Garrod & Harbig (No 2)
[2024] FedCFamC1F 756
•13 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garrod & Harbig (No 2) [2024] FedCFamC1F 756
File number: NCC 3839 of 2021 Judgment of: AUSTIN J Date of judgment: 13 November 2024 Catchwords: FAMILY LAW – PARENTING – Final orders – Where the parties were in a same-sex relationship – Where the applicant is the biological mother of the child and the respondent is the other parent – Where final orders were made in December 2019 for the child to live with the respondent and to spend no time with the applicant – Where the parties agreed a material change in circumstances warranted variation of the final orders – Where the applicant has demonstrated her abstinence from illicit drug use – Where the child lives with the respondent in Queensland and the applicant lives in Sydney – Where the essential issue at trial was the length of time the child should spend with the applicant during school holidays – Where the child told the Family Consultant he does not want contact with the applicant – Where the family consultant considered his view “very extreme” and perhaps due to a sense of loyalty to the respondent – Where the child has communicated electronically with the applicant on several occasions and expressed his content doing so to third parties – Where the applicant understands the child’s reintroduction to her needs to be gradual – Where the respondent would support the child having a relationship with the applicant – Where the parties agreed they and the child should participate in reunification therapy – Ordered the child to spend gradually expanding time with the applicant Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65AA, 65D, 65Y, 69ZN, 69ZX, 95
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Flanagan v Handcock (2001) FLC 93-074; [2000] FamCA 150
Garrod & Harbig [2024] FedCFamC1F 464
RCB v Forrest & Ors (2012) 247 CLR 304; [2012] HCA 47
Division: Division 1 First Instance Number of paragraphs: 68 Date of hearing: 4 & 5 November 2024 Place: Newcastle Counsel for the Applicant: Mr Hegedus Solicitor for the Applicant: Supreme Justice Lawyers Counsel for the Respondent: Ms Adams-Nash Solicitor for the Respondent: Koulouris & Associates Pty Ltd Counsel for the Independent Children's Lawyer: Ms Merrett Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 3839 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GARROD
Applicant
AND: MS HARBIG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All former orders made in respect of the child X, born in 2013, are discharged.
2.Subject to Order 3 hereof, the respondent shall have exclusive parental responsibility for the child in respect of all “major long-term issues”, as that phrase is defined under s 4(1) of the Family Law Act 1975 (Cth).
3.The respondent is restrained from changing the child’s name.
4.The child shall live with the respondent.
5.The parties shall do all acts and things reasonably necessary to ensure they and the child participate in “reunification therapy” with the object of restoration of the child’s relationship with the applicant, for which purpose the following conditions shall apply:
(a)the applicant shall notify the respondent of the name and address of the therapist to be used within seven days hereof;
(b)both parties shall register and complete intake procedures with the therapist within seven days thereafter;
(c)both parties shall make themselves and the child available for sessions with the therapist;
(d)both parties shall comply with all reasonable directions provided by the therapist for participation by them and the child in the therapy;
(e)both parties shall continue their engagement with the therapy under these conditions for not less than six months;
(f)the cost of the child’s therapy shall be borne by the parties in equal shares and each party shall bear the cost of their individual therapy;
(g)the parties are authorised to provide copies of these orders, the published reasons, and the family report dated 5 October 2023 to the therapist.
6.The parties shall do all acts and things reasonably necessary to ensure the child spends time with the applicant as follows upon the following conditions:
(a)As from the date six months hence (or from any earlier date upon which the parties agree in writing), for two hours on both the Saturday and the Sunday of the third weekend of each calendar month for four months under supervision at the L Contact Centre, Town M, Queensland, for which purpose:
(i)each party shall forthwith contact and satisfactorily complete any intake procedures with the contact centre; and
(ii)the parties shall pay the supervision costs in equal shares.
(b)Upon completion of Order 6(a), from 10.00 am until 3.00 pm on both the Saturday and the Sunday of the third weekend of each calendar month for two months, for which purpose:
(i)the applicant is restrained from departing Town M, Queensland with the child; and
(ii)the parties shall ensure the child’s exchange at a specified location in Town M, Queensland, with the respondent delivering him at the commencement and the applicant delivering him at the conclusion.
