FOOTE & WICKS

[2017] FCCA 3438

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOOTE & WICKS [2017] FCCA 3438

Catchwords:
FAMILY LAW – Interim parenting – 13 year old child – risk of harm – views of child treated with caution.

Cases cited:

Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Keats & Keats [2016] FamCAFC 156
SS v AH [2010] FamCAFC 13

Marvel & Marvel [2010] FamCAFC 101

Applicant: MR FOOTE

Respondent: MS WICKS

File Number: PAC 3888 of 2017

Judgment of: Judge Obradovic

Hearing date: 13 September 2017

Date of Last Submission: 13 September 2017

Delivered at: Parramatta

Delivered on: 13 September 2017

REPRESENTATION

Counsel for the Applicant: Mr Morley

Solicitors for the Applicant: Adams & Partners Lawyers

Counsel for the Respondent: Ms Hamilton

Solicitors for the Respondent: Coode & Corry

THE COURT ORDERS THAT:

1. Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Dispute Conference at 10am today and:

   (a)The parties shall continue to attend at such times dates and places as the consultant may advise;

   (b)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memorandum outlining and reporting on:

   (i)Any agreement reached between the parties;

   (ii)The issues raised by the parties and which will require determination by the Court;

   (iii)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report.

PENDING FURTHER ORDER:

1. The father is to deliver the child to the mother’s residence by 7.30pm on 13 September 2017.

2. Order 2 made on 23 November 2016 is are suspended, and in lieu of that, the child shall spend time with the father as follows:

   (a)Each Thursday from after school to 7.30pm; and

   (b)Commencing on 13 October 2017 and each alternate week thereafter, from after school on Friday to 4.30pm on Sunday.

3. That during the September/October school holidays in 2017, the child spend time with the father during the second week commencing at 4pm on Saturday 30 September 2017, and concluding at 4pm on Friday 6 October 2017.

4. The parents are to do all acts and things necessary to immediately re-enrol the child at School A and the parents are restrained from changing the child’s enrolment without further order of the Court or agreement in writing between them.

5. In relation to the school holiday period at the end of term 4 in 2017, the child shall spend time with the father in accordance with agreements between the parties, and failing agreement, the second half of the school holiday period commencing on the middle Saturday of the school holidays to 5pm on the last Friday of the school holidays.

6. Notwithstanding any other order, the child shall spend time with the father from 10am on 26 December 2017 to 10am on 28 of December 2017.

7. Changeover shall occur at the Caltex service station, Highway B, Town C.

8. The mother shall forthwith engage with … Counselling for the purposes of arranging family counselling with the child.

THE COURT FURTHER ORDERS THAT:

1. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for [X] born … 2005 and request the Legal Aid Commission of NSW to provide such representation.

2. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

4. Grant leave to the Independent Children’s Lawyer to seek leave to have the matter relisted on 7 days’ notice if anything urgent needs to be addressed.

5. The matter is listed at 11.30am on 2 February 2018 for directions.

IT IS NOTED that publication of this judgment under the pseudonym Foote & Wicks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3888 of 2017

MR FOOTE

Applicant

And

MS WICKS

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. On 9 August 2017 the father commenced these proceedings by filing an Initiating Application seeking interim and final parenting orders in relation to the only child of the parties, [X], born … 2005. Also included in that Initiating Application was an application for the matter to be dealt with at short notice and for the appointment of an Independent Children’s Lawyer. 

2. The father otherwise sought orders for final parenting orders which were made on 23 November 2006 to be discharged, for the child to live with the father on an interim basis as well as on a final basis, and for the child to spend limited supervised time with the mother on an interim basis and, certainly, limited and supervised time with the mother on a final basis. 

3. The father relies on his affidavit filed at the same time as his Initiating Application being an affidavit that was sworn on 7 August 2017, as well as a Notice of Risk filed on the same day.  The mother in her case has filed a Response on 8 September 2017 and has filed two affidavits in support of the orders which she seeks, those affidavits both being read in the proceedings, being an affidavit that she affirmed or swore on 8 September 2017 and an affidavit of her partner, Mr F Andrew, also affirmed on 8 September 2017. 

