Borchard and Portner

[2019] FamCA 524

FAMILY COURT OF AUSTRALIA

BORCHARD & PORTNER [2019] FamCA 524

FAMILY LAW – CHILDREN – Best interests – With whom a child lives and spends time – Parental responsibility – Where the subject child is aged 12 years – Where interim orders provide for the child to live with the father and spend two hours per fortnight with the mother – Where the child resists spending any time or communicating with the mother – Where final orders were made by consent in 2016 providing for the child to live with the mother while she resided in a designated area – Where the mother elected to return overseas in late 2016 and relinquished primary care of the child to the father – Where the mother returned to live in Australia in late 2018 – Where the father filed fresh proceedings seeking orders for the child to remain living with him and for the child to decide if and when she spends time and communicates with the mother – Where the mother seeks a reversal of the child’s residence – Where the child has a meaningful relationship with the father from which she derives enormous benefit – Where the child presently does not derive much, if any, benefit from her relationship with the mother – Where the Family Consultant opined that the child’s strongly expressed feelings about the mother are linked to her emotional need to preserve her relationship with her father – Where neither parent poses any risk of subjecting or exposing the child to abuse, family violence or neglect – Additional considerations – Where the child’s views are considered and accorded weighed – Where the presumption of equal shared parental responsibility is rebutted as such an order is not in the child’s best interests – Ordered the child live with the father – Where sole parental responsibility is allocated to the residential parent – Where no order made to compel or restrain the child’s interaction with the mother.  

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

APPLICANT: Mr Borchard

RESPONDENT: Ms Portner

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

FILE NUMBER: NCC 3224 of 2014

DATE DELIVERED: 8 August 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 22, 23 & 24 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Boundy, Andersons Solicitors

COUNSEL FOR THE RESPONDENT: Ms Carty

SOLICITOR FOR THE RESPONDENT: Equilaw Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guyder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

Orders

1. All former orders in relation to the child B, born … 2007, are discharged.

2. The father shall have sole parental responsibility for the child.

3. The child shall live with the father.

4. The parties shall take all reasonable steps to ensure that the child is able to communicate with the mother in the following manner:

   (a)By the mother being able to send letters, cards, and/or gifts to the child on or about dates proximate to the child’s birthday, Mother’s Day and Christmas Day, and

   (b)By the father promptly sending to the mother:

   (i)Written acknowledgement of receipt of the mother’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the mother.

5. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

6. The father shall notify the mother of any medical emergency, illness or injury suffered by the child whilst in his care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the child.

7. The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.

8. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

9. Within seven days hereof the father shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to her the effect of these orders.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

11. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

12. Any and all other outstanding applications are dismissed.

Notation

(A)These orders intentionally make no provision to either compel or restrain the child’s interaction with the mother, leaving the child free to decide for herself.

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 Borchard & Portner 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 NEWCASTLE

FILE NUMBER: NCC 3224 of 2014

Mr Borchard

Applicant

And

Ms Portner

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern competing applications between the applicant father and respondent mother in respect of their only child – a 12 year old daughter – under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The child lives with the father pursuant to interim orders, but she resists spending any time or communicating with the mother. The parties were in dispute about whether the child’s resistance to any interaction with the mother is authentic, as the father contends, or whether it is only the product of pressure exerted upon her by the father to reject the mother, as the mother contends.

3. Regardless, the child’s staunch resistance to any restoration of her relationship with the mother presented an insuperable impediment so, ultimately, the evidence weighed most heavily in favour of the child continuing to live with the father, which regrettably means any chance of rapprochement between her and the mother will have to wait until the child’s attitude changes.

Background

1. Previous proceedings between the parties under Part VII of the Act were concluded in October 2016. With the parties’ consent, Cleary J made final orders for the child to live with the mother whilst ever she continued to live with the child in a designated area of the G Region of New South Wales (“NSW”), but for the child to instead live with the father if the mother elected to return to live in the United Kingdom (“UK”). Depending upon the child’s place of residence, orders were made in the alternative enabling her to spend time with the non-residential parent. Those orders were supplemented by more orders made by Cleary J in December 2016 providing for the parties to have equal shared parental responsibility for the child, subject to the father having sole parental responsibility in respect of the child’s education and medical treatment in Australia.

2. Very shortly after the 2016 orders were made, the mother elected to return to live in the UK, taking her eldest child (“X”) from a former relationship with her. Consequently, the child began living with the father in the G Region.

3. The child spent time with the mother during the school holidays in July 2017 and again over the 2017/2018 Christmas period, but the parties’ negotiations of those arrangements were apparently fractious. The child was not produced by the father to the mother for the holidays in July 2018 and so the mother commenced enforcement action, as a result of which the child was belatedly produced and the application was then dismissed. The child’s electronic communication with the mother throughout 2017 and 2018 was also problematic, but each party blamed the other for that.

