Charles and Hughes (No 2)

[2017] FamCA 519

FAMILY COURT OF AUSTRALIA

CHARLES & HUGHES (NO 2) [2017] FamCA 519

FAMILY LAW – CHILDREN – Where there are two children of the marriage – Where only one child is the subject of proceedings –With whom the child lives –best interests of the child – Where the father seeks that the child live with him – Where the father sought no orders that the child spend time with him should the application for primary residence be unsuccessful – Where the Court finds a change of residence would not be in the child’s best interests – Orders made for the child to live with the mother – No orders made for the child to spend time with the father – Orders made for the mother to advise the father of all sporting, school and cultural events the child is to participate in and the father be at liberty to attend those events.

Family Law Act 1975 (Cth) ss 60CC, 60CC(2),60CC(2A) 60CC(3) 60B(1), 60B(2), 60B(3), 61DA, 65DAA(1), 65DAA(3),65DAA(4), 65DAA(5)

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

APPLICANT: Mr Charles

RESPONDENT: Ms Hughes

INDEPENDENT CHILDREN'S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3333 of 2011

DATE DELIVERED: 20 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Stevenson J

HEARING DATE: 16-19 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan, Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Morley

SOLICITOR FOR THE RESPONDENT: Marriott Oliver, Solicitors

INDEPENDENT CHILDREN'S LAWYER: Ms Lioumis, Legal Aid NSW

Orders

1. All existing parenting orders herein are discharged.

2. The parties have equal shared parental responsibility for the child C born on … 2003 ("C").

3. C will live with the mother.

4. The mother will advise the father of all sporting, school and cultural events in which C is to participate and the father is at liberty to attend such events.

5. The mother will advise the father as soon as is practicable of any injury or illness which is suffered by C and requires medical treatment.

6. The mother will advise the father of the names and contact details of all health care professionals with whom C consults from time to time and the father is authorised to obtain all information as he may request from such practitioners.

7. Both parties are authorised to obtain such information as they may request from staff of the school in which C is enrolled from time to time and to attend events at the school to which parents are invited in the ordinary course.

8. The mother and the father are directed to file and serve written submissions in relation to the costs of the Independent Children's Lawyer and the fees of the single expert Dr Q within seven days.

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 Charles & Hughes (No 2) 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 PARRAMATTA

FILE NUMBER: SYC 3333  of 2011

Mr Charles

Applicant

And

Ms Hughes

Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

Introduction

1. Mr Charles and Ms Hughes are the parents of two children:

   ·B born in 2001 (16)

   ·C born in 2003 (13).

   These proceedings concern parenting arrangements in respect of C.  Unfortunately, B's relationship with the father has broken down and she last spent time with him in March 2012.

2. Final orders in relation to C and B were made on 7 April 2014, which provided relevantly as follows:

   ·the parties have equal shared parental responsibility for the children

   ·the children live with the mother

   ·both parents do all things necessary to facilitate any reasonable request by B to spend time with the father

   ·C spend time with the father each alternate weekend from 6.00 pm on Friday until 7.00 pm on Sunday;  for half of all school holidays and on special occasions

   ·the parties and the children continue family therapy with Ms I.

3. C spent no time with the father in July and August 2015.  She recommenced FaceTime contact in late August / early September 2015 and spent time with him on Father's Day.  C spent time with the father between September 2015 and December 2016, albeit with some interruptions.

4. In approximately April 2016 the father began to make plans for a trip to Hawaii and Canada with his current wife, her two children and C in December 2016/January 2017.  The father told C of this proposed trip.  In August 2016 the mother refused consent for C to accompany the father on this holiday.

5. On 25 November 2016 orders were made, following a contested hearing, which permitted the father to take C on the holiday overseas.  At changeover on 17 December 2016, C refused to get out of the mother's car.  She did not go on the overseas trip and has since spent no time with the father.

6. On 23 July 2015 the father decided to file an Initiating Application, whereby he sought orders that C live with him.  By an Amended Initiating Application filed on 22 December 2016 the father sought the following orders:

   1.That all previous orders as to parenting made in relation to the child [C] ("[C]") born … 2003, be and are hereby discharged.

   2.That subject to the subsequent matters (if any) each parent be and is hereby granted equal shared parental responsibility for [C].

   3.That [C] live with her father and spend time with and communicate with her mother as follows, namely:-

   (a)That for three (3) months following the making of orders (and subject to the view of the Court) [C] spend no time and have no communication with her mother or sister [B] born … 2001 ("[B]").

   (b)That after the expiration of three (3) months, or such other time as the Court may order, [C] spend time and communicate with her mother as follows:-

   (i)During school terms from 6.00 pm Friday until 6.00 pm Sunday evening;

   (ii)During school holiday periods, as agreed between the parties but failing agreement for the first half in odd numbered years and the second half in even numbered years;

   (iii)On the Mother's Day weekend from 6.00 pm Friday until 6.00 pm Sunday if [C] is not otherwise in the mother's care that weekend.

   4.That in the event that the Mother's weekend falls on Father's Day, the Mother's time is suspended and [C] shall be in the care of the Father that weekend.

   5.That for the purposes of facilitating these orders:-

   a.The mother's weekend during school terms with [C] will occur on the weekend that the father and his wife do not have care of the wife's children, with the intent that [C] is in the father's care on the same weekend as the wife's children; and

   b.The Father will notify the Mother no less than four weeks prior to the start of each term as to the weekend arrangements for the upcoming term;

   c.School holiday periods shall be defined to commence as from 9.00 am on the first Saturday commencing the last day of school for each term and shall end at 6.00 pm on the day before [C] returns to school;

   d.For the purposes of Order 4(c), if there is a pupil free day, or public holiday falling the day immediately before [C] returns to school, that day is included in the holiday period for the purposes of these Orders and the holiday period would conclude at 6.00 pm that day.

   e.In the event that there are an odd number of nights in a holiday period, then the parties shall alternate who gets the additional night, so that on the first occasion such a situation arises, the Mother will have the extra night, and on the next occasion it arises, the Father shall have the extra night.

   6.That each party will, whilstsoever [C] is in their care, notify the other immediately of any serious illness or injury suffered by [C] whilst in their care.

   7.Each party will notify the other of any change to their address and/or landline and/or mobile telephone numbers and/or their email address within 48 hours of such change.

   8.If requested by the other, each party will notify the other of the name, address and telephone number of [C's] treating doctor and sign any authority the other may provide to authorise that doctor in writing to release to the other particulars of [C's] health or treatment at any time requested by them.

   9.That both the Mother and the Father are permitted to remove [C] from the Commonwealth of Australia for the purposes of travelling to any country overseas subject to Order 10 of these Orders.

   10.That in the event that either the Mother or the Father intends to travel overseas with [C]:

   a.the period of travel is to coincides (sic) with the time [C] would otherwise be spending time with the travelling parent and does not encroach on the other parent's time, unless the other parent specifically agrees in writing;

   b.The travelling parent provide the other parent with a written notice of the proposed travel, including the following details:-

   i.A copy of the proposed itinerary for the duration of the trip;

   ii.the destination and details of accommodation;

   iii.the mode of transport including, where relevant, flights numbers and times and dates of departure and return;

   iv.a contact telephone number and address for [C] for the duration of the holiday; and

   c.Such notice must be provided at least 30 days prior to departure.

   11.The Father will retain [C's] passport and, in the event that the Mother is travelling overseas with [C], shall provide [C's] passport to the Mother at least 7 days prior to the scheduled trip and within 3 days of any request, shall provide a copy if required for the purposes of obtaining a Visa or any other document required to facilitate the overseas travel.

