Eckhardt & Eckhardt
[2024] FedCFamC2F 271
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eckhardt & Eckhardt [2024] FedCFamC2F 271
File number(s): DGC 1976 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – parenting – final hearing – 15-year-old child – weight to be given to wishes – difficulty of enforcement – orders least likely to lead to further proceedings – unacceptable risk of psychological and emotional harm – not possible to mitigate the risk through orders – risk overrides the child’s wishes – change of residence back to former primary carer – moratorium on time Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 61DA, 62B, 65D, 65DA, 65DAC, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.17
Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8
Grella & Jamieson [2017] FamCAFC 21
Isles & Nelissen [2022] FedcFamC1A 97
Masson v Parsons [2019] HCA 21
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Division: Division 2 Family Law Number of paragraphs: 83 Date of last submission/s: 20 February 2024 Date of hearing: 15 to 16 February 2024 Place: Dandenong Counsel for the Applicant: Mr Moore Solicitor for the Applicant: Oldham Family Law Counsel for the Respondent: Mr Moisidis Solicitor for the Respondent: Einsiedels ORDERS
DGC 1976 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ECKHARDT
Applicant
AND: MR ECKHARDT
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The mother have sole parental responsibility for the child of the relationship, X born in 2009.
3.X live with the mother.
4.Commencing two months from the date of these orders X spend time with the father as follows:
(a)Each alternate weekend from 6.30pm Friday until 6.00pm Sunday.
(b)Each Wednesday at 7.30pm by telephone with the father to initiate the call to the mother's mobile number.
(c)For half of all school term holidays as agreed between the mother and father in writing and failing agreement:
(i)for the first half in even-numbered years, from the conclusion of school on Friday on the last day of term until 12:00pm on the middle Saturday of the school term holiday; and
(ii)for the second half in odd-numbered years, from 12:00pm on the middle Saturday of the school term holiday until the commencement of school on the first day of the next term.
(d)In the summer school holidays in 2024/25 and each year thereafter for half of the long summer holidays as agreed between the parties and failing agreement:
(i)For the first half in even numbered years from the conclusion of the last day of school in term 4 for a period of consecutive nights calculated to be half of the long summer school holidays until 12.00pm on the last day.
(ii)for the second half in odd numbered years from 12.00pm on the day calculated to be the middle day of the long summer holidays until 12.00pm on the day prior to commencement of the school year.
(e)On special occasions, as follows:
(i)On Father's Day weekend, from the conclusion of school on the Friday immediately preceding Father's Day (or 3:15 pm if a non-school day) until the commencement of school on Monday;
(ii)On X's birthday from 3:15pm until 7:00pm if it falls on a school day or from 10:00am until 2:00pm if X's birthday falls on a non-school day and in the event the father is not able to spend time with X in accordance with this Order, by telephone at 6.00pm;
(iii)On the father's birthday, from the conclusion of school (or 3:15 pm if a non-school day) until 7:00 pm;
(iv)From 5.30pm on the Saturday immediately preceding Easter Sunday until 11.00am on Easter Monday in each odd year;
(v)From 9.00am on Easter Friday until 5.30pm Saturday in each even year;
(vi)From 3:30 pm Christmas Day until 5:30 pm Boxing Day each odd year;
(vii)From 5.30pm Christmas Eve until 3.30pm Christmas Day each even year.
(f)Such further and other times as agreed between the parties in writing.
5.In the event the father would otherwise spend time with X, the father's time with X be suspended as follows:
(a)On Mother's Day weekend from the conclusion of school on the Friday immediately preceding Mother's Day (or 3:15 pm if a non-school day) until the commencement of school on Monday;
(b)On the mother's birthday, from the conclusion of school (or 3:15pm if a non‑school day) until 7:00pm;
(c)On X's birthday, from the conclusion of school until 7:00pm if it falls on a school day or from 10:00am until 2:00pm if it falls on a non-school day;
(d)From 5.30pm on the Saturday immediately preceding Easter Sunday until 11.00am on Easter Monday in each even year;
(e)From 9.00am on Easter Friday until 5.30pm Saturday in each odd year;
(f)From 3:30 pm Christmas Day until 5:30 pm Boxing Day each even year;
(g)From 5.30pm Christmas Eve until 3.30pm Christmas Day each odd year.
(h)Such further and other times as agreed between the parties in writing.
6.The time X spends with the father pursuant to Order 4 be suspended during the school term and long summer holiday periods and shall resume in the same cycle as if the holiday periods had not intervened.
