Diamarda & Diamarda
[2024] FedCFamC1F 562
•26 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Diamarda & Diamarda [2024] FedCFamC1F 562
File number: MLC 9432 of 2021 Judgment of: CARTER J Date of judgment: 26 August 2024 Catchwords: FAMILY LAW – PARENTING – Where the father had not spent time with the child since 2023 – Where the child is currently residing in the care of the mother – Where the child expressed significant objection to remaining in the care of the mother – Where the father is seeking time with the child – Interim orders made permitting spend time with the father on a conditional basis pending judgment delivery – Final orders made to progress to shared care. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: Bielen & Kozma (2022) 66 Fam LR 59 Division: Division 1 First Instance Number of paragraphs: 161 Date of last submission: 30 April 2024 Date of hearing: 18 – 21, 25 – 26 March 2024 Place: Melbourne Counsel for the Applicant: Mr Stanley Solicitor for the Applicant: Cahill Family Lawyers Counsel for the Respondent: Ms Swann Solicitor for the Respondent: Schembri and McCluskys Counsel for the Independent Children's Lawyer: Ms Treyvaud Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers ORDERS
MLC 9432 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DIAMARDA
Applicant
AND: MR DIAMARDA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CARTER J
DATE OF ORDER:
26 AUGUST 2024
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the child X born in 2008.
2.The child live with the mother.
3.The child spend time with the father during the school term as follows:
(a)until the end of the 2024 school year, for four nights per fortnight, being each alternate weekend from the conclusion of school on the Friday immediately following the making of these orders (or 3.30 pm if a non-school day) until the commencement of school Tuesday (or 9.00 am if a non-school day);
(b)commencing at the start of the new school year in 2025, for six nights per fortnight, being each alternate weekend from the conclusion of school on Friday (or 3.30 pm if a non-school day) until the commencement of school Thursday (or 9.00 am if a non-school day); and
(c)from her 17th birthday, on a week about basis from the conclusion of school on Friday, 12 September 2025 (or 3.30 pm if a non-school day) until the conclusion of school the following Friday (or 3.30 pm if a non-school day) and each alternate week thereafter.
4.The child spend time with the father during school holiday periods, as follows:
(a)for one half of all short school holiday periods, at times agreed and failing agreement from the conclusion of school (or 3.30 pm if a non-school day) on either the last day of term or the middle Friday of the holiday period, until 3.30 pm the following Friday; and
(b)for one half of the long summer holiday period at times agreed and failing agreement, on a week about basis, with time to commence at the conclusion of school (or 3.30 pm if a non-school day) on either the last day of term or the following Friday of the school holiday period until 3.30 pm the following Friday.
Special occasions
5.For the purposes of special occasions, the child shall spend time with each of her parents as agreed and failing agreement:
(a)for Christmas:
(i)with the father from 12.00 pm Christmas Eve to 12.00 pm Christmas Day in 2024;
(ii)with the mother from 12.00 pm Christmas Day to 12.00 pm Boxing Day in 2024;
(iii)with the mother from 12.00 pm Christmas Eve to 12.00 pm Christmas Day in 2025; and
(iv)with the father from 12.00 pm Christmas Day to 12.00 pm Boxing Day in 2025.
(b)on Father’s Day, with the father from 6.00 pm the day immediately preceding Father’s Day until the commencement of school the following Monday (or 9.00 am if a non-school day);
(c)on Mother’s Day, with the mother from 6.00 pm the day immediately preceding Mother’s Day until the commencement of school the following Monday (or 9.00 am if a non-school day);
(d)in the event the relevant parent is otherwise not spending time with the child pursuant to these orders the child spend with the father on the father’s birthday and time with the mother on the mother’s birthday as follows:
(i)on a school day, from the conclusion of school (or 3.30 pm if a non‑school day) until 8.00 pm; and
(ii)on a non-school day, from 10.00 am until 2.00 pm.
(e)on the child’s birthday, the party not otherwise spending time with the child pursuant to these orders spend time with her as follows:
(i)on a school day, from the conclusion of school (or 3.30 pm if a non‑school day) until 8.00 pm; and
(ii)on a non-school day, from 10.00 am until 2.00 pm.
(f)for Easter:
(i)with the mother from 9.00 am Good Friday to 9.00 am Easter Sunday in 2025;
(ii)with the father from 9.00 am Easter Sunday to 9.00 am on the Tuesday following Easter Monday in 2025;
(iii)with the father from 9.00 am Good Friday to 9.00 am Easter Sunday in 2026; and
(iv)with the mother from 9.00 am Easter Sunday to 9.00 am on the Tuesday following Easter Monday in 2026.
6.For the purposes of the child spending time with the parties for special occasions pursuant to Order 5 herein, the usual spend time arrangements pursuant to Orders 3 and 4 herein shall be suspended and then shall recommence after the special occasion as if they have not been suspended.
7.The child otherwise spend time with the parties as agreed by them in writing.
8.Changeover shall occur:
(a)at the commencement or conclusion of school, at the post office, B Street, Suburb C, near D School; or
(b)at the mother’s residence at all other times.
Special issues
9.The father and mother use text message or email to communicate with each other in relation to issues relating to the child, except in the event of an emergency.
10.The father and mother are entitled to obtain directly from any school, medical or health professional or allied health professional attended upon by the child copies of any reports, information, or other relevant verbal or written advice affecting the education, health and welfare of X.
11.The father and mother provide to the other their mobile telephone number, current email address and residential address within seven days of this Order and keep the other parent informed of any changes to their telephone number, email address or residential address within two days (where possible) of any change.
12.The father and mother forthwith inform the other of any serious illness or injury sustained by the child whilst in their care and, further, provide any particulars of any treatment received together with the name and address of the treatment provider and/or location at which the child is a patient.
13.The father and mother be hereby restrained from discussing these proceedings or any of the issues raised in them with the child save that they may inform her of the live with and spend time provisions of these orders.
14.The father and mother be at liberty to provide a copy of these orders to the child’s school, church, treating medical practitioners and allied health professionals, the Department of Families, Fairness and Housing, and Services Australia (Child Support).
15.The Independent Children’s Lawyer explain these Orders to X and thereafter the appointment of the Independent Children’s Lawyer be discharged.
16.All extant parenting applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
This is a matter involving disputes regarding property and the parenting of the parties’ one child, X, who is 15 years old. There are outstanding issues concerning the property component of the matter. That aspect of the dispute cannot yet be resolved as there are outstanding taxation matters that need to be considered, and the parties have advised the Court that the accountants need further time to attend to those matters. The matter is listed for further mention on 17 October 2024.
I have determined however that it is appropriate I make parenting orders and deliver these reasons prior to the somewhat delayed finalisation of the property issues. Submissions in relation to parenting concluded about 6 months ago. X will be turning 16 this year. She is spending very limited time with her father and the parenting aspect of this matter – which has been long standing – needs to be resolved.