   12.That within seven (7) days of receipt of a request from one parent, the other parent will do all acts and things and sign all documentation necessary to obtain, renew or replace as the case may be a passport for [C].

   13.That in the event that either party refuses or neglects to execute any deed, document or instrument to give effect to the Orders made herein within fourteen (14) days of such document being tendered for signature, the Registrar of the Federal Circuit Court of Australia, Sydney is hereby appointed pursuant to Section 106A of the Act to execute any such deed, document or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of any such deed, document or instrument and for the purposes of this Order a party shall be deemed to have refused or neglected to execute any such deed, document or instrument if the said deed, document or instrument is not returned to the submitting party within fourteen (14) days of the said document being forwarded to the other party's solicitor by document exchange or to the other party by ordinary mail.

   14.Such further Order as the Court sees fit.

   Notation:

   A.That the father shall facilitate such family therapy or other therapy as may be recommended or ordered."

7. In his written submissions senior counsel for the father indicated that he sought no orders that C spend time with him, in the event that he is unsuccessful in his application for primary residence.  Senior counsel explained the father's rationale as follows:

   The proposal of the ICL, differing in substance from the status quo only by virtue of a reduction of the father's time cannot be said to promote a "meaningful relationship" with both parties.  Moreover, it guarantees [C] a continuation of stress and tension (or as was put by Learned Counsel for the ICL “exhaustion”).

   For that reason, if that is the way ultimately the Court proceeds the father proposes that there be no orders made in his favour, so as to relieve [C] of those significant pressures.

8. By a Response to Initiating Application filed on 13 September 2015 the mother sought the following orders:

   FINAL AND INTERIM ORDERS SOUGHT

   1.That the respondent mother has leave to amend her final Orders.

   2.That the respondent mother have sole parental responsibility for [B] born … 2001 and [C] born …, 2003.

   3.That [B] and [C] shall continue to live with their mother.

   4.That [B] and [C] shall spend time with their father in accordance with the children's wishes.  The mother agrees to continue to encourage the children to maintain a relationship with their father.

   5.That the father continues to be notified of the children's events and welcome to attend school and sporting events.

   6.That [Ms I] be removed as the family counsellor and should the mother or children require therapy or counselling, the mother be permitted to take the children to a qualified professional in [F Town] or within 5 kilometres to the mother's home.

   7.That this matter be resolved through mediation with [S] Family Relationship Centre [F Town].

   8.That the mother is permitted to issue a subpoena to [Ms T] for her counselling notes and file.

   9.That the mother is permitted to issue a subpoena to [U] school for [C's] file.

   10.That the Applicant father pay all costs of and incidental to the father's application.

   11.That the mother may take the children to Adelaide on a pre-booked trip for an athletics competition from Thursday 01.10.15 to Tuesday 6.10.15.

   12.That the mother is permitted to take the children to athletics training and carnivals in which the children wish to attend to compete in or spectate."

9. The mother was an unrepresented litigant when she filed this Response.  At trial, with the benefit of a solicitor and counsel, the mother sought the following orders:

   1.That all previous parenting orders relating to the child C born … 2003 are vacated.

   2.That the parents have equal shared parental responsibility for the child [C] born … 2003.

   3.That the child live with her mother.

   4.That the child spend time with and communicate with her father at such times as the child wishes.

   5.That the mother do all things necessary to facilitate the child spending time with her father and communicating with her father in accordance with the child's wishes from time to time.

   6.That each of the parents is restrained from communicating any comment derogatory of the other parent, any member of the other parent's household or any member of the other parent's family to the child or within the presence of the child or within the child's hearing.

   7.That each of the parents is restrained from allowing the child to remain in the presence of any person who is communicating any comment derogatory of the other parent, any member of the other parent's household or any member of the other parent's family to the child or within the presence of the child or within the child's hearing."

10. The ICL proposed the following orders:

    1.That the parents have equal shared parental responsibility in relation to the child [C] born … 2003 (the child).

    2.That the child shall live with the mother.

    3.That the child shall spend time with the father, for the first weekend of each month from 7pm Friday through to 9pm Sunday (if Monday is a public holiday the father’s time will be extended to the Monday).

    4.That the mother shall deliver the child to the father’s residence at the commencement of time and the father shall deliver the child to the mother’s residence at the conclusion of time.

    5.That the mother shall advise and shall keep the father advised of any sporting, school or cultural event that the child is attending or is involved in and the father shall be invited to and be permitted to attend such events.

    6.That each parent shall advise the other in the event that the child is injured and requires medical treatment while the child is in their care.

    7.The mother shall advise and keep the father advised of all medical practitioners upon who the child attends and this shall include general practitioners, specialists, psychologists, counsellors or any other practitioner.  Such advice from the mother shall be provided prior to the child attending at any practitioner.

    8.That the child shall not attend on any psychologist or counsellor unless she is referred by her general practitioner and the recommendation of the psychologist or counsellor shall be made by [Ms I], psychologist.

    9.Both parents shall be permitted to request to receive information from any practitioner listed in order 7 and 8 at their request.

    10.Both parents shall be permitted to receive information in relation to the child’s schooling and both parents shall be permitted to attend upon the school for all usual school functions.

    11.That the father shall spend such other time with the child at the child’s request and the mother shall facilitate such time.

    12.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

    13.That each parent shall pay the cost of the Independent Children’s Lawyer in the sum of $6522.00."

Background

1. The mother and the father, who are aged 40 and 46 respectively, married and began to live together in 2000.  They separated on 15 August 2009, after having cohabited for approximately nine years.  They were divorced by an order made on 25 August 2011.

2. In early 2012 the mother married Mr V, from whom she separated late in 2012.  She formed a relationship with her current partner, Mr W, in approximately 2014.  Mr W is a 44 year old tradesman who has two children.  The mother and Mr W do not live together.

3. In February 2011 the father commenced a relationship with his current wife, Ms Charles, after they met at a school attended by their respective children.  .  She has two children from a prior marriage to Mr X, they being L and M ("M") who are aged 17 and 15 respectively.

4. After the parties separated in August 2009, the children spent five nights per fortnight and school holiday time with the father.  Additionally, the father attended the children's school and sporting events.  It was common ground that both B and C are gifted athletes.

5. These arrangements continued until July 2011, when the mother moved with the children to Y Town on the New South Wales South Coast.  The father opposed this relocation but the mother removed the children from Sydney without his knowledge or consent.

6. The father commenced proceedings in the Federal Circuit Court, by which he sought orders which included an injunction to prevent the relocation of the children.  On 10 August 2011, the father consented to the relocation of the children to the South Coast.  He deposed that he gave this consent because the mother had already relocated the children and told them that he “was taking her to court.”  These orders also provided that the children spend time with the father for three out of five weekends;  the whole of the Term 3 school holidays and half of the other school vacations.

7. Early in 2012 the father suggested to the mother that he take the two children on a trip to Europe with his wife and her two children.  The mother refused to consent to this proposal.

1. In February 2012 the mother began to communicate with Mr X, the ex-husband of Ms Charles.  She maintained that they met by chance, when their respective children recognised each other in a public place.  Mr X and Ms Charles were engaged in litigation concerning L and M and, on 26 June 2012, the father commenced parenting proceedings.  Ms Hughes and Mr X began to exchange information in relation to their respective litigation.  On 16 October 2012 the solicitor for Ms Charles wrote to the lawyer for Mr X in objection to this communication.

2. On 17 December 2012, Mr X texted to the mother:

   “[Ms Hughes], thanks so much.  I will email you later. Needless to say I don’t think the spineless prick will be laughing today as [Z] and I have make the decision to go for full custody.  The physyc (sic) report was very good and it seems finally we have the evidence we need.  One day that bloke is going to realise what a hypocrite he is and what has the physyc has done to my relationship with his kids!!  … thanks again … keep you informed.”

