was laughing at her whilst she was crying. She said he started yelling at her again and then he said to her that he was going to sell all of the furniture in her room. That was when she said he told her that he wanted her to leave, opened the door and she left;

    ·B confirmed to the police officer that her father saw her leaving. She said she was waiting for her mother, the father knew she was going, he saw her texting and she said “I’m pretty sure he saw me leaving with mum from the window”. She told the police officer that she and her father had not spoken since;

    ·The police officer put to her the proposition that she seemed not to like going there at all with which she agreed, she said “no, I don’t”. She said “I wanted to leave and that causes arguments. He has restrained me from leaving”;

    ·When the police officer asked her why she did not like going there, interestingly she reverted to the complaints about the food that her father gave her. She also complained about the fact she believed he did not have much money;

    ·Interestingly, she told the police officer her mum and dad get on okay and that they are pretty fine with each other;

    ·She said her mother normally asks her father before she goes into his care if he has any money and that the father usually tells her that he does, even if he does not;

    ·Towards the very end of the interview the police officer says this to her, “if you never went back to dad’s house, how would you feel?” B responded “that would be great”. The police officer said, surprised apparently, “you hate it that much?” B’s response was “yeah”; 

    ·She confirmed that there had been no physical violence, save for a time when she was restrained from leaving, but then she went on to tell a story about something that had happened when she was less than eight years of age where she asserted that her father had hung her over a balcony because she had spilt paint on a couch at a time when they were staying at a hotel at the beach with his parents.

1. This matter first came before me in December of 2018. On that day it was adjourned because the mother had not been served until a few days prior to the commencement of the proceedings. She requested an adjournment to obtain legal advice. So concerned was I about the circumstances that were said to have happened, having regard to the fact that B had recently turned 15, I made an order for B to be presented to the Child Dispute Services section of the Court. That was arranged and B was brought by her mother to the Court on Wednesday 19 December at 9.00 am. She was interviewed by Family Consultant, Ms M. 

2. Ms M said that:

   [B] presented as a bright, articulate and quietly-spoken young person. She did not appear to have any difficulties in expressing her views and wishes and she was aware these would be shared with the Judge and with her parents.

   …

   During my interview with her, [B] explained:

   ·Her relationship with her father is “complicated” and she does not like some of “the things he does and how he acts”.

   ·She feels they spend a lot of time arguing; she remembers arguing with him “from a young age” and says “I feel like I’ve argued with him as long as I can remember”.

   ·They argue about many things, including the activities the father has arranged for the weekend (her father “deceives” her, for example, by saying they are going shopping and then taking her hiking); food (he usually does not have fresh food in the home and she does not like his canned food and lentils); and money (he’ll say he doesn’t have money to buy food but then she later sees a lot of money in his wallet).

   ·They have “completely different tastes to do with activities”. Her father likes going to the beach, she likes shopping and indoor activities. When they go to the beach, her father swims and snorkels and “I sit and do nothing and it’s not fun”. If she complains about this her father “blames it all on me and my attitudes”. If they do go shopping “the enjoyment doesn’t last long because he’ll find something to argue about”.

   ·She feels her father is “very critical” of her “the whole time” and that he is critical of “my attitudes, my personality, my school work”. 

   ·When they argue, her father becomes angry and yells at her. He sometimes throws items around, but not in her direction. She responds to his anger by crying and her father usually laughs at her when she cries.

   ·Her father will sometimes make a positive comment about her appearance in front of her mother, but this “doesn’t feel genuine” and “he never says anything nice when we are alone”.

   ·When she last saw her father in September, she told him she did not want to go on the trip he had planned for them because she was not sure he was telling her the truth about where they were going and how they were getting there. Her father yelled at her and started to throw his luggage around the living room in anger and she was in her room crying. He opened the door and said “You can leave. I don’t want to see you again until you can make the right decision”. Shortly afterwards he said “I don’t want to know you”. At that point she phoned her mother, asking to be picked up. She has not seen her father since then.

