Herbert and Herbert - [2020] FamCA 213

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT

[2020] FamCA 213

FAMILY LAW – CHILDREN – Parenting – Interim – Where a trial has been heard and judgment is reserved – Where interim orders provide for the children to have no contact with the mother – Where this is the second application for a recovery order for the 16 year old child – Where the child expressed a preference to live with the mother – Where the mother sought interim orders for both children to return to her care – Where the Independent Children’s Lawyer sought there be no orders made in relation to the 16 year old child.

Family Law Act 1975 (Cth) s 60CC

Bondelmonte and Bondelmonte & Anor (2016) 259 CLR 662, (2017) FLC 93-763

APPLICANT:

Mr Herbert

RESPONDENT:

Ms Herbert

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

BRC

4902

2017

DATE DELIVERED:

5 February 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

30 January and 4 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Rosen Lawyers

THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid Lawyer & Migration Agent

Orders

That all previous parenting orders in respect of the child, X born … 2003, are discharged.

IT IS ORDERED UNTIL FURTHER ORDER

That the child, X born … 2003, shall live with whichever parent he shall personally determine from time to time.
That the parent with whom X is living from time to time shall have sole parental responsibility for decisions to be made about major long-term issues in the said child’s life (as defined in section 4 of the Family Law Act 1975) save for decisions about the child’s name for which parental responsibility shall be shared equally.
That commencing this Sunday, 9 February 2020, X shall spend time with the father and his brother, Y born … 2009, from 2.00 pm until 6.00 pm each second Sunday afternoon and he shall spend such other time with his father and/or his brother as may be agreed between X and his father from time to time with the arrangements for X to get to and from his father’s care to be made between him and his father.
That the father shall refrain from using physical discipline on X at all times.
That X shall meet as soon as can be conveniently arranged with Mr K, Senior Family Consultant at the Child Dispute Services section of the Brisbane Registry of this Court, for Mr K to explain this outcome and these Orders and for Mr K to facilitate X’s reading of these written reasons for judgment.
That the Independent Children’s Lawyer shall inform X as soon as practicable of the outcome of this matter and the requirements of these Orders and no other person shall inform X of same before the Independent Children’s Lawyer does and no other person other than Mr K shall show X these written reasons or discuss them with him.
That the Application-Contravention filed by the mother on 25 October 2019 and the Application-Contempt filed by the mother on 22 January 2020 shall be mentioned again at the delivery of the final judgment in the property adjustment and parenting orders proceedings.
That all other applications for interim orders are dismissed.

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 Herbert & Herbert 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 4902 of 2017

Mr Herbert

Applicant

And

Ms Herbert

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In July last year, 2019, I presided over a trial in contested property adjustment proceedings and contested parenting orders proceedings between these parties, Mr Herbert and Ms Herbert. I also had the assistance of an Independent Children’s Lawyer (“the ICL”) representing the best interests of the two children who remain the subject of the Court’s jurisdiction, X, who is now 16, and his brother, Y, who is now 10. At the conclusion of that trial, I reserved my judgment.
At the time of that trial, the two boys had been living with their father since September 2018 when I moved them from living with their mother to live with their father. Orders I had made in January 2019 also prevented them from spending time with the mother unless by agreement with the father.
Unfortunately for everyone, most particularly the children, at this point in time, my judgment is still reserved. I attribute that fact to the responsibility I have had for hearing so many other difficult cases in this Court and for writing and delivering so many other reserved judgments in the time since the trial concluded. As I already told the parties, I have an expectation that I will be able to deliver my final judgment and reasons therefore in the not too distant future.
Nevertheless, matters pertaining to the parenting of X have become critical in recent times and the matter comes back before me while I am still reserved.
Essentially, on or about 10 January, nearly three weeks ago now, 16 year old X left his father’s home in the middle of the night without his father’s knowledge or permission, whilst every other person in the home was sleeping. He was collected from the home by his nineteen year old, young adult sister who lives with their mother. She drove him away, pursuant to a pre-arranged plan. He remained away from his father’s home despite the father getting police involvement and he has lived at his maternal grandmother’s home since.
The father made application to this Court for a Recovery Order so that X would be returned to his care. The mother cross-applied for interim orders discharging the existing Orders in respect of both X and Y and seeking to have both of the boys put back in her care. She also sought orders that give her sole parental responsibility for them and that provide for them to see their father on a supervised basis at a children’s contact centre.
Those competing applications came before me on 30 January 2020. That day, having regard to the evidence that satisfied me that 16 year old X was apparently expressing a strong view that he wished to go back to live with his mother, I determined to not issue a Recovery Order, but rather to make Orders that provided for X to be interviewed by a Senior Family Consultant in this Registry’s Child Dispute Services section with a view to ascertaining his views on a number of matters I considered relevant.
X saw the Family Consultant, Mr K, on Monday afternoon, 3 February 2020. Mr K issued a Specific Issues Report later that afternoon and it was immediately released to the parties.
The matter progressed, already part-heard, on Tuesday morning, 4 February. On that day, the father was represented by counsel, as was the ICL but, as has been the case for much of the time this matter has been before the Court, the mother appeared without legal representation.
Each of the parties cross-examined Mr K at the hearing and then made oral submissions.