7.Commencing two months from these orders X be at liberty to communicate with the parent he is not otherwise spending time with by telephone or skype at any time reasonable he requests to do so.
8.For the purposes of all changeovers, all changeovers shall occur as agreed between parties and failing agreement changeovers are to occur at B Contact Centre.
9.All communication between the parties regarding X's care, welfare and development shall occur by text message only save for in the event of an emergency, whereby the parties may communicate by telephone.
10.The father keep the mother updated of his mobile number, email and address and the X's mobile number and notify the other party of any changes thereto within 24 hours.
11.Each party:-
(a)shall provide all necessary authorisations to all of X's treating medical practitioners to allow both parties to have direct access to X's medical records so as to ensure that any progress reports, recommendations, diagnosis, prescriptions or other information are able to be issued to both parties;
(b)do all acts and things including signing all necessary documents to ensure that X continue to attend, at the parties joint expense, any such other medical or allied health professional as required;
(c)comply with all directions provided to the parties by X's treating medical professionals including, but not limited to, administering medication as directed; and
(d)will not provide to X any therapies, treatments, medications, or anything else that has not been recommended by the child's medical or allied health professionals without the agreement of the other parent.
12.The parent with care of X shall promptly notify the other parent of any significant illness or medical condition suffered by X as soon as practicable in the case of an emergency and further shall provide to the other parent all the relevant particulars of the treatment received by X with the name and address of the treatment provider.
13.These Orders authorise X's school to provide all information ordinarily provided to parents including but not limited to school notices, information, newsletters, school reports, school photographs directly to the father at his cost.
14.The parties be at liberty to provide a copy of these Orders to any school that X may attend.
15.Each party is permitted to take X with them interstate provided that the travel does not impact on the other parents spend time arrangements pursuant to these Orders unless otherwise agreed between the parties in writing. To give effect to this Order:
(a)The party wishing to travel interstate with X shall provide the other party with no less than 14 days' notice of their intention to do so and provide to the other party with an itinerary for their proposed travel, including the following details:
(i)Departure, arrival and return dates and times;
(ii)Details of any flights and other transport particulars;
(iii)Accommodation details, including bookings and contact details.
(b)The other party must not unreasonably refuse the other parties request to travel with X.
(c)All travel subject to this provision occur during the time that X would be spending time with that parent and is not to interfere with the other parent's time pursuant to these Orders.
16.The parties, their servants, and agents, be and are hereby restrained by injunction from:
(a)Exposing X to family violence or allowing another person to do so;
(b)Consuming alcohol to excess (being to a Blood Alcohol Content of greater than 0.05 %) for twenty-four hours before or during any period X is in their care;
(c)Denigrating, belittling rebuking or otherwise insulting the other party or any member of their family or any person they are in a relationship with, in the hearing or presence of X;
(d)Discussing the details of these proceedings, or any matters arising from these proceedings, with X.
17.A Court Child Expert ("CCE") as delegated by the Senior CCE explain these Orders to X.
18.The CCE be requested to inform X that the court has taken into account his wishes but has determined that it is in his best interests to reside with the mother until he is 18 years of age.
19.All extant applications are otherwise dismissed.
NOTATIONS:
A.Pursuant to ss.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 are set out in Annexure A 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
INTRODUCTION
This is a parenting matter concerning a young man, X, who is now 15 years of age. According to the Family Consultant who prepared a report in this matter, he appears several years older than his age, indeed he is very tall and heavier than average. Many would argue upon looking at him that there is no point in making any orders with respect to his care as they would be unenforceable. Nonetheless, despite his size and appearance, X is still a child and the Family Law Act 1975 (Cth) ("the Act") requires that the court make orders that are in his best interests.
X currently lives with his father and has done so for some 18 months. It is the father's case that X does not want to live with the mother and that X's wishes should be determinative. The mother's case is that X is at risk in the father's care on the basis of the father's excessive alcohol use and lack of boundaries, and that X should therefore be returned to her care, regardless of his wishes.
BACKGROUND
The parties met in 2007, married in 2009 and separated on 21 December 2011 when X was only 2 years old.
The father has one other child C who is about eight years old and who I understand currently spends time with the father each alternate weekend.
After separation X lived in the mother's primary care until the middle of 2022, being some 11 years. It is common ground that the father's time with X was sporadic due to working long hours as a transport worker. In the year prior to X coming into his care, he only saw him about five times.