4. Towards the end of 2018, the mother decided to move back to the G Region from the UK and she advised the father of the fact. She returned with X in or about December 2018, prompting the father to commence these proceedings. The child did not spend any time with the mother over the 2018/2019 Christmas holidays. The father said in cross-examination the child refused to go and he could not persuade her.

5. The parties’ competing interim applications were first returnable before the Court in February 2019. With their consent, orders were then made for the father to make the child available to the mother for one hour each week on Monday afternoon and to speak with the mother by telephone each Thursday. The hearing of their interim applications was adjourned until after they and the child had had the opportunity to confer with the Family Consultant.

6. The Family Consultant conferred with the parties and the child on 4 March 2019 and the interim dispute was then heard on 5 April 2019, by which time the father and child had moved away from the NSW G Region to country NSW for the father to pursue an employment opportunity. Orders were made for the child to spend time with the mother for two hours each alternate Saturday near the child’s new residence. A drive of several hours duration now separates their homes.

7. At the parties’ request, the proceedings were fixed for trial at the first available opportunity in July 2019 and both disavowed the need for the Family Consultant to again confer with the family to compile a comprehensive Family Report. However, arrangements were made for the child to confer with the Family Consultant on the first day of trial, which thereby enabled the Family Consultant to refresh her opinions.

8. At trial in July 2019, it was common ground the father had failed to adhere to the interim orders made in February and April 2019. On each of those occasions, the child ceased spending time with the mother under the orders after an initial few visits.

9. Both parties now seek to discharge the final orders made by Cleary J in 2016. The father wants to consolidate the child’s residence with him and leave her to decide for herself if and when she spends time or communicates with the mother. The mother seeks to revert to the arrangement which was in place before she returned to the UK.

Proposals

1. The father proposed that the child continue to live with him and that he have exclusive parental responsibility for her. He proposed that there be no order requiring the child to spend time or communicate with the mother, but that the mother be permitted to correspond with the child in writing on her birthday and at Christmas. He sought the orders set out in the minute of orders he tendered before he commenced final submissions,[1] not those set out in his Initiating Application filed on 20 December 2018. He did not file an Amended Application, as directed.[2]

   [1] Exhibit F3

   [2] Order 10 made on 5 April 2019

2. The mother abandoned the orders proposed in her Response filed on 5 February 2019 and she instead sought those set out in the minute of orders she tendered before she commenced final submissions.[3] Primarily, she proposed the reversal of the child’s residence because, whilst ever she lives with the father, the mother contends the child is unable to enjoy a relationship with her. She proposed an initial moratorium upon the child’s interaction with the father, so the child can settle in her care, but no order regulating the child’s interaction with the father at the end of the moratorium. In the alternative, if the child remains living with the father, the mother proposed that the child spend substantial time with her.

   [3] Exhibit M3

3. There was an inherent contradiction in the mother’s alternate proposals, which she reluctantly admitted, since her preferred suite of orders was motivated by her belief that the father will not or cannot support the child’s relationship with her so it is necessary to reverse her residence, but her fall-back suite of orders is premised on an assumption that the father will and can support the child’s relationship with her if the child remains living with him.  

4. The Independent Children’s Lawyer began the trial without having formulated any specific proposal. Just prior to the commencement of final submissions she announced her proposal orally, which, in effect, replicated the mother’s primary proposal.

Evidence

1. The father relied upon his affidavit filed on 20 June 2019, the unattached annexures to which were tendered collectively as an exhibit.[4]

   [4] Exhibit F1

2. The mother relied upon her affidavit filed on 3 July 2019, the exhibits to which were culled and collectively tendered as an exhibit.[5] She did not file any affidavit for her prospective witness, for which leave was granted.[6]

   [5] Exhibit M1

   [6] Order 14(b) made on 5 April 2019

3. Otherwise, the parties and the Independent Children’s Lawyer relied upon:

   (a)The Memorandum dated 4 March 2019 prepared by the Family Consultant; and

   (b)The contemporaneous notes made by the Independent Children’s Lawyer of the Family Consultant’s conversation with the child in joint conference on the first day of trial.[7]

   [7] Exhibit ICL1

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. When orders were first made by Cleary J in October 2016, before the mother moved to the UK, she was the child’s primary attachment figure.[8] However, the mother’s decision to relinquish the child’s primary care to the father and move to the UK caused the child to feel “loss and grief” and made her “extremely  upset”, which in turn instigated her behavioural problems.[9] So much was not in doubt and, therefore, the current state of the child’s relationships with the parties must be interpreted in that context.

