Ellis & Hawkins
[2024] FedCFamC2F 1617
•15 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ellis & Hawkins [2024] FedCFamC2F 1617
File number(s): HBC 893 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 15 November 2024 Catchwords: FAMILY LAW – Parenting – whether the child lives with the mother or father – 13 year old child with entrenched negative views of the father largely influenced by the mother – balancing of risks of harm – consideration of 60CC factors prior to amendment of Family Law Act – child to remain living with mother – child to spend time with father in accordance with her wishes Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Danton & Lancaster [2024] FedCFamC2F 1045
Goode & Goode [2006] FamCA 1346
Harrison & Woollard (1995) 18 Fam LR 788
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97.
MRR & GR [2010] HCA 4
R & R Children's Wishes [2000] FamCA 43
Slater & Light [2011] FamCAFC 1
Walstrom & Dupont [2024] FedCFamC2F 274
Division: Division 2 Family Law Number of paragraphs: 83 Date of hearing: 24 & 26 April 2024 and 12 & 13 November 2024 Place: Hobart Counsel for the Applicant: Mr Verney SC Solicitor for the Applicant: Tasmanian Aboriginal Legal Service Counsel for the Respondent: Mr Trezise Solicitor for the Respondent: Murdoch Clarke Counsel for the Independent Children's Lawyer: Ms Ryan The Independent Children's Lawyer: Ms Behrens, Wallace, Wilkinson & Webster ORDERS
HBC 893 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ELLIS
Applicant
AND: MS HAWKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
15 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders in respect to X born in 2011 be and are hereby discharged.
2.The Applicant MR ELLIS ("the Father") and the Respondent MS HAWKINS ("the Mother") (collectively, “the parties”) have equal shared parental responsibility for X AND FOR THIS PURPOSE:
(a)“Major long-term issues” has the meaning provided in s 4 of the Family Law Act 1975 (Cth) and includes X’s education, health, extra-curricular and recreational activities, and changes to her living arrangements;
(b)If the Mother intends to make a major long-term decision in relation to X she must provide the Father 28 days written notice of the intended decision (“the Notice”);
(c)The Father on receiving the Notice will consider it and provide their views about to the Mother about the intended decision within 14 days of receiving the Notice;
(d)Upon receipt of the Father’s views, the Mother will consider same and inform the Father of what they consider to be in the best interests of X and the decision that ought be made;
(e)If the parties are in agreement about the intended decision they will implement that agreement; and
(f)If the parties are in disagreement about the intended decision they will participate in family dispute resolution unless exempted from doing so.
3.X live with the Mother.
4.X is at liberty to communicate by phone or other electronic means with the Father at reasonable times of the day and with reasonable frequency on condition that the communication is initiated by X and ends at X's request.
5.On X's birthday and for Christmas, Easter and Father's Day, the Father may send a card and/or modest gift for X and the following will apply in respect of this:
(a)Four (4) weeks from the date of this Order, the Mother will notify the Father in writing of her postal address.
(b)The Father may send the card/gift to the Mother's postal address and within seven (7) days of its arrival at her postal address, the Mother will ensure the card and/or gift is passed onto X.
(c)The Mother will facilitate a reply from X in accordance with X's wishes.
(d)Within fourteen (14) days of the card/gift arriving at the Mother's postal address, the Mother will notify the Father in writing that she has passed on his card/gift to X.
(e)The parties will notify each other in writing of any change to their postal address within seven (7) days of any such change.
6.X will spend time with the Father and/or the extended paternal family in accordance with her express wishes, and the Mother must facilitate this whether X’s wish is communicated to her by X, her school counsellor or psychologist.
7.In the event that X expresses an interest in or has opportunity to engage in community activities associated with her Aboriginal culture outside of her school, the Mother must facilitate such engagement including if the paternal family is involved.
8.The Father is entitled to receive information from X’s school and the Mother must within seven (7) days of these Orders if required by the school provide an authority to X’s school, to forward such information to the Father at his cost, including the following:
(a)X's school reports;
(b)Examples of X's school work, such as written work;
(c)Details regarding X's school achievements and copies of certificates;
(d)A copy of X's annual school photograph.
9.Within 7 days of these Orders, the Mother must provide any authority required to enable the Father to access at his cost information from X's medical, psychological and allied health services.
10.In the event of a change in medical, psychological and allied health services accessed by X, the Mother must within a reasonable time of change:
(a)Notify the Father in writing of the change; and
(b)Authorise them to provide at the Father's cost any information requested by him.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, the Mother and Mr B are restrained by injunction from discussing with X the Court’s Orders, Reasons for Judgment or matters arising from these proceedings.
12.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, the Mother and Mr B are restrained by injunction from speaking negatively of the Father or Ms E to or in the presence of X or being critical, belittling or derogatory of them.
