Cunningham & Androtis

[2022] FedCFamC1F 625

Federal Circuit and Family Court of Australia

(DIVISION 1)

Cunningham & Androtis [2022] FedCFamC1F 625

File number(s):	SYC 3649 of 2012
Judgment of:	ALDRIDGE J
Date of judgment:	24 August 2022
Catchwords:	FAMILY LAW – PARENTING – Where the child has had minimal contact with the father for the last four years – Where the child does not wish to spend time with the father – Where the father has a history of apprehended violence orders issued against him – The presumption against equal shared parental responsibility has been rebutted – Consideration of meaningful relationship – Strong views of the child – Likelihood of further proceedings – Where the parties cannot effectively communicate – Where the child is fearful of the father – Orders made as proposed by the mother and the Independent Children’s Lawyer that the mother have sole parental responsibility and care for the child – Orders for the child to spend time and communicate with the father pursuant to her wishes – Orders restraining the father from approaching the child’s residence, school, extracurricular activities and any other location.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA, 68B
Division:	Division 1 First Instance
Number of paragraphs:	90
Date of hearing:	8–9 August 2022
Place:	Sydney
Counsel for the Applicant:	Ms Lioumis
Solicitor for the Applicant:	Christopher Mackay Lawyers
Counsel for the Respondent:	Mr Jauncey
Solicitor for the Respondent:	Jack Rigg Solicitors
Counsel for the Independent Children’s Lawyer:	Ms Carter
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

ORDERS

SYC 3649 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CUNNINGHAM

Applicant

AND:

MR ANDROTIS

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:	ALDRIDGE J
DATE OF ORDER:	24 august 2022

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

2.The child of the relationship X born in 2008 live with the mother.

3.The mother have sole parental responsibility for X.

4.X spend time and communicate with the father in accordance with her wishes and as initiated by X.

5.Except in accordance with Order 4, pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), Mr Androtis born in 1973 (“the father”) shall not:

(a)approach or come within 500 metres of any place where X or Ms Cunningham (“the mother”) might reside from time to time;

(b)approach or come within 500 metres of any place where X might attend school from time to time;

(c)approach or come within 500 metres of any place where X might attend extracurricular or sporting activities from time to time; and

(d)knowingly approach or come within 500 metres of either X or the mother at another location.

6.Pursuant to s 68C of the Act, the injunction in Order 5 above pursuant to s 68B of the Act, is for the personal protection of the following party and child:

(a)Ms Cunningham born in 1982; and

(b)X born in 2008.

7.If a police officer believes on reasonable grounds that Mr Androtis born in 1973 (“the father”) has breached the injunction naming him herein that police officer may arrest the father without warrant.

8.The mother do all acts and things and provide all necessary authorities to X’s school in order for the father to receive from X’s school a copy of all school reports and order form for the supply of a school photo.

9.For the purposes of Order 8 the father shall electronically communicate with the school for the supply of such information.

10.For the purposes of Order 8 the mother shall keep the father informed of any change in X’s school as and when it occurs.

11.Until further order each party, Mr Androtis born in 1973 and Ms Cunningham born in 1972 their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the said child X born in 2008 2028 from the Commonwealth of Australia for a period of 3 years and 10 months;

AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.

IT IS NOTED THAT:

A.These orders have been amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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

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

IT IS NOTED that publication of this judgment by this Court under the Cunningham & Androtis pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

Introduction

1. These are parenting proceedings between Ms Cunningham (“the mother”) and Mr Androtis (“the father”) which concern their child, X who was born in 2008. X has not spent any time with or seen the father since 1 January 2018, other than 22 November 2020 when X and the father were seen together by the single expert Family Consultant who prepared the Family Report in this matter.

2. In essence, the dispute between the parties concern X’s attitude towards her father. The mother contends that X is justifiably scared of the father, anxious about seeing him, does not wish to see him and that forcing her to do so will expose her to a risk of psychological harm.

3. For his part, the father contends that though he accepts that he has behaved badly towards X in the past, he has now changed and X has no need to feel scared or anxious in his company and, indeed, that her continuing fears and reservations about spending time with him are as a result of the mother’s influence on X and alienation from him.

