Harrow and Eton (No 2)

[2019] FamCA 295

FAMILY COURT OF AUSTRALIA

HARROW & ETON (NO. 2) [2019] FamCA 295

FAMILY LAW – CHILDREN – Parenting – where the child, aged 17, has not spent any time with the father since about May 2014 – where the child has expressed a view that she does not want to interact with the father or paternal grandparents – where it is appropriate to accord significant and determinative weight to the child’s expressed wishes – where it is in the child’s best interests for the mother to have sole parental responsibility for her, she continue to live with the mother and that she be permitted to have an Australian travel document.

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637
Cox & Pedrana (2013) FLC 93-537

APPLICANT: Ms Harrow

RESPONDENT: Mr Eton

INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

FILE NUMBER: BRC 6 of 2012

DATE DELIVERED: 10 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 7 May 2019

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Murphy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous parenting orders are discharged.

2. The child, Z, born … 2002, live with the mother.

3. The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the child.

4. Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) the child, Z, a female, born in 2002, is permitted to have an Australian travel document.

5. The Registrar of the Federal Circuit Court of Australia release any passport currently held in the custody of the Brisbane Registry relating to the child, Z, born in 2002, to the mother.

6. In the event that there is a requirement that the father sign any document or instrument so as to give effect to the terms of this Order, a Registrar of the Court may, pursuant to s 106A of the Family Law Act 1975 (Cth) do all acts and things necessary to give validity and operation to the said document or instrument so as to effect compliance with this Order.

7. The Independent Children’s Lawyer is discharged.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

AND IT IS FURTHER ORDERED THAT

1. All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.

AND IT IS FURTHER ORDERED THAT

1. In the event that any party seeks an order that the other party pay his or her costs:

   (a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and

   (b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

   (c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

   (d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

   and any such application for costs shall be considered in Chambers.

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 Harrow & Eton 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 6 of 2012

Ms Harrow

Applicant

And

Mr Eton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings concern now 17 year old Z,[1] who is currently completing Grade 12 at a school in City D. Z continues to live with her mother, as she has done for all of her life. Her parents separated on 31 July 2002, when she was about four months of age.

   [1] Born in 2002.

2. Reference to the Orders previously made in this matter establish that the final orders to be made to bring these proceedings to an end will be the fourth set of final orders made to regulate Z’s parenting arrangements:

   a)on 17 December 2003: Federal Magistrate Baumann ordered that Z live with her mother and, from March 2004, spend time with her father on an increasing basis until she started school, with such time to include the first weekend each month and half of all school holiday periods;  and

   b)on 30 July 2007: Bell J ordered, on a final basis, that then five year old Z live with her mother and spend time with her father from after school Friday to before school Monday on the second and fourth weekend of each month during the school term and for the entirety of the holidays at the end of Terms 1, 2 and 3 in alternate years and for one half of the Christmas school holidays – these orders, which were made in the father’s absence, also required that the father give the mother no less than thirty days’ notice in writing in respect of holiday time and no less than one week’s written notice in respect of weekend time; and

   c)on 10 February 2014: Judge Howard ordered, on a final basis, that Z’s parents have equal shared parental responsibility for major long-term issues relating to Z; that Z live with her mother and spend time with her father from after school Friday to before school Monday on the second and fourth weekend of each month during school terms (with such time to occur in the greater City D area and with her paternal grandparents to be at liberty to attend these weekends) and for an additional weekend per Term in Brisbane; that Z spend all of the holidays at the end of Terms 1 and 3 with her father in alternate years and half of the holidays at the end of Terms 2 and 4 with her father each year (with the specific order that, in the event the father was unavailable to spend time with Z during such holiday time, she could spend that time with her paternal grandparents instead).

3. Despite the terms of these parenting orders, it is accepted that, by June 2014, Z (then 12 years of age) had ceased spending time with the paternal family.

4. Given Z’s comment to Ms C (a psychologist who most recently interviewed her for the purpose of preparing a “wishes” report) that she just wants “it” (which I take to be the current proceedings) to be over, it is pertinent to record, briefly, some of the events with which orders made after February 2014 have dealt.