The parties were able to agree on some interim parenting orders at the conclusion of the hearing pending my determination, which provided for X to resume spending time with her father, on the condition she commence sleeping in a bedroom at the mother’s home. I understand time has progressed reasonably well.
THE EVIDENCE
The Mother
In relation to the parenting dispute the mother relied on:
(a)her Further Amended Initiating Application filed on 12 February 2024;
(b)her affidavit filed on 12 February 2024;
(c)the affidavit of Ms E, the mother’s friend, filed on 12 February 2024;
(d)the affidavit of Mr F, the mother’s friend, filed on 12 February 2024; and
(e)her affidavit-in-reply filed on 12 March 2024.
The Father
The father relied on:
(a)his Further Amended Response to Initiating Application filed on 26 February 2024; and
(b)his affidavit filed on 27 February 2024.
The parties both gave evidence. They presented as authentic and reasonably candid in their evidence, although it is apparent there is much distrust between them, and each appeared more inclined to blame the other party for the ongoing dispute than to reflect on their own contributions.
I also had the benefit of hearing evidence from Ms E and Mr F.
Mr F was not an impressive witness. In relation to the incident in 2023 to which I will later refer, Mr F made immediate reference to the Google map (which had been marked as an Exhibit), which tended to suggest he had discussed the matter with the mother prior to giving his evidence. In addition, Mr F sought to embellish his evidence, saying he saw X (or a girl he was “pretty sure” was X) in the car driven by the father in 2023 as she ‘swung out to look at us’, a detail which was not in his affidavit. Indeed, in his affidavit he did not articulate that he saw X in the car, merely that:
9.… I noticed a […] motor vehicle to the left and immediately recognised [the father] to be the driver and that he had a young female passenger which [sic] him, who I understand to be [X].
(Emphasis added)
I put little weight on his evidence.
Ms E similarly impressed as being an advocate for the mother rather than entirely a witness of truth. She was strident and combative, and angry as she felt the father had ‘mislead her as to the true dynamics’ of the parties’ conflict. However, her evidence did highlight the difficulties X has experienced, navigating between her high conflict parents. I also accept Ms E’s evidence that at times the father criticised the mother and made derogatory comments about her mental health in the presence of X.
I also had regard to the following expert reports:
(a)the forensic psychiatrist reports of both parties prepared by Dr G, psychiatrist, dated 19 January 2022;
(b)the Family Report prepared by Dr H, Family Consultant, dated 5 May 2022;
(c)the supplementary report prepared by Dr G dated 13 February 2023;
(d)the report prepared by Ms J, Family Therapist, dated 27 July 2023;
(e)a further report prepared by Ms J dated 5 December 2023;
(f)the Updated Family Report prepared by Dr H dated 29 January 2024; and
(g)a further updated report prepared by Ms J dated 7 March 2024.
The parties did not require any of these experts to give evidence.
PARENTING
The parties’ proposals
At the conclusion of the hearing, the mother proposed that X continue to live in her primary care and spend alternate Saturday and Sunday nights with the father. The mother maintained there should be no further extensions of X’s time with the father beyond the current arrangement put in place by consent on 26 March 2024, save for adding a few nights during holidays. It was her position that if time between X and her father increased more significantly, the likelihood was that X’s relationship with her mother would continue to be undermined by the father. Conversely, the father advocated for a shared care arrangement, to give weight to X’s long held desire to spend considerably more time in the care of her father. The Independent Children's Lawyer did not articulate orders for X’s time with her father – but expressed a view that she should spend more time with her father than proposed by the mother, and less time than proposed by the father.
Background
For the purposes of the parenting dispute, the relevant chronology, in brief, is as follows.
The parties commenced living together in 1992 and married that year. X was born in 2008. The father worked outside the home in paid employment throughout the marriage, and the mother was the child’s primary carer.
It is the father’s case that the mother suffered from poor mental health on occasions, which impacted her ability to provide safe and appropriate care for X. He said the mother’s mental health was particularly poor at times in 2016 and 2017.
In 2020 the father took X to Town K. He said that was when the parties separated. The mother said she understood the father had only taken X on a holiday. She did not regard the marriage as over until February 2021, after the father and X returned from Town K, but then stayed at accommodation in Town L and did not return to live at the former matrimonial home.
X saw her mother in early 2021. The mother attended at X’s school on the first day of term, at which time the father told the mother to leave. Thereafter, the father failed to make any arrangements for X to spend time with her mother. Any overtures made by the mother to see or spend time with X were rebuffed. In mid-2021 the father obtained an Intervention Order against the mother, listing himself and X as affected family members. The father asserted the mother was harassing and stalking himself and X at that time. I am not satisfied there was a genuine basis for the father to seek an Intervention Order against the mother naming X as a protected person at that time.
In 2021 the father was charged with a number of offences in relation to an underage person. These charges arose as a result of the father’s interaction with an underage person in 2020. Child Protection became involved and determined X could not remain with the father. X was interviewed by Child Protection on several occasions who noted that her strong and inflexible attitude towards seeing her mother at that time appeared “disproportionate to the reasons she cites for not wanting contact”. Child Protection also noted that the father’s assurances that he wanted to support a relationship between X and the mother were contradicted by his actions in obtaining the Intervention Order that prevented any contact occurring.
The mother instituted these proceedings on 24 August 2021. At about the same time the mother obtained an Intervention Order against the father. She asserted the father repeatedly attended at the former matrimonial home and the neighbouring property they owned, and removed vehicles.
In 2021 the mother was informed by Child Protection that X had been removed from the father’s care as a result of the charges against him. X was placed with her paternal grandparents. This arrangement was reflected in interim orders made on 21 September 2021. X told Child Protection at that time that she found her mother to be overprotective, and she did not want to be placed back with her. The interim orders also provided for family therapy to take place between X and her mother to re-establish their relationship. X’s time with the father was as agreed between him and his parents – which according to the mother occurred on an almost daily basis.
By late 2021 X’s relationships with her paternal grandparents had become strained and X decided she no longer wanted to remain living with them and instead wanted to live with her mother. X sent a text message to her mother requesting that “if you have the option to take me in please take it”. The mother was unable to respond to that text message as it would have been a breach of the Intervention Order the father had obtained.
Further interim orders were made on 22 November 2021 pursuant to which X was to remain living with her paternal grandparents, have supervised time with her father on four occasions each week and continue family therapy with her mother.
Some attempts were made at family therapy in 2021 with a Ms M.
In late 2021 X spent time with her mother. When the mother arrived with X at the changeover location that evening at 7.00 pm to return her to the care of the paternal grandparents, they said X was no longer welcome to stay at their home. X then commenced residing with the mother, and spending time with her father supervised by the paternal grandmother.