13.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, unless expressly invited by the Mother or X in writing to do so, the Father will not approach X, at her school or her home.
14.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, the parties will use civil and respectful language when communicating with each other and they are each restrained from making any harassing, abusive, negative, critical, belittling or derogatory comments to each other or in relation to the other party or any member of their family to X or in the presence or hearing range of X, and the parties will remove X from the presence of any third party doing so.
15.All notices and communication between the parties will be via the "App Close" parenting app and will be strictly limited to:
(a)Matters touching on parental responsibility;
(b)The health, welfare or development of X;
(c)Arrangements for the Father in the event X has expressed a wish to spend time or communicate with him; and
(d)Keeping each other informed of their telephone numbers and addresses.
16.The Mother will facilitate X's prompt attendance at appointments with her treating psychologist with such frequency and for such future period of time as recommended by X's psychologist.
17.The parties are hereby at liberty to provide a copy of these Orders to the school at which X is enrolled, X's treating doctors, psychologists and allied health providers.
18.Within thirty (30) days of these Orders, the Mother will complete and sign all relevant documents for an Australian Passport for X to be issued and pay the associated fees and for this purpose the Mother will obtain the necessary forms, complete them and then forward them to the Father for his completion and signature.
19.Within thirty (30) days of receiving the documents referred to in Order 18, the Father is to complete his part, sign the forms and return them to the Mother. Should the Father refuse or neglect to complete, sign and return documents pertaining to the Child's passport application, then a Registrar of the Hobart Registry of the Federal Circuit and Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 (Cth), to sign or execute such a document on behalf of the Father upon lodgement of such document and the filing of an affidavit of the Mother as to the said neglect or refusal.
20.Upon obtaining a valid passport for X, the Mother will hold the passport and the following will apply:
(a)Should X wish to travel overseas with him in the future, the Mother must provide the passport to the Father at least 30 days prior to the date of international travel; and
(b)The Father must return the passport to the Mother within 14 days of return to Australia.
21.Dr C, the Single Expert, assist the Court in informing X of the Court Orders and answering any questions X may have.
22.All extant applications are otherwise dismissed.
THE COURT NOTES THAT:
A.Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if that officer holds reasonable belief that the Orders for personal protection in Orders 11, 12, 13 and 14 have been breached.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
The ultimate and predominant issue in these proceedings is whether there should be a change in primary residence for the child of the parties, X, who is currently 13 years of age.
The parenting proceedings proceeded to a defended hearing that commenced on 24 April 2024. The parties agreed that the Court should hear evidence from the parties’ family therapist, Dr D, and from the single expert, Dr C, first. After hearing Dr C’s evidence on 26 April 2024, the parties agreed to participate in a Judicial Settlement Conference assisted by Dr C. The parties also confirmed that if the Judicial Settlement Conference was unsuccessful, they remained in agreement that I should complete the hearing and determine what final parenting orders should be made.
Dr C participated in private discussions with the parties to which I was not privy at the Judicial Settlement Conference on 5 June 2024. This was deliberate because of the prospect that if the proceedings did not settle, I would need to conclude the hearing. During the Judicial Settlement Conference, my involvement was predominantly to identify issues and facilitate without prejudice discussions between the parties and Dr C.
At the Judicial Settlement Conference the parties reached agreement about a process to be undertaken with the involvement of Dr C aimed at repairing X's relationship with the father. I made Interim Orders by consent on 6 June 2024 to give effect to the agreed process, which is also outlined in the report of Dr C dated 28 October 2023.
On the resumption of the defended hearing on 12 November 2024, I was informed that the aim of the agreed Interim Orders had not been achieved and the parties sought to finish the defended hearing before me. None of the evidence given by Dr C on 26 April 2024 or 13 November 2024 was challenged.
CONCLUSION OF THE DEFENDED HEARING
Various affidavits and their annexures were relied upon by the parties and read into evidence by the Court, including:
(a)Two affidavits of the mother filed 8 April 2024 and 7 November 2024, with the earlier affidavit being subject to Orders that some parts of it be struck out;[1]
(b)An affidavit of Mr B, the mother's fiancée, filed 8 April 2024;
(c)Two affidavits of the father filed 27 March 2024 and 5 November 2024;
(d)An affidavit of Ms E, the father's wife, filed 28 March 2024; and
(e)An affidavit of Ms F, the maternal grandmother, filed 8 April 2024.
[1] Order 7 of the Orders made 24 April 2024, striking out [94] and annexure F to the affidavit.
Affidavits from the expert witnesses, Dr D and Dr C, which annexed reports dated 19 April 2024, 4 August 2023 and 28 October 2024 were received as exhibits and marked by the Court as Exhibits ICL1, ICL3 and ICL7 respectively.