   [8] Memorandum, para 55

   [9] Memorandum, paras 9, 41, 43, 55

2. In March 2019, the child told the Family Consultant of her very close relationship with the father,[10] which sentiments she repeated in July 2019.[11] The Family Consultant considered she was both supportive of and very loyal to him.[12] Plainly enough, the child enjoys a meaningful relationship with him from which she derives enormous benefit. Her sense of his support in the face of her perceived abandonment by the mother is an important feature of the evidence.

   [10] Memorandum, para 24

   [11] Exhibit ICL1

   [12] Memorandum, para 52

3. During the same consultation in March 2019, the child described to the Family Consultant a “complex and, at times, conflicted relationship” with the mother.[13] The Family Consultant concluded she had ambivalent feelings towards the mother: she still loves her, but also hates her for causing her to feel so distressed and angry.[14] Her attitude towards the mother, which has vacillated between muted resistance and complete rejection, is the product of her need to protect herself from the grief of abandonment again.[15] In all probability, the child’s relationship with the mother remains important, valuable and significant to her, but she does not presently derive much, if any, benefit from it. Inferentially at least, the child may not wish to rejuvenate her loving relationship with the mother until she is old enough to emotionally withstand her sense of past abandonment or the danger of renewed rejection.

   [13] Memorandum, para 24

   [14] Memorandum, paras 50, 55

   [15] Memorandum, para 55

4. The deteriorated state of the child’s relationship with the mother undoubtedly made her melancholy, since the Family Consultant found her “sad and very stressed” in March 2019,[16] but her current rejection of the mother is probably the path of least resistance to self-preservation. She can only presently cope by rejecting the mother.[17] The Family Consultant opined, and I accept, that if the child feels the need to choose between her parents then she will choose the father because she believes the loss of her relationship with him would be a devastating blow.[18]  Although the mother would prefer it to be otherwise, she acknowledges the child perceives herself to be in a “loyalty bind”.

   [16] Memorandum, para 22

   [17] Memorandum, para 53

   [18] Memorandum, para 54

5. By July 2019, the Family Consultant found the child much calmer, but still just as adamant about her views. The Family Consultant said in cross-examination, in effect, the child seemed reconciled to her decision to commit to her relationship with the father and to reject the mother.

6. The child’s perceived loss of one parent was bad enough for her, but her loss of the second is unthinkable. It is therefore essential to the maintenance of the child’s emotional equilibrium that her relationship with the father is not unduly disturbed. That could only really be achieved by the retention of her residence with the father. The Family Consultant entertained serious doubt about her ability to cope with even only spending some time with the mother, so expecting her to live with the mother would be a risky prospect.

1. The father admitted in cross-examination he accepted the child would benefit from the maintenance of her relationship with the mother but, since their relationship is presently in such a damaged condition, then realistically, the first question must be whether it is currently capable of rejuvenation.

2. That analysis of the evidence also sufficiently covers s 60CC(3)(b)(i) of the Act.

Section 60CC(2)(b)

1. Neither party contended the child needs protection from harm she could suffer from subjection or exposure to abuse, family violence or neglect. She will be safe and physically cared for irrespective of the party with whom she lives.

Child’s best interests – additional considerations

1. Only some aspects of the evidence were eventually addressed by the parties and the Independent Children’s Lawyer as justifying careful consideration under s 60CC(3) of the Act: the child’s views and the weight reposed in them (s 60CC(3)(a)), the child’s relationship with X (s 60CC(3)(b)(ii)), the likely effect upon the child of any change in her current circumstances (s 60CC(3)(d)), the parties’ capacity to adequately provide for the child’s emotional needs (s 60CC(3)(f)), and the desirability of making orders that will tend to avoid any further litigation over the child (s 60CC(3)(l)).

2. The child’s views are a pre-eminent feature of the evidence. There can be no doubt her strongly-expressed views are for the retention of her residence with the father and against the restoration of her relationship with the mother, in which case there is only room for argument about the authenticity of her views and the weight which should be reposed in them.

3. The child has repeatedly told the father she does not want to see the mother,[19] she told her counsellor in late 2018 she does not want any form of contact with the mother,[20] she told the Family Consultant in March 2019 of her desire to sever her relationship with the mother,[21] and she told the Independent Children’s Lawyer and the Family Consultant together in July 2019 that she does not want to see the mother for the rest of her life and does not want to speak to her.[22] The mother conceded in cross-examination she is well aware the child has maintained that position. Self-evidently, if the child truly does not want to even see or speak with the mother, she certainly would not want to live with her.

