Harrison & Harrison
[2023] FedCFamC1F 724
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Harrison & Harrison [2023] FedCFamC1F 724
File number(s): MLC 10386 of 2012 Judgment of: MCGUIRE J Date of judgment: 24 August 2023; 1 September 2023 (Addendum) Catchwords: FAMILY LAW – PARENTING – Third trial of parenting issues – Father concedes parental responsibility and ‘live-with’ to the mother but continues to assert her tendency to “assault children” and her consequent incapacity – Mother says father undermines her parenting – Mother’s late proposal to relocate to the United Kingdom – Fundamental issue of credit – Both parents not credible witnesses – Relocation not permitted – Time for children with the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B. 60CA, 60CC, 60DAA
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
KB & TC [2005] FamCA 458; (2005) FLC 93-224
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Paskandy & Paskandy [1999] FamCA 1889; (1999) FLC 92-878
Division: Division 1 First Instance Number of paragraphs: 156; 4 (Addendum) Date of last submissions: 28 July 2023 Date of hearing: 17, 18, 19 and 20 July 2023 Place: Melbourne Counsel for the Applicant: Mr Scriva (with Mr Ng, solicitor, appearing at last submissions) Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Mr Byrne Solicitor for the Respondent: Ella Thompson Legal Counsel for the Independent Children's Lawyer: Ms Wiener Solicitor for the Independent Children's Lawyer: Perry Weston Lawyers ORDERS
MLC 10386 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARRISON
Applicant
AND: MS HARRISON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
24 AUGUST 2023
THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children V born 2013 and Y born 2010 (“the children”).
2.The children live with the mother.
3.The children spend time and communicate with the father as follows:
(a)From 9:00AM until 5:00PM on the first Saturday of each month;
(b)At such other times as might be agreed in writing, text message, or email between the parties from time to time;
(c)By the father sending to the children gifts, cards and letters by ordinary post to an address nominated by the mother with the mother to keep the father advised within seven days of any change of her nominated address.
4.The mother have leave to travel overseas with the children (or either of them) on one occasion each calendar year and for such duration that the mother be entitled to suspend only one period of time–with for the children with the father during each calendar year.
5.Should the father be required to give his consent to the children (or either of them) being removed from the Commonwealth of Australia for such holidays and does not give his consent within 14 days of the mother seeking such consent then the mother have leave to bring an urgent application to a judge of either Division 1 or Division 2 of this Court.
6.The father, his servants or agents be and are hereby restrained from communicating with the children (or either of them) by any means other than in accordance with these orders.
7.For the purposes of the children spending time with the father changeover is to take place as follows:
(a)By way of the mother or her designated adult agent delivering the children to the father or his designated adult agent at the appointed time at the McDonald’s restaurant on the corner of R Street and S Street, Suburb T, Victoria;
(b)By way of the father or his designated adult agent returning the children to the mother or her designated adult agent at the appointed time at the McDonald’s restaurant on the corner of R Street and S Street, Suburb T, Victoria.
8.The mother be restrained from removing the children's primary place of residence from the Greater Melbourne area without the express written consent of the father or order of a competent court.
AND THE COURT NOTES THAT:
A.These orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 the pseudonym Harrison & Harrison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 1 September 2024
MCGUIRE J
APPLICATIONS
"The truth is rarely pure and never simple."[1]
[1] Oscar Wilde, The Importance of Being Earnest: a Trivial Comedy for Serious People (Lerner Publishing Group, 1st ed, 2014) 12.
This is a case about the truth or, more particularly, a matter whether one or other of the parents of the two children namely Y born 2010 (aged 13 years) and V born 2013 (aged 10 years) is not telling the truth or the whole truth. As Counsel for the father insightfully submitted in his opening, this might be a case where the best interests of Y and V are resolved by a determination of the factual dispute regarding an incident in January 2021, where the two children fled their mother’s home, taking a train some distance to the home of the paternal grandmother and eventually to that of the father. Intrigue around this incident dominated the evidence before me where the children's best interests more generally have been previously determined in these Courts by Judge Turner in the Federal Circuit Court (as it then was) in a judgment of 4 June 2015 after a trial occupying no less than nine days and again by Justice Gill in the Family Court (as it then was) in a judgment of 18 April 2019 after a trial of a further five days.
The formal orders of Judge Turner had the parents sharing parental responsibility for the children (there then being three dependent children including the older sibling Q who is now aged 19 years), the children live with their mother and spend time with their father on four nights per fortnight and half of school holidays.
The issues before Gill J to a large extent focused on manipulation of the children by the father where his Honour made findings contrary to the father, resulting in the time for the children with the father being significantly reduced to one Saturday each month between 9AM and 5PM.
The mother now says that the father has continued his manipulation of the children and fabrication of allegations against her by conspiring with his own mother and the children to cause the children to run-away to him in January 2021.
The father says that Y was assaulted by the mother hitting him in the head and the children themselves determined to run away from her home to seek sanctuary with him.
Not surprisingly, in January 2021 the police were involved and the children were listed as missing persons for a period. When located the children initially reported, consistent with the father's case, that they had fled the mother's home after she had assaulted Y. The children were interviewed by the police. They were interviewed by Child Protection. It is reasonable to say there were immediate suspicions as to the veracity of the children's claims, with focus settling on the father and the paternal grandmother as having orchestrated the children leaving the mother's home.
The children were hospitalised for two nights whilst investigations took place and due to Y complaining of dizziness as a result of the assault. Child Protection and police intervened at the hospital and the father was removed from the hospital as a result of his behaviour. Mr Harrison maintains to this day that Child Protection had a predetermined bias against him and that his behaviour was entirely reasonable.
Perhaps surprisingly, the children were returned to their mother from hospital whilst investigations continued, albeit with a condition that another adult be present in her home.
The children have not had direct contact with their father since that date.
The father continues to claim that the children fled the mother's home voluntarily and says that the alleged assault of Y by the mother is consistent with a long course of behaviour by her. He explains the children's retraction of the earlier allegations against the mother by reason of being returned to their mother and her convincing them that she would go to gaol and that they would go into foster care should they maintain the allegations.
The mother claims still that the father, conspiring with the paternal grandmother, encouraged and facilitated the children leaving her home and making false allegations against her. She says that the children have been consistent since late January 2021 including their admission to authorities and the Family Reporter that they fabricated the original story and that their grandmother organised and managed them leaving the mother’s home.
Although in his original application initiating proceedings the father sought orders that the children live with him, he has retreated significantly in his ambitions. In his opening, Counsel for the father suggested that the father would be content with a return to the orders of Justice Gill but with an objective of a return to the orders of Judge Turner whereby the children would spend four nights per fortnight with the father together with half of school holidays.
Relevantly, given his allegations, the father now concedes sole parental responsibility and ‘live with’ orders to the mother.
The mother seeks orders where she cites the father’s historical manipulation of the children and his propensity to make false allegations against her. She wishes to relocate with the children to live in Town M in the United Kingdom, with the children to have no relationship with the father arguing that, “they can have a relationship with him when they turn 18 years old”.
The Court has had the benefit of an Independent Children's Lawyer whose position at the start of the trial was equivocal and perhaps understandable given the fundamental issue of credit infecting this entire matter. In final submissions the ICL was supportive of the mother’s case including the relocation.
BACKGROUND
The parties are originally from Country H. They immigrated to Australia in 2002 and commenced cohabitation that year, although claiming to have commenced a relationship as long ago as 1996. The now adult Q was born in 2003. The relevant children, Y and V, were born in 2010 and 2013 respectively.
The parties married in 2002 when commencing cohabitation. They separated in late 2012 when the mother obtained an interim intervention order excluding the father from the former matrimonial home. He contemporaneously made a cross application for an intervention order against the mother and thus commenced a long and bitter history of litigation for these parties across various jurisdictions.
The parties reconciled in late 2012, a matter of days after the father had then commenced proceedings in the Federal Circuit Court (as it then was). Alas, the reconciliation was short lived and the parties finally separated in early 2013.
