Gounelle & Crozier
[2023] FedCFamC2F 1229
•21 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gounelle & Crozier [2023] FedCFamC2F 1229
File number(s): MLC 4160 of 2017 Judgment of: JUDGE DUNKLEY Date of judgment: 21 September 2023 Catchwords: FAMILY LAW - parenting - child realistically estranged from mother as a consequence of mother’s actions in withholding child - child’s only relationship now with father - consideration of parenting orders Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 30 and 31 March 2023 and 22 and 23 June 2023 Place: Heard in Melbourne, delivered in Parramatta Counsel for the Applicant: Mr Tesoriero Solicitor for the Applicant: Power & Bennett Counsel for the First Respondent: Mr McCloskey Solicitor for the First Respondent: Pentana Stanton Lawyers Counsel for the Second Respondent: The Second Respondent appeared in person Counsel for the Independent Children's Lawyer: Ms Glaister Solicitor for the Independent Children's Lawyer: Macgregor Barristers & Solicitors ORDERS
MLC 4160 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GOUNELLE
Applicant
AND: MR CROZIER
First Respondent
MS BLAKE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DUNKLEY
DATE OF ORDER:
21 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.All prior parenting orders relevant to X born in 2011 are discharged.
2.The father shall have sole parental responsibility for X.
3.X shall live with her father.
4.X shall spend such time with her mother as accord with X’s view.
5.The mother shall be at liberty to send to X, by prepaid post, letters and cards and gifts.
6.The maternal grandmother shall be at liberty to send to X, by prepaid post, letters and cards and gifts.
7.The father shall keep the mother advised in writing of:
(a)X’s educational progress by forwarding X’s school reports to the mother.
(b)Outcomes of counselling received by X each 6 months, first notice 6 months from the date hereof.
(c)Any emergency or non‑routine medical treatment received by X.
(d)An address to which she can sent communication to X.
8.Neither the father nor mother shall denigrate the other party or a member of that party’s family or household in the presence or hearing of X nor permit X to remain in the presence or hearing of any person who engages in such denigrative behaviour.
9.The father shall notify the mother and maternal grandmother of any change to X’s postal address within 48 hours of such change occurring.
10.The mother shall forthwith return to the father any current passports she holds which have been issued in X’s name.
11.All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DUNKLEY
Mr Gounelle (the father) and Ms Crozier (the mother) are the parents of X, aged 12, who was born in 2011.
The mother, when she was an adult, arrived in Australia from Country D and was initially employed by the father before they entered into a romantic relationship in 2009 and they began living as a couple. They separated in 2012.
Pursuant to a parenting plan signed in April 2013, the parents made arrangements for parenting X which included a provision that upon X’s third birthday in 2014 that an equal time parenting arrangement would begin.
In 2017 a dispute arose regarding X’s care and the mother retained X in her care.
The father thereafter filed and obtained an urgent listing for a parenting application in the then styled Federal Circuit Court in Melbourne. Interim parenting orders were made.
On 24 July 2017, final parenting orders were made in that case by consent as follows:
1.All previous orders be discharged.
2.Orders 2, 3, 4, 5, 6 of the Federal Circuit Court Order made on 10 May 2017 and Orders 2, 3, 4, 5 and 6 of the Minute marked as Exhibit “A” and attached to those orders in relation to the Airport Watch List Order be discharged and dismissed.
3.The child’s [X] born [in] 2011 passport shall remain in the father’s possession until the last day of October 2017 upon the mother providing the father with a written notice of her intention to travel overseas with sms text message being considered writing. Upon the mother’s return to Australia from [Country D] in 2017/2018 she shall keep the child’s passport in her possession from then onwards. The parent shall not withhold the child’s passport unreasonably in the event that the other parent requests the release.
4.Either parent should be permitted to take the child out of Victoria and Australia for holidays and for other short periods of time, with the other parent’s time being suspended, and in relation to the taking of the child out of Victoria or Australia the parents agree as follows:
a.so far as practical the occasions on which the parents take the child out of Australia are to coincide with normal school holidays;
b.the parent will give the other parent as much as notification as possible of intention to take the child out of Victoria or Australia and in any event, will give no less than six weeks written notice of such intention for travel out of Australia and no less than one weeks written notice of such intention for travel out of Victoria, unless in case of emergency;
c.the parent will furnish to the other parent an accurate itinerary to include the approximate departure and return dates, the location in the state when in Australia, the country or countries the parent and the child will be travelling to, the approximate dates on which the child will arrive and depart and a telephone number and address at which the parent and the child can be contacted.