(c)Upon completion of Order 6(b), from 10.00 am Saturday until 3.00 pm Sunday on the third weekend of each calendar month for two months, for which purpose:
(i)the applicant is restrained from departing Region N, Queensland with the child; and
(ii)the parties shall ensure the child’s exchange at a specified location at Town O, Queensland, with the respondent to deliver him at the commencement and the applicant to deliver him at the conclusion.
(d)Thereafter:
(i)for one week in the Queensland winter school holidays, from 12.00 noon on the first Saturday until 12.00 noon on the second Saturday, for which purpose the parties shall exchange the child at the airport in Region P, Queensland, with the respondent to deliver him at the commencement and the applicant to deliver him at the conclusion; and
(ii)for two weeks in the Queensland summer school holidays, from 12.00 noon on 10 January until 12.00 noon on 24 January each year, for which purpose the parties shall exchange the child at the airport at Sydney, New South Wales, with the respondent to deliver him at the commencement and the applicant to deliver him at the conclusion.
7.As from the commencement of Order 6(b), the parties shall do all acts and things reasonably necessary to ensure the child communicates with the applicant by videochat at the following times, for which purpose the applicant shall initiate the call and the respondent shall ensure the child’s reception of the call:
(a)each Wednesday between 6.00 pm and 6.30 pm (Queensland time);
(b)at 9.00 am on Christmas Day;
(c)at 9.00 am on Easter Sunday;
(d)at 9.00 am on Mother’s Day; and
(e)at 6.00 pm on the child’s birthday.
8.The parties shall forthwith inform the other of the mobile telephone number and email address at which they can be contacted in an emergency.
9.The respondent shall provide to the applicant copies of the child’s school reports and school photographs forthwith upon her receipt of them.
10.The parties are restrained from:
(a)administering corporal punishment to the child or permitting another person to do so;
(b)denigrating the other in the presence or hearing of the child, or permitting another person to do so;
11.Pursuant to s 68B of the Family Law Act 1975 (Cth), the applicant is restrained from entering upon or approaching within 100 metres of:
(a)the respondent’s residence; and
(b)any school attended by the child.
12.Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other party about the condition and treatment of the child.
13.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the respondent is authorised to apply for a passport for the child without the applicant’s written consent.
14.For the purposes of s 65Y(1)(c)(ii) of the Family Law Act 1975 (Cth), the respondent is permitted to travel with the child outside Australia without the applicant’s written consent, provided such travel does not conflict with Order 5, 6 and 7 hereof.
15.Within seven days hereof the respondent shall cause the child to confer privately with the Independent Children’s Lawyer to have explained to him the effect of these orders and the reasons for such orders.
16.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
17.The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
18.Any and all other outstanding applications are dismissed.
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 the pseudonym the Garrod & Harbig (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These proceedings concern a dispute between the parties in respect of a child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The dispute initially concerned the rather narrow question of whether the child’s best interests would be advanced by fresh orders being made to compel the restoration of his former relationship with the applicant, which relationship has been dormant for well over five years. However, once the hearing was underway, it emerged the parties and the Independent Children’s Lawyer (“the ICL”) agreed the child’s relationship with the applicant should be restored and so the dispute narrowed even further to how that objective should best be accomplished. In fact, the dispute was so narrow that it was only barely justiciable and not merely an arbitrary selection between proposals of intricately minute differences.
BACKGROUND
The parties commenced a same-sex relationship in 2009.
The subject child was born in 2013. He was 10 years of age at the time of trial, and upon publication of these reasons is now 11 years of age. The applicant is the child’s biological mother. The respondent has no biological connection to the child but is designated as his other parent on his birth certificate. Aside from conception, the child’s biological father has played no role in his life.
The parties separated in 2017. The child, who was then four years of age, remained in the care of the applicant but spent time regularly with the respondent on alternate weekends.[1]
[1] Family Report at [21]
In 2018, the applicant voluntarily left the child in the care of the respondent on an intended temporary basis while she tried to arrange stable accommodation, but the respondent retained the child due to her belief the applicant’s then lifestyle was inimical to the child’s proper care. The child has lived with the respondent ever since.
