Clivery and Conway and Anor

[2014] FamCA 1163

FAMILY COURT OF AUSTRALIA

CLIVERY & CONWAY AND ANOR [2014] FamCA 1163

FAMILY LAW – CHILDREN – where the matter was reserved - where there was an application to reopen - where the child had run away – where the child is fifteen years old – where the father played no part in the re-opened proceedings and filed a notice of discontinuance the day before the last day on which evidence was taken.

APPLICANT: Ms Clivery

1ST RESPONDENT:	Mr Conway
2nd RESPONDENT:	Ms B Clivery

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Lawyers

FILE NUMBER: CAC 768 of 2008

DATE DELIVERED: 17 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19, 20, 21, 22, 25 & 27 February 2013; 19 November 2014; 17 December 2014

REPRESENTATION

APPLICANT: In person

FIRST RESPONDENT: In person on 19, 20, 21, 22, 25 & 27 February 2013
No appearance on 19 November 2014 and 17 December 2014

SECOND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation and Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous orders are discharged.

2. The child L, born … 1999, live with the mother.

3. The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) for the child, with such issues to include but not be limited to:

   (a)       the child’s education;

   (b)       the child’s religious and cultural upbringing; and

   (c)       the child’s health.

4. The child shall be at liberty to communicate with the father at all reasonable times.

5. The Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  CAC 768 of 2008

Ms Clivery

Applicant

And

Mr Conway

1^st Respondent

And

Ms B Clivery

2^nd Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings initially involved competing proposals for parenting orders for L born in 1999.  Her parents separated in March 2002 and have been almost continuously involved in litigation in this Court since then.  The evidence reveals that there has been an extremely long and dysfunctional conflict between the parents.

2. L’s care arrangements in the year from the commencement of proceedings in April 2002 had seen her live primarily with her mother and spend time with her father.  In November 2003, her father withheld her, asserting that she was being physically abused by her mother’s partner, Mr C.  Recovery was sought and she was returned to her mother’s care in about December 2003.

3. The father again withheld L between January 2004 and about May 2005.  Allegations that she was being physically abused by her mother were made to various authorities.  He took her to Police and to Child Protection Authorities in both Queensland and the Australian Capital Territory, despite the existence of an Order prohibiting her from being examined following allegations of abuse without leave of the Court.

4. During the course of a trial before Waddy J evidence emerged which established that L’s mother lied to the Court about her use of physical discipline towards L.  After a 10 day trial in September 2005, Waddy J made a parenting Order that provided L live with her father and spend time with her mother every third weekend and for half of the school holidays, initially on a supervised basis, with such supervision to be provided by other adults.

5. L’s parents were afforded joint parental responsibility for her.

6. From March 2007 until about March 2011, L spent time with her mother every third weekend and during half of the school holiday periods.  In about October 2009 the father again told the mother he would no longer permit contact between her and L. 

7. On 7 April 2011, the Court ordered that L’s time with her mother be suspended following allegations she had been physically and sexually abused and/or had experienced inappropriate sexual behaviour by her mother and/or had experienced or been exposed to inappropriate sexual behaviour in her mother’s household.

8. At the hearing in early 2013, the mother proposed that L live with her in Canberra or, alternatively, attend at a boarding school.  The father proposed that she continue to live with him as she had since the Order made by Waddy J in September 2005.  He asserted that L was at an unacceptable risk of sexual and physical abuse in the mother’s care and sought an order restraining the mother from being in L’s presence or within 200 metres of her.  Each party proposed that they be the recipient of an order for sole parental responsibility.

9. On about 26 October 2014, L ran away from her father’s residence.  As her mother has continued to live in Canberra, contact was made with her maternal grandmother, with whom she started to live on the Region E shortly thereafter. 

10. On 19 November 2014, I made Orders which permitted the parties to re-open their cases for the purpose of adducing more recent evidence relating to L’s then current living arrangements.  I also gave the maternal grandmother leave to intervene in the proceedings and ordered that L live with her on an interim basis until a Family Consultant could speak with her and all parties to ascertain matters relevant to her further parenting arrangements.

11. Additionally, I adjourned the matter to today with the intention of taking evidence from the Family Consultant, permitting any cross-examination that any party may wish to undertake of that person and hearing any further submissions by the parties and the Independent Children’s Lawyer as to the terms of parenting orders now in L’s best interests.

12. L’s father did not appear before me at the hearing on 19 November 2014.  His attitude to that appearance and the ongoing proceedings in this Court can clearly be gleaned from a perusal of the evidence contained within the most recent affidavit filed by the Independent Children’s Lawyer at that time.