5.The parents have equal shared parental responsibility for the child.
6.Unless otherwise provided in these orders, the child live with the father from after school or 3.30pm on a non-school day or public holiday commencing Friday 11 August 2017 and each alternate week thereafter and the child live with the mother from after school or 3.30pm on a non-school day or public holiday commencing on Friday 4 August 2017 and each alternate week thereafter.
7. The child spend time with the parents as follows:
a.on the child’s birthday, as may be agreed between the parents and if there is no agreement then from 10.00am until 3.00pm with the parent who does not normally have the child on that day with changeover to take place at [Town E] unless otherwise agreed;
b.on the parent’s birthdays, as may be agreed between the parents and if there is no agreement then for at least 3 hours on a school day and from 10.00am to 6.00pm on a non-school day with the parent who does not normally have the child on that day with changeover to take place at [Town E] unless otherwise agreed;
c.on the Mother’s Day weekend the father’s time with the child shall be suspended from 3.30pm on Friday with the mother to collect the child from school;
d.on the Father’s Day weekend the mother’s time with the child shall be suspended from 3.30pm on Friday;
e.on [Country D Day] with the mother, with the father’s time being suspended from the conclusion of school the day prior or 5.00pm on a non-school day until the commencement of school or 10.00am on a non-school day, the day following [Country D Day]. It is noted that the father agrees to the mother taking the child out of school for [Country D Day] Celebration. The mother is responsible for all travel;
f.on Christmas when in Australia:
g.with the mother from 3.00pm Christmas Eve until 10.00am Christmas Day and;
h.with the father from 10.00am Christmas Day until 3.00pm Boxing Day
i.other times as may be agreed from time to time in writing (text).
8.The mother may take the child to [Country D] for holidays for no longer than three weeks to include the Christmas and New Year period unless otherwise agreed.
9.That, without admitting the necessity for the same, each of the mother and father, by themselves, their servants or agents be and are hereby restrained from:
a.removing or interfering with the child’s current enrolment at [F] School unless otherwise agreed between the parents;
b.discussing any issue in dispute in these proceedings in the presence or hearing of the child.
10.Changeover take place at the child’s school on a school day and at [Town E] on non-school days and public holidays unless otherwise agreed.
11.The parents use their best endeavours to ensure that the child is not exposed to smoking.
12.The parents shall ensure that the child is not exposed to excessive alcohol use and shall not use alcohol to excess while having care of the child.
13.If the child is to spend time with the paternal grandmother the father shall ensure that the child is safe and that the paternal grandmother is able to provide adequate care for the child if the father is absent.
14.Each parent undertakes not to denigrate the other parent in the presence of the child and shall use their best endeavours to ensure that no other person denigrates the other parent in the presence of the child.
15.Each parent keep the other informed of any significant child’s health issues as well as any procedures or operations to be undertaken prior to these procedures or operations being undertaken except in the case of an emergency (with the parent in whose care the child is, to inform the other parent as soon as possible) and each parent authorises the child’s doctor/medical practitioner to provide information and documents in relation to the child to the other parent.
16.Each parent authorise the school where the child attends to provide to the parents upon request copies of school reports, certificates, correspondence, letters, any other documents and information in relation to the child.
17.The parents shall communicate with each other in a civil and child focussed manner.
18.Within 14 days of the making of these orders the father shall attend upon his doctor to seek a referral to [Ms G], Psychologist. After obtaining a referral the father shall make an appointment with [Ms G] for joint counselling with the mother. In the event that there is additional costs which is not covered by Medicare the parents shall share the cost equally. Both the mother and father agree to follow the reasonable recommendations of [Ms G].
19.The mother shall seek a referral to a dietician/nutritionist for the purpose of discussing the child’s dietary requirements and the parents shall follow all reasonable recommendations of that dietician/nutritionist.
20.Notwithstanding anything contained in these orders, nothing shall prevent the parents from agreeing in writing, with text being considered writing, to such further or other times from either parent to spend time with or communicate with the child.
IT IS DIRECTED:
21.That the Minutes of Consent Orders remain on the Court file.
22.IT IS CERTIFIED
23.That pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
IT IS NOTED:
A.The father was advised of his right to seek independent legal advice prior to signing.
B.The parents will provide make up time, as may be agreed, for any changes to these orders if necessary.
C.The father may take the child to South Australia for weekends on short notice.