   The mother replied:

   That is great about the psych report.  We will await ours in Jan/Feb and look to do the same.  We are going to see if your psych report can be used in our case and vice versa.

3. In a subsequent text message to a number of recipients, including Mr X, the mother wrote inter alia:

   "… [Mr Charles'] lawyer was shut down on all points with judge saying that he's baffled why the applicant father wants a hearing for custody of a 12 year old who wants nothing to do with him when she's old enough to make up her own mind …"

1. In another text message to Mr X the mother wrote inter alia:

   … he will just keep dragging it on until he finds a psych that writes what he needs.  He's sourcing his hospital colleagues now …

   This message referred to the single expert, Dr Q, who happened to work as a lecturer at AA University at a time when the father was employed at the same institution.  There was no basis whatsoever for this suggestion of a lack of impartiality on the part of Dr Q.

2. On 4 February 2014 the solicitor for Ms Charles again wrote to the lawyer for Mr X in objection to this communication.  There was no evidence of any subsequent inappropriate communication between the mother and Mr X.

3. In April 2012 the mother arranged for B to consult with a psychologist, Ms K, without the consent of the father.  At this time, the mother advised the father that B was resistant to spending time with him.  As noted the father commenced proceedings in the Federal Circuit Court on 26 June 2012, after B had spent no time with him for approximately three months.  B refused to get out of the mother's car on 23 March 2012 and, thereafter, the mother brought only C to changeovers.

4. In November 2013 the father resigned from his employment.  When he informed the Child Support Agency that he was in receipt of no income, a new assessment issued and he stopped making payments.

5. In December 2013 the father told the mother that he wished to take the children on a three-week trip to Europe with his wife and her two children.  He purchased tickets, which he gave to the children as Christmas presents.

6. In January 2014 the mother lodged an objection to the November 2013 Child Support Assessment.  A new assessment was issued, and whereupon the father discharged the arrears and recommenced regular payments.

7. In February 2014 the mother stopped bringing either child to changeovers.  She emailed the father as follows:

   Please provide receipt providing confirming you have transferred child support payments for the girls.  You have not paid a cent in months, therefore I do not have funds to take or collect [C].

8. On 17 March 2014 the parties engaged in a Legal Aid mediation and narrowed the issues for determination at a trial fixed for March/April 2014.  The outstanding issues were resolved by way of final orders made on 7 April 2014.  These orders included a provision that C travel overseas with the father between 17 June 2014 and 5 July 2014.

9. The father and C spent this period on a holiday in Europe with Ms  Charles and her children.  The mother alleged that the father refused to allow C to telephone B on her birthday.  The father maintained that C spoke with the mother and B every two to three days.  He deposed that C did speak to B on her birthday.

10. In September 2014 the father and C spent a day alone together at Cronulla.  In 2014 C chose to spend her birthday at Luna Park with the father, Ms Charles, L, M and two of her friends.

11. The orders of 7 April 2014 provided, inter alia, that the parties and the children continue to engage in family therapy with Ms I.  She had been appointed to carry out family therapy by an interim order made by consent on 21 March 2013.  The father attended two individual appointments with Ms I prior to the overseas trip in June/July 2014.  In December 2014 Ms I advised the father that the mother indicated to her that she did not wish to re-engage in family therapy.

12. On 14 December 2014 the mother advised the father by email of allegations that C had been bullied at BB School.  The mother was employed at this school and she appears to have become closely involved in the handling of this incident by staff.

13. The mother informed the father that she intended to withdraw C from BB School and kept her at home for the remainder of the term.  The father "did not object" to the mother's keeping C out of school for the remainder of the 2014 school year.  The mother did not seek the father’s consent when she enrolled C at CC School for the 2015 year.

14. C spent the period from 19 December 2014 to 24 December 2014 with the father, his wife and her children at a resort in DD Town.  After Christmas they visited C's cousins and her grandmother and she had a sleepover at the home of a friend.  Another of C's friends stayed in the father's home during these Christmas school holidays.  In February 2015 C spent a weekend with the father and his family at EE Town.

15. On 6 February 2015 the mother requested that Ms I nominate a

    
    

    F Town-based therapist.  The mother claimed that she was too busy to travel to FF Town for therapy with Ms I and that she could not afford the cost of this travel.  The father did not consent to the engagement of a new therapist but, nonetheless, the mother proceeded to arrange an appointment for C with Ms T.  She had been recommended as a F Town-based therapist by Ms I.

16. In April 2015 C had a holiday overseas with the father, his wife and her children.  The father deposed that C had her iPad and mobile phone, both of which were equipped with WhatsApp, during this trip.  The father maintained that C thus was free to communicate with the mother at any time.

17. The father deposed that C encountered some children from BB School during this holiday, which prompted discussion about which high school she would attend in 2016.  According to the father, C told Ms Charles that she was reluctant to attend F Town High School with children who had been involved in the bullying incident at BB School.

18. The father deposed that, after they returned from this holiday, he discussed with C the option of her attending HH School at F Town or U School at Suburb II.  The father admitted that he said to C "we don't have to tell mum yet" in relation to U School.

19. In late May 2015 the father began to plan a skiing trip to Jindabyne with C for the July school holidays.  On 3 July 2015 C told the father that she did not want to go on this holiday and said "I'm at an age where I have choices and I'm not coming up".  The mother did not bring C to the changeover and she did not go on this holiday.  C spent no time with the father during these school holidays.

20. On 8 July 2015 the father spoke by telephone to Ms T.  He deposed that the following conversation took place:

    118.On 8 July 2015 [Ms T] phoned me and we had a discussion.  She said "I have been seeing [C]".

    I said "What is the nature of the therapy?  Do you know about the family law matter and our background?"

    [Ms T] replied "I know you are recently separated, and that you live in Sydney and don't have parental responsibility, which can be frustrating".

    The father asked Ms T "have you spoken with [Ms I] about this?" and she replied "who is [Ms I]?"

21. On 14 July 2015 the father and C spoke by telephone.  She said that she did not want to spend the coming weekend with him and added "I want to come up when I feel like it".  According to the father, C then said "my psychologist said that I don't have to come up and that I just need to stand up".

22. In July 2015 the mother stopped bringing C to the changeover point and suggested that the father travel to the F Town area to spend time with her.  As noted above, C recommenced FaceTime contact with the father in late August/early September 2015 and spent time with him on Father's Day 2015.  Thereafter, C recommenced spending time with the father.  In July 2016 C went on a skiing holiday with the father, his wife, her children and her friend.

23. In 2015 C exchanged affectionate text messages with Ms Charles.  On 25 September 2015 Ms Charles texted C:

    Hi [C]. Nan’s Rod Stewart recipe!! Xx

    On 30 September 2015 Ms Charles texted C:

    I found the recipe!

    C replied:

    Excellent!  Won’t be long and we can make it together! Xxx.

24. On the birthday of Ms Charles in 2016, C texted her:

    Happy birthday [Ms Charles]!”

    Ms Charles replied:

    Thanks [C].  I’m having a lovely day.  Wish you were here to help celebrate.  [FF’s] birthday next weekend!”

25. In August and September 2016 the father's solicitor wrote to the mother's lawyer in relation to the proposed trip overseas.  Having received no response, the father filed an Application in a Case.  As noted above, orders were made which provided for the father to take C on this holiday on 25 November 2016.

