Bradshaw & Bradshaw (No 5)

Case [2024] FedCFamC1F 79

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bradshaw & Bradshaw (No 5) [2024] FedCFamC1F 79

File number(s): NCC 535 of 2022
Judgment of: SCHONELL J
Date of judgment: 20 February 2024
Catchwords:

 FAMILY LAW – REVIEW – PARENTING –  Where final parenting orders provided for the mother to have sole parental responsibility and for the child to live her – Where the child did not live with the mother in compliance with the orders – Where the child was returned to the mother’s care pursuant to a recovery order made by a senior judicial registrar – Where the father filed an application for review – Where the father also sought that the final parenting orders be set aside and that orders be made for the child to live with him – Where the Court is not satisfied that there has been a change of circumstances subsequent to the making of the final orders – Orders made for the child to be returned to the mother and, should the father fail to do so, for the issuance of another recovery order – Father’s application dismissed.

FAMILY LAW – REVIEW – PARENTING –  Wishes of the child – Where the child is 13 years old – Where final parenting orders provide that the child live with the mother – Where the child wants to live with the father – Where the child claimed that the mother psychologically abused him – Where the mother was the primary carer until separation – Where the trial judge found that it is improbable a meaningful relationship with the mother will be achievable if the child remained living with the father – Where the trial judge found that the father’s behaviour was likely to influence the child to reject the mother and that he was unsuitable as a residential carer for the child – Where the father seeks that the final parenting orders be set aside – Where it was found that the primary judge took into account the views of the child and determined they were not dispositive, notwithstanding his age and maturity – Father’s application dismissed.

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 69ZL, 67U

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:

Adamson & Adamson [2018] FamCA 523

Ansah v Ansah [1977] 2 All ER 638

Bradshaw & Bradshaw(No 3) [2023] FedCFamC1F 510

Carriel & Lendrum (2015) FLC 93-640

Eaby & Speelman (2015) FLC 93-654

Freeman and Freeman (1987) FLC 91-857

Goode & Goode (2006) FLC 93-286

Isles & Nelissen [2022] FedCFamCIA 97

Langmeil & Grange [2013] FamCAFC 31

Marvel & Marvel (No. 2) (2010) 43 Fam LR 348

Rice and Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363

Stowe and Stowe (1981) FLC 91-027

Trewitt & Brock [2021] FedCFamC1A 9

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance
Number of paragraphs: 84
Date of hearing: 19 February 2024
Place: Sydney
Solicitor for the Applicant: Mr…

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AGLC
Bradshaw & Bradshaw (No 5) [2024] FedCFamC1F 79
Case
[2024] FedCFamC1F 79
Decision Date

CaseChat Overview and Summary

The case of Bradshaw & Bradshaw (No 5) involved Mr. Bradshaw and Ms. Bradshaw in a dispute over parenting arrangements for their child. Mr. Bradshaw sought a review of the final parenting orders, which provided for the child to live with the mother and for her to have sole parental responsibility. The father also sought to have the final parenting orders set aside and for the child to live with him instead. The Independent Children's Lawyer submitted that the Court needed to make a recovery order in the event the child was not returned but no other order.

The legal issues the court had to decide included whether there had been a change of circumstances sufficient to warrant a reconsideration of the living or spend-time arrangements of the child, and whether the father's application to set aside the existing parenting orders should be dismissed. The court needed to determine if the father's application to set aside the final parenting orders should be dismissed.

The court found that there had not been a change of circumstances sufficient to warrant a reconsideration of the living or spend-time arrangements of the child. The court also found that the father's application to set aside the existing parenting orders should be dismissed. The court was not satisfied that there had been a change of circumstances subsequent to the making of the final orders. The court found that the father's behaviour was likely to influence the child to reject the mother and that he was unsuitable as a residential carer for the child. The court determined that it is improbable a meaningful relationship with the mother will be achievable if the child remained living with the father. The court found that the child would benefit from the restoration of his former meaningful relationship with the mother. The court also found that the child's views, although not dispositive, were relevant and needed to be considered.

The final orders of the court were that the Orders made 29 January 2024 were discharged. The father was required to deliver the child to the mother at a specified time and location. If the child was not delivered to the mother, the court authorised and directed various law enforcement officers to find and recover the child and return him to the mother. The mother was required to cause a copy of these Orders to be served on Ms. Peregrine. The Application for Review filed 30 January 2024 was dismissed. The parties were required to file written submissions as to costs if any party had an application for costs arising out of the hearing.