   [19] Memorandum, para 13

   [20] Exhibit F1 (…5); Exhibit ICL2

   [21] Memorandum, paras 20, 32-34

   [22] Exhibit ICL1

4. Two things are clear: the child has consistently maintained her rejection of the mother over at least the last 12 months and she has repeated her sentiments to several independent adults. Those two features of the evidence collectively enhance the probability that the child is expressing her genuine sentiments, as I find she is. If, on the other hand, she was keenly interested in spending time with the mother then, notwithstanding any pressure exerted by the father, it is likely she would, at some point, have wavered and confirmed her willingness to at least attempt the restoration of her relationship with the mother. She has not done so.

5. The evidence implies the child has, at least in the past, enjoyed spending some time with the mother and X,[23] but such transient enjoyment during occasional holiday visits has not convinced the child of the need to expand the arrangement. It is true the child’s resistance to the mother was not so virulent when the mother first moved to the UK in 2016, because she did spend time with the mother twice in 2017. At that point in time the child was grief-stricken, but her feelings gradually transformed to anger. By late 2017, the child’s first counsellor found her prone to “choose sides”.[24] The hardening of her views in 2018 and 2019 is consistent with her burgeoning adolescence and her demand to have more control over her life. Although the mother believes she witnessed the child’s antipathetic attitude begin to thaw during their few brief conversations over the last six months, her intuition alone is too fragile a foundation for her dramatic proposal to reverse the child’s residence.

   [23] Memorandum, para 27

   [24] Exhibit F1 (…3)

6. In November 2017, the child said of the mother to her then counsellor:[25]

   I didn’t want to speak to Mum because it makes me upset and angry. Who’d leave a child in Australia and go to [the UK]?

   [25] Exhibit F1 (…3)

7. In March 2019, the child told the Family Consultant when discussing the mother:[26]

   I don’t think I’ll ever forgive her. What she’s done to me – I’ll never forgive her.

   [26] Memorandum, para 34

8. In July 2019, the child told the Family Consultant and the Independent Children’s Lawyer she believed the mother was:[27]

   …not going to apologise for what she’s done to me.

   [27] Exhibit ICL1

9. They are strong sentiments indeed. If the child felt importuned to support the father and reject the mother, contrary to her own genuine feelings, it is unlikely she would have volunteered such derogatory comments about the mother to embellish her views. Her comments tend to imply her feelings about the mother’s betrayal run deep, even if they do happen to coincide with the father’s alleged secret desire for her to reject the mother. Those two eventualities are not necessarily mutually exclusive. The child may honestly want to sever her relationship with the mother and it is an easier decision for her to make if the father also desires it.

10. The Family Consultant opined, and I accept, that the child’s strongly expressed feelings about the mother are linked to her emotional need to preserve her relationship with the father and is driven by anxiety that the stability of her dependence upon him may be under threat.[28]

    [28] Memorandum, para 55

11. The child is now 12 years of age and her views, although not necessarily dispositive, must be heeded and accorded substantial weight. Her views must still be tempered by other considerations because she probably does not yet have the maturity to appreciate the lasting importance of her filial relationship with the mother and how she may be disadvantaged by its loss. Her relative lack of maturity was manifest from her recent comment to the Independent Children’s Lawyer and the Family Consultant that she “can’t see anything negative” about not seeing the mother.[29] It is unwise for the mother to be eliminated from her life merely because she feels the mother heartlessly abandoned her.

    [29] Exhibit ICL1

12. Nevertheless, it must follow from the conclusions reached about the authenticity of the child’s views that the reversal of her residence by an order which compels her to live with the mother would likely cause her substantial emotional harm, just as the Family Consultant said it would in cross-examination. I reject the validity of the mother’s assumption that the child’s emotional distress would likely quickly dissolve if her residence is reversed. The child has spent the last two years vehemently rejecting her. She would likely be acutely embarrassed by being thrust into the mother’s primary care and feeling obliged to then retract her criticisms to re-establish some harmony between them. It would probably be an artificial truce. In all likelihood, the child would also feel guilty about her enforced abandonment of the father, given her staunch support of him in the conflict. Those concerns cannot be easily swept away.

13. Ordering the child to live with the mother would be a leap of faith based on nothing more substantial than the mother’s theory that the child would swiftly settle in her care and, significantly, experimentation with the child’s residence with the mother could come at an unacceptable cost. She may resist the implementation of such an order, either by refusing to leave the father in the first place or by absconding back to him, making further litigation likely – either to enforce or recant the orders. That prospect is much more than idle speculation because the Family Consultant predicted it.

