Garth & Garth
[2022] FedCFamC2F 189
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garth & Garth [2022] FedCFamC2F 189
File number(s): PAC 3833 of 2015 Judgment of: JUDGE OBRADOVIC Date of judgment: 25 February 2022 Catchwords: FAMILY LAW – Interim Parenting – short form reasons – teenage children – high parental conflict – final parental orders made in December 2020 – best interest of children – child to spend time with father in accordance with her wishes. Legislation: Family Law Act 1975 (Cth) s.69ZL. Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156
Rice & Asplund [1978] FamCA 84Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 25 November 2021 Place: Parramatta Counsel for the Applicant: Mr Kenny of Counsel Solicitors for the Applicant: Rafton Family Lawyers Counsel for the Respondent: Ms Druitt of Counsel Solicitors for the Respondent: Farah Lawyers Counsel for the Independent Children’s Lawyer: Ms Yu of Counsel Solicitors for the Independent Children’s Lawyer: Kathryn Renshall Lawyers ORDERS
PAC 3833 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GARTH
Applicant
AND: MR GARTH
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
25 FEBRUARY 2022
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.All prior parenting orders in respect of X born in 2008 are suspended.
2.The mother shall have sole parental responsibility for X.
3.X shall live with the mother and spend time with the father in accordance with her wishes.
4.The father be and is hereby restrained from:
(a)Attending at X’s scheduled basketball games or other extra-curricular activities unless he is specifically invited in writing by X and he will ensure that third persons including his wife do not approach or attempt to approach X.
(b)By attending at or approaching X’s school unless he is specifically invited in writing by X and he will ensure that third persons including his wife do not approach or attempt to approach X.
5.The father shall pass on any gifts or messages that Y born in 2006 and X send to him, which are for the children’s half-sibling B born in 2019.
6.The father shall permit the children to speak to B by Zoom and/or Facetime, at least once per fortnight, every second Sunday at 5pm, or at such other times as agreed between the parties. Such calls will be facilitated by the mother’s phone to the father’s phone, and the father shall not interfere in such calls.
7.The matter is listed for directions at 10am on 14 April 2022.
8.The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Garth & Garth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (Cth) (“the Act”).
On 9 December 2020, the Court made final parenting orders in respect of the parties’ two children, Y born in 2006 and X born in 2008 (“Final Orders”). At the time of the publication of these reasons for judgment, Y is a few days shy of her 16th birthday, and X will be 14 in three months. The final parenting orders were made with the consent of the parties after a protracted parenting dispute which commenced in May 2016. The parties have been separated since 2012.
The Final Orders provide for the mother to have sole parental responsibility for Y and for Y to live with the mother. The Final Orders provide for the father to have sole parental responsibility for X and for X to live with the father. Each of the girls is to spend time with the parent with whom she did not live, Y in accordance with her wishes and X in accordance with a spend time regime set out in the Final Orders.
It did not take long for things to break down after Final Orders were made. The children’s childhoods have been marred by high parental conflict, and changes to the children’s living arrangements. There has been significant therapeutic intervention.
X has now been living with the mother, and Y, since May 2021.
The father presses for an order that X return to live with him or alternatively that she spend time with the father each alternate week and in essence, for half of school holidays.
The mother presses for an order that the Final Orders be suspended and that X remain living with her and that she have sole parental responsibility for X. The mother moves the Court for an order that X spend time with the father in accordance with her wishes. The Independent Children’s Lawyer (“ICL”) supports the mother’s application and presses for similar orders.
The principles in Rice & Asplund [1978] FamCA 84 have not been raised by any of the parties and in any event there are sufficiently changed circumstances warranting the Court making the orders herein.
The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it.
The Court is to determine the issue of risk by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).
Relevant Evidence
It is not necessary to set out the detailed evidence which is relied upon by each of the parents at the interim hearing, however the Court has had regard to all such evidence.
The parties and the children attended a Child Inclusive Conference on 5 October 2021. The Memorandum from that conference was before the Court.
It is agreed/non-contentious that:
a.Y has been living with the mother since May 2018, and has not spent any significant time with the father since then; and
b.X was spending time with the mother in accordance with Final Orders until about 20 May 2021, after which time she has been living with the mother.