The final separation was accompanied by a report by the father to Victoria Police alleging that the mother had assaulted Q. The mother was arrested and removed from the former matrimonial home with the children remaining with the father. An interim order was made soon after for the children to live with the father and spend supervised time with the mother.
Notably, V was born some months after the final separation.
It is alleged that in early 2013 the mother assaulted Q and further later that month whilst attending a mediation with the father she allegedly struck the father. The mother was charged and the matter dealt with by Diversion.
Between September and December 2014 a trial of 11 days proceeded before Judge Turner with judgment handed down on 4 June 2015 resulting in orders for equal shared parental responsibility but with the children to live with mother and spend four nights per fortnight with the father together with time in school holidays.
In mid-2015 the mother consented without admission to a final intervention order for one year.
Between December 2015 and April 2017, the father asserts further disclosures made by Y of being physically and emotionally abused by the mother. In April 2017, the father unilaterally over-held Y and issued new proceedings on 7 April 2017, later amending his initiating application on 18 July 2018 (being the applications eventually dealt with by Gill J). In that application the father sought orders that Q, Y and V live with him and that time for Y and V with the mother be reserved.
On 3 May 2017 Judge Curtin in the Federal Circuit Court made interim orders returning the children to the mother.
In late 2017 a state Magistrate made a final intervention order for a period of two years against the mother to expire in late 2019. The mother entered a Notice of Appeal.
On 9 January 2019 a Family Report prepared by Mr E was released recommending that the children live with the mother and that she have sole parental responsibility. There was a recommendation that should the Court find unacceptable risk of emotional harm being rendered to the children by the father, then they spend time with him limited to six times per year for two hours on each occasion. If no such finding was made then it was recommended that there be a return to the time-with orders made by Judge Turner.
Gill J handed down his orders and reasons on 18 April 2019. The father entered an appeal in respect of his Honour’s judgment. That appeal was heard on 26 November 2019 and dismissed by orders of 20 December 2019. The father then entered an appeal to the High Court of Australia with such being dismissed without special leave on 17 April 2020.
In mid-2019 the mother was successful in her appeal to the County Court in respect of the intervention order.
In January 2021 Y and V left the mother’s home using public transport to arrive at the residence of the paternal grandmother and/or the father. Victoria Police launched a public media appeal on the following day, whereupon the children were located at the father’s home having spent the night at the home of a friend of the paternal grandmother.
The children were hospitalised at U Hospital for two nights with intervention from Child Protection and Victoria Police.
During this time the father made an application for an intervention order to the state Magistrate’s Court naming himself and the children as protected person. No interim order was made in his favour.
The children were returned to the mother by Child Protection the following day. This occurred despite investigations remaining ongoing in respect of allegations by the children that the mother had assaulted Y.
The following month, the mother made an application for an intervention order to the state Magistrates Court naming the father and the paternal grandmother as the respondents and the children as the protected persons. An interim order was made on the mother's application.
The father commenced these proceedings by an application in the Family Court (as it then was) on 26 February 2021.
On 16 August 2021 a Child Inclusive Memorandum was released recommending inter alia that any time spent by the children with the father be professionally supervised.
On 23 August 2021 a Senior Judicial Registrar conducted an interim hearing resulting in no orders for time for the father with the children.
On 12 August 2022 a Family Report authored by Mr W was released recommending inter alia the following:
96.[Ms Harrison] to have sole parental responsibility.
97.[V] and [Y] to reside with [Ms Harrison].
98.[V] and [Y] to spend time with [Mr Harrison], on four occasions each year, surrounding the children’s birthdays, Father’s Day and Christmas, each session to occur for three-hour periods, supervised professionally within a contact centre.
The father’s application was listed for trial before Williams J on 7 November 2022. The father made an oral application for Williams J to recuse herself on the grounds of apprehended bias whereupon her Honour acceded to the application and listed the matter for hearing before myself to commence 17 July 2023.
A defended intervention order application was heard in the state Magistrates Court in late 2022 resulting in final orders made against the father and the paternal grandmother naming the mother and the children as protected persons. Contemporaneously, the father’s application for an intervention order against the mother was struck out. The father has a pending appeal in respect of that decision.
On 3 July 2023 the mother filed a further amended Response seeking that she be permitted to relocate the children to reside in the United Kingdom.
THE EVIDENCE
The father relied on three affidavits being 4 October 2022, 4 November 2022, and 11 July 2023.
The father argues that the presumption of equal shared parental responsibility does not apply as there are reasonable grounds for the Court to find the mother has engaged in child abuse or family violence. He further concedes that there has been a finding by Gill J in 2019 that he himself caused emotional harm to the children. As such, the father does not oppose an order for the mother to have sole parental responsibility given what is now undisputed as to her delegated primary care for the two dependent children. He concedes the obvious, being a current and historical poor relationship between him and the mother. It is difficult to reconcile the father’s concessions as to sole parental responsibility and live-with orders to the mother with him maintaining that she has assaulted Y.
Given Justice Gill’s finding in 2019 (which of course does not bind me on the factual platform now before me) the father argues, in any event, that the evidence does not support a finding that he and the paternal grandmother were involved in the children absconding from the mother’s home in January 2021 and argues that the Court should not and cannot make such a finding on the balance of probabilities pursuant to section 140 of the Evidence Act 1995 (Cth) with reference to the well-known Briginshaw principles.[2]
[2] Briginshaw v Briginshaw (1938) 60 CLR 336.
The father says that the children had no direct or indirect contact with him around the relevant time in January 2021. He says that the children have given varying and inconsistent accounts as to their movements on that day and as to the motives for them leaving their mother’s home.
The father argues that it is open for the Court to find the children’s retraction of the allegation that the mother had assaulted Y as plausible and explicable given the children had been returned to their mother's home as soon as January and that it is reasonable to suggest that she had induced the retraction by threatening her own imprisonment and the children going into foster care should they maintain their allegations. The father says that this scenario is not unreasonable in circumstances where the father says there is a history and a propensity in the mother to assault the children with a documented history of similar behaviour. In this respect the father relies on evidence from the children, now exhibited in these proceedings, which indicates the children being fearful of the mother being gaoled and them being put in foster care.
The father says that he has been informed and alerted by Gill J’s judgment where he has since completed no less than three post separation courses and has gained the appropriate understanding and acknowledgement of his previous behaviour, demonstrated by there since being no relevant allegations against him of manipulation of the children other than that of January 2021.
The father argues that the children have consistently expressed, despite them now alleging that he and the grandmother conspired as to the events of January 2021, a desire to spend time, and indeed more time, with him until the recent intervention of the mother’s intended relocation to the United Kingdom. He argues that the children have been manipulated, directly or emotionally, by the mother.
The father contends that the orders sought by the mother which would completely sever any relationship between he and the children would likely, in light of the children stated wishes, impact negatively on them and potentially harm them emotionally and/or psychologically.
The father asserts that the mother’s proposed relocation of the children not only severs any potential relationship for him with the children but that it is not an informed and child focused proposal where the mother has established networks, employment and support in Victoria, and where the children are happy, settled and achieving at their schools.
The father was cross-examined extensively and intrusively with particular emphasis on the events of January 2021. He steadfastly maintained his version of history being that the children voluntarily fled the mother’s home complaining that Y had been assaulted by her. He remained calm and responsive in cross-examination although becoming noticeably agitated and aggressive in response on occasions when challenged as to particulars of the events of January 2021 such as the whereabouts of Y’s iPad in which CCTV footage apparently shows Y with the iPad at the train station but where that iPad has since not been located with the implication being that the father took possession of the iPad to conceal evidence of communications between he and the children.
The tenor of the father’s responses in cross examination remained critical of the mother personally, her propensity for violence towards the children, and her asserted dishonesty. Where he emphasises these views, it is again difficult to reconcile these allegations and criticisms where he now concedes sole parental responsibility and ‘residence’ of the children with the mother.
Paternal grandmother – Ms K Harrison
Ms K Harrison provided affidavits on 4 August 2021 and 4 October 2022.
