GRANT & AIDEN

[2018] FamCA 163

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN [2018] FamCA 163

FAMILY LAW – CHILDREN – with whom a child lives –where the mother has consistently failed to comply with Court orders providing for the child to spend time with the father – where the mother unilaterally relocated the child’s residence from Victoria to Queensland – where the mother was fixated on Court processes rather than the child’s welfare – where the mother has failed to prioritise the child’s needs ahead of her own – where there is a need to protect the child’s psychological wellbeing – where the child has been living with the father since June 2016 – where the mother discontinued proceedings – orders made for the child to live with the father and have supervised contact with the mother.

Family Law Act 1975 (Cth)

Harridge and Anor & Harridge and Anor [2010] FamCA 445
Mulvany & Lane (2009) FLC 93-404

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: Trapski Family Law

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 16 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 20 - 21  March 2017, 26-28 April 2017, 4-5 May 2017, 16 May 2017, 13-15 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders made 15 November 2017

The mother having filed a Notice of Discontinuance this day with respect to her Response to an Initiating Application filed 13 January 2017 as amended on 15 May 2017  IT IS ORDERED THAT

1. All previous parenting orders be discharged.

2. The father have sole parental responsibility for the child V born … 2006 (“the child”).

3. Before making any decisions relating to long term aspects of the welfare of the child the father is to send the mother an email outlining the matter which he needs to decide and setting out what his proposals are. The mother is to respond within seven days and the father is to take into account what the mother has said and then inform her of his decision by email no later than 24 hours after making that decision.

4. The child live with the father.

5. The child spend time and communicate with the mother as follows:

   (a)on such dates and on such times as directed by the Team Leader of the B Street Children’s Contact Service;

   (b)by telephone on Tuesdays and Sundays of each week between 6.00 pm and 6.30 pm and for the purposes of such communication:

   (i)the mother to place the call;

   (ii)the father to ensure that the telephone is charged, switched on and that the child is available to speak to the mother; and

   (iii)any and all such communication is to be supervised at all times by either the father or his nominee;

   (c)as may be otherwise agreed between the parties in writing.

6. For the purposes of the mother’s time with the child each parent attend any intake assessment and follow any reasonable request of the Team Leader of B Street Children’s Contact Service in order to complete the intake process.

7. Each party keep the other informed of their current residential address, contact telephone number, email address or other contact details and advise the other party within 24 hours of any change.

8. The father do all acts and things necessary to authorise the mother to:

   (a)receive school reports, newsletters, photographs and any other communication usually sent to parents by the child’s school, extracurricular activity provider or other organisation engaged with the child;

   (b)communicate with any school, education, medical, health or other professional engaged with the child and receive information from them about the child’s welfare and progress.

9. Until further order the mother, her servants and agents be and are hereby restrained from attending at any school at which the child is enrolled, extra-curricular events or activities, or places where the child is or may be present, unless permitted by order of the Court or prior written agreement between the parties.

10. Each parent notify the other parent should the child suffer a health emergency or serious illness whilst in their care.

11. Without admitting the necessity for same the parents, their servants and/or agents are restrained by injunction from the following:

    (a)denigrating, intimidating, rebuking or belittling the other parent in the presence or hearing of the child or allowing anyone else to do so;

    (b)denigrating the other’s family members and/or partner in the presence or hearing of the child or allowing anyone else to do so;

    (c)discussing the proceedings with the child, save to explain the content of any Court orders, or allowing anyone else to do so.

12. The father be permitted to provide to Dr T any school, medical practitioner or other mental health professional involved with the child with a copy of the Reasons for Judgment for the making of these orders, a copy of these orders and the Family Report dated 24 February 2017.

13. Leave is granted to the father to make an oral application for a vexatious proceedings order pursuant s 102QB of the Family Law Act 1975 (Cth).

14. By 4.00 pm on 6 December 2017 the father file and serve upon all other parties a bullet point summary of argument in support of his application for a vexatious proceedings order.

15. By 4.00 pm on 20 December 2017 the mother file and/or the Independent Children’s Lawyer file and serve any response to the summary of argument filed by the father in support of/or in opposition to his application for a vexatious proceedings order.

16. My Reasons for Judgment for the orders made this day be reserved to a date to be fixed.

17. The father’s oral application for a vexatious proceedings order be reserved to a date to be fixed for judgment.

18. The father’s amended Initiating Application filed 9 December 2016 be otherwise dismissed.

19. The order appointing the Independent Children’s Lawyer be discharged as and from 21 December 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 15 November 2017 the mother filed a Notice of Discontinuance of her Amended Response to Initiating Application filed 15 May 2017 and her Response to Initiating Application filed 13 January 2017. Thereafter, I made final parenting orders as sought by the father supported by the Independent Children’s Lawyer and reserved my reasons. These are those reasons.  

2. The final hearing was in relation to the parenting arrangements for the child V born in 2006 (“the child”) currently 11 years of age. The child lived with the mother until the execution of a recovery order on 6 June 2016 when she was placed in the care of her father. The child currently lives with the father and his partner in Melbourne while the mother resides in Queensland.

3. There is a high level of conflict between the parents in this case. The mother’s case, based upon her allegations of family violence and abuse during the relationship, is that the child is at risk of abuse in the father’s care. The father’s case is that the mother has, since separation, failed to promote and facilitate his relationship with the child. 

Background

1. The father in this case is 58 years of age and the mother is 53 years of age. The parties commenced a relationship in September 2004, married in 2005 and separated in September 2007. They were divorced in 2010.

