Ebsworth & Ebsworth (No 2)
[2022] FedCFamC1F 280
•3 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ebsworth & Ebsworth (No 2) [2022] FedCFamC1F 280
File number(s): SYC 1037 of 2013 Judgment of: REES J Date of judgment: 3 May 2022 Catchwords: FAMILY LAW – PARENTING – Where the mother is the child’s primary carer – Respondent seeks supervised time and FaceTime contact with the child – Where the respondent is not the biological father of the child – Respondent has had no contact with the child for three years and limited contact prior to that time – Respondent disclosed details of the child’s parentage to her step-brother and broader community – Respondent has been paying child support despite not being a ‘liable’ parent – Weight afforded to the child’s views – Child to spend time with the respondent in accordance with her wishes. Legislation: Child Support (Assessment) Act 1989 (Cth) s 107
Family Law Act 1975 (Cth) s 60CC
Division: Division 1 First Instance Number of paragraphs: 157 Date of hearing: 26-28 April 2022 Place: Sydney Counsel for the Applicant: Ms Webb Solicitor for the Applicant: Brock Partners Lawyers Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Messner Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 1037 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS EBSWORTH
Applicant
AND: MR EBSWORTH
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
REES J
DATE OF ORDER:
3 MAY 2022
THE COURT ORDERS:
1.That all previous parenting orders relating to the child X born 2010 be discharged.
2.That the mother have sole parental responsibility for X.
3.That X live with the mother.
4.That X spend time with the respondent in accordance with her wishes and the mother shall do all things necessary to facilitate her spending time with the respondent if she wishes.
5.That for the purpose of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) X is permitted to have an Australian passport.
6.That Ms Ebsworth is permitted to apply for an Australian passport for X and the consent of Mr Ebsworth to the issue of that passport is not required.
7.That the mother is permitted to remove X from the Commonwealth of Australia for the purpose of holidays.
8.That the Watch List Order, being Orders 1 and 2 of the Orders made 2 April 2020, be discharged AND THE COURT REQUESTS THAT the Australian Federal Police give effect to these Orders by removing the name of the child X (female) born 2010 from the Family Law Watchlist at all points of international arrivals and departures in the Commonwealth of Australia.
9.That unless a waiver is granted by Legal Aid NSW, each of the mother and the respondent shall, within sixty days, pay to Legal Aid NSW the sum of $4,774 on account of the costs of the Independent Children’s Lawyer.
10.That all outstanding applications are dismissed.
11.That pursuant to Sections 65DA(2) and 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 those 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 Ebsworth & Ebsworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
These proceedings will determine the parenting arrangements for X who was born in 2010 and is nearly 12 years old.
It is not in dispute that Mr Ebsworth (“the respondent”), although married to the mother at the time of X’s birth, is not X’s father.
Ms Ebsworth (“the mother”) seeks orders that she have sole parental responsibility for X and that X spend time with the respondent according to her wishes.
The mother and the respondent have an older child, Y, now aged 20 years who lives with the respondent. Y does not have any contact with his mother or with X.
The respondent asks for orders for equal shared parental responsibility for X and that she live with the mother.
The respondent seeks orders that X immediately engage in “therapeutic counselling” at B Service in Suburb D until such time as the therapist no longer deems it necessary and that both parents, at the discretion of the therapist, be permitted to attend at the venue, although he does not seek orders that he participate in the therapeutic sessions.
At the same time, the respondent seeks orders that X spend time with him, supervised by F Service, commencing four weeks after the making of orders, for two hours each week for six weeks and that after the first two visits, Y also be present.
After the six contact occasions specified, he seeks no further face to face contact with X but that she has contact with him and Y by FaceTime, in the week following the last supervised contact, on Tuesday and Thursday. Thereafter, he proposes that X have FaceTime contact with him and Y twice each week.
The respondent seeks an order restraining the mother from changing X’s place of residence more than 30 kilometres from “Region C” without his consent. He further seeks the following orders:
13.The Applicant mother is to commence psychological counselling as per the recommendations of the Family Report at a court recommended professional organisation to deal with her mental health in general and specifically:
13.1Analysing her behavioural issues and issues of parenting and judgement which resulted in permanent estrangement from [Y]
13.2Analysing her behavioural issues and subsequent mental impact relating to her involvement in the purported misadventure of a child in 2008
13.3Addressing the confusion surrounding the paternity of child [X] and the need to address it as mother and daughter in an open and candid manner
13.4Addressing the irretrievable damage that she has created between [Y] and [X] that will inhibit them from having a normal relationship
…
15. Both parties are hereby restrained from:
15.1 Assaulting, threatening, stalking, harassing or intimidating each other
15.2Allowing each of the children to assault, threaten, stalk, harass or intimidate each other
15.3Discussing any court proceedings concerning the parties with the child or allowing a third party to discuss such proceedings with the child
15.4Denigrating the other party to the child, or within her hearing, or allowing a third party to denigrate the other parent to the child or within her hearing, or allowing the child to remain in a place where the other parent is being denigrated
HISTORY
The mother, who then lived in India, and the respondent, married in 1997 in Country E. They are members of the same ethnic community. At the time of the marriage, the respondent was living and working in Australia and the mother moved to Sydney after the marriage.
The mother asserts, and the respondent denies, that the marriage was highly acrimonious. She asserts and he denies that he was physically and sexually violent towards her.
Y was born in 2001.
X was born in 2010. The mother has not divulged the name of X’s father. The respondent was unaware, when X was born, that he was not her biological father.
In early 2013, the respondent, apparently with the other’s agreement, undertook DNA testing of himself and X. The result, which he received by a certificate dated 14 January 2013, is that there is no possibility that he is X’s father.
The parties separated on 22 January 2013. X was two and a half years old. Both children remained in the care of the mother in their formerly shared home.
In February 2013, an Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the mother against the respondent. On 23 March 2013, the respondent was charged with breaching the ADVO.
On 8 March 2013, the respondent sent a text message to the mother stating:
I would like ur parents to leave the house on or before 25 March. I will give U till COB 11 March to advise me of the departure date. If I do not hear from u by that time, [your mother’s sister and brothers] will be advised of [X’s] paternity. If u do confirm the departure date by then, I guarantee that they will not hear of this from me EVER! Thanks
(As per the original)
The mother asserts that there were two further incidents of violence towards her in 2013. She asserts, and the respondent denies, that he told her he could throw a brick and kill her and X.