It is sufficient to note for the purposes of these Reasons, that the evidence indicates that:
a.In or about March 2021, X started to disclose to her mother concerns about verbal abuse directed at her by the adults in the father’s household, and the father’s wife being “particularly horrible” to her;
b.Text messages dated March 2021 and April 2021 between X and her step-mother prima facie indicate a warm relationship between them;
c.At or around Easter 2021, X said to her mother of her father and step-mother that “No-one understands how they speak or how they treat me”;
d.On 21 May 2021, X provided to her mother a recorded a conversation between herself, her father and her step-mother. The transcript of that recorded conversation was in evidence, although the audio recording was not. Even without the audio, the transcript reveals an abusive and intimidating manner of speech by the adults to X, and a clearly distressed 13 year old child as a result. For example, the following are two short extracts from the transcript:
Father: … you’re going to get into trouble one day and it’s going to get really fucking hard.
Step-Mother: If you want to have a relationship like I have with C you need to man the fuck up and start talking to me properly. This is on you. Not me. ‘Cause I’ve been here for you since day dot. Now you’re a fucking cunt and you need to give me that fucking time of day. You need to start talking to me properly.
…
Step-Mother: I don’t try… I don’t try anymore because it’s not natural and I’m not a fake arse motherfucker.
Father: You’ve got to work out how to meet us halfway. Do you get it?
X (sobbing): Yes
e.On 22 May 2021, X attended a representative basketball game which was played at the same time as a game at which C, the children’s step-sister, participated. The father’s wife was present, and the father was also on the premises. Security assisted X to return to the mother’s vehicle.
On 5 October 2021, the children were interviewed for the purposes of a Child Inclusive Conference Memorandum to the Court. During the interview with the Family Consultant, X disclosed that she was nervous about the father attending her current school to get her, X was adamant that she wished to stay with the mother, and that she did not want to spend time with the father. She maintained that the father and his wife are “really strict and angry” and that they “yell and say really bad things to us”. X also confirmed that she had tried going back to live with the mother in 2020 (prior to the Final Orders) but that the father had “guilt tripped” her so she returned to live with him. X said that she is weighed frequently while she was living with the father, that she is “body shamed” and that the father made her feel bad about the way she looks and the way she does things. X claimed that she would run away if she had to spend time with the father. X was concerned that if she was to spend time with the father, that he would “take” her.
The father denies that he is an abusive and inflexible parent, and he denies that X was subjected to abusive behaviours while living with him. He says of the conversation recorded that it was but one leaf in a book of Y’s life with him, and not representative of it.
In his affidavit filed 24 November 2021, the father says of the conversation which X recorded that the mother “has attempted to use it in her attempts to justify taking this matter back to court. I note that a lot of what they have used is out of context and doesn’t reflect the conversation we had had before or after nor does it appreciate or attempt to understand X’s behaviour at the time”.
The father is troubled by what he considers is the mother’s lack of competence as a parent, with no structure and no boundaries for the children in the mother’s home. The father considers that the mother buys the children’s affection, by giving them money and permitting them things they are not allowed in the father’s home – such as social media for X. The father alleges that the mother has been video recording the children’s step siblings from her car as they went to school. The father says:
X’s results at school and in her personal life had been excellent until she left our care and the situation continues to deteriorate. X desperately needs stability in her life and her life continues to spiral out of control. I am asking the court to return X here as soon as possible so we can get her the help she desperately requires and I am asking that it is not ignored as it was with Y to her detriment.
Y has now been diagnosed as being on the Autism Spectrum. The father says “I’d been trying to have that assess (sic) in the previous 5 years and had been only met with reluctance and interference from Ms Garth in having Y assessed.” In contrast, the Child Inclusive Conference Memorandum records that the father maintained that Y showed no signs of autism when she was living with them, and that she is not well provided for at the mother’s home.
When interviewed by the Family Consultant, Y presented as friendly and articulate. She spoke of stress at “having to go through Court again” and was emphatic in her stated wishes to remain living with the mother. Y said that she did not want to spend any time with the father.
