GREEN & FRENCH

[2017] FamCA 382

FAMILY COURT OF AUSTRALIA

GREEN & FRENCH [2017] FamCA 382

FAMILY LAW – CHILDREN – With whom the child lives – Where the child expresses a strong desire to live with the father in Country B – Where the mother opposes the child living with the father – Where the child is mature and understands the consequences of moving to Country B – Where there is an unacceptable risk of harm for the child to remain living with the mother – Where it is in the child’s best interests to live in Country B with the father – Where the father has sole parental responsibility.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637
CDJ v VAJ (1998) 197 CLR 172

Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69

SCVG & KLD (2014) FLC 93-582

APPLICANT: Mr Green

RESPONDENT: Ms French

INDEPENDENT CHILDREN’S LAWYER: Elizabeth Rayment as agent for Kate Bint

FILE NUMBER: BRC 11817 of 2016

DATE DELIVERED: 30 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 29 - 30 May 2017

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CM Bint Family Lawyers

Order

1. All previous orders are discharged.

2. The father shall have sole parental responsibility for Z born … 2002 (“the child”).

3. The child shall live with the father.

4. The father is permitted to remove the child from the Commonwealth of Australia.

5. G Lawyers are hereby authorised to release to the father the passport for the child.

6. Save as provided in this order, the mother shall spend time with the child at all such times as may be agreed in writing between the father and mother and failing agreement as follows:

   (a)       For a period of thirty minutes on Wednesday 31 May 2017 at Child Dispute Services and for this purpose the father shall bring the child to level 3 of the Commonwealth Law Courts Building, 119 North Quay Brisbane by no later than 10 am and the mother shall be at liberty to spend time with the child from 10.15am to 10.45am;

   (b)       By telephone or skype at all reasonable times and for that purpose the mother is to notify the father of a contact telephone number or skype contact at her earliest convenience;

   (c)       By letter or gift on one occasion each week by the mother sending a gift to the child via the father.

   (d)       For the two weeks of the child’s Christmas school holidays in 2017;

   (e)       On three occasions each calendar year during his school holidays for a period of two weeks on each occasion.

7. For the purpose of the time referred to in 6(d) and (e) above the father shall notify the mother  as soon as reasonably practicable the dates of the school holidays and no later than eight weeks prior to the holiday period the mother shall nominate the proposed dates and no later than six weeks prior to the commencement of the proposed holiday the mother shall provide the father with the details of the proposed flights and proof of purchase and upon receipt the father shall reimburse the mother within 7 days of 60% of the cost of the flights by electronic fund transfer and for this purpose the mother shall provide the father with her banking details.

8. The mother’s time with the child pursuant to paragraph 6 (d) and (e) herein is not to be spent at her property at Town X in the State of Queensland.

9. In the event the mother has in her possession the child’s laptop and or iphone she shall deliver them to the child on 31 May 2017 at Child Dispute Services.

10. The mother is restrained and an injunction hereby issues restraining her from approaching the child or communicating with him other than as provided in this order or as agreed to in writing with the father.

11. Pursuant to s 65DA(2) and s 62B, 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.

12. The Independent Children’s Lawyer is discharged.

NOTATION

It is noted that the parties will discuss the proposed holiday arrangements with the child prior to settling on particular dates and will as far as possible try to meet any reasonable requests made by the child. 

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 Green & French 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 BRISBANE

FILE NUMBER: BRC 11817 of 2016

Mr Green

Applicant

And

Ms French

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant and respondent cannot agree on what parenting order is proper for their son, Z (“the child”), born in 2002. The father is seeking an order that the child move to Country B  and live with him and his family while the mother proposes that he continue to live with her in Australia.

issues

1. The issues identified as relevant to my determination are as follows:

   a)The child’s wishes;

   b)The mother’s mental health; and

   c)The safety of the mother’s living circumstances.

background

1. The father and mother had a brief relationship. The father is English and the mother is Australian. The father is forty-four years of age, a professional, and living in Country B. The mother is fifty-five years of age, currently unemployed, and living in a small rural town a couple of hours from Brisbane.

2. The child has lived all his life with his mother.

3. The time the child has spent with the father over the years has been sporadic and there was a significant period when he spent no time with him. During the period 2004 to 2008 the father lived in Western Australia and spent approximately eight weekends with the child and two periods of about a week. In the period 2008 to 2011 the father lived in Country D and he spent a week with the child in Australia in 2009 and a couple of weekends with the child in the United Kingdom when the child was with the paternal grandparents and for some time over Christmas 2009 when the child was again spending time with the paternal grandparents. The child spent no time with his father from after Christmas 2009 until 2012 when the father and his family returned to live in Western Australia.  In 2013 and 2014 the father lived in Brisbane and the child spent time with the father for the weekend every four to six weeks and for time during school holidays. In late 2014 the father moved to Country B and the child has spent holiday time in Country B in 2015 on three occasions and Christmas 2015 he spent time with the father in the UK. The child spent two weeks in Country B with the father and his family in June/July school holidays in 2016. In November 2016 the child lived for about a month with the paternal grandparents and spent time with the father in Country B for about six weeks over the December/January school holidays in 2016/2017.