Other documents marked by the Court as exhibits include:
(a)Exhibit ICL2 – File note made by the Independent Children's Lawyer, Ms Kate Behrens, dated 24 April 2024;
(b)Exhibit ICL4 – Section 69ZW response from Tasmania Police dated 29 November 2022;
(c)Exhibit ICL5 – Section 69ZW response from Child Safety Services dated 17 January 2023;
(d)Exhibit ICL6 – Child Impact Report of Court Child Expert Ms G dated 25 January 2023;
(e)Exhibit A1 – Email from Dr D to the father sent 4 April 2024;
(f)Exhibit A2 – Redacted letter from Murdoch Clarke to all parties dated 31 July 2024;
(g)Exhibit A3 – H Psychology notes of Ms J dated between 29 July 2024 and 4 November 2024;
(h)Exhibits A4, A5 and A6 – Three bundles of text messages between X and the mother dated 13 July, 17 July and 27 July 2024.
(i)Exhibit A7 – Bundle of text messages between X and Mr B dated 17 July 2024; and
(j)Exhibit R1 – Letter from Dr K to Dr L dated 22 November 2023.
PARENTING PRINCIPLES
The defended hearing in these proceedings commenced prior to 6 May 2024 and accordingly, the provisions of the Family Law Act 1975 (Cth) (“the Act”) prior to commencement of the Family Law Amendment Act 2023 (Cth) apply to determine what parenting orders should be made. All references to the Act refer to its provisions as they were prior to 6 May 2024.
Pursuant to those provisions, the paramountcy principle requires the Court to make orders that are in the best interests of a child.[2] Express direction is provided in s 60B(1) of the Act that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interests. The Court is to inform itself of the child’s best interests by the considerations in ss 60CC(2) and (3) of the Act.
[2] Section 60CA of the Act.
Section 60CC(2) of the Act requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many factors in s 60CC(3) of the Act, relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant factors.[3]
[3] See Aldridge & Keaton [2009] FamCAFC 229 and Slater & Light [2011] FamCAFC 1.
The Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[4] This presumption accords with the objective referred to in s 60B(1) of the Act. The meaning of parental responsibility is expressly, but not exhaustively, provided for in the Act.[5]
[4] Section 61DA(1) to 61DA(4) of the Act.
[5] Sections 61B and 65DAC of the Act.
Except in the case of consent orders, if the Court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interests and if practicable, make such an order.[6]
[6] Section 65DAA of the Act.
If not persuaded to make an equal spend time with order, the Court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of “substantial and significant time” is provided for in s 65DAA(3) of the Act as it was.
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in s 65DAA of the Act are to be applied and I have had regard to that authority. I am also mindful of the required decision-making pathway established in Goode & Goode [2006] FamCA 1346.
The approach to be taken in applying s 60CC(2) of the Act as it was, is discussed in detail in the first instance and appeal judgments in Isles & Nelissen[7] in the context of the assessment of risk where the mother of a child alleged that the father had sexually abused the child. The principles stated in my view are applicable to assessment of the nature and extent of risks more broadly, including when assessing the risks of harm to the child attaching to the respective proposed parenting orders.
[7] [2021] FedCFamC1F 295; and [2022] FedCFamC1A 97.
EVIDENCE BEFORE THE COURT
In their evidence under cross-examination, both parents admitted to a greater or lesser extent that they have contributed to the breakdown of X's relationship with her father.
During the resumed hearing on 12 and 13 November 2024, I had the benefit of hearing the parties' evidence under cross-examination and also that of their partners. I was able to observe and assess the veracity of their evidence and how they answered highly relevant questions about their interactions with X or one another. This was very instructive and useful in making findings of fact about facts and issues in dispute.
As submitted by all counsel, the father's wife, Ms E, was an impressive witness. Her evidence was thoughtful, child focused and demonstrated good insight into the father's strengths and limitations with regard to interpersonal relationships. I accept all of her evidence.
The father was honest and did genuinely take responsibility for his contribution to the “turning point event” when X began refusing to spend time with him after early 2021. His evidence was consistent and he had a good recall of the events over the course of the parents dispute after early 2021. Despite this, based on the contents of his second affidavit[8] and my observations about his style of communication, I suspect he has not always been able to communicate with X or the mother in a manner that diminishes their angst. In arriving at this view, I also accept the evidence of Dr C during cross-examination that the father is a more concrete thinker and more likely to demonstrate some rigidity in parenting and communication. These traits are likely to be a mismatch with X and the personality and attributes attributed to her.
[8] Filed 5 November 2024.