In May 2013, the mother moved from the former matrimonial home with the children and lived in rental accommodation.
In early 2013, after a defended hearing, a final ADVO was made for the protection of the mother for a period of two years.
Also on the same day, the respondent was found guilty of breaching the ADVO and placed on a bond for two years.
The mother instituted proceedings in the Federal Circuit Court (as it was then known) and the respondent filed a response, joining the man he asserted was X’s father. The putative father did not respond or appear and did not participate in the proceedings.
On 25 July 2013, interviews were conducted for the preparation of Child Dispute Conference Report (“the 2013 report”).
In the course of those interviews, the mother was told that the respondent had told Y about X’s paternity. The family consultant reported that the mother became very upset and took the view that any further discussion was inappropriate.
The report states:
·[Y] has been seeing a School Counsellor at [G School]…
·[The respondent] indicated that, until last week, [Y] was unaware of [X’s] parentage. He said that a conversation took place between him and [Y] (with [Y’s] paternal grandmother sitting alongside) about where [Y] will attend high school next year. During this discussion [the respondent] said that he asked [Y] whether he really wanted to move outside the area with which he is familiar for high school. [The respondent] said that he was very worried that [Y] would find out about [X’s] parentage from a school friend because other parents knew about it. He said that he explained basic biology to [Y] and told him that another man was [X’s] biological father. [The respondent] said that he was worried that [Y] had noticed he was being treated differently to his sister, and that the mother had told [Y] the reason for the separation was a problem with “in-laws”, and that he felt it was important for [Y] to understand some basic things about the reason for the separation. The appropriateness of this occurring was discussed with [the respondent].
In cross-examination, the respondent initially denied that the school parents knew about X’s parentage because he had told them and said “there is no evidence of that”. He conceded, however, that it was open to me to find, on the balance of probabilities, that he was the person who told the other parents. He agreed that it was highly unlikely that the mother or the putative father would have disseminated that information. The respondent conceded that he had also told the mother’s family in India, the religious community and the ethnic community about X’s parentage.
The respondent said, in cross-examination, that Y’s counsellor had advised against telling Y but that he, as Y’s parent, had decided it was appropriate.
The family consultant suggested that the mother telephone the school counsellor and reported:
[The counsellor] indicated that she telephoned [the respondent] yesterday (24/7/2013) because, after she saw [Y] yesterday, she became concerned that [Y] told her his father had told him about [X’s] parentage and told [Y] to keep it a secret from his mother. [The counsellor] said that [Y] seemed sad and was worried that his mother might be angry because he knew and hadn’t talked to her about it. [The counsellor] stressed that [the respondent] seemed receptive to her concerns. She encouraged [the mother] today to talk to [Y] about what has been said. She recommended family counselling to address these difficult issues but said she would continue to support [Y] at school.
Y was 11 years old.
In cross-examination, the respondent said that he told Y about X’s parentage because Y was upset and perceived he was being treated differently from X. He did not concede that Y might have been upset because his parents had recently separated, having left the former matrimonial home two months before, and he did not take any responsibility for having caused the rift that ensued between the mother and Y.
He denied the suggestion that he had told Y about X’s paternity to hurt the mother and he said that the mother’s concern that he would tell X about the circumstances of her conception was “not a genuine concern”.
The mother asserts that, after the respondent told Y that he was not X’s father, the relationship between X and Y deteriorated and was characterised by Y’s bullying X.
The proceedings were resolved by consent orders which had the effect that the mother and the respondent had equal shared parental responsibility for both children, that the children live with the mother and spend time with the respondent. When those orders were made, both the mother and the respondent knew that he was not X’s father.
It is not in dispute that X did not spend time with the respondent in accordance with the orders. The respondent said that X had spent two overnight periods with him in 2014 or 2015 but not otherwise. X spent about two hours with the respondent on Friday afternoons until December 2016.
In February 2017, the mother proposed that Y live with the father and spend time with her as agreed. Y was 16 years old. Y deposed that the mother told him that, if he lived with his father, he could not have a relationship with her. That evidence was not challenged.
In December 2017, the respondent caused the police to attend at the mother’s home on three occasions to check on X’s welfare.
In March 2018, the respondent filed an application asserting that the mother had contravened the parenting orders in relation to X on 15 occasions.
In June 2018, without telling the respondent, the mother travelled with X to India to visit her sick father. They returned to Australia in July 2018.
In August 2018, the respondent filed a further Application – Contravention asserting that the mother had failed to facilitate contact between him and X on 11 occasions and that she had enrolled X at a school without his consent.
The mother and Mr H started to live together in 2019. They had known one another because Mr H’s parents looked after X when the mother worked from the time X was about eight months old.
On 11 February 2019, the respondent withdrew his contravention applications and the parties entered into new parenting orders. Those orders provided that X spend time with the respondent for two hours each Saturday, supervised by the respondent’s mother and Mr H. I note that the orders as engrossed do not accurately reproduce the handwritten orders signed by the parties.
The first contact visit on 16 February 2019 was terminated shortly after it started. Further visits were attempted in February and March 2019.
These proceedings were instituted by the mother in February 2019.
On 14 March 2019, a professional supervision agency supervised a contact visit. The respondent and his mother attended. The report of the supervisor describes an interaction that the respondent conceded was “difficult”. X refused to engage with the respondent or his mother or any activity he suggested. The supervisor noted:
[The respondent] asked her, “Why don't you want to do anything? Is it because you are tired or because you don’t want to engage with Daddy or were you instructed to behave that way?” The Father continued, “You need to enjoy this limited time with me here and not listen to what others say. Young child like you need to engage in some activity”. [X] replied, “I'm tired” and yawned a few times. [The respondent] persisted with questions and stories for [X]. [X] sat opposite [the respondent] and listened to him. She did not maintain an eye contact and appeared uninterested. She continued to yawn.