Like the father, the paternal grandmother denied any involvement in the children leaving their mother’s home in January 2021. Her evidence of a mysterious kindly stranger bringing the children to her home from the station on that day but without waiting for her to answer the front door does not ring true and similarly some prevarication, inconsistencies, and hesitation in her responses in cross examination bring doubt as to the veracity of her evidence of the events of that day. In making these observations, however, I note that Ms K Harrison was understandably nervous with the process of cross examination and that English was not her first language.
The mother
The mother provided a trial affidavit of 3 July 2023.
The mother argues the presumption of equal shared parental responsibility does not apply with the father being the perpetrator of family violence and, most particularly, the emotional abuse of the children in January 2021. The mother argues that the parents do not communicate in respect of the children and that she has had the benefit of an order for sole parental responsibility since the judgment of Gill J on 18 April 2019.
The mother now wishes to relocate with the children to the United Kingdom. She says that this is a ‘fresh start’ for both herself and the children with the implication that they have all been subjected to emotional abuse at the hands of the father and his family for a number of years. She has the support of her cousin in the United Kingdom who will assist with immediate accommodation. The mother has skills and experience in the workforce which she hopes will allow her similar employment opportunities in the United Kingdom. The mother currently works as a public servant and also as a receptionist. She considers the children to be mature and adaptable and emphasises that they have had no relationship of any nature with the father since January 2021.
Specifically, the mother says the events of January 2021 constituted emotional abuse on the children with the father and his mother conspiring to have the children run away from the mother’s home with the false allegation that she had assaulted Y. The mother notes the children's early retraction of these allegations and the children’s statements consistently since then that they were influenced by the father and his mother. The mother says that this incident is simply one in a long course of conduct by the father to undermine her parenting of the children and her relationship with them where she says the father acts out of self-interest and without insight into the emotional and psychological impact of his behaviour on the children. In essence, she says that the father constitutes an unacceptable risk of continuing emotional harm to the children and where she argues that the Court should not accept the father’s claims that he is able to regulate his behaviour by reason of various completed courses where he continues to make and prosecute spurious allegations against the mother.
The mother says that the children are mature and agreeable to the move to the United Kingdom emphasised as recently as 5 July 2023 at a meeting for them with the ICL. She says that neither Y nor V now wish to have any direct relationship with the father. She denies that she has influenced the children in their views and preferences.
The mother says that she has a demonstrated capacity to care for the children and offers them an ongoing relationship with their adult sibling, Q.
The mother was cross-examined at length. She presented as emotional but responsive in cross examination. She maintained that the father and his mother have historically attempted to undermine her relationship with the children. The emotional nature of her evidence may be interpreted as a response to continued assertions in cross examination as to her lack of capacity to care for her children given the imprimatur given her by two previous judgments of these Courts, placing the children into her primary care. As she directly states, her own wish to relocate is to put distance, both actually and emotionally, between herself and the children’s father and paternal grandmother.
I generally found the mother to be a candid witness who presented as a capable and proud mother but one frustrated by her perception of the father’s undermining of her parenting. The mother’s responses in cross examination together with my observations of her in the witness box were of a strong-willed, determined, and confident personality and perhaps at odds with the evidence of her psychologist.
Nevertheless, and like the father’s evidence, her evidence and explanations surrounding the events of January 2021 were not always persuasive. In particular I had difficulties with her evidence of the children coincidentally voluntarily telling her “the truth” of their absconding only on the evening of the second day of this trial. The father gave his evidence and was cross‑examined across the first two days of the trial. The mother deposed on the morning of the third day of the trial that the previous evening the children had told her “that they wanted to tell her the truth” about the events of January 2021. She says that Y asked to pen an e-mail to the ICL. The time and coincidence of this evidence did not have the ring of truth.
Ms X
Ms X is a clinical psychologist who has conducted 20 sessions with the mother since July 2021 with focus on providing coping strategies, communication techniques, mindfulness, and structured problem-solving to the mother.
Ms X provided an affidavit sworn 3 July 2023 annexing her report. She was not required for cross examination.
Ms X is aware of the mother’s ambition to relocate to the United Kingdom. She observes the mother to suffer high financial stress, with limited support and resources available for herself and the children, noting that the mother works two jobs to support the family unit.
Ms X describes the mother as exhibiting fear and anxiety in relation to the safety of Y and V due to potential manipulation by the father and paternal grandmother, hence the mother becoming hyper vigilant when in the community.
Ms X notes that the suspension of the father’s time with the children since January 2021 has given the mother reduced anxiety and a reduction of her depressive symptoms, whilst assisting her with self-respect, increased confidence and optimism.
Ms X opines that the mother’s mental health has deteriorated pending this litigation/trial. She suffers disrupted sleep and reduced cognitive capacity, requiring greater psychological intervention with the further implementation of coping strategies. She was observed to become avoidant in the community and isolated in her home to a greater degree.
Any resumption of the children’s time with the father is seen by Ms X as likely to cause the mother acute anxiety within her symptoms of hypervigilance. Ms X anticipates that this would vicariously create confusion and instability for the children noting different parenting styles, philosophies and lack of communication between the parents. In summary, it is the opinion of Ms X that the mother is likely to experience deterioration to her mental state and feelings of safety and security should the children spend time with the father.
At [6] and in conclusion of her report Ms X states and perhaps more in line with my observations of the mother in court:
It must be noted that [Ms Harrison] is an extremely resilient, grounded, and more rational individual than she has ever demonstrated in the past years I have known her. This is attributable to healthier priorities, implementing skills and strategies to manage her stressors, and a very strong work ethic based on providing the best of education and lifestyle for her children, despite their complex ages. I can confidently state that she has gained significant strengths and effectiveness as a mother over the years that she has been the sole and primary parent.
Ms X’s evidence remains unchallenged. It also remains for me to accept Ms X’s conclusions as being based on the honesty of the mother’s history given to Ms X.
Ms Z
Ms Z gave evidence and was brought to court on subpoena not having provided an affidavit. She is an employee of the Department of Families, Fairness and Housing (Victoria) (“the Department”). She was the Child Protection worker initially involved with the children in January 2021. She dealt directly with the father at U Hospital in January 2021. Ms Z provided input as to the Responses now exhibited before me and provided by the Department in this matter on 1 April 2021 and 15 July 2021.
Ms Z gave evidence that she was present at the hospital in January 2021 but had no previous dealings with the family. She had reviewed the history that morning. That summary appears as follows:
Child Protection received a report on […].1.20 21, with reported concerns pertaining to [Y] and [V] being missing. It was reported the children were left unsupervised at their home in [Town AA] and walked to the train station to make their way to the paternal grandmother's [Ms K Harrison’s] home in [Suburb BB]. Concerns were raised that [Ms K Harrison] was hiding the children when they attended her home and the paternal family were not cooperating with Police. Further concerns pertain to the children disclosing physical abuse by their mother [Ms Harrison] and were taken to [U Hospital] for further assessment
A note of January 2021 discloses:
It is Child Protection’s assessment that [Y] and [V] have likely been coached in their disclosures.
Further, a note on page 2 of the report of 15 July 2021 states:
Between the 4.2.2021 – 24.3.2021, [Y] disclosed to multiple people including [Ms Harrison], older sister [Q], [CC School] Assistant Principal [Ms DD], school and child psychologist [Mr EE], family friend [Ms FF] and Child Protection that he had lied to Child Protection and Victoria Police during the VARE advising that [Ms Harrison] doesn’t physically assault him and that he was coerced into leaving the family home by the paternal grandmother [Ms K Harrison]. [Y] advised that they planned this through correspondence via email between himself, [Ms K Harrison] and [Mr Harrison] and the reason he lied was because [Mr Harrison] would get into trouble with Victoria Police
A further note on page 3 discloses:
Child Protection have spoken further with [Y] and [V]. [Y] has spoken about feeling as though he has to choose between his parents advising he doesn’t want to be made to choose and would ideally like to spend equal time with his parents advising he thinks this is “fair”. [Y] advised if he could say one thing to his parents, he would tell them “stop acting like children and fix the problem without court”. [V] spoke about the day her and [Y] went missing, advising [Mr Harrison] knew about this because her paternal grandmother [Ms K Harrison] told him. [V] advised her and [Y] went to [Mr Harrison’s] house before being picked up by [Ms K Harrison’s] friend “[Ms GG]” and during the drive down to [Ms GG’s] were told to duck from cameras by [Ms GG] and [Ms K Harrison].