I am not aware of the causes of the breakdown in the relationship between X and the paternal grandmother. I understand X would have preferred to be living with her father but considering the charges he was then facing that placement was not supported by the Court, the Independent Children's Lawyer or Child Protection.
Family therapy continued in 2022. It was the mother’s case that the father deliberately undermined that process – first by delaying his payments to the therapist and then by suggesting to X it was optional.
The father’s criminal proceedings were finalised in 2022. He pleaded guilty to two offences against an underage person. The other charges were withdrawn. The father was fined and placed on a Community Correction Order, to undergo treatment as directed. The father has completed the CCO.
The father deposed in his trial affidavit he had intended to plead not guilty but decided “it would be in the best interests of myself and [X] to plead guilty to the lesser charges”. That is, the father did not really acknowledge any offending behaviour at trial, nor did he appear to reflect at all on the impact his behaviour may have had on the victim.
On 14 June 2022 further parenting orders were made. X was to live with the mother and spend unsupervised time with her father three times each week. Family therapy for X was to continue. The mother said the father’s failure to pay the family therapists’ fees in a timely manner continued to interfere with that process.
The parties give divergent accounts of what was occurring for X from around 2022.
The father said X sent multiple messages to him complaining about the mother’s conduct towards her, alleging the mother was physically and verbally abusing her. He said X felt increasing unsafe in the mother’s care. The mother strenuously denied abusing X in any way. The father also said the mother did not provide appropriate food for X, which was also strenuously denied by the mother.
The mother deposed that from 2021 until 2023 X was “happy, thriving and doing well at school”. However, the mother said X’s behaviour towards her began to deteriorate as a result of the father’s interference and undermining of the mother/daughter relationship. She said the father also undermined the family therapy process to the extent that X refused to engage with Ms M.
By 2023 X refused to stay with the mother, and instead stayed with friends for several nights. This was shortly after X had met with the Independent Children's Lawyer who attended at X’s school. I understand the Independent Children's Lawyer suggested that a shared care arrangement at that time might not be workable. It appears X was frustrated by this indication, and she then refused to return to her mother’s care electing instead to stay with her friend for a few nights.
Child Protection then became involved again, with X reporting to her school that the mother was screaming at her and hitting her frequently. Child Protection were unable to arrange alternate emergency accommodation for X, and she had to return to her mother’s home. However, X refused to sleep in the house. Instead she slept in the garage, inside a tent provided to her by the father who took her shopping that afternoon and purchased a tent and a blow-up mattress. The father said he was advised to provide the tent to X by Child Protection, and that had he not provided the tent, X simply would not have remained at the mother’s home.
Further parenting orders were made on 24 February 2023 extending X’s time with her father to include overnight visits. The orders also restrained the father from communicating with X outside any time he spent with her. The father conceded he did not comply with that order and continued to contact and communicate with X electronically when she was in the mother’s care.
It was the mother’s case that X’s behaviour deteriorated further, which the mother attributed to the father’s influence. She said X returned from the first overnight visit in 2023 and refused to sleep in her bedroom, and instead set up a bed for herself in the bathroom.
In 2023 X was interviewed by Child Protection at her father’s home. She reported that it was ‘easier’ in her father’s home and “a bit harder going back” to her mother’s. She said her mother “yells at me and like, she like gets a little bit physical”. When asked to elaborate X said the mother “sometimes she hits me and stuff” and had threatened to throw out X’s belongings. Child Protection observed that X had consistently “not been able to provide context and specifics around the allegations of harm”.
It appears from the s 69ZW report that the father and X were interviewed together. The father referred to “we” having brought the concerns to the attention of the Department, “but no one seems to care”. X said she slept in the bathroom as she felt safe in there. X acknowledged she had previously slept in the same bed as her mother.
In 2023 X absconded from the mother’s care. She was located by the police in Town L. X then stayed with family friends for about two weeks before returning to the mother’s care. X again slept some nights in the bathroom rather than in a bedroom. She also chose to eat baby food on some occasions rather than food prepared by the mother.
X spent overnight time with the father in 2023. The evening she returned to the mother’s care, she insisted on sleeping in the bathroom.
X again absconded from the mother’s care in 2023. She left school and was – according to the father – eventually located in Town N. It was the mother’s assertion that the father orchestrated X running away – and indeed she and a friend said they saw X in the father’s car in Town L that evening.
Having heard evidence about that evening, I am not satisfied that the father participated actively in assisting X to run away on that occasion. Nor am I satisfied that X was in her father’s care at any time that evening prior to being recovered by him late in the night. In particular:
(a)the mother and Mr F said they saw X in a vehicle in Town L driven by the father going around a roundabout at approximately 8.10pm. The mother and Mr F were, in my view, too far away from where they saw the car, and moving too fast to be able to positively identify X as being in the car. It was also getting dark, and although the area was well lit by streetlights, that does not necessarily mean the inside of the vehicle was observable. I have already made observations as to my view of Mr F as a witness of truth;
(b)at 8.35 pm the father photographed the car he said he was driving that afternoon, being a different vehicle, parked outside the police station. The father said prior to taking that photograph he had been inside speaking to police. He said he took the photograph of his car after he read the text message from the mother he had received about 8.12 pm accusing him of having X in his care. The mother’s suggestion that the father had sufficient time to drive back to his premises, change vehicles, and drop X elsewhere before driving to the police station did not seem plausible; and
(c)the mother subpoenaed phone records showing the communications between X and her father on that day. According to those records X had a 25-minute communication with the father commencing at 7.53 pm – which must have ended at 8.18 pm. Oddly, the father said in his oral evidence that he could not recall this conversation. The records further show that the father attempted to call X at 8.20 pm. The timing of these calls suggest strongly that X was not present with the father at 8.10 pm as asserted by the mother – it would make no sense that they would be on the telephone to each other whilst seated in the same vehicle.
The father contacted X at 8.55 pm that evening when he was at the Town L Police Station. He said X spoke with a police officer who confirmed X could stay with her father at least that evening. X said the mother was subjecting her to family violence and was informed by the officer that if that was the case the police could apply for an Intervention Order on her behalf.
X then called the father at 9.21 pm and said she was in Town N. The father said X had travelled there by train with no assistance from him.
The father said he arrived in Town N at about 9.57 pm and collected X to take her back to the Town L Police Station. Under cross-examination the father conceded it was his intention on that day to secure an Intervention Order on behalf of X that would prevent the mother from coming into contact with her. I am satisfied that the father discussed this with X on the drive back to Town L.
The mother disputed that X even travelled to Town N, notwithstanding that the father also produced a photograph of a ticket from Suburb O to Town N. The mother was – not unreasonably – suspicious of why X would take a photograph of a ticket and send it to the father. The father also produced a photograph showing Town N McDonalds with a time stamp of 9.57 pm.