There was another supervised visit on 23 March 2019. The respondent conceded that his interaction with X was “difficult but not hostile”. The supervisor reported:
At 1:31pm, [X] said, “I want to go home”. The Father said, “You have to be with me for two hours. Lets make the most of it”. He asked her if she’d like to go to McDonalds where it was cooler. She said, “No, I want to go home. I miss my Mum”. She shed a few tears. I asked her if she was okay and she replied, “I don't want to be here”. I asked her where she preferred to be and she said, “I want to go home”. I explained that we had one and a half hours left to go and that her mum will be at home waiting for her. She wiped her tears. [The respondent] offered her to do different things, watch a video, go shopping, feed ducks, but she said no. [The respondent] got out the book and started reading for her. He asked her what gravity was and she didn't know. He explained what it was. He continued to engage her with many questions. She answered with one-word answers.
The supervisor took X to the toilet.
At 1:54pm, we arrived back to [the respondent]. [The respondent] and Grandmother greeted her and asked how she felt. She said good. [The respondent] asked [X] questions about cold weather. What she would do in cold weather. What would she wear and what would she eat. She gave one-word answers and was looking down. He asked her what she wanted to do? She said, nothing. [The respondent] said, “I'm here for you and I’m here to protect you. Is someone telling you, don’t play with Daddy, don’t feed the ducks?” She answered, “I just don’t want to be here”. [The respondent] continued, “I saw you play at school and you were happy. I need to understand what is happening as I need to protect you”.
He offered her to go for a walk and feet the ducks. She said, “I don't want to”. He offered to play Scrabble. The Grandmother said, “Just tell us what you would like to do, anything”. [X] did not answer.
The supervisor noted:
[The respondent]… asked [X] how many grandparents alive she had. She said one in India. He asked her who was the lady sitting next to here (referring to his mother). [X] did not answer. He continued to ask her who was his mother to her. [X] said, “I don’t want to answer any questions”. [The respondent] then offered to play running around the playground. [X] refused.
At the end of the visit, the supervisor reported:
[The respondent] said, “I have only two hours with you every week. The rest you spend with your mum. You have no choice. It is what it is, but you can choose what you want to do in this two hours with me. Like we can go to McDonalds, KFC, shopping, trampoline place or movies. Anywhere you like to go so you have fun. Think of something you want to do”. She replied, “I don't want to be here”. “Baby, when you are older, then you can decide, but now, you need to spend time with me and you can make it fun”.
At 2:53pm, [the respondent] said, “Before you go, I want you to know that I just want to have a good relationship with you and hope you have good relationship with your brother. If someone is bothering you, just tell me and I will take actions. I know when you were born and were a little girl, you were happy girl. When I see you at school, you are happy, so, I want you to be a happy child. You might as well make the use of this time. Use your time productively”.
There were no further supervised visits.
Until March 2019, the mother paid child support to the respondent for Y. In March 2019, for the first time, she applied for a child support assessment against the respondent in relation to X, asserting that the respondent was the liable parent. An assessment was issued which had the net effect that the respondent was assessed to pay a small amount of child support to the mother for X. After Y reached 18 years of age in December 2019, the respondent was assessed to pay some $890. The respondent did not pay the assessed sum but made a small contribution to X’s school fees which he claimed as a non-agency payment.
The respondent agreed that there are currently arrears pursuant to the assessment of about $15,000 but he was adamant that he would not pay the arrears to the mother.
On 9 April 2019, despite there being proceedings already on foot in the Family Court of Australia (as it was then known), the respondent filed an application in the Federal Circuit Court (as it was then known) at City J seeking an order pursuant to s 107 of the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”) that he not be administratively assessed to pay child support as he is not X’s parent.
In his affidavit in support of that application, the respondent deposed that he was not X’s father and annexed the report of the DNA testing obtained in January 2013.
The mother responded, seeking the dismissal of the application and a notation in the following terms:
The Court Notes that, the [mother] does not oppose the [the respondent] filing and serving an Amended Response to Initiating Application in proceedings before the Sydney Registry of the Family Court of Australia (proceedings SYC 1037 of 2013) seeking Orders in respect of s.107 of the Child Support (Assessment) Act 1989 (Cth).
The respondent’s application was dismissed. The respondent filed an amended response on 19 July 2021, but did not seek an order pursuant to s 107 of the Child Support Act. In these proceedings, the respondent’s Minute of Orders filed on 13 April 2022 seeks a notation that the Child Support Assessment in relation to X is to remain on foot although he is adamant that he will not pay the amount assessed.
In September 2019, the parties and X attended interviews for the preparation of a Child Responsive Program Memorandum (“the Memorandum”) prepared by a family consultant.
The Memorandum recorded:
•Both parents said that [the respondent] is not the biological father of [X]. The parents differ in their view of whether or not [the respondent] is the psychological father of [X]. [The respondent] considers [X] to be a child of his relationship with [the mother]. [The mother] disputes this, although she concedes that she remained in a relationship with [the respondent] until [X] was about three years old. The parents differ in their accounts of the circumstances of [X's] conception. [The mother] claimed that [X] was conceived through in vitro fertilisation using donor sperm from her work colleague and paid for by her. She said that she made an agreement with the biological father that [X] will never know him or be a part of his life. [The respondent] claims that [X] was conceived as the result of an extra marital relationship that [the mother] had with that colleague.
•At the time of writing this Memorandum, [X] had spent only minimal and sporadic time with [the respondent] since December 2017.
The Memorandum noted that the mother and the respondent had not spoken to one another face to face since they separated, some six years ago.
The mother told the family consultant that the respondent had never had a relationship with X and that he now sought time with the child as a means of controlling the mother.
The family consultant recorded:
•[The mother] said that, when [X] saw [the respondent] in the Court waiting area, she “freaked out and screamed”. She said that [X] continues to be afraid of [the respondent], but she appeared unable to explain why, except to say, “The park sessions were a nightmare” (meaning the supervised contact visits). [The mother] said that [X] has spent no time with [Y] for about two years, and that [X] does not want [Y] to be a part of her life because he previously “bullied” her when they lived together. [The mother] said that she wishes to take [X] to India for a holiday, but that she has been advised by her legal representative that she must wait until the parenting dispute is finalised. She was critical of [the respondent] for reportedly refusing to consent to [X] travelling overseas, and for placing [X] on the Family Law Watchlist.
•[The mother] said that she plans to tell [X] who her biological father is when [X] is older, but that she does not foresee [X] ever being a part of the biological father's life, as he already has a family of his own who are unaware of [X].
