Lackey and Mae (No.2)
[2014] FCCA 2114
•12 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LACKEY & MAE (No.2) | [2014] FCCA 2114 |
| Catchwords: FAMILY LAW – Discrete parenting issues in relation to one teenage child (with some mental health issues) who has changed residence contrary to previous orders of the Court – Father seeks to re-visit parenting orders in relation to other, younger children – principles in Rice & Asplund applied to Father’s application – parents and children the subject of on-going contest and involvement with NSW Department of Family and Community Services. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC(3)(a) & (b), 61C(3), 61DA, 65D(2), 65DAA |
| Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175 Lackey & Mae [2013] FMCAfam 284 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Marsden v Winch (2010) 42 Fam LR 1 Miller v Harrington (2008) 220 FLR 300, (2008) 39 Fam LR 654, (2008) FLC ¶93-383 Poisat & Poisat [2014] FamCAFC 128 Rice & Asplund (1979) FLC ¶90-725 SPS & PLS (2008) FLC ¶93-363 In the Marriage of Vlug & Poulos (1997) 22 Fam LR 324 |
| Applicant: | MS LACKEY |
| Respondent: | MR MAE |
| File Number: | CAC 987 of 2009 |
| Judgment of: | Judge Neville |
| Hearing date: | 10 April 2014 |
| Date of Last Submission: | 11 July 2014 |
| Delivered at: | Canberra |
| Delivered on: | 12 September 2014 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr G Stagg |
| Solicitors for the Applicant: | Legal Aid, ACT |
| Counsel for the Respondent: | Ms J Houghton |
| Solicitors for the Respondent: | Infinity Legal |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mrs G Yeend |
| Solicitors for the Independent Children's Lawyer: | Yeend & Associates, Canberra |
ORDERS
The Application by the Father to amend the 2013 orders in relation to X born (omitted) 2002, Y born (omitted) 2007 and Z born (omitted) 2008 be dismissed.
Pursuant to s.61C(3) of the Family Law Act 1975, whenever and while-ever the child W born (omitted) 1999 (“W”) is in the care of either parent, the parent with whom W resides shall have parental responsibility for her.
The parents are to keep each other informed of any significant decision in relation to W, particularly in relation to her health.
Otherwise, all outstanding applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Lackey & Mae (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 987 of 2009
| MS LACKEY |
Applicant
And
| MR MAE |
Respondent
REASONS FOR JUDGMENT
Introduction
The very long history and general background to this virtually never-ending parenting saga was set out in an exhaustive judgment delivered on 4th April 2013 (“the 2013 orders” and or “the 2013 judgment”). The history and background there provided will not be repeated. What follows should be read against the detail of that earlier judgment.[1]
[1] Lackey & Mae [2013] FMCAfam 284.
The current contest essentially concerns whether, and if so how, the parenting orders previously made in relation to now 15 year old W should be varied, and in particular, who should have, by Court order, parental responsibility for her. This is in circumstances where (a) under the 2013 orders, the Mother had sole parental responsibility for all the children, (b) all the children lived with her and were to spend supervised time with their Father, and (c) for some little time now, W has lived with her Father (when at the time of the trial she was largely estranged from him, and he from her) and has spent no time with her Mother.
The Father also seeks to vary the parenting orders in relation to the younger children the subject of the 2013 orders, X (aged 12), Y (aged 7) and Z (aged 6).
After setting out the orders sought by each of the parties and the ICL, in these reasons I (a) deal firstly with the Father’s Application to vary the 2103 orders in relation to the children other than W, (b) set out the factual “change in circumstances” regarding W’s living situation (which is largely not disputed), (c) outline the submissions by the parties and the ICL, and (d) discuss the submissions in the light of the facts and relevant principle.
Orders Sought
The Mother’s Orders Sought essentially seek that the Mother retain sole parental responsibility for W (notwithstanding that she will reside, at the present time, with the Father), or in the alternative that the parents have equal shared parental responsibility for W. The reasons for these orders sought are set out later in these reasons when I detail her written submissions.
The Father’s Orders Sought are as follows:
1) That the parents have equal shared parental responsibility for the children X born (omitted) 2002, Y born (omitted) 2007 and Z born (omitted) 2008 (“the Children”);
2) That the parent with whom the child W born (omitted) 1999 (“W”) is residing have sole parental responsibility for day to day decisions;
3) That for issues regarding the long term care, welfare, development and musical participation of W the parents shall in the first instance negotiate in good faith and in the event that they are then unable to reach agreement the parent with whom W is residing has sole parental responsibility for W and shall notify the other parent of the decision made.
4) That the Children live with the mother;
5) That the child W live with and spend time with her parents in accordance with her wishes;
6) That the Children spend time with their father as follows:
a) From after school Friday to 5.00pm on Sunday each alternate weekend;
b) For seven consecutive nights during every school holiday period;
c) For no less than two hours on the child’s birthday if the birthday falls on a school day, and for no less than four hours if it falls on a non-school day;
d) On the father’s birthday for no less than two hours if the father’s birthday falls on a school day, and for no less than four hours if it falls on a non-school day;
e) For Father’s Day from 9.00am to 5.00pm; and
f) At any other time as agreed between the parties.