As already set out, on balance – and substantially on the basis of the timing of the phone calls between the father and X that evening – I accept the father’s evidence that he was not overtly involved in X absconding to Town N.
The police apparently advised they had no concerns about X staying with the father. He then retained her in his care – in breach of the Court orders – until mid-2023. When the mother sought to collect X from school in 2023, the father attended school and collected her himself, after sending the mother a text message that “[X] has expressed concerns with the Police due to escalating family violence”.
The father was also unable to persuade X to see her mother even for Mother’s Day.
Whilst I accept that the father acted appropriately in collecting X from Town N, it is problematic that:
(a)he did not text the mother until about 11.19 pm to confirm that X had been collected safely; and
(b)he failed to ensure X then was promptly returned to the mother’s care, and indeed actively prevented X’s return.
Orders were made on 31 May 2023 by the Senior Judicial Registrar suspending the father’s time with X and restraining him from contacting or communicating with her. The family was also to engage in reportable child inclusive family therapy with Ms J. The father acknowledged he did not comply with the order restraining him from communicating with or contacting X.
The mother moved from the former matrimonial home in Suburb P to rented accommodation in Suburb Q in 2023. The mother said X refused to stay with her and again she made arrangements for X to stay with friends for a few nights while the mother set up the new home.
It was the mother’s evidence that after spending that extended time in the father’s care in 2023, X’s behaviour towards her deteriorated further. When X did return to the mother’s care, she refused to sleep in a bed in any of the bedrooms in the new home. Instead, she set herself up in the bathroom and then later she started sleeping on the floor in the toilet.
In 2023, X again absconded from the mother’s care. X had been to see a movie with some friends. She told her mother that the group were going to get sushi afterwards. However, the mother said when she was close to arriving at the sushi café at around 6.30 pm, she saw the father drive past her. The mother said X then did not respond to her text messages, and at 7.45 pm she attended the Town L Police Station and reported X as missing. X sent her mother a text message at 9.26 pm saying she was staying at a friend’s house that night.
The father may well have been in the area – as he lives close to where X was seeing the movie. However, there was no credible evidence that would support a finding that the father was involved with X absconding on that day. I do accept, however, that he was prepared to facilitate X not being located, as a result of a text message he sent to Ms E.
That evening X made her way to Suburb R and contacted Ms E – who had been a friend of both parents. Ms E said X contacted her at around 8.00 pm and said she was on a train heading towards Suburb R. Ms E then attended at the Suburb R train station at about 9.00 pm and collected her. According to the mother, Ms E telephoned her at about 10.00 pm and told her that X was at Ms E’s house and it was agreed she would be returned the next morning.
The mother and Ms E believe the father drove X to Suburb R that evening, as they say she did not have time to travel there by public transport. However, it seems to me that there was sufficient time between 6.30 pm and 9.00 pm for X to have caught public transport from Town L to Suburb R.
Ms E also attempted to contact the father, but he did not answer her call. At 10.26 pm the father sent Ms E a text message as follows:
Hey [Ms E] the only issue is if I know anything I have to report so if I don’t know I don’t know [thumbs up emoji]
That communication clearly suggested that the father was ‘turning a blind eye’ to where X might be, so that he would not need to tell the mother and/or the police who would have returned X to the mother’s care. It is very troubling that the father took this position.
Ms E returned X to the mother’s home at 7.00 pm. According to Ms E, X’s demeanour became theatrical, and it appeared she was putting on an act, pretending to be scared of her mother. However, X did calm down, and remained in the mother’s care, albeit that she slept in the bathroom.
In late 2023 X started consistently sleeping in the toilet adjoining the bathroom. X’s explanation to the mother was that she felt safer sleeping in a small space. She also said her bedroom was too far from the toilet.
X absconded again in 2023. She had left school prior to the mother collecting her at the end of the day. X contacted her father on several occasions that day, pleading for him to come and get her, although he said she never disclosed her whereabouts. As it transpired, X had travelled to Town N and was in a McDonald’s there until about midnight. At that time, staff became concerned that X was still there. X was apparently distressed, and the police were called. The police then collected her and returned her to the mother’s care, sometime after 2.00 am. There is no evidence that the father was involved in X’s absconding on that day.
X has not absconded from the mother’s care since late 2023.
The father ceased funding family therapy with Ms J in late 2023. The father said he no longer had the funds to meet the costs. He also said he did not believe that X would benefit from further sessions. The father’s explanation included that Ms J had “told jokes that made her feel uncomfortable” and that X would prefer to spend time catching up on sleep. The father appeared to have accepted X’s comments and views as determinative.
By consent, orders were made on 8 December 2023 restraining the father from initiating communication with X or responding to any communications from her to him.
At the conclusion of the final hearing on 26 March 2024 the parties agreed to interim orders that X’s time with the father could recommence provided X commenced sleeping in her bedroom. Day time visits took place first, and the time has now progressed to two overnights each alternate weekend. I was advised at the mention on 30 April 2024 that the parents had different views as to how that time had progressed, with the mother asserting X’s attitude had deteriorated on occasion and the father asserting time has progressed well. It is common ground that X is now sleeping in a bedroom.
HOW ARE THE CHILD’S BEST INTERESTS ASSESSED?
The final hearing commenced prior to the enactment of the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024. The legislative changes therefore do not apply to this case and the consideration of best interest factors below reflect the relevant legislation as at the date of final hearing.
Section 60CA of the Family Law Act 1975 (Cth) sets out that when deciding whether to make a particular parenting order in relation to children, the best interests of the child must be my paramount consideration.
In Bielen & Kozma (2022) 66 Fam LR 59 the Full Court observed at [28] that means:
28.…the focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman (2021) FLC 94-045 at [71]).
Accordingly, I must consider the short and longer term impacts of the parties’ proposed orders “upon the [children’s] physical, emotional and psychological safety, security and wellbeing”: Bielen at [30].
The objects of Part VII of the Act inform how I must exercise my discretion. Those objects include ensuring children have the benefit of both of their parents being meaningfully involved in their lives to the maximum extent consistent with the children’s best interests [s 60B(1)(a)]. The legislation further provides that unless it is contrary to their best interests, children have a right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development [s 60B(2)].
There are a range of considerations set out in s 60CC that must be taken into account in determining what is in the child’s best interests. Section 60CC(2) of the Act sets out the primary considerations in determining what is in the children’s best interests. Those require me to consider:
(a)the benefit to the child of having a meaningful relationship with both of her parents; and
(b)the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
In applying those primary considerations, I must give greater weight to the need to protect children from harm.