•At the end of [the mother’s] interview she asked to wait in the childcare room with [X], but was told this was not possible. [The mother] then insisted on taking [X] out of the childcare room. She cited her reasons for this being [X’s] apparent fear of [the respondent]. It was explained that the childcare room is quite safe and inaccessible to the public, and that [the respondent] was actually sitting in the waiting room at that time and so more likely to cause [X] concern than if [X] remained in the childcare room. [The mother] still insisted that [X] be removed from the childcare room. She said, “I just want my child with me”, so [X] was brought out to the waiting area to sit with [the mother] for the duration of [the respondent’s] interview.
The family consultant reported that X was reluctant to be interviewed without her mother and the mother stated “that she was not prepared to force X to do an interview alone, and that she never leaves X alone with other people”. Eventually the interview took place in the absence of the mother with the mother described as “reluctant”.
The family consultant reported of her interview with X:
•About [the respondent], [X] referred to him as her “step-dad” and said that she usually calls him [his given name] but that she called him “Dad” when she was “very small”.
She said, “When I got older Mum told me that he isn’t my real Dad”. [X] said that [Mr Ebsworth] is “scary” but she could not articulate her reasons for this belief. When prompted, [X] said, “Because at the park sessions, he used to talk to me and raise his voice to me” (this refers to the supervised time that [X] spent with [the respondent] in February 2019). About her brother, [X] said that [Y] used to bully her. She said, “I don't feel ready to see him”. [X] could not recall if she has any positive memories of [Y].
The Memorandum set out the family consultant’s assessment of the issues:
•This Child Responsive Program Assessment has raised allegations by [the respondent] of parental gatekeeping on the part of [the mother]. [The mother] does not dispute this, and says that, as [the respondent] is not [X's] biological father, he has no claim to spend time with [X]. It appears that [X’s] relationship with [the respondent] has now been disrupted for some years, with the window of opportunity for repairing it rapidly closing. If [X] loses her connection to [the respondent], she may be negatively affected by this as she grows and matures. Also of concern is that [X] does not know who her biological father is, and will apparently not have an opportunity to know him or her extended biological paternal family.
•It remains unclear whether [X] ever viewed [the respondent] as a parental figure, although it can be assumed that she previously did, given that she lived with [him] until age three years. [X] recalls calling [him] “Dad” at a young age. Of note is that [X] was unable to express herself clearly about her father and brother, despite appearing to be a bright child who reportedly does well at school. It appeared to the Family Consultant that [X] may have been afraid of saying the ‘wrong thing’.
•Of concern is that [X] would appear to be estranged from her brother, [Y], and that [the mother] does not view this as problematic. Sibling relationships are often the most significant human relationships across an individual’s lifespan. It is suggested that [the mother] and [the respondent] consider ways to support [Y] and [X] to repair their relationship, possibly through family therapy.
•[The mother’s] curious behaviour on the day of the [interview] gives cause for some concern. It seemed to the Family Consultant that [she] sought to obstruct the assessment. Her stated reasoning for removing [X] from the childcare room prematurely, did not explain this decision satisfactorily. It appeared that [X] was not informed about why she was attending… which may partially explain her nervousness about the interview. [The mother] was advised well in advance that [X] would be required to attend an interview, but she did not express any concerns about this until the [process] was already underway.
Orders were made for the preparation of a family report.
In 2020, the respondent asked the Child Support Agency to investigate the mother, alleging that her application for an assessment was fraudulent.
In August 2021, it was noted that the matter was ready to proceed to hearing, however hearing dates could not be allocated because the respondent wanted to proceed with an Application – Contravention, notwithstanding the fact that it was explained to him that this would delay the hearing. The contravention application was heard in December 2021 and dismissed. The subject matter of the contravention illustrates the relationship between the parties.
An order was made on 3 May 2019 which provided:
7.That the parties do all such acts and things and sign all such documents as may be necessary to ensure [X] continue non-reportable therapeutic counselling with a psychologist practising at [K Counselling] in [Suburb L] (“the psychologist”) in the following manner:
7.1 The parties are at liberty to release to the psychologist a copy of:
7.1.1 These orders; and
7.1.2 Any material issued by a Family Consultant in this matter.
7.2The parties each bear one half of the costs of such counselling, with the parties to instruct the psychologist to issue separate invoices to each of them.
The respondent insisted on being present when the counselling occurred. The mother refused. The father insisted that was his right. The organisation providing the therapy wrote to the parties saying:
…
The orders we have received do not make any statement as to whom will attend the counselling.
[K Counselling] has received communication from both parents with differing instructions as to whom is to attend [K Counselling] during [X’s] appointments.
Taking into account the nature of the communications received [K Counselling] is of the view that the appointment scheduled for Thursday 6th June should be postponed, due to the potential risks of confrontation, and that this would not be in [X’s] best interests in the treatment of her anxiety.
We request that both parties provide us agreed written instructions as to whom will attend the counselling sessions, or alternatively instructions from your legal representatives, that have been agreed between the parties, or other instructions from the court, so we may resume treatment for [X] as soon as possible.
The mother’s solicitors wrote to the respondent asking him to give an undertaking that he would not attend the counselling sessions. The respondent refused.
The mother made no further appointments.
In June 2021, the mother instituted proceedings in the Administrative Appeals Tribunal disputing the respondent’s credit for claimed non-agency payments to the school. The evidence does not disclose the outcome of those proceedings but it seems that, at no time since 2019, has either the mother or the respondent told the Child Support Agency that the respondent is not a liable parent for the purpose of child support.
THE FAMILY REPORT
The family consultant conducted interviews in May 2021 and prepared a report dated 21 May 2021. The attitudes of the mother and the respondent was largely unchanged from that observed in the preparation of the Memorandum in 2019.
Mr H told the family consultant that X had nothing to gain in spending time with the respondent and that the respondent is:
…not necessarily relevant to [X’s] upbringing or identity. He said that; “I would look at things differently if the history had been different”. [Mr H] said that, if [the respondent] had been a father figure that [X] remembers, or if [X] had a memory of him, he thinks [X] would benefit from spending time with him to maintain the relationship. [Mr H] said that, from [X’s] perspective; “[He] is not her father, no more than any ‘Joe Blow’”. [Mr H] said that; “There comes a time when you have to call a stop to this”. [Mr H] echoed [the mother’s] view that [X] should not spend time with [the respondent] until she is 18 years old when she should be at liberty to see him if she wishes. [Mr H] said: “Given the circumstances and how she interprets life, I think [X] will decide to tread waters carefully with [the respondent].