7) That if the Children are not otherwise in the mother’s care, the Children shall spend time with their mother as follows:
a) For no less than two hours on the child’s birthday if that child’s birthday falls on a school day, and for no less than four hours if it falls on a non-school day;
b) On the mother’s birthday for no less than two hours if the mother’s birthday falls on a school day, and for no less than four hours if it falls on a non-school day; and
c) For Mother’s Day from 9:00am to 5:00pm.
8) That, Notwithstanding the abovementioned Orders, and unless as otherwise agreed between the parties, the Children will spend time with each parent during the Christmas Eve to Boxing Day period as follows:
a) In 2014 and every even numbered year thereafter, from 4pm Christmas Eve until 1pm Christmas Day with the father, and from 1pm Christmas Day until 4pm Boxing Day with the mother; and
b) In 2015 and every odd numbered year thereafter, from 4pm Christmas Eve until 1pm Christmas Day with the mother, and from 1pm Christmas Day until 4pm Boxing Day with the father.
9) That each parent may telephone the Children and W at all reasonable times when the children are in the care of the other parent;
10) That each parent will facilitate a child contacting the parent who does not have the care of the child, upon the request of the child to do so;
11) That each parent will facilitate the Children and W spending time together and communicating together, upon the request of a child to do so;
12) That each party will notify the other as soon as practicable should a child sustain an injury or illness requiring consultation or treatment with a medical / health care professional;
13) That the parents will authorise the children’s schools to communicate with and provide to the other parent all school reports, flyers, invitations and similar in relation to the children;
14) That the parents will authorise the children’s treating medical practitioners to communicate with and provide the other parent with copies of all reports, diagnoses, medications, prescriptions and treatment regimes in relation to the children;
15) That each parent will refrain from making any negative or derogatory comments to or in the presence of the children concerning the other parents, and to use their best endeavours to ensure that no other person denigrates or comments adversely on the other parent;
The ICL’s orders sought are as follows:
1) Order 2, 3 and 9 of the Orders dated 28 March 2013 in relation to the child W bon (omitted) 1999 (“W”) are discharged.
2) The father will have sole parental responsibility for the child W.
3) W will live with the father.
4) The father will advise and keep the mother advised in writing of all schooling, medical and extracurricular arrangements for the child W.
5) W will spend time and communicate with her mother in accordance with her wishes.
6) The father will facilitate W attending Counselling as recommended by Ms J, including any recommendation for joint counselling with the mother.
A. The Father’s Application to vary the 2013 orders regarding the younger children
I have already remarked that comprehensive reasons were provided and orders were made in April 2013. At that hearing, the Father was self-represented. In the course of the reasons given in April 2013, I sought to explain (as well as to document) the very significant turbulence that has attended the parenting relationship between the parties and which has very negatively impacted on all the children. Viewed in that historical light, the Father’s application to re-visit the earlier final orders might be seen as simply another chapter in the on-going parenting saga. Respectfully, it is difficult not to see it in such terms. Indeed, it is almost as if the parties (each in their different ways) are unable to live their lives without some degree of involvement of either the Court and or some community organisation, and or some government department. As such, the litigious nature of the parenting relationship, and the Court processes (and other involvements), provide a degree of structure, support and goal(s) for the parties, and equally so for the children. There is, of course, a significant negative impact on all in being embroiled in litigation on a regular basis.
Be that as it may, the Father’s change of parenting orders was by way application, or more accurately and formally his Response (filed 28th March 2014). Not insignificantly, the Father has filed no Initiating Application since the 2013 orders. The change in parenting orders sought has come about solely in Response to the Mother’s Application filed in relation to W on 14th February 2014.
According to his affidavit (filed 26th March 2014), and supported by his Wife (Ms K’s) affidavit (filed 26th March 2014), the substance of his application to re-visit the 2013 orders is on the following bases:
(a)Since the 2013 orders (which provided for the Father’s time with the children to be supervised), he has spent no supervised time with the children either because the Mother has not permitted it and or because it is too difficult to organise;
(b)On various occasions, notably during 2013, the Mother has allowed the Father to spend unsupervised time with the children, including overnight time;
(c)The Father says that since the 2013 orders were made, communication between the parties has been “uneventful” and that “we no longer argue and all our communication is amicable.” (Father’s affidavit filed 26th March 2014, par.24.) In the same place, the Father further said that the communication was now at a level where “we would be able to co-parent our children.”
In the Father’s written submissions, he said (among other things) that
(a)the Mother had voluntarily waived the [Court ordered] requirement that the Father’s time with the children be supervised, at least between 23rd June and more generally during the September 2013 school holidays;
(b)the Mother has not filed any material to contradict or challenge the Father’s (and his Wife’s) account of events set out in their affidavits to which I have earlier referred, and in consequence the Court may properly infer that any relevant evidence from or on behalf of the Mother would not have assisted her case;
(c)because the Mother permitted the Father to have unsupervised time with the children (albeit that the Mother stopped “contact” between the Father and the children after the September school holidays), such constitutes a sufficient change in circumstances (cf. Rice & Asplund) as to warrant the Court to re-visit the parenting orders of April 2013.