The applicant admitted she was “spiralling out of control” at that point in time.[2] The applicant tried to recover the child by taking him from school in 2019, but that only resulted in criminal charges and a family violence application being brought against her in a State court.[3] The family violence order was made against the applicant for the protection of both the respondent and the child, though it has long since expired.
[2] Family Report at [22] and [48]
[3] Family Report at [32]–[34]; Exhibit R5
Proceedings were first initiated by the applicant under Pt VII of the Act shortly after the incident at the child’s school in 2019, which proceedings were resolved at a hearing held in her absence in December 2019. Orders were then made for the child to live with the respondent and for her to have sole parental responsibility for the child. The orders prescribed the child would neither spend time nor communicate with the applicant, so he has not spent any time with the applicant since then.[4] In fact, the applicant admitted the child has not spent any time with her since 2019.[5]
[4] Family Report at [99]
[5] Applicant’s affidavit at [7]
The orders made in December 2019 were accompanied by these notations:
A. These orders have been made in the applicant mother’s absence.
B.If the applicant wishes to seek an order to spend time with the child she may do so but she will need to file an affidavit addressing the issues of her drug use, housing, mental health and aggression/family violence so that the court can properly assess whether it is in [the child’s] best interests for the court to make an order for the child to spend time with the applicant.
The applicant did not seek to avail of the predecessor to r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), by re-listing the proceeding to satisfactorily explain her non-appearance at the hearing, thereby enabling her to re-contest the ex parte orders. Instead, the applicant filed these fresh proceedings nearly two years later in November 2021. The delay was partly due to the applicant’s engagement in court-enforced drug rehabilitation following being charged with numerous offences in the interregnum.[6]
[6] Applicant’s affidavit at [16]–[21]; Family Report at [48]; Exhibit R5
In November 2022, with the parties’ consent, interim orders were made for the child to communicate electronically with the applicant, but that only occurred on a few occasions before it stopped. The child no longer wanted to participate, which fact the applicant neither overtly nor tacitly disputed, but she believed the child’s antithetical attitude towards her was influenced by the respondent.
The fact that the parties agreed to the orders in November 2022 necessarily meant they mutually accepted some material change in circumstances warranted the variation of the orders last made in December 2019. That concession was put beyond doubt by a declaration made in July 2024 by Smith J to this effect:
1.Pursuant to section 65DAAA [of the Act] it is in the best interests of [the child] for the final parenting order dated 16 December 2019 to be reconsidered.
The reasons given by Smith J record the declaration was made with the consent of both parties and the ICL (Garrod & Harbig [2024] FedCFamC1F 464 at [15]–[16]), though his Honour was independently satisfied the evidence showed “the applicant's circumstances and potential parenting capacity have significantly changed since 2019” (at [17]).
Given the common position of a material change in circumstances to warrant further litigation, the proceeding was listed for trial in October 2024. The concession of the material change in circumstances was vindicated by the evidence adduced at trial. The applicant appeared to have resolutely put her troubled past behind her, which the respondent charitably conceded during her cross-examination.
Presently, the child lives with the respondent at an undisclosed address in Town M in Queensland and the applicant lives in Sydney, which geographical separation poses a practical, but not insurmountable, obstacle to the restoration of the child’s relationship with the applicant.
PROPOSALS
The applicant abandoned her application for the orders set out within her Amended Initiating Application filed on 11 October 2024 and instead pressed for the orders set out in the Minute of Orders she tendered at the close of the evidence.[7]
[7] Exhibit A5
The respondent abandoned her application for the orders set out in her Response filed on 10 June 2022 and instead pressed for the orders set out in the Minute of Orders she tendered during the trial.[8]
[8] Exhibit R4
The ICL abandoned her application for the orders set out within the Minute of Orders she tendered at the commencement of the trial[9] and instead sought the orders set out in an Amended Minute of Orders she tendered at the close of the evidence.[10]
[9] Exhibit ICL1
[10] Exhibit ICL5
Comparison of the ultimate proposals made by the parties and the ICL reveals very little difference between them.