4. X’s interests were represented by an Independent Children’s Lawyer (“the ICL”).

5. The mother and the ICL agreed on a set of short minutes which they each contended should be made in the best interests of X. The proposed orders were that:

   ·X should live with her mother, who was to have sole parental responsibility for her;

   ·X was to spend time and communicate with the father in accordance with her wishes and as initiated by her;

   ·Injunctions were sought under s 68B of the Family Law Act 1975 (Cth) (“the Act”), restraining the father from coming within 500 metres of any place where X or the mother might reside, where X might attend school, extracurricular or sporting activities or otherwise knowingly approach them;

   ·The father was to receive school reports and school photos directly from the school; and

   ·Finally, it was agreed that there should be orders made preventing X from being removed from Australia and that she be placed on the Family Law Watchlist.

6. The father did not propound a minute of order. Rather, the father simply sought orders that there be equal shared parental responsibility for X and that there be a gradual

   
   

   reintroduction of time between the two of them, leading to an equal time arrangement. During the course of his evidence, the father accepted that it might be desirable for the time X was to spend with him to be supervised for perhaps the first visit, that some form of family therapy would be helpful and that he envisaged equal time commencing in about two years when X reached 16 years of age. No further details of the proposed supervision or family therapy were provided and no evidence was given about them, including, for example, who was to conduct the supervision or family therapy, its nature or who would pay for it.

7. The father was born in Country B and is very proud of his European/Country B heritage. He is keen for X to be exposed to those cultures. Accordingly, the father proposes that there be no restriction on him taking X out of the country and indeed he proposes orders that would see him taking X to Country B for at least a three week holiday. Neither the proposed orders nor the father’s evidence said when that would occur.

   Background

8. The parties were married in mid 2006, X was born in 2008 and just over three years later, on 27 September 2011, the parties separated. Parenting and property proceedings were commenced in the Federal Circuit Court of Australia (as it was then known) in 2012.

9. Local Court C made an Apprehended Domestic Violence Order against the father for the protection of the mother and X in mid-2012.

10. The parties arrived at some consent parenting orders on 21 August 2013. These orders provided for the parties to have equal shared parental responsibility, with X to live with the mother and to spend staged time with the father, which increased to every second weekend from after school Friday until Monday morning, each second Tuesday from after school until before school on Wednesday and for one week of each school holidays.

11. The parties were divorced in early 2014.

12. The father filed an application in the Federal Circuit Court of Australia on 17 June 2014 seeking orders that X attend a particular school, that there be an equal time arrangement for X’s care, that X be permitted to accompany the father on a three week trip overseas and for X to attend European culture classes. That application was dismissed on

    
    

    10 September 2014 and the father was ordered to pay the mother’s costs.

13. Undeterred, shortly after, the father filed a further application in the proceedings on 9 March 2015 seeking orders that X spend half of the Christmas school holidays with him and that he be permitted to take X on holidays outside of Australia. That application was also dismissed on 29 July 2016 and the father was again ordered to pay the mother’s costs.

14. During that time, the father had commenced a de facto relationship with Ms D in late 2015. In 2016, the father and Ms D had a child, named Y. A short time later, in 2016 an Interim Apprehended Violence Order for the protection of Ms D was made against the father.

15. In early 2017, the father commenced a relationship with Ms E.

16. In early 2017, the father was convicted of having intimidated the brother of Ms D and a Final Apprehended Domestic Violence Order was made against him for the protection of her brother. The father was at that time placed on a good behaviour bond for a period of two years.

17. In late 2017, an Interim Apprehended Violence Order was made against the father for the protection of Ms E.

18. In late 2017, a Final Apprehended Domestic Violence Order for the protection of Ms D and Y was made against the father for a period of two years. Two days later …, the father was convicted of having breached the Interim Apprehended Violence Order and his good behaviour bond and was placed on a further good behaviour bond for two years and he was required to report to a correctional supervisor.

19. In early 2018, a Final Apprehended Domestic Violence Order for the protection of Ms E against the father was made for a period of six months.

20. In early 2018, the police instituted proceedings in the Local Court C for the protection of X and the mother. A Provisional Apprehended Violence Order was made against the father.