14. In March 2019, the Family Consultant considered it quite unlikely that the child would even cope with spending any more than two hours per fortnight with the mother.[30] She was right. Interim orders were made to that effect in April 2019 and, after only three difficult visits, the orders have been breached since May 2019. If the child could not be cajoled so recently to consistently spend time with the mother for such brief and infrequent interludes, it is hard to imagine how she could be convinced to live with the mother. During the trial, the child clearly told the Independent Children’s Lawyer and the Family Consultant she would positively resist compliance with any order requiring her to spend time with the mother (let alone an order requiring her to live with the mother) by refusing to leave the father’s house and by grabbing hold of some immovable object.[31]

    [30] Memorandum, paras 56, 59

    [31] Exhibit ICL1

15. If the experiment of reversing the child’s residence is tried but fails, it is possible the child may then feel as though she has no safe fall-back option by returning to the father. If, as the mother apparently believes, the father demands the child’s undivided loyalty to him then she may feel as though she cannot return to live with him after having abandoned him to live with the mother, even though compelled by an order to do so. She would probably be wary of how he would react to her having re-established some form of ephemeral allegiance with the mother for the duration of her residence with her.

16. Those features of the evidence militate against any change to the child’s residence, but that is not to suggest her woes will be entirely solved by her continuing to live with the father.

17. Most worryingly, it seems as though the child may have alleged in early June 2019 that she attempted to harm herself with a knife. The state of the evidence is unsatisfactory because: it is unclear whether the child actually did it, alleged she did it, or only considered it; whether the father first suspected it and then informed the school staff; or whether the school staff learned of it and then told the father.[32] In any event, it was common ground the child had no visible injury, so it is hardly likely any attempt was seriously made. No matter, her mere threat of self-harm is a serious enough issue. The father confiscated a knife and razor blade he found in the child’s bedroom[33] and, sensibly, he promptly put the mother on notice of the problem and did not try to conceal it.[34]

    [32] Exhibit ICL10; Father’s affidavit, paras 154-158

    [33] Father’s affidavit, para 157

    [34] Exhibit F1 (…9)

18. The father asserted he believed the child’s thoughts of self-harm were caused by her despair at feeling forced to see the mother against her wishes, but that is speculative, regardless of how earnestly he believes it. There was little evidence upon which it was fairly open to infer any particular motivation for the child’s unhappiness at that point in time. Several plausible explanations recommend themselves. For example: she may have been protesting against seeing the mother (as the father thinks); she may simply be desperately unhappy living with the father (as the mother thinks); or (as the father told the school staff) she might have been disturbed by the recent attendance of the police at her and the father’s home at the behest of his former girlfriend, who is the mother of another student at her school and whose behaviour the father cannot control.[35]

    [35] Exhibit ICL10

19. The child’s school records were produced in response to subpoena and were inspected by the Family Consultant. In cross-examination, she said the school records show the child is very settled and happy at her new school, despite the report of her alleged self-harm in early June 2019. Her attendance was good and her academic performance had apparently improved from that at her former school in the G Region. In joint consultation with the Independent Children’s Lawyer and the Family Consultant on the first day of the trial, the child reported she likes school, she is happy, and she has “heaps of friends”.[36] No other evidence was adduced to show the child’s alleged contentment was contrived. In fact, the mother telephoned the school on 20 June 2019 to check on the child after learning of her alleged self-harm and the school staff told the mother the child was then “quite settled” and “seems happy at school”.[37] Indeed, the school notes imply the mother admitted to the school staff she realised the child was happy at the school.[38] In the absence of any further evidence about the issue of self-harm, inferentially, the problem has now dissipated. Nevertheless, at the very least, the evidence suggests the child might be prone to bouts of unhappiness while living with the father for one reason or another.

    [36] Exhibit ICL1

    [37] Exhibit ICL9

    [38] Exhibit ICL9

20. There is more than a hint in the evidence that the father is content for the child to shun the mother. He failed to ensure the child spent time with the mother in the 2018/2019 Christmas holidays under the 2016 orders. He failed to ensure the child spent any more than a couple of hours with the mother under the interim orders made in February 2019. He failed to ensure the child spent any more than a couple of hours with the mother under the interim orders made in April 2019. He alleged in cross-examination he had done all he could to encourage the child to enjoy her relationship with the mother, but the child was largely impervious to his encouragement. It is difficult to accept that a competent parent could not convince a child (then aged 11 years) to do what he thought was certainly in her best interests – namely, spend time with her mother, with whom she had a close and loving relationship until at least late 2016. It must, as the Family Consultant said it does in cross-examination, reflect poorly upon the father’s parenting capacity.

21. Having seen the father cross-examined over several hours, I am not prepared to conclude that he deliberately sabotages the child’s relationship with the mother. That could be so, but it is more likely he cannot or does not care to shield the child from the antipathy he feels towards the mother and the child is sufficiently attuned to infer it.