I found the mother to be a less satisfactory witness. She was unable to recall events at times, was sometimes reluctant to make proper concessions and presented as defensive or selective about her evidence. It was not challenged that the mother experiences mental health difficulties, but I am not satisfied that they explain the shortcomings in her evidence in the witness box. Despite her admitting to Dr C and X that she was regretful for allowing X to have too much control of the time she spent with the father, the mother has not acknowledged that she was wrong to tell X about her allegations and experiences of the father during their relationship. Further, she has been unable or unwilling to change her pattern of not complying with Court Orders and was defiant that she would not force X to see her father, indicating that she still enables X to control whether she has a relationship with her father.
Mr B also had a poor recollection of events which he should have been able to recall, particularly given his profession and likely skill set. He was reluctant at times to make proper concessions and was inconsistent. For example, he initially stated he was not involved much in parenting X early in his relationship with the mother, while other evidence he gave plainly demonstrated that he was very much involved and he admitted X knew he was pleased that she referred to him as “dad” within about a year of his relationship with the mother commencing. In my view his evidence demonstrated that he had adopted the mother's perspective about the parenting dispute and aided her, rather than considering objective alternatives.
FINDINGS OF FACT
The parties commenced their relationship when the mother was around 13 years old and the father around 16 years old. The mother gave birth to X at a very young age. X was born in 2011. The parents were likely immature and inexperienced in relationships and parenting.
X is intelligent, strong willed, caring and doing well at school and in sport. She will be 14 years of age in 2025.
X is a child of Aboriginal descent and culture based on her father's parentage.
The parents were involved in earlier parenting proceedings in this court and final parenting orders were made by consent on 30 November 2015 which provided for equal shared parental responsibility, that X live with the mother and spend four nights a fortnight with the father.
Although the mother has made serious allegations of family violence against the father said to have been perpetrated during their relationship,[9] no findings have ever been made about the veracity of those allegations. Both parties agreed that for the purpose of these proceedings, it was unnecessary to make findings about historical family violence.
[9] See, eg, Exhibit ICL4, section 69ZW report of Tasmania Police and the mother’s affidavit filed 8 April 2024 at [14].
Despite the agreement of the parties recorded above, it is worth noting the unchallenged evidence that X would not have any memory of the parents living together and so I find that she does not have a lived experience of witnessing family violence between her parents when they were still in a relationship.
I find that the father has been convicted of two counts of common assault but on the information before the Court, they do not appear to relate to assaults of the mother and occurred in his youth.[10]
[10] Exhibit ICL4, section 69ZW report of Tasmania Police.
I find that the father has not committed any violence for years and does not pose a realistic threat to X or the mother. This finding is consistent with the mother agreeing to Final Parenting Orders in 2015 for the father to spend regular fortnightly time with X.
After Final Orders were made in November 2015, the mother withheld X from the father's care without justification on various occasions when he was to spend time with X. She has failed to consistently demonstrate capacity to facilitate the father's time with X or promote her relationship with the father.
Despite withholding X prior to late 2019, from about 2020 to early 2021, X regularly spent time with the father and the relationship between the parents was at its best. This period coincided with the mother's family unit moving from Suburb M to Suburb N.
In early 2021, the father inappropriately involved X in a discussion about increasing the time she should spend with his family, including raising the topic when he arrived at the mother’s home to collect X.
The mother, who was pregnant at the time and had had earlier discussions with Ms E about this, reacted very emotionally, became angry and upset, thereby contributing to the escalation of X being involved in a discussion about parenting that should have been between the parents alone.
The mother did not conceal her negative views about the father from X and demonstrated anger and distress in her presence. Accepting Dr C’s evidence, I find that this has led to X becoming aligned to the mother’s negative experience and view of the father.
I do not accept that the father poses a risk to X’s safety, but the mother has portrayed that to be so, even as recently as July 2024 based on her messaging with X.[11] I find that it has been contrary to X’s overall welfare for the mother to have consciously or subconsciously continued to convey a false view of the father to X.
[11] Exhibits A4, A5 and A6 and Dr C opinion about the messages.
The mother admitted and I find that withholding occurred in the past because she would not force X to spend time with the father when she was upset or expressed a wish not to go. She also admitted that she would not force X to spend time with the father in the future if it was contrary to her wishes.
Both parents to a lesser or greater extent have spoken to X about the parenting proceedings and inappropriately involved her in their dispute, which has caused distrust and blame by X of the father, likely because she has aligned herself with her mother as her primary carer.
X has consistently expressed views that she does not wish to spend time with her father from when she reported such to Dr K and Court Child Expert Ms G.[12] I find this has likely arisen because of X being inculcated in her mother and Mr B’s views of the father and X’s awareness of their preference that the father not be part of her life.
[12] Exhibit R1 and Exhibit ICL6, Child Impact Report of CCE Mr G dated 25 January 2023.
I find that because of X's age, maturity and character, it will be impossible to cause her to change her view of the father in the foreseeable future regardless of what parenting orders are made. Consequently, I find it highly likely and almost certain that she would not remain in the father's care if an order were made that she live with him. I rely on the collective evidence of Dr C in arriving at this view.