In about mid-2022 X told the father that he wanted to live with him. At this time X and the mother were living in Town D and the father in Suburb E. X was being homeschooled for the 2022 year but had previously been attending F School, Town D Campus.
The father did not discuss the situation with the mother but instead in mid-2022 sent her the following message:
He does not want to go home with you he wants to stay with me so for the best don't come over or I will call the cops.
The mother consequently issued these proceedings on 25 June 2022.
Pursuant to interim orders of this court, X has remained living with the father and until January this year, spending time with the mother each alternate weekend. Since moving to the father's care X has been attending G School.
During a weekend in January 2024 ("the January weekend") X was spending holiday time with the mother and had been permitted by her to spend the weekend with his girlfriend who lives in Town D. It appears that upon the mother failing to agree to extend that time for a further night, X informed the mother that he was not returning to her and that he was staying with a friend because of his "mental health". The mother, who was concerned about X's state of mind, felt she had no choice but to contact the police and report him missing. The police subsequently made contact with X and confirmed that he was not at risk. However thereafter X travelled back to his father's house in Suburb E, seemingly with the assistance of the paternal grandmother ("the grandmother"). X has not spent time with the mother since that weekend.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties' evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
I note the father says he is illiterate however his trial affidavit did not comply with Rule 8.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). Despite this, he gave evidence that the affidavit had been read to him and I am otherwise satisfied given his oral evidence and its brevity that he understood its contents.
I advised the parties at the outset of the hearing that they would not be permitted to rely on documents in tender bundles or large annexures unless they tendered them individually or referred to them in submissions. As was set out in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65 at [53]:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.
In addition to the parties themselves, I heard evidence from the grandmother, and the Family Consultant, Ms H who prepared the Family Report in this matter.
Several factual assertions made by each party are disputed by the other. Nonetheless, I accept that the parties largely gave evidence to the best of their recollections. Albeit this was at times inconsistent, I do not find they were intentionally dishonest as memory is necessarily subject to distortion due to the passage of time and the parties' own perspectives. For these reasons, as far as possible, findings will be made on the basis of the available contemporaneous material, objectively established facts, and the apparent logic of events.
WHAT ARE THE LEGAL PRINCIPLES THE COURT APPLIES IN DETERMINING WHERE A CHILD SHOULD LIVE?
Pursuant to s 60CA of the Act the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper. The court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Section 61DA of the Act states as follows:
(1)When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 65DAC of the Act sets out that where a court makes an order for equal shared parental responsibility that:
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
PARENTAL RESPONSIBILITY
The father's proposed orders are that he have sole parental responsibility for making all long‑term decisions for X. The mother's proposed orders are for equal shared parental responsibility provided that the court made specific orders as to where X was to attend school.
The orders sought by the father are somewhat ironic given it is difficult to see any examples in the evidence where the father has made decisions on behalf of X. On the father's own evidence X has been permitted to make most, if not all, decisions for himself including arranging his own mental health counselling and determining at about 11 years of age in 2020 as to whether he should go to a General Practitioner, or hospital, or stay home after a major accident. In regard to the latter, X chose to stay home despite having fractured bones. The father's evidence was words to the effect of "no one else knows your body better than yourself".
In regard to the exercise of parental responsibility, X's school was arranged by the paternal grandmother who enrolled him and facilitated X to obtain all uniforms, books and other items he required. Subsequently the father has only attended the school on two occasions, being once when X was briefly suspended and one other time to pick subjects. He has otherwise had no contact with X's teachers and does not know their names.
Nonetheless, it does not appear that there will be many decisions that will be required to be made for X. In relation to school, it is agreed he will either remain at his current school G School or return to his former school in Town D. However, if a decision needs to be made, for example with respect to a major medical issue, it is clear on the evidence that the parties would have great difficulty consulting and making a decision. Furthermore, the father has seemingly no time for the mother's input. An example of this is when the mother contacted the father and suggested X needed help with his mental health he said:
"I don't need ur [sic] advice"
…..
"Don't start ur [sic] shit with me…".
In my view the only parent capable or even prepared to make long term decisions on behalf of X is the mother. As such I propose to make an order that the mother have sole parental responsibility for X. Consequently, although the parents agreed on orders that they both enrol X at school, this will be the responsibility of the mother.
As I am not making an order for equal shared parental responsibility, I do not need to consider pursuant to s 65DAA whether to make an order for equal time or substantial and significant time but am at large to make orders in the best interests of X.
