Lindberg & Scott
[2009] FamCA 465
•3 June 2009
FAMILY COURT OF AUSTRALIA
| LINDBERG & SCOTT | [2009] FamCA 465 |
| FAMILY LAW – PARENTING - Reconsideration of the issue of time to be spent by a parent with a child when earlier order “reserved” the question - can a parent relitigate the shared time question where previous order reserved that time? - teenage child with strong views in circumstances where the litigation is impacting upon the child FAMILY LAW – CHILDREN – ORDERS - order made that there be no time with parent - order under s 118 where constant litigation adversely affecting child - section 118 order does not prevent litigant having access to courts and justice - injunctive order preventing parent having access to freedom of information procedures and a request that the relevant authority recognize the order. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Abrahams v Comcare (2006) 93 ALD 147 Attorney-General v Wentworth (1988) 14 NSWLR 481 Briginshaw v Briginshaw (1938) 60 CLR 336 Miller and Harrington [2008] FamCAFC 150 Pitt v OneSteel Reinforcing Pty Ltd[2008] FCA 923 Rice v Asplund (1979) FLC 90-725 SPS and PLS (2008) FLC 93-363 |
| APPLICANT: | MS LINDBERG |
| RESPONDENT: | MR SCOTT |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 13740 | of | 2007 |
| DATE DELIVERED: | 3 June 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 13, 14 MAY 2009 |
REPRESENTATION
| THE APPLICANT: | IN PERSON |
| THE RESPONDENT: | IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MR HEBBLEWHITE |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | BOWLEN DUNSTAN |
Orders
That all extant parenting orders be discharged.
That the father have the sole parental responsibility for the child C born … April 1996.
That the child C live with the father.
That the mother MS LINDBERG not have the right to spend any time with the child.
That the mother, her servants and agents, be and are hereby restrained by injunction from:
(a) Harassing the child;
(b) Telephoning the child;
(c)Knowingly being at or within 200 metres of any school at which the child attends;
(d)Causing any other person to approach or contact the child at any school at which the child attends;
(e)Obtaining or attempting to obtain, any information from any school or government department relating to the child;
(f)Using any government freedom of information procedure of any state or federal department or agency for the purposes of obtaining any information about the child.
AND IT IS REQUESTED that the Education Department for the State of Victoria give effect to this order.
That to give effect to the foregoing, the Independent Children’s Lawyer forthwith provide to:
(a) the Education Department of Victoria;
(b) the principal of the school at which the child attends, and;
(c)the Secretary of the Department of Education and Early Childhood Development
a copy of these orders with a request that each of such persons and authorities give effect to paragraphs (4) and (5) of these orders.
That the father provide to the mother, copies of school reports relating to the child as soon as practicable after they are received by him but that he have the right before delivering them to the mother, to expunge any details which might identify the residence and/or school of the child.
That the Independent Children’s Lawyer be discharged from the proceedings as and from 4.00pm on 1 July 2009.
Without leave of a judge of the Family Court of Australia, MS LINDBERG must not institute any proceedings under the Family Law Act 1975 (Cth) (“the Act”) in any court having jurisdiction under the said Act seeking parenting orders under Part VII of the Act.
Any application for the leave referred to in paragraph (9) is to be listed before a judge of the Family Court of Australia in chambers without appearance supported by an affidavit and unless otherwise ordered, is not to be served upon the father or the Independent Children’s Lawyer.
That all extant applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.
That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Lindberg & Scott is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 13740 of 2007
| MS LINDBERG |
Applicant
And
| MR SCOTT |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
C was born in April 1996. He is the child of Mr Scott and Ms Lindberg whose relationship came to an end only months after he was born. His parents’ dispute continues notwithstanding C is now 13 years old.
This case is about what time C should spend with each parent in circumstances where I find that he has no desire to have any contact or communication with his mother.
The father and the mother represented themselves throughout the hearing. The child’s interests were represented by an Independent Children’s Lawyer.
