Grafton & Gorecki (No 2)
[2024] FedCFamC1F 37
•7 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Grafton & Gorecki (No 2) [2024] FedCFamC1F 37
File number: SYC 8351 of 2016 Judgment of: CAREW J Date of judgment: 7 February 2024 Catchwords: FAMILY LAW – CHILDREN – Where a final parenting order was made for week about time and the father to have sole parental responsibility – Where one of the children has spent very little time with the father and has remained largely absent from school since the final order – Where the father filed an application for enforcement and the mother filed an application in a proceeding respectively seeking variations to the final parenting order in relation to the child – Where the applications were treated as an initiating application and response to initiating application pursuant to further order – Consideration of the Rice & Asplund principles – Where the mother has systematically flouted the spirit if not the actual terms of the final parenting order – Where provisions of the final parenting order be suspended on a temporary basis and substitute provisions be made in relation to the child’s time with the father. Legislation:
Family Law Act 1975 (Cth) ss 65D(2), 65DA(2), 62B
Cases cited:
Grafton & Gorecki [2023] FedCFamC1F 452
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Number of paragraphs: 43 Date of hearing: 14 December 2023 Place: Brisbane Counsel for the applicant: Ms Dart Solicitor for the applicant: De Saxe O’Neill Family Lawyers Counsel for the respondent: Ms Lawson Solicitor for the respondent: Barker Evans ORDER
SYC 8351 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GORECKI
Applicant
AND: MS GRAFTON
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
7 FEBRUARY 2024
THE COURT ORDERS BY CONSENT THAT:
1.Paragraph 20(b) of the final Order made on 29 June 2023 be discharged from the conclusion of Term 4, 2023.
2.The child, X, born 2010 shall attend G School commencing from Term 1, 2024.
3.Each parent shall do all acts and things necessary to comply with any transition to school, or partial attendance plan developed by G School Suburb C Campus, the Home School Liaison Officer and/or the New South Wales Department of Education in conjunction with X’s treating clinicians.
4.Both parents have leave to provide a copy of the Child Impact Report authored by Ms O and dated 30 November 2023 to:
(a)Any treating medical practitioners and allied health practitioners attended by X from time to time;
(b)Any psychologist or psychiatrist she attends; and
(c)The principal of G School.
5.Both parents shall use their best endeavours to ensure X’s attendance at any meetings requested by School or the New South Wales Department of Education.
IT IS FURTHER ORDERED
Continued operation of the parenting order made on 29 June 2023
6.Other than as provided in this Order, the Order made on 29 June 2023 remains in full force and effect.
Release of the Reasons for Judgment
7.Both parents have leave to provide a copy of the Reasons for Judgment dated 7 February 2024 and 29 June 2023 to:
(a)Any treating medical practitioners and allied health practitioners attended by X from time to time;
(b)Any psychologist or psychiatrist she attends; and
(c)The principal of G School.
IT IS FURTHER ORDERED UNTIL FURTHER ORDER
Suspension of part of the order made on 29 June 2023
8.The following paragraphs of the final Order made on 29 June 2023 are suspended insofar as they relate to X:
(a)Paragraphs 7, 8, 10 (spend time and live with);
(b)Paragraph 12 (changeover);
(c)Paragraph 15 but only as it relates to the mother taking and attending X’s therapeutic appointments subject to paragraph 15 herein.
Living arrangements for X
9.Until 5 July 2024, and save as provided in this Order, X is to live with the mother.
X’s time with the father - Term 1, 2024
10.From the date of this order to 12 April 2024, X is to spend time with the father in the weeks X’s siblings are in the father’s care as follows:
(a)From the conclusion of school or 3.00pm to 8.00pm on Tuesday and Thursday; and
(b)Between 12.00pm to 8.00pm on Sunday afternoon.
X’s time with the father - Term 2, 2024
11.From 26 April 2024 to 5 July 2024, X is to spend time with the father in the weeks X’s siblings are in the father’s care as follows:
(a)From the conclusion of school or 3.00pm to 8.00pm on Tuesday and Thursday; and
(b)From the conclusion of school or 3.00pm on Friday to 8.00pm on Sunday.
Autumn School Holiday Period (12 April to 25 April 2024)
12.X is to spend time with the father in line with the time her siblings are in the father’s care in accordance with paragraph 9 of the Order made 29 June 2023.