4. If I have not already indicated, the mother has filed a Notice of Risk on the same day, which she seeks to rely upon. The orders which the mother seeks are those set out in her Response, being annexure ‘B’ of that document, together with an additional order for the mother to commence family therapy, or similar, with the child with … Counselling in accordance with the recommendations of the Family Consultant. 

5. Those recommendations are contained in a Child Dispute Conference memorandum after the parties spoke to the Family Consultant today when the matter was first called. That Child Dispute Conference Memorandum is Exhibit ‘2’ in the proceedings.  Furthermore, there were a number of other documents which were tendered, those being a counselling report of Ms D dated 10 September 2017, a clean urinalysis report for the mother dated 1 September 2017, the documents produced under subpoena by Ms D who has been the child’s counsellor since about February 2017, and two police event records relating to the events of 28 July 2017 and 1 August 2017. 

6. The parties entered into final parenting orders in 2006 when the child was very young, those orders being made on 23 November 2006.  The orders provide for [X] to live with her mother and for her to spend time with the father in accordance with paragraph 2 of that order.  At the time that the orders were made [X] was only about a year and a half old, and it is a credit to the parties that up until very recently they had been able to make arrangements between them for [X] to spend time with the father which was either in addition to or different to that provided for in the orders made in 2006. 

7. The central enquiry for the Court is to determine the outcome that will be best for the child the subject of these proceedings.  The primary issue is whether the child is at an unacceptable risk of harm in the mother’s care primarily because she has threatened in the past to run away from the mother – and, if so, what, if any, time she should be spending with the mother. 

8. If the answer is that the child is not at an unacceptable risk of harm, then the issue becomes ought the child be living with the mother or with the father, despite the orders which were made in 2016 by consent between the parties.  The mother also seeks orders for supervised time if the child is living with her notwithstanding the fact that the child has been spending significant, substantial and unsupervised time with the father for a number of years. 

9. The Full Court in Goode & Goode[1] has mandated that the legislative pathway which is set out in section 60CC and the accompanying sections must be followed in all parenting cases and, in particular, set out the procedural steps to be followed on an interim application such as this one. 

   [1] (2007) 36 Fam LR

10. The Full Court in Goode & Goode has also said that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is significantly curtailed. 

11. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  In interim proceedings such as this, findings are not possible because the evidence has not been tested, and it is not unusual for there to be many disputed facts such as there are in this instance. I have had particular regard to both of the parties’ lengthy affidavits and I have read all of the exhibits which have been tendered in these proceedings. 

12. I can say, at the outset, that there are significant disputed facts in this matter, making the Court’s decision today very difficult.  In Marvel & Marvel[2] the Full Court has said that in interim parenting proceedings and orders made as a consequence, they are necessary but a temporary measure until all of the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. 

    [2] [2010] FamCAFC 101

13. Decisions judicial officers have to make in interim proceedings are difficult, and often, for very good reason, a conservative approach or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interest of the child. 

14. Interim parenting orders are frequently modified or changed after a final parenting hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at final hearing.  In Keats & Keats[3] the Full Court held, in respect of the conduct of interim proceedings, that the principles that emerge from cases such as SS & AH[4] that, apart from relying upon uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  

    [3] [2016] FamCAFC 156

    [4] [2010] FamCAFC 13

15. A cautious or conservative approach is, at times, appropriate.  Ultimately, any order which the Court makes must be one which the Court holds is in the child’s best interest. 

16. The three main issues which stand out, having heard from the parties’ counsel in this matter, are that:

    a)The Court needs to be concerned with the risk to the child in both parents’ household;

    b)The child’s wishes; and

    c)The practical difficulties that have existed and exist in part due to the father’s medical condition. 

17. As I have already mentioned, there are very few agreed facts, but they certainly are that up until very recently, being 26 July 2017 and since the child’s birth, [X] has been living with her mother.  On 23 November 2006 final orders were entered into by the parties, and pursuant to those orders the child has remained living with the mother, and did live with the mother and spent time with the father. 

18. The evidence before the Court today seems to suggest that the child has expressed some very strong views about living with the father and about remaining in the father’s care. She has been in her father’s care since 26 July 2017.  The mother - in one sense to her credit, and in another sense to her detriment, did not commence proceedings after the child went to live with the father.   