The litigation history
After a contested hearing in the Federal Magistrates Court of Australia, O’Dwyer FM made orders on 12 April 2007 finalising parenting issues between the parties. In particular, his Honour left C living with his father and the mother having no time with or communication with C at all. The mother appealed against that decision and other orders. She was successful in the appeal in relation to the other orders but not in relation to the parenting orders to which I have just referred. The orders therefore relating to where C was to live and the time he was to spend with his mother were final.
The application before me by the mother was unashamedly an attempt to relitigate so many of the issues that were finalised by the orders to which I have referred. The mother’s view was that much of the evidence that she now wanted to call and have me make findings upon was not presented to the Federal Magistrates Court in 2007. A careful analysis of the judgment of O’Dwyer FM shows that the mother did not significantly participate and was at times obstructive. She cannot expect the court to be a tool of her manipulation. Unfortunate as it may have been, the orders were final.
Whilst every parenting case must be determined with the best interests of the child as the paramount consideration, it has long been the law in this country that matters relating to children need to be put to rest. A court should not lightly entertain an application to reverse an earlier parenting order and the constant relitigation has the potential to have an enormous psychological harm not only for the parties themselves but for the child involved. (See Rice v Asplund (1979) FLC 90-725, SPS and PLS (2008) FLC 93-363, and Miller and Harrington [2008] FamCAFC 150).
This is an example of a case in which there was no new evidence warranting a reconsideration of the final orders but rather, a litigant desperately following a path that was clearly detrimental to the stability of the child in these proceedings.
The parties have had a long history of litigation. The father has now made an application under s 118 of the Family Law Act 1975 (Cth) (“the Act”) seeking an order that the mother be only permitted to make an application in any jurisdiction exercising powers under the Act, by leave of a judge of this Court.
Before turning to the current applications, four court events including the day of the final orders, need to be considered as important. I shall only refer to the parts of orders that are now relevant to the proceedings before me.
First, on 29 May 2006, Hartnett FM made orders by consent that on an interim basis by which her Honour meant until 9 October 2006, C live with the father. Her Honour also made orders for regular weekend and holiday contact between the mother and C. Notwithstanding the intended October hearing, the case was not heard until April 2007.
Secondly, on 12 April 2007, O’Dwyer FM made orders after a contested hearing relating to parenting issues that C live with the father, that the father have sole parental responsibility for him and that the time between the mother and C be “reserved”. The mother appealed.
Thirdly, on 26 July 2007 Kay J sitting as a Full Court on the mother’s appeal against the orders of O’Dwyer FM, dismissed the mother’s appeal against the “residence” order and the order for the “reservation” of time between the mother and C but set aside the other orders specifically those relating to sole parental responsibility and contraventions. Kay J sent the matter back for another hearing.
The order of O’Dwyer FM for the “reservation” of time meant that the mother could go back to the Federal Magistrates Court to seek to have the time specifically fixed. Ultimately, sifting through the information that the parties have provided me, she did not do that.
Fourthly, on 5 December 2007, of the issues remitted to the Federal Magistrates Court of Australia by Kay J, Connolly FM only heard the mother’s applications for contravention and dismissed them. The sole responsibility dispute seems to have been overlooked. That meant that the legal status of the parents as having equal shared parental responsibility continued.
After leaving the Court of Connolly FM, the mother filed the application in this Court seeking the orders to which I refer below.
Whilst all of this litigation has been going on, there has been no contact or communication between C and his mother for over two years now.
To make the litigation between the parties more complicated, in 2008, there were proceedings in the Children’s Court of Victoria.
The record of the Children’s Court shows an application was made by the father for an intervention order against the mother nominating C as the aggrieved family member. That case was heard over a number of days. It arose out of a number of issues including the mother attending at the child’s primary school and telephone calls made to C.
The decision of Magistrate Bowles was handed down on 13 June 2008. Her Honour granted an intervention order to last until 13 May 2009. Her Honour recorded that on 16 May 2008, she had thought that an undertaking by the mother was appropriate as an outcome for the proceedings and adjourned them until 30 May 2008 to enable the mother to get legal advice. On 6 June 2008, the mother said she was not prepared to enter into an undertaking and ultimately, her Honour granted the intervention order sought.
Importantly, Magistrate Bowles noted the issues of contact between C and his mother should properly be determined in this Court or the Federal Magistrates Court. In the proceedings before me, the mother tendered in evidence the published reasons for the decision of that Magistrate.