Changeover
13.For the purposes of this order, changeover at the commencement of the father’s time with X will occur at G School and in the event the mother delivers the child to school solely for the purpose of changeover the mother shall immediately depart the location upon the father’s arrival.
14.For the purposes of this Order, changeover at the conclusion of the father’s time with X shall occur by the father delivering X to the mother’s residence.
Additional injunctions against the mother
15.The mother is restrained by injunction from:
(a)Initiating contact with G School for the purpose of:
(i)Seeking or attempting to renegotiate the terms of any transition to school plan, school improvement plan, and/or partial attendance plan implementation in relation to X;
(ii)Convening a meeting with school staff, including the children’s teachers, outside parent-teacher interviews, other than with the prior written consent of the father; or
(iii)Raising a complaint or grievance with the school other than via the school principal or such other staff member nominated by them.
(b)Attending G School on any day that the children are in the father’s care pursuant to the Order made on 29 June 2023, including during such period that that Order is suspended in relation to X, other than:
(i)For the purpose of delivering X to school or collecting X at the completion of the school day if she is in the mother’s care pursuant to this Order; or
(ii)With the written consent of the father; or
(iii)For the purpose of attending a school event to which parents are generally invited such as school assemblies or parent teacher interviews.
(c)Collecting X from G School on any day that X is in the care of the father pursuant to the Order made on 29 June 2023 or on any day that X is in the father’s care pursuant to this Order, or from otherwise permitting, facilitating, encouraging or acquiescing to her leaving school on such days.
(d)This Order serves as sufficient authority for the father to authorise and direct G School that he is the parent to be contacted at first instance with respect to any matters concerning the children.
Mother’s involvement in X’s therapeutic appointments
16.Notwithstanding paragraph 15 of the Order made on 29 June 2023, the mother is permitted to:
(a)Transport X to and from any therapeutic appointments with counsellors, therapists, psychologists and/or psychiatrists (“therapist/s”) which occur during times that X is in her care pursuant to this Order;
(b)Remain in the waiting room while X is attending upon her therapist(s) unless directed to leave by X’s therapist(s);
(c)Participate in such therapeutic intervention for X as directed, facilitated, or recommended by the therapist(s) for X but only with the consent of the father.
Explanation of this order to X
17.The mother is to make X available to attend upon Ms O or one of X’s therapists (at the discretion of the father) for the purpose of having this Order and/or the Order made on 29 June 2023 explained to X at a time and date organised by the father with any costs associated with same to be borne by the parents equally.
Future listing
18.This matter be listed for mention before the Honourable Justice Carew by Microsoft Teams video at 9.30am (Brisbane time) on 9 May 2024.
Miscellaneous
19.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
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
CAREW J:
On 29 June 2023, I made a final parenting order in relation to the four children of Mr Gorecki (“the father”) and Ms Grafton (“the mother”), namely, W born 2008, X born 2010, and twins Y and Z born 2012.
The most disturbing features of the case were the extent to which the children had been exposed to parental conflict and the inappropriate level of involvement of the children by the mother in parental decision making.
After hearing and receiving extensive evidence over three days, I ultimately made a parenting order that included the father having sole parental responsibility and the children living with each parent on a week about arrangement. While on one view, an equal time arrangement may have been counterintuitive, I determined that such an arrangement would hopefully reduce the guilt the children may feel if they spent more time with one parent than the other. Further, the order restrains the mother from taking the children to any medical or allied health appointment and from attending any such appointment without prior written consent of the father, except in the event of an emergency.
The order has been unsuccessful in relation to the child, X, who has barely seen her father since the order was made and has remained largely absent from school throughout 2023, despite telling her school counsellor in August 2023 that she “definitely wants to get back to school”. Medical and psychological interventions for X have been troublesome, to say the least.
Three months after the final parenting order was made on 29 June 2023, the father filed an application for enforcement seeking recovery of the child, X, from the mother. The mother responded by filing an application in a proceeding seeking substantial variation to the final parenting order. The father then filed what purported to be an amended enforcement application but in which he too sought variation of the final parenting order.
Ultimately, the father’s amended “enforcement” application was treated as an initiating application and the mother’s application in a proceeding was treated as a response to an initiating application. An order to that effect was made on 14 December 2023.
As further amendment was sought to the order sought by each party, leave was granted to substitute the order sought in their respective application/response with the order set out in exhibit 2 (for the mother) and exhibit 3 (for the father).
