Carter & Hendry
[2022] FedCFamC1F 1069
Federal Circuit and Family Court of Australia
(DIVISION 1)
Carter & Hendry [2022] FedCFamC1F 1069
File number(s): SYC 7503 of 2019 Judgment of: KARI J Date of judgment: 16 December 2022 Catchwords: FAMILY LAW – EX TEMPORE REASONS - Interim application – Application in a proceeding filed by the mother seeking the child travel from Australia to New Zealand for the purposes of time-spending – Where the parenting relationship between the child and the mother has broken down – Where the child does not wish to travel to New Zealand for the purposes of time-spending with the mother - Where the Court considers the child’s views in this matter to be determinative - Application dismissed. Cases cited: Family Law Act 1975 (Cth) ss 69ZL, 60CC Division: Division 1 First Instance Number of paragraphs: 40 Date of hearing: 16 December 2022 Place: Adelaide (via videolink) The Applicant: Litigant in person The Respondent: Did not participate Counsel for the Independent Children's Lawyer: Ms Phillips ORDERS
SYC 7503 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CARTER
Applicant
AND: MS HENDRY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
16 DECEMBER 2022
UPON NOTING:
A.That the mother is on notice that in the event that she does not attend and participate in the adjourned hearing the court is likely to be make orders in terms of those circulated by the ICL and as sought by the father in circumstances where the father consents to the orders proposed by the ICL and the ICL does not oppose the injunction being pursued by the Father.
THE COURT ORDERS THAT:
1.That the Application in a Proceeding filed on 14 November 2022 and the Response to an Application in a Proceeding filed on 23 November 2022 do stand dismissed.
2.That the proceedings be adjourned to 19 December 2022 at 4.30pm (Adelaide time) for consideration of the making of a final order in terms of the amended draft Minute of Order circulated by the ICL on 16 December 2022 by email with such hearing to take place by MT.
3.That the parents are personally directed to attend the adjourned hearing by Microsoft Teams on 19 December 2022.
4.That in addition to the draft Minute of Order proposed by the ICL the father seeks a final order restraining the mother from coming within 500 metres of his home.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Carter & Hendry has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J
These proceedings come before me today in relation to the parties' two children, Y, born 2008, and Z, born 2009.
Short form reasons & conduct of hearing
Given the interlocutory nature of the hearing I intend to give only brief reasons, as s 69ZL of the Family Law Act 1975 (Cth) permits me to do.
I also indicate that today's reasons are being delivered ex tempore in circumstances where I heard submissions yesterday afternoon, and ultimately, at the conclusion of yesterday's hearing, some time was spent discussing with the parties an overall resolution of the parenting proceedings in relation to both children.
The matter was adjourned until today to enable the Independent Children's Lawyer (‘ICL’) to circulate a draft Minute of Order. The ICL has complied with that request by the Court and, indeed, I and each of the parents have a copy of that draft proposed order.
When the matter was adjourned yesterday until today, it was with the intention at the Court's end that, firstly, I would deliver reasons in relation to the interlocutory applications before the Court and that thereafter consideration would turn to a final parenting order in relation to both children.
During yesterday's hearing the mother indicated in principle that she would consent to orders in terms that have now been reduced to the draft order prepared by the Independent Children's Lawyer. The father equally indicated the same preparedness.
Unfortunately, for reasons which are not clear to the Court, the mother has not availed herself of the opportunity to attend and participate in today's hearing. That in and of itself, when I come to the reasons in relation to the interlocutory proceedings, is a matter of some significant concern to the Court.
The interim applications
These proceedings relate to an Application in a Proceeding filed by the mother on 14 November 2022 with respect to the question of travel for the child Z to visit the mother and the child Y in New Zealand over the upcoming Christmas and New Year school holiday period.
The father filed a Response to the Application in a Proceeding, in effect consenting to Z travelling to New Zealand to visit the mother and his sister in the upcoming school holiday period. However the father’s consent to such travel was predicated on two conditions. Firstly that the father accompany Z and secondly that any time-spending between Z and Y take place with and supervised by the father. The father otherwise proposed that Z spend time with the mother as agreed in writing or as ordered by the Court.
The Independent Children’s Lawyer does not support the position of either parents.
During yesterday's hearing the father amended his position, in light of the submissions made; particularly the written submissions of the Independent Children's Lawyer, and the matters raised in the Child Impact Report of 5 December 2022. The position promoted by the father was ultimately that he did not pursue any interlocutory orders for the upcoming school holiday period. Rather, the father, to his credit, was focused on an overall final resolution of the matter that would see an end to the parenting litigation between these parties.
Background
I now turn to give a very brief history of the matter. I do not propose to give a very detailed history. I say that for a range of reasons, but principally because the history in this matter is lengthy and fraught, and it would take me some considerable time to give the lengthy history of the matter justice in any reasons.
Having said that, as I indicated earlier, I have the case outline prepared by the Independent Children's Lawyer. That outline is detailed and considered and it is one that I adopt in its totality for the purposes of my reasons. Importantly for present purposes, the ICL’s outline sets out a very brief summary as to the history of the matter and how it has come to be that the child Y lives with the mother in New Zealand and the child Z lives with the father in Australia.
I otherwise have had regard to the entire history of these proceedings.
The child impact report
Insofar as the parties' competing parenting applications are concerned, and particularly for present purposes the mother's interlocutory application, significant benefit has been gained, from the contents of the Child Impact Report prepared by a Court Child Expert on 5 December 2022. That Child Impact Report was prepared in circumstances where the Court Child Expert conducted interviews with each Y and Z.