26. C spent the weekend of 26 and 27 November in the care of the father.  They attended the Christmas celebrations of the paternal family and the father took C to an athletics carnival.  The father deposed that he did not speak to C about the orders that she accompany him on the overseas trip.

27. After the weekend of 26/27 November 2016, there were no further FaceTime calls between the father and C.  He sent her text messages but apparently received no response.  Obviously, the mother had informed C of the orders made on 25 November 2016.

28. As noted, C refused to get out of the mother's car at the changeover on 17 December 2016.  The mother brought B to this changeover, for the first time in several months.

Approach to these proceedings

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. 

2. The court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in s 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 240 CLR 461; [2010] HCA 4 the High Court of Australia said:

   8. Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   9.Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”

   …

   13.Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

   …

   15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s  65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…

The evidence and witnesses

1. The applicant father relied on the following affidavits:

   1.        Mr Charles (the father) sworn on 16 December 2016

   2.        Ms Charles (the father's wife) sworn on 16 December 2016

   3.        Mr Charles (the father) sworn on 12 January 2017.

   Both the father and his wife Ms Charles gave oral evidence by way of cross-examination.

2. The mother relied upon her affidavit sworn on 19 December 2016, which she prepared herself.  Much of the contents of this affidavit were inadmissible and subject to proper objection by senior counsel for the father.  Commendably, counsel for the parties conferred and largely agreed upon a redacted version of the mother's affidavit.  The mother gave oral evidence by way of

   
   

   cross-examination.

3. The single expert, Dr Q prepared a report dated 14 April 2016.  Dr Q gave oral evidence by way of cross-examination by counsel for the parties and the ICL.  Dr Q carried out her interviews and observations approximately twelve months before she gave evidence at the trial.

4. As appears below, the mother recorded events and conversations which took place at the failed changeover on 17 December 2016. The mother made this recording without the knowledge or consent of the father. I issued a certificate to the mother pursuant to section 128 of the Evidence Act 1995 (Cth) in the following terms:

   I, the Honorable Justice Stevenson of the Family Court of Australia give to [MS HUGHES] this Certificate under section 128 of the Evidence act 1995 (Commonwealth) in relation to evidence willingly given by the said [MS HUGHES] on hearing before me of proceedings SYC 3333 of 2011 between her and [Mr Charles] under the Family Law Act 1975 commencing 16 January 2017, such evidence given by her being in relation to the recording of both sound and video of a conversation between [MS HUGHES] and [Mr Charles] and [Ms Charles] and [C] occurring in the car park of the McDonalds Family Restaurant at [Suburb G] in New South Wales despite such recording being contrary to law and in particular, but not limited to, the provisions of the Surveillance Devices Act 2007 (NSW)."

The best interests of C:  Section 60CC considerations

Primary considerations

1. Dr Q addressed in general terms the risks to a child of estrangement from a parent.  She opined as follows:

   72.Children who are estranged from a parent as is the case with [B] and potentially [C] can be alarmingly at risk because of the impact on their future emotional well-being and relationships.  [Mr Charles] and [Ms Hughes] need to be mindful that the "splitting" of the parents by their children into the good (mother) and the bad (father) which they are currently manifesting as a defence that, if they do not work through, will follow them through their adolescence and adulthood and manifest in an a number of ways.

   73.This may include steering away from relationships that seem difficult or challenging and avoiding working through personal difficulties which ultimately does not assist in building an adolescent's resilience.  The self esteem of children who are estranged from one parent can also potentially be undermined as they struggle with their own sense of being either "perfectly good" like one parent or "completely bad" like the other and therefore they may find it difficult to manage ambivalence or tolerate opposite feelings.  Children who are denied a relationship with one parent also run a high risk of suffering from anxiety, depression, and
   self-destructive acting-out behaviour.  Additionally, for girls the absence of their father in their lives can result in them becoming overly submissive and compliant and feel under-confident about their femininity.

   74.As the children move through their adolescence and become more mature and independent in their thoughts, it may be that they find the enmeshment with their mother difficult to manage and challenge her authority over issues that conflict with her views by displaying oppositional behaviour.  If this was to occur, the children could well benefit from the support of [Mr Charles].  There is a chance, furthermore, that, in the longer term, the children may resent [Ms Hughes] whether rightly or wrongly for denying them a relationship with their father and they may seek [Mr Charles] out, even possibly to the point of rejecting [Ms Hughes].  It is not uncommon for children who are caught in the conflicted adult dynamics and feel their loyalties are split to swing their allegiances to each parent particularly if they encounter issues which they cannot resolve with the primary care-giving parent and they have poor skills to repair ruptured relationships as is the case with [B] and [C].

   75.Furthermore, the incapacity to have a relationship with both parents impacts adversely on the children achieving differentiating of
   self which is an important dimension of identity formation.  Without this, the children may be left with unresolved issues about their capacity to reality test, to tolerate ambivalence, to make good judgments and to form an identity separate to their mother."

1. It is thus well apparent that the expert evidence established a theoretical benefit to C of a meaningful relationship with the father.  His commitment to a constructive relationship with C is beyond dispute.  As appears below, I have real reservations that the mother has now or has had in the past a commitment to fostering a proper relationship between the father and either child.

2. The evidence did not establish any need to protect C from exposure to abuse, neglect or family violence in the care of either parent.  It may be arguable that the mother's conduct with regard to C's relationship with the father amounts to psychological abuse.  As appears below, I consider that the father has also played a role in the genesis of the regrettable situation in which C has been placed at the present time.

Section 60CC(3)

Additional considerations

1. There is no doubt that C articulates that she has no wish to spend time or communicate with the father.  Obviously, she has repeated such statements to the mother on numerous occasions and found a receptive audience in the maternal household.

2. C expressed to Dr Q a clear view that she wishes to live with the mother and see the father "maybe once per year".  Dr Q reported as follows:

   63.[C] stated that she wishes to live her mother and, just like her sister, does not spend time with her father, except maybe once per year.  She suggested that, at her age, [B] who was afraid of her father and resorted to sleeping with a rock under her pillow, had the choice of not seeing her father.  She added that she does not consider there are any benefits from having a relationship with her father and she does not think there would be any losses for her resulting from not seeing him.  [C] commented that she might consider seeing her father if he was a “regular Dad" who was not arrogant, did not expect her to keep secrets from her mother or bribe her (even though he does not do that much now).  She added that her father would need to "be nice and let me have choices".'

3. Dr Q observed that C "presented as quite tense and at times uncertain" at interview.  She listed several complaints in regard to the father, which Dr Q reported as follows:

   58.…She said at the outset that she did not really like him because he “always makes up lies", "bribes me" and "gets really angry at times" including once breaking the doors off their hinges.  She asserted that he tried to secretly enrol her in a school in Sydney.  [C] accused her father of making her change words in an email to say that she liked [Ms Charles].  She lamented that her father does not allow her to participate in sporting competitions and stated that she is upset that he doesn't attend any of her activities as she is, after all, his child.  She complained that her father seems more interested in his
   step-children.  [C] referred to how her father has no rules at his home and sent her to a café on her own and told her to walk home while he went and visited his new house.  She stated that he does not permit her to have her own choices including going to parties even if it is in her mother's time, although she retracted this comment when it was explored with her further.  [C] accused [M]r Charles of not allowing her to contact her sister for her birthday when she was travelling in Europe.  She added that she was disappointed with being unable to contact her mother more than once or twice.

4. C described the father to Dr Q as "evil" and suggested that he has changed for the worse under the influence of Ms Charles.  She criticised L and described her as "a bully".  C told Dr Q that she liked M.