I propose to temporarily suspend the operation of X’s week about time with the father, given the ongoing involvement of X in therapy and the father’s laudable sensitivities to the issues raised by X with the report writer, Ms O, and X’s therapists, and to largely adopt the order proposed by the father including the additional restraints on the mother in relation to contact with the children’s school. The parents agree that X will no longer attend J School and will attend G School. It is my understanding that X will complete her secondary education at G School and that will be reflected in the order.
I note that the father has incurred legal fees up to and including this hearing in the sum of $211,544 (which obviously includes the trial in April 2023). The mother has incurred legal fees up to and including this hearing in the sum of $98,313 (noting that the mother was not legally represented at the trial).
Neither party sought the reinstatement of the independent children’s lawyer.
WHAT EACH PARENT IS PROPOSING
The father’s proposal
The father’s proposed order (exhibit 3) can be relevantly summarised as follows:
(a)In so far as the final parenting order relates to X: suspend the operation of paragraphs 7, 8, 10, 11(c) (spend time and live with provisions), 12 (changeover) and 15 (but only as it relates to the mother taking and attending X’s therapeutic appointments);
(b)Rather than X spending alternate weeks with the father prior to the commencement of Term 2, 2024, X spend time with the father (in the week that her siblings are living with the father) for daytime only in Term 1, 2024, from after school until 8.00pm on Tuesday and Thursday and from 12.00pm to 8.00pm on Sunday, in order to reduce any pressure on X as she returns to school, and for X to spend time with the father during the Autumn school holiday period in line with her siblings;
(c)Overnights during school term to recommence in Term 2, 2024 but rather than X spending alternate weeks with the father prior to the commencement of Term 2, 2024 (other than for the Autumn school holiday period), X spend time with the father (in the week that her siblings are living with the father) from the conclusion of school on Friday until Sunday at 8.00pm and from the conclusion of school on each alternate Tuesday and Thursday until 8.00pm;
(d)Additional injunctions against the mother restraining her from:
(i)initiating contact with G School (as specified) or raising a complaint or grievance with the school other than via the school principal or a person nominated by the principal;
(ii)attending the school on any day that the children are in the father’s care other than in certain identified circumstances;
(iii)collecting X from school on any day that she is in the care of the father or facilitating X from leaving school on such days;
(e)For the duration of the suspension of the final parenting order, changeover occur at school at the commencement of X’s time with the father and by the father returning X to the mother’s residence at the conclusion of her time;
(f)To permit the mother to transport X to therapeutic appointments but remain in the waiting room unless invited to participate by the therapist (the existing order provides that the restraints imposed on the mother can be varied with the father’s prior consent, but it is suggested by the father that this may require some clarification for the benefit of X’s therapists);
(g)X to continue her therapy at LL Health Service until Ms OO is retained as X’s new therapist (the parents agree that X should continue at LL Health Service until a new therapist is retained but disagree about who that therapist should be. The reason for the change of therapist is because LL Health Service do not have the capacity to see X as much as she would like);
(h)The parents agree that Ms O’s report should be made available to X’s treating medical and allied health practitioners, including any psychologist or psychiatrist, and the principal of her school (as X will no longer be attending J School by the time an order is made I do not propose to include her previous school);
(i)The parents agree that any variation to the final parenting order should be explained to X, preferably by Ms O, and any costs associated therewith will be borne equally.
The mother’s proposal
The mother’s proposed order can be relevantly summarised as follows:
(a)In so far as the final parenting order relates to X, and pending further order, suspend the operation of paragraphs 2 and 3 (sole parental responsibility to the father), 7 to 11 (spend time and live with provisions), 12 (changeover), 13 to 18 (medical issues and emergencies);
(b)Rather than X spending alternate weeks with the father during Term 1, 2024, both parents use their best endeavours to encourage X to spend time with the father (in the week that her siblings are living with the father) for daytime only in Term 1, 2024, from after school (or 4.00pm if X did not attend school) until 8.00pm on Tuesday and Thursday and from 12.00pm to 8.00pm on Sunday;
(c)During the Autumn school holiday period, the parents use their best endeavours to encourage X to spend time with the father “for the duration of any holiday the father wishes to take the children on” and other time as agreed;
(d)Rather than X spending alternate weeks with the father during Terms 2 and 3, 2024, both parents use their best endeavours to encourage X to spend time with the father (in the week that her siblings are living with the father) at the same times proposed by the father but on condition that X has her own bed in her own room (I note that the father has installed a partition in X’s bedroom at his home which she shares with her little sister);
(e)During Term 4, 2024, both parents use their best endeavours to encourage X to spend alternate weeks from Friday after school to Friday before school (in the week that her siblings are living with the father);
(f)Changeover at the school if X attends school;
(g)Changeover at the commencement of the father’s time, if X does not attend school, outside the mother’s residence;
(h)In relation to any medical or therapeutic appointments for X:
(i)each parent be permitted to transport X to and from any appointments which occur during the time X is in their care;
(ii)each parent be permitted to remain in the waiting room;
(iii)each parent be permitted to participate in any medical and therapeutic intervention as directed or recommended by X’s therapists;
(i)X is to continue her therapy at LL Health Service until Dr SS is retained as X’s new therapist and then a psychiatrist as recommended or agreed by the parents;
(j)The parents jointly agree to any significant (as defined) changes to X’s treatment plan;
(k)The parents follow “any reasonable directions of [X’s] treating practitioners”;
(l)The mother be responsible for organising X’s appointments save she will seek the father’s consent if any appointments fall within his time with X;
(m)Changes to the means of communication and the obligation to communicate.