19. It was, indeed, the father who commenced these proceedings very shortly after the child came to be in his care.  The child has now been living with the father for approximately six weeks, and during that time she has changed schools contrary to the mother’s express wish and without her consent and input. 

20. The father, in his affidavit which was filed in support of the orders which he sought, indicated at the time of the swearing of the affidavit that [X] was still attending School A which was approximately one hour and 20 minutes away from his home and a distance of about 80 kilometres.  He then said:

    I will not be able to continue to travel these onerous distances on a daily basis indefinitely.

21. What has happened was that, a very short time after [X] came to be in the father’s care he changed her schools to a local public school to where the father lives, being School E. The Court understands from what is contained in the Child Dispute Conference Memorandum that the father has a medical condition which is identified as chronic fatigue, a matter which the father did not address in his evidence in-chief at all. 

22. Through the Child Dispute Conference Memorandum the Court has learnt that one of the reasons why the child’s school has been changed is because the father cannot drive such long distances due to his medical condition. It may be that with more time the father would have put on additional evidence in relation to these matters, and the Court recognises that the matter did come on for hearing very quickly. 

23. For that reason, the Court is not critical of the father about matters which ought to have been included in his evidence in-chief but have not been, such as, for example, details of his medical condition, how and if that affects his parenting capacity and, more importantly, how and why he changed [X]’s school when he did, particularly given her special needs. 

24. The father, through his Counsel, impressed upon the Court that there is a significant risk of the child running away from the mother’s house if she was to be returned to the mother’s home as a result of the orders which the Court makes today. The father in his affidavit gives some evidence that in or about early 2016, [X] had apparently indicated to her then counsellor that she had expressed a desire to run away from her mother. 

25. Likewise, the father says in his affidavit that Ms D, who was the child’s most recent treating counsellor, had confided that [X] had discussed running away from the mother.  The difficulty with that evidence is that the Court has before it a report of Ms D as well as all of the notes of the sessions with the counsellor.  The sessions with the counsellor only refer to one instance of the child saying or talking about running away and that was on 10 March 2017.  That was said in the context of [X] talking about her anger being ongoing, and it seems from the counselling notes that [X] has been very angry for quite a period of time and that that anger has been directed towards her mother. 

26. She also seems to have disclosed to Ms D that she has been distressed and worried at particular times about fighting in the mother’s household.  Whether that is specifically fighting between the mother and stepfather that has concerned her or whether it is potentially fighting between herself and her mother about some rules which the mother has wanted to impose upon [X], is not entirely clear from those session notes.  

27. However, certainly, there are occasions where [X] has reported that she has been concerned about the fighting between her mother and her stepfather.  There is a consistent theme in the session notes with the counsellor that [X] loves her father, that she has a lot in common with him and that she enjoys spending time with her father. Certainly, she has indicated to the counsellor that she wanted to live with her father. The reasons for that are, unfortunately, not explained in the session notes, nor are they articulated in the counselling report of Ms D.

28. There are some concerning matters which appear in the session notes in relation to [X]’s relationship with her father, and, in reality, what [X] understands and how much weight her wishes ought to be afforded not only by the Court but by both of her parents.  For example, on 5 May 2017 [X] presented to the counsellor as being upset.  She had an argument with her mother and that was upsetting to her.  The notes then record as follows:

    [X] thinks she had a panic attack.  I asked [X] what she thought this was and if it had happened before.  She said dad had told her it was a panic attack.  [X] worries that she will die when she turns 13.  Girls at camp had a Magic 8 Ball which predicted she would die.  Feels she might be a “disappointment”.

29. On 11 May 2017 it is reported that:

    [X] was unhappy with her mum, that she worried that her mum wants her to do too much in the house.  This was explored with [X], and she spoke of chores including dishes, making bed and feeling this is unfair.  [X] said she does not have to do chores at her father’s house and does not want to do them at home.  [X] said that she had another panic attack but that this was mild.  She said it happened in maths class.  It was discussed with [X] if she wanted to tell her mother how she was feeling and she worried – that she might have her privileges removed if she spoke openly about her feelings.