22. Some aspects of the evidence suggest the unlikelihood of the father’s deliberate destruction of the child’s relationship with the mother. For example:

    (a)The child volunteered to the Family Consultant that the father actively encourages her to pursue her relationship with the mother.[39] There is no obvious reason for her to fabricate that admission.

    (b)The father denied he sabotaged the child’s visit with the mother on 13 April 2019, as the mother alleged, and said he had photographs which tended to vindicate him. That was not explored further and the mother did not call for the photographs to be produced.

    (c)On 24 April 2019, the mother admits the father offered her time with the child in the G Region outside the terms of the court orders,[40] even though it did not eventuate because he was unexpectedly summoned for a job interview and had to return home. She seemingly doubted his bona fides, but he said he had text messages to verify his evidence, but the mother did not call for the messages to be produced.

    [39] Memorandum, para 32

    [40] Mother’s affidavit, para 27

23. The father seems to assess the family situation in concrete terms. He has little apparent capacity to understand the nuances of the parental conflict or the child’s responses to it. His simplistic view of the current situation is thus: the mother surrendered the child to him; the child feels abandoned and now rejects the mother; the predicament is the mother’s fault; he is content for the child to resume her relationship with the mother if she wants, but he will not force her to do so against her stated wishes. However, his analysis ignores other influential considerations, such as: the child’s best interests would be served by her retention of a loving relationship with the mother, even if it is less important than her relationship with him; he should actively encourage the restoration of that relationship when the child lacks the maturity to understand its importance; and it behoves him as a responsible parent to shield the child from the parental conflict so she is not reactive to it and does not feel obliged to owe an allegiance to one parent over the other.

24. The mother did seem generally more flexible and adaptable than the father as a parent, though her insight is still impaired. She appears to lack true appreciation of both the cause of, and remedy for, the current imbroglio.

25. In 2016, the mother was romantically linked to Mr H, with whom she chose to return and live in the UK, leaving the child behind in Australia. The child dislikes Mr H and the mother knows it. The child’s dislike of Mr H may stem from her belief that the mother preferred to pursue her relationship with him than to retain her relationship with her, but the reason does not really matter. The child’s dislike exists and the mother is aware of it. Although the mother has returned to Australia and now professes her intention to remain in this country, at least during the remainder of the child’s minority, she still retains some form of relationship with Mr H. The mother told the Family Consultant in March 2019 she was “unsure” about her future with Mr H,[41] but she admitted in cross-examination he was presently in Australia to support her in this litigation, though he apparently still lives in the UK, and she did not know what the future held for her relationship with him as they had not yet made any firm decision. She clearly contemplates their relationship may endure and, if it does, she expects the child will have to live with the knowledge and adjust to it.

    [41] Memorandum, para 47

26. During final submissions, although not part of her proposed orders, the mother said she would accede to an injunction restraining her from allowing any interaction between the child and Mr H. Even if it is accepted the mother would comply with such an injunction, no matter how difficult that may actually prove to be if Mr H remains part of her life and the child either lives or spends time with her, the injunction and her compliance with it will not solve the problem. Mr H will not harm the child. She needs no protection from him. The problem which such an injunction cannot alleviate is the child’s worry that the mother may again unexpectedly prioritise her relationship with Mr H and abandon her back to the father. Her fear of rejection is paramount to her. Even if the mother adheres to her stated intention of relegating the significance of her relationship with Mr H, the child’s anxiety of again being cast aside in preference for him will not abate whilst he remains involved in the mother’s life. The mother’s inability or unwillingness to appreciate that fact is a serious shortcoming.

27. The mother knows the child expects an apology from her for abandoning her and returning to live in the UK, but she has not been able to proffer the apology. After the child told the mother to “fuck off” during a telephone conversation in November 2018, the mother was so puzzled she needed to ask the father why the child was angry with her.[42] Objectively, the answer was obvious enough. The mother deposed she understood why the child “may” be upset with her,[43] but that concession grossly minimises the emotional distress the child has certainly suffered. In cross-examination, the mother said she told the child during their conversation on 11 May 2019 she was sorry the child was angry, but that too was revealing. She only apologised for the child’s feelings of anger; not for her having caused the child to feel that way. She did not accept responsibility for causing the child’s grief and so it could hardly have been a convincing expression of remorse in the child’s mind.

    [42] Mother’s affidavit, paras 56-57

    [43] Mother’s affidavit, para 110

28. Poignantly, the Family Consultant said of the mother:[44]

    The mother demonstrated some degree of ability to understand what is happening for [the child] … The mother may not be willing or able to completely accept the damage her actions have done to [the child] and it is noted that several times during her interview [the child] commented that her mother does not seem to understand the full impact on her and carries on like nothing has happened.