Section 60CC(3) of the Act sets out the additional considerations that I must also take into account in determining the children’s best interests. The Full Court in Bielen at [35] conveniently grouped those as follows:
·Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
THE PRIMARY CONSIDERATIONS
It is not in dispute that X will benefit from having both of her parents meaningfully involved in her life. The parties disagree as to how X’s time with each parent should be implemented.
It was asserted by each parent that the other presents some risk issues for X.
The parties were assessed by Dr G, psychiatrist, in 2021. Dr G did not assess either parent as presenting a risk to the child based on their psychiatric or psycho-sexual functioning. He was critical that both parents had exposed X to, and involved her in, their adult conflict. Dr H, the Family Report writer, similarly concluded that the father presented a low risk of sexually offending against X.
It was asserted by the mother that the father had deliberately undermined X’s relationship with her mother and had encouraged, and at times facilitated her absconding from the mother’s care. This placed her at physical and emotional risk of harm.
It was also the mother’s case that the father’s influence on X damaged the mother/daughter relationship, with the result being that for a very protracted period X has refused to sleep in a bed in a bedroom at the mother’s home and has instead insisted on sleeping on the floor of either the toilet or bathroom in her mother’s home. The mother also raised the father’s convictions for sexual offences, and the impact that may have on X’s ability to have friends stay with her at her father’s home or participate in other activities involving adolescents when she is in the care of her father.
The mother insinuated to Dr H that she had some concerns about the father potentially offending against X, which the mother maintained under cross-examination. However, these were not matters which were put to the father. Nor am I satisfied there is any evidence beyond the mother’s assertions that would suggest the father poses a sexual risk to X. Indeed, the psycho-sexual assessment of the father specifically identified that X was not at direct risk.
It was the father’s case that the mother’s parenting style is overly controlling and that the mother/daughter relationship has been strained for a protracted period as a result. The father also asserted that the mother had physically and verbally abused and denigrated X, further damaging the mother/daughter relationship. He said it would be emotionally harmful to X if her views were not listened to, and that would only serve to deepen the rift between X and her mother and place her at risk of physical harm in the event she continued to abscond from the mother’s care.
Dr H – who had the benefit of interviewing the parties and X in 2022 and again in 2023 did not form the impression that either parent posed a risk to the child’s safety or wellbeing. Nor did he form the view that the father had deliberately alienated X from her mother. Instead, he said both parties had engaged in ‘less than ideal parenting’ which resulted in X becoming aligned with her father, and overly empowered and emboldened.
I am not satisfied that the mother has subjected X to family violence, abuse, or neglect. The mother may be somewhat controlling and overbearing, but this falls well short of being characterised as family violence. In making that finding I note in particular:
(a)the mother has been evaluated by a number of professionals and services over recent years, including the police, Child Protection, a family therapist, and the Family Report writer. None of these professionals have formed a view that the mother has subjected X to family violence; and
(b)the Family Report writer was able to observe X with the mother and interview X alone on two separate occasions. He concluded that the situation at the mother’s home “is certainly not as bad as [X] would make out – the observations of the child and her mother actually demonstrated a pleasant rapport”. He described that X had misrepresented information about her mother, describing a narrative which at least in part is provably inaccurate – with the view to achieving her goal of living full time in her father’s care.
To that end, I note further Dr H’ observations that:
xi.... There is also the reality that [X] is not always entirely honest about the situation. Her account of her life with her mother was largely disputed when she was challenged by [the mother] during observations as part of the current assessment. Whereas she will say her mother hits her, or verbally abuses her, of [sic] fails to take her places, or does not feed her properly, the reality in many of these areas is quite different — a fact that [X] struggled to answer when challenged by her mother.
Additional considerations
Substantially the dispute between the parents was focussed on;
(a)whether or not the father had unduly influenced X to reject her mother;
(b)whether additional time in the father’s care would result in a deterioration, or improvement in her relationship with her mother; and
(c)the weight to be given to X’s views in all the circumstances.
Issues relating to the child – including her views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h)
Dr H Family Report dated 2022
In the course of Dr H’s first report, he observed that X was close to her father, and demonstrated a warm and close connection with him. Conversely, X perceived her mother as:
39.… overbearing and controlling and nagging. She feels smothered by her mother … She has become increasingly dismissive of her mother’s care practices. This has led to regular conflict between them, further providing a sense to the child that her mother is an unreliable, combative, and unpredictable care figure. She has also riled against her mother’s criticism of her father, becoming reflexively protective of [the father] in the process. Clearly more work needs to be done on the relationship between [X] and her mother…
Notwithstanding, Dr H described the mother/daughter relationship as improving in that first report.
Dr H updated Family Report dated 2024
In his updated report Dr H said that the situation between X and her mother had continued to improve, although Dr H described X as being intent on painting a very negative picture of her mother and a very positive one of her father. Dr H was not confident these descriptions were accurate.
X acknowledged that her mother “hasn’t hit me recently”. She said the mother made derogatory comments to X, suggesting there was something ‘wrong’ with X, such that X felt that her mother did not love her and “she’s just being mean to be for no reason”.
Despite X’s complaints about her mother, Dr H described the observations between mother and daughter as “surprisingly positive”. X was engaged with her mother and displayed a “pleasant and buoyant” demeanour.
Dr H said X was delighted to see her father. She complained about having no deodorant at her mother’s home, to which the father told her to buy some, as there is “plenty of money on the account”. Dr H formed the impression that:
32.… there was a contrived dimension to the interaction between [X] and her father, as if the child was attempting to create the most positive impression possible, knowing she was being observed, and attempting to achieve her desired outcome. The interplay between [X] and her father was not a seemingly natural one.
In his conclusion, Dr H noted that the parties have very different parenting styles – with the father more laid back and permissive and the mother more anxious and interventionist. These differences provided the foundation for much conflict, of which X is well aware. X has been unable to navigate the dissonance between her parents – and accordingly has effectively “chosen a side”.
Despite X being quite aligned with her father, Dr H said X showed “some warmth” towards her mother and did not appear to be genuinely scared of her.
Ms J’s reports
Ms J’s reports suggest there were ongoing improvements to X’s relationship with her mother. That included references to X eating the food her mother prepared, spending increased time outside the bathroom/toilet and a reduction in her negative comments to Ms J about her mother.
Weight to be given to X’s views
X is almost 16 years old. She is in Year 10 at D School.
Despite all the turmoil, X has continued to progress reasonably at school. There is insufficient evidence for me to be satisfied that her school performance has deteriorated as a result of her living primarily with the mother and spending no time with the father. The father’s claims to that effect overlooked the Middle School Manager’s acknowledgment of X’s hard work and congratulations for her outstanding achievement in 2023. It is very much to X’s credit that she has continued to engage well with her education. She is also progressing well socially and appears to have a strong friendship group.
X has at all times expressed a strong desire to live with her father.