   ·She wants the Judge to know: “Since I haven’t been seeing him, my life is a lot less stressful. Instead, I’ve been spending more time with family and cousins and that’s been nice. I’m just really scared, he’s unpredictable and I don’t know what he’ll do. I get a funny feeling in my stomach when I have to see him.”

   ·With regard to spending time with her father in the future, she says, “It’s not very nice to stay with him and I don’t feel comfortable around him. He’s not a very pleasant person to hang out with. I just don’t want to go with him ever again. I’ve been through enough, it’s time to stop”.

   ·She could not think of anything her father could do or say to her that would change her views about spending time with him at this stage.

   ·She recalls “running away” from her father in a shopping centre on one occasion (security people then stayed with her until her mother arrived with police officers) and climbing out her father’s window and “running away” on another occasion (it was close to the changeover time and she met her mother there).

   ·If she were “forced” to spend time with her father she would “run away”.

   ·In response to my direct questions, B responded that she would not be willing to attend counselling with her father; she now has her own mobile phone but does not want her father to have her number; she does not want her father to phone or text her; she does not want her father to send her gifts or cards on special occasions.

3. Most particularly, I refer back to the points where Ms M says:

   ·She wants the Judge to know: “Since I haven’t been seeing him, my life is a lot less stressful. Instead, I’ve been spending more time with family and cousins and that’s been nice. I’m just really scared, he’s unpredictable and I don’t know what he’ll do. I get a funny feeling in my stomach when I have to see him.”

   ·With regard to spending time with her father in the future, she says, “It’s not very nice to stay with him and I don’t feel comfortable around him. He’s not a very pleasant person to hang out with. I just don’t want to go with him ever again. I’ve been through enough, it’s time to stop”.

   ·She could not think of anything her father could do or say to her that would change her views about spending time with him at this stage.

4. Significantly, she told Ms M that:

   ·    She recalls “running away” from her father in a shopping centre on one occasion … and climbing out her father’s window and “running away” on another occasion …

5. Those are matters of fact that are indeed not in dispute between the mother and father in this case. She said if she were “forced” to spend time with her father, presumably in the future or again, she would “run away”. She said in response to direct questions asked by Ms M she would not be willing to attend counselling with her father, she has her own mobile phone but does not want her father to have her number, she does not want her father to phone or text her and she does not want her father to send her gifts or cards on special occasions.

6. As I have already observed, when the mother gave evidence today, though I encouraged the father to try to ask some direct questions of her in cross-examination going to the issue of what efforts she had made, if any, to get B to go to spend the weekends with her father, the dates of which have already been given, the father was not able to get to any particular questions around that.  The mother gave no evidence of it, but during her submissions I asked her some questions about it and from the bar table, she conceded to the Court that she had not forced B to go on any of those weekends or even try to get her to go having made a decision after the events of the week of the school holidays to respect B’s expressed view that she did not want to go to her father’s any more. She said that she simply decided that she was not going to make her go because she was so concerned about B’s wellbeing in the event of her being made to go in circumstances where she was worried about what was happening between the father and B.

7. Contravention applications like this, like the ones I have dealt with between these parents before, are dealt with under Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”). Section 70NAE under the heading “Meaning of reasonable excuse for contravening an order”, sets out some circumstances in which parents will be taken to have had, for the purposes of the division, a reasonable excuse for contravening. Subsection (1) of the section says this:

   The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but ae not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

8. Section 70NAE(5) says this:

   A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

9. The mother herself acknowledged in her evidence that she should have brought an application to the Court herself to vary the existing orders so that they did not oblige her to send B to spend time with her father any more. She did not really explain to my satisfaction why she had not done that, but one can understand, having regard to the fact the father commenced the contravention proceedings just under a month after the first weekend that the child did not come to him after the holidays, why the mother did not bring her application, knowing the matter would be coming before this Court at some point in time. The mother is quite familiar with contravention proceedings, as I said, having been through some before. She also is seemingly quite familiar with the fact that in contravention proceedings, s 70NBA provides for a variation of parenting orders, whatever the outcome of contravention proceedings, if the Court considers it in the best interests of the child or children for those orders to be varied having regard to all the evidence that has been heard. 

