Diggs & Meyers
[2023] FedCFamC1F 497
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Diggs & Meyers [2023] FedCFamC1F 497
File number(s): HBC 1037 of 2020 Judgment of: MCGUIRE J Date of judgment: 22 June 2023 Catchwords: FAMILY LAW – PARENTING – Where the parties came to the Court with orders by consent on a final basis – where the father has been convicted of sexual offences – where the child lives interstate with the mother – child forthright in her views to live with the father – where the proposed final orders by consent provide for the child to live with the father – interim orders made for the child to live with the father Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC and 91B Cases cited: Harris v Caladine (1991) 172 CLR 84 Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 9 June 2023 Place: Hobart Counsel for the Applicant: Mrs Mooney S.C. Solicitor for the Applicant: Murdoch Clarke Counsel for the Respondent: Mr Mead Solicitor for the Respondent: Paula Sutherland & Associates Counsel for the Independent Children's Lawyer: Mr Trezise Solicitor for the Independent Children's Lawyer: Michael Trezise Amicus Curiae for the Department of Education, Children and Young People: Mr Lee ORDERS
HBC 1037 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MEYERS
Applicant
AND: MR DIGGS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
22 June 2023
THE COURT ORDERS THAT:
1.All extant orders in respect of the child X born 2011 (“the child”) be discharged.
Interim Orders
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
2.The child live with the father.
3.The child communicate with the mother:
(a)On Monday and Thursday each week at 7:00PM Tasmanian time, with the father to allow the child private communication by telephone, Skype, or similar and not be present at such times in any room in which such communications are occurring;
(b)At any other reasonable time upon the child’s request.
4.The child spend time with the mother in the Tasmanian gazetted summer school holidays in each year commencing in 2023/2024 for a period of three weeks to commence 26 December each year with return airfare to be booked and paid for by the father, with documentary confirmation to the mother no later than 28 days prior to the flight, and where the mother is to reimburse the father for one half of the cost of airfare within fourteen (14) days of documentary evidence provided by the father.
5.The child spend time with the mother in Western Australia during the Tasmanian winter (end of second term) school holidays each year commencing 2024 and from the first Saturday until the second Saturday of such holidays with travel and payment thereof to be in the same terms as Order 4 above.
6.The child spend further or other time with the mother in either Tasmania or Western Australia on variations of Orders 4 and 5 herein as agreed between the parties in writing and with reference to any wishes by the child to spend such extra time, providing that should such extra time occur in Western Australia then the mother be responsible for the payment of the air travel.
7.The father forthwith enrol the child in Year Seven at B School, Tasmania.
8.Forthwith upon her arrival in Tasmania the father is to arrange a consultation for the child with a general practitioner with a view to obtaining a mental health plan for the child to attend upon a psychologist and that the father advise the Independent Children’s Lawyer prudently of the names and addresses of the general practitioner and the psychologist and that these orders act as an authority for such general practitioner and/or psychologist to give access to the Independent Children’s Lawyer to all information, reports and other materials normally made available to parents.
9.Within 24 hours of booking the child’s travel to Tasmania for the purposes of these orders and for the child to commence living with the father, the father is to advise the Independent Children’s Lawyer of the date and time of such arrival whereupon the Independent Children’s Lawyer is directed to advise the Director of the Department for Education, Children and Young People, Tasmania (“the Department”) (or the legal representative thereof) of the following:
(a)The arrival date of the child;
(b)The child’s proposed residential address and telephone contact for the father.
10.The father fully cooperate, including making the child available for interview in any assessment conducted by the Department and attend himself for any consultations, interviews and/or assessments for him by any psychiatrist or psychologist as directed by the Department or the Independent Children’s Lawyer, with the parties having leave to bring the issue of payment of such report or assessments for consideration of McGuire J or any other judicial officer of this Court (Division 1).