5. C's words contrasted starkly with Dr Q's observations of her interaction with the father, Ms Charles, L and M.  She reported as follows:

   65.[C] was also observed interacting with her father, [Ms Charles], [L] and [M].  Unlike [B], [C] was able to acknowledge her mother, father and [Ms Charles] in the waiting room.  She moved between sitting with her mother and sister and her father.  She was able to make conversation with her father and stepmother in the presence of her mother.

   66.In the formal observation, [C] sat on her own although she seemed very at ease with [Mr and Ms Charles], [L] and [M].  Their conversation was free flowing and there seemed to be no indications of tension.  The interaction was punctuated by frequent laughter.  Although most of [C's] conversation was directed at her father, she participated in the discussion with [Ms Charles], [L] and [M].  There appeared to be comfortable familiarity in the communication observed between [C], [L] and [M]."

6. The evidence contained indications that C has been encouraged by the mother, B and Ms T to believe that she is of an age where she is entitled to decide whether or not she spends time with the father.  I have referred above to the text message sent by the mother to Mr X, in which she referred to a judicial officer supposedly indicating that a 12 year old child has a right "to make up her own mind."

7. Additionally, in May 2015 C told the father that she was "at an age when I have choices" when she refused to go on the skiing holiday.  In July 2015 C said to the father that she "wanted to come up when I feel like it".  She said that her psychologist told her that she "[did not] have to come up”.  C was consulting with Ms  T at this time.

8. In emails to the father, the mother suggested that C did not want to spend time in his home and indicated that he should travel to F Town if he wishes to see her.  The mother indicated that C had made this choice.

9. The mother seems to have embraced the view that C has reached an age when she has the right to choose whether or not she spends time with the father and on what terms.  B has adopted and acted upon the same view, at the cost of a relationship with the father.

10. Dr Q offered these observations in relation to the weight which should be afforded to C's stated views.  She reported:

    87.The weight that is granted to [C's] views needs to be viewed in the context of her age.  It would appear that a precedent has been set with [B] that, at a certain, age, the children's views will be the ultimate determinant of where they live.  [C], possibly reinforced by [Ms Hughes], believes she has reached that age.  While there comes a point where children's views need to be given weight, it is unfortunate that [C] is at a stage where she needs to make a choice of one parent at the exclusion of the other.

11. I am satisfied that Dr Q is correct in her assessment that C has reached a point where she believes that she is entitled and empowered to determine what time she will spend with the father and on what conditions.  I am satisfied further that the mother and B have played a significant role in the genesis of this belief and encouraged C, whether deliberately or inadvertently, to reject the father.  C's views, of course, are but one element in the outcome of these proceedings.

12. Dr Q assessed that C has "an extremely close relationship" with the mother, although in her oral evidence she expressed concern that there may be "some element" of enmeshment.  Dr Q considered that the mother's response to the children's refusal to spend time with the father, the overseas holiday and C's difficulties at BB School may be indicative of this enmeshment.  As noted above, Dr Q referred in her report to "the enmeshment with [the mother]", in the context of the children's conflict of loyalties.

13. Dr Q considered that there is likely to be "a high level of competition" between C and B.  She noted the pressure which was placed on C when she was overseas with the father on B's birthday.  Dr Q described the sibling relationship as follows:

    89.[C] also reported that she has a close relationship with [B].  The children are both high achievers academically and in their extracurricular activities and there is likely to be a high level of competition between them.  One of the worrying dimensions of this case is the pressure that was placed on [C] over her being away for her sister's birthday in 2014.  B's reaction prior to [C's] departure would have left [C] feeling uneasy about being away.  It seems that [B] has been unable to forgive [C] for missing her birthday and blames having had a miserable day onto her father and [C].  This raises concerns about the capacity of the children to have separate identities and not be responsible for the well-being of the other.

14. Dr Q identified a "very confused and ambivalent" relationship between C and the father.  She reported as follows:

    91.[C's] relationship with her father at present seemed to be very confused and ambivalent.  Based on her history of being in his care, it is likely that she has learned not to rely on him for support and she perceives his behaviour in recent years as not showing her the recognition she would like as a daughter and that perhaps she feels some envy about the attention he pays to his step-children.  It is probably the case, that notwithstanding her protestations, [C] yearns for her father's attention in the activities that are important to her and that his absence does not resonate with her definition of a caring and involved father.  Undoubtedly that would be reinforced by her mother and sister.

    92.If some of the allegations that have been made by [B] and [C] are correct, there may be grounds for a degree of realistic estrangement in [C's] relationship with her father resulting from [Mr Charles'] inability to hear the messages his children are communicating and taking action on them.  His absence in their academic and extracurricular life, for whatever reasons, may also be impacting on the children and sending them a message that he does not prioritise them.  There is reference to [Mr Charles'] need to respond empathically to his daughters without necessarily expecting anything in return from Ms I and for him to be
    non-demanding, gentle, kind, present and a parent who will not be sent away no matter what from [Dr J].  While [Mr Charles] might feel that he has achieved this, it is not the perception of the children.

    93.It would appear that [C] can still enjoy some positive times with her father if it occurs in the context independent of her mother.  Indeed there was quite a significant disjuncture between [C's] disclosures and the observations of her interactions with her father.  It must be extremely difficult for [C] to acknowledge any positive feelings for her father or members of his household to a mother and sister as those views would be so inconsistent with those views held by them.  This must place [C] in an enormous loyalty bind.

    94.The relationship with her father seems to be contaminated by [C's] views of [Ms Charles] who seems to have accorded the role of the
    step-mother who stripped [Mr Charles] of any redeeming factors he may have had.  There is a strong chance that [C] has been party to conversations in the mother's household about [Ms Charles] and in particular the tension that exists between [Ms Charles] and [Mr X] over arrangements for [L] and [M].  [C] seems to be aligning herself with her mother's view of who is right and who is wrong in that scenario.  Unfortunately, this seems to be impacting on [C's] relationships with [L] and [M] who are possibly experiencing some of the same issues with their parents as [C] is with her parents.

    95.The observations that were conducted would support the closer relationship [C] has with her mother and sister.  In respect of her father and others in his household however, the observations of [C's] interactions were inconsistent with her disclosures about her experiences in that family and would suggest that the relationships have not broken down to the extent that [C] reported or that spending time with her father is as intolerable as [C] asserts.

15. It is most regrettable that C's relationship with the father has been compromised to this extent and that she has been placed in such a position.  I appreciate that Dr Q formulated her opinions on the basis of interviews and observations carried out twelve months before the trial.  Unfortunately, however, events which have occurred since January 2016 would suggest that the opinions of Dr Q remain apposite to C's situation.

16. C refused to get out of the mother's car to accompany the father and his family on the holiday to Hawaii and Canada on 17 December 2016.  Objectively, the prospect of this holiday should have been appealing to C.  The father deposed that C told a ski instructor at Jindabyne in July 2016 that "some new tips for Canada would be great".  The father deposed further that Ms I said to him "C voluntarily talked about our trip to Canada and how excited she is."  Nonetheless when the time came to leave with the father, C refused to get out of the mother's car.

17. In her oral evidence Dr Q said "all I can say is that I am disappointed to see that, if anything, things have taken a change for the worse."  She made this comment after having read the trial affidavits and a transcript of the failed handover on 17 December 2016.

18. Dr Q agreed with counsel for the ICL that C "has come to some fairly entrenched views about what her rights as a 13 year old might be".  She opined that, with the lapse of time, C has "well and truly cemented her position."

19. The evidence indicated that C has spent happy times with the father as recently as November 2016.  On 5 July 2014 C sent an email to the father which read:

    Subject Daddy Dearest

    Dearest Daddy how can I begin to tell you what you mean to me, whenever you're around the grass always seems to be green.  The sun is just never too hot and there's a rainbow in the sky, you make all of us so happy daddy, I can never deny.  I just want the best for you, coz you're so very dear.  May you perpetually go around spreading your lovely cheer."