10. This is a really difficult case. I have listened carefully to Mr Benson’s impassioned submissions whereby he asks the Court to accept that really the position espoused by 15 year old B is not one made with a mature, sensible, reasonable approach but rather it is one conditioned to the wants and desires of her mother, conditioned over the last ten years or more of their ongoing parenting dispute litigated in this Court. I also listened to the passionate submissions of the mother whereby she asks the Court yet again to have regard to and have respect for the views given by her daughter, B, this time conveyed to at least two independent professional people: (1) a police officer and (2) a Family Consultant of this Court.

11. As Mr Benson identified and recognised, I have a great deal of empathy for his position, as did Ms L as I said in the earlier part of this judgment. I have seen enough of this case over the years to appreciate and accept that this child has been certainly raised by her mother in a situation where she has not been inculcated with respect for the need to have an ongoing and meaningful relationship with her father as she grows in adulthood. Indeed, as I have already previously acknowledged, I do not consider that her relationship with her father is one that her mother values and that her mother’s feelings about it no doubt have been made clear to B over the years.

12. The father effectively asks me, through his submissions, to reject the mother’s assertion that she had a reasonable excuse for keeping B from him and this means, as I interpret his submission, that I have to really give very little weight to B’s own views expressed not only to her mother but also to the police officer who she spoke with on Thursday 27 September 2018, and Ms M who she spoke with in the Court on 19 December last year.

13. I am, as I have already made clear, somewhat perplexed as to why the mother chose not to communicate with the father in response to his text messages seeking to have the child delivered to him pursuant to the orders in October and early November. She could have simply told him that she was not going to send the child and the reasons why. As I said, I am also more than satisfied that the mother has never truly valued the relationship that the child has with her father or acknowledged that it has any long term benefits for the child. This makes it a very difficult decision for me to make. 

14. Nevertheless, having seen and heard what the child said to the police officer and to Ms M, having heard what the mother says the child told her, having seen the text message that the father sent to the mother on Tuesday of that week, which the mother said accentuated her concern for the wellbeing of her daughter, I am ultimately satisfied that, on the balance of probabilities, the mother makes her case that she does have and did have a reasonable excuse for not sending the child to spend the weekend with her father on those three weekends that the father complains about. This is particularly in light of the fact that the child told the Family Consultant that if she had to go and spend time with her father again, she would run away, just as she has in the past.

15. Any parent, even one in the mother’s position, with the history that this case has, would have some concerns about the prospect of her 15 year old daughter running away from her father’s home when that is in Suburb N and the child and the mother live in Suburb P, some distance apart.

16. I am satisfied in this case that the father has not made out his case that the mother has contravened without reasonable excuse and therefore I dismiss the applications.

17. That leads me onto the question of varying the parenting orders. Section 70NBA(1), as I have said, gives the Court the power to make an order varying the primary order in circumstances such as this where proceedings in relation to the primary order are brought before the Court having jurisdiction under the Act where it is alleged that in those proceedings a person committed a contravention of the primary order and where the Court does not find that the person committed a contravention of the primary order, as I have found in this case.

18. Clearly, I must make a decision in this respect having regard to, pursuant to s 60CA of the Act, the best interests of the child as the paramount consideration. Section 60CC, as the parties have both rightly pointed to, sets out that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). Subsection (2) sets out the primary considerations. They are:

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

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

19. Subsection (2A) of s 60CC says:

    In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

20. What the father concedes he said to the child on Sunday 23 September 2018, amounts, with all due respect to him, in my determination, to emotional abuse of the child. What the child told Ms M the father has said and done over the years also amounts to emotional abuse. I have to say it is not at the worst end of the scale of abuse that I see from time to time in this place. Nevertheless, one cannot avoid the fact, as the mother points to, that there has been some emotional abuse in the relationship between the father and the child, as much as the father might not concede that and might contest it.