I find that X has been indirectly enabled by the mother and Mr B to abscond during the three visits in July 2024. Accepting the views of Dr C, I find that it is highly likely this behaviour will continue in the future.
I find that X's adverse views of the father have been directly influenced by the mother and Mr B, the latter of which has prioritised supporting the mother's position over being an objective influence on X.
I do not accept that the mother or Mr B have done what is reasonably expected to ensure compliance with the Court Orders for X to spend time with the father. Instead, they have made statements that have reinforced false beliefs to X about the father. I do not find that this has been done deliberately in more recent times, but this has been the effect of their overall conduct.
I find that the mother is limited in her capacity to provide for X's emotional wellbeing because she has improperly confused her own emotions with what is best for X's emotional wellbeing and demonstrated limited ability to separate the two. Although I accept that she is undergoing psychological treatment to assist with this.
The mother has failed to comply with the Court Orders for equal shared parental responsibility and made long-term decisions about X alone,[13] and misrepresented the father's views about some decisions, for example on sporting activities and holidays.
[13] For example enrolment at O School.
The mother and her partner Mr B have controlled all aspects of parenting of X, rather than co‑parent with the father as required by the Final Orders made by consent in 2015.
X will have a significantly limited capacity to enjoy her Aboriginal culture and heritage while in the mother's care and there is no evidence that the mother or Mr B have promoted and facilitated her participating in activities with the paternal family or other events held in the Aboriginal community.
FINDINGS BASED ON EXPERT OPINION
Based on Dr C’s highly qualified views as contained in Exhibit ICL3, Exhibit ICL7 and oral evidence given at the defended hearing, I find as follows:
(a)X’s views of her father have been strongly influenced by her acute awareness of the mother and the father’s relationship and of the Court proceedings, and a need to preserve her relationship with her mother and protect and care for her.
(b)That the father has the parenting capacity to care for and meet X’s needs but his opportunity to parent her consistently has been significantly affected by the co-parenting relationship.
(c)That X experiences a degree of anxiety associated with the dispute about what time she should spend with the father.
(d)Both parties have inappropriately involved X in disputes about adult issues and parenting arrangements for her, including the discussions in early 2021.
(e)The mother has inappropriately informed X about her experience of the father as a perpetrator of family violence towards her, regardless of whether the allegations made are true.
(f)There is no evidence or data which informs the Court of the success with older children (particularly adolescent children) of a moratorium on contact with a primary carer where a relationship with the other parent has broken down, not been facilitated or enabled. The moratorium approach is not generally taken with adolescents because it is unlikely to be successful by most experts.
(g)That if X is continually exposed to adult conflicts and concerns, it is unlikely that there will ever be a significant shift in her views.
After reaching agreement to adopt a further therapeutic approach as recommended by Dr C and agreeing Interim Orders on 6 June 2024, I find that:
(a)The mother mostly genuinely tried to convey to X that she agreed that she should have a relationship with the father;
(b)The mother contributed positively by taking responsibility for contributing to the breakdown of X's relationship with the father, by acknowledging that she had given X too much control in whether she would spend time with the father and involving her in discussions about spend time arrangements, but did not acknowledge that she had inappropriately discussed with X her experience of the father during their relationship.
(c)The father also attempted to take responsibility for his behaviour and contribution to the breakdown and demonstrated some insight by validating her views and suggesting it may be helpful for X to feel more in control, but X reported feeling questioned by her father but Dr C stated it was important to note that the reports by X were different to those of the father of the visits.
(d)Mr B's messaging during the failed visits in July 2024 also reinforced the false belief that the father was not safe and this contributed to the failed visits.
(e)The father appears to have tried to validate X's views about past events but likely failed to fully achieve this and the end result was that X's behaviour (I infer by running) placed her at risk. Those risks include detrimental mental health impacts, disordered eating habits, potential physical harm of being at large in the community and mental health impacts due to a worsening of her relationship with the father.
(f)X has continued to express firm views that she does not want to see her father.
(g)X had put herself at physical risk by running off from the visits and is highly likely to do so in the future. That in view of her perception of the father, her age and capacity, X will not remain in the father's presence and will keep "running" and there is risk of emotional harm due to her level of distress due to her reports to Ms J if visits continue.
(h)X has does not believe that the mother agrees to this course and believes the father is at fault alone, including for continuing the court proceedings.
(i)The mother and Mr B have not persisted in complying with the interim orders long enough and this has sent the wrong message to X, especially when it was to be reasonably expected that X would “run” during the visits.