20. I have referred above to the father's evidence of happy times which C spent with him and his wife during 2016.  I have referred also to the affectionate messages which C sent to Ms Charles during 2016.

21. It would appear that C's relationship with the father continues to be "very confused and ambivalent", as identified by Dr Q.  In my view, Dr Q correctly assessed that C probably "yearns for her father's attention in the activities that are important to her".  On the other hand, C has a relationship with the mother which has elements of enmeshment.  She has a competitive relationship with B.  It seems that C has now reached a point of a forced choice between her parents.

22. There was no evidence as to the nature of C's relationship with the mother's partner Mr W.  Dr Q reported that C told her that she is "closer to her mother's boyfriend than she is to her father."  Dr Q opined that this statement is "troubling" and observed that it is inappropriate for a step-father to "become a surrogate for a parent".  It seems to me to be likely that these stated views of C reflect her overt alignment with the mother.

23. Each of the parents has taken available opportunities to participate in decisions concerning major long-term issues in relation to C.  On several occasions the mother has acted unilaterally and excluded the father from participation in these decisions.  For example, the mother relocated the children from Sydney to the South Coast without his consent.  She withdrew C from BB School without the father's consent at the end of 2014, although he indicated that he "did not object" to that course in the prevailing circumstances.

24. The father has made dogged attempts to spend time and communicate with C, with varying degrees of success.  On the other hand, he has elected not to attempt to repair their relationship by attending her sports events.  As appears below, his explanation for his failure to do so was unconvincing when explored by counsel for the ICL in cross-examination.

25. The father has paid child support, with an interruption in 2013 when he was unemployed for a period.  I accept that he resumed payment and discharged accrued arrears of child support and that he had no intention to avoid his financial obligations.

26. A significant issue in the proceedings was the likely effect upon C of a change in primary residence and, alternatively, a continuation of the current arrangements.  Dr Q expressed serious concerns for C's well-being in either scenario.

27. Dr Q reported as follows:

    The likely effect of any change in circumstances

    97.This is a quandary for the Court and one which will require careful consideration as both options have pros and cons which will have a high impact on [C]. Continuation of [C's] current living arrangements will enable her to remain with her sister in the care of her mother who has been their primary care giver.  These are the two people who are nominated as the most significant persons in her life.  This is an environment in which [C] is, on many fronts, excelling.  She is doing well at school, has formed a friendship group which is important for adolescents and is involved in a range of extracurricular activities at which she is performing at a high level.  There is therefore, considerable stability for [C] in the current arrangements.

    98.While this might seem to be the realistic option and maybe the one that will cause at many levels the least disruption, it has some serious shortcomings.  It is almost inevitable if this is the final outcome that [C's] relationship with her father will become the casualty and she will be unable to maintain a relationship with him.  Although [Ms Hughes] says otherwise, she seems quite uncommitted to fostering in [C's] mind the notion that a relationship with [Mr Charles] is important for [C].  Should [Mr Charles] withdraw as he did with [B], it could confirm to [C] that he is not interested and indeed the parent she has portrayed him to be.

    99.The other alternative is one that also has high risks attached and perhaps more radical.  [C] living with her father is an untested option.  There will be considerable grief and loss for [C] being separated from her mother and sister which would involve sensitive and empathic management.  Given the identified concerns in respect to [Mr Charles] listening to his children, the question would have to be raised as to whether he would be able to sensitively respond to [C's] reactions should she live permanently in his care.  In addition, if there is any truth to the allegations that have been made about [Mr Charles] and his undermining of [Ms Hughes] one is left wondering whether he would facilitate [C's] relationship with the mother.

    100.If this is the option the Court was to adopt, [C] could initially be left feeling miserable that her views have not been heard and be determined to sabotage the placement in her father's care.  It could provoke oppositional behaviour and even failing to return to her father's care once she spends time with her mother as the pressure would be too great.  It would be essential in this case, that the father re-engage with [Ms I] to help [C] work through her feelings resulting from such a decision."

28. Dr Q was asked by counsel for the ICL about the likelihood of C running away, if there is an order for residence in favour of the father.  She agreed that there is such a significant risk and noted that C is a "child who has some strong views" and "maybe even a meshed system with her mother and her sister”.  Dr Q expressed concern at what C may do after the first visit to the mother and B, even if she had been compliant with a three month period of no contact.

29. Dr Q referred to "the enormous pressure" upon C in the mother's household.  She agreed that she could not discount the possibility that a change of residence may alleviate this pressure.

30. Dr Q expressed a concern as to the effect upon C of further litigation.  She said that C may refuse to return to the father after time with the mother.  She opined that C may feel that "her views were not heard in such circumstances."

31. Ultimately, Dr Q opined that "there will be enormous losses either way" for C.  She acceded to a proposition put by senior counsel for the father, to the effect that there would be a greater prospect of C maintaining a relationship with both parents in the household of the father". She added "I guess there are a whole host of other considerations that I'm thinking.  I just don't know how realistic that will be in terms of the stickibility in the longer term."

1. No issues were raised in the proceedings in relation to the practical difficulty and expense of C spending time and communicating with each parent.  Their homes are apart by approximately two hours travel time but they seem to have utilised successfully the changeover point designated in the Orders of

   
   

   7 April 2014.

2. The capacity of each of the parties to provide for C's needs was a significant issue in the proceedings.  In his final written submissions, counsel for the ICL wrote:

   It is submitted that a fundamental matter in dispute between the parents comes down to who is to ‘blame’ for the difficulties in [C's] relationship with the father.

   I agree with this observation.

3. Each of the parties offered numerous criticisms of the other and sought to establish that he or she was not responsible for the problematic relationship between C and the father.  I am inclined to agree with the submission of counsel for the ICL, to the effect that they have each contributed to these difficulties.  Sadly, the consequence of their conduct is that B has lost her relationship with the father, at least for the present, and C is at serious risk of being placed in the same situation.

4. It is readily apparent that the mother has a critical attitude to the father and that she appears to hold the view that he has little to offer the children as a parent.  Tellingly, Dr Q commenced her report of the interview with the mother as follows:

   31.[Ms Hughes] … presented as a quite matter of fact and dismissive of any positive benefit accruing for the children of a relationship with their father.  She accused [Mr Charles] as having been unresponsive to the children's needs and that [Ms Charles'] presence in his life has only added to complications in the children's relationships with him.

5. I consider that text message exchanges between C and the mother while she was in the care of the father give rise to concern, in terms of her apparent lack of support for the child's relationship with the father.  For example, in July 2016 C stated to the mother during the skiing holiday "and they keep referring to [L] and [M's] nan as my nanna".  The mother responded "so sorry you have to deal with that crap, babe.  Stay strong.  Love you".

6. In another exchange during the July 2016 school holidays, C texted the mother "anyway I gtg.  [Ms Charles] was just questioning me about who I was texting, what I was saying –"  The mother replied "I'm soooo sorry you have to endure that".  On another occasion, the mother texted C "I can get you".  C replied "No.  It's ok, I can last a weekend but this will be my last.  I will refuse next time".  The mother then responded "Ok.  Be brave.  Love you".

7. In another text message to C, the mother stated "Did you tell him it's his behaviour that we'll lose contact.  Nothing to do with me.  And no piece of court paper will change that.  He's in charge of how he treats you.  No-one else".