The proceedings in this Court
With this litigious background, the final hearing came before me as the first day of the less adversarial trial on 12 January 2009. The parties were obviously polarised that day.
If the mother had been following what Kay J had said on the appeal, the issues for determination in this Court or the Federal Magistrates Court would have been:
(a)the dispute about parental responsibility; and
(b)the fixing of the mother’s time with C under the “reserved” order of O’Dwyer FM.
The mother’s focus was not on equal shared parental responsibility or on any form of sharing that responsibility. It shall deal with that in some detail below.
The mother’s focus was also not on fixing her time under the “reserved” contact order or if it was, it was certainly not apparent. In the document that she filed and the case that she conducted, the issue was about a sharing of time equally. Having regard to the nature of the judgment of O’Dwyer FM, that application was untenable.
Despite that untenability and possibly because neither the mother nor the father was represented, the issue of her right to re-argue the whole parenting question was not raised.
The paucity of evidence caused by the requirement to only file a questionnaire contributed to the confusion. The situation did not improve when the parties filed their trial affidavits as it was still not clear what determinations had previously been made.
Because of the problems of re-litigating parenting disputes such as this, the making of orders “reserving” parental entitlements to time with children or more appropriately, reserving the children’s time with parents should not be made. If it is appropriate to make an order that there be no time spent between parent and child for whatever reason, the order should remain silent on the subject or reflect the fact that time is to be arranged by agreement between the parents.
In this case, the first hearing before me was the first day of the less-adversarial trial. Its purpose was to define issues and ascertain whether any action could be taken to assist parties resolve their parenting dispute without intervention of the Court. If that intervention was necessary, a continuation of the trial was to be undertaken with comprehensive evidence provided in affidavit form by the parties.
Essential to the success of these first days is the provision of an issues assessment report by a family consultant.
I had the benefit of an issues assessment report but with the paucity of evidence and the obvious intransigence of the parties, I felt that it was more likely to be of assistance if I had a comprehensive family report. I then made orders for that to occur and for the parties to file their material. The litigation history made abundantly clear that there was no dialogue between the parents and no prospect of any conciliatory resolution of the parenting dispute. That being so, but still using the less-adversarial provisions of Division 12A of the Act, these parties needed a litigation hearing.
The mother filed her amended application on 11 February 2009. In it she sought orders:
(a)that the Court “consider” equal shared living arrangements on a week-about rotating basis;
(b)the Court “consider” substantial and significant time for C with each parent and reinstate orders that were made by Federal Magistrate Hartnett for five days with the father and two days with her; and
(c)that the Court “acknowledge” the relationship between C and other people that existed prior to living with his father and grant telephone contact to those persons.
In discussion when the case began on 13 May 2009, the mother expanded on the orders she was seeking with some precision. She therefore sought:
(a)that there be a week-about arrangement for C with both parents;
(b)in the alternative, it be five days with the father and two days with the mother;
(c)that C spend half of all school holidays with her;
(d)that C spend some time on Mother’s Day, both birthdays and Christmas with her; and
(e)that there be telephone contact by Mrs S and Mrs A.
The father’s amended response to the mother’s application was filed on 7 November 2008. He sought orders that the mother’s application be dismissed and that he have the sole parental responsibility for C.
In the father’s response, he also sought orders that the mother be prohibited from making further applications before this Court in regard to C without leave. He also sought costs.
In the opening part of the case, the father’s position did not alter.
The Independent Children’s Lawyer sought orders under a heading of “Recommendations”. The orders proposed by the Independent Children’s Lawyer were:
(a)that the father have sole parental responsibility for the child;
(b)that the child live with the father;
(c)that there be no time spent between the child and the mother;
(d)that there be various restraining orders relating to the mother, her servants and agents;
(e)that the father provide to the mother copies of all school reports subject to some restrictions;
(f)that the Independent Children’s Lawyer provide a copy of any orders to the principal of the school at which the child attended together with relevant authorities in the Department of Education and Early Childhood Development;
(g)That the Independent Children’s Lawyer appointment be discharged.