13. On 8 December 2014, I made an Order in Chambers for the purpose of ensuring that all parties were aware of my intention to permit any cross-examination of the Family Consultant today and that I would proceed to hear any further submissions today. 

14. The father has informed the Court of his intention not to participate in the hearing today.  Consistent with this attitude - and that expressed to Departmental officers earlier - he did not participate in the interviews with the Family Consultant, Ms F, which occurred yesterday in the Court precincts.  He has subsequently filed a Notice of Discontinuance.  His decision and actions in failing to participate, as outlined, demonstrate his clear intention not to be further involved in L’s parenting - at least at this time. 

15. I am satisfied that the father has had every opportunity to participate in these proceedings, including in the events which have occurred more recently.

16. He has clearly determined to implement that which he told the Departmental officer (as reported by Mr Carter):  namely, that he does not wish L to continue to live with him any longer. 

17. In such circumstances, I am well satisfied that the father has been provided with the opportunity to appear today and be heard in relation to further parenting orders for L.  His non-appearance, failure to participate in Family Consultant interviews and his implementation of his expressed attitude towards L makes it unnecessary to transverse significantly those matters of a historical nature.

18. Whilst some may say that, given L’s recent action in removing herself from her father’s care and the evidence, contained within the Child Inclusive Conference Memorandum to Court prepared following interview yesterday, of her clear wish to live with her mother, it is no longer necessary to consider the matters previously before the Court.  I do not agree with such a view.  I consider it necessary briefly to express findings about the allegations raised by L’s father against her mother.

19. In doing so, I take into account the evidence given by the mother and her partner when the matter was before me in early 2013.  I consider that there was a difference in the evidence given by the mother and her partner about the time of the commencement of their intimate relationship.  On that point, I preferred the evidence of the mother’s partner.  However, it does not follow that because I preferred his evidence to that given by the mother, where the same were in contrast, that I automatically disbelieve her evidence that she has never sexually abused her daughter, nor has she acted in any way to expose or permit her to be exposed to any inappropriate material whilst in her care.

20. It does, however, mean that I consider that I must carefully scrutinise her evidence and her denials given the disparity in their evidence.  I consider that there is a significant difference in the positions of the disparity in the evidence between the mother and her partner about the commencement of their intimate relationship compared to the evidence previously given by the mother before Waddy J.  In the proceedings before his Honour, the mother maintained, falsely, that she had not physically disciplined L in apparent breach of an order that restrained both parents from administering physical discipline - in circumstances where the father’s case was, then, that L was complaining of that very thing.

21. In the present case, the difference in the mother’s account of the commencement of her intimate relationship with her partner is not nearly as relevant.  It is not, in any way, fundamental to the issue that is before me in terms of an assessment of the mother’s care for L:  namely, the allegation raised by the father that she had sexually abused her.  The mother’s position, about the commencement of her intimate relationship with her partner does not infiltrate, (in circumstances to the manner in which Waddy J found, that her persistent denials of administering physical discipline to L previously infiltrated) the balance of her evidence before me.

22. I record my finding that I am not, in any way, persuaded that L has been the victim of sexual abuse at the hands of her mother.  I am not, in any way, persuaded that, whilst in her mother’s care, she has been exposed to any inappropriate adult behaviour.

23. I am persuaded, however, that within the father’s household, at least more recently, there is evidence of him utilising physical restraint toward L in a purported attempt to manage her behaviour.  One need only have regard to the contents of the Child Inclusive Conference Memorandum to Court to find a foundation for such a conclusion, at least, as I have said, particularly in relation to more recent events. 

24. L’s father has clearly displayed an ongoing willingness to refuse to comply with any term of any Order of the Court with which he does not agree.  He consistently proffered excuses for his non-compliant behaviour, but none of these changes the fundamental aspect of deliberate non-compliance on his part.

25. I consider that he demonstrated significant disingenuousness.  An example of this arises from the consideration of the issue about the commencement of the relationship between the mother and her partner.  He was, at trial, clearly intending to rely on the accuracy of notes produced by the Police until his questions of Mr C improved his position about this issue - at which time he gratuitously commented that he could understand how such notes might be inaccurate because of the pressure of compiling them.

26. This is a ready and clear example of the father’s willingness to latch on to every perceived forensic advantage in his determination to have the Court make the orders that he sought.  This attitude finds further demonstration in his demonstrated willingness to walk away from L and the proceedings when things are not going in the manner he thinks they should - or, I venture to conclude, when there is a real risk that his behaviours will be significantly called to account. 

27. I accept the evidence of the Family Consultant contained within the Child Inclusive Conference Memorandum to Court.  This evidence was, of course, obtained after her interaction with L and her mother yesterday.