30. The counsellor noted that there were continued discussions regarding evidence versus theory, that is, (in my words) [X]’s understanding of how the real world works. The following notation is then made:

    [X] engages well with this concept but can sometimes struggle when she becomes fixated on one idea.

31. On 7 June 2017 [X] reported that she was:

    … feeling that mum was on her side and that things are okay now, that mum is putting [X] first, and that this was making [X] feel good, and that she was also enjoying dad’s place.  She, however, reported on this occasion that she was unhappy with Mr F –

    (Mr F being the mother’s partner). 

32. On 23 June 2017 [X] was not willing to engage in the session and her engagement on that occasion was very limited. 

33. On 5 July 2017, she was upset when she arrived at the session.  She reported that there was lots of fighting going on at her house, and that was distressing for [X]. She does not want to do things she does not want to do.  She clarified by saying that she does not do any chores around the house. It is for that reason that the Court is unclear about whether the reference to “lots of fighting going on at her house” is a reference to fighting between the mother and the child’s stepfather or whether it is fighting between the mother and [X] in relation to these chores that [X] does not want to do.  [X] complained that iPad time was too short for her and that she wants to have at least two hours a night of using her iPad.  It’s then reported that good things are YouTube videos and that she enjoys watching those.

34. On 26 July 2017, is the day before [X] came into her father’s care, the day on which the Court understands, from the mother’s evidence, she had a second session of introduction to her high school.  She also had the counselling session, and on that day she also spoke to her father, which are matters which both parties deposed to in their affidavits. 

35. On that day, [X] said that she was sick of living with mum and Mr F and that she would like to live with her dad. She presented as unhappy upon arrival at the session.  She felt that she had “digestion problems” from feeling tense. She had a headache and tension in her back.  These things could easily have been understood in the context of the high school transition session that she had on that day, particularly when [X] is concerned about the homework and the teachers at School G and that she’s very worried about getting detentions. 

36. [X] mentioned to the counsellor that they talked about immunisations and she’s very scared about getting an injection.  She then went on to say to the counsellor she did not want to go on a cruise with mum and Mr F and that she didn’t want to spend two weeks away from her dad.

1. Once again the counsellor spoke to [X] about the use of evidence versus theory to discuss her high school worries.  Apparently [X] was adamant that she would be given detentions and struggled to engage with the intervention.  There were some relaxation techniques; however, [X] was unwilling to engage and was very set in the idea that nothing would help her relax today.

2. The mother says that on 26 July 2017 at about 5pm her partner was showing [X] how to correctly pack a dishwasher and that [X] was pulling faces at her mother while the stepfather was showing her how to do this.  She then told her mother that she was not required to do any chores at the father’s house. 

3. This is in light of the mother’s evidence that, particularly of recent times, that is, in the last year or two but particularly this year, she has been trying to get [X] to take more responsibility and become more independent by implementing chores for her to do around the house, setting a rigid night-time routine and encouraging her to implement these changes herself.  The reason that the mother was attempting to do these things and was implementing these strategies was in order to get [X] ready for high school which she was due to commence in 2018.

4. After being shown how to stack a dishwasher and after the School G session and the counsellor session [X] spoke to her father on the phone.  The mother says that the conversation was about 40 minutes.  The father’s evidence is that [X] was crying and she said to him:

   Daddy, come and get me.  I can’t handle it here anymore.  I’ve been crying myself to sleep every night.  They haven’t been very nice to me.  My tummy hurts because I haven’t gone to the toilet since Sunday.

5. The father says that he was again able to convince [X] to stay with the mother, that being something that he deposed to having done earlier when the child had indicated to him that she wanted to run away. The Court understands such conversations having occurred between [X] and her father in 2016 when she was attending the … Counselling.  The father indicated to [X] that night that he would see her after school and, in accordance with the orders, the following day.

6. On 27 July, the father went to pick [X] up from her school and he was told by the child’s teacher that “[X] had been planning to run away and live with you as she was adamant that she did not want to return home to the mother under any circumstances”. There is no evidence in the mother’s affidavit that the school had contacted her during the course of the school day to indicate that they had any similar concerns or that [X] had threatened to run away from her mother’s home.