Orders

Orders of the court

NCC 535 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BRADSHAW

Applicant

AND:

MS BRADSHAW

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

20 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The Orders made 29 January 2024 are discharged.

2. At 4.00 pm on 21 February 2024, or such earlier time as agreed in writing between the parties, the father must deliver the child X born 2010 ("the child") to the mother at the McDonalds Restaurant at Suburb E, NSW.

3. The following persons are authorised and directed to find and recover, by force if necessary, the child and return the child to the mother and for that purpose each of those persons may stop and search any vehicle, vessel or aircraft or to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found:

(a) The Marshall of the Federal Circuit and Family Court of Australia (Division 1);

(b) All officers of the Australian Federal Police Force;

(c) All officers of State and Territory Police Forces or Services.

4. Order 3 herein commences at 4.15 pm on 21 February 2024 if the child is not delivered to the mother as required by and in compliance with Order 2 herein, and if commenced in those circumstances remains operative for 12 months from that date.

5. Ms Peregrine is joined as a second respondent to these proceedings.

6. Ms Peregrine forthwith do all acts and things to cause the child to be returned to the mother should the child at any time be in, or come into, her care.

7. The parties and/or Ms Peregrine have liberty to apply on 48 hours' written notice to my Associate to seek to be heard as to her removal as a party and/or to be relieved of the obligation imposed by Order 6.

8. The mother shall cause a copy of these Orders to be served on Ms Peregrine.

9. The mother has liberty to provide to the NSW Police, the Australian Federal Police, and the Department of Communities and Justice a copy of these Reasons and Orders, and the Orders and Reasons made 26 May 2023.