11.These orders act as an authority for the Department and the Independent Children’s Lawyer to have full access to the principal and any teachers/counsellors at the child’s school and to be provided with such information normally afforded to parents and for these purposes the Independent Children’s Lawyer has leave to provide a copy of these orders and reasons to the principal of any school in which the child might be enrolled providing that notice is also given of the general restrictions of section 121 of the Family Law Act 1975 (Cth).
12.Pursuant to section 91B of the Family Law Act 1975 (Cth), it is requested that the Department intervene in these proceedings in respect of the child X born 2011 and if such invitation is taken up, the Department is to file a Notice of Address for Service within 14 days of the date of these orders.
13.Each of the parents and/or their agents be and are hereby restrained from discussing the contents of these proceedings with the child and/or providing the child with copies of, or access to, any documents filed in these proceedings.
14.These orders specifically authorise the mother to have access normally accorded to a parent to the principal, teachers and counsellors at any school which the child is enrolled.
15.Each of the parents are to keep the other informed of any changes in their postal address, residential address, mobile telephone numbers and email contact details and notify the solicitors for the Independent Children’s Lawyer and the Department of any such changes.
16.The father cooperate, including making the child available, in any assessment to be prepared by the Department.
17.The Independent Children’s Lawyer be given leave to provide a copy of these orders and reasons to any psychologist or other behavioural therapist that may be consulted by the child.
18.The matter be listed for mention in the Federal Circuit and Family Court of Australia Division One before McGuire J on Tuesday 5 September at 9:30AM.
19.There be liberty in the meantime for the parties to make an application to McGuire J on short notice.
20.Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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).
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 pseudonym Diggs & Meyers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATIONS
These are parenting proceedings in respect of the parties’ one child, X born 2011 (aged 12 years), where the matter ostensibly comes before me for the making of orders by consent of the parties and Independent Children's Lawyer (“ICL”), which would provide inter alia for X to live with her father in C Town, Tasmania and to spend time in each summer school holidays and midyear (winter) school holidays with her mother in City D, Western Australia.
For reasons that will become apparent, I was loath to make the orders sought without further evidence and submissions from the parties. The matter had previously been before a Judge of Division Two of this Court who expressed similar reluctance and transferred the matter to Division One of this Court.
BACKGROUND
The father is 66 years of age. He is a former allied health professional. He now receives a disability pension. He is apparently diagnosed with Post-Traumatic Stress Disorder (“PTSD”) (in remission). He is single. He has three adult sons all of whom live interstate.
In early 2016 the father was arrested and charged with multiple sexual offences involving minors. The complaints were made in 2015. After a trial, the father was convicted with these matters in 2018 and sentenced to a term of imprisonment. He unsuccessfully appealed the convictions. The father was paroled in 2020, with such parole period now having expired. The father's name has been placed on an offenders register until 2025.
The father continues to deny the particulars of the charges against him on which he was convicted. The father has suggested that the mother was involved in a conspiracy for false evidence to be given against him by way of payment to witnesses. She denies this.
In or about 2017, the father was sentenced to a term of imprisonment for breach of family violence orders.
It is the case, therefore, that I am asked to make orders by consent which would provide for the 12 year old X to be placed into the sole care of the father who remains on an offenders register, following his conviction in respect of the sexual offences against underage females.
The mother is 36 years of age. She lives in City D, Western Australia with her partner, Mr E, their son F (aged four years), and X. The mother's partner works in the primary sector industry. The mother is not in employment, and receives a public service pension. It is clear from the evidence that the mother suffers from severe depression and anxiety.
The parties met when the mother was in her late teens and the father in his late 40’s. They separated in 2013. Except for some relatively short periods, X has lived with the mother since separation. In 2016 orders were made, eventually by consent, confirming X to live with the mother and for them to be able to relocate to Western Australia, with X to spend periods of time with the father in Tasmania.
There is a suggestion on the evidence, noted in the Family Report, that the consent orders of 2016 were made at a time that the father had been charged and bailed in respect of the sexual offence matters, but that the mother was not made aware of these issues at that time. Records show the father being charged and bailed in early 2016, whereas the orders were made in mid-2016.