21. The father’s time with X was suspended by the mother in early 2018. This was in accordance with orders made on the same day in the Local Court C suspending the father’s time with X (as outlined in the 21 August 2013 orders) and transferring the parenting proceedings to the Federal Circuit Court of Australia. The Court also made an Interim Apprehended Violence Order against the father.

22. The police informed the mother that during early January 2018, the father repetitively contacted local police stations, insisting that they conduct welfare checks on X. In early 2018, the father was convicted of using “a carriage service for harassment” of the mother and was fined $200 (Mother’s affidavit filed on 30 March 2022, paragraph 38).

23. The father contested the application, but nonetheless at the final hearing in early 2019, the Local Court C extended the Final Apprehended Domestic Violence Order until early 2020.

24. On 26 July 2019, Judge Monahan made a number of orders in the parenting proceedings, which included continuing the suspension of time between X and the father and requiring the father to attend counselling in relation to his behaviour. The father commenced seeing a counsellor in mid-2019. After five counselling sessions, the father said that he was advised by the counsellor that it was not necessary to continue further sessions with her.

25. Judge Monahan made orders on 25 February 2020, which required the parties and X to attend on Mr F for family therapy. This was done between March 2020 and June 2020, attending separately. On 22 June 2020, Mr F issued a report concluding that family therapy options had been exhausted, that further family therapy was not recommended and indeed could be deleterious for X.

26. The matter was transferred to the Federal Circuit and Family Court of Australia (Division 1) on 2 June 2021.

    The primary considerations

    Was the father violent to X and the mother? (s 60CC(2)(b) of the Act)

27. The mother and the ICL contend that the father’s conduct towards X and the mother constituted family violence as defined by s 4AB(1) of the Act. The effect of such a finding would displace the presumption in favour of equal shared parental responsibility provided for in s 61DA of the Act.

28. I have already referred to the Apprehended Domestic Violence Order, which was made for a period of two years.

29. In addition, the mother contends that the father has assaulted X and has also threatened her in a way that caused her to be fearful of him. The evidence in support of the first allegation comes from X herself. A Child Inclusive Conference was conducted on 17 April 2019. The Child Inclusive Conference Memorandum states:

    •[X] described [the father] as “frightening, scary and mean”. [X] said that [the father] frequently shouted and hurt her. She said that she and [the father] were play wrestling when he “strangled” her. She said that she found it difficult to breathe and was scared of him. [X] recalled that [the father] “froze” when he reportedly realised what had happened. [X] said that [the father] frequently questioned her about travelling overseas and [the mother’s] involvement with his ex-partner, [Ms D].

    •[X] said that she stopped spending time with [the father] because she was scared of him. She said that, one time, [the father] put his hand over her mouth and nose whilst he was on the phone to [the mother]. [X] believes [the father] did this so she could not tell her mother to come and get her because she felt unsafe with [the father].

    (Child Inclusive Conference Memorandum dated 7 May 2019)

30. The Family Consultant recorded the following:

    37.…[X] said that she began to tell her mother where she was, and [the father] put his hand over her mouth. She said that she could not breathe. [X] said that her father let her go once he hung up the telephone…

    38.[X] said that, when she was seven years old, she and her father were playing on the bed and “out of the blue he put his hands around my neck and squeezed lightly”. She said that she froze, and her father let go and she jumped off the bed. [X] said that she is still scared of her father and said that he knows where she lives and where she goes to school.

    (Family Report dated 30 December 2020, paragraphs 37–38)

    If X was seven years old as she said, then this event occurred in 2015 or 2016.

31. In response, in the course of his oral evidence, the father vehemently denied that he had choked or strangled X.

32. X did not assert that she had been “choked” and the words she used are less emphatic. The importance of her statements, however, is not so much to establish family violence but to identify her lived experience. There is no evidence, other than the father’s assertions, that this is not X’s genuine recollection, which, of course, colours her present attitude towards her father.

33. The threatening behaviour arises from the father’s strong desire to take X to Country B to see his relatives and in particular to meet X’s grandmother. X had previously met the grandmother twice, but the father accepted that this was at an age where she would retain no recollection of meeting her grandmother. X had however, whilst in the care of the father, spoken to the grandmother electronically.