The respondent told the family consultant that the arrangements for him to spend time with Y and X went well until 2016 when the mother contacted him and told him that she had made other arrangements for school and extra-curricular activities with which the respondent had been involved. Thereafter, the respondent said he maintained contact with Y by visiting him at school. He said that after Y came to live with him, he was able to have some contact with X when he dropped Y at school but the mother removed X from the school at the end of 2017 and enrolled her at another school. The family consultant reported:
65.…[The respondent] believes that [the mother] changed [X’s] school to “isolate” [X] from him by ending the potential for him to have an interaction with [X]. [The respondent] said that immediately after he learned that [X] was re-enrolled in school, he went to the new school to see her.
66.[The respondent] explained that in May 2018 he attended a school assembly at [X’s] new school. He said [X] could see him there at a distance. He said that after the assembly finished [X] stared at him and he approached her and gave her a hug. He said [X] started crying. He believes that she was confused and did not know how to react upon seeing him. [The respondent] said that thereafter when he attended school assemblies [X] did not approach him. He said he feels that [X] had been told not to do so and that there was no interaction between them apart from eye contact. [The respondent] said that he also took [Y] on occasion to the school assembly to “see her from a distance”; he noted that he was granted special permission that [Y] be allowed to arrive to school late every Tuesday so he could attend [X’s] assembly. [The respondent] said that he attended school assemblies throughout 2018 until May 2019 when the Court Ordered that both he and [the mother] be restrained from seeing the children on school grounds.
The respondent told the family consultant that the supervised visits in 2019 were not successful and that the mother did not support X seeing him. He said that X did not engage with him and eventually the mother stopped facilitating the visits.
The respondent said that X had been “insulated” from the legal action he has taken against the mother but he expressed concern about what the mother may have told X about him. He believed that X has been told he is her step-father and that she doesn’t have to have a relationship with him. He said that the mother “committed child abuse by telling X outside of the counselling context that he is her step-father when she has known him as her father”.
The family consultant reported:
70.[The respondent] believes that [X] would remember him as her father. He said there were two significant occasions that [X] attended as his daughter. He said that he remarried in August 2015 and both [Y] and [X] attended the wedding, [X] at the time being approximately five years old. He said that in 2016 when [X] was six years old she attended this 50th birthday celebration. [The respondent] said he thinks that, when [X] is a few years older at around 13 or 14 years of age, she will decide herself to reconnect with him. He proposed that in the meantime he and she should have an opportunity to “re-bond”, initially under supervision, then in his home.
71.In summary, [the respondent] believes the deterioration in his relationship with [X] is due to [the mother’s] influence over her and [the mother] restricting him from seeing [X]. He believes the fundamental problem to be that [the mother] told [X] that he was her stepfather and not father. He believes that he can achieve a functioning father daughter relationship through Orders to direct a transitional phase of time spent with [X], initially over FaceTime, followed by supervised then non-supervised visits, supported by Court-Ordered counselling.
Y expressed his concern that since he stopped living with the mother, he has no way of contacting X and his belief that the mother does not allow X to call him.
Y said that he raised the option of living with his father with the mother in 2017 and she told him that he could either stop contact with his father or leave her home.
The family consultant reported:
77.Regarding [Y’s] understanding of [X’s] paternity, [Y] said that in 2014 his father took him to a nearby McDonald’s and had a chat with him about [X] because his father wanted him to know that he was not [X’s] biological father. [Y] said he did not speak to either his mother or [X] about this conversation.
The family consultant stated:
83.[The parties] have no means of communication. Information pertaining to [X] is communicated through the lawyers. However, it would seem that such communication is minimal due to the long time that has passed since [X] last saw [the respondent]. There is a chasm in the co-parenting relationship. [The mother] and [the respondent] are highly suspicious of the motivations of the other. The rift between them seems to be reflected, replicated and reinforced through the estranged relationship between [the respondent] and [X] and [the mother] and [Y] and the maternal and paternal grandparents. It is difficult to foresee these family rifts being traversed to enable the development of a cooperative coparenting dynamic to support [X] to spending time with [the respondent] and [Y].
In relation to her interview with X, the family consultant stated:
85.[She] presented as quietly spoken and thoughtful. She appeared under pressure on the topic of her family and uncomfortable when talking about [the respondent]; she engaged in minimal conversation about him; she repeatedly said that she does not remember him. [X] was significantly more relaxed and animated when talking about her interests and school. She was adamant that she would not be observed together with him.
Further, the family consultant stated:
88.When asked [X’s] understanding of why she attended the Family Report interview, [X] said that she knows her mother wants her to live with her and for “him” [the respondent] to “leave us alone and for him and me not to see each other”. She said she thinks that [the respondent] is seeking; “For me to come under his care because he is in disagreement with Mum”. [X] said she knows that [the respondent] wants to see her because “I had to see him at the park”. [X] said she does not wish to see [him] or be required to attend further “park meetings”.
89.[X] said she had no previous recollections of [the respondent] prior to the park meetings. [X] noted that she clearly remembered the times she spent with [him] at the park; she said “I remember them”. She said she did not remember attending his wedding or 50th birthday celebration. [X] said that she did not like seeing [him] at the park. She said that [he] said things to her at the park that made her feel “uncomfortable and not safe”. She gave the example that [the respondent] “told me to smile and to look at him in the eyes when I was talking, otherwise I’m lying”. She said that, when she came home from seeing [the respondent] at the park; “I had nightmares and anxiety”. When asked how she feels when she is anxious, [X] said she did not know and was unable to describe feelings of anxiety.
90.When talking about [the mother] and [the respondent], [X] was guarded and there was a prepared feel to what she said. When asked explicitly to describe the relationship with [the respondent], [X] said that she feels “uncomfortable”, “scared” and “unsafe”. When asked to elaborate on these words [X] said she feels judged by [the respondent] “when he forces me to smile or look him in the eye”. She contrasted this to feeling not judged when with [the mother] and [Mr H]. [X] said that [the respondent] does not feel like “anyone I would want to know”. She said; “He gives off a bad vibe”. [X] elaborated further that when [the respondent] “randomly visited me at school, I didn’t want him there”. She said he could make a scene if he is ever to visit her school in the future. [X] talked about when she was in Year 3 and [the respondent] was at the school and approached her from behind; “He hugged me from behind and choked me; I didn’t feel safe”. When asked to describe her relationship with [Y], [X] said; “He is a stranger”. She said she is not happy or excited about the idea of seeing [Y].