2. The mother asserts in her summary of argument that the father “is a violent man. This is an undisputed fact, already decided in multiple, discrete court proceedings.”  The mother in support of that assertion relies upon what she says was both family violence and abuse allegedly perpetrated by the father against the mother and her two sons from a previous relationship, during her relationship with the father.

3. The mother has made numerous reports to police and Child Protection of family violence and abuse of both herself and her sons. None of those allegations of abuse have been substantiated by the Department of Health and Human Services and the father has not been convicted of any offence.  Recently the mother applied to the Magistrates Court at Melbourne for an intervention order. That application was dismissed on 16 March 2016. The mother also applied for similar orders in the Magistrates Court of Queensland at Brisbane which were dismissed on 25 October 2016.  In May 2016 one of the mother’s sons made a complaint to Victoria Police in relation to alleged abuse by the father during his mother’s relationship with the father. That complaint has now been investigated and the files closed without any charges being laid. Her other son has had previously made complaints about the father.

4. The case is also marked by a significant history of non-compliance by the mother with orders of the Court. On 11 December 2008 the Court made interim parenting orders which provided for the child to spend supervised time with the father at a contact centre. On 15 May 2009, the mother was found to have contravened that order, as a result of which she entered into a bond for a period of 24 months, the conditions of that bond being that the mother be of good behaviour and comply with the orders of the Court.

5. On 4 February 2011 final orders were made which provided for the child to live with the mother and spend time with the father each alternate weekend, each alternate Wednesday evening, school holidays and on special occasions. On 1 February 2013, the Court found that the mother had contravened the final orders and she was placed on a further good behaviour bond for a period of two years.  

6. In or around August 2015, the father says the mother once again stopped facilitating the child spending time with him pursuant to the final orders made in February 2011 and on 22 February 2016, he filed an Amended Contravention Application which asserted that the mother had failed to provide the child for the purposes of spending time with him on 11 occasions. It was the mother’s case that the child refused to go.

7. On 18 March 2016, during a hearing before Cronin J, the mother conceded in cross examination that she had relocated with the child to Queensland without advising the father and without his consent, in the middle of the child’s school term, the mother also failing to notify the child’s school. On 22 March 2016 Cronin J made orders requiring the mother to return the child to Victoria for the preparation of a section 11F report to assess inter alia whether it would be in the child’s best interests to resume spending time with the father. On 22 April 2016 Cronin J found that the mother had contravened the final orders and made orders for the preparation of a section 11F report for the purposes of determining what, if any, make up time he should order. The orders required the mother to deliver the child to the father for the purposes of her attendance upon a family consultant at the Brisbane Registry of the Court. On 29 April 2016 his Honour made orders requiring the mother to deliver the child to the father’s care for the purposes of spending make up time with him and in the event that she did not do so, the recovery order also made on that date was to be executed for the purposes of giving effect to his Honour’s orders. On 6 June 2016 when the mother failed to deliver the child to the father as ordered, the child was collected from school in Queensland by the Australian Federal Police and delivered into the father’s care in Brisbane. Since being placed in the father’s care on 6 June 2016, the child has been living with the father and his partner in Melbourne.

8. On 4 August 2016 Senior Registrar FitzGibbon made orders that the child live with the father and that the child spend supervised time with the mother at B Street Contact Centre. The mother did not complete the application process at B Street Contact Centre and as a consequence, has not spent any face to face time with the child pursuant to the orders made by the Senior Registrar on 4 August 2016.

9. Those orders also provided for supervised time by telephone between the mother and the child with the calls to be initiated by the father. The mother did not avail herself of that telephone time until Bennett J made orders on 6 October 2016 providing for the mother, rather than the father, to initiate the calls. Supervised telephone time has occurred on a regular basis since that time.  

Background to the current proceedings

1. This matter was initially listed for a final hearing before me commencing on 12 September 2016. However, in circumstances where the mother had filed an application for a review of the orders made by the Senior Registrar on 4 August 2016, the matter did not proceed on that date. On 6 October 2016 the mother withdrew her application for review. The mother’s insistence on pursuing that application for a review, rather than proceeding with the final hearing, is in my view reflective of the mother’s focus on Court processes, rather than what is in the best interests of the child. Ms AA, consistent with my observation of the mother and the way in which she conducted her case, described the mother as presenting

   ...as somewhat chaotic in her thoughts and speech. She found it difficult to be diverted from her preferred discourse which was about the Court process rather than the arrangements for [the child]. Despite numerous explicit requests to have her focus on the needs and interests of [the child], she continually spoke of her dissatisfaction with court process and the impact of the recent arrangements upon her. This narrative was strong and repetitive and difficult to dislodge her from.

2. The mother’s Trial Affidavit and the way in which she conducted her case during the trial was similarly focused on the history of her relationship with the father and the Court processes, rather than the child’s welfare.  

3. The final hearing was relisted before me on 20 March 2017. On that date, the mother submitted that the matter should not proceed until judgement in her appeal against the orders of Cronin J made 22 March 2016 and 29 April 2016 had been delivered. I initially formed the view that it was not necessary to await the outcome of that appeal and that the matter could proceed. However on 21 March 2017, having reflected further upon that matter, I indicated that I proposed to adjourn the matter to await the outcome of that appeal. Somewhat surprisingly, the mother who had raised this issue, opposed the adjournment. The case was not formally opened. However, I did deal with some procedural and evidentiary matters in anticipation of the matter being able to commence and proceed without delay after the Full Court handed down its decision on the mother’s appeal. On 24 March 2017, the mother’s appeal was dismissed by the Full Court and the final hearing commenced before me on 26 April 2017.