In March 2021, a further dispute involving X’s care arose with the mother again retaining X’s care. The father again filed an application that was given an urgent listing. Interim parenting orders were made on 1 April 2021 in the following terms:
THE COURT ORDERS UNTIL FURTHER ORDER
1.That the child [X], female, born [in] 2011 (“the child”) live with the Applicant father from 12 noon this day until 12 noon on Friday 16 April 2021.
2.That thereafter, the child live with each parent in accordance with the Minutes of Consent Orders made by this Court on 24 July 2017.
3.That the Respondent mother be restrained from having the child baptised or from undergoing any other such similar religious ceremony.
On 14 January 2022, the mother again withheld X from being in the father’s care.
On 31 January 2022, X did not begin re‑attending her school at the start of the school year.
On 10 February 2022, it was ordered:
1.That each of [MR GOUNELLE] born [in] 1982 and [MS CROZIER] born [in] 1980, their servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [X] born [in] 2011 (“[X]” or “the child”) and the child is restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for the period specified in these orders and in default for a period of two years from the date of these orders.
2.That upon expiration of the specified or default period referred to and subject to any order of a court of competent jurisdiction, the Australia Federal Police will remove the child’s name from the Watch List NOTING THAT if either party seeks that the child’s name remain on the Watch List for a period beyond the two year period, that party must file and serve an application and an affidavit setting out the evidence to support such application.
3.That as soon as practicable the solicitor for the father serve a sealed copy of this order upon the AFP Operations Coordination Centre and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.
4.That a copy of this order be sent immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.
5.That all previous parenting Orders be suspended save for the Appointment of an Independent Children’s Lawyer.
6.That the child live with the father.
7.That by 6:00pm of the date of these Orders the mother return the child to the father with changeover to take place at the [Town E] Sports Centre at [H Street, Town E], Victoria.
8.That should there be non-compliance with Order 7 of these Orders a Recovery Order be issued forthwith upon Chambers receiving notification by the father or the Independent Children’s Lawyer.
9.That the Parties are required to facilitate [X]’s attendance at [J School] each school day.
10.That the parties do all things required to ensure [X] resumes attending upon the school counsellor at [J School].
11.That there be liberty for the parties to provide a copy of these Orders herein to [X]’s school.
12.That within 24 hours of the day of these orders the father serve a copy of these Orders upon the mother by SMS Text or Email.
13.That all extant applications be adjourned to the Senior Judicial Registrar’s List on 7 March 2022 at 10:00am with the parties to attend face-to-face [at] 305 William Street, Melbourne and should any party be unvaccinated they are to wear gloves and an appropriate COVID safe mask.
14.That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
The mother did not comply with order 7 made on 10 February 2022, so on 11 February 2022 it was ordered:
1.That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia using force if necessary, to find and recover the said child [X] born [in] 2011 (“the child’) and deliver the said child to the father forthwith, he being the person entitled to have the said child live with him, pursuant to orders made in the Family Court of Australia this day.
2.That as soon as practicable the solicitor for the father serve a sealed copy of this order upon the AFP Operations Coordination Centre and IT IS REQUESTED that the Australian Federal Police give force and effect to this order.
3.That a copy of this order be sent immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Federal Circuit and Family Court of Australia.
4.That if the mother takes or attempts to retake possession of the child after execution of the recovery order, she may be arrested without warrant.
5.That pursuant to the Orders dated 10 February 2022 the child live with the father.
6.That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Over the ensuing months X disappeared, she did not attend school, and she had no interaction with her father. Her whereabouts remained unknown to the father but known to the mother. It has since become apparent the mother had become involved with a group of people who subscribe to the world view of people broadly described as “K People”
The court granted an information order to alert the public X was missing. During this period the mother caused a “proof of life” photograph to be published of X holding a current newspaper. Numerous pieces of correspondence espousing K People beliefs endorsed with postage stamps and inked fingerprints were received by the father.
In early 2021 Victorian Police located X and executed the recovery order and returned X to the father’s care.
The police found X secreted at a business in Town L (about 20kms from Town F) in regional Victoria. It appears likely the mother and X had been living in a structure on the property of that business since early 2022.
In early 2022 the father re‑enrolled X at school. The mother attended at X’s school that day. The school contacted Victorian Police who attended the school and later took out an Intervention Order to protect X, with the mother the named respondent.
The mother has had no time with X since the police recovered X in early 2022.
In 2023 X began attending high school in Town F.