X described a loving and comfortable relationship with her mother and with Mr H.
In relation to X’s memories of Y, she told the family consultant:
93.…that [Y] bullied her by calling her names. He said that he tackled and jumped on top of her and sometimes “got mad at me”. [X] recalled that she sometimes asked [Y] to help her with homework but he would not. She said he sometimes cried because he did not want to help. [X] said that she does not know why [Y] changed residences but she said she recalls the day he left. [X] said that she is unsure why she changed schools she thinks this may have been because her mother thought it was a good idea that “I’m not around [Y]”.
The family consultant’s impressions of X are set out:
98.[X] impressed as an intelligent child. She is navigating the developmental stage of late childhood where her developmental tasks are to consolidate a sense of self in preparation for the more defining process of developing identity and to consolidate her peer relationships. These tasks are best achieved from the foundations of positive and strong relationships with her parents.
99.[X’s] relationship with [the respondent] is non-existent. She seemed guarded and reluctant to talk about family matters and spoke in generalisations about her recollections and how negatively she feels about [him]; she gave the impression that she had been prepared for her interview, reciting the same similar Responses to questions starters and topics; that she did not remember him and felt anxious when she most recently saw him at the park. She seemed genuinely fearful of the idea of spending time with [him]. [X’s] ideas and feelings about spending time with [the respondent] aligned closely with [the mother’s] and seemed also to reflect [the mother’s] proposal that [X] not spent time with [the respondent].
The family consultant reported:
94.When the idea of [X] being observed with [the respondent] was raised with [X], she immediately appeared in fright and said she did not wish to see him. After some discussion about possible ways the observation could be conducted, [X's] demeanour and attitude to the idea did not change.
The family consultant did not deem it appropriate to observe X with the paternal family and Y.
The family consultant stated that, from X’s perspective, Mr H is her father figure. She stated:
108.[X] is likely to be experiencing an inordinate amount of stress related to [the mother] and [the respondent’s] dispute, particularly as it is her identity which is at the centre of their conflict. The fact of the parenting dispute and [X’s] presentation during her interview suggests that she is feeling the pressure of the ongoing acrimony and the Court dispute. Children who experience unrelenting tension due to parental conflict are vulnerable to mental health difficulties and problems maintaining intimate relationships into the future. The generalised sense of anxiety reported by [X] may reflect the tension she feels; her level of distress is most likely exacerbated by being already estranged from [Y]. In her alignment to [the mother] in the rift between [the respondent], it is likely that [X] would experience her making moves towards [him] as disloyalty to her mother and [Mr H]. [X] is in an untenable situation to be able to tolerate time with [the respondent].
The family consultant stated:
113.While [X] is in the stage of late childhood and is unable to appreciate the long term ramifications of her wishes and choices and taking into account that her views appear to have been strongly influenced by her mother, her feelings and experiences are very real for her; and in the context of the other positive aspects of her life and relationships her views it is suggested that her views could be given some weight.
114.In relieving [X] of the stress of being required to spend time with [the respondent] and [Y], and as she grows and understands more about her family origins, it is hoped that [X] would in the future be more able to reconnect with [Y] and possibly [the respondent] if she chooses.
The family consultant stated:
107.From [the mother’s] perspective, [the respondent] was once in the role of [X’s] father when [X] was an infant but, as time has gone by and the longer [X] has not spent time with him, and forgotten him, [the respondent] has become irrelevant. His irrelevancy to [X] is reinforced by the fact that [Y], due to his estrangement from [the mother], no longer provides a conduit between [X] and [the respondent].
The family consultant recommended that there be no orders requiring X to spend time with the respondent.
THE TRIAL
The mother relied on affidavits by herself and by her partner, Mr H, who was not required for cross-examination. The respondent relied on affidavits by himself and Y. Y was not required for cross-examination.
The Court was assisted by an Independent Children’s Lawyer (“ICL”) and the author of the family report was cross-examined.
ORAL EVIDENCE OF THE FAMILY CONSULTANT
The family consultant did not resile from the recommendations in her report and did not support the respondent’s application.
Specifically, she did not support X’s being required to attend counselling. She said in relation to that issue:
…I wouldn’t think that that would be a useful path to take for [X] right now… from my assessment I would say that [X] would benefit, really, more from coming to a conclusion about the relationship she wants with her parents when she is older, of her own volition. And I suspect that will happen. I suspect she is going to be doing a lot of reviewing of her family life and relationships when she is in late-adolescence or early-adulthood. But I don’t think, you know, throwing in a counselling approach right now would benefit what she will probably do when she is older. It might simply just create more confusion for her. And I’m not really sure how a child, if we think of her in the centre of all of this, then being exposed to trying to deal with all of these issues in a counselling context, I don't know how productive or useful or beneficial that would be, and possibly even harmful and just prolong the fact that she will recognise she is at the centre of her parents’ problems, really.
The family consultant said that her view might be different if the mother had counselling to help her support X having a relationship with the respondent but that she had no reason to believe that the mother would provide that support. She said:
…I think it’s just too great a responsibility to throw [X] in yet again to another forum where she would feel at the centre of this quite significant level of stress on her, and carrying quite a weight of responsibility to fix things which her parents can’t fix, really.
The family consultant said that “we have got to be really careful about how we manage children when there is this kind of level of acrimony and rift. There can be no point to it – to counselling”.
The family consultant said that X has aligned herself with her mother and that she can’t “straddle the line” by negotiating a relationship with the respondent and Y. She likened X’s position to “asking a child to just walk a very lonely line without support, and in quite a precarious situation”.
The family consultant said that X needs to be left to concentrate on her own development, to apply herself as a teenager; to develop her identity, master her changing body; focus on her school work, friendships and peers and:
…not derailed and distracted from those things by difficult family circumstances which can become preoccupations. And while it would be wonderful to sort out these issues at this time in her life, it’s going to be better for her to have space to get on with things, and these things get sorted out a little bit later when she is more able to as her own individual…
The family consultant did not support either counselling for X or FaceTime contact with the respondent which she said would not have value for X at this time. Further, she said, that she did not predict that the course of action proposed by the respondent was likely to lead to X having a meaningful relationship with him.