The Mother, neither in any of her affidavits nor submissions filed on her behalf, formally responded to the Father’s application (affidavits or submissions) to re-visit the parenting orders in relation to X, Y and Z. Her material and submissions focussed solely on the issue(s) in relation to W – noted below.
In relation to the Father’s application to vary the 2013 parenting orders in relation to the children other than W, the independent children’s lawyer (“the ICL”) submitted:[2]
1) Comprehensive orders were made in relation to these children [X, Y, and Z] following a final hearing. No appeal of this decision was filed by the Father.
2) The Father has only sought to vary the current Orders following the commencement of the current proceedings by the Mother. Although it is not submitted that this is merely opportunistic by the Father, it is noted that he did not seek to vary the Orders previously.
3) It is submitted that no variation to these Orders should be considered on the current material filed, on the basis [sic] that:
a. A consideration of a variation to these Orders would require a further report from a Family Consultant;
b. It does not appear that the Father has complied with the requirements of s.60I and consideration should first be given as to whether or not an exemption to this requirement should be given.
[2] See p.3 of the ICL’s submissions filed 11th July 2014.
I accept the ICL’s submissions. I do not propose re-visiting the extensive materials considered by the Court that resulted in the 2013 Orders.
In addition to the submissions of the ICL, to allow the Father to re-visit the earlier orders in relation to the children, other than W, in my view, would be (a) to subvert the earlier determination of the Court where there was a comprehensive examination of the evidence, and in circumstances where there was no appeal in relation to the orders made (and reasons provided); (b) to disregard legal principle of long-standing in relation to not re-visiting parenting orders in the absence of a material or significantly relevant change in circumstances, beginning with Rice & Asplund, and recent Full Court decisions, notably SPS & PLS, Miller v Harrington, Marsden v Winch, and most recently, Poisat & Poisat;[3] and (c) to subject these younger children to yet further litigation in circumstances where courts and the legislature have each recognised that “it is generally not in the best interests of the child to have repeated applications concerning them before the courts.”[4] In my view, the fact that the Mother has permitted the Father to spend time with the younger children on a number of occasions is a matter for the parties. Of itself, it does not satisfy the requirement that there be a relevant or material change in circumstances to warrant a court returning to a parenting matter that was the subject of a detailed and comprehensive hearing only a relatively short time ago.
[3] Rice & Asplund (1979) FLC ¶90-725; SPS & PLS (2008) FLC ¶93-363; Miller v Harrington (2008) 220 FLR 300, (2008) 39 Fam LR 654, (2008) FLC ¶93-383; Marsden v Winch (2010) 42 Fam LR 1, Poisat & Poisat [2014] FamCAFC 128.
[4] Poisat & Poisat [2014] FamCAFC 128 at [12] (Strickland, Murphy & Austin JJ).
Further to this, in my view, the Court should have due regard to principles of case management and the allocation and consumption of court resources in the light of the comments of the High Court in Aon Risk Services Ltd v Australian National University.[5] While the use of “public resources” ought not be a crucial determinative or criterion as to whether final parenting orders should be re-visited, in my view, it is nonetheless a proper consideration, among others, as articulated by the High Court and noted in these reasons.
[5] Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175. See the comments of French CJ at [5] – [6] & [23] – [24]. See also the comments in the plurality judgment at [100]. In that passage, the High Court referred to a court weighing in the balance “the strain the litigation imposes upon litigants.” In this respect, such a statement accords with the comments of the Full Court in Poisat (and earlier cases) in relation to circumscribing a trial court regularly re-visiting parenting orders. The strain is obviously felt by the parties but especially by the children involved.
The current matter has occupied the Court for significant periods of time and consumed a very significant amount of Court resources. The Court must be wary of the further and on-going strain on the children in particular of the regular visitation of parenting orders. As well, given how dire and urgent are the demands on the resources of family consultants, the circumstances outlined by the Father do not, in my view, warrant the Court to allocate again the resources of a family consultant to rehearse the history of contest and dysfunction and in turn to subject the children yet again to assessment. If the parties choose to make any relevant arrangements for the children of the kind articulated by the Father, it is a matter for them. It does not require Court sanction, and certainly not to consume yet more scarce resources, and to impose on the children the on-going scrutiny of the Court.[6] For a change, the parents can and should act like adults. They should not continue to involve the children in their often petty, childish disputes.
[6] In written submissions filed on behalf of the Father (filed 12th May 2014), at par.3, the Father conceded that, on an interim basis, it was not open to the Court to make the variation of orders sought by the Father.
The parents, and the Father in particular, should not seek to co-parent with the children; there are a number of examples in the 2013 judgment which highlight the Father’s parenting “philosophy” where he said that he let the children live their lives as “free spirits.” Respectfully, this is an abrogation of parental responsibility. “Licence” to do as a child wishes is very different from encouraging and educating them to exercise proper decision-making. More particularly, a parent ought not pass to a child the proper decision-making responsibility that should remain with the parent.
For the reasons given, the Application by the Father to amend the 2013 orders in relation to X, Y and Z must be and is dismissed. Absent agreement in writing between the parties, the 2013 orders in relation to the children other than W should be complied with.
B. The Application in relation to W
The Application in relation to W classically “fits” into the exemption articulated by the Court in Rice & Asplund, and confirmed in the more recent cases to which I have referred.