    (Emphasis added)

    [44] Memorandum, para 43

1. The mother’s expressions of regret in her affidavit for prioritising her own emotional needs above those of the child[45] have not been convincingly conveyed by her to the child. That is a serious deficit, given that the child’s grief and anger at her perceived abandonment by the mother lie at the heart of this dispute.

   [45] Mother’s affidavit, paras 81, 100

2. In the teeth of the mother’s failure to grasp the true depth of the child’s despair, the orders she proposes expose her apparent belief that the child will accede to the reversal of her residence relatively meekly. How she could believe that to be so is mystifying, given the opinion evidence she heard from the Family Consultant, which I accept as correct. The Family Consultant said: the child’s continued residence with the father was “the only workable outcome”; the child would react with a “strong emotional response” to any attempt to remove her from the father’s care; even if the child could be moved to the mother it would be “very hard” for her to settle satisfactorily in the mother’s care; and the family cannot now simply go back to the situation which existed before the mother departed for the UK, as much as the mother may want it.

3. When pressed in cross-examination, the mother said she “hoped” the orders she now proposes to reverse the child’s residence can be successfully implemented, but mere hope falls well short of reasonable expectation. All of the evidence uniformly suggests the child would violently resist any order removing her from the father’s residential care, so orders of the type proposed by the mother would make further litigation a virtual certainty.

4. The mother’s uncertainty about the way in which the child’s return to her care could best be achieved was also revealing. While she ultimately proposed an immediate reversal of the child’s residence, during cross-examination, she asserted her belief in the need to gradually achieve the reversal through a transition phase over the next few months. She also saw a need for her and the child to participate in family therapy, but that was proposed by the Family Consultant in March 2019,[46] and nothing was done about it. Ultimately, the mother was drawn to the concession that the child’s change of residence would be “terribly difficult” to achieve. The Independent Children’s Lawyer could only submit that the proposal “might” work, which was tantamount to an admission that it probably would not.

   [46] Memorandum, para 63

5. The child has enjoyed a loving relationship with X. In April 2019, the child told the father she would only see the mother if X was also present,[47] but in July 2019 the child told the Family Consultant she did not want to see either the mother or X,[48] whom she presumably regards as aligned with the mother in the dispute. X is now an adult,[49] and so there is no certainty she will continue to live with or close to the mother for the remainder of the child’s minority in any event, particularly since X’s own father lives in the UK and she intends to join the defence force.[50] It would be unfortunate for the child to lose her relationship with X, but social media always remains an option for their communication and, if they stay in touch, it will enhance the chance of the child and the mother eventually re-connecting. The mother knows the child and X remain in contact.[51]

   [47] Father’s affidavit, para 134

   [48] Exhibit ICL1

   [49] Mother’s affidavit, para 86

   [50] Mother’s affidavit, para 89

   [51] Mother’s affidavit, para 96

Conclusion and orders

1. The presumption of equal shared parental responsibility applies, but it is rebutted by the evidence which comfortably establishes the child’s best interests would not be well served by such an order (s 61DA(4)). The Family Consultant was not challenged about the validity of her opinion that the parties are unable to communicate in any effective way because of the high conflict between them.[52] After the evidence closed, the mother withdrew her proposal for an order conferring equal shared parental responsibility on the parties and agreed with the father’s long-standing proposal that only one party could have parental responsibility for the child. The Independent Children’s Lawyer agreed and so there was no dispute on that issue.

   [52] Memorandum, paras 21, 40, 51

2. The only feasible option is for the residential parent to be vested with exclusive parental responsibility for the child. It would be absurd for the non-residential parent to have it.

3. As for the child’s residence, she should live with the father. The reasons for that outcome are, in summary:

   (a)She presently has a much stronger relationship with the father, which resulted from the mother’s decision to prioritise her own emotional needs over the child’s by moving to the UK with Mr H.

   (b)The retention of her residence with the father accords with her strongly and repeatedly expressed views, which are probably genuine.

   (c)Any attempt to change the child’s residence would almost certainly be met with her fierce resistance, which would probably have two deleterious consequences. First, the child would be emotionally disturbed by being physically restrained and removed from the father, as the Family Consultant said would occur. Second, more litigation would almost inevitably result, either to double-down and enforce the change of residence or to instead relent and restore the child’s residence with the father. Given these proceedings represent the second round of litigation between the parties, they and the child can hardly afford another, either financially or emotionally.

4. The countervailing considerations which militate in favour of the child living with the mother instead are, in summary:

   (a)If the child continues to live with the father, her relationship with the mother will most probably fall dormant for several years hence – probably until her late adolescence, but perhaps even until she attains her majority. That prediction is rendered probable by the proven difficulty in implementing the 2016 orders and by the abject failure of the interim orders made in February and April 2019.