The hearing of the matter concluded at the end of Thursday 14 May 2009. As I called upon the Independent Children’s Lawyer to commence his final submissions, the mother told me that she was withdrawing her application. Having regard to the time at which that statement was made, I suggested that she might like to consider that position overnight and that if she did not attend on the following morning, I would conclude that what she had just told me was what she meant. The Independent Children’s Lawyer made the observation that the mother had to consider that there was also a live application by the father.
On the morning of 15 May 2009, the mother was called as she had not arrived at the commencement time of court. There was no appearance.
I then determined to conclude the hearing as I had indicated the previous evening.
Neither the Independent Children’s Lawyer nor the father altered the positions to which I have referred above.
The witnesses
The mother relied upon an affidavit filed on 11 February 2009. There was some confusion about what documents she was relying upon because she had only days before, filed an affidavit to which she added a small amount to the affidavit filed on 11 February. She subsequently said that she had filed documents in “Court files and witness Affidavits” relating to the father’s conduct “since separation”. No particulars were provided of any substance. At the hearing on 12 January 2009, I made orders that Ms Lindberg file the affidavits of evidence in chief of all witnesses she relied upon by 13 February 2009 and that those affidavits be confined to the issues in dispute that had been discussed that day.
The mother cross-examined the father about some matters of what she described as “domestic violence” but all pre-dated the final parenting orders made on 12 April 2007 by O’Dwyer FM.
The mother also relied upon two affidavits by Ms A and two affidavits by Mrs S. No notice was given by the mother about the inclusion of a second affidavit but that was found and included.
On the afternoon of the first day of this hearing, the mother advised the Court, without first telling the other parties, that Mrs S was unavailable because her husband was ill. The mother had been provided with a statutory declaration and some medical documents to support the view that Mrs S should not be at court because of her husband. There is no suggestion that Mrs S was not willing to come to court but rather it was inappropriate for her to do so having regard to the state of health of her husband. What was disconcerting and warranting criticism, was the fact that the mother had known of the situation at least that day and had made no attempt to raise it earlier. The fact that the mother was without legal representation does not excuse her discourtesy. Although no notice had been given for the witness to attend for cross-examination, the father’s position was that he would not seek to cross-examine Mrs S and the Independent Children’s Lawyer adopted the same position but he desired to make submissions about what weight should be given to her affidavit.
The father’s only witness was himself but he too relied upon two affidavits.
The Independent Children’s Lawyer’s only witness was the family consultant Ms W.
Burden of proof
In any proceeding in this Court, findings are made on the balance of probabilities. Where the consequences of a determination are serious, a court should read s 140(2) of the Evidence Act 1995 (Cth) as requiring a cautious approach before making any finding because of the serious ramifications. S 140(2) arises out of the long-standing principle known as the Briginshaw standard. In Briginshaw v Briginshaw (1938)60 CLR 336 at 362, Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
That is how I am approaching this particular issue. The mother’s evidence was full of indefinite evidence and asked me to draw indirect inferences.
The mother as a witness
The mother was constantly unresponsive to questions.
Even making allowances for her not being represented, the questions asked of the mother were not complex yet she constantly strayed into explanation and justification of her position.
The mother is an intelligent and articulate woman. She is a very experienced litigant. A cursory glance of the cover sheet of the numerous volumes of the file shows that there have been hearings in the Federal Magistrates Court and this Court at trial level, interim hearing level and also in the Full Court. She consistently referred to the decisions of those other courts and findings about issues when she was asked for her own opinion or view about what was happening to the child.
Sadly, the mother’s lack of appreciation of the focus of these proceedings being about C’s future and her constant reference to the past meant it was difficult to have any understanding of how C would cope with the changes in his life if what the mother sought was ordered.
The mother’s ill-feeling towards the father was palpable. She said little to enable me to make any finding about her future parenting capacity or her desires to promote C’s welfare.
The mother’s ultimate abandonment of the hearing did little to help her.
It is an appropriate time to record that in final submission, the Independent Children’s Lawyer asked that the record note that it was the expressed view of the Independent Children’s Lawyer that the mother be urged to obtain counselling. There is significant support for that view because, according to the evidence of Ms W, C is unlikely to change his negative view of his mother until he at least sees her doing something about what C believes is her problem.