X’s time with the father ceased upon his imprisonment. The evidence suggest, for reasons best known to the father, X accompanied him to the court for his sentencing process.
Following his parole, the father sought reinstatement of the 2016 parenting orders. In January 2021 the mother filed a fresh Application for Final Orders seeking the 2016 orders be discharged and that X’s time and communication with the father be supervised. The father countered with Contravention Applications. A Child Inclusive Conference Memorandum was prepared in May 2021, recommending professionally supervised time for X with the father.
In mid-2021, X came to Tasmania to spend school holiday time with father. X had not had direct contact with the father since 2018. X was retained by the father on the mid-2021 visit. The mother eventually obtained a Recovery Order. During the course of those proceedings the Department of Communities Tasmania, as it then was, intervened and removed X from the father's care for approximately two weeks and placed her in foster care. X returned to live with the mother in late 2021.
The orders of September 2021 provided inter alia that, in the interim, X’s communication with the father by telephone or Skype was to be professionally supervised.
Interviews for a Family Report took place in August 2022, and the report of Senior Court Child Expert Ms G was provided on 30 September 2022. Ms G made the following recommendations:
(1)X reside in the primary care of the mother in Western Australia;
(2)That the mother have sole parental responsibility for X;
(3)“It is recommended that future parenting orders be structured in a way that maximises [Ms Meyers’] autonomy in parenting [X] and mitigates against [the father’s] capacity to interfere with such, including through specific injunctions on his parenting and co-parenting behaviour”;
(4)That X's communication with the father be limited to two times per week;
(5)That time between X and the father be limited to two occasions per year, involving daytime periods only, and occurring in Western Australia.
At the time of Ms G’s report, the relationship between X and the mother appeared to be a relatively settled one, with X expressing a preference to live with the mother in Western Australia.
In her report Ms G states:
[100] The information gathered in this assessment could be seen to support [Ms Meyers’] proposal that a no time order would be of benefit to [X]. While there is no indications that [X] is at direct risk of sexual or physical harm from [Mr Diggs] at this time, [Mr Diggs] presents with a range of parenting and co-parenting behaviour, alongside more generalised behaviours, that are problematic and not aligned with [X’s] best interests…
[102] [Mr Diggs] also appears to have problematic patterns of behaviour in interactions with others that has implications for his parenting behaviour. It is apparent from information about [Mr Diggs’] behaviour in the context of legal proceedings, including his interactions with solicitors and engagement with both this current family assessment and the previous 2016 assessment, towards professional services such as Child Safety Services and the Department of Education, and in his relationship with [Ms Meyers] that he can be highly domineering, manipulative and menacing in seeking what he wants…
[103] There are also indications that this behaviour has translated to his parenting, with indications of coaching of [X] in the 2016 assessment as well concerns raised during these proceedings about the level of pressure and influence placed on [X’s] wishes and behaviour. While such patterns of behaviour may not have overt implications for [X] currently given she appears to align herself with her father’s position, as she ages this dynamic is likely to change as she becomes more critical in her thinking and less acquiescent to other’s views. Based on [Mr Diggs’] presentation over time, it seems quite likely that in such a situation he would continue to try and assert his position and align [X] to his views and, in doing so, may engage in behaviours that are emotionally harmful to [X].
[104] The teenage complainants related to [Mr Diggs’] criminal convictions identified having formed a friendship with [Mr Diggs], characterised by a gradual undermining of boundaries and misplaced trust in his expressions of knowledge and authority, which created the means and opportunity for [Mr Diggs’] criminal acts to take place… Accounts of his and [X’s] relationship presents as one of equals, not parent/child and what appears to be his lack of boundary setting and level of permissiveness, as indicated by reports of his engagement with [X] late at night and provisions of relatively unrestrained financial resourcing, is not aligned with [X’s] developmental stage and her need for clear parental boundaries and pro-social guidance…
[107] That said, it would appear injudicious to try and force a complete severing of the relationship with [Mr Diggs] when it is apparent that this is an established relationship that [X] values and would have difficulty separating herself from without consequences to her other relationships. In this way, [X’s] views cannot be disregarded. However, they must also be considered in the broader context of the family circumstances and with recognition that [X] does not yet have the emotional or developmental maturity to fully comprehend the dynamics and risks associated with her views.