The Evidence of Mr K

Mr K reported the following matters, amongst other matters:
·X had engaged in conversation easily, expressing himself clearly and confidently. His answers to questions were spontaneous and coherent.
·He told Mr K that he likes the school he attends and enjoys the subjects he is studying. He said that he is doing well academically and hopes to go on to university when he finishes Year 12 in 2021. He told Mr K that he wants to stay at the same school and keep going there.
·He believed he was seeing Mr K to tell him where he wants to live and expressed happiness at being asked and being able state his views.
·He told Mr K that he felt able to express his actual opinions, saying “what I say is what I want”.
·That X has attained a level of maturity whereby he is capable of expressing his own views and wishes in relation to his future living arrangements.
In his oral evidence, Mr K expressed the opinion that X was mature for his age, in terms of cognitive development.
Mr K reported that X told him he would prefer to live with his mother now and in the longer term, saying that he did not want to live with his father. He reported X telling him a story of a time that X estimated was in November 2019 when he wanted the day off school as he was “sick and behind with an assignment”. Apparently, X told Mr K that his father was “angry and mad” as he did not want him to have the day off and had dragged him out of bed that day, then got his partner, Ms L, to talk to X. X is reported to have said that he did not want to talk to Ms L and that he asked her nicely to go away before telling her to “fuck off” when she would not go away. X is then reported to have said that his dad got angry and grabbed him with his hands “on my chest near my neck” and pushed him against the wall “multiple times”. X is reported to have said that his father had “pushed him around” a couple of times before that day and since then as well.
Mr K also reported X telling him of the more recent occasion when he “ran away to Grandma’s” in early January this year. X is reported to have attributed that to an argument that started with his father over X’s mobile phone and his desire to see his grandmother, which his father would not let him do.
Mr K reported X telling him in response to questions I had posed for Mr K to ask, that he does not want to see his father and refuses to go back and see him. He is reported to have said that he did not think his current feelings will change over the next two years either.
Mr K asked X what his intentions and expectations in respect to maintaining a relationship with his younger brother, Y, were. He quoted X saying “I want to see Y. I want to keep a relationship with him but I don’t want to see dad and I don’t know how I’m going to do that.” Mr K reported asking X if he could think of a way that he and Y can spend time together and quoted X saying “Not sure. If only he got a phone or if he came back and lived with mum.”
Mr K clearly was not convinced that some of X’s views do not relate to factors other than his actual experiences of his father. Despite X telling him that this was the case, Mr K said that he found it extremely difficult not to think “that a child who has been embroiled in his parents’ high conflict for as long as X, has, to some extent, come to form a skewed view of one or other parent.”
I have no doubts that Mr K reported accurately as to what he asked of X and as to the answers X gave. X clearly expressed the preference to live with his mother rather than his father and did so knowing that it may be that he does not get to see his brother, though he would like to. X told Mr K that he was happy at the High School he currently attends and does not want to change it. It is a State High School that he has been attending since he was put in his father’s care.
From the very start of this matter before me in 2018, the evidence has supported a finding that X did not want to live with his father. Family therapy with an experienced family therapist was put in place pursuant to Order for the father and X and Y, with a view to addressing relationship difficulties between them, particularly between the father and X. Notwithstanding that, at the beginning of 2019, X kept returning of his own volition to the mother’s household and on one occasion remained there until returned pursuant to Order of this Court.
A year later, the family therapy has ceased and X, after fifteen months of living with his father and seeing very little of his mother, again ran away, pursuant to a plan conceived apparently by his nineteen year old sister. It is now clear to the Court that he still adamantly wants to live with his mother. He went to see the mother’s family medical practitioner to express his views about wanting to live with the mother. He signed a statutory declaration witnessed by an experienced solicitor, again clearly expressing his views about wanting to live with his mother and not his father. He attended at this Court’s Registry attempting to file that statutory declaration and was given the ICL’s contact details. He contacted the ICL’s office and left a message for the ICL that he did not want to return to live with the father. He went back to the father’s house to ask for some possessions, accompanied by police officers. Even if he was aided and abetted in all of this by his sister and/or his mother, there can be no doubt about what he wants and the strength of his views. He wants to live with his mother.