21. The need to protect the child from that must be given greater weight than the consideration of the benefit of the child having a meaningful relationship with both of her parents, and I certainly take that into account in making the decision that I do about variation of the orders. 

22. Section 60CC(3) also sets out additional considerations. Firstly and perhaps most importantly in this particular case, or certainly high on the scale of importance is:

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

23. This is followed up very closely by:

    (b)      the nature of the relationship of the child with:

    (i)       each of the child’s parents; …

24. I am satisfied from what I have seen in this case today that B’s relationship with her father is very poor and it has reached rock bottom; it certainly did on 23 September 2018, albeit an incident described by the father as a one-off isolated incident. I say respectfully, having regard to the history, particularly the agreed history of the child having run away on previous occasions from her father’s care, I do not accept that what happened on 23 September 2018, and I say this respectfully, was a one-off isolated incident. 

25. I also want to point out at this stage of my judgment, Mr Benson having just left the Court, that an additional object of Part VII of the Act included in s 60B(4) is for Part VII of the Act to give effect to the Convention on the Rights of the Child adopted and opened for signature at New York on 20 November 1989. Importantly, Article 12 of the Convention on the Rights of the Child says this:

    1.States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

    2.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

26. The second part of that clause explains particularly why I caused B to be brought in and interviewed by a Family Consultant.  The first part adds some weight to my need to consider s 60CC(3)(a) in the matter.  Ultimately, having regard to Ms M’ assessment that B was a “bright, articulate and quietly spoken young person” who “did not appear to have any difficulty expressing her views and wishes”, notwithstanding that “she was aware these would be shared with the Judge and with both of her parents”, I have determined that B’s views as given, both to the police officer and to the family consultant, carry what in this case must be heavily determinative weight. 

27. B has had a relationship with her father now since 2009 that has grown around and through proceedings in this court that have been going on for all of those ten years.  I, over the time that I have been involved, satisfied that her mother does not have the greatest view of her father nor does she have any notion that in the long term her relationship with her father is very important to her ultimate wellbeing, have been quite concerned to ensure that B’s relationship with her father was given every single opportunity that it could be given to develop as well as it could, notwithstanding the case was one where by in 2016 there was no question that it was in B’s best interests to move her from her mother’s care to her father’s.  That simply could not happen in the factual circumstances of this case as it does in some where residential parents are found to be unable to promote and encourage the relationship between the child and the other parent.

28. In all of these circumstances, B’s relationship with her father, notwithstanding her mother’s influence on her life, has had the opportunity to develop in circumstances where she has experienced life with her father on holidays and on weekends.  The nature of her relationship with her father has, to a great extent, been able to be influenced by her interaction with her father.  Sadly, for both her father and also for B in particular, that relationship has not developed in a way that most people would hope and indeed in the way that I hoped and anticipated it might every time that the matter was before me.

1. B’s relationship with her father has never improved. Indeed, one could say that it has deteriorated to the point where she is quite prepared at the age of 15 to tell the police officer who she does not know, and to tell a Family Consultant who she does not know, that she would rather not spend any time with her father at all in the future and does not want to have any contact with him.  For better or for worse, those are B’s clearly expressed views.  I cannot make any orders that change her view.  I cannot make any orders that change her as a person.  I cannot make any orders that change her mother’s views or change her mother as a person.  I cannot make any orders that would change her mother’s approach to how she treats B’s relationship with her father on an ongoing basis.  It is clear though that B does not want to continue to see her father and I have reached the point where I am satisfied that it is not in her best interests for her to be made, by way of orders imposing obligations on her mother, to go and spend any time with her father where she clearly says that if she does she will run away.

2. After hearing submissions from the parties, it became clear to me that the mother was submitting that the orders of September 2016 should be varied so as not to require B to be forced to spend time with her father in the future and that she was not actually advocating for a change in all the other orders. 

3. In the circumstances, I am satisfied that the orders should be discharged insofar as they require B to go and spend time with her father.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 15 January 2019.

Associate: 

Date:  23 May 2019