I accept the observations by Dr H that X presented as pseudo mature and with concrete views. However, given her age, whatever the genesis of her views, it is in her best interests to give them significant weight. If time with her father remains as restricted as the mother’s proposal envisages, it seems to me overwhelmingly likely that X’s frustration and resentment towards her mother will increase. Dr H opined similarly. I agree with Dr H’ further observations that:
(a)it would be inappropriate to exclude entirely the preferences of a child of X’s age; but
(b)it is not appropriate her views be entirely determinative, and need to be balanced against other factors that are relevant to her long-term wellbeing.
Issues relating to the parents – including decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
Both parents love X and want what is best for her. They also each have much to offer her. However, they both took limited responsibility for the difficulties in the mother/daughter relationship. The mother asserted the father deliberately sought to alienate X. The father asserted the mother cannot properly parent X.
I am not satisfied that the father deliberately tried to estrange X from the mother. Nor am I satisfied that the mother’s parenting is the sole cause for the difficulties in the mother/daughter relationship. Rather, they have each contributed to the current situation – with both parents demonstrating significant shortcomings.
The father
The father said his relationship with X was always close and loving whereas the mother’s relationship with X was often strained. He said the mother would denigrate him to X and also say hurtful things to X. He said the mother was very controlling of X. It was clear from the father’s evidence that he sees himself as a superior parent, and as X’s protector against the tyranny of the mother. As a result of his perceptions, the father determined at separation to retain X in his care – and to substantially prevent all contact and communication between X and her mother.
The father asserted that he encouraged X to call her mother at that time, but that when the mother did speak to X, she would upset X. The father complained the mother tried to “follow or track” X and him and that she sent excessive text messages to him. It is not surprising in my view that the mother tried to find out where X was staying in circumstances where the father had unilaterally determined to remove her from the mother’s care and failed to arrange any face-to-face contact.
The father also complained that the mother obtained the whereabouts for X and the father at their accommodation and “left a parcel for us” suggesting this was upsetting for X. The mother’s evidence was that the parcel contained two packets of hot cross buns and two blocks of chocolate, with a note from the mother addressed to X saying she missed her very much, loved her very much and would very much like to see her. The father ultimately conceded there were nothing nefarious or distressing in the parcel or note but insisted X was uncomfortable that her mother knew where they were staying.
I agree with the characterisation by counsel for the mother that the father’s actions at this time were an exaggerated and overblown attempt to exclude the mother from having a relationship with X.
The father and X then lived at their accommodation in Town L for four months. They ate out together frequently. The father also provided X with a mobile telephone. This would have been a very appealing lifestyle for X.
That retention of X following separation – and the father’s failure to properly promote X’s relationship with her mother during that period – reflects poorly on him. It was in no way child focussed. The father also made little effort to encourage X to attend counselling at the various services engaged to repair the mother/daughter relationship at that time.
I am also satisfied the father continued to undermine X’s relationship with the mother after X returned to the mother’s care in 2021. He engaged in excessive communication with X, enabling and encouraging her to complain about the mother, with no reassurance from the father. This continued for several months after an order restraining him from communicating with X was made in February 2023. I do not accept the father’s explanation that he did not understand the restraint. Indeed, he deposed that he continued to communicate with X even after he did understand he was restrained from doing so, as he felt Child Protection and other adults had ‘let [X] down’ and he “did not want her to feel abandoned by me too”.
The father also did not sufficiently support the family therapy, effectively giving X the message that she need not engage.
It was also plain that the father accepted X’s classification of any attempts by the mother to discipline X, or to impose boundaries or limitations as abuse and control. He referred to X installing locks on various doors at the mother’s home to prevent the mother from coming close to X. He did nothing to discourage X from doing so.
The father also admitted to having provided X with unfettered access to his account and then paying funds into her bank account. He said he did this as X complained on numerous occasions that there was no food at the mother’s home, or “only baby food”. He further deposed that he was reluctant to cease providing funds to X unless ordered to do so by the Court “given [X]’s longstanding complaints that [the mother] is over-controlling”. The father said he did not provide X with further funds after being restrained from doing so in December 2023. Until that time, the father had elected to provide X with funds and ignored the requests from the mother that he instead provide her with child support. Indeed, the father has not provided any funds to the mother for the support of X notwithstanding he no longer provides financial support directly to X.
I am not satisfied the mother did not provide sufficient food in her home for X. Rather, the father continuously undermined the mother by providing X with funds, empowering her to reject the food provided for her by her mother and to purchase her own meals. He accepted without question X’s complaints about her mother. Providing X with access to funds also reinforced X’s belief that her mother was not properly providing care or support for her. At times X kept an air fryer in the toilet or bathroom to make her meals. This unhealthy and unhygienic situation was made possible only by the father’s provision of funds.
The father paid for X to have unlimited data on her mobile phone. This again caused stress and tension in the mother’s home, as the mother was unable to implement effective boundaries regarding device usage notwithstanding her complaints that X spent excessive time on her devices including late into the night.
I am not satisfied the father overtly colluded with X to encourage her to abscond from the mother’s care. However, he did little to actively prevent her from continuing that behaviour – and indeed rewarded her for doing so when he retained her in his care in 2023 for over two weeks. During that period the father did not arrange for any communication between X and the mother. The father’s communication with Ms E in 2023 also did not reflect well on him.
I agree with the observations made by Dr H in his updated report:
xiii.... in my view, [the father’s] behaviour with [X] has been unideal. He has been overly permissive with the child. He allowed [X] to reject her mother for months and months after the parents separated. He has provided an environment in which [X] has become overly empowered and emboldened. He has spoken to her about matters of an adult nature, such as family finances and legal proceedings. He has enabled her by providing her with a phone data and a credit card, thereby limiting the mother’s ability to implement behaviour management strategies. He believes unquestioningly [X]'s stories about her mother, many of which are clearly untrue.
The father’s evidence included an assertion that X’s progression at school was compromised as a result of living with the mother. He said her grades were better in 2021 when she lived with him. He said this was in part because the mother woke X during the night to verbally abuse her, and that she did not sleep well at the mother’s home and fell asleep in class. There was no evidence upon which a finding could be made that X performed better academically as a result of living with her father and worse as a result of living with her mother.
The father deposed to engaging with a psychologist, Ms S from around 2023. He said her assistance had been very helpful. He said he has received advice on how to parent X “in a more structured way to ensure that we have a parent/child relationship and there are rules and boundaries in our relationship”. The father said he continued to engage with Ms S, to work on his parenting style and to develop more effective parenting techniques. To his credit the father was able to acknowledge to Dr H in 2024 that he;
17.… was probably too soft in the first 10 months when we left, in not forcing, engaging, and being proactive in [X] seeing her mum, because [X] was saying she didn’t want to see her mum …
It is heartening that the father appears to be developing some insights into the role he has played in the turbulence X has experienced since her parents’ separation.