EVALUATION AND FINDINGS ABOUT OF RELEVANT CONSIDERATIONS
Section 60CC considerations
Based on the findings of the Court, although the father does not pose a risk of physical or emotional harm to X if she lives or spends time with him, X has a false belief about this. The false belief itself if challenged or ignored will expose X to risk of physical harm involved in absconding from the father’s care and significant emotional distress, which has, according to Ms J, negatively impacted on her usual functioning.[14] As I accept the evidence of Dr C, the likelihood of these risks eventuating is high and significant should an order be made for X to live with or spend any time with the father.
[14] Exhibit A3, H Psychology notes.
The father previously had a meaningful relationship with X, which has now broken down completely due to contributions by both parents, but more so because of the contributions of the mother and Mr B. For example by:
(a)The mother overreacting to the discussion in early 2021 about X spending more time with the father. I do not accept her version of the events at this time and prefer the father's evidence for reasons given earlier and because even Mr B recognised during cross-examination that the mother tended to react disproportionately to objective levels of stressors;
(b)Both the mother and Mr B misrepresenting to X the father's position about activities in which she could participate;
(c)The mother informing X about her experience of the father and the impact of that on her;
(d)Both the mother and Mr B allowing X to choose when she spent time with the father rather than ensuring she knew they want her to go and that he is not an unsafe person;
(e)Failing to comply with Court Orders and unilaterally making decisions for X;
(f)Informing X about the legal dispute and proceedings before they commenced and since; and
(g)Informing X that the father was only pursuing the legal proceedings because he did not have to pay legal costs.[15]
[15] Unchallenged and accepted evidence from Ms E’s oral evidence.
I do not discount X’s own reports about grievances concerning her father,[16] but they reflect her dissatisfaction about differences in her parents style of care and it appears she has to a degree formed a preference about not spending time with the father. This is a short-sighted view which ignores the objective and well-known risks referred to by Dr C of having a fragmented relationship with a functional parent.
[16] See, eg, affidavit of Mr Ellis filed 27 March 2024 at annexure MRE-7.
X has false but strong views that her father alone is to blame for the conflict in early 2021 and that he is a bad and unsafe person. For the reasons already stated, I find her views have become entrenched. She is adamant that she will not spend time with her father even if the parents agree that should occur. I am satisfied that she will not comply with Court orders if they are contrary to her wishes.
The father and Ms Ellis are loving and capable parents. I have no concerns about their capacity to provide for X's physical and emotional needs, particularly because I find that the father has developed good insight into his negative contributions to the deterioration of his relationship with X. In addition, he has improved his communication and will continue to seek treatment to manage his mental health.
The father has endeavoured to take every opportunity to participate in decision making for X, and spend time and communicate with her. The mother and Mr B have impeded the father's participation in this regard and enabled X to control if and when she spends time or communicates with the father.
No submissions were made about either parent's fulfillment of obligations to maintain X and so I reasonably infer that they agree that the consideration is not particularly material to the determination to be made.
The effect of X’s current and likely future estrangement or alienation from the father was well-described by Dr C whose views I accept. It is inevitable that at some time in the future X will suffer some of several detriments to her well-being and mental health, including increased incidence of anxiety and mood disorders, difficulties with future attachments and relationships and difficulties with self-identity. I consider she will be better equipped to process and manage these detriments at an older age and likely in adulthood.
If the Court immediately ordered that X spend any time with or live with the father, it is almost certain she will suffer physical risk and emotional detriment due to absconding repeatedly. Also, she is likely to experience emotional harm from separation from the mother and Mr B. Accepting Dr C views, this will result in significant harm.
Based on my findings elsewhere, the mother and Mr B have a severely limited capacity to support, facilitate and promote a relationship between X and the father. I consider it more likely that the father would support X’s relationship with the mother, but this has not been demonstrated because X has not communicated or spent time with the father for some years.
The mother and Mr B have not identified any means of promoting and ensuring that X enjoys her Aboriginal culture and connections with the paternal family. Rather, they rely on X's school to ensure this right is experienced, which is also an example of alienating behaviour. They could have facilitated X participating in Aboriginal events in the community or with the paternal grandmother but have not tried to do so.
I am not able to place any particular weight on allegations of family violence as a factor to be considered relevant to informing the orders to be made for two reasons. First, the parties agreed that historical facts prior to 2021 would not be particularly relevant and secondly, the parties competing accounts of family violence have not been tested. The fact that Tasmania Police made a police family violence order in 2013 does not of itself prove the veracity of the historical allegations by the mother of serious physical assaults and they were not the subject of cross‑examination or admitted by the father. Regardless of the truth of the mother’s allegations, the fact remains that she consented to orders for the father to spend significant time with the child and from this I infer that he does not pose an unacceptable risk to the child and there is no evidence of potential family violence towards the mother since 2013.