7. What did occur was that at about 3.44pm, after the end of the school day, there was an email that the mother received from [X]’s teacher saying that she had had a rough day at school but that, with support, [X] got through the day. That email is annexed to the mother’s affidavit.  Certainly there is nothing in that email which indicates that the child was ready to run away or that she had indeed packed her most prized possessions and taken them to school ready to run away.

8. The father says that after this conversation with the teacher he called the mother and told her about the conversation that he had with the teacher and said to her that he thought it was best if [X] stayed with him so that she could settle down.  The mother apparently did not agree to this.  The mother gives different evidence about the conversation. She certainly says that there was a conversation, but she says it was a conversation where the father has said to her that he’s not returning [X] home as usual after swimming and that he feels that it was best to take her home to his place and keep her out of school tomorrow.  The mother did not agree to this.

9. This is part of the difficulty with the matter being determined on an interim basis, that is, there are so many conflicting pieces of evidence that the Court can only do the best that it can on such limited and contested evidence in deciding what is in [X]’s best interests.  In any event, the mother indicated to the father that she did not agree.  She went to the swimming centre and there was then a scene at the swimming centre in front of [X] with the parents arguing; certainly on each of their versions, the other one being to blame for the way that things panned out that afternoon. 

10. What occurred was that [X] ended up in the father's car.  The mother says that she ran and jumped into the father's car. The father says that she locked herself into that car and refused to come out. The mother then refused to let the father and the child drive away. She was on the bonnet of the car.  The police were called.  A most unfortunate incident, and both parents perhaps not acting in the best manner possible in all of the circumstances. 

11. The police arrived: The police indicated that because there was no risk issues, and because they spoke to the child who indicated that she wanted to go home with the father, they informed the parents that they needed to go to the family law courts and obtain orders.  That was the extent of the police intervention on the day. 

12. [X] then ended up staying with the father and she didn't attend school for some days afterwards. The father says that she was reluctant to go to school because she thought her mum would come and take her.  Once again, that being a matter of some concern for a number of reasons.  One, that the child did not attend the school and that the father thought that this was appropriate in all of the circumstances.  Two, that the father was not able to calm the child down sufficiently to ensure that she would feel safe at the school where she had been attending for a little while at least. Given her special needs and the importance of routine to a child with such special needs, the father appears not to have demonstrated, at least in that instance, an appropriate capacity to meet [X]'s immediate emotional needs. 

13. While it may sound to the father that the Court is being overly critical of him, that is certainly not the case. What is concerning to the Court is that having read the mother's material, it appears that [X] goes through these stages of wanting things changed or being unhappy with her situation. She is certainly a child who has special needs. 

14. The mother has assisted her in the past by obtaining counselling; has attempted to involve the father through that counselling, and in that counselling.  For example, the mother deposes that in 2016 [X] had a period where her thoughts were very dark for some months.  She wrote notes and discussed killing herself with her teachers.  And the mother in that instance took appropriate action by seeking counselling with a psychologist for [X]. 

15. The mother says that even though the father was told about the psychology appointments and the cost, that he did not offer to take [X] to any appointments or pay for the cost of those appointments.  Whether or not that ultimately proves to be correct is a matter for another day.  Certainly, that counselling is not something that the father deposes to about in his affidavit.  He only talks about the … counselling which is something that the mother arranged after this private psychologist had two sessions with [X] in 2016. 

16. To the father's credit he did continue with sessions with Ms D and [X] after she came to be in his care, but such sessions ceased in about the middle of August, with the last sessions being on 17 August 2017, according to the notes, although there was a next appointment made on 31 August 2017. 

17. The report which was prepared by Ms D says when the first counselling session was, but doesn't say when the last counselling session was.  What is concerning to the Court from that report is that there was concerns raised by [X] throughout the sessions in relation to the intrafamilial relationships and the household rules, and that there was attachment to fantasy.  For example, there was a continued belief in Santa Claus and the Easter bunny, and a belief that because Jesus came back to life, so too could [X]. There was anxiety regarding the transition to high school, as well as the transition from childhood into puberty.  There was escalating anger and self-blame;  anger towards the mother for trying to recover [X] and the subsequent Family Law Court proceedings; internalising self-blame as feelings of anger have not dissipated despite [X] having achieved her desire of living with her father. 