The mother contends that it would be better for the parent who is doing the parenting of X i.e., the mother, to be vested with parental responsibility. A suspension of the father’s sole parental responsibility would revert to each parent having parental responsibility although the mother seems to envisage the parents making joint decisions, something they have been incapable of doing in the past or only after significant dispute. Further, the mother relies on observations by X’s treatment team lamenting the difficulty in treating X if they cannot talk to the mother about X when she is not spending time with the father. Lastly, the mother highlights the treatment team’s concern about the father’s “insight”.
In my view, what is envisaged by the order sought by the mother is the almost certainty of ongoing litigation in respect of X and, in my view, that is the last thing this child or indeed the family needs. Ongoing litigation will come at considerable cost to the family both emotionally and financially which in my assessment will only exacerbate existing tensions, particularly for X.
SHOULD THERE BE ANY VARIATION OR SUSPENSION OF THE PARENTING ORDER?
To understand the context in which the final parenting order was made and by way of background, my previous reasons for judgment should be read with these reasons.[1]
[1] Grafton & Gorecki [2023] FedCFamC1F 452.
Notwithstanding the existence of a parenting order intended to be final, s 65D(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that such an order may be varied or suspended in appropriate circumstances. However, it has long been the practice of the courts to apply a degree of caution when considering whether to do so, particularly when an order has been made recently. This approach has long been referred to as the ‘rule’ in Rice & Asplund.[2] The application of the rule is, of course, always informed by the best interests of the child,[3] and “is closely connected with the nature of, and degree of change sought to the earlier order”.[4] The best interests of a child will not generally be enhanced by seemingly endless litigation.
[2] (1979) FLC 90-725.
[3] Poisat & Poisat(2014) FLC 93-597 at [42].
[4] SPS & PLS (2008) FLC 93-363 at [48] .
The father’s intention when recommencing the proceedings was to enforce the final parenting order, but to his credit he recognised that a recovery order involving the child being removed from her mother by Federal Police (as seemed likely) was unlikely to be in X’s best interests. It is conceded by the father that his amended application goes beyond mere enforcement as he seeks a change of schooling (the final parenting order made provision for X to attend a particular school for the remainder of her secondary education), and he seeks additional injunctions against the mother. It was further conceded that “both parties are proceeding on the basis that any orders made today would be interlocutory, as opposed to final in nature”.
On one view, the father’s case for change is minimal, designed in large part to enhance the workability of the final order. The schooling issue or rather the change of school has been resolved and X is already enrolled at G School. The father recognises that X suffers from anxiety and is supportive of her receiving any necessary therapeutic intervention. The father contends that his efforts to address X’s issues have been thwarted at almost every turn by the mother failing to comply with the parenting order or, at the very least, the spirit of the order, and that the mother continues to inappropriately place the burden of decision making on X.
As I said in my earlier reasons at [88] and [132] – [133]:
88. The fact is that since the mother empowered [X] to choose when she spent time with her father, she has not in fact seen him and her condition seems to have deteriorated alarmingly, if the mother is to be believed. I am reminded of the warning given by the family report writer, namely, that if a child is inappropriately empowered that may cause stress for the child because they are developmentally ill-equipped to manage that level of decision making. A different approach is required.