On 27 February 2023 Ms Blake, X’s maternal grandmother, was on her application joined as a party to the proceedings as the second respondent. The maternal grandmother is a Country D citizen living in Country D, who at the time was visiting Australia. X had spent time with her maternal grandmother many years previously when X had visited Country D with her mother.
The father re‑partnered in 2016 with Ms M.
She has a 10 year old son N, who lives with the father, his partner and X.
The mother using an anonymous sperm donor gave birth to a son O in 2019. O has not spent time with his sister X since April 2022.
For some time an Independent Children’s Lawyer (ICL) has been a party to the case.
FINAL HEARING
At the final hearing, the father seeks the following orders be made:
1.That all previous parenting Orders are discharged.
2.That the Applicant [MR GOUNELLE] (“the Applicant”) has sole parental responsibility of the child [X] born [in] 2011 (“X”).
3.That [X] lives with the Applicant.
4.That [X] spends time and communicates with the First Respondent and the Second Respondent by agreement.
5.That the First Respondent and Second Respondent be permitted to send cards, letters, and gifts, of an appropriate and child-focussed nature to [X], by way of a post office box nominated by the Applicant the details of which will be provided to the First Respondent and Second Respondent within fourteen (14) days of the date of Orders, on special occasions such as the child’s birthday, Christmas, Easter, and the like.
6.That the parties and/or their family and/or their agents shall not denigrate the parties and/or their family and/or their agents within the presence and/or hearing of [X].
7.That [X]’s name be removed from the Airport Watch List.
8.That the First Respondent and Second Respondent be restrained from attending with [X] at all points of international arrivals and departures in Australia for the purpose of preventing her removal.
9.That the First Respondent forthwith deliver all of [X]’s passports to the Applicant.
10.That [X]’s passports remain at all times in the safekeeping of the Applicant.
10.That the First Respondent and Second Respondent pay the Applicant’s costs of and incidental to these proceedings on an indemnity basis.
11.That the Independent Children’s Lawyer be discharged.
12.Such further and/or other Orders as this Honourable Court deems necessary.
At final hearing, the mother seeks the following orders be made:
1.That [X] live with her father.
2.That there be family therapy with a therapist nominated by the ICL.
3.That subject to the recommendations of the family therapist the mother spend 6 sessions of supervised time with the child at [P Contact Centre] in [Town Q].
4.That upon the provision of a favourable report from the contact centre the mother spend unsupervised time with [X] from after school on Fridays until the commencement at school on Monday or if Monday is a public holiday the commencement of school on Tuesday on alternate weekends.
5.On the intervening week from after school on Wednesdays until the commencement of school on Thursdays.
6.The time be suspended for school holidays.
7.The mother to spend time with [X] on first half of the school holidays or otherwise as agreed with the father.
8.The mother spend time with [X] on Christmas Eve from 4pm until 10am on Christmas Day on alternate years commencing with Christmas of 2023.
9.The mother spend time with [X] on Christmas Day from 10am until 10am Boxing Day on alternate years commencing 2024.
10.On [X]’s birthday the mother spend face time with [X].
11.On the mother's birthday that she will spend time with [X] by face time.
12.On Easter the child spend Easter Sunday with her mother on alternate years commencing in 2024.
13.That the mother be prohibited and restrained from bringing the child into unsupervised contact with her father.
14.That the maternal grandmother have contact with [X] by Facetime once a fortnight.
15.That if the court does not permit the mother to spend time with [X] the maternal grandmother will spend time with [X] on Sundays from 9.30am until 5pm.
At final hearing, the maternal grandmother seeks the following orders be made:
While the maternal grandmother is in Australia that she:
1.has care of the child [X] at least 1 day a week on Sundays.
2.be allowed to participate in school events and any other events where you would normally find a grandmother attending including extra-curricular activities.
3. be allowed to phone the child at least once a week on Wednesdays.
4.be allowed to spend 2 extra days with the child the week before she leaves Australia.
While she is not in Australia, that she:
5. Communicate with the child by video conference at least once a week.
In both cases, that:
6. she be allowed to exchange letters and gifts with the child.
7.she be made aware of any significant health issues with the child and be allowed to have access to the child's medical records and talk to the child's medical practitioners and mental health workers.
8. that the child be allowed to travel to [Country D] to visit her at least every 2 years.
9.that, if the respondent mother, [Ms Crozier], has substantial and significant care of the child, this application be dismissed.
At final hearing, the ICL sought the following orders:
1.That the Applicant [MR GOUNELLE] (“the Applicant”) have sole parental responsibility of the child [X] born [in] 2011 (“[X]”).