4. The father is married to Ms H and they have three children together, aged five, three and a baby born this month. They live in Country B and have assistance from a cleaner on two occasions each week. The father has a permanent contract of employment and intends to remain there for the foreseeable future. They travel back to Country D and/or the UK each year for the summer holidays and again at Christmas time. The father and all the children are Australian citizens.

5. In or about September 2016 the child contacted his father and told him that he and his mother had left Queensland, were living in northern New South Wales and that he was not attending school. He also told the father about the mother’s plans to go to the UK.

6. The father commenced these proceedings in November 2016 when he became aware that the mother had been detained in the UK by the Department of Immigration after attempting to seek asylum. The mother alleged that she was being persecuted in Australia. During the mother’s detention, the child lived with the paternal grandparents. This seems to have been an arrangement approved of by the mother at the time. The mother and the child returned to Australia in November 2016 when the mother was deported.

7. An order was made on 19 December 2016 for the child to spend time with the father in Country B for the duration of the school holidays. He returned to Australia on 22 January 2017 and resumed living with the mother who moved to her property in the rural town north-west of Brisbane. The child attends the local High School at Town O.

8. The father says that in June/July 2016 the child disclosed to him that he felt his mother’s paranoia was becoming worse and he expressed a wish to live with the father in Country B.

9. The mother maintains that she is being persecuted by government, police and criminals for her ‘whistle blowing’ activities. She describes repeated damage to her property and interference with her motor vehicle. She describes ‘chem trails’ which cause her to believe the air is poisoned. During the interviews with Dr Y and Mr J, the mother continually spat out her saliva into a bottle because of ‘the toxins’. She did not exhibit that behaviour during the court hearing.

10. The mother feels she has been treated unfairly and labelled with a mental illness when she has just been standing up to ongoing corruption at all levels of government, police and the judiciary. She feels that she has been treated with a lack of respect and that her human rights have been violated.  

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

2. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

4. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.

5. ‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.

6. Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.

7. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

8. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

9. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

10. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]

    [3] Banks & Banks (2015) FLC 93-637

11. In cases, where it is suggested that a child will be exposed to an unacceptable risk of harm the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated by an order such as supervision.[4] 

    [4]M v M (1988) 166 CLR 69

The child’s wishes

1. The child will turn fifteen in 2017. He was interviewed in a child inclusive conference on 7 December 2016 by Ms M, a family consultant. He presented as a friendly and intelligent young man who appeared to possess an insight into his mother’s behaviour and was able to articulate how it had affected him. He expressed a strong desire to live with his father and restated his wishes several times during interview. The child described feeling “ashamed” by his mother’s behaviour but was clear that he did not want to “badmouth” her. He said he felt an obligation towards his mother and cared about her but did not want to live with her anymore.

2. The child was interviewed by Mr J, psychologist, for the purposes of a family report, on 16 March 2017 and again on 8 May 2017. He reiterated his wish to live with his father in Country B. The child told Mr J that his wish to live with his father was a long held desire and that he was worried that his wishes would not be acceded to. He said to Mr J “Mum wasn’t as bad as she is now” and that he had always had problems with his mother. He described physical abuse as a young child and of being excluded from the house on occasion for hours at a time. He said that by last year he “just couldn’t take it anymore”.  He was adamant that he did not hate his mother and did not have a grudge against her.

3. Mr J assessed the child to be a mature boy who understood the consequences of moving to Country B. He assessed the child to be exhibiting and articulating significant stress at the prospect of remaining with his mother in Australia.

4. The mother accepts that the child has expressed a wish to relocate to Country B to live with his father.

5. Mr J was concerned about the likely deterioration in the child’s functioning and mood should his wishes not be acceded to. The child expressed feeling significantly stressed about the prospect of remaining with his mother. He spoke of his isolation and his unhappiness. The child has endured enormous change in his life. There have been frequent changes in residence and he has changed schools about thirteen times. Mr J opined that the child would benefit from the stability that can been afforded to him by a move to live with his father.

mother’s mental health

1. The mother has been psychiatrically assessed by Dr Y. He concludes that the mother suffers from a major mental illness and that she meets the criteria for a delusional disorder. His differential diagnosis includes paranoid schizophrenia although there was no evidence of any major mood disorder. As to the mother’s personality, he suspects that the mother has paranoid personality features but that her beliefs are held with such conviction and influence her behaviour to such a degree that he does not consider her illness can be characterised solely as a paranoid personality disorder.