4. Counsel for the father opened the father’s case and the father gave evidence and was cross examined by the mother on 26-28 April 2017 and by the Independent Children’s Lawyer on 28 April 2017. The father’s partner Ms C also gave evidence and was cross examined by the mother and the Independent Children’s Lawyer on 27 April 2017. The mother opened her case on 28 April 2017 and counsel for the father commenced his cross-examination of the mother on that day.

5. In the early stages of his cross examination of the mother, counsel for the father attempted to put to the mother some of the history of the mother’s non-compliance with orders, the father’s case being that in the event that orders were made for the child to live with the mother she would, given that history, be unlikely to facilitate the father spending time with the child. This is  notwithstanding that it was her proposal that the child spend six weeks each year with the father. The mother said repeatedly that she was not clear on the dates or details of the orders or the proceedings when she was found to have contravened the orders.  This is notwithstanding that it was my observation of the mother and the way in which she conducted her case that she was able to recall significant detail of matters which she saw as advancing her case or which she considered relevant. For example, the mother was able to recall that the father in an affidavit he had sworn in May 2016 had used the wrong birthdate for the child.

6. More importantly, the mother was an extremely uncooperative witness, refusing to make concessions, even in relation to orders about which there arguably could be no dispute. 

7. On 4 May 2017 the mother’s witnesses, Mr P, a clinical psychologist at BB School and federal agent Ms CC gave evidence and were cross examined by the counsel for the father and the Independent Children’s Lawyer. Once the examination and cross examination of the mother’s two witnesses on this date had finished, the father resumed his cross examination of the mother, once again attempting to put matters to the mother based primarily on the history of this matter and the previous orders. Despite my attempts to encourage the mother to cooperate and answer the questions, she continued to be uncooperative and argumentative, ultimately refusing to answer the questions she was being asked.

8. It was at this point, on day six of the final hearing, that the mother indicated that she wished to make an application that I recuse myself from the case on the grounds of actual bias.  Having heard the mother’s application, the matter was adjourned to a date to be fixed. The matter was again listed for hearing on 16 May 2017 and on that date I delivered reasons and dismissed the mother’s application.   

9. The final hearing resumed on 16 May 2017, the seventh day set aside for that hearing. On 15 May 2017 the mother had filed an Amended Response in which she sought to join her two sons and her mother as parties to the proceedings. The mother also sought an adjournment to process, what she asserted, was new evidence from Dr T that had been released by subpoena on 27 April 2017 and an order requiring the parties to attend dispute resolution. I heard from counsel from the father and the Independent Children’s Lawyer in relation to the adjournment, dispute resolution and the addition of the other parties. They both opposed the orders the mother sought. The Court was adjourned temporarily so that I could consider my decision and deliver my reasons later that day. However, when I returned to Court I was advised by the Court officer in Brisbane that the mother had been taken by ambulance to the DD Hospital. Thereafter I delivered reasons and made orders dismissing the mother’s application for the joinder of her sons as parties to the proceedings and for the parties to be required to attend dispute resolution. On the application of counsel for the father and the Independent Children’s Lawyer and where there was some uncertainty as to the circumstances of the mother having left the Court, I also made an order for the mother to file an affidavit detailing the medical circumstances which lead to her absence from Court.  I further ordered that in the event that she failed to comply with the orders, the father was at liberty to apply for the matter to proceed on an undefended basis.

1. The matter was otherwise adjourned for a mention on 24 May 2017. On that date, in circumstances where it was submitted by counsel for the father that the mother’s affidavit failed to comply with the requirements of my orders made 16 May 2017, I gave leave to the father to issue a subpoena addressed to the doctor who had treated the mother at DD Hospital.

2. The matter was again listed for a mention before me on 24 August 2017. On 23 August 2017 the mother filed a Contempt Application and an Application in a Case. The Application in a Case sought that the family report of 24 February 2017 be struck out, Dr Z’s psychiatric report be struck out, the removal of the Independent Children’s Lawyer, a stay of proceedings and that the interim orders made 4 August 2016 be set aside and another order be made to return to the status quo of the final parenting orders made in February 2011 which provided that the child live with the mother. On that date, the mother submitted that her two applications should be heard before the trial re-commenced on 18 September 2017. I made orders on that date listing the two applications to be heard on 18 September 2017 or as otherwise advised on short notice.

3. The mother’s two applications were ultimately listed for hearing before Austin J on 31 August 2017. On that date the mother sought an adjournment of her Contempt Application as she wanted to file a further affidavit.  This is despite her request for an urgent listing of both her applications. Austin J refused the mother’s application for an adjournment of her Application for Contempt and proceeded to hear that application, which was summarily dismissed. The mother was ordered to pay the father’s costs of that application.

4. The mother’s Application in a Case was adjourned to the following day. On that date Austin J dismissed the mother’s Application in a Case and ordered costs against her.

5. Although the trial was set to resume on 18 September 2017, it could not proceed on that date and was adjourned by the Court resuming again on 13 November 2017. On that date, the mother sought leave to file a further Application in a Case. In that application, the mother sought orders, inter alia, that unsettled questions of law be answered before the matter could proceed i.e. that her outstanding appeals be determined and in particular her application for leave to appeal to the High Court against the Full Court’s decision dismissing her appeal from the orders made by Cronin J on 22 March 2016 and 29 April 2016, the father’s application be summarily dismissed and he be declared a vexatious litigant, the mother to proceed undefended and that the father pay the mother’s costs. I refused the mother’s oral application for leave to file her Application in a Case.