2.That [X] lives with the Applicant.
3.That [X] spends time and communicates with the First Respondent and the Second Respondent by agreement, and as per her wishes.
4.That the parties and/ or their family and/ or their agents shall not denigrate the parties and/ or their family and/ or their agents within the presence and/ or hearing of [X].
5.Such further and/ or other Orders as this Honourable Court deems necessary.
The final hearing began on 30 March 2023 and continued on 31 March 2023. It was then adjourned part heard and resumed on 22 June 2023 and continued until it finalised on 23 June 2023.
WITNESSES
Each of the applicant father, first respondent mother and second respondent maternal grandmother provided written evidence in affidavits and were cross examined.
The maternal grandmother was a self‑representing litigant throughout the proceedings and was provided a Country D interpreter for the duration of the final hearing.
Ms R filed an affidavit in the mother’s case and was cross examined.
Mr S, a psychologist, prepared a psychological report pursuant to an order made by Judge Kirton on 6 August 2021. His report is dated 21 November 2021 and is annexed to his affidavit sworn 23 November 2021. He was cross examined.
DOCUMENTS
Ms T authored the Family Report ordered by Judge Glass on 4 November 2022. The report is dated 24 February 2023. Ms T was, after some consideration, not required for the purpose of cross examination. Her report became exhibit J.
Case outlines were prepared by counsel for each of the father, mother and ICL and read.
The following documents were also marked as exhibits during the final hearing:
·A Child Impact Report by Ms U dated 11 October 2022
·B Last page of tender bundle clinical notes of Dr V second last entry on page
·C Proposed Minute of Order
·D Mother’s mental health plan dated 23 August 2022
·E Copy email correspondence dated 18 May 2022 sent to child’s school
·F Photograph of sign on mother’s gate
·G Document dated 30 March 2022 under seal of FCFCOA
·H Photograph of W
·I Bundle of documents drafted by Y Company
·J Family Report dated 24 February 2023
OTHER EVIDENCE
The father was born in 1982.
He lives with his partner and her son, N, in Town F.
He works as a transport worker.
The mother was born in 1980.
She lives with her son, O, who was born in 2019. They live in Town E.
The mother is not presently employed.
Pursuant to an order made on 6 August 2021 the father obtained a paediatric assessment of X by Dr Z. The doctor’s report is dated 16 November 2021 and notes X to be in excellent general health. The mother was asked questions about Dr Z’s report because the mother had in the past regularly raised concerns about X’s health and made statements suggestive of ill health. No one sought to “call” Dr Z and as such the doctor’s opinions are unchallenged.
The doctor notes X suffered from some non‑specific abdominal pain likely linked to some anxiety but perhaps also an intermittent issue with constipation.
The doctor on examination recorded X’s weight to be below the 90th percentile, with her height at the 90th percentile.
Overall, X was described by the paediatrician as a physically healthy and developmentally normal prepubertal girl with a sensitive and somewhat anxious temperament.
Mr S is a psychologist registered in Victoria since 1988. He wrote a psychological report about the mother and a psychological report about the father.
In preparing his report relevant to the mother, he interviewed the mother and tested her on 20 November 2021. In preparing his report relevant to the father he interviewed the father and tested him on 20 November 2021.
As at the date of his report, Mr S concluded regarding the mother:
·that she may entertain some ideas that others find at least unconventional or unusual and at the extremes peculiar and eccentric;
·that she has less confidence in social interactions than she self-assesses;
·that she experiences generalised or specific anxiety;
·that she report historic thoughts of self-harm;
·that the mother displays no evidence of clinical psychopathology.
As at the date of the report, Mr S concluded regarding the father:
·that he shows no signs of any psychopathology or personality dysfunction.
On 11 October 2022 court child expert (CCE), Ms U, wrote a Child Impact Report which is exhibit A, and for the purpose of the report interviewed X on 29 September 2022 and X said to her:
·in describing her father “a good person, always nice to her and others, respectful, more understanding than her mother”;
·in describing her mother used words such as “rude” and “annoying”;
·she began feeling about 3 to 4 years ago she wanted to stay at her father’s home and did not like living at her mother’s home;
·that since living with her father she felt safe, everyone gets along well together;
·that she felt scared when kept away from her father and that she was angry with her mother for doing that;
·that she did not want to see her mother again for fear she would try to do something to her, that she would not feel safe even if someone else was present and did not want any form of communication with her mother;
·she had not been assaulted by her father and that N had not tried to drown her, rather she and N were playing together in the pool and laughing.