34. The mother’s evidence was that from about mid-2017, X said to her words to the effect, “Dad continually asks the same questions to me” namely “when are you going to be allowed to go to [Country B]?” and “why did you visit [Ms D] with your mother?” (Mother’s affidavit filed on 30 March 2022, paragraph 29). The reference to ‘[Ms D] is to Ms D. The father is of the view that the mother and X visited Ms D and that the mother told Ms D about the father’s behaviour towards her and X.

35. The mother’s evidence continued:

    30.On […] 2017, soon after [the father] collected [X] from school I answered a call and heard [X] sobbing on the phone. [X] said to me “he keeps asking me the same questions”. When I asked “Where are you [X]?” I heard her answer “He won’t let me tell you”. I then heard [the father] yelling over the top of [X] saying “why did you go to [Ms D’s] place?”.

    31.[X] subsequently spoke to me about what occurred that weekend. When she was speaking to me about this, she appeared scared. She said to me “Dad picked me up from school and we drove to a carpark where he shouted at me so much that a woman – a passer-by got involved. Dad told the woman to bugger off. Dad then took me to a sushi restaurant […]. He continued asked me questions about [Country B]. Then he went outside. He said he was going to get some cigarettes and wine and while he was gone, a lady in the restaurant asked me if I knew your telephone number, mum. Then dad came back and we left”.

    32.On […] 2017, I learned of an episode at [X’S] school from [X] when I collected her at the end of her school day. From what [X] told me, apparently, while [X] was at school, [the father] called the school to speak to [X]. Not knowing that he had no entitlement to do so that day, the principal located [X] and put her onto the phone to speak to the father. [X] said to me “Dad shouted down the phone to me ‘Have you got the answers to the questions – you have to call me back before 5:30’”.

    33.On […] 2017, I went to [X’S] school […] to collect her. I arrived at about 2:30pm. I observed that a police car arrived at the same time as I did. I saw that the gates giving entrance to the school were locked. I saw one of the teachers trying to prevent [the father] from going down to [X’S] classroom. The school principal […] said to me words to the following effect “Your former husband ([Mr Androtis]) came to the school. He said that he wanted to speak to [X]. I said he couldn’t do so. He was so aggressive that I was alarmed and I locked down the school and called the police”. The police escorted [the father] from the school but he did not drive away, he walked down the street and after the police were gone, he came back as I was leaving with [X] and stayed opposite the school gate making it difficult for us to leave. He eventually moved away and [X] and I were able to leave, escorted by [X’S] teacher […].

    34.On 28 November 2017, while [X] was spending time with [the father], I received twelve text messages from him which included the following “Please answer her questions, why won’t you allow her to go to [Country B]”.

    35.The behaviour described above continued throughout December 2017. On 3 December 2017 I received a call from [the father’s] phone. I could hear [X] on the line. I could hear [the father] in the background saying “Dad wants the answers to the questions”. On […] 2017 I received a call from [X’S] school principal […] who said to me words to the effect “I’ve been receiving calls from [the father] virtually every day regarding [X’s] enrolment at the school. Apparently he wants to pull her out of the school”. On 25 December 2017 when I collected [X] from [the father], [X] started crying and sobbing uncontrollably. She said “I have to give him a call with the answers. If I don’t give him a call with the answers he’s going to get angry and shout at me. When we were driving here he pulled over to the side of the road and said ‘you’re going to stay with me until you give me the answers’”. [X] said to me “I don’t want to go back to him because he is going to get angry with me because I haven’t given him the answers”.

    36.On 30 December 2017, [X] said to me “I don’t want to go to Dad’s. I don’t want to go back there again”. The next day, 31 December 2017, she said to me “Please don’t make me go. I don’t want to see him again. He keeps shouting and frightening me. I’m afraid of him”.