By Application filed on 14th February 2014, the Mother relevantly sought to have W returned (if necessary via a recovery order) to live with her and the Father restrained from removing any of the children – presumably from the Mother’s care, although this is not formally specified.[7]
[7] Also on 14th February 2014, the Mother filed a contravention application against the Father. In the result, that Application did not proceed. Accordingly, the focus of these reasons will be on the primary Application of the Mother from February 2014 and the Father’s Response, filed in March.
The 2013 Orders relevantly provided in relation to W that she would spend time with her Father in accordance with her wishes. The reasons provided in 2013 recorded the history of repeated changes in residence between the Mother and the Father of [an older] child named therein, and the concerns expressed (at [3] - [7] of the reasons) about (a) the guerrilla-like assault on the Mother by the Father and his family with a constant barrage of notifications to the relevant Department over a significant period of time, and (b) the comments of that older child (B) about the “manipulative influences” of the Father’s family.
I will not repeat the comments and observations made by experts (Dr S and Ms C) who had prepared reports for earlier parts of the proceedings between the parties which recount in detail what might reasonably be described as the [historical] modus operandi of the Father’s family and their efforts to influence the children.
The Mother’s affidavit recounts events which led to W ultimately going to live with her Father. She continues to reside with him. This is in circumstances where, as recorded in the 2013 judgment (at [109]), W had confirmed to the family consultant that she wished to reside with her Mother and spend time with her Father “occasionally.” To say that (a) history repeats itself in this matter with children changing their residence, and (b) there is significant “fluidity” in living arrangements, is simply to state the obvious and to do so with considerable understatement. This is also to say that there must be some reasonable likelihood that there will be some falling out between W and her Father (and or his family) and return to live with her Mother.
The Mother’s affidavit, filed 14th February 2014, details the circumstances that gave rise to W leaving the Mother’s residence and moving to her Father’s. There is information from the Mother about her and W’s involvement with their regular child protection counsellor, Ms S, and the Department’s attempts to get W to return to live with her Mother, and or to find alternative accommodation to that provided by her Father.
The Mother also deposed to W’s infrequent school attendance in the late part of 2013, and also that W’s emotional and mental health had been deteriorating, particularly when her Mother was not regularly around or otherwise present to her. The Mother reported that W had begun to self-harm, and that she was being medicated as well as attending upon a psychiatrist. The Mother further deposed that she was unaware if W was receiving assistance for her mental health now that she was in the Father’s care.
Finally, the Mother said that the Department had advised her to seek a recovery order. She deposed that Ms I (from the NSW Department of Family and Community Services) had said to her words to the following effect (Mother’s affidavit, par.31): “We will support you with this but you have to get the [recovery] order and you should file contravention proceedings. Mr Mae [the Father] has to know he can’t continue to do these things. He is venomous in his comments about you and is only too willing to state further complaints against you.”
When these comments are said to have been made is not stated. Presumably they were made some relatively short time before the Mother’s Application and Contravention proceedings were filed in mid-February 2014.
The Mother acknowledged that W did not [currently] wish to live with her. She also said that, among other concerns, for W to remain with her Father would simply continue the cycle that has occurred over the years, such as with her older daughter B, to whom I have earlier referred.
Generally, in relation to the contravention, the Mother deposed and provided various “Facebook” messages to confirm that, contrary to the 2013 orders (Orders 11 and 12 in particular), the Father’s family continues to post entries which include criticism of the Court. Clearly, the Father’s family, at least, is a law unto themselves. They will say and do anything, even directly contrary to Court orders, as they please. Rhetorically, the Court may reasonably ask why it bothered to expend so many resources on experts over the years and even have the temerity to conduct a trial and ultimately make Orders 11 and 12 in 2013; Ms G in particular (see her Facebook post, dated 26th January 2014: part of annexure E to the Mother’s 14th February 2014 affidavit) is contemptuous of the Court. If her unbridled postings continue the Court is strongly minded to issue a Bench warrant for her arrest.
In her two later affidavits, filed 29th April and 13th May 2014, the Mother confirmed that (a) at the moment, she accepted that W did not wish to live with her, (b) information from W’s child protection counsellor (Ms S) who informed the Mother (on 5th May 2014) that she had not seen W since she returned to the Father’s care and that the Father had made no arrangements for W to see her. The Mother noted her concern about this last aspect, particularly since, on 1st April, the Father indicated to the Court that he would assist W to keep up her counselling as she “transitioned” to counselling in (omitted).
For his part, in his ‘reply’ affidavit, filed 23rd June, the Father [relevantly] said that (a) W had lost confidence in Ms S and therefore would not be attending any more sessions with her, (b) he is supportive of W (or any of the children) having counselling, and (c) (Father’s affidavit, filed 23rd June: par.18) “W is resistant to continuing a relationship with Ms Lackey [the Mother]. I believe that should I have parental responsibility (short and long term decision) for W, W will feel more secure and less oppositional towards re-building a relationship with her Mother.”
C. Submissions
Because of the discrete issue to be resolved, namely parental responsibility for W, and the [relative] brevity of the submissions, it is appropriate to set them out in full, and apart from occasional corrections of grammar or dates, verbatim.