The father as a witness
In contrast to the mother, the father was forthright, responsive and had an ability to tell me in detail, matters which confirmed my impression that he was focussed on C’s welfare.
The father was tested in cross-examination by the mother about events of the past that might have caused concerns but his candour impressed me. Most of the issues about which he was cross-examined, pre-dated the final orders made by O’Dwyer FM.
The father was tested at some length also by the counsel for the Independent Children’s Lawyer about his approach to raising subjects with or in the presence of C that might have had a negative impact on the child’s view of his mother. The father was responsive in acknowledging that he had conducted himself the way it was asserted but having regard to my understanding of C’s view of the world and in particular of his mother, I do not propose to be at all critical of the father for what he has done.
I found the father to be an honest witness.
If there was a dispute between the two parties in relation to any particular issue, I have no hesitation in saying I accept the father’s evidence.
The evidence of the mother
The mother’s affidavit read like a legal submission quoting authorities and provisions of the Act including provisions now repealed, rather than setting out evidence. Had she spent more time on the facts rather than on what she understood was the law, it might have been more helpful. For example, she referred to the provisions of s 68F of the Act. That provision had been repealed.
The mother said she wanted me to consider the father’s “domestic violence” but she gave no details from which I could make any findings. That was rectified to some extent when the mother cross-examined the father. She alleged, and these were not challenged by the father:
·“Matters as stated in the questionnaire filed 5 January 2009”. In that document, the mother said that in 1997 after separation, but whilst the parties were still together, the father took out an intervention order following an argument when he began cutting up floor boards and destroying property. She then referred to the father’s practice of parking outside her property on days other than when he was supposed to be there, filming her with a video camera. There was no other allegation of family violence asserted in that parenting questionnaire with any specificity;
·“Mr [Scott’s] domestic violence (domestic violence includes stalking and intimidating behaviour) documented in court files and witness affidavits”. As I have earlier indicated, it is not the function of a judge to trawl through documents looking for material that might support a vague assertion as occurred here;
·“Mr [Scott] and/or his agents filming with a video camera outside my residence”;
·“Mr [Scott] blocking the bedroom door and preventing me from leaving;”
·“Mr [Scott] destroying my property”;
·“Advising Child Support Agency he had no assets”;
·“Purchase of the[ City] property just after his discharge from bankruptcy”;
·“Friends and relatives not permitted to speak to [C]”.
The connection with family violence in many of these cases is hard to follow but in any event, the relevance to this application was not apparent.
There were other matters referred to in the mother’s affidavit but they were so general and without particulars that I have not listed them above.
Notwithstanding the general nature of the matters to which I have referred, even searching through the material to which my attention was directed, I could find no specifics such that they could be put to Mr Scott. Importantly, the complaints about “domestic violence” seemed to have occurred prior to the final orders of O’Dwyer FM.
The mother’s affidavit pointed to the evidence of Mrs S set out in an affidavit filed 4 October 2007. She quoted from Mrs S’s affidavit a statement said to have been made by C that he was “getting a new mum” and that he had also said “that’s what my Dad said”. The mother relied upon that as an indication of the father’s failure to facilitate and encourage a close and continuing relationship with her. I shall deal with Mrs S’s evidence below but I do not accept that that is an accurate reflection of what Mrs S said let alone what the child said.
The mother also referred to an incident on 24 December although she did not say in which year. She said she telephoned at 5.55pm and heard the father ask C whether he wanted to speak to his mother and the child replied that he did not. In her affidavit, the mother pointed to that as evidence of the father’s failure to facilitate and encourage a relationship. I reject that. When looked at in isolation, one would wonder whether the child was manipulated in some way but in the context of so many things that have occurred to the parties and the child and particularly those canvassed by the family consultant, I could certainly not make a finding that C was being manipulated by his father.
The mother said she had a good and loving relationship with C as indicated by a video taken during her last holiday with him spent with Mr and Mrs A. She referred to the fact that photos of social events and holidays had been previously filed with the Court but all of these pre-dated the April 2007 orders.