The Department concluded that the children were not at significant or immediate risk of harm in the mother's care but noted that the ongoing acrimonious relationship between the parents continue to have a significant impact on the children’s emotional well-being.
The Department’s conclusion noted that Mr Harrison continued to show limited insight into the ongoing emotional impact for the children and has not taken responsibility for his concerning behaviour towards staff in front of the children.
The Department summarised thus:
Therefore, despite both [Y] and [V’s] wishes of shared care between their parents, Child Protection respectfully recommends, any future contact [Mr Harrison] or the paternal grandmother [Ms K Harrison] has with the children needs to be fully supervised by an independent body such as a contact centre. Furthermore, Child Protection respectfully recommends any future Family Law Court matters should limit the children’s involvement to reduce the ongoing emotional impact this is having on them.
The earlier report of 1 April 2021 discloses that as early as 3 February 2021:
[Y] and [V] completed a Video Audio Recording Evidence (VARE) separately with Victoria Police Family Violence Members [Officer HH] and [Officer JJ]. Similar concerns were raised about the inconsistencies in the children’s version of events particularly surrounding the “nice lady” that picked them up from [Suburb KK] train station and transported them to [Ms K Harrison’s] house. Of note, there was a significant change [V’s] body language when she was advised that the Victoria Police had viewed CCTV footage that confirmed the children never went back to [Ms K Harrison’s] house. [V] initially presented well retelling her version of events, however, when Police advised [V] their were camera’s outside [Ms K Harrison’s] house which confirmed the children didn’t attend the property, [V’s] body language changed and she became silent, slumped in her seat, began to silently cry and advised she was worried about telling the truth. [V] did not speak for the rest of the interview
The Department’s report also deals with the father's presentation at the hospital in January 2021 as follows:
[Mr Harrison] was observed to become aggressive and abusive towards Child Protection Practitioners, expressing he didn’t trust Child Protection. Child Protection asked [Mr Harrison] to leave the hospital voluntarily however he refused so security attended, and [Mr Harrison] began “live streaming” Child Protection Practitioners on Facebook despite continually advising they did not consent. [Mr Harrison] then proceeded to walk back to the hospital room with the children and when Advanced Child Protection Practitioner [Ms Z] attempted to shut the door to stop [Mr Harrison] coming in, he proceeded to grab [Ms Z’s] arm with both hands and forcefully pushed her across the hospital room. Security and Child Protection attempted to redirect [Mr Harrison] in not exposing the children to this, but he did not change his behaviour and he proceeded to call Security Guards “thugs” and Child Protection Practitioners “cunts” and “feminists”. A decision was made that Victoria Police needed to be called to remove [Mr Harrison] from the hospital. [Y] and [V] were exposed to all of this and were visibly distressed. [Y] and [V’s] distress significantly increased when Victoria Police arrived in which both children were observed to be hyperventilating, screaming, and begging Victoria Police to not arrest [Mr Harrison]. [Mr Harrison] was escorted out of the Hospital by Victoria Police after he deleted his previous video’s that were live streamed.
It should be noted that Mr Harrison disputes the version of events at the hospital as set out above. He says that the Department were overly aggressive towards him and implied that they had pre-existing negative biases against him. He said that he only wished to give his children a hug and a kiss before voluntarily leaving the hospital.
The Department spoke with the assistant principal of the children’s school, Ms DD, and with the school psychologist, Mr EE. They raised no concern for the children at school. They did state specifically no concerns in respect of the mother. They noted that both children expressed a wish to see the father more than once a month and would like to spend equal time with their parents.
Ms Z was cross-examined in respect of the father’s claims of aggressive behaviour towards him and a pre-existing bias. She emphatically denied both.
Ms Z impressed as an experienced, qualified, and empathetic practitioner working in a difficult field. She gave her evidence in a calm, considered and informed fashion. I generally accept the evidence of Ms Z where no reason for bias could be mounted in circumstances where Ms Z had no direct history with this family.
Family Report – Mr W
Mr W is a Court Child Expert/Family Consultant. He prepared a report in this matter dated 12 August 2022. Mr W offers recommendations at [96]-[101] as follows:
96. [Ms Harrison] to have sole parental responsibility.
97. [V] and [Y] to reside with [Ms Harrison].
98.[V] and [Y] to spend time with [Mr Harrison], on four occasions each year, surrounding the children’s birthdays, Father’s Day and Christmas, each session to occur for three-hour periods, supervised professionally within a contact centre.
99.[Mr Harrison] to be permitted to provide [V] and [Y] with letters and gifts relating to their birthdays and significant cultural events such as Christmas.
100.[V] and [Y] to resume therapeutic counselling, initially via there school psychologist, [Mr EE]. Upon this counselling concluding, the children should be referred for ongoing support with a community-based child focused psychologist.
a.Professionals working with [V] and [Y] to be provided with the current orders, the s67ZW response and copy of this report.
101.The children will likely benefit from [Ms Harrison] accessing ongoing professional support, via her psychologist, [Ms X].
At the time of the interviews for his Report in July 2022, the mother had not proposed to relocate to the United Kingdom. Mr W was asked to comment on this amended proposal and was also given correspondence including a letter from the ICL to the parties dated 5 July 2023, advising that the children no longer wish to have any contact with their father and were amenable to the relocation. Further, Mr W was given access to a letter written by Y to the ICL on the evening of the second day of evidence in this trial, being after the cross examination of the father and before the evidence of the mother, where the mother gave evidence that the children volunteered to her that they ‘wanted to tell the truth’ (apparently in respect of the particular details of the events of January 2021) and that Y wished to pen a letter/email to the ICL. That letter repeated that the children wish to not have a relationship with their father.
Mr W was cross-examined in some detail as to the children’s wishes and preferences in respect of their father. At the time of the interviews for his report being July 2022 the children were noted as wanting a relationship with their father. At [73] Mr W reports in respect of Y:
73.In relation to future parenting arrangements, [Y] outlined a strong desire to spend time with his father. He referenced that he had a “proposal” that he live with his mother and spend time with his father one week out of every three weeks. [Y] described his hope the Judge might provide his parents with one more chance and anyone who “broke the rules” would have their time ceased.
Further, V described the following:
59.[V] was able to detail enjoying her spend time with her father prior to January 2021, with her stating that time travelled quickly when she was enjoying herself. During the past spend time, [V] described regularly visiting her baby cousin and uncle, she also advised of remembering her father taking her to McDonalds on these occasions.
60.[V] confirmed having no contact with her father since the January 2021 incident. She also advised of missing her paternal cousin, describing positive relationships with members of the extended paternal family.
61.[V] expressed that she would likely feel sad, whereby she was not able to spend significant time with her father. She referenced an intention to look on the positive side, regarding any spend time she was able to receive.
A striking theme of the Family Report is the children’s wish that their parents could ‘get along’. There is a strong suggestion of influence by each of the parents on the children, with Y reporting his mother telling him that his father was ‘violent’ but also confirming the influence by his paternal family.
It is notable, in my view, that these two children strongly embroiled in their parent’s dispute were able to identify the direct influence by their father and paternal grandmother in running away from the mother’s home whilst also showing a continuing strong desire for a relationship with their father. Mr W agreed that this was a feature of the children’s demeanour and reporting. As such, he seriously doubted the independence and veracity of the children’s recent statements suggesting that they wanted no relationship with the father. He proffered a rationale that the children simply desire peaceful lives and had become ultimately frustrated with the ongoing parental dispute. Mr W also doubted the veracity of the children’s stated agreement to relocate with their mother to the United Kingdom.