The Mother’s submissions were in the following terms (I will not correct every reference to “2014” when it should refer to “2013”):
1) The child W, born (omitted) 2014 [sic: 1999] lived with the mother Ms Lackey under orders dated 28 March 2014. The orders provided that W could spend time with her father in accordance with her wishes. The orders provided further that the mother have sole parental responsibility for W. Since 23 November 2014 W has been living with her father.
2) The Judgment of 4 April 2014 [sic: [2013] provides multiple references and finding on exercise of parental responsibility and decision making generally by the respondent father against the interest of the children, including W. See for example paragraphs 8, 51, 52, 59, 80, 81, 84, 88, 91, 96, 100, 105, 118, 126, 127, 146, 152.
3) By contrast, the Judgment of 4 April 2014 [sic: 2013] make findings of appropriate exercise of parental responsibility and decision making by the mother, 51, 52, 53, 59, 63, 64, 119, 146, 153, 157, 158. Of equal importance is that the court does not make findings against the mother as it did for the father.
4) Paragraphs 51, 52 and 84 of the 2013 Judgment are particularly relevant to the current proceedings as the father has previously neglected to meet the mental health needs of a child in his care. W has serious mental health issues. The father indicated to the court on 10 April 2014 that he would take W to two further appointments with Ms S to assist her to transit counseling to another counselor. This has not, as of the date of these submissions, occurred.
5) It is important to note that in the original proceedings the father was seeking shared parental responsibility. Now that W is in his care, his view on this has changed, see 2013 Judgment para 145 and 146.
6) The findings at paragraph 7 of the 2013 Judgment are also telling, particularly the recorded comments of the older sister “B” about the influence of the father and his family. It is submitted that W’s circumstances are a case of history repeating itself.
7) It is submitted that the affidavit evidence of the mother, and the reports of Ms S annexed to the mothers affidavit of 28 April 2014 and previously tendered, indicate that the mother exercised her sole parental responsibility for W appropriately and with great consideration for W’s wellbeing. Interestingly, the father does not criticise the mother’s exercise of parental responsibility and in fact acknowledges that she appropriately consented for W to go to the doctor in the father’s care (father’s affidavit of 24 April paragraph 13).
8) The mother did withhold consent for W to travel to (omitted) and enrolling W in (omitted) [sic] school but such refusal must be examined in light of the fact the father was in breach of existing orders and the mother wanted W returned to her care. This can be seen from the section 69ZW material.
9) In summary, the father has demonstrated repeatedly, over an extended period of time, that he does not exercise parental responsibility in the best interest of the children. There are no such concerns about the mother. It is conceded that it would be most unusual for a court to make sole parent responsibility orders in favor [sic] of a parent with whom the child does not live but, it is submitted, this is an unusual case where an order that the mother retain sole long term parental responsibility for W is appropriate. If the court were not to order sole long term parental responsibility to the mother I would submit that equal shared parental responsibility would be preferable to sole parental responsibility to the father and would be a protective factor against the father making decisions against W’s best interests. The basis for this concern is outlined above. It is accepted, and indeed has been consented, that it is appropriate for the father to have day to day parental responsibility.
The Father’s submissions state (internal citations omitted):
1) The father seeks an order that there be equal shared parental responsibility for the children other than W, namely X, Y and Z.
2) It is understood that the mother does not object to W continuing to live with the father.
3) It is conceded that in the absence of the matter being further determined on a final basis, that it is not open to the Court to make Order 1 sought by the father on an interim basis.
4) In relation to the child W, the court has previously made a finding that the parental relationship is “nigh on unworkable”[8] and there is no evidence to suggest that has changed. One only has to look to the inability of the parents to agree on what school W was to attend when she moved to the father’s home.
5) The DOCs records show that the mother was insisting that W be enrolled at the (omitted) [sic] (omitted) School which would require 30 minutes travel to and from school for W when the father was of the view that there was a suitable school for W virtually across the road from his house.
6) It is impractical for the mother to continue to have sole parental responsibility for W in circumstances where the child does not live with her and is presently having minimal contact with her.
7) It is submitted that in circumstances where W is nearly 15 years of age and the relationship with the mother is fractured, to force W to have to do what her mother directs her to do is not likely to be conducive to mending that relationship.
8) There are indications that the mother has not been able to provide W with appropriate support while W was in her care towards the end of 2013 as demonstrated by the contents of the medical report from Dr H.
9) The mother does not seek to explain why it was that she thought it was in W’s best interests to try to ban W from engaging in any performances at (omitted) after W went into the care of the father and despite the Court being very critical of the father and his family for inappropriately using facebook entries, the mother publishes her own facebook entry in an effort to control W.[9]
10) In her affidavit, the mother says that she has been able to assist W “making decisions of parental responsibility were necessary” but fails to say what those alleged decisions are other than to say that she supplied a copy of W’s birth certificate[10] which is hardly a “parental responsibility” decision.
11) It is simply unworkable, impractical and not in the best interests of W for the non-residential parent to have sole parental responsibility for her.
[8] Paragraph 146 of the Reasons for Judgment of 28 March 2013.
[9] Para 6 and annexure A of the affidavit of Ms K filed on 26.3.14.
[10] Para 6 & 7 of the mother’s affidavit filed on 29 April 2014.