In this case I consider that the preference for making orders that would least likely lead to institution of further proceedings should be given great weight due to the history of the dispute since 2021, the fact that X was subject to previous parenting orders in 2015 and has been acutely aware of the high level of conflict between the parents for at least three years which is likely to further entrench adverse views about the father.
I find that X’s physical needs and most of her immediate emotional needs are being met by the mother and Mr B. I accept the submissions of counsel for the mother that by most objective indicators of wellbeing such as school performance, social and sporting engagement, X is progressing well and is likely to continue to be even more stable once her views are respected, albeit that those views are ill-conceived.
No express submissions were made about whether I should find that the mother and Mr B have alienated X from her father. I accept Dr C’s views that most criteria for diagnosis of alienation were satisfied but that diagnosis depended heavily on whether there is a finding of absence of family violence. I have not been required to make a finding about family violence, but regardless of the label attributed to the conduct of the mother and Mr B, that conduct has caused adverse influence and interference with X’s relationship with the father.
CLOSING SUBMISSIONS – THE CHILD’S WISHES
Counsel for the Independent Children’s Lawyer referred me to well-known authority about how the wishes of a child are to be assessed and weighed in arriving at the ultimate conclusion of their best interests.[17] Those principles are uncontroversial and well understood but for ease of comprehension I further distil them as follows:
(a)Trial judges must give proper weight to children's wishes but may depart from those wishes in appropriate circumstances.
(b)A child’s wishes are not to be simply treated as a factor in the determination of the child’s best interests without giving them further significance.
(c)If a trial judge makes orders contrary to a child’s validly held and expressed wishes, good reason should be given for doing so.
(d)It is not necessary to determine that the wishes of a child are unsound, founded on improper considerations or influenced by others in order to make orders contrary to their wishes. Such factors are relevant but are not the only relevant considerations and the weight to be given to a child’s wish will vary from case to case given the circumstances.
(e)It is undesirable and impossible to catalogue or confine the factors that inform the weight to be given to a child’s wishes when assessing what is in their best interest. Instead it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
(f)The reference to the “validity” of the child’s wishes[18] is not confined to considering if the child's wishes were unsound, founded on improper considerations or influenced by others. It is a reference to the overall validity of such wishes against the factual background found by the trial judge in the case in question.
[17] R & R Children's Wishes [2000] FamCA 43
[18] In Harrison & Woollard (1995) 18 Fam LR 788
In this matter, I have found the views of the child to be unsound. Although that may justify departing from them in some cases, I have been compelled to give X’s views considerable weight because they are entrenched, unlikely to change and she will act autonomously to give practical effect to her wishes, resulting in the harm described elsewhere in these reasons.
All counsel referred the Court to various authorities in an attempt to assist in the making of the required determinations in this case. The effect of their submissions was to suggest that I take a similar approach to the judges in those cases. As stated during the hearing, it is not always useful to seek to compare a given case to other decided cases because invariably they are not the same circumstances and the discretionary assessment of considerations required inevitably means that reasonable minds may differ.
I have had the benefit of hearing the evidence in this case and have made findings. Those findings are inevitably in some aspect distinguishable from the authorities cited by each counsel in support of their own cases. For example in Walstrom & Dupont [2024] FedCFamC2F 274, the judge made adverse findings against the father about capacity to care for the children which reliably explained their resistance in spending time with the father. In Danton & Lancaster [2024] FedCFamC2F 1045, there was no evidence that the child was absconding and placing himself at risk and the expert had opined that the child would manage absence from his mother and the presence of the father. I do not intend to address each authority and distinguish them as it unnecessary to do so for the reasons stated above.
DETERMINATION
The determination to be made in this case is one that I regret having to make because it will likely sever X’s relationship with the father into the foreseeable future and quite possibly permanently. This is tragic because they had a meaningful relationship which would have been of mutual benefit to them.
With great regret and a sense of rewarding egregious behaviour on the part of the mother and Mr B, I decline to make final parenting orders as sought by the father because in assessing all considerations pursuant to s 60CC of the Act to inform what is in the best interests of X, in my assessment the father’s proposal for a change in primary residence will likely do more harm to X than maintaining the current status.
I have no doubt that X could and should have a meaningful relationship with her father and his extended family because I am satisfied that he does not pose a safety risk to her and is a capable parent. X would also benefit from engaging with her step-sibling, half-siblings, step-mother and the wider extended parental family. However, because of X’s age, maturity, adolescent traits, entrenched views and her strong-willed and resourceful behaviours, she will continue to hold false views of the father and rebel against any order that she live with or spend any time with him. As Dr C stated in her evidence, the recent change in attitude by the mother and Mr B and improvements in the father’s insight and communication have proven too little too late. X does not accept that the mother's current promotion of her time with the father is real or genuine.