Armed with this new material, Mr W did not divert from his recommendations for these children, including that they continue a relationship with the father albeit effectively being ‘recognition contact’. The implication is, however, that these children might indeed enjoy a more productive relationship with their father if there is evidence, not currently manifest, that the father and his family honestly acknowledge the errors of their previous manipulation of these children and show an insight into the impact to those young children of their behaviour.
During his cross-examination, Mr W opined that he thinks that Y maintains a strong desire to have a relationship with his father. He says he likes his father and enjoys seeing him in that Y desires, and the father gives him, a male adult role model. Mr W is of the view that, absent any pressures or sense of divided loyalties, Y would probably elect to see his father more often.
Mr W presented as a thoughtful and informed professional witness.
RELEVANT LAW
Despite the prominence of the credit issue surrounding the children fleeing their mother’s home in January 2021, my consideration remains a general one as to orders which accommodate the best interests of Y and V, with this being my paramount consideration pursuant to section 60CA of the Family Law Act (1975) (Cth) (“the Act”).
Whilst on one hand the issue might be centred on whether or not there be a return to the children spending time with their father in circumstances where he concedes both sole parental and ‘live-with’ responsibilities to the mother, the issue of the relocation of the children from Australia to the United Kingdom is a late recasting of the mother’s application. It is proper to note, therefore, that issues of relocation of children bring other considerations to the fore involving distance, logistics and competing commitments for children often not relevant in more usual parenting disputes. Experience suggests that whether the Court ultimately makes an order allowing children to relocate or, to the contrary, refuses an application for a parent to relocate with the children, then one or other of the parents is inevitably left aggrieved. If the relocation is permitted then the nature of the relationship between the children and the remaining parent is fundamentally changed by reason of travel and logistics. High-frequency and frequent or spontaneous contact is not practicable. Conversely, the primary parent takes on an even greater role where there is no presence, influence or frequent direct contact between a child and the other parent. On the other hand, however, if the relocation is not permitted then the applicant parent is left embittered by the loss of ambition and expectation. On either scenario any potential for a cooperative and communicative parental relationship is inexorably tested or lost.
It follows, therefore, that matters involving the proposed relocation of children are among the more difficult coming before these Courts, where the many opportunities for crafting creative orders accommodating relationships for children with both parents are not available.
Notably, the Act itself is silent as to the concept of relocation of the children. In that sense, a relocation is neither prohibited by law nor is there a presumption against it. Rather, the proposal by one parent to relocate children, either intrastate, interstate, or internationally, is simply one of numerous factors to be considered by the Court in ultimately arriving at orders which on balance attend to the children’s best interests. In this sense, it should be emphasised that the proposed relocation of children is not to be treated separately to the overall determination of those children’s best interests. A parent's proposal for the living and parenting arrangements for children that involve a relocation is to be determined like any other parenting case. As the Full Court observed in Paskandy & Paskandy:[3]
There can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
[3] Paskandy & Paskandy [1999] FamCA 1889; (1999) FLC 92-878.
Whilst there might be no special category of ‘relocation case’, Superior Courts have assisted trial judges in formulating a set of informal ‘principles’ that aid in determining matters involving the proposed relocation of children. The Full Court observed in KB & TC:[4]
72.We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[4] KB & TC [2005] FamCA 458; (2005) FLC 93-224.
The relevant ‘principles’ can be summarised as follows:
(i)Relocation matters are to be determined, like any other, in accordance with Part VII of the Act and within the context of making necessary findings in respect of the relevant section 60CC “best interests” factors but also within the context of section 60DAA considerations of equal time or substantial/significant time, together with 'reasonable practicability';
(ii)The best interests of the children remain the paramount but not the sole consideration;
(iii)The children’s best interests must be weighed and balanced against the ‘right’ of a parent to ‘freedom of movement’ but where such must ultimately defer to the children’s best interests;
(iv)An applicant for parenting orders involving a relocation need not show compelling reasons towards the relocation but must show reasons of sufficient substance, weight and materiality towards such orders;
(v)Neither party carries an onus of proof in respect of the proposed relocation and the Court is to consider each party’s proposal generally, including the advantages and disadvantages of a relocation, or may itself formulate proposals in the best interests of the children.
Generally, the best interests of children are determined by the Court referencing the parties’ proposals, including any anticipated relocation, and the probative evidence to the numerous mandatory considerations set out at section 60CC(2)(3) of the Act, against the background of the Objects and Principles of the Act at section 60B which provide:
(1)The objects of this Part 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.
(2)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; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Where the father concedes sole parental responsibility to the mother then the statutory course of consideration set out at section 65DAA mandating consideration of ‘equal time’ and ‘substantial and significant time’ regimes might not assume critical importance. Such options are, however, available to the Court, where ultimately the Court must arrive at orders which attend to the children’s best interests and consider issues of ‘reasonable practicability’ and where the Court’s task is not simply one of choosing between options posed by the parents but rather to reach determinations and to formulate orders which attend to the children’s best interests.
SECTION 60CC FACTORS
The section 60CC considerations are divided into ‘primary’ and ‘additional’ considerations but without any hierarchical priority. Those primary considerations are:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Recent amendments to the Act at subsection (2A) stipulate that the Court is to give “greater weight” to the consideration at subsection (b) where courts commonly, as is the case here, balance these primary considerations which are prominent in the Court's ultimate determination. Importantly, however, and where the father here argues with emphasis on the ‘meaningful relationship’ aspect of subsection 2(a), no consideration is of itself determinative to the Court’s ultimate result which again is a balance of all considerations towards the children's ultimate best interests.[5]
Section 60CC(2)(a) - The benefit to the children of having a meaningful relationship with both of the children’s parents
[5] Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407.
The children currently have no direct relationship with their father. They do, however, have memories of him as evidenced by their relatively recent comments to Mr W and a desire to re‑establish a relationship with him.
The mother argues that there is no ‘benefit’ to the children in having a relationship with their father where they are settled, happy, and achieving in their lives without any such relationship. To the contrary, she says that the father acts to undermine her own established and successful relationship with the children.
It is well-established that the consideration here is both ‘qualitative’ and ‘prospective’ in focus, although current and past relationships for children are, of course, relevant.[6]
[6] McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405.
The evidence, most prominently in the Family Report, suggest that the children are torn in their relationships between their parents but it is reasonable to assume that their current sense of support and dependency rests with their mother.
Section 60CC(2)(b) - The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father argues that the mother has a propensity for physical violence including to the children. The force of this argument must, however, be diminished where he now concedes 'live-with' responsibility to the mother. The father's allegations are denied by the mother but where the evidence including that of the children, intervention orders, and a conviction (dealt with by diversion) suggest that she may have inflicted corporal punishment of a type no longer generally accepted as reasonable.
The evidence of Child Protection, although lengthy in its history, supports the mother as the continuing primary parent.
The mother alleges emotional abuse of the children by the father and the paternal grandmother, most evident in what she says was the conspiracy to manipulate the children into running away from her home in January 2021. The Family Report suggests both parents being culpable in imbuing the children in the adult dispute with a consequent lack of insight of each of these parents noted by the Child Protection practitioners and the Family Reporter as significant. These children have both stated clearly that they want an end to them being the subject of further parental conflict but where the parents seem oblivious to the potential emotional and psychological impact on these children of such conflict as they travel through their adolescence and early adulthood.
The mother says that the father’s manipulative and undermining behaviour has been continuous and she doubts any newfound insight in him and hence argues that a relocation of the children with her to the United Kingdom will relieve the children from such emotional distress.
Section 60CC(3)(a) - Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views
Significantly, and until recently the children have expressed a clear view to have a relationship with their father. This is despite them being upset in being involved in the ongoing parental conflict and dispute and more strangely so given that they now blame their father and grandmother for initiating the incident of January 2021. Mr W opines that Y craves an adult role model in his father and both children speak positively as to their previously happy relationships with the father.