…
132. The rationale for an order restraining the mother from attending medical appointments (and the like) is to remove the children from exposure to a source of potential conflict. Having observed the parents, particularly the mother because she was representing herself and I therefore had a greater opportunity to observe her, I would have to say that it would be better for the children not to have to endure the underlying tension between the parents (on display throughout the trial) at such appointments. The mother certainly presented as someone who considered that her opinions and decisions were superior to that of the father’s while the father presented as someone who was more prepared to consider the mother’s views and at times defer to her opinions. The father was at times complimentary of the mother’s instigation of appropriate treatment for the children. By contrast, when asked for an example of any parenting opinion from the father which she considered to have value, the mother struggled to identify anything. The mother could only come up with an example that she valued his suggestion that the children go bike riding or camping. Clearly such matters are not related to major long term parenting issues. When further pressed, the mother said she valued the father’s suggestion that it may be beneficial for the children to attend schools close to home.
133. The mother’s empowerment of [X] into the role of decision maker, even as to which parent should attend her medical appointments, is yet another example of the burden placed on the child by the mother.
By way of example of conduct by the mother about which the father is again critical, the father deposes to the following:
(a)The father arranged for X to attend an appointment with her paediatrician, Dr U, on 21 September 2023, and a family therapy appointment with X’s psychologist, Ms TT, on 22 September 2023;
(b)The father notified the mother of these appointments. The mother messaged the father on 20 September 2023 stating “[X] has requested that I take her to this appointment with [Dr U] and attend with her. Please advise by COB today whether you consent to this or not”. (I note that the existing parenting order includes the following provision:
15. Except in the event of a medical emergency, the mother is restrained from taking the children or any of them to any medical or allied health appointment or from attending any such appointment, including but not limited to an appointment with a GP, paediatrician, counsellor, therapist, psychologist and/or psychiatrist without the prior written consent of the father.)
(c)The father caused his solicitors to respond to the mother on 21 September 2023 asking that the mother wait outside if she attends the appointments noting that the final order restrains the mother from attending medical appointments;
(d)The mother did not respond to the email from the father’s lawyer, but messaged the father directly, stating “I received no reply from you to this message. [X] is refusing to attend the appointment as she says she is uncomfortable travelling with you, being in the waiting room with you on her own and having you attend in the actual appointment with her.” This message was sent less than 15 minutes before the scheduled appointment;
(e)Upon the father’s arrival at Dr U’s practice, he was notified by reception staff that the mother had called and cancelled the appointment;
(f)On 22 September 2023, the mother again messaged the father, stating that “[X] is not comfortable attending [the family therapy appointment] and is refusing to do so. I have not heard from [Ms TT] in relation to me attending any appointment with her”. This message was sent two minutes before the appointment was due to commence;
(g)The father scheduled a family therapy appointment to take place on 6 October 2023, and on 28 September 2023, caused his solicitors to notify the mother and request that all the children be made available. The mother notified the father by Whatsapp that she would not be attending with the children and they would only be made available to the father after 3.00pm on 6 October (being the usual changeover time);
(h)In late 2023 at approximately 9.00pm, three officers from NSW Police attended the father’s home. The officers informed the father that the mother had made an allegation of domestic violence and reported that she had been threatened by the father, providing evidence in the form of correspondence from the father’s lawyer. The mother also alleged the father had been following her. The police did not take a formal statement and the complaint was not taken any further;
(i)On 6 October 2023, the mother messaged the father that “[X] is refusing to come to your place”;
(j)On 7 October 2023, the mother suggested that the father attend her home to pick X up. The father attended the mother’s home however the mother did not allow him into the house. The father asserts that the mother proceeded to stand out the front yelling into the house at X to come out and encouraging the father to yell at X from the front door. The father became uncomfortable and refused considering the mother’s allegation of domestic violence just two days prior.
X was referred to LL Health Service in May 2023 by Ms JJ, an occupational therapist. This was due to concerns about ongoing low mood, anxiety, and school refusal. X initially consulted a psychiatrist, Dr V and a clinical psychologist, Ms UU in June 2023. X again consulted Dr V in June 2023 and consulted Ms UU on eight occasions between July and November 2023. X was reviewed by Dr VV in July and in October 2023.
Dr VV provided a report in response to a request received on 15 November 2023. There remains only a “working diagnosis” for X that she meets the criteria for two Disorders and presents with some “features” of a third disorder although insufficient to warrant a diagnosis of same.