    37.On 1 January 2018, [X] said “I don’t want to be with Dad. He will keep me”. I made a decision then to withhold [X] from spending time with her father, though she was to spend the first week of January 2018 with him pursuant to the existing parenting orders. Apparently, as a result, [the father] contacted the police and insisted that they escort him to my home to collect [X]. Rather than do so, I was informed by police that due to [the father’s] threatening and harassing behaviour the police authorised the issue of a provisional ADVO for the protection of [X] and myself.

    (Mother’s affidavit filed on 30 March 2022, paragraphs 30–37)

1. This evidence is consistent with what X said to the Family Consultant:

   34.[X] said that she has not seen her father since Christmas 2017. She said that “me and Dad were on our way to go back to Mum. I just had a week with Dad. He was on the phone to [paternal] grandma and we went past [Beach 1]. Grandma must have said something. Dad stopped the car and asked me why we went to [Ms D] and [Y’s] place [[the father’s] ex-partner and his other daughter]. Why won’t your Mum let you go to [Country B]”. [X] said that she thought this was to do with a Court Order and thought that her father wanted her to ask her mother why she could not go. She said that she told her father that she did not know why she could not go. [X] said that her father asked her the same thing every time she saw him and said that he “got really upset and started shouting, why did you and Mum go to [Ms D’s] place, why can’t you go to [Country B]?”

   35.[X] said that there was no-one around at first and then a woman walked past the car and [the father] stopped shouting. She said that she thought about trying to get out of the car, but she was scared that her father might shout again or “maybe even hurt me”. [X] said that [the father] told her that he was not going to take her back to her mother but then he did take her back. She said that she and her father did not talk for the rest of the journey and when she saw her mother, she ran to her and was crying. [X] said that she did not say goodbye to her father.

   (Family Report dated 30 December 2020, paragraphs 34–35)

2. In the course of his oral evidence, the father ultimately agreed that he persistently questioned X as to why she could not go to Country B and that he attended the school, as described in the mother’s evidence, which was placed in lockdown as a result. During that evidence, he accepted that his behaviour towards X at this time was “inappropriate”, “entirely inappropriate”, was “frightening” and “overwhelming” for her and “put her under enormous pressure” (Transcript 8 August 2022, p.11 lines 4–5, 11–12, 27, 45–47; p.12 lines 1–2, 9, 11, 28–29, 34, 36). He accepted that he used a loud voice sufficiently to constitute violence (Transcript 8 August 2022, p.14 lines 8–10).

3. The father accepted that on Christmas day he questioned X about Country B whilst in the car and that he pulled the car over and said “how would you like it if I didn’t return you?” (Transcript 8 August 2022, p.16 lines 5–6). His evidence was that the statement was taken out of context and, presumably, was not a threat. Nonetheless, he agreed that X was “pretty upset” and “frightened” and that his behaviour was “menacing”, “angry”, “inappropriate” and “entirely out of control” (Transcript 8 August 2022, p.16 lines 17, 24–25, 27 and 29).

4. The above behaviour was threatening behaviour which made X fearful and accordingly constituted family violence as defined.

5. The effect is that the presumption contained in s 61DA(1) of the Act is rebutted. That rebuttal is of no great significance in these proceedings because, as I shall explain shortly, equal shared parental responsibility is in any event, not in the best interests of X.

6. The significance of the father’s behaviour is, however, that it explains why X is fearful of him. The father’s position is that X’s present fear of him is “irrational”, has “no basis” (Transcript 8 August 2022, p.4, lines 21–26), is the result of alienation by the mother and it was her fault that X had an adverse view of him (Transcript 8 August 2022, p.36, line 9).

7. I do not accept that. The father’s behaviour is persistent and well recorded. In addition, there is an abundance of evidence that shows the father to be loud, aggressive, and argumentative and to have behaved inappropriately with staff at X’s school, his partners and their relatives (for example, evidenced by the issuing of multiple apprehended violence orders), the police and the staff at Organisation G.

8. Placed in that context, it is easy to find that X’s present views are the product of the father’s behaviour towards her, the result of her own experience of the father and not the implanted views of others.

9. It is not surprising that X should hold such views. The history of apprehended violence orders against the father in favour of people with whom he has had a relationship suggests that the father can readily appear as a threatening person.