Previous Applications for Contravention

1. Z’s paternal grandfather[2] filed an Application for Contravention on 3 December 2014. He filed subsequent Applications for Contravention on 28 January 2015, 20 April 2015 and 22 April 2015.  All four applications were listed for hearing before Judge Howard on 21 April 2016. On that day, his Honour dismissed all of the Applications for Contravention.

   [2] Who had been joined to the proceedings by Judge Howard.

2. On 19 February 2015, the mother filed an Initiating Application in which she sought, amongst other things, the discharge of all orders which provided for Z to spend time with her father.

3. On 13 April 2016, the paternal grandfather filed an Application for Contravention; the father filed a further Application for Contravention on 15 April 2016. Both applications were dismissed by Judge Howard on 23 September 2016.

4. On 17 October 2017, Judge Howard ordered that the paternal grandfather have leave to withdraw from the current proceedings. This order also required that the parties make submissions in relation to the possible transfer of the proceedings to the Family Court.

5. The mother was the only party to make submissions about the potential transfer of the proceedings to this Court. Despite her initial opposition to the same, Judge Howard made an order in Chambers on 27 October 2017, transferring the proceedings to this Court; as I understand it, the transfer was made having regard to the complexities of the matter.

The competing proposals

The mother

1. The mother sought[3] that she be granted sole parental responsibility for Z; that Z not be required to attend any type of contact with the paternal family; that Z’s passport (presently held by the Federal Circuit Court) be released to her and that Z be known as “Z Harrow.”

   [3] Case information document filed by the mother on 8 May 2018.

The father

1. For the reasons expressed during the hearing, I declined to grant the father leave to file and read a Response, in which he particularised the orders he sought, and an affidavit in support of the same.

2. His position can, I think, be recorded as being that, as the Court contributed to the breakdown of his relationship with Z, the Court should fix it.

The Independent Children’s Lawyer

1. Ms Murphy, who appeared on behalf of the Independent Children’s Lawyer submitted that, as was proposed in the Case Information document filed by the Independent Children’s Lawyer on 3 May 2019, the orders which are in Z’s best interest are orders which see her live with her mother; her mother have sole parental responsibility for major long-term decisions relating to her and that she  be permitted to have an Australian travel document (as that term is defined by the Australian Passport Act 2005 (Cth)).

Family Reports

1. Ms C, a psychologist, prepared two Family Reports for use in this matter. The first involved interviews with Z, both parents and the paternal grandparents (and brief observations of Z in the presence of these adults and her half-siblings); the second involved an interview with Z, for the purpose of assessing her wishes.

2. Unless otherwise indicated, I accept Ms C’s evidence.

Family Report: 11 April 2017

1. Ms C was engaged to assess the family’s functioning and to provide information about the most appropriate intervention for Z at that time, given that her time with her father and her paternal grandparents had broken down in about May 2014.

2. During the course of discussion, Z expressed to Ms C her angst about spending any time with her father or paternal grandparents. She provided her experience of spending time with him in May 2014: her recounting included that he woke her early one Sunday morning and yelled at her to decide whether she wanted to live with him or not; that he yelled at her that she would never be able to see her siblings again if she did not live with him – she said that her paternal grandmother tried to stop her father’s behaviour “for once” after it had occurred for over an hour; she said that her grandparents then took her into town – when they returned her father was acting “weird…like a toddler… throwing a tantrum”; she told Ms C that her father was speeding on their drive back to Brisbane and that he drove at more than 160 kilometres per hour down hills and that, when she told him to slow down, he told her, in essence, that he thought they were not talking to each other and that he would rather get there sooner so that he did not have to deal with her; she described that, after he yelled at her about her phone, he later changed moods and told her that he loved her (despite having told her not to speak whilst in the car); she complained that he used to yell and scream at her about little things; that he used “emotional blackmail” during their telephone conversations and told her things that made her cry or upset her and that he often brought up the idea that she should live with him.

3. Z told Ms C that she had asked her mother to email her father to tell him that she did not want to spend time with him; she said that her paternal grandfather always pushed the father not to give up and left harassing messages on their answering machine, which she heard when she arrived home from school; she said that she and her mother subsequently blocked his number and, when he kept calling her on her mobile, she blocked that as well.

4. Z said that she had been asked to write a letter or talk to them about why she did not want to spend time with her father and paternal grandparents – she wrote them a letter after that and showed her counsellor the same and asked her mother to send it for her.