8. Senior counsel for the father put the following propositions to the mother in cross-examination:

   Question:Do you think that that might be unhelpful to your daughter if she were in any way conflicted in her loyalties between you and her father?  Do you think it might put added pressure on your daughter to get texts like you've agreed that you sent from you during the time she's with her – with him?

   Answer:I'm thinking that she's feeling so much unhappiness when she's having to listen to them slander me and say all these things and talk about court proceedings with her so, yes, sometimes I probably don't respond how I should because it does make me so angry that they're doing that.

   Question:And you don't think that she might be sending these texts in part – large part, I would suggest – because she thinks that's what you might want to hear?

   Answer:No.  I think that she's sending them because she feels like her voice is never heard and it's just always my voice, her voice, [Mr Charles'] voice and it's evident that the father has a lot of problems telling the truth."

9. I am satisfied that the mother's text messages are capable of undermining C's relationship with the father.  Notably, in her responses to these questions from senior counsel for the father she took the opportunity to criticise him and made no acknowledgment of any inappropriate conduct on her part.

10. I consider that the mother's decision to take B to the changeover on 17 December 2016 was at best unwise and, perhaps, part of a deliberate strategy to ensure that C did not leave with the father for the overseas holiday.  In cross-examination by senior counsel for the father, the mother said that B had last accompanied her on a changeover during the previous September school holidays.  The mother conceded that she made a deliberate decision for B to be present on 17 December 2016, because B had no homework to complete on that day.

11. The mother stated in cross-examination that she did not consider that the presence of B would not place pressure on C to refuse to go with the father on 17 December 2016.  The following exchange occurred between the mother and senior counsel for the father:

    Question:Within your thinking, if there was any about this issue, that is, [C] going with her father in circumstances where she was saying she didn't want to, did you not think it would add to [C's] stress to have her elder sister present?

    Answer:No.

    Question:So my question goes back to this, ma'am:  did you, in your thought processes, give consideration to whether her elder sister should accompany the two of you on this occasion?

    Answer:I did and that's why I ensured that I took [B] away from the car so that [C] could speak with her father.

    Question:So is it your evidence that you did give that issue some thought prior to coming but came to the view that there wasn't a problem about it?

    Answer:No.  We were going shopping for Christmas shopping afterwards, so [B] wanted to accompany.

    Question:Right.  Thank you, going for Christmas shopping with [B], can I suggest, nowhere near equates, it terms of its seriousness, as [C's] going overseas with her father and her relationship with him, does it?

    Answer:No.

    Question:So it was a conscious decision that you made to have her elder sister present at the changeover, is that right?

    Answer:Yes.

12. I am of the view that certain comments made by the mother during the unsuccessful attempt at changeover demonstrate a lack of insight into C's emotional state on that day.  These statements are all the more concerning, given that the mother was recording the event.  Inter alia, the mother said to C:

    ●this is between you and him and I've had enough of that.  I've done everything I can to encourage you to go and I'm telling you [C], you'll have an awesome time darling.

    ●this will be the last time that they may be able to prove to you that they can you know change.  I know you're upset about what they have done to you on all the other holidays but maybe they've learned their lesson

    ●it's a good holiday.  A really good holiday.  I think they must know by now how upset you are so they are probably going to be ultra nice to you."

13. The father also made some ill-advised comments to C on this occasion.  He said, inter alia:

    ●there's no reason not to come.  I was hoping mum would be helping

    ●I'm not going without you [C].  If I have to stay here all day, I'll stay here all day.  I'm not going without you.  Right mum

    Comments of this nature were repeated by the father several times to C.

14. Having read the transcript of the recording on 17 December 2016, Dr Q opined that both parents "were not feeding into her emotions at the time."  She said also that some of the father's responses "were perhaps coercive of [C]".  She commented that a 13 year old child in an intact family and the best of environments "often needs a lot of sensitive responsiveness and emotional coaching to deal with … the storm and stress of adolescence."

15. The father has repeatedly failed to take up opportunities to attend C's sporting events.  These athletics fixtures clearly are very important to C and also to B.  The mother has consistently kept the father informed of the dates and locations but he has frequently opted not to attend these fixtures.

16. In cross-examination by counsel for the ICL, the father agreed that he was aware from Dr Q's report that it was important to the children considered that he attend these sporting events.  The father was asked:

    Question:Do you understand how somebody from the outside looking at that circumstance might say here's a father who has clear knowledge that his daughter – well, I will confine this to [C] at the moment because she's the one who is the subject of these proceedings – has expressed very clearly that's she's disappointed that her father doesn't attend and participate in the events that she considers important, her athletics and her academic events, no doubt about that expression, and yet continues a few months afterwards not to sort of be there for those events that, ostensibly there's no good reason why you couldn't have been there?

    Answer:I don't know if there's no doubt, Mr Ladopoulos.  I think that's extreme.  I respect everything that has been written, but on the occasions that I would talk to [C], the times that we talk about her training and what she has accomplished in her personal bests all of those sorts of things, I've never heard [C] really say to me, "I desperately need you to be there at that event on this Saturday".  And I'm generalising this.  I am generalising because I respect that being in attendance for more of these events is important to [C].  I absolutely accept that.

1. Essentially, the father gave no real explanation for his failure to attend C's events.  He appeared to rely upon the fact that C has made no direct request of him to attend her events.  He acknowledged the importance to C of his presence but elected not to attend on these occasions.

2. The following exchange also occurred during the father's cross-examination by counsel for the ICL:

   Question:You were asked about a carnival in … of last year which happened to coincide with [C's] birthday.  Do you remember being asked about that?

   Answer:Yes.

   Question:And I think your evidence was that you didn't go and watch [C] on that day?

   Answer:Yes.

   Question:And was there a reason why you didn't go and watch her at the carnival on her birthday?

   Answer:In 2016?

   Question:Yes, … 2016?

   Answer:No, I can't recall, to be honest.

   Question:Do you accept that it would have been doubly important for [C], given that it was both her birthday and an athletics event that she considers important, that her father be there?

   Answer:I can accept that."

3. Dr Q offered these opinions in relation to the children's view of the father's lack of involvement in their activities:

   105.[Mr Charles] asserted that he has attempted to meet the children's needs to the extent that is possible, given the constraints.  It would seem that, from the children's perspective which is most likely reinforced by their mother, [Mr Charles] places his needs and those of his new family, before those of the children and his absence from their significant events, even though his reasons might seem justified, denotes some inability to meet the children where they are at.  His behaviour in seeking to enroll (sic) [C] a school in Sydney for the 2016 academic year without identifying [Ms Hughes] as the other parent was not a wise decision and would confirm the criticisms [Ms Hughes] and the children make of him.  All of the aforementioned raise questions about whether [Mr Charles] would be able to respond to [C's] needs should she live with him.

1. In my view, the father's responses to questions concerning his plans to deal with C's likely reaction to a change of residence indicate a lack of insight on his part.  The father said in his affidavit:

   210.I have also considered [C's] transition into my care.  I have proposed that there be a three-month period of no contact because I believe that [C] experience a significant period of disruption in changing schools and houses.  I would facilitate [C's] attendance upon a family therapist as often as [Ms I] recommended, and additionally if [C] requested that she attend an appointment.

   211.I would seek [Ms I's], or [Dr Q's] recommendation as to the appropriate professional in our local area for [C] to engage with.  I would also follow the recommendation from that therapist as to whether I should participate in the therapy or it should be [C] alone.  Although I acknowledge that there will be adjustment to my household I believe [C] will settle into our care."

2. In cross-examination by counsel for the ICL the father said:

   There should be some assistance.  Whether it's from the Independent Children's Lawyer and/or expertise psychology, there needs to be some assistance.  I absolutely accept that as granted and that it is a big moment.  I do.  And I don't have all the answers and I really wish I did.