10. In determining what orders are in the best interests of X, it is necessary to have regard to the considerations raised by s 60CC of the Act. I shall deal only with the matters raised for consideration by the parties and the ICL which also appear to me to be those that bore upon the determination of the proceedings.

    Is there a benefit to the child having a meaningful relationship with both parents? (s 60CC(2) of the Act)

11. X clearly has a close and meaningful relationship with the mother, which is of great benefit to her. Perhaps not surprisingly, in the circumstances, the Family Consultant suggested that X was somewhat aligned with the mother, but saw no evidence that the mother was trying to alienate X from the father. As part of the foundation for that opinion, the Family Consultant took into account that X was able to recount pleasant memories of times spent with the father.

12. The difficulty is, that for the reasons just described, X has become fearful of the father and is anxious about seeing him.

13. X had the benefit of seeing a counsellor over an extended period of time in an attempt to deal with her anxiety that resulted from her father’s behaviour. That counselling ceased in about late 2020 when the counsellor changed employment and was not able to continue counselling X. The Family Consultant described this was “unfortunate” because X does appear to have a pessimistic outlook (Family Report dated 30 December 2020, paragraph 120). However, the Family Consultant added:

    120.…This does not mean that it is unreasonable for [X] to feel fearful of her father, but her reported hypervigilance in relation to him turning up unexpectedly when he has known where she lives and where she goes to school and has not done so in three years, may indicate an unreasonable fear that could or has already led to poor mental health, specifically anxiety.

    (Family Report dated 30 December 2020, paragraph 120)

14. The parties attempted family therapy in 2020 pursuant to the orders of Judge Monahan. Mr F, who conducted the therapy, noted that there were a number of appointments for each of the individuals involved, including seeing the father on many occasions and X on four occasions. None of the attendances were joint. Mr F provided the following report:

    It is considered that family therapy options have been exhausted at this time and further family therapy is not recommended. Neither [the mother] nor [X] are assessed to be suitable candidates for further family therapy due to: the significant length of time that [the mother] and [X] have had no contact with [the father]; [the mother’s] stated fear about any engagement on any level with [the father]; there being a high chance of destabilisation for [X], who appears to be doing well and settled in a stable and supportive routine and environment; and the possibility that such an intervention could have a deleterious impact on [the mother] and, therefore, [X’s] emotional and psychological wellbeing.

    The writer is also concerned that [the father] may not be able to contain himself from expressing anger and frustration towards [the mother] or [X] during joint therapy appointments.

    (Mother’s affidavit filed on 30 March 2022, Annexure “G”)

15. Mr F noted that X presented as having a genuine fear of the father and “and it would likely be extremely difficult for X to reach a point where she would be able to tolerate joint appointments with [the father]” (Mother’s affidavit filed on 30 March 2022, Annexure “G”, p.2).

16. Therefore, at present, there is little or no prospect of there being a meaningful relationship between X and the father which would be of benefit to her. Any relationship would have to be forced upon X by court orders contrary to her stated wishes, to be discussed shortly, and in circumstances where she is fearful of the person with whom she is supposed to have a meaningful relationship.

17. There is no realistic prospect of a meaningful relationship of benefit to X with the father.

18. In his evidence, the father said that with proper family therapy and the goodwill of all involved, any issues between him and X would be readily resolved. That does not accord with the report of Mr F.

19. The father dismissed that attempt of therapy as he said it was of not “proper assistance” to X, but did not say why (Transcript 8 August 2022, p.28 line 43). Instead, he considered that what was required was therapy with the mother, father and X all present at the same time.

20. Neither Mr F nor the Family Consultant were required to give oral evidence. The desirability of further family therapy or its form was, therefore, not explored with them. Thus Mr F’s opinions remain unchallenged. The Family Consultant did not suggest further therapy and her recommendation was that the father not spend time with X. Her view was that the best thing the father could do to ameliorate X’s hypervigilance about him turning up unexpectedly was to consent orders that he not approach X (Family Report dated 30 December 2020, paragraph 121). The father accepted that injunctions of that kind should be made under s 68B of the Act but nonetheless, inconsistently, pursued his application for X to spend significant and then equal time with him.