HOW DOES THE COURT DETERMINE WHAT IS IN THE CHILD'S BEST INTERESTS?
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests.
There are two primary considerations. The first of these is the need to consider the benefit to the child of having a meaningful relationship with each of their parents. Secondly, I must consider the need to protect the child from harm, including psychological harm and neglect.
If there is conflict between those two considerations, then greater weight must be given to the need to protect the child from harm.
There are also a number of additional considerations set out in s 60CC (3) including any views expressed by the child.
As was observed by the High Court in Bondelmonte v Bondelmonte [2017] HCA 8 at [34]:
The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
(emphasis added)
I have consequently considered each of the matters under s 60CC(2) and (3) however I will only specifically refer to them to the extent that they are relevant to my decision in this matter.
THE PRIMARY CONSIDERATIONS
The benefit to X of a meaningful relationship with each of his parents
The Full Court of the Family Court of Australia in the case of McCall & Clark [2009] FamCAFC 92 at [115] observed that the Act does not provide a definition of the word "meaningful", however they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as "significant", "important", "of consequence" and "valuable to the child". Meaningful does not however mean optimal.
However pursuant to the High Court decision in Masson v Parsons [2019] HCA 21 at [8] the Court also has the responsibility of:
Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
Each of the parties submit that X would benefit from a meaningful relationship with the other. However. whilst in theory the parties both propose orders which provide for this to occur, I have some concerns about the father's capacity to actually promote X's relationship with the mother. At various times he gave evidence that X "needed" to see his mother or that he told X he "still had to spend time with her" which gave the impression that X was obligated to see her, rather than helping him to see why his relationship with his mother was truly important.
The need to protect X from harm
The father does not assert that the mother poses a risk to X, save for making a vague claim that X must have wanted to live with him due to "something" happening in the mother's house. In this regard I note the father had a tendency to assume that something untoward was taking place rather than enquiring further into the situation. For example, following the January weekend, the father presumed there was an issue in the mother's home rather than looking at the situation logically; that is, X was likely reacting to his mother not giving him permission to stay a third night with his girlfriend. Despite this the father does not put his case on the basis that X is a risk in her care.
On the other hand, the mother alleges that X is at unacceptable risk of psychological harm and neglect if he remains in the father's primary care due to the father's alcohol consumption and failure to provide or enforce boundaries.
The father's alcohol use
The father's evidence in his affidavit of 11 July 2022 at paragraph 37 is that he "likes a drink" but that he does not drink to excess. Although he concedes that he drinks about eight light beers each weeknight and 15 lights beers on a weekend night he does not consider this to be excessive. However, it came to light under cross-examination that the father's drinking was far beyond even these estimates. The father gave evidence that when C is not in his care that he would drink about 15 light beers on a weekend night and if he was attending a birthday party or social gathering with friends, he would drink 24 cans or more of light beer and mixed drinks. He estimated such occasions to take place about once per month. In addition, videos posted on the father's Facebook page were played to the court which showed the father using a device to consume his drinks. He explained the purpose of this device was to enable him to consume the drink more quickly and therefore to speed up the effect of the alcohol. On one video he was apparently consuming his fifth drink in this manner. The father was nonetheless keen to impress upon the court that he did not however "pass out". He also gave evidence that his drinking has been "slowing down" as his friends have been too busy to catch up, however, given he failed to comply with orders for Carbohydrate Deficient Transferrin ("CDT testing") this seems unlikely.
Furthermore, the father did not think there was any real problem with his drinking other that it may have contributed to his weight gain. The father was described by his counsel variously as obese and/or morbidly obese. He also said his partner had complained about the cost of his drinking. Otherwise, as he said in evidence "I didn't think it was a crime". However, given the levels of alcohol he drinks and that he gets up for work at about 5.00 am it is quite possible he is still over the legal limit when he starts driving the next day. I note that although the father is required to be 0.00 Blood Alcohol Concentration when engaging in transport work, he is not subjected to any testing by an employer. Furthermore, the father's drinking appears to be in breach of an order made by a Senior Judicial Registrar on 15 September 2022 restraining him from excessive alcohol consumption when he had X in his care.
Of greater concern however was that the father had no insight into the impact of his drinking on X, save that it had contributed to his weight gain which was not setting a good example. As he said in his evidence, "I still have a full-time job, my son is looked after, fed, has a roof over his head, the whole drinking shouldn't come into it". Furthermore, he said that X did not see much of his drinking as X spent most of evenings in his room. He did not appear to consider that each time X came out he would see him with a can of beer. He also did not recognise that by being under the influence of alcohol that he was in any way emotionally or psychologically unavailable to X nor that X would be harmed by viewing the videos he posted to Facebook of his binge drinking. I note that the videos which were posted in 2020 still remain publicly available on the father's Facebook page.