6. On that date the maternal grandmother also sought leave to file an application seeking to intervene in the proceedings. This application was also dismissed.

7. Later the same day, the mother made an oral application for a stay of the proceedings due to two pending appeals, one seeking leave in the High Court and another which was an appeal to the Full Court of this Court from Austin J’s orders made 1 September 2017.  On 14 November 2017 the mother’s oral application for a stay was dismissed.

8. After I delivered judgment on 14 November 2017 dismissing the mother’s oral application for a stay, the mother then said that she wished to make an oral application for me to disqualify myself from hearing the proceedings on the basis of actual bias. After that application was dismissed, the mother applied for an adjournment on the grounds that she now wished to obtain legal representation. That application was similarly dismissed.

9. When the matter resumed the following day, the mother filed her Notice of Discontinuance.

The issues

1. At the commencement of the final hearing, the issues I was required to determine were:

   ·    Whether the mother or the father should have sole parental responsibility, or whether they should have equal shared parental responsibility;

   ·    Whether the father presents as an unacceptable risk due to allegations of physical and sexual abuse;

   ·    Whether the mother would be able to encourage or facilitate time between the child and the father;

   ·    Who the child should live with; and

   ·    What time should the child spend with each parent and whether any of that time should be supervised.

Material Relied Upon

1. In her Outline of Case document, the mother sought to rely upon a lengthy list of affidavits previously filed by or on her behalf. This was notwithstanding my orders which make it clear to the parties that they cannot rely upon previous affidavits without leave.

2. The mother was permitted to rely upon:

   ·her Affidavit filed 13 January 2017 (“the mother’s Trial Affidavit”)

   ·her Affidavit filed 16 March 2017 (which relates to the mother appearing by electronic communication and was not objected to by the father)

   ·her Affidavit filed 18 April 2017

   ·her Affidavit filed 24 April 2017

   ·her Affidavit filed 25 April 2017

   ·her Financial Statement filed 27 April 2017

   ·her Affidavit filed 27 June 2016 (save for Annexure ‘C’ and ‘I’ which were struck out)

   ·Affidavit of Mr N Aiden filed 9 February 2017

   ·Affidavit of Mr Aiden filed 13 January 2017

   ·her Outline of Case filed 15 March 2017

3. The father relied upon the following material:

   ·    his Affidavit filed 9 December 2016 (“the father’s Trial Affidavit”)

   ·    Affidavit of Ms C filed 9 December 2016

   ·    Amended Initiating Application filed 9 December 2016

   ·    Family Report dated 24 February 2017

   ·    Psychiatric Report of Dr Z dated 23 January 2017

   ·    his Outline of Case filed 15 March 2017

4. The Independent Children’s Lawyer relied upon the following material:

   ·    Child Responsive Program Memorandum dated 19 April 2016

   ·    Child Inclusive Conference Memorandum dated 28 April 2016

   ·    Child Inclusive Conference Memorandum dated 30 January 2017

   ·    Department of Health and Human Services 67Z Report dated 23 July 2016

   ·    Department of Health and Human Services 69ZW Report dated 4 October 2016

   ·    Family Report dated 24 February 2017

   ·    Psychiatric Report of Dr Z dated 23 January 2017

The Evidence

1. The standard of proof is the balance of probabilities. Whilst not limiting the matters the Court may consider in applying that standard, the Court must consider the nature of the cause of action, the nature of the subject matter of the proceedings and the gravity of the matters alleged.

2. Although I was ultimately asked to make orders on an uncontested basis, I had in this case had the benefit of hearing the evidence of the father and his new partner and the mother, albeit the mother was not a cooperative witness and in those circumstances, gave only limited evidence.   

3. The father presented as somewhat reserved and at times, perhaps not surprisingly, somewhat resigned and I am mindful, particularly given the nature of the allegations she makes, of how difficult it must have been for him to be cross examined by the mother and the impact these drawn out proceedings have likely had upon him. However, I also observed that when asked questions about the child by counsel for the Independent Children’s Lawyer his demeanour changed and he was warm and expressive and his love of the child was obvious. I am satisfied that he was doing his best to answer the questions truthfully and was focussed on the welfare of the child.

4. The father’s partner, Ms C also gave evidence and was cross examined by both the mother and counsel for the Independent Children’s Lawyer. She was an impressive witness and her love for the child was also apparent from her evidence. I am satisfied based upon that evidence that not only is she focused on the welfare of the child, she also has a very good understanding of what is required to advance the child’s welfare.

5. The mother was not a good witness. As previously referred to, during cross examination she was uncooperative and argumentative, ultimately refusing to answer the questions she was asked. This was despite my numerous requests that she cooperate, directions to her to answer questions and ultimately warnings as to the possible consequences of her lack of cooperation.  I was left with the sense that if the case was not proceeding on her terms, she would not cooperate, her focus being on the Court process itself as well as on what she alleges was a history of abuse and family violence during the relationship and ignoring those matters going to the welfare of the child about which I am required to make a decision. I have no confidence in her evidence and albeit the father’s application was ultimately uncontested by the mother, where there is any dispute between the evidence of the father and Ms C and the mother’s evidence, I prefer the evidence of the father and Ms C.