As I indicated to the parties and the Independent Children's Lawyer during yesterday's hearing, that report makes for very confronting reading. It makes for confronting reading because what is clear to the Court is that both of these children are weary, they are battle worn, they are battle scarred, and they want the dispute between their parents to come to an end.
The father, to his credit, sees the value in the proceedings concluding. However sadly for these children, the mother does not now appear to share that good sense at this stage.
The Child Impact Report is useful for a range of reasons. One of the insights gained by the report is that the Court Child Expert canvassed how it might be that these children may be able to travel, either Z to New Zealand or Y to Australia, for the purposes of time-spending.
For the present moment the only issue I need to turn my mind to is the question of Z travelling to New Zealand, because that is the application that is presently before the court for determination.
On that topic, Z expressed very clear, considered and careful views to the Court Child Expert. Ultimately, Z is of the view that he does not wish to travel to New Zealand for the purposes of time-spending with his mother. While Z is prepared and wants to have a relationship and he wants to see his sister Y, he ultimately, to quote paragraph 23 of the report, “is willing to sacrifice his face-to-face relationship with [his sister]… until he is 18 years” of age, because he does not feel comfortable in managing the poor parental relationship that he has with his mother. This is a factor that weighs heavily in my consideration of the application before me today.
The submissions of the independent children’s lawyer
It is also not lost on me that the written submissions of the Independent Children's Lawyer raise a number of other concerns and factors which exercise the Independent Children's Lawyer's mind in opposing the application made by the mother. Those topics relate to a range of matters and include not only Z's expressed views and wishes.
The additional concerns of the Independent Children’s Lawyer include concerns about the parental relationship, or lack thereof, between Z and the mother. I'm conscious that from the Court Child Expert's Report, Z indicated that some time last year (July of last year according to the mother’s oral submissions), Z ultimately determined to vote with his feet and terminate even a communicative relationship with the mother.
Accordingly, the Court understands that there has been no communication between Z and his mother since July 2021. In his interview with the Court Child Expert, Z described his decision in that regard as one in which he decided to say “goodbye” to the mother.
Importantly, Z has not seen his mother on a face-to-face basis since 2019. Equally, Y has not seen the father for the same period of time.
It would be an understatement to say that the parenting relationship between Z and the mother has broken down, at this stage, it would appear, irretrievably.
Despite this state of affairs regarding the relationship between Z and the mother, the ICL submitted that if the relationship is to be repaired there would need to be some professional assistance. That is a factor that weighs heavily on my mind given the state of affairs and the history of the matter to date.
The mother to her credit indicated in her oral submissions that she did not know how she might restore the relationship with Z. She also appeared to indicate a preparedness to take on board the advice of experts. Whether that ultimately comes to fruition is a matter that remains to be seen.
The other issues that concern the Independent Children's Lawyer stem from the very significant child protection concerns that have been raised in relation to the child Y.
The Court has the benefit of a multitude of documents that have been produced and have now been filed, annexed to an affidavit of the Independent Children's Lawyer filed on 9 December 2022.
The concerns raised by the Independent Children’s Lawyer in relation to child protection matters find their genesis in the documents that have been produced. The concerns include concerns in relation to Y's exposure to issues in the relationship between the mother and her ex-partner, issues in relation to allegations or concerns that Y is being groomed by the mother's ex-partner, concerns that Y is not regularly attending school, but significantly from my perspective, and most concerning, is self-harm by the child Y earlier this year.
The reports in relation to that self-harm make for very concerning reading. I say that because they indicate to me, if accurately recorded, an unpreparedness on the mother's part to support Y in a time of dire need. The records appear to indicate that on the day of Y’s self-harm the mother was difficult with authorities, she did not cooperate, and she put her own wishes and views ahead of Y's life-critical needs at that juncture.
While I note that there was some significant delay, Y was ultimately taken to hospital following her self-harming. However it was not without some difficulty. I also am conscious that Y did not remain in hospital. It is apparent from the records that there was a voluntary discharge by the mother on that occasion.
I note that the mother in her oral submissions indicated that she did not consider any of the records to be accurate in that regard. While I cannot at an interim hearing such as this determine that factual dispute that the mother raises about the records, for present purposes today it would be remiss of me to dismiss the records out of hand simply because the mother asserts they are inaccurate.
All of these matters that have been raised by the Independent Children’s Lawyer, when I weigh them together, speak heavily against the Court giving any imprimatur at this juncture for Z to travel to spend time in New Zealand with the mother and/or Y.
Best interest considerations
I am concerned that any orders that I make must be in Z's best interests.
The primary consideration, set out in s 60CC of the Family Law Act 1975 (Cth), mandate that the Court make orders that do not see Raphael exposed to harm. In all of the circumstances, as outlined briefly by me today and discussed in more detail in the Independent Children's Lawyer's written submissions, I have some significant concerns that Z would be exposed, at the very minimum to emotional harm and/or something more serious if the orders sought by the mother are made.
The other issue I have not yet touched upon is the concerns raised by the Independent Children's Lawyer, given the history of the matter that the mother may not return Z to Australia. This concern is one that also weighs heavily in my mind.
While the primary considerations have been enlivened in this matter and, frankly, are determinative in many respects of the application today, I am also tempered by the additional considerations prescribed by s 60CC.
In particular the views expressed by Z are significant and difficult to ignore. While I accept that the Court is not required to give precedence or determinative weight to the views expressed by a child, in all of the circumstances of this case, at this juncture it is difficult to see how Z's views would not be determinative. To ignore them, given the history of the matter, would put Z's psychological wellbeing at risk, in my view.
Conclusion
It is for all of those reasons that I have come to the considered decision that I do not support the mother's application for Z to travel to New Zealand, and the application is to be dismissed.
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 19 January 2023
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