Since the report of September 2022, the dynamics in the mother's household and the relationship between X and her mother have deteriorated markedly. The mother's mental health has suffered. The order and routine in her home has been impacted. The mother has now reached a stage where she says that she can no longer manage the care of her 12-year-old daughter. The evidence suggests that the mother places much of the blame for this situation on the manipulation of the child and herself by the father. Nevertheless, she asks me to make orders placing X into the care of the father.
X's behaviour has attracted the interest of the Department of Communities, Western Australia. They are not currently proactive in respect of X. I am told, and I accept, that they support a position that places X into the primary care of the father in Tasmania thereby, of course, removing their jurisdiction. The ICL has confirmed the position of the Department of Communities, Western Australia, as recently as the day of the listing of the matter before me.
The mother says that she is concerned that if X remains living with her in Western Australia then her relationship with X will deteriorate further, such that X and the mother will be unable to maintain any form of meaningful relationship. She is concerned that X will simply abscond and become homeless, or in fact, work with the father to travel to Tasmania.
The mother affirmed an affidavit as recently as 9 May 2023. She says that the father has been relentless in his harassment with such becoming an intrusion into her daily family life. She says that the father influences X in telling her that the mother is dishonest and is responsible for the father's conviction and imprisonment.
The mother says that the father and X continue to blatantly contravene the Court orders providing for professionally supervised communication, in circumstances where the father provides X with the means of communication and they communicate at any time of the day or night, intimidating the mother by doing so in her presence.
The mother states that the father influences X to be disruptive, rebellious and defiant in the household and that X has now become completely uncontrollable, where she is physically and verbally violent, causing the mother to fear for the younger child in the household.
The mother alleges that X engages in risk-taking behaviour and may self-harm, whilst she has developed peer group issues and now does not attend school at all.
The mother says that the father's manipulation and X's behaviour and hostility has had drastic effects on her own mental health and ultimately compromised her ability to parent X, also impacting on her parenting of F.
The mother accepts that X has expressed a wish to live with her father, and says at [202] of her affidavit, “this may be a circuit breaker and decrease the degree of conflict she is exposed to”.
The mother says X is welcome to return to live with her in Western Australia anytime she wishes but accepts that the child now prefers to live in Tasmania with the father and remains concerned that if X's wishes are not actioned then she is likely to run away from home and become homeless somewhere in Western Australia.
The father provided an affidavit affirmed 5 June 2023. He denies the mother's assertions as to his motivations in respect of X and particularly that he is a person of a controlling personality and has acted to destabilise X's life with the mother.
The father says that X is objectively distressed in the mother's home and that the child reports to him of the mother's erratic behaviour. He says that he has received communications from X in a hysterical and upset state because of her relationship with the mother. The father is also concerned of self-harming behaviour by X.
The father is concerned that there is little or no apparent intervention by the Department of Communities in Western Australia.
The father says that he has suitable accommodation for X. He will enrol X at B School and will engage a general practitioner so as to organise a mental health plan for X.
The Court also has the assistance of a comprehensive assessment by Dr H, a forensic psychiatrist, in respect of the parties. He did not consult with X.
Dr H is of the view that the father does not present as a risk of sexual impropriety towards X. He relies on the profile of offenders who engage in incest as opposed to those who commit offences to non-family members. He also relies on the victims of the father's convictions being “sexually mature adolescents” (albeit apparently minors).
Dr H sees the father as suffering PTSD (in remission) and being an individual with a forceful personality who can find it difficult to compromise and has strong views. Nevertheless, Dr H opines:
[301] The Father’s psychiatric symptoms do not prevent him from being able to parent or present risks to the Child but his personality style affects his ability to coparent and his interactions with the Mother may impact on her capacity to parent and provide for the Child’s emotional needs.