Proposals of the Parties

1. The Independent Children’s Lawyer proposed that the father have sole parental responsibility for the child, that the child live with the father, that the child spend supervised time with the mother at such dates, times and places as directed by the Team Leader of the B Street Children’s Contact Service and that the child communicate with the mother by telephone, Facetime or Skype on Tuesdays and Sundays for half an hour. The Independent Children’s Lawyer proposed that the father notify the mother through email of decisions made in execution of his parental responsibility as soon as possible after making that decision.

2. The Independent Children’s Lawyer also sought orders requiring the parties to keep each other informed of their contact details and notify the other of any medical emergency or serious illnesses of the child, non-denigration orders, orders which provide for the father to authorise the mother to receive school and extracurricular materials and authorise the mother to communicate with the school, medical, health or other professionals engaged with the child. Lastly, the Independent Children’s Lawyer sought orders that the child continue to attend upon her psychologist Dr T for counselling and for that counsellor and any school or doctor or medical professional to be provided with a copy of the orders and a copy of the family report.  

3. The father essentially adopted the orders proposed by the Independent Children’s Lawyer, subject to a few minor variations. He proposed that the child communicate with the mother by telephone only, rather than by Facetime and Skype as proposed by the Independent Children’s Lawyer. The father also proposed that in the exercise of parental responsibility he be required to send the mother an email setting out his proposals before making any decisions relating to long term aspects of the child’s welfare, with the mother to respond within seven days and the father is to take into account her views and thereafter inform her of his decision by email no later than 24 hours after making that decision.

4. The father also questioned whether or not it would be possible for the child to attend therapy with Dr T in light of the mother’s complaints to and about Dr T. However, in circumstances where the father will have sole parental responsibility, I am satisfied that he can make arrangements for the child to attend therapy either with Dr T if that is possible or some other therapist.  

5. Until the mother withdrew from the proceedings it was her proposal that she should have sole parental responsibility and that the child live with her in Queensland and spend half of the school holidays with the father in Victoria, with the father to bear the cost of travel.

Legal Principles

1. The father in this case seeks final parenting orders. Notwithstanding that the mother withdrew from the proceedings, the Court’s paramount consideration when making a parenting order is the best interests of the child the subject of the proceedings (s 60CA of the Family Law Act 1975 (Cth) (“the Act”)). The Court is required to follow the legislative pathway outlined in the Act and must have regard to the primary and additional considerations in s 60CC of the Act in order to determine what orders would be in the child’s best interests.. Murphy J in Harridge and Anor & Harridge and Anor [2010] FamCA 445 at paragraph 35 described the s 60CC factors as the “signposts or touchstones within which the broad enquiry as to best interests must be conducted.”

2. In Mulvany & Lane (2009) FLC 93-404 May and Thackray JJ said the following at paragraphs 76-77

   It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests. (Emphasis in original)

   It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…

3. That enquiry in this case is conducted in circumstances where the orders sought by the father are unopposed.

Section 60CC Considerations

The child’s relationship with the parents and other family members and whether it would be beneficial or possible for the child to have a meaningful relationship with her parents

1. As previously referred to, although the father was a somewhat reserved witness, when asked questions about the child he became expressive and his love for the child was clear. Both the father and Ms C were forthcoming and insightful about the trauma the child had experienced as a result of being removed from the mother’s care in June 2016 and how they had addressed those challenges. The father gave the example of the child being distressed when telephone time with the mother first occurred and that he and Ms C encouraged the child to speak to her mother. He also said that the telephone time had been beneficial for the child. This is consistent with what they were reported to have told Ms AA.

2. They also both gave evidence about how well settled the child now is in their care and about the life they have made for her, giving examples including the child’s involvement with her local Scouts and her participation in school events and fundraisers. They both described a warm and positive relationship with the child consistent with Ms AA’s observations of the child in their care. Ms AA said in her report as follows at paragraphs 53 and 54:

   After the observation with her mother, [the child] indicated a level of fatigue and it was clear it had been emotionally draining for her. [The child] went to her father and step mother and hugged them. She assumed she was going home at that point so gathered her things. As the assessment concluded, [the child]  appeared the happiest and calmest she had throughout the day. She was observed to laugh and hug [Ms C] and engaged with her father around the practical activities related to their departure.

   As [the child] left the assessment with her father and [Ms C], she was observed to be much more engaged and was interacting easily with both…

3. I am satisfied that the child has a strong and positive relationship with the father and his partner. 

4. Although when the child attended the interviews with Ms AA in January 2017 she had not seen the mother since being removed from her care in June 2016, Ms AA described what she said was “clearly a strong bond between [Ms Aiden] and [the child]”. Ms AA reported that during her observations of the child with the mother the mother’s “...prior argumentative and defensive demeanour evaporated and she provided [the child] with a level of comfort to what was clearly a very distressing time for [the child], which is indicative of an attuned and child focussed parent.”

5. Ms AA at paragraph 66 of her report observed as follows:

   In an ideal scenario, [the child] would move seamlessly between two parents who clearly love her and both lived in the same geographical region. She would be supported to have time with both and she would feel confident that she was allowed to enjoy and develop a relationship with all of the adults in her life. Unfortunately this is impossible.

6. At paragraph 57 of that report Ms AA concluded as follows:

   Unfortunately, the high level of parental conflict and the geographical distance means there is no ideal scenario for [the child], so this becomes a matter of seeking out the best of significantly compromised options. It is noted that whichever scenario eventuates, [the child] will suffer significant losses in one parental relationship.

7. Ms AA observed in her report that “...it was clear that [the father] believed [the mother] should have a role in [the child]’s life”. I accept her evidence and having heard the father’s evidence, I am confident that he has both the capacity and commitment necessary to facilitate the child having a meaningful relationship with the mother, subject to there being appropriate safeguards in place.