They agreed the parties and the child should participate in reunification therapy, which should endure for no less than six months, following which the child should then spend a short period of supervised time with the applicant in Queensland, graduating to another short period of unsupervised time in Queensland, graduating to unsupervised time during the Queensland winter and summer school holidays. They also agreed the child should have regular electronic communication with the applicant once they start spending unsupervised time together.
The essential issues became these:
(a)should the child’s visits with the applicant in the winter school holidays endure for as little as four days or as much as two weeks;
(b)should the child’s visits with the applicant in the summer school holidays endure for as little as four days or as much as three weeks;
(c)should the child’s graduation to spending unsupervised time with the applicant be conditional upon the applicant providing a negative illicit drug hair follicle test and, if so, whether it is needed only once or on every occasion; and
(d)should the applicant be restrained from allowing the child to come into contact with her partner, Mr G.
EVIDENCE
The applicant relied upon her affidavit filed on 11 October 2024 and the affidavit of Mr G filed on 11 October 2024.
The respondent relied upon her affidavit filed on 30 October 2024 and the affidavit of her partner, Ms J, filed on 30 October 2024.
The parties and the ICL relied upon the family report dated 5 October 2023. Nobody sought that it be updated before the trial, presumably because the child has had no interaction with the applicant and circumstances were unchanged.
As the ambit of the dispute began to swiftly collapse, the respondent and the ICL realised there was no point to be served by cross-examining the family consultant on the residual issues.
The applicant still wanted to cross-examine the family consultant, but only in respect of the undesirability of the proposed injunction which would restrain her from allowing the child to have any contact with Mr G, which injunction she opposed. Her request to cross-examine the family consultant on that solitary issue was refused for two reasons. First, the answer to the question of the whether the contested injunction should be made was essentially factual and therefore beyond the remit of the family consultant’s expertise. Secondly, the family consultant was unavailable on the second day of trial and so allowing her submission to cross-examination on that singular issue would have unjustifiably pushed the trial into a third day. The decision to refuse the request to cross-examine the family consultant was empowered generically by the obligation to actively control the proceedings and to ensure finalisation as quickly, inexpensively and efficiently as possible (s 69ZN(4) and s 95), but also more specifically by the discretion to refuse a party’s desire to cross-examine a particular witness (s 69ZX(2)(i)).
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC).
Parental responsibility for children is vested in their parents (s 61C(1)), regardless of whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.
CHILD’S BEST INTERESTS
Section 60CC(2)(a)
The applicant did not contend the child needed any protection from subjection or exposure to family violence, abuse or neglect while in the respondent’s care.
Given the parties have had no contact for many years and do not desire any future contact with one another, they sensibly did not pursue their reciprocal allegations of the other’s commission of family violence during their relationship as being relevant to the resolution of the narrow dispute. However, as the family consultant opined,[11] their vexed history probably explains their current mutual lack of trust and why the litigation has endured for so long.
[11] Family Report at [110]
The respondent began the trial by alleging the real prospect of the child’s exposure to family violence between the applicant and Mr G, from which the child needed protection, but that allegation was not maintained with any vigour. The applicant conceded a family violence order was once made for her protection from Mr G, but no further details were elicited from her or proved by the tender of documents. The known facts are that the applicant and Mr G live together, they have a child together, there is no family violence order now in force between them, and his police record reveals no criminal history of violence.[12]
[12] Exhibit R6
The child once alleged Mr G pushed an object onto him,[13] but the allegation was evidently too fantastic to be believed. The child, the respondent and Ms J all admit the child is prone to lie about his mistreatment by miscellaneous adults.[14] Significantly, the respondent admitted she would support the child having a relationship with the applicant, if that is what he wants.[15] She was not aware of any physical harm suffered by the child in the applicant’s care and does not fear for his safety when with her.[16]
[13] Family Report at [80]
[14] Family Report at [28], [64], [78], [79]
[15] Family Report at [23], [43] and [69]
[16] Family Report at [45]
The respondent’s two concerns were instead that the applicant and Mr G might relapse into illicit drug use and that the child might resist his reunification with the applicant,[17] but neither of those concerns genuinely engage the provisions of s 60CC(2)(a) of the Act.