Dr H is of the view that co-parenting is unlikely to be a feasible option for these two parents where an interaction is likely to lead to further conflict and distress for them.
Dr H concedes that his conclusion in respect of the father not being a risk of sexual impropriety to the child is limited by the father not having undertaken a psycho-sexual assessment, and where the father maintains his denials of the particulars of the crimes for which he was convicted. Dr H comments:
[296] The question of the risk of further sexually inappropriate behaviour is more difficult to ascertain due to the Father's ongoing denial of the crimes he has been convicted of. If the findings of the criminal court are accepted as fact, then the Father's denial and externalisation of blame represents a risk factor for future similar offending. Available information suggests that the Father is attracted to sexually mature adolescents (which is arguably not abnormal) and the fact that acting on such an attraction is unlawful (and immoral) has not deterred him from doing so. The Father's adamant denial of the offences is consistent with the moral code he espouses, which includes not causing harm to women.
[297] Research indicates that having been found guilty of a sexual offence increases the risk of future sexual offending, noting though that the overall rate of recidivism is only in the vicinity of 25% and that according to static historical risk factors such as age and previous offences, the Father is part of a group with a lower risk of reoffending than this.
[298] In terms of risk to the Child, there are differences in the profile of offenders who engage in incest as opposed to individuals who commit other offences. Having denied sexual offending does not appear to increase the risk of future offending (Harkins et al, 2015). The Father should not pose a risk of sexually harming the Child. Carrying out a more detailed analysis of risk would require access to more history than is currently available.
Dr H notes the mother’s experiences of the father's behaviour as controlling and at times intimidating, where his communication style leads her to experiencing heightened anxiety and at times concerns for her safety. He notes the mother feeling unable to parent X due to the level of conflict at home and her current lack of confidence in her ability to cope.
Dr H is of the opinion the mother qualifies for a diagnosis of major depressive disorder, with current symptoms indicative of a major depressive episode with anxious distress. He says that the mother may have personality vulnerabilities.
Dr H observes the father's offending history, with an apparent willingness to breach restraint orders and other court orders, showing an attitude towards violence which is suggestive of anti-social personality traits and a degree of egocentricity.
Dr H does not see the father's residual post-traumatic symptoms as impacting on his ability to parent X, where his current symptoms of adjustment disorder appear to be a reflection of his current circumstances, and do not impact on his parenting capacity.
Dr H views the mother’s depressive disorders and anxieties as leading her to experience a child's challenging behaviours as overwhelming.
Given my obvious concerns in this matter, and with the limited options available to me in respect of X's placement, I directed both Dr H and Ms G to attend the Court to further explain and be cross-examined in respect of their reports, conclusions and recommendations. Ms G had the advantage of being in the Court for Dr H’s lengthy cross-examination.
Ms G was assertive in maintaining her concerns in respect of the father's manipulative and intimidatory behaviour and its impact on the mother's parenting. She acknowledged, however, that even an order placing X into the care of the mother with no time or communication for X with the father, would be contrary to the child’s expressed views, where the child is forthright in those views, and may further damage the relationship between the mother and child, where a likely response by the child might be to act on her own volition.
Dr H expanded on his view that the father does not present, on his profile, as a risk of sexual abuse of X.
He appeared to share Ms G's view as to the father's dominating and intimidatory personality style.
It is suffice to say that the lengthy cross examination of these experts was of considerable assistance to the Court, in circumstances where the options available to me are limited in their utility, and where each fundamentally offers concerns in respect of X's safety, welfare and best interests.