There is no evidence to satisfy the Court on the balance of probabilities that X would tolerate a change in primary care and instead all evidence is to the contrary. The effect of Dr C’s evidence is that there is only a very remote possibility that X would not abscond from the father’s care and I consider it almost certain that she would because:
·She flatly refuses to communicate with the father;
·There have now been three failed therapeutic approaches,[19] and X’s views have not softened towards the father at all;
·X refuses to accept that the mother agrees that she should spend time with the father;
·X believes that the father is acting controllingly; and
·She has stated that she will continue to abscond or run.
[19] With Dr K, Dr D and Dr C.
There is no persuasive evidence upon which I could make the order sought by the father and as observed during discussion with his counsel, I would be sanctioning an experiment that attaches probable physical and emotional harm to X.
The father presented as desperate to do everything possible to salvage his relationship with his daughter. In that desperation I consider he has a well-intentioned but unrealistic view of whether his proposed orders will lead to a repair of their relationship. But, I reject the submission of counsel for the Independent Children’s Lawyer that the father lacked insight, did not accept responsibility for his contribution to the breakdown of his relationship with X or was entirely naïve about the risks of harm presented by his proposal.
Rather, the father is steadfast in wanting to exhaust every possible means of repairing his relationship with his daughter and I do not agree that this is for his own benefit rather than X's. That is because I accept Dr C's evidence that it is inevitable that the estrangement from the father will lead to emotional or psychological difficulties for X later in her life. It may also lead to severing of her relationship with the mother. This is harm that any caring and loving parent would want his child to avoid.
Contrary to the invitation by counsel for the mother and Independent Children’s Lawyer, I do not criticise the father for his evidence or the approach he has taken in pursuing these proceedings. The views of Dr K and the Court Child Expert that the outcome may have been different if the father did not pursue Court proceedings is speculative and hypothetical. They were also largely based on the mother’s account of the reason for the breakdown in the relationship and failed to consider that the mother has created a false narrative about the father being unsafe and all bad. Indeed, Dr C’s evidence that there has been too little too late in my view demonstrates that earlier approaches failed and set up permanent failure. Regrettably, I cannot turn back the clock and chart a different course to that which was previously taken.
In my view, the past conduct of the mother and Mr B meant it was inevitable that the gentler approach taken would not achieve a repair of the father’s relationship with X.
It is important to remind counsel and the public that the legal process is part of the rule of law and order in Australia and the expected mechanism to be used to resolve parenting disputes. The father did what was reasonable and proper, unlike the mother who did not comply with the Final Orders made in 2015 and did not seek to vary them. In circumstances where Mr B works as a professional and was “a team” with the mother, his adverse contributions are particularly concerning to the Court.
I accept the submission by counsel for the Independent Children’s Lawyer that the father does not trust the mother, but he is justified in not trusting her given the history of her behaviours as discussed above at [51] of these reasons. I accept that the mother has some regret for allowing X to have control over time with her father, but I consider that she has failed to demonstrate to X necessary regret for all inappropriate conduct which has contributed to the fracture of X's relationship with the father. Similarly, it appeared to me that Mr B had failed to fully demonstrate to X necessary regret for his contributions.
The Independent Children’s Lawyer submitted that the father bore greater responsibility for the turning point event in early 2021, but I do not accept that to be so. The mother has always been X's primary carer and when Final Orders were previously made in 2015, X was only four years old. The parties specifically included provision for the father to spend additional time with X by agreement with the mother. Yet at no time after 2021 did the mother see fit to do so. As the primary carer she had a serious obligation to facilitate and promote X’s relationship with her father and she has failed to do so without justification.
Counsel for the father submitted that the orders sought by the father were the only orders that would enable a meaningful relationship with the father because the mother had not persisted with the Interim Orders made on 6 June 2024. He submitted that persisting in returning X to the father’s care if she absconded would give her a positive lived experience. I do not accept that submission because the evidence is clear and I have found that X’s views presently are entrenched and will not change in the near or immediately foreseeable future. This is consistent with the expert opinion of Dr C.
There is some hope that once X is an adult and experiences relationships and adult life she will form a more objective view of her father and not unquestionably adopt her mother and Mr B’s positions. It may be that X has adopted her views to protect her mother from hurt,[20] or for the reasons opined by Dr C.[21]
[20] Noting she is described as caring.
[21] See above in these reasons at [48](a).
I have not been required to make findings about the allegations of historical family violence, so the presumption of equal shared parental responsibility is not rebutted by operation of law. I am not persuaded to make an order for sole parental responsibility in favour of the mother in circumstances where:
(a)The parties agreed to an order for equal shared parental responsibility in 2015;
(b)There are likely limited decisions to be made of a major or long-term kind; and
(c)An order for equal shared parental responsibility will positively contribute to a chance of repair of X’s relationship with the father, something which is likely to be in her best interests.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 15 November 2024
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