Nonetheless, it was argued on behalf of the father that the father's excessive use of alcohol may act as a disincentive for X to drink. However, Ms H was clear in her evidence that seeing a parent drinking daily normalises drinking for children and sends the message to them that this is how to cope with life. She also said that whilst children may not recognise this as an issue at the time and indeed X did not raise it as an issue in the Family Report, exposure to a parent drinking and consequent lack of availability can have long-standing consequences for them. She referred to her work with adult children of alcoholics and how such children often mimic that behaviour not necessarily with alcohol but with another coping mechanisms, such illicit drugs, or other addictive behaviours.
Although the father has attended four sessions of drug and alcohol counselling it is evident that he has not gained anything of sufficient value from doing so. The only information he could recall was that it was suggested that he go for a walk instead of having a drink however he said because he had a bad back, he was unable to do so. Otherwise, he said he was told to try and drink less. In any event, it was clear from his evidence that he was not highly motivated to deal with the issue. Although he gave evidence that he would shortly be having a medical procedure, which he said would severely limit his drinking, this was not in his affidavit and there was no other evidence to corroborate this assertion. Furthermore, the father concedes that he relies on alcohol as an escape. It is therefore unclear how he plans to cope with day-to-day life if indeed he cannot drink and whether he will resort to other substances or other destructive habits to assist.
Lack of boundaries
The father's household consists of his partner Ms J and X. The father works from about 5.00am until about 6.00 pm. Although he gave evidence his work was slowing down, he has previously told the Family Report writer this was the case and there is nothing to corroborate this assertion. Ms J also works fulltime although little is known about her as she was not on affidavit. However, the father conceded that she did not do much for X, she was "just supportive" whatever this may mean. Otherwise, it appears that X is left to his own devices. In practical terms, X has access to his grandmother's bankcard for any significant purchases (noting he must ring her first) and otherwise relies upon his grandmother when he needs assistance such as a lift from the train station or to activities that he cannot otherwise get himself to. However, on a day-to-day basis X is essentially completely unsupervised. He gets himself to and from school and does not appear to have to account for his whereabouts. On at least one occasion he found his way to Town D where he appeared to be at a friend's house at midnight. The father did not know who he was staying with or what he was doing and when asked directly under cross-examination had no concerns for his welfare despite X being only 14 years old at the time. Furthermore, the father relied upon X telling him that he was not required at school that day, without confirming this with the school.
Indeed, it appears entirely to X's credit that he is been attending school at all. Although the mother says that X is sometimes late, has overdue homework and has missed important school deadlines. In addition, whilst the father said that X should go to school even if he did not want to because education was "important", I have doubts that the father would actually take any action if he refused. Indeed, when asked what he would do in such circumstances he responded with "well I couldn't drag him". This seemingly being the only strategy that came to mind.
Ms H described three parenting styles being: authoritarian, where a parent decides without consulting the child; authoritative where a parent listens to the child's needs and then makes the decision; and permissive, where a parent allows a child to do whatever they want. There is no doubt that the father falls into the latter category.
It is easy to envisage a situation where X, left unchecked, and potentially with a low sense of self, forms associations with similarly unsupervised friends who may be more prone to risky behaviours such as criminal activity or drug use. However, this aside, Ms H in her evidence made it clear that teenagers need boundaries to push against to provide them with a sense of security. Otherwise, they experience anxiety and may grow up with lifelong mental health problems.
Analysis of risk
Whilst the father's evidence is that X has not actually suffered any harm in his care, I do not accept that this is necessarily the case and, in any event, it is clear on Ms H evidence that this may not be apparent for many years.
In light of all of the above, I find that X is at unacceptable risk of harm in the father's care. However pursuant to Isles & Nelissen [2022] FedCFamC1A 97 I must also assess the magnitude of that risk and consider whether this risk can be ameliorated by other orders.
Given the father's chronic alcohol use and his lack of insight into his responsibility to provide boundaries for X, I find that X is at significant risk of psychological harm.