The Child Inclusive Conference Memorandum noted that:
Both girls were adamant that they wish to remain with Ms Garth, and do not wish to see Mr Garth. Whether this stance may soften, particularly in the case of X, is unclear, however, at the moment, X is unable to do some of the things she would normally do because Ms Garth does not have any parental responsibility for her. It would be recommended that the parent with whom the child lives, holds sole parental responsibility.
As noted earlier, there has been therapeutic intervention for the children and the parents. In her 2018 report, Dr D opined that:
It seems to me both Y and X believe they cannot have both parents in their lives and feel under enormous pressure to support one or the other. I am writing to express some concerns I have observed in both X and Y and the impact the family conflict is having on them… Y… made some disclosure to me that suggest a high level of inner turmoil, feeling unsafe at school that the will be taken, wanting to avoid spending time with you Mr Garth for a host of reasons and feeling angry that she cannot speak with her sister or step siblings. Similarly, I have seen X feeling unable to reconcile having a relationship with both parents… Now she too is not wanting to spend any time with Ms Garth.
… Both of you consider the other at fault…
I… cannot impress on you enough the pain I have seen in both your children who feel caught in a tug-o-war between the two parents. This is likely to cause significant mental health distress and have damaging effects. I ask you both to reflect on the impact the dispute is having on the children.
In her December 2020 report, Dr D opined that the children had aligned themselves with one parent not because they do not love the other parent but because it is too difficult to maintain a relationship with each parent. That report noted that while the father acknowledged that the children might want to see the other parent “he claimed they cannot pick and choose where they are when they resent boundaries being set for them”.
The father had concerns about the undermining influence that occurred in the mother’s household unlike his own household where he stated there is no denigration of the other parent. The transcript of the recording X made in May 2021, however notes that the father’s wife referred to the mother while speaking to X as “your fucking fucked mother”. A poor attitude towards the mother is also inferred from the text messages between X and her step-mother in April 2021, where X infers that her mother is not a “normal” person for taking the children on a ferry to have lunch at Location E and where in response the step-mother replies with “ohhssshhh shit lol that’s a great come back bahaha xxoo”.
While the conversation between X, the father and his wife in May 2021, may have been but one page in the book of X’s life in the father’s household, it was not a pleasant page to read and would have been far from a pleasant experience for X. There is no justification for it. There cannot be. Even if the child had been rude (which is not reflected in the transcript) or had not done something asked of her, the way she was spoken to was abusive. She is only a child. Of itself, the incident may not be an example of high level abuse, but this is not the point. It has to be understood in context of X’s experiences and the tug-o-war identified by Dr D as long ago as 2018, which has persisted despite the warnings of the expert to the parents. This is not the first time that X had decided she wanted to live with the mother. The Court is well aware that it may not be the last time she changes her mind.
Determination
In the circumstances, given her age, her maturity level, the long-term high conflict situation between her parents, a mostly absent older sister from her life and what appears to be on the face of it a fairly rigid and uncompromising negative attitude towards the mother by the father, it is no wonder that X has come to feel as she has. It is not as simple as X being “bought” by the mother as the father claims.
While wildly in dispute about most things, the parents continue to agree that the parent with whom the child lives should have parental responsibility for that child. It is simply not feasible for these parents to co-operate and make joint long term decisions in the exercise of parental responsibility. The presumption of equal shared parental responsibility is rebutted on the evidence.
Even where findings of fact are difficult to make due to the evidence not being tested, it is still apparent from the evidence that the father is unlikely to encourage X to have a relationship with the mother. The submissions made on behalf of the father refer to the mother as having a lack of competence as a parent. The father does not hide his contempt for the mother, nor does his wife.
While the father is of the view that the mother speaks poorly of him and his family to the children, the evidence suggests that the mother is the parent more likely to give X the emotional permission to have a relationship with the other parent.
A restraint preventing the father from attending at X’s sport and her school are appropriate and in the child’s best interest as they will provide the child with an assurance that should help abate her fear that her father will take her from school.
Concerning also is the father’s attitude towards Y having a relationship with B, her baby half-brother and for this reason, orders addressing this will be made.
In all of the circumstances, it is in X’s best interest that the Final Orders pertaining to her be suspended, that the mother have sole parental responsibility for her on an interim basis and that X live with the mother and spend time with the father in accordance with her wishes.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 25 February 2022
0
3
0