   The father did not elaborate upon what assistance which he expected from the ICL in the implementation of a change in residence.

3. Counsel for the ICL put to the father that the view of Ms I was that "[C] has exhausted her capacity to have further counselling".  The father said "I accept that".  Dr Q said that she could understand why C had indicated that she did not wish to undertake any further counselling.  She noted that C has been involved in "intense and ongoing litigation for a number of years and …like her sister, probably just wants it all to end".

4. Counsel for the ICL put to the father:

   Question:And notwithstanding other efforts, [C] just refuses to transition to your care, have you thought about what the next step might be after that?

   Answer:I know it's available in terms of potentially the involvement of a sheriff.

   Question:What do you understand that would involve?

   Answer:I understand that a sheriff is involved in collecting [C] or removing [C] and any of her belongings from her home and delivering her to a safe place, be it the court or any other environment, and I recognise that would be incredibly distressing for everybody.  And I've recognised in the past that I may have had the ability to pursue things like that and I refused to do that because I don't think in [C's] best interests or, in fact, even [Ms Hughes'] or [B's] that that's a healthy thing.  I don't.  No need for – there's no need for that degree of stress, distress."

5. Counsel for the ICL then asked the father:

   Question:… I understand that what you're effectively saying is that if it came to it, you would actually proceed to a step such as that?  Would that – is that right?

   Answer:As an absolute last resort, yes, and I would hope that there are any number of things and interventions and assistance that can be given between [C] willingly getting out of a car and coming over to my car, for example, through to what I think is a last resort, because I don't believe it's healthy.  But I would like to finish off saying that when I consider what the short-term impacts are versus the long-term impacts, then they are substantial as it relates to [C] and her long-term development, her ability to have a continuing relationship with not just me and my family – members of my family, blended family, friends, but also with her mother in a constructive parent/daughter relationship and with her sister.  I firmly believe that."

Equal time or substantial and significant time

1. It was common ground that the parties will have equal shared parental responsibility for C.  Consequently I am obliged to consider whether it is in C's best interests, and reasonably practicable, that she spend equal time with each parent.  I must go through this exercise despite the fact that neither parent nor the ICL made any such proposal.

2. The prospect that C spends equal time with each parent can be disposed of shortly.  At present, she experiences substantial difficulties in moving between the households of her parents.  She would be likely to offer fierce resistance to an equal time arrangement and to experience substantial pressure to do so from the mother and B.  In my view, an equal time regime plainly would be doomed to failure from the outset and almost certain to create great distress for C.

3. The same observations are apposite to a regime of substantial and significant time with each parent.  I consider that such an arrangement would almost certainly fail and create pressure and distress to C.

4. Ultimately the essential issue in these proceedings is whether C's best interests require that there be a change in her primary residence.  With respect to the ICL and her counsel, I do not consider that their proposal is feasible in C's present circumstances.  In my view, she has reached a point where she would not spend time with the father for one weekend per month.

5. Certainly, I do not regard C's stated views as determinative of the outcome of the proceedings.  I accept that she is under pressure from the mother and B to make statements which are critical and rejecting of the father and his wife.  Additionally, she has developed a strong view that she has reached an age which entitles her to determine what time she will spend with the father and under what conditions.

6. It appears that C believes that the father has no wish to listen to and respect her views.  Regrettably, his conduct at the failed changeover on 17 December 2016 probably has reinforced this belief.  He insisted that she leave with him and stated that he would stay at the changeover point all day if necessary.

7. I accept that C probably has retained the fundamentals of a positive relationship with the father and his wife.  The observations of Dr Q in January 2016 and aspects of C's interaction with the father and his wife in 2016 would support that conclusion.  It may well be that C could re-establish a loving, positive and trusting relationship with the father, without the influence of B and the mother.  Again, that matter is not determinative of the outcome of the proceedings but is one factor to be weighed against other relevant considerations.

8. I have substantial concerns as to the impact on C of a change in primary residence.  I consider that she would be very resistant to such an arrangement and could well take matters into her own hands at the first available opportunity.  She could be placed in a situation of physical danger, if she were to attempt to reach the mother's home near F Town without assistance.

9. I am mindful of the opinion of Dr Q that C would suffer "considerable grief and loss" if she is separated from the mother and C.  I am conscious also that the single expert was of the view that initially, C could feel "miserable that her views have not been heard" and be determined to sabotage a placement with the father.

10. I am conscious of the opinion of Dr Q, to the effect that a change of residence "would involve sensitive and empathic management", presumably on the part of both parents and Ms Charles.  Nothing in the evidence gives me confidence that the mother would support a change of residence;  rather, I consider it highly likely that she would undermine a placement of C with the father.

11. I am not confident that the father has the capacity to facilitate a difficult change of residence.  I agree with the opinion of Dr Q that the father acted "coercively" at the failed changeover on 17 December 2016.  He found it necessary to behave in this way in an attempt to persuade C to go on an appealing overseas holiday.  It might reasonably be anticipated that ensuring that C would remain in his primary care would be a much more difficult exercise.

12. Ms Charles adopted similar tactics of coercion on 17 December 2016.  She said to C, inter alia:

    "You really need to come.  You're making it hard on mum too."

    C said to Ms Charles:

    "I've turned 13.  I should be able to make my own choices"

    and Ms Charles replied:

    "You don't get to make those choices until you're 18.  When you're an adult."

    She thus conveyed to C a message that she will not take her views into account for another five years.

1. The father indicated that he would obtain professional assistance from a therapist for C, in the event that there is a change of residence.  My concern in relation to the utility of this proposal is that Ms I and Dr Q both expressed the view that C is no longer receptive to counselling.

2. I am concerned that the father said that he would involve a "sheriff" to secure a physical change of residence, despite his acknowledgement that such a step "would be incredibly distressing for everybody."  I appreciate that he made it clear that the involvement of a "sheriff" would be a step of last resort.  In my assessment, C could reasonably be expected to consider such a process as extremely coercive and dismissive of her views.

3. I am acutely conscious of the expert opinion of Dr Q that "it is almost inevitable that [C's] relationship with the father will become the casualty" if she continues to live with the mother and B.  I consider, however, that there is a real prospect that a change of residence will fail and expose C to substantial grief and loss in the process.  It seems to me that C will feel that the father and his wife have chosen to ignore her views, which will probably cause more damage to the relationship.

4. Realistically, there is no outcome to these proceedings which would be advantageous to C.  As Dr Q opined in her oral evidence, she will suffer "enormous losses either way".  On balance, however, I consider that the risks inherent in a change of residence should not be imposed upon C when it cannot be assumed that there would be a successful outcome to that drastic step.

5. It remains open to the father to attend C's sporting events and attempt to repair his relationship with her in that way.  The mother indicated that she is prepared to continue to provide relevant information concerning C to the father.  I will make orders which compel her to continue to provide this information.

6. In accordance with his secondary proposal, I will make no orders for C to spend time with the father.  It may be that, in time, C will come to respect this difficult decision on his part as an acknowledgement of her views.  It would be highly remiss of the mother, and a reprehensible act on her part, that she would convey to C this decision by the father as an abandonment of her.

7. Otherwise, I will make orders as proposed by the ICL which are designed to ensure that each parent receives information concerning C from her health care professionals and school staff.

8. The ICL sought orders that each of the parties pay a sum of $6,522 on account of her costs.  There remains an outstanding issue in relation to the fees of Dr Q.  I will make directions for the filing of written submissions in respect of those two issues.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 July 2017.

Associate: 

Date:  20 July 2017