Mr W doubts the veracity of the children's recent change of view where they are saying they want no relationship whatsoever with their father. He gives a possible explanation of the children simply being exhausted by the continuing parental conflict and seeing, as indeed they have stated, that they feel confined to a choice between parents rather than having the benefit of both of their parents in their lives. Mr W, however, maintains that, without these pressures, the children would prefer to have a relationship with their father. Mr W understands the children’s stated acquiescence to the mother’s proposed relocation as equivocal in the same context.
Sesction 60CC(3)(b) - The nature of the relationship of the children with each of their parents and any other persons (including any grandparent or other relative of the child)
The nature of the children's relationship with their father now is simply one of memory. They have had no direct contact since January 2021. Similarly, they have not had contact with the paternal grandmother or any members of the father's extended family. The evidence is that they previously enjoyed good relationships with those extended family members. There is evidence that the children now place blame on the paternal grandmother for the events of January 2021. V, in particular, expresses her reluctance to have any relationship with the grandmother. It is likely, therefore, that the children understand the father and his extended family to be the authors of their current difficulties.
The children’s relationship with their mother is, on its face, one of support and dependency. She is in all respects their sole parent. She appears to be active and capable in her parenting of the children, notably working two jobs for their support. She presents as both proud and ambitious for them in their education.
The evidence is that the children have an ongoing good and mutually enjoyable relationship with their 19-year-old sister, Q, where it is the Court’s understanding that Q intends to relocate to the United Kingdom if the younger children are permitted to move with their mother. Although the Court did not hear from Q directly, it is clear that she is partisan to the mother and has rejected the father.
Section 60CC(3)(c) - the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children; to spend time with the children; to communicate with the children and to maintain the children.
The orders of Justice Gill from 2019 severely limited the father’s participation with the children. His time was restricted to one Saturday per month, with sole parental responsibility vested in the mother. That time has been suspended since January 2021.
The father was subject to some criticism in cross examination as to a lack of financial support for the children. The evidence is, however, that he has complied with his child support obligations although where he has found himself in ‘advance’, likely due to some review mechanism and he is not currently obliged to make weekly or monthly payments.
Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person.
This is a significant consideration given the mother’s recent amendment to her application seeking to relocate the children to the United Kingdom. As mentioned above, any relocation of children involves additional potential expenses of travel and logistical considerations although the mother argues for no contact between the children and the father. Further, if a relocation is permitted then the children are likely to develop peer group relationships in their new place of residence which may conflict with any commitment, by court order or otherwise, for contact with the non-primary parent. Any opportunities for flexibility and spontaneity in that children/parent relationships are lost.
Section 60CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
The mother argues, of course, that there should be no relationship between the children and the father in the event of a relocation or otherwise.
If, however, a relocation was to occur and an order made for the children to spend time with the father then considerations of practical logistics and expenses are relevant. Neither parent here claims to be of any considerable wealth. The mother says that she has no savings and limited assets. Her capacity to fund travel for the children is likely to be minimal, if any. Similarly, the evidence of the father’s child support obligations and his work arrangements suggests he would similarly be in a poor financial position if called upon to fund travel for the children from the United Kingdom to Australia or, alternatively, if he was required to travel to the United Kingdom to see his children.
Section 60CC(3)(f) - the capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs.
The mother has a demonstrated capacity in respect of attending to the children’s physical and intellectual needs. The statements by the children to Mr W suggest that she may have some culpability in respect of participation in the adult conflict by the children and therefore lacking some insight into the children's needs for emotional stability. Any finding of the mother assaulting the children or rendering disproportionate corporal punishment is an indictment on the mother’s parenting capacity.
Should it be found that the father and/or the paternal grandmother conspired to encourage the children to leave their mother's residence contrary to court orders and to concoct false allegations against the mother, then their capacity is seriously impeached and the emotional and psychological impact on these children would be profound.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the Court thinks are relevant
These children are still young at 13 and 10 years respectively. The evidence is that they have been the subject of, and embroiled in, parental dispute regarding them since V’s birth. They have vicariously now endured three final trials in respect of them. They are aware that they are the objects of their parents’ dispute. They crave an end to the conflict and a peaceful relationship with each of their mother and father. History here has caused them to believe that they are now called upon to choose between their parents. This is a travesty.
The parents are both of Country H origin. I assume that each is capable of educating the children in their background and culture.
Section 60CC(3)(h) - if the children are Aboriginal children or Torres Strait Islander children
This consideration is irrelevant in this matter.
Section 60CC(3)(i) - the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
Yet again, should it be found that the father was involved in the children running away from the mother's home in January 2021, then his attitude to the responsibilities of parenthood and his insight are deplorable and selfish. Should the Court find that the mother has assaulted the children then similarly she has acted irresponsibly.
Section 60CC(3)(j) and 60CC(3)(k) - any family violence involving the children or a member of the children's family and any family violence orders that apply or have applied
Issues of family violence are dealt with above. Suffice to say that the father alleges physical and emotional violence perpetrated by the mother on the children. In turn, the mother alleges emotional abuse of the children by the father. These parents have an unenviable history of use of state court intervention orders.
Section 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
This is an important consideration and particularly so given the mother’s wish to relocate the children to the United Kingdom. The Court must consider whether the mother’s application in this regard is informed and rational as against the best interests of the children? A relocation involves the removal of children from their settled schools, culture, peer group relationships, and extracurricular activities. Any inability by the children or either of them to settle into a new environment may well result in the institution of further proceedings. Similarly, any relocation requires evidence of sufficient probity as to the preparations made by the parent anticipating to relocate in respect of issues such as schooling, accommodation, employment, and facilitating a relationship with the remaining parent, if relevant. Any lack of proper preparation in this regard may also result in further litigation in respect of the children. Practical matters such as financial impost and logistics may equally result in further litigation.
The mother’s evidence in court is suggestive of her desire to relocate being motivated primarily by a wish to put distance between herself and the father and combined with an application seeking that there be no time or relationship of any type between the children and their father. She suggests that the father’s historical tendency to undermine her relationship with the children is the basis of her application.
In this matter the children’s wishes and preferences have varied or been equivocal. Notably, the letter from Independent Children's Lawyer dated July 2023 and now exhibited before me gives continued concern as to this equivocacy, where Y is noted as being settled in his current school and relationships but agreeing to relocate with the mother but where he has relatively recently expressed a strong desire to have a relationship with his father, now saying that he wants no such relationship where there is a likelihood of some further changing of the children’s views and preferences as they grow older, this would, of course, give potential to renewed litigation.
FINDINGS AND CONCLUSIONS
At the crux of this matter, as was indicated by Counsel, are the events of January 2021 which figure heavily in the arguments proffered by each of the parties and my determination. This is an issue of credit where each of the parties maintains a version of history so irreconcilable that first impressions indicate that one or the other is not a witness of the truth. In summary, the father asserts that the children voluntarily left the mother’s home after an assault by the mother on Y. The mother, for her part, denies any such assault and says the children were encouraged and manipulated by the father and/or the paternal grandmother to leave the mother's home and to fabricate the assault.
The father and the paternal grandmother consistently deny these assertions. Nevertheless, perhaps ‘first impressions’ serve to deceive and on the balance of probabilities, with the benefit of considering all of the evidence and the considerable advantage of seeing and hearing the parties give their evidence in court, I conclude that each of the parents and the paternal grandmother have been less than forthcoming with the truth. That is, I conclude on the balance of probabilities the mother did assault Y and this perhaps over vigorous corporal punishments fits with a propensity for such disciplinary responses in the mother. Where such physical chastisement by a parent may not be illegal under state criminal codes in this country if rendered with reasonableness, such does attract the attention of international conventions on the rights of children and the interest of this Court. Consequently, I do not accept the denials of these allegations by the mother. Equally, however, I do not accept the denials of the father and paternal grandmother as to assertions of collusion with the children to have them abscond from the mother’s home and to make their way by public transport to the grandmother where I find she was assisted by her friend ‘Ms GG’ to hide the children away from the mother and the authorities.