Dr G formed the view that the father did not present a risk to X in terms of his sexual offending. However, Dr H said the father did not present the same low risk to adolescent males. This could raise issues in the event X is visited by male peers whilst in the care of her father.
The mother
I am satisfied the mother too has fallen well short at times in the standard of care she has provided to X. She has been overbearing, overprotective and controlling. She had been unable to persuade X to sleep in a bedroom until the interim orders were made at the conclusion of the evidence, wherein it was a pre-condition of X spending time with her father.
At times the mother’s responses to X’s defiance have further fuelled the dispute rather than reducing tension and conflict. To an extent, the mother’s anxiety and struggle at times with depression has impacted on her ability to prioritise X’s needs.
Dr G referred to the mother’s history of mental health issues, which included periods of time she had been highly anxious, agitated, and distressed, as well as having experienced some periods consistent with a major depressive disorder. She has been on medication to manage her anxiety and depression at times. There was a suggestion the mother had previously been given a provisional diagnosis of bipolar disorder. At the time of assessment, Dr G formed the view that the mother presented with excessive anxiety rather than bipolar disorder. He did not regard the mother as experiencing a significant level of depression at interview in 2021. Dr G concluded that he had “no doubt that [the mother’s] anxiety has impacted on her parenting”. He emphasised the importance of the mother receiving mental health treatment to address and reduce her anxiety levels.
The mother is engaged with her general practitioner and attends upon a psychologist. She has been prescribed anti-depressant medication with which she is compliant. She also attends a counsellor regularly. It appears the mother’s mental health is currently stable and she is well supported by medical and allied health professionals.
There have been, as Dr H opined, “some real issues” in the mother’s interactions with X over the years, “meaning that her rejection of her mother, while disproportionate, is not without some basis”.
I note in particular the unchallenged observations made by Dr H that the mother’s:
42.... anxiety and need to control her environment has had some impact on her relationship with her daughter. Her mood has a [sic] times caused her to withdraw, practically and emotionally, with implications for the child.
Dr H also observed that the mother has likely been irritable and dysregulated at times, and that she:
xvi.… is an anxious parent, who has been overbearing on the child and has an intrusive style. I suspect that she would have been a more accomplished parent to [X] when the child was little, but has struggled more with nuance and dexterity as [X] has grown older and in her teens. She has an awkward approach with [X]. She seems to engage her as if [X] were still a much younger child. Her ability to interact with the child in a flexible, balanced manner is underdeveloped. Rather, she has tended to smother [X], which in part, is why the child has recoiled, preferring the more laissez-faire approach of her father…
These observations matched the views I formed of the mother by the conclusion of the evidence.
Accordingly, I am not satisfied that X’s poor attitude towards the mother could be wholly blamed on the father’s actions. The mother made that concession under cross-examination. However, she remains somewhat angry towards the father, describing in her oral evidence that he ‘thinks he is above the law’ when “he took my daughter for 12 months”.
I accept the mother’s evidence that whilst there have been difficulties in her relationship with X, and despite insisting she sleep in the toilet or bathroom, X has generally remained settled in the mother’s care. She has not absconded since 2023. The mother said she and X generally have meals together now, go shopping for food and clothes together, undertake household chores, play board games and puzzles together and spend time talking about school, friends, and life in general.
The mother engaged with Ms M for family therapy, as well as undertaking several parenting courses in 2021, 2022 and 2024. The mother was able to articulate some parenting strategies she has learned that have assisted her in parenting X more effectively and have helped to strengthen their relationship.
Issues of family violence: ss 60CC(3)(j) and (k);
I have already referred to the father’s evidence that the mother subjected X to family violence, and my findings in relation to those assertions.
It was the mother’s case that the father subjected her to physical violence, coercive control and verbal denigration on multiple occasions. There was no focus on this issue at trial. The mother also said the father deliberately undermined her parenting, damaging her relationship with X.
Both parents sought – and obtained – Intervention Orders against the other. Neither party was charged with breaching those orders. I accept the submissions made on behalf of the mother that the father’s application for an Intervention Order was based somewhat on exaggeration and was not necessary for either his or X’s safety. Certainly, the mother made multiple attempts to contact him – which in the context of the father’s unilateral retention of X and the mother’s financial distress were understandable. The impact of the Intervention Order was that it excluded the mother from being able to contact X or have any meaningful contact with her for a protracted period – where there was no basis for the mother to be so excluded. This caused significant damage to the mother/daughter relationship.
The parties’ competing Intervention Order applications were finalised on 18 May 2022 with each parent consenting to an Intervention Order on a without admissions basis. Those Intervention Orders have now expired.
In his first report Dr H opined that X had been exposed to conflicts between her parents, that at times had “escalated”. He formed the impression that the conflict was situational, regarding issues about which the parties disagreed, rather than one parent subjecting the other to coercive controlling behaviours. As noted, Dr H’s report was not the subject of challenge.
The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
It was the mother’s concern that if X’s time is increased with the father, this would provide further opportunities for the father to seek to marginalise the mother’s role in caring for X. Conversely, the father said if more time was permitted, this would provide X with confidence her views were being respected, which in turn would improve her relationship with the mother.
Practical difficulty of implementation: s 60CC(3)(e);
There are no practical difficulties – with the parents both residing in the Town L area and intending to remain so.
The mother expressed some concern that the father’s offending history may have an impact on X’s ability to socialise with her friends. The mother also said the youth group of which X is a part may have issues with the father dropping X off or collecting her from there. She was also concerned that parents of other youth group members may be uncomfortable with the father’s presence, and this could limit X’s interaction with her youth group friends.
It may be that the father would need to drop X off at and collect her from youth group ‘down the street’. Given X’s age, that is not a significant issue. I was advised there were no legal impediments to friends of X’s coming into contact with the father. He is subject to strict reporting requirements.
Avoiding further proceedings: s 60CC(3)(l);
It is, in my view, extremely important for X’s development that these proceedings are brought to an end. They have been on foot for a protracted period. X’s early adolescence has been marred by her parents’ ongoing dispute over her care. She needs to be able to focus on completing her high school years and moving into early adulthood without the spectre of Court proceedings overshadowing the family.
Other relevant matters: s 60CC(3)(m).
It was the mother’s case that she remains fearful of the father, and anxious about the safety of the child should unsupervised time occur. However, at the conclusion of the evidence the mother consented to interim orders for X to recommence overnight, unsupervised visits with the father.
ORDERS TO BE MADE
How should parental responsibility be allocated?
Whilst the mother sought an order for sole parental responsibility, it became clear in her evidence she was primarily concerned about being able to make day to day decisions for X. Her reasoning for wanting sole parental responsibility was that she had always been X’s primary carer and she should continue to make decisions for her. These reasons were not persuasive.