21. There is no evidence to suggest that further therapy would be of any benefit to X and, indeed, the evidence suggests that it would actually be harmful.

22. The difficulty is that the father perceives X’s views and her fears as wrong, irrational and not genuinely held. He seems to be of the view that if she was to re-engage with him, all would be well, almost instantly. He says he has changed and has attended many courses which have improved his behaviour. That may be so and he may have moved on. However, X has not. Her scars remain.

23. I do not regard the prospect of reconciliation as at all likely and that forcing X into further family therapy poses an unacceptable risk of psychological and emotional harm to her.

    The additional considerations

    X’s views (s 60CC(3)(a) of the Act)

24. X is 14 years of age and there is nothing in the evidence to suggest that she has anything other than the appropriate level of maturity for her age. X is doing well at school and has held some positions of responsibility. Given that, there is no reason for her views to be given anything other than significant weight.

25. Her views are plain. X does not want to see the father and she told her counsellor that she would run away from him if she was forced to do so. This was when she was 12. As the Family Consultant opined, given her age now, “running away is more likely and that may place her at risk of harm” (Family Report dated 30 December 2020, paragraph 117). This is so despite the father having apologised to X for his behaviour at the interviews with the Family Consultant.

26. The father challenged the maturity of X because she has apparently called him “Mr stupid-head”, which he takes as a sign of immaturity (Transcript 8 August 2022, p.31 lines 26–27). Given the other evidence described, I do not accept that proposition.

27. The father was adamant in his evidence, that either X did not genuinely believe that she was scared of the father and did not want to see him, or that if she did, she had effectively been brought to that belief by the actions of the mother. Again, I do not accept these contentions. First, there is no suggestion that the mother has behaved in such a way, and she was not cross-examined to suggest that she has. The Family Consultant expressed an opinion that there was no such behaviour.

28. The father says however, and indeed said repeatedly in his oral evidence, that he “takes responsibility” for what has occurred, but now there is no reason for X to be scared or fearful of him. It follows that if time with him resumed, very quickly, if not immediately, X would want to see him.

29. Unfortunately, whilst the father accepts that his behaviour caused X to be fearful, he does not accept that the consequence of that behaviour is that she remains fearful of him now. Whilst the father may not or cannot understand that she still feels the same way towards him as she did many years ago, I am indeed satisfied that that is the case.

30. I am satisfied that X’s views are genuinely held, for good reason, and she is adamant in them.

    Nature of the relationship of the child with the parents and other persons (s 60CC(3)(b) of the Act)

31. I have already discussed the nature of the relationship between X and her parents.

32. The father suggested that it would be desirable for X to continue his relationship with her sister, Y, and the paternal grandmother. There is no evidence that there is any existing relationship between X and Y, and X is not interested in developing one. The circumstances in relation to the paternal grandmother are such that she is effectively a stranger to X and has not had anything to do with her for at least four and a half years.

33. If all other things were equal, there could well be a benefit to X having a relationship with the paternal family. However, this is not the case.

34. This consideration does not support the father’s case.

    The likely effect of any change in circumstances (s 60CC(3)(d) of the Act)

35. The orders proposed by the mother and the ICL effect no change to the present circumstances. Indeed, the proposed orders reinforce them by putting in place a number of protective orders designed to make X feel safe. The point of the orders is, to some degree, symbolic because the father has neither breached the most recent Apprehended Domestic Violence Orders or more recently, approached X’s school or home.

36. The father’s proposed orders, particularly as to equal time, effect a fundamental change to X’s living arrangements. There is no evidence anywhere, other than the father’s, in my view, unfounded belief, that once he starts spending time with X all will be well. As already discussed, X does not want to spend time with the father to the point of becoming anxious at the thought of it and to the extent it could adversely affect her mental health. Forcing X to do so against her will carries with it the very real risk of an adverse reaction that would not be in her interests.

37. It is to be remembered that the father wishes to have overnight time as part of a transition to equal time by the time X is 16. There is no evidence as to how such time is to be facilitated or managed, or how X would cope with that. The evidence does, however, support the proposition that she would find it intolerable. She has already expressed the view that she would run away from the father rather than spend time with him. That must be more so, if she was required to live with him.