18. To the counsellor [X] has expressed confusion that the move that she had wanted had not resulted in her feeling happy and she expressed that she felt stressed and unwell.  [X] spoke about her perceived understanding of the Family Law Court process and increasingly attributed a significant amount of power to her mother to be able to influence everyone around her and this was a continued source of distress to [X].  [X] would not engage in any discussions as to whether her concerns were based in fact or not. 

19. Certainly towards the end of her therapy, [X] became fixated on her anger towards her mother and began to disengage with the therapy and towards the end of the sessions, that is before she disengaged, she was becoming withdrawn and uncommunicative. She would discuss only her increasing anger and her feelings of self-blame about this anger regarding her relationship with her mother. 

20. This is a matter which is of significant concern to the Court.  That is, that [X] seems to be blaming herself for what has happened: she kept saying she wanted to go and live with her dad, she was upset with her mum for all sorts of reasons, she now is living with her dad, but it's not what she wanted. She is angry at her mother for reasons which are not articulated, and she's also increasingly angry at herself about feeling this way.

21. It may be that [X] in her own unsophisticated way is blaming herself for what has happened and all the trouble that she might perceive has been caused by recent events and by her expressing her wish to live with her father;  something which she now might regret. 

22. This is a most difficult decision for the Court to make. Ultimately, the Court is not swayed by the child's expressed wish to live with her father, given her special needs, and the matters raised in the counselling notes.  The risk which has been identified, and ably identified in the father's case, to [X] in being returned to her mother’s care at the risk of running away, whether it be from school or trying to catch a train or simply walking out of the house. These are risks which both the mother and the father are now alive to and have been alive to for some time.  Both of them speak about it. 

23. There is no evidence in the father’s case as to what discussions he has had with [X] about why she wanted to run away most recently and what it is that had triggered her to pack her prized possessions, as he calls them, and set off to school that way. There’s no evidence in the father’s case as to any discussions that he had with [X]’s school that she been attending while she was living with her mother about what had happened on that day apart from the brief discussion with the teacher and how he might assist [X] in dealing and coping with the difficulties that she was facing.

24. Certainly, he did take her to her counsellor for a number of sessions but with that being disengaged there was no indication in the father’s case as to what his proposal was for further counselling and, indeed, he has not taken any steps since the end of the counselling sessions with Ms D, to engage with another counsellor in the Town H area.

25. The Court accepts that the father has made some inquiries with Ms D as to who might be an appropriate person in Town H to continue to engage with [X]. However, there has just been far too much change for this little girl in recent months. She is a person who requires stability and both of her parents agreeing to a stable routine rather than giving in to her wishes when those wishes need to be understood in the context of [X]’s maturity, intellectual capacity and her overall presentation.

26. No doubt the mother might need to amend some of her methods in how she deals with [X] so that the child understands that, notwithstanding the fact that there are rules, that her mother still loves her and does not hold any grudges against her, that she will not be punished for what has happened over the last six weeks or few months.  And the father also needs to be supportive of the mother’s relationship with the child and vice versa.

27. The Court, whichever way this matter pans out, does not consider that there are sufficient risks for the child to be spending supervised time with either of her parent. That is, whether she’s living with the mother or with the father she ought to be spending significant and substantial with the other parent and ought to be assured by the other parent that her mum and her dad are both safe and loving and that she is safe and loved in both of her homes.

28. Given the lateness of the school year and that [X] will be transitioning to high school soon and that through the submissions made on behalf of the father the Court understands that the father’s proposal is really a short-term solution so that [X] can get back on track and get the assistance that she needs, the Court is of the view that it is appropriate for [X] to be returned to live with her mother. It is hoped that the father will assist in every manner that he can possibly to ensure that [X] feels safe and supported to be living with her mother, whether that be with him engaging with counsellors to assist [X] or whatever other way may be appropriate.

29. The Court also considers that it is appropriate that the mother forthwith engage in counselling with [X] and also the father if he’s willing to engage in that process so that both of the parents can assist [X] in overcoming whatever difficulties she is going to be facing during her no doubt difficult teenage years which she has now entered upon. There will be more upheaval. She will want to do more things. She will rebel, and these are matters that the parents will need to cooperatively deal with. 

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 13 September 2017