The ICL submitted as follows:
1) W born (omitted) 1999 (“W”) is almost fifteen years of age at the time of the current proceedings.
2) These proceedings were commenced by the Mother ostensibly seeking a recovery Order in relation to the child W. It appears uncontroversial that the mother acquiesced to W going into her father’s care on 23 November 2014 (Mothers Affidavit filed 14 February 2014 – paragraph 15).
3) It is submitted that the views or “wishes” of W are relevant to the current proceedings with reference to s60CC(3)(a) on the basis that:
4) Order 4 of the comprehensive Orders made by His Honour on 28 March 2013, explicitly provides that W “spend time with her father in accordance with her wishes.” It is noted that no appeal was filed in relation to this Order.
5) The mother conceded that W “does not want to live with me and is angry with me.” (Mothers Affidavit filed 14 February 2014 – paragraph 15).
6) The mother proffers an alternate option of W being cared for under the auspices of the NSW Department of Community Services (Mothers Affidavit filed 14 February 2014 – paragraph 33). It is submitted that the possibility of the Department taking such action in these circumstances where W is currently in the care of one of her parents is remote.
7) The ‘feedback’ of Ms S suggests that the matters regarding the care of W, her relationship with her parents and her ongoing therapeutic needs are not completely resolved. It is submitted that an Order requiring the parent with whom W lives to facilitate her attendance upon therapeutic counselling would be consistent with her best interests.
8) While the Mother is understandably aggrieved by the current circumstances, especially in light of the findings of the recent final hearing in this matter, it is submitted that she has acquiesced to the arrangements, albeit in difficult circumstances.
9) Both parties provide evidence of the vulnerability of W’s mental health. (Father’s affidavit 26 March 2014, Mothers Affidavit 14 February 2014). It is submitted that reducing uncertainty in relation to W’s parenting arrangements is preferable in light of this vulnerability. The Orders regarding W’s arrangements should be clear and it is submitted that if circumstances change in the future it is open to either party to bring a further application at that time.
10) It is submitted that the Court should make Orders for W in accordance with the Minute of Order filed by the ICL. While no criticism is made of the mother in relation to her exercise of parental responsibility, it is submitted that an Order for her to retain sole parental responsibility for W would be impracticable in circumstances where she is living with her father and W’s relationship with her mother is, on the mother’s evidence, currently challenged.
11) The Court gave comprehensive reasons regarding the difficulty of an Order compelling the parties to facilitate equal shared parental responsibility for the children. While the father sought equal shared parental responsibility in his application of 26 March 2014 neither party appears to depose confidently to their ability to exercise same.
D. Disposition
At the outset, I should note that, in addition obviously to the detail considered in the 2013 judgment (and the various reports referred to in it), the Court has the benefit of two reports (dated 6th March and 2nd April 2014) provided to the Court by the NSW Department of Family and Community Services pursuant to s.69ZW of the Family Law Act1975 (“the Act”).
The Court also has a series of letters from the (omitted) Health District, dated 18th December 2013 and 5th March 2014, from Ms S and Ms J respectively, which outline the various and regular counselling sessions with the Mother (on her own) and the Mother and the child Y.
Perhaps most significantly, the ICL provided the Court with a detailed email response, dated 1st April 2014, sent by Ms S (but in fact from Ms J) about the Department’s involvement with W. It is important that the full text of this email be set out. It is as follows (emphasis added):[11]
[11] Although not formally admitted into evidence, on the basis of the principles articulated by Warnick J in SPS & PLS regarding the assumed reliance on the material before the Court, and therefore the admission by “necessary implication” of such material, the documents to which I have just referred in [36] – [38] of these reasons should be taken to be admitted into evidence. See SPS & PLS (2008) FLC ¶93-363 at [7] – [19].
As per our discussion yesterday outlined below are my observations relating to two recent counselling sessions with W dated 24.03.14 and 31.03.14
* W appeared well both times. She was relaxed and engaged well with me although less talkative the second session.
* I asked W if it was ok to share some of my observations with the ICL, Gillian, and she said this was ok.
* W reported missing her three siblings but not her mother Ms Lackey.
* W reported having a very strong relationship with her brother A and that she felt happy living with Mr Mae, Ms K and A.
* W said that even though her father has rules she is happy to follow them because she is more settled and not feeling like she has to get away all the time. She also said that if she does the wrong thing she is not excessively punished like she was at her mothers. For example being grounded for a week for being rude or having all her music equipment taken off her if she decided she didn't want to practice her music. W reports feeling like she can be herself at her fathers without being “stressed out” all the time.
* W reports feeling happier with herself since living with her father and that she doesn't have her ups and downs as much as she used to. She also reports sleeping very well.
* W reported “I am so proud of myself"” and showed me her arms where previously there had been scars from her wrists to her elbows. There was barely a sign of the cutting indicating she had not recently been self-harming via cutting. W reported that she had not cut her arms since leaving to live with her father.
* W reports attending school every day and being involved in a number of in school and out of school activities such as the school music group and league tag. W also reported enjoying school and having moved up a level in some classes. All reports related to her schooling were confirmed by the principal of the school, Mr B.