She concluded:
I would say in this circumstance, let’s all just allow [X] to take a nice big breath and get on with things, get on with being a 12 year old.
CONSIDERATION
Section 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) mandates as a primary consideration the benefit to a child of having a meaningful relationship with both the child’s parents. However, the respondent is not X’s parent and, while he might once have been her psychological parent, I accept the unchallenged evidence of the family consultant that he is no longer and that Mr H is X’s “father figure”.
The other primary consideration is the need to protect a child from psychological harm. In this case, the psychological harm for X is identified in the report of the family consultant in the following terms:
108.[X] is likely to be experiencing an inordinate amount of stress related to [the mother] and [the respondent’s] dispute, particularly as it is her identity which is at the centre of their conflict. The fact of the parenting dispute and [X’s] presentation during her interview suggests that she is feeling the pressure of the ongoing acrimony and the Court dispute. Children who experience unrelenting tension due to parental conflict are vulnerable to mental health difficulties and problems maintaining intimate relationships into the future. The generalised sense of anxiety reported by [X] may reflect the tension she feels; her level of distress is most likely exacerbated by being already estranged from [Y]. In her alignment to [the mother] in the rift between [the respondent], it is likely that [X] would experience her making moves towards [the respondent] as disloyalty to her mother and [Mr H]. [X] is in an untenable situation to be able to tolerate time with [the respondent].
That evidence was not challenged.
The Act requires that priority be given to the protection of the child.
Although the respondent was adamant that he would not tell X about the circumstances of her conception if he were able to spend time with her, I do not accept his evidence. He felt compelled to tell Y. He used that informant to threaten the mother in his text message on 8 March 2013 and he told the members of the ethnic community, the religious community and the school community. He believes the truth must be told.
In 2019, before a Senior Registrar, the respondent was asked, if honesty demanded it, he would tell X things that would cause her harm or distress and he replied “If honesty demanded it and it was in her best interests, I would tell her, yes”.
As was the case with Y, it is likely that the respondent would tell X what he decided she needed to know. Such a conversation could cause psychological harm to X and could significantly damage her relationship with her mother.
When dealing with the matters set out in s 60CC(3) of the Act, I am conscious that the respondent is not a parent of X and that some of those considerations specifically apply to parents. However, I propose to consider those matters in relation to the respondent, as I am entitled to do pursuant to s 60CC(3)(m) because they are equally relevant to the respondent and the benefit of X’s having a relationship with him.
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X’s views have been expressed both in the Memorandum and in the family report. She is adamant that she does not want to spend time with, or have a relationship with the respondent.
As to the weight to be given to X’s views, the family consultant stated:
113.While [X] is in the stage of late childhood and is unable to appreciate the long term ramifications of her wishes and choices and taking into account that her views appear to have been strongly influenced by her mother, her feelings and experiences are very real for her; and in the context of the other positive aspects of her life and relationships her views it is suggested that her views could be given some weight.
X is almost 12 years old. Significant weight should be given to her views.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Whatever may have been the case in her early years, I accept that X no longer has a relationship with the respondent or with Y.
I accept the evidence of the family consultant that she has a loving and comfortable relationship with her mother and with Mr H and that she spoke fondly about Mr H’s extended family.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
I accept that the respondent has made every endeavour to participate in X’s life and that his efforts have been frustrated, at least in part by the mother.
Since 2016, she has not involved the respondent in X’s life and it would appear from the report of the family consultant that Mr H gradually took over the role that the respondent had formerly played in X’s life.
The respondent has made very little effort to communicate with X since the end of 2016. He said in cross-examination that at Christmas time in 2017, Y had taken presents for X to the mother’s house but had been turned away. As to his own effort to communicate with X he has not sent her a birthday card or a Christmas card and other than his reference to once having sent a birthday greeting to her via the mother’s WhatsApp there is no evidence of any attempted communication.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
I have detailed the history of these parties’ dealings with the Child Support Agency which is simply inexplicable.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The benefit to X of having a relationship with Y is poignantly set out in Y’s affidavit:
I love [X] and have lost a lot of time without her. It is not likely that my mother would allow [X] to build a bond with me and my father as long as [X] remains a minor. My father and my mother will both not be around in another 40 years but [X] and I will be and I want her to be there when I get married, have kids and be a loving aunty to my children and I want to be there as well for those important occasions…
I accept that the practical effect of making the orders sought by the mother is that X will not have the opportunity to have a relationship with Y during her childhood.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The difficulties presented are not practical but rather psychological. There are no practical impediments to X’s spending time with the respondent and with Y.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The respondent is not a parent of X but he is a person interested in her welfare and a person seeking that she spend time with him, however limited. Therefore, it is appropriate to give some consideration to his capacity to provide for her needs, in particular, her emotional needs.
Whilst I accept that his becoming aware, at the time of separation, that he was not X’s father, must have been a great shock and very distressing, that does not explain why he thought it necessary or appropriate to tell Y.
The respondent’s involvement of Y in these proceedings is also regrettable. Y has sworn an affidavit in the respondent’s case. It is difficult to envisage the damage that affidavit will cause to any possibility that Y’s relationship with his mother might be repaired.
The respondent accepts no responsibility for Y’s estrangement from his mother. He excuses his telling Y about X’s paternity when Y was 11 years old by saying that he believes the truth must be told. He blames the mother entirely for the fact that Y and X are estranged and accepts no part of the responsibility.
The respondent’s belief that X would be able to negotiate a relationship with him while living in the mother’s household is, for the reasons explained by the family consultant, evidence of his inability to consider X’s welfare above his own wishes.
As to the mother, the evidence supports the respondent’s belief that she has not only failed to encourage X to have a relationship with him but that she has also actively discouraged that relationship.