Furthermore, I find that given the father has failed to comply with previous court orders not to drink to excess or to undergo CDT testing that he is unlikely to comply with any injunctions. In addition, given his lack of insight I do not believe he is motivated to cut down his drinking to levels which would prevent harm to X. There is no evidence the father has reduced his drinking even though he has undergone drug and alcohol counselling, has been charged with drink driving and in cross examination admitted that he has suffered a permanent injury, as a result of falling through a chair whilst drinking. There is therefore no reason to believe that any orders this court makes would lead to a different result.
In terms of his parenting generally, the father has no concerns for X and sees no reason why X ought not be able to make his own decisions. Although Ms H recommended the father undergo a parenting course, he has not done so and given his failure to comply with other orders I can have no confidence he would do so if such a course was now ordered.
Accordingly, there is no order I can envisage that would mitigate the risks I have identified to X in the father's care.
However, although risk is one of the primary considerations, I must also take into consideration the additional considerations before determining what is in X's best interests.
THE ADDITIONAL CONSIDERATIONS
X's views
Ms H’s evidence was that X was adamant he wanted to live with his father although she was concerned that some of the language X used was the same as that used by the father. Nonetheless it is common ground that those views have remained consistent since that time save that the father now says that X does not wish to spend weekends with the mother, only a few hours.
However, the rationale behind X's views, either with respect to living with the father or not seeing the mother is somewhat vague. X reported in the Family Report that his father would be upset if he returned to live with his mother but had no other reason for wanting to stay with the father other than, "he wants that experience whilst he has the opportunity and that it is a male thing and about bonding with his father" at paragraph 73. Even the father says he does not know although he speculates that it may be because he wants to have "bonding time" with him. The mother is concerned that X wants to live with the father because he has no boundaries in the father's household, has untold freedom and the unlimited financial support of his grandmother who has put aside $100,000 in a trust fund for his benefit.
It is likely in my view that both are true. It would not be surprising that given X has spent little time with his father that he craves a connection with him and also enjoys the freedom that comes with being able to do whatever he wants and the financial support he gets from his grandmother. Even so Ms H did not believe that X's views were strongly held, and it is notable that the father conceded he had not mentioned wanting to live with him prior to mid-2022.
In regard to X's longing for his father, Ms H said in her evidence that craving will occur when you have a lack of something in your life that you are trying to fulfil but cannot. Ms H formed the impression that X spent little time with the father and having heard the evidence I am of the view the father is still largely absent from X's life either physically or when he is present, emotionally, because he is consuming alcohol.
Whilst the weight to be given to a child's views is likely to be greater as they grow older and mature, Ms H's evidence was that their brains are still developing and their capacity to make complex decisions and understand the impact of same continues into their early to mid-20s. The father's counsel questioned this evidence given 18-year-olds are permitted by law to make significant decisions such as getting married, joining the army, voting, driving, and consume alcohol. Ms H quite rightly said she did not make the laws and that she was merely quoting the research which in all likelihood post-dated those laws being made and which were not necessarily in their best interests. She gave another example of research which shows that teenagers are biologically designed to sleep until later in the morning and yet legally they are required to be at school at 9.00 am.
Ms H also cautioned against a parent blindly following the child's wishes as this may give the child the message that there is "no adult in charge" which may lead to long term anxiety.
X's relationship with his parents and other important persons in his life
Ms H's opinion was that the relationship between X and his mother had soured during COVID lockdown when the mother, being concerned about the vaccine, did not have X vaccinated which meant he could not attend school and was therefore isolated from friends. Despite this, at the time of the report, he described his mother at paragraph 67 "as always been there for him and that he could not think of anything he did not like about her". Likewise, he had nothing negative to say about the other adults in his life, including Ms J and the mother's partner, Mr K. To the parent's credit, X seems to have been largely, at least at the time of the Family Report, unaffected by the ongoing conflict between them.
Regarding X's relationship with the father, Ms H was unable to make direct observations as the father was reportedly unable to attend the assessment on the same date as X. However as already stated Ms H gained the impression that the father was still largely absent from X's life despite X being in his care. The father's own evidence seemed to corroborate this view, in that aside from eating some dinners together and doing the dishes, X spent most of his evenings and it seems a lot of his weekends in his room. The father said they sometimes went to the pool together, or he would "drag him out" to play remote control cars with his half-brother, C. However, the father also gave evidence that if C was not in his care, he would consume about 20 beers in a sitting, so presumably he began drinking earlier in the day and that if there was a catch up with mates on a Saturday, he would start drinking from about 2.00 pm.