In relation to C’s views, she pointed again to the evidence of Mrs S as an effort to refute what C is otherwise now saying.
I have heard the evidence of the family consultant who has made the observation which I accept, that C is mature and capable of understanding exactly what he wants.
The mother said she had last spoken to C in November 2006 at which time he had requested a football cheer squad seasons ticket. She said there was no valid reason for C to cease contact with her.
To give some indication of the way in which the mother approached the matter, she said that for ten years C lived with her and that the father had cancelled substantial contact with the child during that time. She said that since C had gone to live with his father, she had had no input into decisions concerning the child’s care, welfare or development.
She said that at the Children’s Court hearing, the principal of C’s school was asked why no information was being provided to her and the principal said she was under instruction from the father. That allegation was subsequently put to the father in the proceedings before me and he indicated that he did not remember that evidence being given but in any event, he had not given such an instruction. The principal of the school was not called to give evidence before me.
The mother’s final piece of evidence was that the father had excluded her from all decisions concerning C’s care notwithstanding she and he held equal parental responsibility.
The father cross-examined the mother on only a limited number of issues. He asked whether she was still concerned about an order that was made in her absence on 9 October 2006 and she replied that she was. He pointed out to her that 10 days later on 19 October 2006, the earlier orders were discharged. Her response was to say that she did not have the order before her. Having regard to the fact that it was the mother who persistently maintained that the hearing on 9 October 2006 was the catalyst for the cessation of her relationship with C, I find her answer puzzling.
Almost mantra-like, the mother maintained that in respect of the October hearing, the father’s solicitor had contacted her and told her not to attend. Relying on that, she did not attend. The orders were then apparently made in her absence but when the issue was brought to the attention of the Court 10 days later, the ex parte orders were discharged.
The father asked the mother whether she was inferring that she had been disadvantaged in some way because of the non-appearance on 9 October and she replied that she was. I reject that.
The mother told the family consultant that her inability to have a relationship with her son was entirely caused by the actions of the father and his legal practitioners. She told the family consultant “repeatedly” that it was because she was incorrectly advised by the father’s solicitors that she was not needed at court in October 2006, everything followed from there. It was in the May hearing referred to below that things changed dramatically in C’s life.
I do not accept that the October hearing had any significant impact in these proceedings having regard to the fact that although the original hearing on 9 October was in her absence, the orders then made were discharged 10 days later nor do I accept the October 2006 hearing was the catalyst for the problems that now beset this case.
The hearing before Hartnett FM 29 May 2006
My attention was drawn in cross-examination of the mother by the Independent Children’s Lawyer to the hearing before Hartnett FM .The transcript showed that on Monday 29 May 2006, there was an application before Hartnett FM by the father seeking further contact to C. At that point in time, the father was spending the first weekend of the month with C from Friday to Sunday and then on the third weekend of the month from Saturday at 6.30pm until Sunday at 6.30pm. In addition, he was having contact each Wednesday for 1½ hours after school.
The transcript showed that counsel for the father told Hartnett FM that things had changed that morning and that the mother had actually written out a proposal of orders that she wanted. Those proposals were substantially different from the course of action that the father was pursuing. I can do no better than set out exactly what appears in the transcript:
HER HONOUR: Just one moment. Ms [Lindberg], you’re now seeking that your son now change residence from that of his mother to that of his father. Is that what you’re seeking? Are your sure that’s what you’re seeking?
MS [LINDBERG]: I’ve been battling the Child Support Agency for so long. Mr [Scott], refuses to give them any financial details for all those years. I’ve been trying to get him to pay half the school education costs to meet the learning disability needs which he has refused to do until recently. The child support established that he should pay $25 a week towards one hour of tutoring a week when there was a recommendation from the Children’s Hospital. There have been a number of recommendations that have never been adopted and he’s now 10 years old, continues to fail school because the recommendations were never implemented and Mr [Scott] when the Child Support Agency established that he should be paying, he immediately lodged an objection and I’ve only just now received that he should be paying the extra $25 for half the tuition fee.
It’s just an ongoing battle with contact and finances - so Mr [Scott] can afford to pay it so obviously it would be better to live with Mr [Scott].