Dr VV was unable to provide a long-term prognosis for X but noted her willingness to attend appointments (save on two occasions) and engage in treatment. Dr VV laments that “our treatment approach has been limited by the legal framework that our team has been required to work within, and ongoing family stressors”, apparently reflecting views expressed by X during sessions. Unfortunately, the limitations so expressed, are not identified in any more detail. Dr VV opines that “[o]ngoing therapeutic input, including having individual therapy, both parent involvement and school liaison are likely to have the most significant impact on school attendance”. Surprisingly, given X’s reported comments to her school counsellor in August 2023, Dr VV states X’s “motivation to attend school is reported to be low”. While I do not doubt that having both parents involved is the ideal, I cannot ignore the difficulties that have arisen because of parental conflict about treatments and therapists for X historically. Indeed, the parents are currently unable to agree about who should treat X going forward.
The order restraining the mother from involvement in X’s medical and psychological care was not made lightly, but it seems to me that the mother has systematically flouted the spirit if not the actual terms of the order.
As I understand the mother’s evidence, she largely concedes the facts as contended by the father but contends her actions were informed by X’s best interests as determined by her and further that she has done all she can to meet her obligations.
In my view, the evidence now before me demonstrates just more of the same sort of conduct by the mother about which I was so critical in my previous reasons for judgment. The mother has continued to inappropriately empower X in decisions with which she should not be burdened. The extent of the mother’s communication with X’s school is oppressive and demonstrates a persistence of her past conduct with every educational facility the children have attended to date.
Ms O opined that the mother “may need to find better ways of managing [her] stress … because the sheer volume of correspondence she produces between herself, [the father] and all the professionals involved is quite overwhelming, and the tone of that correspondence is sometimes quite superior and confrontational”. My views of the mother, formed during the trial and strengthened by the evidence of her conduct since the trial, accord with Ms O’s opinion. For instance, in my reasons I made the following findings at [67]-[68]:
… I have come to the conclusion that the mother can be a very difficult person to deal with and that this is likely to have impacted on her relationships with others including the children’s schools, at times to the children’s detriment.
The mother repeatedly ignored directions from the Court e.g. during her cross-examination of the father the mother was repeatedly directed to ask one question at a time and to refrain from making statements rather than asking questions. Further, the cross-examination of the mother, by counsel for the father, was made much more difficult and lengthy as a direct result of the mother’s repeated obfuscation in response to questions. I do not suggest that the mother necessarily engaged in such conduct deliberately. Indeed, she appeared to have little insight into the impact of her conduct on others. At times the mother’s determination to do what she wanted rather than what was required of her became somewhat overwhelming.
In her communications with the school and X’s treating physicians the mother has repeatedly asserted that X does not even feel safe to be in the same room as the father. The mother also repeatedly insists that X be present at meetings and “heard” in relation to educational decisions. It is apparent from the evidence that the mother repeatedly defers to X, in a way that abrogates her parental responsibility to make decisions or permit the father to make decisions as the parent with sole parental responsibility for major long-term issues.
I can only hope that the mother reflects upon X’s candid comments to Ms O, in November 2023, which include the following:
(a)X described her father as a “nice, good Dad”;
(b)X said that her mother told her that her father is applying for a court order because he wants “power over her and us” but X finds this hard to believe as her experience of him is not like this;
(c)X said that her mother thinks she understands her but she does not;
(d)X said she finds decisions terrifying;
(e)Part of her feels she has to look after her mother … she [the mother] does not really have her own support system … her mother can get overwhelmed.
The mother should also reflect on X’s observed interaction with the father in November 2023:
[The father] came in and sat down opposite [X]. The atmosphere was immediately relaxed and playful … [X] … appeared to relish rehearing the stories and she laughed along with her father.
X and her father were assessed by Ms O to have a “warm and loving relationship … [t]hey interacted easily, sometimes playfully and sometimes on an intellectual level …”.
Although the father did not seek, at trial, to restrain the mother from involvement in the children’s school he now does so due to the ongoing nature of the mother’s lengthy, frequent, and at times counter-productive communication and interaction with X’s school. Again, this is more of the same from the mother. The mother resists the proposed injunction, and in particular, the reach of the proposed injunction to the “children’s” school. Historical interference in the children’s education by the mother, and as demonstrated in the further evidence in relation to X’s school in 2023, cause me to find that the restrictions sought by the father are entirely appropriate in the circumstances. Until 5 July 2024, the mother will be at liberty to attend G School for the purpose of not only delivering X to school as proposed by the father but also collecting her from school but only when she is living with the mother pursuant the order.