[17] Family Report at [69]
As to the first concern, the applicant has scientifically demonstrated her abstinence from illicit drugs for several years following her participation in rehabilitation initiatives.[18] The risk of her relapse could never be entirely ruled out but, given her evidence and neat presentation, it seems an unlikely prospect. The family consultant found the applicant to have “clear motivation” to maintain her abstinence to maximise the benefit of her relationships with the child and her daughter.[19]
[18] Exhibits A1 and A2; Family Report at [49]
[19] Family Report at [108]
Mr G admitted historical drug use,[20] he was convicted of drug-related offences in 2018 and in 2020,[21] and he was detected driving under the influence of an illicit drug as recently as 2024,[22] but his history of drug use hardly seemed sufficient to warrant the respondent’s dramatic reaction. The ICL’s milder concern was understandable, but perspective is still important. The known facts do not justify Mr G’s complete elimination from the child’s life when he is presently part of the applicant’s family. Although criminal behaviour should properly be deprecated, given the prevalence of drug use in the community, adults should not be eliminated from children’s lives on account only of intermittent recreational drug use, which was the tenor of the respondent’s submission. Surely the frequency of such use and the circumstances of the child’s exposure to it are important considerations. Here, such details were entirely unknown. The respondent’s impulsive reaction was the evidence of Mr G’s drug use disqualified him from involvement in the child’s life, which demanded a standard of perfection rather than just reasonable caution.
[20] Family Report at [30]–[31] and [50]
[21] Exhibit R6
[22] Exhibit R1
As to the second concern, the reliability of the child’s expressed views will be addressed under s 60CC(2)(b) of the Act.
Section 60CC(2)(b)
There is no doubt the child has persistently said he wants no contact at all with the applicant. He firmly told the family consultant he did not wish to talk to or engage with the applicant, which caused her to think he would feel resentful towards the applicant if forced to endure contact with her.[23] Nor did the child want to meet or know anything about the applicant’s younger child – his half-sister.[24]
[23] Family Report at [6], [83], [87] and [89]
[24] Family Report at [84]
The family consultant found the child’s expressed views to be “very extreme”, which caused her to wonder about his motivations. She speculated it might be due to his sense of loyalty to the respondent[25] or was perhaps his loyal reaction to the respondent’s denigration of the applicant in his presence,[26] but did not apparently form any concluded opinion.
[25] Family Report at [122]
[26] Family Report at [131]
Having seen and heard the respondent give evidence, the inference of her deep antipathy towards the applicant is inescapable. Perhaps her past adverse experience with the applicant justifies the intensity of her emotions but, regardless, one thing is clear: the child could not be left in any real doubt about the respondent’s lack of respect for and fear of the applicant, even if the family consultant was unsure.[27] Although the respondent said she did her best to shield the child from her feelings, it is doubtful she has succeeded. Most probably the child is well aware of her sentiments and so the adverse views he has expressed about the applicant were designed to demonstrate his allegiance to the respondent. The child lost the applicant from his life several years ago and so it is easy to imagine how he is desperate not to lose the respondent as well, probably inclining him to not jeopardise his relationship with her by voicing positive views about the applicant which he anticipates she would not welcome.
[27] Family Report at [112]–[113], [122] and [131]
The respondent was cross-examined about a school record made in the first half of 2023 which records how, in the presence of a teacher, she threatened the child she would send him to live with the applicant on account of his misbehaviour at school.[28] The respondent was impelled to admit her comments to the child on that occasion were likely to be perceived by him as “punishment”, so he would associate any engagement by him with the applicant as being the cause of the respondent’s despair and undesirable consequences for him.
[28] Exhibit A4
It is well known children are prone to be influenced, either intentionally or inadvertently, by the adults with whom they live (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[41]; RCB v Forrest & Ors (2012) 247 CLR 304 at [52]). Most likely, that has occurred in this case. It may be the respondent’s adverse feelings about the applicant have been impressed upon the child entirely inadvertently, but that makes no difference. If the situation was unintentional then the respondent may have lacked the perspicacity to understand the dynamic and been powerless to stop it. The danger for the child which results from his perpetual immersion in such a dynamic is his alignment with the respondent, consequent involvement in the conflict, and disturbance of his healthy emotional development.[29] It could even ultimately lead to the rupture of the child’s relationship with the respondent due to his eventual resentment at feeling as though he has been unfairly influenced by her to reject the applicant.