The existing interim living arrangements

I made the Orders that the boys move to live with the father in 2018, influenced by a number of factors. Principally, the evidence satisfied me that X had missed about six weeks of school when he was still only fourteen years of age whilst he was attending an expensive Brisbane private boys’ school. I am satisfied that the responsibility for that lay, mostly at the feet of the mother with whom he was living, despite her valiant attempts to persuade me that the boy was staying away from school out of fear of his father. I was also quite satisfied that the fact that the boys were not spending time with their father as previously ordered was, again, mostly the responsibility of the mother who, I consider, does not value or encourage the continuation of relationships between the father and their children. Whilst the mother, again valiantly, attributes this to concerns about the father’s behaviour towards her and the children, I am satisfied that much of the mother’s feelings in this case are attributable to her inability to emotionally accept the end of her marriage to the father.
In saying all of that in the previous paragraph, I am by no means whitewashing episodes of poor behaviour on the father’s part, whether that be directed at the mother or at X. There have, I accept, been some instances of such poor behaviour, though I hasten to say, not such as would, in my considered judgment, justify the extent of the mother’s feelings and behavioural responses or properly explain X’s behaviour on their own.
I am quite satisfied that there has been strong emotional alignment between the young adult daughter of the mother and the father, X and the mother. I am satisfied that the mother prefers her children, like her, to be estranged from the father and that she will do nothing to prevent or discourage that from happening. I am satisfied that the former couple’s young adult daughter and their sixteen year old son are caught up in that and have become totally aligned with their mother.
Evidence of the text exchange between X and his sister on the day that he left his father’s home that was adduced into evidence before me proves the extent to which the sister went to encourage X to leave his father’s care, despite her knowledge of the existing Orders of this Court.

The Father’s Case

Counsel for the father pointed to the success the move to the father played in respect of improving X’s educational outcomes to this point in time. After he moved to live with the father in 2018, he was immediately enrolled at the State High School he has been attending ever since. He has missed relatively few days of school by comparison to the time when he was living in his mother’s care and there has been observable improvement in his performance grades.
Counsel submitted that the risk of X’s educational outcomes deteriorating again, if X is allowed to go and live with his mother again, is unacceptable and should be determinative against the move. He also submitted that even though X is sixteen and firm in his views, they should not be followed because they are the product of the adverse influence of his mother, his sister and his mother’s extended family.
Counsel for the father submitted that the boy’s interests would be best served by returning him to his father’s care where he should learn he is expected to stay.

The ICL’s Case

Counsel for the ICL submitted that the Court should simply make no order as to where X lives, save for, perhaps, an order that X shall live with whichever parent he determines to live with himself from time to time. He submitted that sole parental responsibility for X should be conferred on whichever parent X determines to live with from time to time and that an order should be made, until final judgment at least, for X to spend such time with his brother, Y, as the father and he can agree.
Those submissions were made upon acknowledgement and acceptance that sixteen year old, mature X has firmly, clearly and confidently expressed his preferences, both verbally and practically, for better or for worse and however his views were formed. Those submissions reflected acknowledgment and acceptance of the fact that X is old enough, mature enough and clearly capable of deciding for himself where he lives and then acting upon that decision, regardless of parental desire or Court ordered arrangement.
There is merit, in my judgment, in the ICL’s position.