Although the father says in his trial affidavit that he is actively involved in X's sporting activities, it was clear from the grandmother's evidence that it is she who is passionate about sports and ensuring that X participates in same. In her oral evidence she made no reference to the father attending any of these competitions. Indeed, it was the grandmother's evidence at paragraph 7 of her affidavit that she took X to all of his activities.
In terms of X's relationship with his grandmother, Ms H conceded that she was significant to X, but her view was that given X's age and that they already an established relationship, that they did not need the same amount of time together they would if he was younger. Furthermore, it appears that the main activity they engage in together is X's sports events and that the mother had also facilitated the grandmother taking X to sports when X was in her primary care.
Impact of change, including separation from a parent
X has now been living with his father for over 18 months however prior to that his mother had been his primary carer for all of his life. Although X's preference was to live with his father, there was no evidence to suggest he would be substantially impacted if he had to return to live with his mother. This is especially given his desire appears to be loosely based on wanting to bond with his father and yet in reality that does not appear to be occurring. In particular there is no evidence that X's mental health would deteriorate. Indeed, the father says that X had no mental health issues when living with the mother and only began seeking out counselling upon coming into his care.
Furthermore, Ms H's evidence was that X presented himself as having a lot of friends including friends he had retained in Town D. This was corroborated by evidence that X had returned there to spend time with them and in addition his girlfriend lives in Town D. There was no evidence to suggest X would have any difficulty assimilating back into his old school.
Whilst there is some risk that if orders are made which go against X's wishes he may feel resentment towards his mother and this may impact their relationship, it would appear that the foundation of their relationship has been strong and that it is likely to withstand this in the long term. I note that even though X is apparently refusing to go to the mother's care, he was recently prepared to meet her at her car when she was delivering items to him and gave her a hug and kiss.
The parents' ability to meet the needs of X, including his emotional and intellectual needs
The father did not take issue with the mother's ability to meet X's needs. Indeed, in the Family Report at paragraph 91 "[the father] had several times spoken of [the mother] as having provided excellent parenting to [X]".
I have already commented on the father's ability to meet X's emotional needs in terms of his alcohol use and lack of boundaries. It was also evident that he had no regard for the impact on X of being removed from his mother's primary care. It must be remembered that at this time the father had only seen X about five times in the 12 months prior, and on his own evidence had rarely texted or phoned him which he conceded was "his bad". The mother's description of the father as a unicorn being "a magical being that only appears once in a blue moon" is not entirely inaccurate.
Of significance in the father's evidence is that until mid-2022 X had not expressed a desire to live with him. The father says that he discussed it with X for the first time on a weekend he was in his care and that even though X had not given a clear reason for wanting to move and was not refusing to return to the mother or threatening to run away from her care, he decided to act on X's wishes without any discussions with the mother.
His evidence was simply, "what parent in their right mind would say no for the kid to live with them?". He also said if his other son C, who is only about eight years old wanted to live with him he could also.
Furthermore, little is known about the father's practical ability to meet X's day-to-day needs although he does not seem to have much involvement save for perhaps cooking dinner and washing dishes. Otherwise as already noted it is the grandmother who has attended to X's educational needs, including recently trying to source work experience on his behalf, takes him to activities, who organised to collect him when he wanted to return to the father and whom he calls when he needs to make purchases which are out of the ordinary.
I also have concerns about the father's ability to ensure X's intellectual needs are met, in particular to support him in his education. X is apparently at the crossroads of whether he will leave school at the end of year 10 and start a trade. The mother's view is that X would benefit from at least completing year 11 so as to give him more options going forward. What is clear on the evidence is that the father would be content for X to leave school at the end of year 10 and that so long as he is not failing any subjects, he believes that he is performing at a satisfactory level. Furthermore, Ms H gave evidence that the research shows that when parents engage in and are involved in school and the school community, children tend to do better. However, the father conceded he had had only attended the school on two occasions being when X was suspended for a short period and for X's subject selections. His evidence was that he had not otherwise attended parent-teacher interviews, spoken to teachers or knew their names. Furthermore, he was unable to use the school computer system to get information about X but had not arranged for any other adult such as the grandmother or his partner to have access to that system on his behalf. The father is essentially in the dark about what is happening at school.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents
One of the responsibilities of parenthood is to encourage a child's relationship with the other parent. In this regard the evidence was that although the father says he wants X to have a relationship with his mother, there is no evidence he has done anything to encourage this. Indeed, X is apparently now saying he does not want to go. In terms of X wanting to live with the mother, the father was clear, "I don't want him to go, he is my son and I enjoy having him here".