2. Dr Y recommended that the mother undergo urgent treatment including a trial of antipsychotic medication. He considered ongoing treatment would provide a longitudinal assessment of the mother and delineate the diagnostic uncertainties. If the mother refused treatment, Dr Y considered there was a risk of emotional harm for the child if he remained in the care of the mother on an unsupervised basis. He acknowledged that the child’s age and insight may be a protective factor.

3. Dr Y opined that if the mother undertook treatment and was “able to demonstrate improvement in her mental health functioning, and functioning more generally, to the extent that she was no longer driven by her morbid thought processes with respect to her decision making around the child as well as her own lifestyle,” this would alleviate his concerns for the child.

4. While acknowledging the limitations with formulating diagnoses involving a one off interview Dr Y did not resile from his diagnosis and recommendations. He stressed that it was irrelevant for his purposes whether the mother’s beliefs were true or not but rather it was her thought processes which led to her beliefs that caused him to come to his conclusions.

the safety of the mother’s living circumstances

1. The mother describes alarming circumstances at her home. She alleges that her home is frequently broken into and the unknown persons destroy or interfere with her property. She believes that these persons are tampering with her motor vehicle and in particular the air conditioning so that she is breathing in toxins. The mother describes her email being hacked and says that her life has been repeatedly threatened.

2. The mother believes she is being persecuted because she will not cease naming criminal elements in her community including the police and politicians. She is convinced that there is organised crime in her area and that attempts are being made to silence her for speaking out about the corruption pervading the country’s institutions. She is supported in these views by a Mr E, a retired gentleman, who regularly attends at her property to repair the damage caused by these unknown persons. He also feels he has now been targeted and that a fire lit near his property has some connection.

1. The mother contends that she was forced to leave her previous residence in about September last year for fear of attack. She took the child with her to northern New South Wales where she contends that she was exposed to a lot of “chem trails and a few times planes flying over our car”. The mother describes suffering from a number of illnesses she had never had before such as respiratory problems, ear infections, ringing in her ears. In order to feel safe she fled New South Wales and went to the UK.

2. Upon her return to Australia and to her property north-west of Brisbane she contends she has been exposed to continuous “chem trails” which have affected her health. The mother contends she has been harassed over the past seven years by “Secret Police and Shadow Government”. The mother has undergone a number of judicial examination orders (involuntary psychiatric assessments) in the past. She contends that these were a “deliberate set up” by a corrupt police superintendent and “Shadow (corrupt Govt)”.  The mother contends that the harassment of her has also occurred when she lived in Town W, Queensland.

3. The mother describes herself as a “forgotten Australian” and contends that she gave evidence to the Royal Commission into the Institutional Responses to Child Sexual Abuse. She contends that she herself has had a traumatic childhood and that the impact on her is misinterpreted as mental illness.

4. She described the child referring to her as an “f’ing bitch”, “f’ing whore” since returning to her care in January 2017 and alleges that he has hit, punched and kicked her leaving bruising. If this has occurred it is indeed a worrying development. The mother contends that such behaviour is not reflective of her relationship with the child as a whole and that may be the case, but there are, on her own admission, some very worrying trends.

discussion

1. Whether or not the mother suffers from a mental illness is not something I need to determine definitively. The mother rejects Dr Y’s diagnosis and will not obtain treatment.

2. Perhaps understandably a considerable focus of the mother’s case was upon what she regards to be an inaccurate assessment of her mental health. However, the focus of this Court is upon what is going to be in the child’s best interests going forward.

3. If the mother’s beliefs are not delusional I remain very concerned about the environment in which the child lives. The mother says her life has been threatened on numerous occasions and she lives in the midst of an organised crime syndicate for which she can obtain no protection from authorities because they are corrupt. Most of the mother’s material focuses on what she perceives to be her ‘rights’ and how an order permitting the child to live with the father in Country B would be the final ‘injustice’ to her arising as a result of her stand against corruption. Indeed she describes such a result as “the greatest injustice in the history of the Family Law Court of Australia” (sic).

4. The impact of the long term persecution of her by these unnamed persons has caused the mother to relocate on numerous occasions and this has had a very unsettling impact on the child. He has been to many schools and he perceives, rightly or wrongly, that his mother suffers from paranoia. He is ashamed of his mother’s behaviours. He is expressing significant stress in having to continue to live with his mother and if the mother’s evidence is accurate he is now acting out in a most violent way towards her. He and the mother live on an isolated property with no landline telephone and no internet connection. The child’s mobile telephone was confiscated by his mother (perhaps quite reasonably) and he was without a means of communication with the father for a period of between four to six weeks other than by Messenger App accessed by him at the local library some ten kilometres away.

5. The mother speculates that the child may have orchestrated the return to the rural town which he knew would fail in order to improve his prospects of being able to live with the father. She describes him as saying he will do whatever it takes to live with his father in Country B. If the mother’s speculation is correct that tends to add weight to the strength of the child’s views.