The mother also conceded that the parties could discuss long-term issues impacting X in a respectful manner. However, she wanted to be able to make the final determination in the event there was an impasse. At one point the mother conceded she did not require sole parental responsibility in relation to education, but only in relation to health. Given X’s age it seems unlikely many decisions relating to her health will fall to be made by her parents. Any that do will likely be highly significant – and in my view, both parents should have an input into those decisions.
I am making an order that the parents have equal shared parental responsibility. Both parents have much to offer X, and both should be involved in making decisions for her long-term care, welfare and development. At almost 16 and as X approaches adulthood, there are few decisions that the parents will need to make together. I am satisfied that they are sufficiently able to work co-operatively and liaise with each other in relation to making any joint decisions that arise. I do not regard it as in X’s best interests to exclude one or other parent from having decision making power regarding her long-term welfare.
Whilst the parents’ ability to communicate effectively was described by Dr H in his updated report as being “absent”, that was in the context where Intervention Orders remained in place. Those orders have now ended. At the conclusion of the evidence when the matter was before me on 26 March 2024, the parents were able to conduct a joint telephone call with X and explain to her that they had agreed to her resuming time with her father on the condition she commence sleeping in a bedroom. In my view, the parents’ ability to inform X of their joint decision represented a very significant and positive step forward. I refer again to the mother’s concession that the parties are able to discuss X and issues impacting her in a respectful manner.
X’s living arrangements
I agree with the observations made by Dr H that the difficulties between the mother and X will likely continue if she remains in the mother’s primary care and spends only limited time with her father. Given X’s strong and unwavering views, whatever their genesis, weight must be given to them. Moreover, I am satisfied that notwithstanding the seriousness of the father’s offending, the risk to X in his care is low.
I am not satisfied that X should be left to self-determine her living arrangements. As observed by Dr H she will likely not pursue a relationship with her mother. I agree with Dr H’s view that that would be deleterious to X in the long term.
I am satisfied that X’s best interests are met by moving from the two nights each alternate weekend that are currently in place, to four nights each alternate weekend and half the holidays for the balance of this school year. Thereafter, X shall spend six nights a week in her father’s care next year until she is 17 and then, as proposed by the father, she shall spend equal time with each parent. I am of the view that block periods of time are preferable. That provides X with more stability, as she will not need to move back and forth between her parents so frequently.
I am further satisfied that this outcome gives appropriate weight to X’s views, provides her with certainty, and also with the stability of spending significant time with each of her parents. By the time I am delivering judgment, the interim arrangements of two nights per fortnight have been in place for about 5 months. It is now appropriate for that time to increase.
Orders as advocated by the mother would, in my view, increase X’s dissatisfaction with her mother. They would likely lead to X absconding once more. As articulated by counsel for the father, restricting X to only ‘bite sized time’ with her father as proposed by the mother is likely to lead to difficulties and further resistance. If she is spending significant time with her father, there will be no need for her continued protests.
I am satisfied that an equal time arrangement from her birthday next year is both in X’s best interests and reasonably practicable. Both parents currently live in the Town L area, and I understand intend to continue to do so. It may be that the father’s criminal record carries some implications – and could cause X some social discomfort if it impacts on her ability to spend time with peers whilst in the care of her father. However, X is well aware of the charges against her father and continues to seek significant time in his care. I also understood from counsel that there were no legal limitations arising from the father’s inclusion on the register that would prevent him from properly caring for X, and delivering her to school and extra curricula activities.
I am not satisfied that I can make any findings that the father has deliberately sought to undermine X’s relationship with her mother. However, it is plain he lacked insight into the impact of his parenting choices. His behaviour following separation – in retaining X in his care and failing to ensure X spent time with her mother – significantly adversely affected the mother/daughter relationship. Additionally, after X was placed in the mother’s care the father’s actions have at times supported X’s defiant behaviour. However, I am satisfied that the father has gained at least some insight into the role he has played in X’s attitude towards her mother, and the importance for X’s long-term development that he implements more boundaries and takes a far more active role in supporting the mother/daughter relationship.
The mother, too, will need to reflect on her parenting of X, so that conflicts can be addressed and resolved in a more constructive manner.
It may well be that X will simply decide where she wishes to live irrespective of my orders. Given her age, I do not regard it as appropriate for me to include orders that automatically suspend X’s time with her father or provide for a recovery order in the event X decides to ‘vote with her feet’ and leave her mother’s care. However, the father should not regard these comments as in any way giving him licence to encourage X to reject the mother or move into his full-time care. That would be quite damaging to X and would likely further harm the mother/daughter relationship. Rather, both parents should do all they can to provide X with stability, security and predictability as she completes her high school years. That will require them to work cooperatively with each other, rather than viewing the other parent with mistrust and suspicion. That includes making X well aware that they both expect her to sleep in a bedroom and be respectful towards her parents. If they can do that, X is likely to thrive.
It is important to repeat the closing observations made by Dr H – with which I agree and urge the parties to embrace – as follows:
xxix.I do maintain the view that a girl of [X]’s age should be living with each parent on a shared basis. This is the ideal situation in circumstances where she has two loving parents, and when she is developmentally able to be separated from each parent over a more extended period. To this point, shared care has not been possible. Still, if there can be a careful, planned reintroduction of time with her father, it should be an aspiration for [X] to have a life with both sides of her family.
…
xxx.It is so unfortunate for [X] that her life has been totally upended by the separation of her mother and father. There is fault on both sides, and the onus will be on both parents to amend the tumultuous situation for their daughter. [The parties] both adore their daughter, and she benefits from their respective input in different ways. They need to mutually accept that [X] needs time with both of them, and her failure to benefit from this will ultimately be to her detriment as she grows into a woman.
Special occasions
I am satisfied that the father’s proposals for special occasions strikes the appropriate balance for X – allowing her to spend substantial and significant time with each parent to celebrate these special events. I note that the mother indicated her agreement to the father’s proposals for Christmas arrangements which was a sensible concession.
Travel
Both parties sought detailed and different orders permitting them to travel with X. This was not an issue ventilated at trial and accordingly I have no evidence upon which I can make the orders sought by either parent.
Family therapy
Dr H was of the view that ongoing family therapy could potentially be of enormous assistance to this family. However, they simply do not have the funds to meet the costs of same. Moreover, X appears to have become increasingly resistant to the sessions. I further note that the gaps between visits as a result of insufficient funds for regular appointments has, according to Ms J, been detrimental to the process.
In all the circumstances whilst it might be ideal for family therapy to continue, I am not prepared to make an order for that to occur.
I will however make the order that the Independent Children's Lawyer explain my orders to X.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 26 August 2024
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