* W first reported not knowing about the court proceedings but then said “If the court says Docs is going to take me away with a recovery order I will run away before they can blink an eye. They won't find me.” Following this W reported “this may sound arrogant but I will do what I want when I want.”
* When asked the question “If you could live with who you want and see who you want on your terms what would this look like?” W reported “I would live with Dad and see the children every second weekend and half school holidays.” When asked how this would look i.e. seeing the children, W reported “They would come to us, not all the time at first, but once they got used to it they would come every second weekend and half the school holidays.”
* During the second session W reported that she felt “weak” sometimes (using EMDR negative cognition cards) and “I can't do anything right” when it comes to making decisions. W felt that sometimes she handles things badly. For example she felt like she handled her decision to leave her mother badly and a stronger person would have dealt with this better. She also said “I can't trust anyone” and has always felt this way. When I asked W if there was anyone she could trust she said “Dad.”
* W acknowledged that her mother Ms Lackey has good intentions and only wants the best for her children. However, W reports that it feels like her mother is punishing her for wanting to live with her father and because of this she does not want to see her.
Therapeutic recommendations
During the second session with W, I used an intervention called EMDR to help her understand overwhelming emotional states and how early childhood experiences can impact on later life and emotional stability. W engaged well in this intervention and reported a noticeable change within the session of her emotional distress relating to an early memory. During this session it was clear that W would benefit from ongoing support to help her understand and heal from her early childhood and attachment related trauma.
The Child Protection Counselling Service is available to children and families at high risk and who are allocated to Community Services. Based on our priorities W is not a high risk client and therefore not a priority for our Service. Due to Lackey accessing the service, this would also pose a conflict for me to continue to see W on a regular basis. I would however strongly recommend an EMDR counsellor or related trauma focused therapist to do ongoing trauma processing with W. I would be able to offer W two more sessions while a more suitable and closer service is sought.
Other matters are important to note, both for further context and otherwise.
For example, in the material provided by the NSW Department of Family and Community Services, which was released by the Court to the parties (and ICL) on 2nd April 2014, the following “File Note Record” for 24th December 2013 notes, inter alia (emphasis added):
W stated that she will be going to (omitted) with her Dad and no one can stop her. She will do what she wants, when she wants. W stated that if the Police come and get her she will just run. W stated that if she has to go back to her Mother she will kill her Mother – she would rather go to jail that [sic] to have to live with her Mother. W stated that she would rather go into Foster Care and live with strangers that [sic] to have to live with her Mother.
… I asked W what was on her Christmas wish list. W stated that she wished her Mother would die, that is her wish list.
… I informed Mr Mae [the Father] that Ms Lackey has not provided consent for W to go to (omitted). Mr Mae stated that he did not care that he was taking her anyway.
… I spoke to Mr Mae about the recent Facebook posts located on his Facebook page. Mr Mae stated that the comment I am referring to has been deleted – the comment that makes mention that a friend of a friend could find someone to assist him – hit man.
I encouraged Mr Mae to talk to his extended family members about refraining to make comment or make any comments in relation to the custody issues especially in relation to W. Mr Mae stated that he cannot stop what other people post – I stated that if he didn’t make comment then others wouldn’t have to make comment either – cause and effect.
… I stated to Mr Mae that I do not have the answers he and W are seeking. I strongly encouraged Mr Mae to also encourage W to contact her lawyer. I stated that I believe that this is the calm before the storm and that W is going to need support. I stated to Mr Mae that if he thinks this situation is bad for him then it is ten times worse for W and she will need to be supported physically and emotionally. I asked Mr Mae to keep an eye on W’s mental health and wellbeing.
To state the obvious: the comments made in this File Note Record in relation to both W and the Father, in my view, are extremely concerning. Respectfully, they are of a piece with the Father’s evidence at the trial and recorded in the 2013 judgment. In this regard, and without repeating all of the matters recorded in it, I note the following as briefly as possible from the 2013 judgment, at [67] – [106] in particular.
First, the Court (in accordance with the expert evidence before it) determined that W and her Father had a very strained relationship, and that W wished to live with her Mother.
Secondly, the Court listed a significant number of instances where, in my view, the Father had not properly or appropriately exercised any relevant parental responsibility in relation to the children.
Thirdly, the Father and his family was found to have engaged in a systematic and highly orchestrated campaign to attack and to undermine the Mother. Indeed, the judgment records the Father’s evidence that (a) he (and his family) did not accept or believe the multiple occasions when the Department (and JIRT) had concluded that the various accusations/reports made against the Mother were not established; and (b) he would prefer the children to be in care rather than to live with the Mother.
Fourthly, the Father described his children as “free spirits”, and that the children could do, essentially, what-ever they wished. In relation to this evidence, in the 2013 judgment I said (at [80] & [81]):
… He continued, “They can make their own decisions within reason.” However, upon further examination, the parameters or ambit of what was “within reason” was extremely flexible. In short, however, Mr Mae’s phrase “within reason” simply and clearly meant ‘whatever Mr Mae agreed with was acceptable’; if there was anything that Mr Mae did not agree with in terms of the wishes or decisions made or proposed by the ‘free-spirit’ children, then that was unacceptable.