The Mother’s Position

By the end of the hearing the mother moved from her previous position that there should be an order that the boys should only have time with the father, supervised at a children’s contact centre. She maintained the following position though:
·That both boys live with her and that she have sole parental responsibility for them, save for the parental responsibility pertaining to changing the boys’ names;
·That both boys only spend time with their father during daylight hours each second weekend;
·That both boys continue to attend the same schools they currently attend.
The mother submitted that “it is very important” that there be an order that X lives with her as opposed to the position that the ICL advocated for. She submitted it was important so that the father could not cause any difficulties for X such as going to his school to see him or such as otherwise approaching him. I do not accept that there is likely to be such a problem if the order for X to live with his father is discharged and no order is made other than one that provides for X to live with whichever parent he chooses to live with from time to time. The mother had already informed the Court she and the children are all listed as aggrieved persons on a Queensland Family Violence Order she obtained from a Magistrate’s Court that is in force for a number of years apparently exceeding the remainder of X’s statutory minority. The father would be in breach of such order if X is not living with him by choice and he approached him without X’s agreement.
The mother further submitted, I understood, that an order is important to confirm, at law, that X is to live with her. I pointed out to her that I found that to be a difficult submission to accept from her as I was satisfied that she, her daughter and X had all, by their behaviour, demonstrated a certain degree of disrespect for the Court’s existing order that X live with his father. Nevertheless, the mother maintained her position and her submissions.
She pressed her application for an order that Y also come to live with her straight away. I understood her submissions in support of this to include, most significantly, the submission that the evidence established that the father had physically abused X and that accordingly there was an unacceptable risk that Y would be physically abused also and the submission that it is not in Y’s best interests to be separated from his brother, X.

When I asked the mother about the prospect of an order that provides for X to spend time with his brother as may be agreed between X and the father, the mother made submissions that I understood to be that such an order would not be in X’s best interests because he had expressed the view that he did not want to see his father at all and that this would therefore likely mean that X and Y would not get to spend any time with each other as X would not seek it out if it was to be spent in the father’s care and company. Interestingly, this submission is in direct contrast to the submission the mother made that the boys should both live with her and spend time together with the father during daylight hours on alternate weekends. That submission had to be prefaced on acceptance that X would go to spend time with his father.
I have, as I have had since September 2018, little faith in the mother’s assurances that she would ensure the boys spent time with their father if they were living with her. Her opposition to an order that X spend time with his younger brother (who is currently not spending time with his mother as that is specifically prevented by order unless the father and mother agree) as he and his father might agree reflects, I am satisfied, her own commitment to the idea that X should not have a relationship with or be spending any time with the father.