In reaching these findings I rely on the following where notably much of the ‘truth’ comes from the mouths of the children themselves:
(i)The children retreated at an early stage from the allegation that the mother assaulting Y was the motivation for them absconding and that they did so separate from any enticement by the father or the paternal grandmother;
(ii)Experienced Child Protection officers doubted, from initial assessments, the veracity of the children’s allegations of assault and rather placed the focus on involvement of the father with the children being returned to their mother just two days after their absconding and whilst the investigation remained open;
(iii)Nevertheless, against this background and some 18 months later in July 2022 at the interviews for the Family Report, V at [54] spoke of her mother “occasionally using physical discipline”. Similarly, at this same time and also for the Family Report interviews, Y at [69] reported thus:
[Y] was queried about the […] January 2021 incident, any incident occurring proceeding his decision to run away, he referred to being hit on the top of his head by his mother after he pushed his sister onto the couch.
(iv)In March 2021 Y engaged in a 45 minute counselling consultation with the school psychologist, Mr EE. Subpoenaed and exhibited notes disclose Y saying “that his mother sometimes hits him when angry”. Notably, this revelation must be seen against the Child Protection notes of 15 July 2021 with Y “advising that [Ms Harrison] doesn't physically assault him”.
(v)The father asserts that the children’s initial allegations of assault were withdrawn under inducement or threat by the mother to the effect that she would be imprisoned and the children sent to foster care unless they withdrew the allegations against her. There is some merit to the father’s claim having reference to a school note subpoenaed now exhibited in respect of the children disclosing:
[Y] asked to speak to me at 3:30 PM on Thursday 4th February and said that he had lied to police about his grandmother's involvement and that she had encouraged them to run away. He said his father wasn't involved. He said that he didn't want to get his grandmother into trouble because she was his last living grandparent. He said that he was scared and that he did not want to go into foster care or leave the school and he did not want his mother to go to jail. [Y] said he was not sleeping well and felt very upset by everything. He said that his mother did hit him sometimes when he had been bad. He wanted me to contact Child Protection and let them know about the lie as he did not want his mother to get into trouble.
(My emphasis added)
(vi)Relevant as to the demeanour and temperament of the mother was a finding of guilt against her in respect of charges in 2013.
Consequently, given the above, I find that the mother did assault Y as initially alleged. I reject the mother's denials and where I place considerable weight, given the temporal and contextual circumstances, to the statements made by Y to the Family Reporter that he had been hit about the head by the mother around January 2021.
Similarly, however, I am satisfied on the balance of probabilities that the father and the grandmother colluded to entice the children to leave the mother's home in January 2021. As such, I find that the father and grandmother are not witnesses of the truth in respect of this incident. In finding as such I note and rely on the following:
(i)The children at an early stage retracted any statements that they acted unilaterally of the grandmother and the father. These retractions have been variously made to Child Protection, the school, the school counsellor, the Family Reporter, and to the ICL;
(ii)The grandmother's evidence of the children being collected by a kindly stranger at the railway station with that person bringing them to the grandmother's home and ringing the front doorbell but leaving the children before the door was answered is inherently unbelievable;
(iii)The father's evidence of him sleeping at home during these events and being oblivious to communications from the grandmother is similarly inherently unbelievable;
(iv)The children themselves refer to 'Ms GG’, who is a friend of the grandmother, being involved in the collection and moving of the children between homes with the some detail as to the clandestinity of the operation. The grandmother denies such involvement by 'Ms GG’. The father was given the opportunity to bring evidence from 'Ms GG' but chose not to do so without adequate explanation and hence allowing me to take the inference available to me that such evidence from 'Ms GG' given honestly would not have assisted the father's case.[7]
(v)Y's iPad assumes some importance in this matter. The father was prohibited from communication with the children except within a limited window provided in the orders of the Justice Gill. I am satisfied from Y's own statements that there were such communications in breach of his Honour's orders and most likely by way of the iPad. Y had the iPad at the railway station. Its whereabouts is now unknown. Where the children now say consistently, and I find, that the grandmother and/or the father orchestrated their absconding from the mother's home in January then I am comfortably satisfied that the father took possession of the iPad so as to conceal evidence of the collusion towards the children's absconding. Any suggestion that the mother retained the iPad is nonsensical given that she would have no reason to secrete it away. Indeed, in a letter tendered from the ICL, Mr Weston, dated 20 July 2023 states the following:
On checking my notes from my meeting with the children in this matter on 5 July 2023 to ascertain their views as to the proposed relocation, I note that when I wrote to the parties reporting on the children's views as to that aspect on 10 July, I did not also confirm that [Y] advised me that he was very embarrassed about ‘going missing’ and that his father and grandmother had arranged for them to go through messages on his laptop.
(My emphasis added)
[7] Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
Consequently, I am comfortably satisfied on the balance of probabilities that the grandmother colluded with the father so as to entice the children into absconding from their mother’s home in January 2021. As such, I do not accept either the grandmother or the father as witnesses of the truth in their denials given both on affidavit and under cross-examination in this Court.
Therefore, where this matter was brought back to this Court for a third trial initiated by the discrete issue of the children absconding in January 2021 and where issues of credit prevail, I find that the ‘truth’, such as it is, comes, not unusually, from the mouths of the children themselves. I find on the balance of probabilities that the mother did assault Y as initially asserted. I find that the father was in contact with the children contrary to then extant orders. I find that the father acted opportunistically by enlisting the keen support of the paternal grandmother to entice the children to run away from their mother’s home and to report the assault on Y as justification but to then lie about the involvement of the father and the grandmother.
Generally, I find that the children’s major source of support and dependency rests with the mother which is perhaps natural in circumstances where they have not had any contact with their father since January 2021. The equivocacy in the children's statements, particularly those of Y, as to a willingness to relocate with the mother demonstrates the strength and dependency of the mother/children relationship.
Nevertheless, and despite no direct contact for the children with their father since January 2021, the evidence as a whole suggests that the children maintain a memory of and a form of relationship with their father. Until a matter of days before this trial the children were consistent and vocal in their desires to have a relationship with their father. They are able to identify positives in him and in their relationships with him. I accept the opinion of the Family Reporter, Mr W, that Y still sees his father as a relevant and desirable male role model for him.
My finding of fact in respect of the intervention of the father and the paternal grandmother and the children fleeing their mother’s home in January 2021 quite clearly constitutes a form of emotional abuse of the children perpetrated by these two adults. In other respects, historical issues of family violence of various types, notably physical and controlling/coercive, have dominated the relationship and separation of these parties and have been substantially dealt with in the previous two trials. At this stage, however, it is significant that the father maintains his version of history being his lack of involvement directly or indirectly in the children leaving their mother's home. Despite some attempts by him to suggest otherwise, his lack of acknowledgement must equate to a lack of remorse and despite his attendance at three post parenting separation parenting courses there is some merit to the mother’s contention that the father undermining her relationship with the children might continue.
As set out above, however, I find that the mother did, and has, at the very least, inflicted rigorous corporal punishment on the children. That Y should tell the Family Reporter that he was hit by the mother “around the head” is significant and weighty evidence. That the mother may well feel undermined by a vigilant and opportunistic father does not, in my view, mitigate her culpability.
The impact on the children, of course, is in respect of their emotional and psychological welfare where there is already clear evidence, as articulated by Mr W, that these children are exhausted by their parents’ conflict and litigation. It is clear that they feel the need to choose between their parents where they see little prospect of maintaining a happy and conflict-free relationship with both their parents. That is they appear ready to compromise their own wishes and preferences in respect of their parents for the sake of peace.