10. The Application for Review filed 30 January 2024 is dismissed.

11. In the event that any party has an application for costs arising out of the hearing held on 19 February 2024 they are to file with my Associate within seven days written submissions as to costs. In the event that any such application is made and is opposed then the party in reply has a further seven days in which to file written submissions. Submissions are to be limited to 10 pages.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The ICL submitted that the Court needed to make a recovery order in the event the child was not returned, but no other order. The ICL submitted that an order of the type sought by the mother for a suspension of time could be interpreted by the child as some punitive act instigated by his mother, which would only worsen the relationship between the child and his mother.BACKGROUND To provide some context to the making of my orders it is important to have regard to the background as identified in the Judgment, and the events that happened subsequent to that date. Relevantly to the determination of this application are the following paragraphs from the Judgment where his Honour observes:39. The parties have quite different perceptions about the quality of the child’s relationship with the mother before the marital separation in February 2022. The mother believes her relationship with the child was close and loving, just like the child’s relationship with the father, but the father apparently believes that was only the case until a few years ago, before it then deteriorated. The father’s opinion evidence is rejected. For reasons yet to be explored, his opinions and beliefs about the child and the mother are found to be seriously flawed and unreliable. Until separation, the mother was the child’s primary carer, as the father devoted much of his time to […] work and business interests. Most probably, the child enjoyed a warm, loving and meaningful relationship with the mother – at least until the parties separated and the child remained in the father’s primary care, susceptible to the full force of his adverse views about the mother.40. The father’s belief the child is utterly unaffected by his estrangement from the mother is either disingenuous or demonstrates his lack of insight. It must be one or the other. He must know the child revealed to a school counsellor not long after the parties’ separation that he wanted to see the mother without interference by others, but since then the child has expressed resistance to seeing the mother at all, for which the most likely rational explanation is that he perceives the father is against it and he wants to act consistently with the father’s expectations.41. The father’s motivation and insight will be discussed at greater length as an “additional consideration” within the context of s 60CC(3) of the Act but, for the present purpose of evaluating the “primary considerations” prescribed by the Act, the child would benefit from the restoration of his former meaningful relationship with the mother. It is quite improbable that will ever be achievable if the child remains living with the father. If he is to derive benefit from meaningful relationships with both parents, that is only feasible if he lives with the mother.…44. The single expert said in her report there would be “ongoing and lasting consequences” for the child’s “future social, emotional and psychological development” if his alignment with the father against the mother is not rectified. She elaborated her opinions to mean the child will likely experience significant feelings of guilt, self-blame, anxiety and remorse. He might also experience anger at the situation, blame the father for it, and then eventually resent the father. The child might also experience distorted moral identity, difficulties with inter-personal relationships, and endure mental health complications. Such opinion evidence was endorsed by the single expert during cross-examination.…47. The single expert’s opinion evidence is accepted and relied upon as carrying significant probative weight. An inference arises relatively easily from such evidence: the child will likely suffer serious psychological harm if the current situation continues to prevail. The father has allowed a situation to develop which is “abusive” to the child. The child needs protection from the risk of harm which will likely arise from continuous subjection to such abuse.…49. It was entirely uncontroversial that the child has repeatedly expressed his desire not to see or communicate with the mother and he has acted accordingly. The controversy centred on why he expresses those views and acts that way.50. The father contended the child is only expressing his own feelings, uncontaminated by anything said or done by him. In support of that contention, the father pointed to how the child has independently expressed his views to others like the school counsellor and the single expert when he was not present.…54. …Thereafter, during May 2022, the child’s demeanour towards the mother was either hostile or detached. He has hardly spent any time with the mother since May 2022. He refused to see the mother in the single expert’s presence in November 2022, told the single expert he would not comply with orders requiring him to spend time with her, and told the single expert he could not imagine any change of mind.55. The single expert found the child completely aligned with the father. The single expert opined the child’s behaviour was “deeply influenced” by the father’s behaviour, which opinion evidence is accepted as correct.56. The child is of sufficient age and maturity that his expressed views must carry some weight, but his views are not dispositive. Most probably, the adverse views expressed by the child about the mother are an artifice. He must feel that he cannot show any inclination to retain his relationship with the mother without offending the father and must be tormented by feeling obliged to outwardly reject a parent whom he loves deeply. It is most likely that, reprieved of the pressure exerted upon him by the father to reject the mother, the child will abandon the artifice and revert to the former harmonious relationship he enjoyed with her with an immense sense of relief. That might not happen immediately though.…61. As the single expert opined, the success of such a residential transition would hinge upon several factors: the mother’s capacity to manage the child in a sensitive and sophisticated way; the child’s memory of a loving relationship with her; and his freedom from further influence by the father.…66. The mother and the ICL proposed a moratorium period of three months during which there should be no contact of any sort between the child and the father. The single expert said in cross-examination she recommended that the child should live with the mother and there was “no particular magic” about the length of the moratorium, but it needed to be long enough for the child to re-form his own opinions about the mother.67. The evidence suggests it is more likely than not that the child’s initial objection to the reversal of his residence would subside over a period of weeks, though it would likely be a bumpy ride for the child and the mother during that period.68. On the other hand, if the child remains in the father’s residential care, he will have no contact with the mother and his relationship with her will wither. His continuing rejection of the mother and his indefinite separation from her is likely to cause him internal feelings of despair, even if he does not outwardly express that sentiment. The emotional effect upon him in the long-term is likely to be deleterious, in the manner opined by the single expert.…78. Since the marital separation in February 2022, the father has relentlessly involved the child in the parental dispute. He derides the mother’s intelligence and often denigrates her. He has also discussed the mother’s affair in explicit terms with other adults in the child’s presence, so much so that the child criticised the mother because she “opened [her] legs”. The mother said in cross-examination such vile condemnation occurred in the father’s presence, but he did not admonish the child for it. The father also admitted having discussed the parties’ financial dispute with and in the child’s presence. He also acknowledged the child had been allowed to read much of the correspondence exchanged between the parties’ lawyers. There is no other rational explanation for why the child would raise the financial dispute and his supposed loss of inheritance in conversation with other adults like the school counsellor and the mother. The child also complained about the mother to the single expert in terms which suggest his engagement by the father in the parental dispute. 79. The father also directly engaged the child in the litigation. The letter of complaint composed by the child about the ICL was most probably the father’s idea. The father also probably encouraged the child to take voluminous notes to his appointment with the single expert. The father even admitted in cross-examination that he took the child out of school to an appointment with a solicitor with the intention of having the solicitor act independently for the child in the proceedings.…83. The single expert regarded the father as rigid, fixated, and lacking insight. She was concerned by the manner in which he had involved the child in the dispute. She was also concerned about the child not being able to reality-test the negative views of the mother to which he is perpetually exposed by the father, fearing the child could not extricate himself from his enmeshment with the father. Currently, the child has been induced to believe his future is tied to the father and is conditional upon his rejection of the mother, which binds him in a loyalty conflict. Rejection of the mother gives the child temporary respite from stress but will likely lead to long-term adverse psychological consequences. The single expert’s opinion evidence is accepted as being correct and she was rightly concerned about the adverse effects upon the child.…85. The father’s capacity to meet the child’s emotional needs is so impaired that he is not a suitable candidate for the role of residential parent. If the child lives with him, he will lose his valuable relationship with the mother. Moreover, his constant exposure to the father’s rigid narrative and gruff role-modelling will likely cause the child to grow into an inflexible and isolated adult with a disrespectful attitude to women.Section 60CC(3)(l)86. If the child is moved to live with the mother, at least in the initial phase of the transition, it is highly likely he will demonstrate resistance, as the single expert hypothesised. He might even try to abscond, though the chance of that is diminished if he realises he is living with the mother in a rural location, without money, without any means of electronic communication, without any means of transport, and some kilometres distant from the neighbouring property.87. In any event, there is a heightened chance of more litigation in the nature of enforcement or contravention proceedings if the child’s residence is reversed and he absconds. The father’s proposal is much less likely to engender further litigation.…94. The child should immediately move to live with the mother. In summary, the reasons for that decision are:(a) he cannot derive benefit from meaningful relationships with both parents whilst ever he lives with the father (s 60CC(2)(a));(b) he needs protection from the psychological harm he experiences by subjection or exposure to the father’s emotionally abusive conduct (s 60CC(2)(b));(c) the father does not have the capacity to meet the child’s emotional needs (s 60CC(3)(f)) and displays a poor attitude to the responsibilities of parenthood (s 60CC(3)(i)); and(d) the child will likely have more adult supports if living with the mother (s 60CC(3)(b)).