My Determination

My judgment in respect of the final property adjustment orders and final parenting orders is still reserved. At this point in time, I do not intend to make an order that includes discharge of the existing orders that pertain to the child, Y’s living and contact arrangements. I will consider them more fully in the delivery of my final judgment. There was no evidence before me for this hearing about any aspect of the relationship between the father and Y that caused me to consider that the position with respect to Y had to be considered urgently or that Y needed to be seen by Mr K as well. Y is ten years old and the Court was told he is attending school as expected. The mother did not adduce evidence that raised immediate concern for Y. Not even his brother, X, said anything to Mr K or in his Statutory Declaration adduced into evidence by the mother that put Y’s position in immediate, urgent focus.
The position in respect of X is much different. X is sixteen years old – six years older than Y. X has “run away” from his father’s home in the middle of the night. It is not the first time X has “voted with his feet”, to use an expression popular in family law circles to describe this type of behaviour by an adolescent child. For better or for worse, X is adamant that he wants to live with his mother, whilst continuing to attend the same school he has been attending. He expresses apparently genuine commitment to continue attending there and to do well enough to get into a university course in two years’ time.
X is also expressing the view that he does not want to see his father at all, though he would like to see his little brother. Importantly, in this respect, Mr K was not convinced that the expression of the preference not to see his father again was one truly and genuinely held by X as opposed to one maintained by X out of loyalty to and congruence with the position of his mother, supported by his older sister. I am satisfied that Mr K’s evidence included an acceptance of the possibility that X may still seek out time with his father. Whilst I am not entirely optimistic about that, I accept the genuineness of Mr K’s opinion about that. It is appropriate therefore to make an order that takes some pressure off X in this respect and fixes some time with his father.
With respect to counsel for the father, I am not convinced that there is an unacceptable risk now that X will not continue to attend school if he goes to live with his mother as per his clearly expressed preference. In any event, X is sixteen and he has completed Year 10. Therefore, it is no longer mandated by law that he must attend school. If he wants to, he can cease attending school at his own determination and there is little his mother or his father could do about it. As such, I am not even inclined to make an order that he continues to attend the same school he is currently attending as was sought by all of the parties. I consider that now to be a matter for X and the parent with whom X is living to deal with on an ongoing basis. X will either be personally motivated to go to school and to work hard or he will not. That level of motivation will determine his educational outcomes in the foreseeable future, not some order I make about that.
Similarly, X has demonstrated that he will make up his own mind about where he will live and with which parent or other adult person he will live and that when he has made up his mind he will act upon it. Of course, as the High Court decision in Bondelmonte and Bondelmonte & Anor (2016) 259 CLR 662, (2017) FLC 93-763 confirms, the views of a sixteen year old child do not carry decisive status in this matter (my emphasis). Section 60CC(3)(a) merely requires them to be considered along with such factors, such as the child’s maturity or level of understanding, that the court thinks are relevant to the weight to be given to those views. However, the Judges of the High Court did observe in [34] that “in some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight”. The point their Honours confirmed was that the relevant section does not mandatorily require a sixteen year old’s views to be rigidly followed. I am not doing that.
X has lived with his father from September 2018 to early January this year – around fifteen months. They had family therapy together for quite a while from the start of that period. I do not even know when it actually ended, but I was told that it has. That must have been at the father’s determination. For most of that fifteen months, X did not spend any regular time with his mother. It would seem that regardless of all that the relationship between X and his father certainly did not improve to the point where X was no longer motivated to return to live with his mother. There was also evidence that on the night before X left the father’s home he asked to speak with the father and the father responded telling him that he was “busy watching the tennis”. I expect that type of response would not have impressed X. It is regrettable that the father and son relationship has not reached a more sustainable level.
I am satisfied that some of the responsibility for the non-improvement in the relationship lies with the father himself. It simply cannot all be sheeted home to the intransigence of the mother. Indeed, there is also no dispute that some sort of incident of conflict, involving unwelcome physical interaction directed by the father at X, took place in September or November and it clearly had a very negative impact upon X’s feelings towards his father. I acknowledge there is some level of difference between the factual circumstances of that incident deposed to by the father and that reported by Mr K to have been told to him by X. Without more, such as cross-examination of the father, I am not minded to make more precise finding of facts in respect of this current application. It is enough to acknowledge, as I have, that there is no dispute about the essence of the incident.
As I am no longer convinced that X should live with his father to ensure optimal educational outcomes for him, X’s own views and my satisfaction that he is mature enough to be expressing them and to understand what immediate impact they will have on his life, are matters I give a lot of weight to in determining this immediate matter. I do not consider it in X’s or his little brother’s best interests to be repeatedly ordering X to return to live with his father only to see conflict between them to arise again and for him to leave again secretly in the middle of the night or otherwise.
I am conscious of the fact that a decision to allow X to live with the parent he wishes to live with might again put serious hurdles in the path of the continued development of the relationship between X and his father, but I am, at this point in time, of the view that X’s best interests will be met by making orders that permit him to determine which parent he lives with, knowing that will most probably now be his mother. Such orders though will, when communicated to him, permit him to know that his own views have been given some respect by the Court and to know that he can change his mind whenever he wants to without the need to trouble this Court again with that determination. Indeed, Mr K agreed that it might be a good idea for him to meet X again to explain the outcome to him and to let him read through these reasons for judgment. I will make an order facilitating that.
I will make the order that X lives with whichever parent he determines to live with from time to time. It follows, I consider, that sole parental responsibility save for decisions about changing the boy’s name should be conferred on whichever parent X is living with from time to time.
The question of what time, if any, I should order X to spend with his father is one that has considerably exercised my mind. Whilst I am conscious of the fact that X said that he does not want to spend any time with his father, I am also mindful of Mr K’s opinion that X perhaps does not genuinely hold firmly to that position. In addition, X said that he wants to maintain a relationship with Y. I am satisfied that would be in X’s and Y’s best interests. I am also conscious of the fact that the mother argued, in the end, for orders that included X and Y going to spend time with the father during daylight hours each other weekend. The mother has vociferously maintained that she supports and encourages the boys’ time and relationships with their father. X was reported by Mr K to have said that his mother would not stand in the way of his going to see his father either.
Whilst I do not accept that the mother’s commitment to supporting X spending time with the father is as she and X advance, I do consider it appropriate and in the best interests of both the boys to make a further interim order that X spends time with his father and his brother from 2.00 pm to 6.00 pm every second Sunday afternoon starting this Sunday, 9 February 2020 and at all other times as may be agreed between X and his father. Arrangements for X to get to and from his father’s care shall be made between them.
Given that I will be discharging all previous parenting orders pertaining to X, I will also again make an order restraining the father from exercising physical discipline over X.
I will also adjourn the mother’s outstanding applications for contravention and contempt for mention at the time I deliver my judgment in the substantive property and parenting proceedings.
I make the Orders set out at the commencement of these written reasons.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 February 2020.

Associate:

Date: 5 February 2020