On 23 February 2023 regulation 7 consultant, Ms T, wrote a Family Report which is exhibit J. Interviews for that report were conducted by video on 10 February 2023 and later by telephone with the mother only on 14 February 2023.
In her interviews with Ms T:
·X used the word “good” to describe her relationship with her father;
·X said she liked talking with her father and “hanging out with him” and liked hanging out with Ms AA with whom she feels “a little bit close”.
·X described Ms AA’s son N as “annoying”.
·X said about her mother “I just don’t’ like her”.
·X described her feelings during the time her mother retained her between January and April 2022 as being “I was feeling sad, angry and worried”.
DETERMINATION
The evidence led by the mother regarding the father’s perpetration of family violence in general, and the evidence about coercive and controlling family violence in particular, related to a period many years previous to this hearing. Even allowing for the passage of time, the mother’s evidence was not impressive, was vague at times, and at other times nothing more than self-perception. On the balance of probabilities no finding about any form of family violence other than some contained in time “name calling” is made. The assertions of financial control were not established.
I am not satisfied on the balance of probabilities that the father perpetrated family violence of a coercive and controlling nature. Any family violence was limited to transient and now historical verbal denigration.
I am not satisfied that the father ever assaulted X indeed I believe he did not assault X. It follows then there is no risk of harm arising for X emanating from her father.
The other child in the father’s household, N, has not assaulted X nor is he a risk of harm for X. X’s own report to Ms U informs this finding.
The mother during the period January to April 2022 perpetrated family violence on X as defined in s 4AB(2)(i) and (j).
This period was undoubtedly traumatic for X and likely is the predominate cause of X’s entrenched dislike of her mother and estrangement from her.
X has a positive and beneficial relationship with her father whom she is very fond of and with whom she enjoys interacting.
It is entirely possible, given the mother’s previous conduct in more than once withholding X from her relationship with her father, that the mother may again act in that way. I assess that as a possible risk rather than a highly likely risk. The fact she did not avow entirely the risk she perceived the father presented to X is relevant to the above assessment.
The father is a capable parent. Made more evident by the compassionate way he has sought to assist X post the trauma of her withholding by the mother and recovery by the police.
The mother displayed poor capabilities as a parent in the most recent period of withholding X, secreting her in the midst of “K People” and exposing X to their “erratic and extreme world view”. The trauma occasioned to X by having to pose for a “proof of life” picture and endorse her “fingerprint” on nonsensical documents is another example of the mother’s poor parenting capacity compounded by the lack of insight the mother still displays as to how negative and damaging emotionally this experience was for X.
The above actions orchestrated by the mother also demonstrates she has an extremely poor attitude to the responsibilities of parenthood.
It is not possible, nor beneficial for X, for the father to share parental responsibility with a person who holds the mother’s world views and attitudes, and who so unreasonably has in the past held views about harm being experienced by X at the hands of her father.
The father’s focus on prioritising X’s best interest emotionally and physically makes it in X’s best interest that the father exercise sole parental responsibility.
Neither equal time, nor significant and substantial time, nor indeed any time, between X and her mother is for all the above reasons in X’s best interest.
X is opposed to time with her mother and estranged from her mother for understandable reasons.
At age 12, nearly 13, X lacks the maturity to fully comprehend the impact upon her of a lifetime loss of relationship with her mother. X’s chronological age makes it impossible to “force” her to attend a supervised time with centre. Such an order would place the father in the invidious position of having to make reasonable attempts at having X attend and in all likelihood unsuccessfully. This then raises two possibilities neither of which is in X’s best interest:
·a feeling developing within X of estrangement or significant resentment towards her father;
·further litigation.
An order that permits written communication between the mother and X and gift giving leaves open the possibility for an estranged relationship being slowly repaired over time until X herself decides she wants to spend time with her mother.
No practical difficulty arises from the sole parental responsibility order or the above communication type order.
The father will be required to provide information to the mother about health and education issues relevant to X so that the mother has some understanding of X’s circumstances.
An order for time between X and her maternal grandmother is impracticable when the grandmother is in Country D and X in Australia. The grandmother holds no intention to return to Australia in the foreseeable future. X has a very limited relationship with her and as such a time with order is not in X’s best interest.
X’s relationship with her maternal grandmother is not sufficiently established to enable face to face meetings on the infrequent occasions the maternal grandmother might in the future in Australia.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dunkley. Associate:
Dated: 21 September 2023
2
0
1