    The capacity of the parents to provide for the needs of X (s 60CC(3)(f) of the Act)

38. As identified by the Family Consultant, the mother is herself anxious about the father, and X is somewhat aligned with her; which may indeed reinforce X’s own fear and anxiety. However, having said this, X is doing extremely well in the care of the mother and seems to be a healthy, balanced and well-adjusted child doing well at school with a good group of friends. There is no need for concern about the capacity of the mother to meet X’s needs.

39. On the other hand, there are some significant concerns about the father’s capacity.

40. It was submitted on the father’s behalf, that he has the capacity to develop a meaningful relationship because he has developed insight into X’s issues. I do not agree. Whilst the father accepts that he behaved poorly towards X, he does not accept that his behaviour has had consequences for his relationship with her which continue.

41. It is also quite clear to me that the father puts his own needs well ahead of X’s best interests. Some examples, as already outlined above, will suffice. In late 2017, there was an incident where the father called X’s school and shouted at her on phone call and asked “have you got the answers to the questions – you have to call me back before 5.30pm” (Mother’s affidavit filed on 30 March 2022, paragraph 32). The questions were why X could not go to Country B, and why she and the mother went to Ms D’s home.

42. These, of course, were questions for the mother and not X.

43. The father was clearly involving X in the middle of a parental dispute and did so in such a way it disrupted her schooling and made her fearful.

44. In late 2017, the father attended X’s school and attempted to go to her classroom. The school principal informed the mother that she considered that the father was so aggressive that she locked the school down as a precaution and called the police (who ultimately escorted the father from the school).

45. As discussed above, the father’s continued questioning of X in relation to these matters was for a significant period of time towards the end of 2017 and was relentless. The father did not appreciate that his behaviour was scaring X, and demonstrated a considerable lack of insight into her concerns and psychological wellbeing.

46. He presently cannot accept that X remains scared of him. He is of the view that she cannot seriously be concerned about being removed to Country B. This is a real difficulty. X’s concerns are real and genuine. They were caused by the father’s behaviour towards her. Whether she could have or should have moved on from this by now is not to the point, rather it is that they remain. Unfortunately, the father cannot accept that. The father submitted that as a result of the counselling, surely X should accept that people change and mature. Clearly, for whatever reason, she has not. The family therapy did not have that effect. It is difficult to see how further therapy will do so.

    Likelihood of further proceedings (s 60CC(3)(l) of the Act)

47. The orders proposed by the mother and ICL are not likely to lead to any further legal proceedings. However, it seems to me that inevitably difficulties will arise in the implementation of the orders proposed by the father. Indeed, for the orders proposed by the father to be made, it will be necessary for the Court to formulate orders as to supervision, family therapy and the appropriate graduated times. The Court would also have to do so in the absence of any evidence to support them. There is, therefore, likely to be a dispute simply as to the mechanical provisions, but given the vehement nature of X’s beliefs, there may well also be enforcement proceedings, variation applications, contravention proceedings and the like.

48. Given X’s age and maturity it is very much in her best interests that proceedings be concluded.

    Conclusions

49. For these reasons, I am will make the orders proposed by the mother and the ICL.

50. There then remains the question of parental responsibility which is at large.

51. Quite simply, the parents cannot communicate. They have not done so for over four and a half years. The father has a history of behaviour with the effect, at least, of harassing the mother, or attempting to do so, by the use of the police, such as for repeated welfare checks. This does not bode well for effective communication.

52. X will be in the sole care of the mother.

53. These considerations persuade me that the mother should have sole parental responsibility.

54. Counsel for the father did not oppose the injunctions sought under s 68B of the Act, but said that as the father has not breached the most recent apprehended violence order or approached the mother’s home since it expired, there should be no distance provided for in the orders, but that the father should simply be restrained from approaching the premises and the like.

55. Given that counsel for the father had no other objection to the orders and raised no evidence, other than to say the father lives in the area, that the 500 metre injunction would cause the father any practical difficulties, I believe that the benefit to X having orders that make her feel safe outweighs the matters raised by the father. That is also the case in relation to the Family Law Watchlist.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       24 August 2022