In summary, I see the options available to me as the following:
(1)That I am to sign off on the consent orders presented to me, making final orders for X to live with her father and spend time with the mother on two occasions in each year. I am not inclined towards this option. X has had limited direct contact with her father. She is unfamiliar with his personality and likely parenting style. Her potential reactions are unknown and unpredictable. Further, the success, or otherwise, of X settling into a new school, new peer group, and new environment in C Town is unknown and unpredictable. Still further, the father's capacity and commitment to maintaining a relationship for X with her mother is problematic, given his assertive personality and sense of entitlement. Fundamentally, however, to make those orders in final form now would effectively remove this Court of any scrutiny of X's welfare, in circumstances where I cannot be satisfied at this stage that such a proposal is indeed ultimately in her best interests;
(2)It is open for me to reject the proposed consent orders put before me on the above basis that I cannot be satisfied that the orders would be in X's best interests on the material before me. To do so, however, would leave X's welfare and future arrangements solely in the hands of her parents where they have no demonstrated capacity for co-parenting and little potential to do so in the future. Where parents choose to come to this Court in respect of their children, then I consider that I ‘stand in their shoes', and it would be contrary to my oath to simply relieve myself of that responsibility in circumstances such as those that now confront the Court;
(3)I am not bound by the proposals put to me by the parties, and in all the circumstances and having regard in particular to the observations of the experts, I might consider an order that continues X living with her mother in Western Australia, and with an order for no time or communication for X with the father. This would undoubtedly relieve the mother of some of her feelings of control and intimidation by the father, although the father has a demonstrated history of non-adherence to Court orders and is likely to continue contact with X, as such directly or indirectly having a negative influence on the mother. I doubt, however, that such would relieve the mother in respect of X's confronting behaviour and where X herself has forthright views that she wishes to live with her father, and where, in all likelihood, the father would disregard such an order and would proceed to make contact with X. This is not, therefore, an option realistically available to me so as to attend to X's best interests;
(4)I could make notifications to the Department for Education, Children and Young People in Tasmania and the Department of Communities in Western Australia. My experience thus far, however, it is that the Department of Communities in Western Australia have no active interest in this matter despite X currently living in Western Australia. Understandably, the Tasmanian Department says that it does not have 'current jurisdiction' because X lives in Western Australia. Again, however, to delegate such responsibility to either Department would, in my view, be contrary to my responsibility as a judicial officer of this Court to make orders which attend best to X's interests.
In addition to directing Ms G and Dr H to attend this Court to expand on their evidence and be cross-examined, I requested the attendance at the Court of Counsel for the Department for Education, Children and Young People, Tasmania, and I am grateful for the appearance before me of Mr Lee as amicus curiae, where again, the Department has not intervened pursuant to the section 91B of the Family Law Act 1975 (Cth) (“the Act”) requests that have been made. Mr Lee was given leave to cross-examine the experts and make submissions to me in respect of the attitude of the Department. Put simply, I am confident that the move for X to Tasmania would attract the interest of the Tasmanian Department. I am unable to predict, however, what responses would result.
RELEVANT LAW.
The orders that I am asked to make in respect of X are parenting orders, and I am mandated pursuant to section 60CA of the Act to have X's best interests as my paramount consideration. I determine those best interests by referencing the probative evidence before me and the parties’ proposals to the numerous factors set out it in section 60CC(2) and (3) of the Act. In this respect I'm able to make the following findings:
(i)I am satisfied on the evidence that X's primary attachment is to her mother, although the current state of that relationship is extremely problematic. X's direct contact with her father has been relatively minimal during her 12 years, although she has maintained frequent communication with him.
(ii)The issues of risk and family violence are detailed above. Suffice to say that I am asked to make an order which would place a 12 year old child into the primary care of a father whose name appears on an offenders register. There are other potential risks for my consideration. The current nature of the relationship between X and her mother is dysfunctional, fractured, conflictual and violent. There is a risk of the child absconding from the mother's care. The mother’s conceded mental health difficulties compound those risks. The father's domineering and intimidatory behaviour towards the mother would, if found to be factual, constitute family violence in a number of forms. Similarly, the father's alleged manipulation of his 12 year old daughter in respect of her wishes, and allegedly in respect of the conflict with her mother, is also a form of abuse for consideration of this Court.