I find, on the balance of probabilities, that the children are desirous of having a relationship with their father. The Family Report is notable in this aspect and despite the children's blame of their father in respect of the incident of January 2021 and the fact that they had not had contact with him between January 2021 and August 2022 and where it is reasonable to assume they have a form of alignment with their mother who has, on the evidence, most likely imbued them with her negative views of the father. As such, recent statements now before the Court in the form of a letter from the ICL to the parties and the email penned by Y on the second evening of the this trial both assume less weight and where it is highly likely that the children have become exhausted and frustrated by the conflict and litigation. In any event, the statements made by Y in the letter from the ICL are at best equivocal. Mr W urges caution in respect of the children’s most recent revelations and he is of the view that both children do, in fact, want a relationship with their father. I agree with him.
I find the mother to be a devoted and loving parent. I accept that she has been undermined in her parenting of the children which has made her task more onerous. She admirably works two jobs to provide financial support and quality education for her children. Her failure is in respect of lacking insight into the impact on Y and V of her occasionally aggressive temperament and her denigration of the father to the children. To the contrary, the father’s capacity to parent the children is now an unknown but where, in any event, he concedes ‘live-with’ responsibility to the mother and such delegation must necessarily and logically bring with it an admission as to the mother’s capacity. It is in respect of the father’s lack of insight into his own behaviour that impeaches his capacity where he seems oblivious to the emotional and psychological impact on the children specifically as to the events of January 2021, and more generally in respect of his undermining of the mother. Suffice to say that the paternal grandmother remains as culpable as the father in these respects.
The Court is tasked in considering the mother’s proposals for the relocation of the children which would bring a significant change in their actual or potential relationships with each of their parents and other persons and also to consider the expense and practicality of orders sought by a parent. In this respect, the mother’s proposal to relocate the children from Australia to the United Kingdom is a significant aspect of her overall proposals as to the children's best interests. The material filed suggests that the mother’s decision to relocate with the children is a relatively recent one and perhaps only made a matter of weeks before this trial. She concedes in the witness box that her decision was influenced by a holiday enjoyed by her to the United Kingdom earlier in the year. The mother candidly says that her prime motivation is to put distance between herself/the children and the father both physically and emotionally. Whilst the Court is to have the children’s best interest as its paramount consideration it must also take into account the interest of the parent and particularly where the happiness of that parent directly relates to the best interests of the children. Her rationale is simple and understandable. She believes that the father will continue to undermine her relationship with the children despite his protestations to the contrary. As such, she says that her own parenting capacity and therefore the children’s interests will be enhanced by she being a happy parent safe from the father’s obstructive behaviour. She states in turn that the children will be happy and settled by being removed from the parental conflict. In this sense she proposes no relationship at all for the children with the father saying that “they can have a relationship when they are 18 years old if they want”.
Whilst the mother’s contentment is an obvious and important consideration it is not of itself determinative of the proposal for relocation and of the children’s best interests more generally. It is notable that I have found these children to have an ongoing wish and preference to have a relationship with their father. Further, the evidence is that they are settled, happy, and achieving both academically and socially. Their statements as to agreeing to the relocation are equivocal. The exhibited letter from the ICL to the parties dated 10 July 2023 is enlightening and the contents of that letter are worthy of transcription into these reasons as follows:
We refer to the above matter and confirm that the ICL met with [Y] and [V] on the 5 July 2023 for the purpose of ascertaining their current views and particularly support or otherwise for their mother's application to relocate to [City MM] to live with them.
[Y] impressed as a highly intelligent and very sincere young man and indicated that whilst his preference would be to remain living in Australia where he loved his school and had many friends, he understood his mother's desire to relocate and did not wish to do anything that would stop doing so. As such he was content to relocate with her. He was quite adamant that he did not wish to have any contact with his father.
[V] whilst indicating that she was very happy at her school and had lots of friends, she indicated that she very much wanted to relocate to [City MM] and was looking forward to doing so. She too indicated that she did not want any contact with her father at this stage.
The mother herself has long-standing remunerative employment in Australia and where she concedes that she has no substantial savings or other assets, her financial prospects upon a relocation to the United Kingdom remain unknown and certainly there is no evidence before the Court of any manifest improvement in her financial position. Similarly, the mother's evidence in court was suggestive of a lack of preparation and research into the proposed move. Her only contact is a cousin. She has some cursory information as to potential schools for the children and she has nothing more than ambition in respect of employment. It appeared from her responses that she had given little thought even to the costs of the relocation and re‑establishment in another country. Whilst respecting the mother’s desire for peace in her life and parenting, her sole motivation appears to be one of putting distance between herself and the father.
Given the mother’s attitude, her proposal, and the history of this matter then it is almost inevitable that a relocation would not sit with any orders that allow the children time or communication with the father. Again, I am comfortably satisfied that the children are desirous of such a relationship. Neither parent has any wealth or excess income. Their ability to cooperate is non-existent. The inevitable conclusion is that a relocation for these children would result in there being no contact between them and the father.
The issue of the children spending time with the father becomes, therefore, fundamental to the proposal for relocation in the mother's application. Whilst I am sympathetic to the mother's position given my findings above, I am satisfied that the children do want a relationship with their father.
Despite my findings as to the father’s behaviour, and where he has undoubtedly been supported by the paternal grandmother, I place considerable weight on the desire of these children to have a relationship with him. It is an unexpected but prominent aspect of the Family Report. As such, on balance, I am of the view that the children should have some form of direct contact with their father. I emphasise, however, that this father has had the benefit of two previous trials and findings by judicial officers, the impact and import of which he seems to be either oblivious to or to have disregarded. The decisions that I make here are finely balanced and the father would be unwise to disregard my findings and reasons set out above and where any repeat of the behaviour by him aimed at undermining the mother’s parenting of these children will almost certainly result in these children ‘voting with their feet’ and rejecting a relationship with him and where the children’s views would most likely receive weighty judicial support if this was to occur.
In summary, I come to the view that these children want a relationship with their father and that such relationship is in their best interests. I do not accept that Mr W’s recommendation of 'recognition contact' is sufficient to allow any relationship to flourish. Neither do I see this as a matter where supervision is appropriate. The Family Report is enlightening into the maturity, understanding, and frustrations of these two children. Put simply, and as they themselves say, they just want an enjoyable relationship with both of their parents and should either parent again falter then it will be these quite remarkable children who will then dictate the future of the parent/child relationship. Should either parent think that he or she can continue to imbue V and Y in these adult disputes with undermining, denigration, or degradation then they do so at their peril.
Given my findings, the nature of previous orders, and the hiatus in any direct time for the children with the father then I am of the view that a re-introduction of Justice Gill's orders for time-with is appropriate but with the caveat recognised by Mr W that a stress-free relationship is likely to result in the children themselves seeking extra time with the father. However, any pressure in this regard from the father would cause these children to reject him totally.
The father concedes both parental and ‘live-with’ responsibilities. Although obviously the mother’s proposal for relocation of the children is incompatible with such ‘time-with’ orders. Unless there be confusion I will make an order restraining the mother from relocating the children from the Greater Melbourne area without the consent of the father or a court order. I will, however, make provisions for the mother to be able to travel, overseas if necessary, with the children on one occasion per year.
ADDENDUM
These reasons are given supplementary to the substantive reasons and orders handed down in this matter on 24 August 2023. The order I now make is a machinery order consequent upon the mother wishing not to disclose her residential address for the purposes of changeovers and where there is a history of family violence between the parties. Written submissions was sought from each of the parties and the ICL in respect of this discrete issue.
Both the parties proposed that changeovers for the purposes of the children spending time with the father take place at a McDonald’s restaurant. The father proposes the McDonald’s restaurant on LL Street, Suburb N. The mother suggests the McDonald’s restaurant on the corner of R Street and S Street in Suburb T.
The ICL supports the mother’s proposal given that it is more approximate to a location halfway between the parties’ residence. The father’s proposal is for a venue significantly closer to his residence requiring more travel for the mother.
I agree with the ICL that the mother’s proposal is preferable. Consequently, relevant orders will be amended pursuant to the machinery provisions.
I certify that the preceding one hundred and fifty-six (156) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire delivered on 24 August 2023 and amended with four (4) paragraph addendum on 1 September 2023 . Associate:
Dated: 24 August 2023 and 1 September 2023 (Addendum)
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