   (b)The child will not be able to foster her sibling relationship with X as easily as she could if they lived together but, because X is much older, there is no guarantee they would continue to share the same household for much longer even if the child did live with the mother.

   (c)If the child instead lives with the mother, there is probably a better chance the child could retain relationships with both parents, because the mother is more likely to promote the child’s relationship with the father if she is the residential parent, though there is no reason to think the parental conflict will abate and the child could be insulated from it.

   (d)If the child returns to live with the mother in the G Region, the change might be facilitated by her familiarity with the area and her former friends, though it was common ground the child encountered some problems with her peers at her former school in the G Region.

5. Overall, the factors favouring the retention of the child’s residence with the father outweigh those favouring the reversal of her residence.

6. That conclusion is compatible with the preponderance of the Family Consultant’s opinion evidence. Although she recognised the child may lose her relationship with the mother by staying with the father, she said the child’s relationship with the mother is so fraught that her continuing residence with the father is “the only workable outcome”. The risk of the child’s long-term emotional harm due to the loss of her relationship with the mother was outweighed by the risk of the child’s emotional harm due to being forced to live with the mother against her will. In her view, it is now too late to roll back the unfortunate fallout over the last three years, produced by the mother’s decision to leave the child with the father and return to the UK.

7. The mother submitted that the Family Consultant had not read the parties’ trial affidavits, had not seen them cross-examined, and was privy to only a “snapshot” of the family from her relatively brief involvement and, therefore, not so much weight should be reposed in her opinions. The submission may be commended for ingenuity but is rejected. The parties identified the authenticity of the child’s views as the prime dispute between them. No-one was better placed than the Family Consultant to give experienced, insightful and reliable evidence on that topic and she gleaned the material upon which to express her opinions from two recent meetings – one with the parties and the child in March 2019 and the other with the child on the first day of trial in July 2019.

8. Once the issue of the child’s residence is determined, attention must turn to the orders which should be made concerning the child’s future interaction with the mother.

9. The Family Consultant said that forcing the child to interact with the mother may galvanise the child’s resistance and make her more determined to object. It would be ideal if the child could rejuvenate her relationship with the mother, but it is currently impracticable to try and engineer it. The Family Consultant accepted in cross-examination that, if the child remains resident with the father, a better option would be not to make any orders regulating the child’s interaction with the mother. The orders would therefore be silent on that issue; neither compelling nor restraining their interaction. I adopt and act on that evidence because the absence of any compulsion or restriction relieves the child of the pressure she feels to comply with the conflicting expectations of her parents. It ostensibly gives her freedom to decide and a sense of some control over her life.

10. The mother’s fall-back position was for orders to be made regulating the child’s expenditure of substantial time with her on weekends and during school holiday periods. I reject her proposal. The failure of the final orders made in 2016 and the failure of the interim orders made in February and April 2019 is ample proof of the unlikelihood of compliance with orders of the type proposed by the mother. The mother’s best hope of recapturing her rapport with the child is by leaving the child undisturbed for the time being. The Family Consultant said, and I accept, that trying to force the restoration of the child’s relationship with the mother will likely make the child more determined to resist it. As everyone agreed, the child still loves the mother, so she will probably eventually gravitate back to the mother, though it might take a period of years.

11. For the same reason, no orders are made to regulate telephone communication between the child and mother. The failure of such communication over the past few years was the subject of complaint by the mother.[53]

    [53] Mother’s affidavit, paras 64, 65, 68, 69; Memorandum, paras 14, 44, 45

12. However, an order is made to enable written communication between the child and the mother. By her resort to the written communication contemplated by the order, the mother will be able to demonstrate to the child her continuing commitment to the maintenance of their filial link and, hopefully, that will facilitate the resumption of their formerly warm relationship with the passage of time. If the mother chooses not to avail herself of the order, the chance of her restoration of her relationship with the child will likely be lost, but that will be her choice. The father understands the importance of the child and the mother staying in written contact, since he proposed an order be made in similar terms. The father’s obligation to signify receipt of the mother’s written communication will be insurance for the mother and child that her communications are passed on to the child.

13. Undoubtedly the mother will want to know about the child’s medical and scholastic progress, so an order requires the father to provide, or authorise the provision of, information and school photographs to the mother.

14. The parties need an avenue of communication and so an order requires them to keep each other appraised of their current contact details.

15. The parties are restrained from subjecting the child to parental denigration. Both parties sought an order to that effect.

16. An order is made requiring the father to produce the child to the Independent Children’s Lawyer so she may have independently explained to her the effect of the orders which bring an end to this litigation.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 August 2019.

Associate: 

Date:  8 August 2019