Evidence

Evidence Before The Court

While in Trewitt & Brock [2021] FedCFamC1A 9, the Full Court observed: 29.The weight of authority and the terms of s 64B of the Act itself point to the order dismissing the father’s application made by her Honour as not being a parenting order within that section. That being so, the court is not obliged to have regard to the mandatory terms of s 60CC of the Act.30.Nonetheless, as the authorities make clear, the determination of whether there should be a reconsideration of existing parenting orders, is one that must be made in the best interests of the child. Often that determination will focus on the nature of the change in circumstances, if any, and the detriment to the child of further litigation. Considerations raised by s 60CC of the Act may also, obviously, be relevant.CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS I am not satisfied that there has been a change of circumstances sufficient to warrant a reconsideration of the living or spend time arrangements of the child. The father urged the Court to set aside the existing arrangements suggesting that the orders made needed to be seen within the context of his Honour’s observations at paragraph 61 of the Judgment. The father submitted that it was clear that the orders required the mother to successfully transition the child into her care and that it is self-evident that did not occur, evidenced by the problems during the period of time in which the child was in the mother’s sole care and as a consequence of subsequent events. To make such a determination that the moratorium was not as envisaged by the mother, or was not as successful as the mother suggests, would require a rejection of the evidence of the mother. The sole foundation for the father’s case rests on the evidence of the child. The evidence of the mother and Mr P conflicts with that of the child. In circumstances where I am unable to make findings, the first limb of the father’s argument must fail. The father also points to, as a basis for a change of the living arrangements, the repeated statements of the child that he will not live with the mother and that he will run away. These statements have been made to, amongst others, the police; reported to DCJ; and made to the ICL. The father contends that this is a consequence of the mother’s failed capacity to be able to engage the child, being a pre-condition to the making of the Orders of 26 May 2023, and that the Court should make new orders as sought by him. I am not satisfied that this represents a change of circumstances. It is quite clear from a reading of the Judgment that the child has, for a long time, shown an opposition to residing in his mother’s care and has said to numerous people that he does not want live in his mother’s care. I note that the trial judge concluded that the father’s behaviour was likely to influence the child to reject the mother and that he was unsuitable as a residential parent. I was not taken to any new fact or evidence that would invite a conclusion as to his suitability contrary to that found by his Honour.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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