The extent of the variations to or suspension of the final parenting order sought by the mother is an attempt, in my view, to relitigate matters that were decided at trial. For the reasons stated at the time, I determined that a sole parental responsibility order in favour of the father was necessary and, in the children’s best interests. A suspension of that order in relation to X would lead to chaos and a paralysis of decision making. It would also place an unfair burden on educational and medical professionals who have been caught in the middle of the dispute between the parents. As already noted, the restraints imposed on the mother in relation to medical and therapeutic treatment for X were not made lightly. I am not persuaded that it is in X’s best interest to vary those provisions of the final order as sought by the mother.
However, I am persuaded that the variations as sought by the father may clarify the mother’s parental rights for the assistance of the treating professionals. I am also confident that the father’s consent to the mother’s involvement will be informed by the recommendations of X’s treating professionals, but ultimately the decision should remain with the father, hence the order will not be expressed to be at the invitation of the therapist alone. To do otherwise would continue to place the treating professionals in the middle of the dispute.
Parenting orders create obligations and responsibilities for parents as set out in Part VII of the Act. My concern about the mother’s proposed order that the parents “use their best endeavours” for X to spend time with the father, is that it is more likely to continue the ill-advised empowerment of X. In this context, it is perhaps helpful to restate the opinions of the family report writer, Dr AA, from my previous reasons at [47] – [48]:
It is useful at this stage to set out some prescient opinions by the family report writer, Dr AA, in her report dated 20 October 2020 at [142]:
If the parents inappropriately empower children, that could potentially lead the children to feeling stressed because they are developmentally ill-equipped to manage that level of decision making. This may result in them feeling they have let a parent down if those wishes are not granted and ultimately, they might play one parent against the other as seems to have happened with [W]. Inappropriate empowerment also encourages children at a younger and younger age to feel entitled to make decisions about their living arrangements.
The family report writer further opined at [152] in her report:
It is not uncommon for the children who are caught in hostile and acrimonious family law conflicts to find they can no longer traverse the delicate and conflicted trajectory between their warring parents and take a black and white/wrong and right attitude to their parents’ dispute. They may align themselves with a parent who they believe is vulnerable and needs them, the parent who they believe is being treated unfairly, the parent who they perceive to not be at fault, the parent who they are spending most time with, the parent who they perceive to be giving them most latitude or the parent who the children are most afraid to reject because of the anticipated consequences.
It is now the expectation of both parents that X will spend time with her father and return to school although they remain apart on the proposed wording of the provisions to be included in an order. In my view, X needs to be protected from any expectation that she can or must make decisions that are more properly ones for her parents or her father, in the case of major long-term issues. For that reason, I largely prefer the father’s proposed order.
Although both parents suggested that X should have the choice to extend the time she spends with the father over and above what the parents both propose in relation to Terms 1 and 2, I am not inclined to make such an order. If there is to be any further change, that is something for the parents to decide.
I do not intend to suspend the operation of paragraph 11(c) of the 29 June 2023 order as it relates to Christmas time and that has passed for now.
I do not intend to make an order in relation to X’s continued treatment at LL Health Service until a private therapist is engaged, as I see this as a matter falling within the father’s remit of sole parental responsibility. For the same reason, I do not intend to make an order about which private therapist X should see.
Both parents sought the inclusion of a provision in the order, by consent, requiring both parents to “use their best endeavours to ensure [X’s] attendance at any meetings requested by G School [Suburb C] or the Department of Education”. On the understanding that this refers to a request by the school or the Department of Education that X attend any such meeting, then I am content to make that order.
CONCLUSION
Provisions of the final parenting order made on 29 June 2023 will be suspended until 5 July 2024 and substitute provisions made in relation to X’s time with her father. Additional restraints will be ordered against the mother in relation to her contact with the children’s school. I have largely adopted the order sought by the father.
A good outcome for X is in the mother’s hands, in that she should fully comply with not only the provisions of the order but also the spirit of the order. However difficult it may be for the mother to step back it is imperative that she do so for X’s sake. It is also imperative for the mother to demonstrate to X her support for the parenting order. X must be relieved of any expectation that she needs to make decisions about her treatment, her attendance at school, or whether she spends time with her father.
The matter will be further mentioned before me for the purpose of hearing submissions as to what, if any, further hearing is required in this matter.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 7 February 2024