8. However, although I am satisfied that the child would likely benefit from a meaningful relationship with both the father and the mother, subject to the child’s time with the mother being supervised, I am also satisfied as opined by Ms AA that this is unlikely to be possible. The mother’s evidence that she intends to continue living in Queensland creates practical difficulties in terms of her relationship with the child, particularly given the necessity for the child’s time with the mother to be supervised. It is hard to see how, even if the mother were willing to spend supervised time with the child, that time could be facilitated on a regular basis. 

9. However, even if the mother were to return to live in Melbourne or visit Melbourne on a regular basis, I am satisfied based upon her evidence that she is unlikely to spend any face to face time with the child if that time is supervised.

10. Albeit the child no longer spends any face to face time with the mother, her half siblings or the mother’s extended family, both the father and Ms C gave evidence about the child spending time with Ms C’s large extended family and her interaction at family gatherings with Ms C’s brothers, their wives and their children, whose ages range from babies to young adults. I accept their evidence and am satisfied that these relationships play a positive part in the child’s life.

11. Although it is likely that the child missed her mother and her half siblings as well as the maternal grandmother after being removed from the mother’s care in June 2016, I am satisfied in circumstances where the proceedings are uncontested, having read their affidavits and having had the benefit of hearing the maternal grandmother present her case with respect to being granted leave to intervene in the proceedings, that they are aligned with the mother and have little or no insight into the impact of or likely damage to the child caused by the mother’s attitude to the father and her inability to prioritise her daughter’s needs. Ms AA said at paragraph 67 of her report as follows:

    …

    It was also apparent that as long as she and her two sons continue to collude in the discourse of [the father] as a violent and predatory man, even with the lack of evidence, that they cannot under any circumstances support any relationship between [the father] and [the child]. It is clear that if [the child] was to spend unsupervised time with her maternal family that her relationship with her father would most likely quickly erode and become non-existent. This is most unfortunate, as [the child] needs her mother, but at this point in time it appears that the only relationship with [the child] that [the mother] can contemplate is solely on her terms. 

12. Those terms mean that the child will, as described by Ms AA, almost certainly lose her relationship with her mother, her half siblings and the mother’s extended family. It is however, as described by Ms AA, “a matter of seeking out the best of significantly compromised options.” I am satisfied that in this case the best and only real option is for the child to remain in the father’s care and spend supervised time with the mother, assuming that the mother choses to avail herself of that time with the child.

The need to protect the child from harm

1. Although the mother described the father as a “serial family violence perpetrator” these allegations were almost, if not entirely, in relation to events during their relationship in circumstances where the parties have been separated for over 10 years and since separation, the mother has consented to various orders which provided for the child to spend unsupervised time with the father. It is also the case that before the mother decided that she no longer wished to participate in the proceedings, her proposal was that the child should spend six weeks unsupervised time each year with the father.  

2. The child has been living with the father since June 2016. The allegations of family violence and abuse, even if they had been substantiated, are historical.  I am satisfied on the balance of probabilities having heard the evidence of the father and Ms C and having had the benefit of Ms AA’s family report, in the absence of any evidence that would suggest that the child might have been abused, been exposed to abuse, or been the subject of or exposed to family violence since she has been in the father’s care, that there is no risk of any harm to the child in the father’s care. This is also consistent with the information provided to the Court by the Department of Health and Human Services.

3. On the other hand, I am also satisfied that there is a significant risk to the child of psychological and emotional abuse in the mother’s care, albeit I am also satisfied that that risk will be ameliorated if the time the child spends with the mother is supervised as proposed by the father. Having heard the mother’s evidence and the way in which she conducted her case, I am satisfied that the mother, as described by Ms AA, is unable to “acknowledge the important role [the father] plays in [the child]’s life” and is unable to facilitate her relationship with the father. As Ms AA said in her report the mother presents “…as over involved in Court processes and under involved in [the child]’s life. Her combative approach to proceedings is ferocious and intent and this detracts from, and compromises, her ability to hold [the child] in mind.”

4. The way in which the mother gave evidence and conducted her case generally highlighted her inability to focus on the child’s welfare. For example the mother objected on the grounds of relevance to questions Ms C was asked in relation to the child’s care and her welfare generally. One example being when counsel for the Independent Children’s Lawyer asked Ms C what high school she and the father were considering for the child. The mother objected on the basis that this question was not relevant because it discussed the future. The mother also made various applications which had no merit but also would have, had they been successful, delayed the final determination of the matter and made no sense in circumstances where the child had been removed from her care and she was seeking orders for the child’s return to her care.  

5. As Ms AA observed in her report the mother’s “...cognitive process and reasoning appears at times, to defy logic”. This is certainly consistent with my observations of the mother, both during her evidence and the case generally.  As Ms AA pointed out, the mother failed to attend for further psychiatric evaluation by Dr Z and there is a lack of current information in relation to the mother’s mental health. It is also the case that when the mother was assessed by Dr Z in 2009 he posited two scenarios. The first was that the mother was experiencing post-traumatic stress disorder due to her experience of the father’s family violence. The other possibility was that

   ...if the father’s account was found to be accurate, the mother’s disturbed and fragile mental state would be seen as the cause of her misperceptions of him. Under these circumstances, [the mother]’s fixed and unwavering belief system developed in regard to [the father] would appear to be of psycho9tic [sic] intensity and as such, raises the question of psychiatric treatment of that condition which would not likely remit in the absence of such treatment.