HER HONOUR: All right. You understand today that you’re seeking effectively a variation of a long-standing order whereby your child has resided with you and he will now commence to reside with his father. You’re quite sure about that? Have you sought some legal advice?
MS [LINDBERG]: That was following the legal advice.
HER HONOUR: All right. So you are asking the court today to make orders - I only propose to make these until further - that [C] live with his father and that you have contact each weekend from after school Friday, with you to collect from the school bus at 4.30 until 6.30 Sunday.
MS [LINDBERG]: That’s correct.
The Independent Children’s Lawyer cross-examined the mother about that hearing and asked whether on the day she went to court, the mother had discussed the potential change of residence with C. Her response was that C already knew that he was going to live with his father because he had been shown his room and he was told by his father that if he went to live there, he would get a plasma TV. She added that he also got an “X-Box”.
Hartnett FM was cautious to ask the mother whether she had sought some legal advice and the mother’s response is shown above.
About that hearing, the mother said that she had spoken to the duty lawyer who told her that in the light of the applications, the Federal Magistrate would order a family report and that that would cost $3000. She said the duty lawyer told her that the child support dispute could not proceed because it was on the wrong form. According to the mother, she thought there was no point proceeding any further. That seems inconsistent with her statement that C already knew he was going to live with his father because of the material inducements.
The mother did not allege that in the hearing before Hartnett FM, she was overborne, pressured or even distressed about what was happening.
The transcript shows that after the discussion referred to, there was a discussion between the mother and Hartnett FM about when the orders for the change of C’s residence were to commence. The mother nominated the period of time some days ahead because that would be the point at which C would have finished a project that he was undertaking.
Whilst there were many things going on in C’s life at that time, I must bear in mind that he was just 10 years of age.
The mother raised the issue of C’s schooling and her then incapacity to pay for it. She pointed to the lack of cooperation by the father in respect of school fees.
Counsel for the Independent Children’s Lawyer asked the mother whether she had agreed to the change of residence because the father would have to pay the school fees at C’s private school because those payments had been a subject of dispute. The mother’s response to me was that these matters were on the “minutes”. She said that the Federal Magistrate ordered that C remain at the private school as a consequence of which, she presumed that the father would be paying the school fees. She then reiterated that she made her decision after legal advice from the duty solicitor that she would have to pay the $3000 for the family report.
For whatever reason, the father had attended that hearing for the purposes of increasing his time with C.
Taking into account the school fees issue and the enticements suggested about plasma televisions and X-Box machines, I am satisfied that the explanation about the cost of the family report was just not true.
An example of the mother’s distorted view of events is that she said the father submitted to O’Dwyer FM a medical certificate indicating that he could not drive a motor car. A cursory examination of the reasons for judgment of O’Dwyer FM shows that not to be the case. His Honour said that the father had produced a medical certificate saying that he suffered from hypertension and that it was not good for him to be driving in peak hour traffic.
The obsession of the mother in reading judgments as evidence and findings of courts as being interpreted to show the father was unreliable, is just untenable.
An examination of previous court orders shows that the Court wanted the parties to have some form of therapeutic or psychological counselling. That is quite clear from the orders of O’Dwyer FM. Because Relationships Australia was in an inner eastern suburb and the mother wanted the counselling to take place in a western suburb, she apparently proposed as an alternative, a psychologist Ms M. She asked the father in cross-examination why he would not agree to Ms M. The father said that this was the psychologist who had requested to see the DVD of the school concert urgently. His view was that Ms M was not objective. I make two findings about that. First, the Court ordered that therapeutic counselling be organised and that has not happened. Secondly, according to the family consultant, Ms W, C would not go any way.
Sharing parental responsibility
The mother was also asked how equal shared parental responsibility would work. Her response was that the father already had sole responsibility in reality. When asked how she would be able to communicate with the father and make decisions, she said that she had already tried to send letters about child support and he did not answer her correspondence in any event.
It was evident even on the mother’s evidence that there is no prospect of any parenting communication.
The maternal grandmother
The mother was asked about the relationship between C and his maternal grandmother. The mother conceded that she was aware that some contact had taken place but her own relationship with her own mother was such that I would not be able to endeavour to use the maternal grandmother as a means of re-establishing the relationship between mother and son.