6. The child has been attending O High School since the beginning of the year. While there have been some worrying accounts about his behaviour at school there seems to have been some improvement in the last few weeks.  

7. It appears from the cross-examination of the father by the mother that the child has been exposed to conflict between his parents and the father’s extended family which is regrettable. The mother and father have at times been able to have civil interaction but it seems it has mostly been a conflictual relationship. I accept the father’s evidence that every changeover was very tense which would end up with a lecture from the mother and if he tried to challenge her that matters would escalate. I accept the father’s evidence that in later years he has found the best way to avoid conflict with the mother is not to answer her back. I accept the father’s evidence that he regrets the lengthy period from the end of 2009 to 2012 when he spent no time with the child and I also accept his reasons for that were his need to protect his family from the conflict. 

8. Given that background I cannot find that equal shared parental responsibility is in the child’s best interests. 

9. The child has spent all his life to date in the care of his mother. The father concedes that the child loves the mother and that they have a close bond. I am sure the mother has at all times done her best in the circumstances but the mother concedes that her relationship with the child has been deteriorating since she fled Queensland in the second half of last year. The mother described the child’s increasingly violent behaviour towards her which is the very behaviour that Mr J was so concerned about. I accept the mother’s evidence that the child said to her this year that he hated her and wished she were dead. Their relationship has reached crisis point.   I find that were the child to remain in his mother’s care there is likely to be irretrievable breakdown in their relationship.    

10. Despite the interruptions in their relationship I find that the child and the father now have a close and loving relationship. This accords with Mr J’s observations and opinion. I have no doubt that in the periods when the father spent little or no time with the child it has been very difficult for the child in managing his feelings about that and I accept that the mother has been left to pick up the pieces. I note the mother’s concession that the father is a good father and loves the child very much. In fact she said - “I think he is a wonderful father”. Despite some reservations about the paternal grandparents the mother conceded they are good people and they have cared for the child on numerous occasions over the years.

11. I note the mother’s further concessions:

    a)That save for two periods when the father’s child support contributions were minimal (being for a period after he left the public service and for a period after he left Australia in 2009) “You have been brilliant with payment of child support over the years for the most part, and I am grateful for payment”;

    b)That the father will do everything to maintain the mother’s contact with the child. That accords with my own view of the father.  

12. The father proposes to return to Country B on Thursday this week and if permitted proposes to take the child with him. He can make all necessary arrangements to obtain an appropriate visa for the child once he is back in Country B.

13. If I find that it is in the child’s best interests to move to Country B with the father the mother proposes that the move be delayed so that the child can continue his schooling until the end of the year or at least the end of term. I reject that submission. I can see no utility in that approach. In my view there is an unacceptable risk of harm to the child remaining with his mother whether because of her mental state or because of the dangerous place she lives. While the child is of an age where he can to a certain degree self-protect he has reached the end of his tether in living with his mother on a permanent basis. He has already lashed out against his mother according to her and I cannot countenance him remaining with that level of stress. If he spends time with her for shorter periods I am satisfied he would manage but not on an isolated property.

14. I have come to the conclusion that it is in the child’s best interests to live with his father.

15. The mother wishes to have an opportunity to say goodbye to the child if he is to relocate and the father supports that opportunity but submits that there should be someone else present. The mother opposes the presence of Mr J or the Independent Children’s Lawyer as she feels aggrieved by their actions and opinions. As there is availability at Child Dispute Services tomorrow morning I propose to provide the mother and the child an opportunity to say goodbye and will require the father to bring the child to level 3 tomorrow morning. Understandably the mother and the child may be upset and I do not consider it would be helpful for that farewell to be drawn out so I will limit it to thirty minutes.

16. As I have concerns about the mother’s ability to accept the order I propose to make, it is my intention to restrain the mother from approaching or communicating with the child prior to his departure other than as provided in the order.

17. The Independent Children’s Lawyer proposes that the mother’s ability to communicate with the child be limited to once each calendar month and that the father read the communication first before passing it on. The child has spent his whole life living with his mother and dealing with what may be perceived as her unusual behaviours and beliefs. I consider he is mature enough to receive any communication from his mother without it first having to be vetted by the father. I see no reason why that opportunity to communicate by letter or gift should not be weekly and that the child should be able to telephone or in some other way communicate electronically with his mother at all reasonable times in the event the mother provides him with an email address or telephone number.

18. I am confident that the father and his wife will do whatever they can to assist the child with the transition to life with them in Country B. I note that the child speaks fondly of his half siblings and step-mother and that he has already visited the school that he will attend when school resumes in September 2017. Before then he will have the opportunity to travel to the UK and perhaps Country D where the father and his family will spend time over the northern summer. 

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 30 May 2017.

Associate: 

Date:  1.06.2017