(iii)I am satisfied that X at 12 years of age is now expressing a consistent preference to live with her father. I cannot be satisfied on the state of the evidence before me that her views are rational, mature and made without the inducement. Nevertheless, given her age and recent history, I am satisfied that any order contrary to her stated preference is highly likely to result in subjective responses by X which would ultimately place her very safety at risk.
(iv)On her own admission, the capacity of the mother to care for X currently is seriously compromised. She says that she cannot manage the child. She has no confidence that the father would support her parenting of X, but rather that he will act as to undermine her parent/child relationship.
(v)The father's parenting capacity for X is relatively unknown. He lives alone. He presents no evidence of support for him in his parenting. His personality traits, as identified by Dr H and Ms G, are suggestive of some difficulties in him assimilating a child into his full-time primary care, providing and maintaining boundaries, and generally addressing the anticipated difficulties for X in traversing her teenage years.
(vi)The change for X would be a considerable one, and not one likely to have been yet fully appreciated by her. She would be moving from the primary care of one parent to the other, where those parents are likely to have contrasting styles and parenting philosophies. She will be moving from a home with two adults and a sibling to a home with only her 66-year-old father. She would be changing schools. She would need to establish new peer group relationships. The nature of her relationship with her mother would also change dramatically to one of infrequent direct contact, and where consistent communication may be hindered by the father.
I am guided by the High Court of Australia in Harris v Caladine (1991) 172 CLR 84, where Brennan J, as he then was, observed that orders by consent are not a formality but:
Consent orders finally disposing of the issues between parties to proceedings in a court have always been regarded as a judicial determination
Despite these observations being made in the context of property proceedings, I infer that final orders by consent in parenting matters are similarly a judicial determination and must be in the best interest of the child/ren.
CONCLUSIONS
Taking into account all of the above, I am not satisfied that I am currently able to make the orders sought on final basis in terms of the minute of orders put to me, and anticipated to be made by consent. At the commencement of the hearing on the 9 June 2023, I flagged with the Counsel a further option whereby I might consider making interim orders in respect of X. Ultimately in their final submissions, no Counsel was vigorously opposed to such a course, although it does, of course, bring with it its own ramifications, such as the parties and the child remaining in this system and under the scrutiny of the Court and others, but where that, on balance, might ultimately be a positive rather than a negative.
As set out above, I have considered making orders on a final basis in terms of the proposed minutes. I cannot do so, as I cannot be satisfied that such would be in the best interests of X with so many unknowns remaining. For instance, it was canvassed during the helpful evidence of Dr H, that a psycho-sexual assessment of the father might be of assistance, where oddly such has not been previously prepared. Similarly, some psychiatric or psychological assistance for X given her behaviour, her relationship difficulties, and a proposed move to Tasmania would be of assistance. To put it bluntly, the father does not as yet, present as a parenting option per se which I can find to necessarily be in X's best interests. As set out above, he is an unproven parent who will be asked to deal with a child exhibiting severe behavioural and emotional difficulties. The further unknown of X's ability to assimilate into living with her father in Tasmania is also an unknown. Consequently, I have determined that X's best interests are served by me making interim orders. Those orders would allow continued scrutiny of this family by the Court and by the ICL, and obviously with some direct attention now from the Department for Education, Children and Young People in Tasmania, where I put on the record that the Court would be greatly assisted by an assessment from that Department, who have the experience and facilities to provide such assistance to the Court that might not be otherwise available.
Needless to say, the Court also maintains an interest in, and concern for, the maintenance of X's relationship with her mother, in circumstances the experts’ evidence is dubious as to the father's willingness and ability to maintain that relationship.
Consequently, I see the benefits of the making of interim orders outweighing the detriment of continuing litigation for the parties and vicariously for X.
I will make yet another order pursuant to section 91B of the Act, inviting the Department for Education, Children and Young People in Tasmania to intervene in these proceedings, where it is my firm view that any continuation of these proceedings are best conducted in this Court.
Finally, the circumstances of there being an interim order, I am not inclined to make any order at this stage for parental responsibility, leaving the provisions of the Act to otherwise apply.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 22 June 2023
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