Orders that are least likely to lead to further proceedings
Part of the father's case is that if orders are made for X to return to the mother this will necessarily lead to enforcement proceedings because X will run away. However, there is no evidence other than the father's say so that X has threatened to run away. Ms H noted that although the parents said X was confident and had his own mind, he presented to her as a compliant boy. She also gave evidence that she had seen young people who are very strong in their views and that it is very difficult with those types of children to ensure they remain with a parent as they are likely to abscond. In her assessment X was not one of those children. Whilst the father described X's return to his home after the January weekend as "running away", what appears to have happened is that X contacted the grandmother who facilitated his return. It is unclear what would have happened if the grandmother told him he should return to his mother, as she did not do so. There is otherwise no evidence of X acting out or any suggestion of general defiance or disobedience.
DETERMINATION
Taking all of the above matters into consideration I find that the risk to X outweighs all of the additional considerations including his wishes. Accordingly, I propose to make orders that X immediately return to the care of his mother.
Although the mother gave evidence that she believed X's wishes at 16 should be complied with for all the aforementioned reasons I do not agree. These orders will last until he is 18 years old and I expect them to be complied with.
To ensure X understands this, I will make an order that the orders be explained to him by a Family Consultant who should be provided with a copy of this judgment prior to doing so. The Family Consultant shall be requested to explain to X that the court has taken his wishes into consideration but has determined that it is still best for him to live with his mother and that he is expected to remain living with his mother.
However, as I am concerned that the father will still empower X to act in accordance with his wishes, I am going to suspend X's time and contact with the father for a period of two months.
In regard to the grandmother, the evidence showed that she has not always acted in X's best interests. I have already noted she facilitated X's to return to the father after the January weekend, rather than encouraging him to go back to his mother. She also failed to notify the mother that X was not still in Town D, deeming it to be X's responsibility. She has also been complicit in encouraging X to keep secrets from the mother, such as that he had been provided with an iPad to communicate directly with her.
There is also a real question about the extent of her involvement in these proceedings. I do not accept that the grandmother was merely trying to be supportive of X but otherwise wanted to stay out of the matter. In this regard it is notable that upon X returning from Town D after the January weekend, prior to notifying the father, the grandmother went straight to her lawyers (who are also the father's lawyers). The solicitors then wrote to the mother that day seemingly on behalf of the father. The father was clear in his evidence that he knew nothing about that letter.
The evidence also suggests that the grandmother had substantial input into the father's earlier affidavit material which was notably longer and more detailed than his trial affidavit. Indeed, the father conceded that he had no knowledge of the contents of several paragraphs in his earlier affidavit material which it appeared related to the grandmother and not himself. These included, paragraph 26 of his affidavit filed 11 July 2022 which concerned X having mental issues, paragraph 50 of the affidavit filed 13 September 2022 which concerned the provision of an iPad and paragraph 9 of the same affidavit which detailed X's attendance upon a psychologist. This it seems would explain why those earlier affidavits were extensive whereas his trial affidavit was a mere 10 paragraphs and could easily have fitted on one page. I have formed the view having seen the father give evidence that the father's trial affidavit was a true reflection of the father's evidence as it was brief and contained very little detail about X and his day-to-day life. As a result, I was also left with the distinct impression that the grandmother was heavily invested in X and the outcome of these proceedings and had not always acted in a manner which promoted his relationship with his mother. However, injunctions against third parties can only made in limited circumstances and the grandmother has not been put on notice with respect to same.
Otherwise, I will make the remainder of the orders in terms of those proposed by the mother in her outline of case save for order 16(b) which I propose to amend to say “consuming alcohol to excess (being to a Blood Alcohol Content of greater than 0.05 %) for twenty-four hours before or during any period [X] is in their care”. It is not realistic to expect the father to be able to cease drinking to excess at all other times and I accept that if he chooses to do so that really is a matter for him. Otherwise, the father was given an opportunity to file submissions addressing any of the orders sought by the mother with which he did not agree. However, although the court received some correspondence proposing variations, it contained no submissions save that the order injuncting the parties from discussing the details of these proceedings or any matter arising from them with X was no longer necessary as the litigation was at an end. I do not accept this submission. The parties may be tempted for years to come to discuss these proceedings or matters arising from them with X. Accordingly, that injunction will also be included in the orders.
Otherwise, for all the aforementioned reasons I make the orders as set out at the commencement of this judgment.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 5 March 2024
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