28. It is clear from the contents of that document that L has expressed a significant wish and/or view about her future parenting arrangements.  It is also clear that she is of an age and a maturity where her wishes should be accorded significant and proper weight.  She has clearly expressed and actioned a decision to no longer live with her father.  I consider the evidence clearly establishes that L is of the age and of the maturity that she should be enabled and empowered to exercise control over her relationship with her father and the manner in which that proceeds in the future.

29. This is more so given that she has had the experience of living primarily within his care from September 2005 until her actions in October of this year.  Whilst it is clearly beneficial for L – and the contents of the Memorandum to Court support a conclusion that she is anxious about the impact upon her relationships with them – to continue her relationships with her half-siblings in her father’s household, it is also, I think, clearly in her best interests to be permitted the opportunity to develop more meaningful relationships with her half-siblings within her mother’s household.

30. Given his recently expressed attitude and the demonstration of this by his actions now over a period from at least, October of this year until the present date, it is highly likely, it seems to me, that L will suffer - at least to some extent and in some way - the loss of a relationship with, not only her father, but also his wife and their children. 

31. Whilst a move from Queensland to Canberra to live with her mother and her mother’s family will have the inevitable impact upon peer relationships currently developed by L, it is, I think, clear in this case that living with her mother remains, in reality, the only viable alternative for her.

32. In saying this, it should not be thought that I have concluded L’s mother will do anything other than provide more than adequately for her parenting needs, care, education and emotional support into the future.  I have no doubt whatsoever that L’s mother will do her very best to ensure that L is given her best chance of achieving the goals that she identifies as being important to her.  I also have no doubt, however, that the parenting road ahead may well have its share of difficulties as the mother’s household and L adapt to their new living and care arrangements which will follow the making of the orders I intend to make today.

33. However, given the contents of the Memorandum to Court and the recording there by the Family Consultant of her observations of the familiarity, humour and degree of comfort in the interactions between the mother and L, I have no doubt that there exists between them a sufficient basis for them to be able, in the future, (perhaps with assistance, if necessary), to be able to deal with and manage issues which may inevitably arise as a consequence of L’s ongoing maturity and path through the remainder of her adolescence.

34. I have no doubt that the mother possesses the parenting skills necessary to enable her to assimilate L into her household on an ongoing basis and to assume full responsibility for L’s future parenting needs. 

35. The existence of the allegations reported by L about the father’s alleged behaviour toward her would provide, I think, reasonable grounds for a conclusion or belief that a parent has engaged in family violence such that the presumption of equal shared parental responsibility does not apply in this circumstance.

36. However, I take into account and accept the submissions made by Counsel for the Independent Children’s Lawyer as to the difficulties of reaching firm conclusions about the allegations made by L to authorities. I take into account and note his submission as to the absence of observations of any injury, particularly given the nature of the alleged significant behaviours reported by L.  It may well be that her reports to Police amount to a very significant cry for assistance and an expression of a desire to move from her father’s primary parenting to experience parenting by her mother.

37. In any event, even if the presumption of equal shared parental responsibility did apply in this case, the reality is that L’s best interests, in all of the circumstances of her parenting during all of her life, could only be served by an order that permitted one of her parent’s sole parental responsibility for her. 

38. Given my conclusion, for the reasons I have expressed thus far, that her best interests will be served by an order that sees her live with her mother, the only sensible, proper and appropriate order in relation to the issue of parental responsibility and its allocation is that there should be an order that L’s mother has sole parental responsibility for the major long-term issues in relation to her.

39. For these Reasons thus expressed I am satisfied that it is in L’s best interests that orders in the terms outlined should be made.

40. I should record that I have given serious consideration to making orders which imposed upon the parties an obligation to keep the other informed (in writing) about contact addresses and telephone numbers at which they and L could be contacted.  However, given the father’s determination to file a Notice of Discontinuance in the proceedings and his continued demonstration of an expressed intention to have nothing further to do with L, I have resolved that such an order is unnecessary.

41. I consider that, such is L’s age and the state of communications by social media means and other electronic means, she will be able to in the future maintain sufficient contact and knowledge of her father’s details and a mechanism by which she can contact him if she so chooses.  I also take into account the clear desirability of avoiding making orders, in this particular matter, which have any prospect of involving the parties – and I still refer to L’s father as that – in any dispute about compliance or alleged non-compliance with the terms of orders.

42. I consider, in this case, that orders that are as simple and succinct as possible, but which provide to L the secure knowledge that she will live with her mother and that her mother will be solely responsible for the exercise of parental responsibility in relation to her, are orders which are in her best interests. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 17 December 2014 .

Associate:                 

Date:    17 December 2014