6. The mother did attend upon Ms AA for the preparation of her updated report however; she did not comply with the order requiring her to attend upon Dr Z for assessment. One possibility for her failure to attend, as opined by Ms AA, being the mental health issues identified by Dr Z in his first report, and her refusal to attend being “...part of a process of ensuring there is no evidence to credit or discredit her on the grounds of her mental health.” 

7. The father did, as ordered, attend upon Dr Z for further assessment. Dr Z concluded in his report in regards to the father as follows:

   There are no indications of a Personality Disorder. In regard to risk, [the father] does not present as a risk to his daughter who he clearly loves. He has pursued contact with [the child] over an extended period…

8. I am left with significant reservations about the mother’s mental health and how that might impact upon the welfare of the child. It is most unfortunate that the mother’s preoccupation with the Court processes and her fixation upon what she alleges was a history of significant family violence and abuse is impacting on her relationship with the child and the child’s welfare. This is in circumstances where although Dr Z appears to be suggesting that the mother might benefit from psychiatric treatment, she did not attend upon Dr Z for assessment, does not acknowledge the possibility of any mental health issues and it would seem, has not sought any psychiatric treatment. 

9. The father told Ms AA, which is consistent with the way in which he put his case that  

   ...he knew that if [the mother was] to have any unsupervised time that [the child] would immediately start to reject him again. He said he believed  treated this as a win/lose scenario and that if she doesn’t have all of [the child]’s time she will take nothing.

   I accept on the balance of probabilities, based upon the evidence, that this would be the likely outcome if the child were to spend unsupervised time with the mother, who in my view is committed to proving that she and her sons were the victims of family violence by the father and in doing so, totally ignoring the welfare of the child in the process of achieving that aim.

10. I am satisfied on the balance of probabilities that the child is at risk in the mother’s care if the time she spends with the child is not supervised.  The orders proposed by the father, which would allow the child to spend time with the mother at B Street Contact Centre, subject to the mother complying with the requirements of B Street Contact Centre are in all of the circumstances, in the child’s best interests.

Additional Considerations

Parents Capacity to Care for the Child, their Attitude to the Child and the Responsibilities of Parenthood

The extent to which the parties have taken, or failed to take, the opportunity to spend time and communicate with the child

1. Although Ms AA was somewhat critical of both parties for not having protected the child from their dispute, it is also fair to say that her criticism and concerns with respect to parenting capacity was primarily directed at the mother and in particular her inability to focus on the child’s needs.  

2. As noted earlier in these reasons, orders were made by this Court on 4 August 2016 that provided for the mother to spend supervised time with the child and to have supervised communication with the child by telephone and through email. Although the mother conceded in cross examination that she had travelled to Melbourne “a couple of times” after moving to Queensland to visit her son Mr N who was still at school in Melbourne and she travelled to Melbourne to meet with Ms AA, she did not make any attempt to spend any face to face time with the child. In addition, notwithstanding the orders, the mother did not communicate with the child by telephone until the orders were varied on 6 October 2016 to provide for the mother to telephone the child, rather than the father telephoning the mother.

3. When Ms AA asked the mother why she had not arranged to spend time with the child during her visit to Melbourne for the preparation of the family report, she said that the mother had told her that although she had received a letter inviting her to spend time with the child, she had been asked to respond the same day. The mother said she did not make contact with B Street Contact Centre, as she was too late and assumed she would be refused a service. Ms AA reported that when she challenged the mother about what she had said

   [the mother] became belligerent, blaming others for not having communicated on time, or the process of [B Street] as the issue rather than her lack of willingness to follow that process.

4. In my view the mother’s attitude to spending time with the child highlights her inability to focus on the needs of the child. Ms AA said in her report as follows:

   Given [the child] has been out of her care, she demonstrated a complete disregard for [the child]’s needs and interests when she chose not to engage with supervised time nor take any of the phone calls that came. This appears to prioritise her own need for control over [the child]’s need to have her mother engaged in her life. While [the child] would not be drawn on this topic, it is easy to imagine that [the child] would feel a level of abandonment by her mother as she sat waiting for her mother to receive her phone calls. The active demonstration of this by [the child] could be concluded to have occurred when she expressed ambivalence about actually seeing her mother during this assessment. The challenge here is that the mother child relationship appears dependent upon the mother’s level of comfort and not the child’s. This is a poor message to give any child.

5. The mother’s interaction with the child’s therapist Dr T and in particular her attempts to prevent Dr T seeing the child, including her threat of complaints to the Psychology Board of Australia and her refusal to provide consent for Ms AA to speak to Dr T are further examples of the mother’s inability to prioritise the child’s welfare over hers and what she obviously perceived might give her some tactical advantage in the proceedings.

6. The father, on the other hand, has gone to great lengths over the years since he and the mother separated, including making various applications for contravention, to maintain his relationship with the child and play an active part in her life.

The likely effect of any changes in the child’s circumstances 

1. The child has been through significant changes in her circumstances in the past two years. She has had her place of residence unilaterally moved from Victoria to Queensland, was collected from school by the Australian Federal Police and placed in the care of her father in Melbourne in June 2016. The child had lived with the mother up until this point.

2. The father deposes that the child has settled in well despite the significant changes. The father and his partner reported to Ms AA that “despite a traumatic start, [the child] settled well, commenced her new school seamlessly, has made many friends.” This is consistent with her school reports which Ms AA opined suggested a level of adaptability. However Ms AA also said in her report that “…the past 12 months has seen significant change [for the child] and her capacity to manage that level of change is potentially at capacity.”