[29] Family Report at [122]
There was reliable evidence from which to objectively infer the child is not so ill-disposed to the applicant when free of perceived influence by the respondent. The child told independent third parties of his contentment speaking to the applicant during the brief interlude of their electronic communication in late 2022 and early 2023.[30] He also told third parties of his fondness for his half-sister.[31]
[30] Exhibit A3
[31] Exhibit ICL2
The family consultant said the child presented as being older than his chronological age, which she attributed to his life experiences and exposure to a largely adult environment.[32] But he still lacks the age and maturity which demand that his expressed views carry considerable probative weight. The respondent and Ms J both couched their evidence in terms of the child having the final say about his affairs, but that is inappropriate when the child is still immature and requires adult guidance. That is particularly when the respondent and Ms J only hear one version of the child’s expressed sentiments about the applicant, which is most likely distorted.
[32] Family Report at [6] and [71]
In any event, the respondent’s ultimate proposal for the restoration of the child’s relationship with the applicant is ample recognition by her that his constant past refrain to her – of him not wanting anything to do with the applicant – is unreliable. For that realisation she is entitled to credit. It shows some capacity for her reflection about the applicant’s rehabilitation from past misconduct, which insight the family consultant was doubtful she possessed.[33]
[33] Family Report at [128]
Section 60CC(2)(c)
The child’s physical, intellectual and developmental needs are being well met by the respondent. However, the respondent’s capacity to meet the child’s emotional needs by helping him to manage the involvement of both parties in his life was in question, which concern was partly resolved by the respondent’s eventual acknowledgment the child should be reunified with the applicant.
The child has been diagnosed with ADHD and is prescribed medication to settle his mood.[34] His behaviour at school and at home with the respondent has proved difficult to control over several years.[35] The respondent is in the process of providing the child with “therapeutic supports to assist with his psychological issues and behavioural management”,[36] which the respondent explained in cross-examination meant the respondent was receiving counselling each week.
[34] Family Report at [5] and [66]
[35] Family Report at [63]–[65]; Exhibit ICL3
[36] Family Report at [5] and [67]
The respondent believes the child needs structure and routine,[37] which is not uncommon for a child with ADHD. The final proposals advanced by the parties and the ICL seek to minimise disruption to the child’s structure and routine, with the differences between them being barely material.
[37] Family Report at [65]
Section 60CC(2)(d)
The applicant well understood the child’s re-introduction to her would need to be gradual to be successful.[38] She had the sagacity to realise she should not push the child too hard and fast when he declined to meet with her in the company of the family consultant.[39] She seems equipped to understand and cater to the child’s emotional needs when they spend time together.
[38] Family Report at [15], [68] and [129]
[39] Family Report at [19] and [90]
There was no contest about the applicant’s capacity to meet the child’s physical needs when spending time together.
Section 60CC(2)(e)
There is obvious benefit to the child being able to restore his relationship with the applicant, who is the only biological parent in his life.
There is also obvious benefit in the child meeting and forging a relationship with his half-sister and in recovering his relationships with similar-aged maternal cousins, maternal grandparents and other extended members of the maternal family.
Section 60CC(2)(f)
An important consideration is the parties’ geographical separation. The applicant lives in Sydney, whereas the respondent and the child live in Town M in Queensland. As the family consultant foreshadowed, reunification counselling should precede any attempt at “further contact” between the child and the applicant,[40] and any reunification therapy between them would need to be conducted electronically through “telehealth”.[41] She conceded there was a “risk” the therapy would be unsuccessful,[42] but the risk seems relatively remote.