5. When Ms C asked Z what she wanted for her life, she said that she wanted her father and paternal grandparents out of her life; she felt that they came as a package deal and so it was three against one. She also said her grandparents scared her because they wanted her to choose sides between her parents.

6. I accept that Z was resistant to Ms C’s attempts to have her engage with her father or paternal grandparents; I accept that, whilst she agreed to remain for observations, she did not speak whilst in the presence of her father, paternal grandparents and half siblings.

7. Ms C concluded that, given the paucity of interaction between Z and her father, there was the possibility that her mother’s high levels of anxiety and fear about him and the paternal grandparents had transferred to her; she concluded that it was apparent that Z’s then verbalisation of memories of her father were limited; she considered that Z’s feelings toward her paternal grandparents and her request to have no contact with them appeared to be related to her negative feelings about her father and the grandparents’ involvement in promoting a relationship between herself and her father.

8. Ms C considered that Z was then of an age where she was cognitively decisive and understood the consequences of a decision not to have any form of contact with her father. However, she also concluded that it appeared to her that Z’s perceived knowledge about her father may have become fragmented over the years since their interaction ceased and that, without regular time, her judgement of him had developed into one of “hostility and negativity.” 

9. Ms C considered that there had been significant disconnection between Z and her relationship with her father and paternal family over the preceding three years. Ms C considered that this constituted a disadvantage for Z in terms of her personal development because it resulted in a possibility that her identity and relationship formation may be hindered by her limited relationship with her father and paternal family.

10. Ms C opined that, before any recommendations could be made about contact between Z and the father, the paternal grandparents and family, a form of family therapy was needed to promote and facilitate open communication between Z and her father.

Mr B’s involvement

1. According to correspondence from Mr B, dated 12 October 2017, he met with the mother and Z on 26 June 2017; met with the father on 9 August 2017; spoke with the mother and Z by telephone on 5 September 2017 and sent an email to both parents on 20 September 2017 in which he proposed a course of action to commence some communication between Z and her father. 

2. Mr B’s correspondence records that, from those possibilities he discussed with her as a mechanism for starting communication with her father, Z had “cautiously agreed” to the telephone option. However, the father advised Mr B, by email on 11 October 2017, that he would only agree to a face-to-face meeting with Z; he also stipulated that such meeting would include other family members.

3. I am not persuaded that the fact that Ms C was able to have Z participate in observations with members of her paternal family in the manner outlined in paragraph [21] above provided a justification for the father’s response when Mr B asked him to engage with Z over the telephone. After all, this was an opportunity to utilise Mr B’s presence during such call to recommence communication with Z after a lengthy lacuna in the same; it was, I consider, an opportunity that, for whatever reason, the father clearly decided not to take.

4. Given this response, Mr B informed the Independent Children’s Lawyer, in correspondence dated 12 October 2017, that the suggestion proffered by Ms C about having Z and her father engage in some form of family therapy to promote and facilitate open communication between them was, in his view, “fanciful thinking”.  He also expressed his opinion that such suggestion was not based on an adequate exploration of this possibility with either parent or Z, or on an accurate assessment of the dynamics of this particular separated family unit.

5. Whilst the father cross-examined both Mr B and Ms C in relation to Mr B’s assessment of Ms C’s recommendation for family therapy, I consider nothing of particular relevance to the decision to be made now about those parenting orders which are now in Z’s best interests was unearthed by the same.

6. Chronologically, Judge Howard transferred the matter to this Court after this occurrence.

Family Report: 12 March 2019

1. Ms C met with Z on 21 February 2019 for the purpose of assessing her current views and wishes vis-à-vis the current proceedings. I accept that Ms C accurately reported her interactions with Z on this occasion.

2. Ms C reported that Z’s current views about contact with her father are that she does not want to have any contact with him whatsoever, including face-to-face, or by telephone calls, text messages and emails; she told Ms C that she did not want any contact with him until she “is ready”; her present preference was to have no contact with him at all. 

3. Ms C reported that, when she spoke with Z about her father sending her cards or presents, Z indicated that, if he chose to do that, then that was his choice; she also reported he had never bothered to send her presents or cards and that, even though he had her mobile telephone number, he had never messaged her over the preceding five years. She reported that she had blocked her grandfather’s phone number because he kept harassing them on their landline and had also sent abusive messages to her mobile number.