Y deposed:
On the 10th of June 2017 which was a Saturday morning, I was at home with my mother and [X]. My mother called me into her room and told me to make a call to my father to tell him that I was not going to see him anymore. I told my mother I would not do that. She then told me that I had to make a decision to either stay in the [Suburb M] property with her and [X] or go and live with my father in the [Suburb N] property and sever ties with her and [X]. I told her I wanted to have a relationship with [X] and her as well as my father but she insisted that I make a decision one way or the other. I told her that I would leave the [Suburb M] property and go and live with my father. I returned to my room and packed my immediate belongings, my schoolbag, my Ipad and my phone and was ready to leave the house. As she saw me preparing to leave the house, she asked me to return the Ipad and my phone to her as she had purchased them for me. I gave them both back to her and left the house. It was raining lightly and I could not call my father to pick me up so I began to walk from the [Suburb M] property to the [Suburb N] property, a walk that is normally 15 minutes but slightly longer with luggage. About 5 minutes into my walk, my mother pulled up in the car beside me with [X] at the backseat and told me to get in. She dropped me off at my father’s house.
That evidence was not challenged.
It is also a matter of some concern, and illustrative of the mother’s attitude, that there is no evidence that she has done anything to repair her relationship with Y from whom she seems to have been estranged since the middle of 2017. In relation to the mother’s relationship with Y, the family consultant reported:
43.When [the mother] was asked about her relationship with [Y], she explained that she and [the respondent] were in conflict over who should pay for [Y’s] school fees. She said that in 2017 [the respondent] approached her to start paying the fees. [The mother] said she told [Y] that his father was no longer prepared to pay the fees which she thinks caused [Y] to then “play up with me”, eventually deciding to live with [the respondent]. [The mother] said that there were incidences of concern prior to [Y’s] leaving, one incident involving him watching porn on his iPad which resulted in an altercation when [Y] raised his hand towards [her]. [The mother] said she has not spoken to [Y] since he left her home four years ago. She said that when he left, she told [Y] he could return whenever he wanted but she requested that he not go back and forth between houses. [Y] leaving was a landmark moment in the family in that, from that time, [X] has not seen either [the respondent] or [Y], apart from the session in the park.
Asked in cross-examination by counsel for the ICL whether she had taken any steps to repair the relationship between X and Y, the mother said words to the effect of “There is a rift. Y hasn’t spoken to me since 2017”. Pressed, she said that she would have to wait until X was ready. When counsel for the ICL suggested that it was up to the mother to give permission to X to have a relationship with Y, the mother said that “Y has to start with me first”. The mother said that if X wants to see Y she will not stand in her way but there was nothing in the mother’s evidence to suggest that she was concerned that X did not have a relationship with Y or that she would do anything to address the situation.
In relation to that issue, the family consultant stated:
112.While [Y] is not a subject child of this assessment, his relationship with [X] as her half-brother is of significance. There is difficulty in [X] being able to have a relationship with [Y] across the rift between the maternal and paternal sides of the family. While [Y] is hesitant to spend time with [the mother] and [she] is fearful of what [Y] could say to [X] about her paternity, it is difficult to foresee [Y] and [X] being able to spend time together, particularly as [X] expressed the desire not to see him and [Y] may not have the capacity to approach his relationship with his sister independent of the broader family dynamics.
Sadly for both X and Y, I accept the evidence of the family consultant that:
110.…It is considered unlikely that the various adult’s [sic] attitudes in this particular dilemma are going to change to the level required to create enough emotional support for [X] to reconnect with [the respondent] and his family safely.
I have no confidence in the willingness or ability of either the mother or the respondent to deal with X’s emotional needs unless she or he perceives an action to be to her or his advantage in the continuing hostility towards the other.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Both the mother and the respondent are of P ethnicity and Catholic faith. Mr H is also of Indian descent although not P ethnicity.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both of the mother and the respondent have acted in wilful disregard of the interests of their children.
any family violence involving the child or a member of the child’s family;
The respondent has been convicted of breaching an ADVO and thus, had he been her parent, the presumption in favour of equal shared parental responsibility is rebutted.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
There can be no confidence that the scheme proposed by the respondent will lead to any change in X’s current views about seeing him and it is likely that, if X refuses to participate in FaceTime contact with the respondent as he seeks, there will be further applications alleging that the mother has contravened orders.
Having regard to all of these matters, and giving the greatest weight to the need to protect X from psychological harm, the orders will not provide for X have any contact with the respondent other than in accordance with her wishes.
PARENTAL RESPONSIBILITY
The respondent is not X’s parent and there is no presumption in favour of equal shared parental responsibility.
It is not clear why the respondent seeks an order for equal shared parental responsibility but he has not demonstrated that there is any benefit to X in making that order.
X’s school reports suggest that she is doing well. She is described as polite and conscientious. The family consultant described her as “quietly spoken and thoughtful”.
None of the considerations pursuant to s 60CC(3) of the Act suggests that there is any benefit to X in mandating the involvement of the respondent in the making of important decisions for X.
The mother will have sole parental responsibility for X.
THE RESPONDENT’S ANCILLARY APPLICATIONS
·Relocation
The respondent has not provided any evidence in support of his application that the mother be restrained from changing X’s place of residence in circumstances where he does not seek any ongoing face to face time with her or demonstrate any need to make such an order.
·School records
Since I do not propose to make an order that the respondent has parental responsibility for X, there is no need to make and no benefit to X in making an order that her school records be amended.
·Therapy
I do not propose to make any order requiring the mother to engage in therapy for the purposes specified by the respondent. Whether I have power to do so in circumstances such as these need not be addressed but my preliminary view is that I do not.
·Restraining orders
There is no evidence that, since 2013, either parent has assaulted, threatened, stalked, harassed or intimidated the other and there is also no evidence that either of X or Y has behaved in such a manner towards the other.
Similarly, there is no evidence that either parent has denigrated the other in the presence or hearing of X or allowed any other person to do so.
Those orders will not be made.
·Parenting course
In the course of submissions, the respondent said that Order 5 made by a Senior Judicial Registrar on 31 January 2022, in disposing of the contravention application should remain in force.
That order provided for each of the mother and the respondent to enrol in and complete a post separation parenting course at O Service.
Both have enrolled but neither has yet started the course.
This was not a matter raised in the respondent’s Minute of Orders at the start of the trial and it was not raised during the trial. Most relevantly, the mother was not cross-examined about the proposal.
In those circumstances, it is not appropriate for that order to continue and all previous orders will be discharged.
COSTS OF THE INDEPENDENT CHILDREN’S LAWYER
Both parties agreed that they should pay the costs of the ICL.
I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 3 May 2022
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