[40] Family Report at [132]
[41] Family Report at [131]
[42] Family Report at [131]
Very little informative evidence was adduced about the mechanics of how the child and the applicant would be reunified after six months of therapy. The proposals made by the parties and the ICL were based upon matters known to them, but not revealed by the evidence. In the circumstances, the parties must accept that their respective proposals were capable of being practicably implemented.
DISPOSITION
As was agreed, the orders made in December 2019 must be discharged and the relationship between the child and the applicant restored.
As was agreed, the child should remain living with the respondent and she should retain exclusive parental responsibility for him, at least in respect of “major long-term issues” in his life, as that phrase is defined in s 4(1) of the Act. The applicant will otherwise retain such parental responsibility for the child as is conferred upon her by law (s 61C).
However, the respondent is deprived of responsibility for decisions made about the child’s name. She advanced no persuasive reason for his surname to be changed, as she proposed. It was really only her desire to do so and that is not enough (Flanagan v Handcock (2001) FLC 93-074 at [19]–[38]). The child has spent all his life bearing the applicant’s surname and there is no reason to change it now. It helps tether his sense of identity with the applicant, which connection was compromised over the past five years. The child’s different surname from the respondent has not deprived their relationship of any strength. The respondent is restrained from changing the child’s name and the various components of her application to do so are dismissed.
As agreed, the parties and the child shall participate in reunification therapy, which is capped at six months to avoid it carrying on indefinitely. The child will then cautiously spend some supervised time with the applicant at a contact centre close to where he lives with the respondent. Thereafter, he will spend some confined unsupervised time with the applicant in Town M. Thereafter, he will spend some more confined unsupervised time with the applicant in Region N for two reasons: first, the respondent must drive him for some hours from home to the changeover venue, which conduct will demonstrate to the child her commitment to him spending time with the applicant; and secondly, the changeover venue makes it easier for the applicant to fly to the Region N airport because, to that point, her prior visits to Queensland would have taken a financial toll.
Thereafter, the child will spend unsupervised time with the applicant in his winter and summer school holidays. I reject the respondent’s proposal to confine such holiday visits to only four days in each stint. That is far too little. I reject the ICL’s proposal for two weeks in the winter holidays and the applicant’s proposal for three weeks in the summer holidays. That is too much. In an exercise of discretion, I settle upon one week in the winter holidays and two weeks in the summer holidays. Nobody could advance a sensible reason for why their proposal should be preferred over another.
I reject the respondent’s proposal for all school holiday visits to be spent in Queensland. That is unnecessary, given the cautious anterior graduation of the regime. The child will be exchanged in Queensland for the winter holidays and the applicant may find it more convenient to remain in Queensland with him for that shorter visit. The child will be exchanged in Sydney for the summer holidays, thereby enabling him to experience spending time with the applicant and her extended family members, which could not be easily achieved if confined to visits in Queensland.
I reject the need for the applicant to provide negative longitudinal drug screen testing before the child begins spending time with her in the school holidays. She has done enough to demonstrate her commitment to sobriety.
I reject the applications to restrain the applicant from allowing the child any contact with Mr G. It is likely the only time the child will be in his physical presence is in the summer holidays for two weeks. He lives with the applicant and the evidence does not demand that he be banished from his home when the child stays with the applicant once each year. Mr G does not appear to present such a danger to the child that such limited exposure to him cannot be tolerated.
The applicant opposed the orders sought by the respondent in respect of the child under s 11(1)(b) of the Australian Passports Act 2005 (Cth) and s 65Y(1)(c)(ii) of the Act, but without advancing any rational explanation for why. There is no reason why the respondent should be precluded from obtaining a passport for the child and taking him outside Australia on holidays.
All other orders are generally reflective of orders sought in similar, though not identical, terms by the parties and the ICL.
Some orders which were sought are otiose in the face of the orders made.[43]
[43] Ex A5, Orders 10, 11, 14(a), 14(b), 16; Ex R4, Orders 10, 11, 14(a), 14(b), 16, 17; Ex ICL5, Order 14
Another order which was sought is refused,[44] as I decline to make an order which instructs the parties to do as the law already demands of them.
[44] Exhibit A5, Order 13(c); Exhibit R4, Orders 13(c); Exhibit ICL5, Order 12(c)
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 13 November 2024
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