4. As noted earlier, Ms C reported that Z told her that she just wants “it” – a reference to the current proceedings – to be over. I have no doubt at all that this is the case.

5. Ms C considered that Z remained very clear in her views to have no contact with her father or paternal family; she assessed her as seeking further independence as she approaches the completion of her secondary education.  She also considered that Z presented as a mature young woman, cognisant of her decision to remain estranged from her father and members of the paternal family. I accept Ms C’s evidence in this respect.

Principles

1. I may, subject to s 61DA[4] and s 65DAB[5] and Division 6 of Part VII of the Family Law Act1975 (Cth) (“the Act”), make such parenting order as I think proper.[6] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[7] In deciding whether to make a parenting order, I must regard Z’s best interests as the paramount consideration.[8]

   [4] Presumption of equal shared parental responsibility.

   [5] Parenting plans.

   [6] s 65D of the Act.

   [7] s 60B of the Act.

   [8] s 60CA and s 65AA of the Act.

2. The considerations to which regard must be had in determining those parenting orders which are in Z’s best interests are prescribed by s 60CC of the Act. Not all of these are necessarily relevant in every case. Further, the requirement to “consider” each of the relevant matters involves taking note of them or giving heed to them or thinking over or reflecting on them; it does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[9] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about the terms of orders which are in Z’s best interests; I have given heed to, and reflected on, all of the relevant considerations in arriving at my conclusions about those orders which are in her best interests at this stage of her life.

   [9] Banks v Banks (2015) FLC 93-637: whilst said in the context of a consideration of interim proceedings, there is no reason to think that the underlying principle does not apply to the final disposition of proceedings.

What Orders are in Z’s best interests?

1. Given Z’s age, her views and the fact that she has not seen or communicated with her father since about May 2014, a discussion of many of the s 60CC considerations would amount to more of a theoretical discourse than a practical one.

2. The reality in this case is that, however arrived at, Z has the view – now held and implemented since May 2014 – that she does not want to interact with her father or her paternal grandparents. I accept that the father and the extended paternal family consider that this view is the consequence of the mother’s influence.

3. I also accept the submissions made by Counsel for the Independent Children’s Lawyer about the weight to be accorded to Z’s expressed views.

4. Given Z’s age and Ms C’s assessment of her maturity and appreciation of the consequences of her decision to refrain from interaction with her father and members of her paternal family, I consider it appropriate to accord significant and determinative weight to her expressed wishes.

5. Whilst I accept that continuing to implement her views about not interacting with her father and members of her paternal family may theoretically have consequences for Z’s ongoing individuation, there is nothing in the evidence to suggest that such potential consequences should be accorded greater weight than the determinative weight I consider it appropriate, given her age and maturity, to accord to her expressed views.

6. The combination of Z’s age, her expressed views and the circumstances of the case satisfies me that it is not in her best interests for her parents to have equal shared parental responsibility for her. Therefore, I consider the presumption mandated by s 61DA(1) of the Act is rebutted and the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, albeit subject always to Z’s best interests being the paramount consideration.[10]

   [10] ss 60CA and 65AA of the Act; Cox & Pedrana (2013) FLC 93-537, [19].

7. In the circumstances of this case, the only sensible orders and those which are in Z’s best interests and proper are that Z’s mother have sole parental responsibility for major long-term issues relating to her for the remainder of her minority; that she continue to live with her mother; that her passport be released to her mother and that she be permitted to have an Australian travel document, as that term is defined in the Australian Passports Act 2005 (Cth).

8. I note that, when interviewed by Ms C on 21 February 2019, Z asked her about the Court allowing her to change her surname to “Harrow” and said that she had been known as “Z Harrow” since she began high school. That the mother will have an order for sole parental responsibility for Z will enable her to ensure that this latter long-standing situation continues until Z’s majority.

9. Whilst the mother submitted that some of Z’s future plans may be assisted by an order that permits her to change her surname now, there is no evidence to support this assertion.

10. In such circumstances and given Z’s relative proximity to the same, I consider it is in her best interests that the actions necessary to effect a formal change to Z’s surname await her majority.

11. For the reasons expressed, I make orders in terms of those set out at the commencement of these Reasons.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 10 May 2019.

Associate:     

Date:              10 May 2019