3. I am satisfied that the mother’s proposal which would see the child relocating to Queensland, leaving aside for the moment the question of whether the mother is capable of facilitating the child’s relationship with the father,  would be likely to have a detrimental impact upon the child, causing her further distress and trauma at yet another upheaval of her life.

The child’s wishes

1. The child is now 11 years of age. Ms AA described the child as being ambivalent about seeing the mother and said that she “...appeared genuinely conflicted as to whether she wanted to see her at all.” However, she also said that once the child had seen the mother, she was very emotional and told the mother she wanted to go home with her.

2. Ms AA described the child as: 

   …a girl torn between two parents whose needs and interests are in complete contrast. She recognised the hopelessness of a reasonable outcome and can already see that at some stage she will be raised with only one parent’s input and involvement in her life. There is significant grief and stress demonstrated because of this.

   [the child] indicated a high level of stress at being asked any questions that appeared to be about expressing any preferences. It was apparent that she did not want the burden of having decisions made that rest upon any expressed view she may have about her future living arrangements.

3. Ms AA described the child as giving mixed messages which were in her view “...most likely indicative of the position she finds herself in”. I accept that this is likely the case and that in those circumstances I could afford little weight to her wishes, even if those wishes had been clearly expressed.   

Making orders that will avoid further proceedings

1. This is a matter that has a lengthy history and I have no doubt that it would be in the child’s best interests for orders to be made that will avoid further proceedings, especially in circumstances where the proceedings have been on foot since the child was an infant and she is now 11. Unfortunately, given the background and the history of contraventions and appeals, that may not be possible in this case.

2. It is likely in my view that, notwithstanding the mother withdrew from the proceedings she will have great difficulty accepting any orders that the Court might make and will remain focused on the Court process. While I am not confident the mother will accept the outcome and will likely engage in further proceedings, it is just one matter I must have regard to.

Parental Responsibility

1. It is not possible in this case, nor in my view necessary given the history of the matter and the historical nature of the allegations of family violence and abuse, to make findings as to those matters, particularly in circumstances where the proceedings were ultimately uncontested.

2. In any event I am not satisfied that even if the presumption with respect to the father and mother having equal shared parental responsibility did apply, that it would be in the child’s best interests for the Court to make that order. Ms AA concluded and I agree that

   this is a matter contra indicated for any sort of shared parental responsibility or co-parenting of any order. Therefore, whoever [the child] lives with should have sole parental responsibility so that her needs and interests are not used as a method of gaining control or as a strategy.

3. I am satisfied that in this case, there is no prospect of the parties being able to communicate for the purposes of making major long term decisions with respect to the child’s welfare. It is also difficult to see how the mother could have any real input into that decision making process when it seems likely that her only interaction with the child will be by way of the supervised telephone time.

4. In all the circumstances, I am satisfied that the order that the father have sole parental responsibility for the child is in her best interests. A number of things follow from this. Firstly it is not necessary to consider whether it would be in the child’s best interests to spend equal or if not equal, substantial time with the mother.

5. I am also satisfied that it is a matter for the father to decide whether the child requires ongoing therapy and who should provide that therapy. Although the father’s case was that the child should see Dr T for that therapy, if that is not possible because of the mother’s complaints about Dr T, to which I referred earlier in these reasons, it will be for the father to find an alternative therapist. To that end I have made an order permitting the father to provide Dr T or any other medical practitioner or mental health professional involved with the child with a copy of these reasons and the family report dated 24 February 2017.  That order also permits the father to provide the same documents to the child’s school.

Conclusion

1. In reaching her conclusion that the child should live with the father Ms AA said at paragraph 67 as follows:

   [The father] and [Ms C] at this time offer an alternative which is much more child focussed than [the mother] can offer. They have been responsive to [the child]’s needs and recognise the important role of her mother in her life. It was [the father] who pushed for [the child] to see her mother at assessment as he believed this would be good for her. [The father]and [Ms C] have engaged her in a therapeutic process which is critical to her long term well-being and have committed to that ongoing process. [The mother]’s refusal to cooperate with processes that are not pre-determined by her continues to reinforce her desire for control over [the child]’s needs and interests. [The father] on the other hand has been cooperative and open to outside input. To that end, this demonstrates a parent who is prepared to follow the advice and pathway as recommended by professionals to ensure [the child]’s emotional needs are met. This is her best chance for good longer term outcomes.

2. The mother withdrew from the proceedings on 15 November 2017. I am satisfied in any event, having considered the matters in s 60CC of the Act that I am required to consider, that the orders sought by the father and made on an uncontested basis that day are in the child’s best interests.

3. Finally the father sought an order restraining the mother, her servants or agents from attending at the child’s school, extracurricular activities or any place where the child is or might be present unless by written agreement of the parties or Court order. I accept Ms AA’s evidence that the child has already been damaged, and that the cause of that damage is likely to be what she perceives as her mother’s abandonment of her.  I am satisfied that if the mother chooses to involve herself in the child’s life, this will be supported by the father subject to there being appropriate safeguards. However, I am not satisfied that it would be in the child’s best interests for the mother to simply turn up particularly given what I am satisfied is her inability to focus on the child’s needs. This is particularly so given the questions that exist in relation to the mother’s mental health. In all of the circumstances, I am satisfied that the injunctive relief the father sought was in the child’s best interests.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 March 2018.

Associate: 

Date:  16 March 2018