For example, it was put to him that if a four-year old wished to do as he or she wished, he said that there was no difficulty with that. Indeed, he said, in relation to the children generally, “If they tell me what they want, then I will go about making it happen.” This extended, for example, to four-and-a-half-year old Y saying that if she didn’t want to go to school, Mr Mae was not going to make her go to school.
Fourthly, I note the following from [105] of the 2013 judgment:[12]
It is convenient, and important, here to note the following from the ICL’s written submissions. At par.41, he said:
The Father seems to be more interested in harming the Mother. The sexual allegation issues have been proved on two occasions to be not substantiated yet the Father cannot accept the findings. He said in evidence that he would prefer the children to go to foster care than live with the Mother. This could be construed as him being a protective Father but in the context of this case, it is submitted, that this statement is illustrative of the measures that the Father will go to undermine the Mother and her role as a parent.
[12] The ICL who appeared at the trial in 2013 is not the same ICL who currently represents the interests of the children.
In the Father’s primary affidavit filed in the current application, he deposed that he said things during the trial (when he was a self-represented litigant) in the heat of the moment, and that he was intimidated and frustrated.
I make no comment on these statements other than to note that the evidence put before the Court in 2013 (and earlier in 2010) was taken from a very wide number of sources, and over a very significant period of time, including the Department of Family and Community Services, JIRT, and two experts, Dr S and Ms C. There is a remarkable consistency in the reports and the conclusions of all of these bodies and experts, and the Court. Respectfully, frustration and the other matters the Father relies upon as a type of plea in mitigation, do not account for all the evidence over such a period of time relied upon by the Court in 2013. And regrettably, the extracts from the Departmental File Record noted earlier in these reasons in my view reflect, among other things, very little change – other than W changing residence and now being hostile to her Mother, as opposed to her former hostility to her Father – in the disposition of the Father towards the orders of the Court. In my view, Mr Mae and his family will do whatever they want, just as they always have. The law and the Court (particularly as recorded for posterity by Ms G in her on-going Facebook postings) are mere irritations, distractions to be ignored, or at least circumvented as required.
Formally, I make no findings (and cannot do so) one way or the other about either party in the current circumstances and their competing claims. And while I suggest that there are precedents for miracles, the “relaxed and comfortable” position regarding the Father’s and the Mother’s parenting relationship to which the Father deposed in his primary affidavit filed in the current application(s), respectfully would require that there has been a quite recent “(omitted) experience” for at least one of the parties. The history of the matter would indicate that the Court should adopt a rather more sceptical stance in relation to matters of parental conversion in this matter in the absence of independent evidence.
In any event, the Father’s disregard for Court orders, among other things, and the other matters to which I referred in the 2013 judgment, is not (and cannot be) the primary reason for the orders today. Properly, the Court must make orders that are in W’s best interests (pursuant to s.60CA of the Act), and the other relevant matters set out in Part VII of the Act to the degree that the Court can make any relevant determination.
In general terms, I accept almost all of the submissions made by the ICL. However, the main difficulties for the Court remain (a) the nature and extent of any mental health and other issues from which W suffers, (b) the nature and extent of relevant support and treatment she obtains for them, (c) the past experience of older children in this dysfunctional parental dynamic whereby a change of residence and hostility towards one parent, but which later changes, is not uncommon, (d) the capacity of the Father (and his wider family) to support and provide necessary care for W, and (e) the capacity of the Father (and his wider family) to encourage W in her relationship with her Mother. In relation to virtually all of these matters, and having regard to W’s age, her seemingly [somewhat] fragile state, and her circumstances more generally, the Court is virtually powerless. I suggest that, more likely than not, the on-going resolution of the matter will rest with the Department of Community and Family Services.
In all of the circumstances, the parental responsibility order that is in W’s best interests is one made under s.61C of the Act. That section provides as follows:
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
There is older authority which left open the question of whether, if an order is made under this section of the Act, there was any formal requirement for the parents to consult or to make decisions jointly.[13] Such matters must now be considered in the light of the Full Court’s comments in Goode v Goode.[14] At [39], the Full Court in Goode said:
We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
[13] See In the Marriage of Vlug & Poulos (1997) 22 Fam LR 324.
[14] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422.
To accede to the Father’s application in relation to W regarding parental responsibility is not something the Court can or should do. To do so would require the Court (a) to ignore the long, acute and deeply troubling history of the dysfunctional parenting relationship, (b) to ignore the expert and other evidence considered by the Court in 2013, (c) otherwise to treat as a waste of time and resources the trial and judgment in 2013 (and all earlier proceedings), and (d) to require the Court to accept that the Father has undergone a complete conversion such that he can and would promote and encourage W’s relationship with her Mother, and that he can and does enjoy at least a business-like parenting relationship with the Mother. These are all bridges that are way too far, especially in abbreviated interlocutory proceedings to cross.
In terms, having regard to the history of the matters, the regular changeability of parenting arrangements, and most importantly, W’s best interests, whenever and while-ever W is in the care of either parent, each parent shall have parental responsibility for W in accordance with s.61C(3) of the Act. In addition to this, for what it is worth, the parents are to inform each other of any significant decision in relation to W, and in particular, in relation to her health and education. Subject to the orders noted, all outstanding applications must be dismissed.
The Court so orders.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 12th September 2014
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