The mother and maternal grandmother have not had contact with one another for 30 years. The mother said that the maternal grandmother would place C at risk of emotional damage. The rhetoric was not matched with any evidence.
Financial assistance for C
The mother was asked about funding C’s education and why she had used funds available to her from some now deceased aunts who had provided assistance for education purposes in the past.
The mother’s response to questions about education funding was enlightening. She said that she paid school fees previously and the father had not. She said she was not now responsible for C and as a consequence of that, there were students at Melbourne University who were in need of help. She said she could not help her own son with his education so she chose to help other students instead. When asked by counsel for the Independent Children’s Lawyer what stopped her continuing to contribute towards her son’s education, her response was that she had no input into his education now. When asked about the use of the aunts’ money now, she made it clear that C had turned his back on the aunts as a result of which they were not happy to continue to fund his education and in fact, the aunts had predicted that the current problem would arise.
The only conclusion I can draw in relation to the mother’s answers is that the mother puts the blame on the shoulders of the child. It must be remembered that at the time the orders were made, C was just ten years of age.
The mother and son relationship
When the issue of trying to find some way to help C in the future was raised even if he would not have contact or communication with his mother now, it was suggested that things might change, the mother said that he was a “damaged person” from the events in the whole process.
She said that when he lived with her, C was a happy and normal child. That evidence was certainly corroborated by both Mrs S and Mrs A but it is entirely inconsistent with what C himself told the family consultant in a very persuasive way.
When I asked how the week about arrangement would work, the mother was not able to give me a responsive answer. I put the question three times trying to find out how she would see the orders that she was proposing whether as her primary position or in the alternative would work.
I was unsuccessful in getting any view of how the mother would overcome the impasse with her own son.
There was considerable cross-examination in the hearing each by the other about an incident at C’s primary school that seems to have given rise to issues in the Children’s Court at Melbourne in which the father sought the intervention order in relation to C.
In her reasons for her decision to which I have earlier briefly mentioned, Magistrate Bowles made the following findings:
·Various telephone calls made by acquaintances of the mother were not made at her instigation (but nonetheless they were made);
·At a school concert night, it was not the mother’s intention to upset the child;
·At a school barbeque, a week after the concert, the mother and friends handed out leaflets which offered to purchase a DVD of the concert. Her Honour found this incident “very concerning”;
·At the school two days later again, the father saw Mrs S near the school. Mrs S had been sent there by the mother to try and get a copy of the DVD to enable a psychologist to view it;
·The mother did not appear to appreciate the potential effects of her actions on the child;
·The mother appeared incapable of doing whatever she could to attempt to resurrect her relationship with the child;
·The father reaffirmed his previously stated position that he was anxious for the child and the mother to re-establish a relationship but her Honour had “some difficulty” accepting that; and
·The mother did not intend to harass C but she was reckless about her conduct impacting upon the child.
I am not bound by any of the findings of her Honour Magistrate Bowles. Those findings and the incidents that gave rise to them which post-date the April 2007 orders of O’Dwyer FM, indicate that nothing has changed in the period after the 2007 Federal Magistrates Court orders nor since the orders of the Children’s Court.
The mother has done nothing to suggest a re-establishment of the relationship with C is possible.
The mother’s response and that of Mrs A to questions about not having sent presents, cards and letters to C through the father or the Independent Children’s Lawyer was that it was pointless because C would not get them or that in so doing, the mother would be in breach of the intervention order. I do not accept that C would not have received the information. Even if there was an embargo on contacting C because of the intervention order, there was an Independent Children’s Lawyer in existence.
Similarly, no attempt has been made to pursue any form of therapeutic counselling.
It may be that the mother is right that C is a damaged person and he is now a 13 year old with strident views similar to those articulated by the family consultant and that it is now probably too late to try to begin to develop a relationship through therapeutic counselling.
The family consultant
Ms W is the family consultant who has had many years experience. She is an expert in her field. Her opinions were concise and well thought out. I have no reason to doubt her expertise and professionalism.
The family consultant’s view was succinctly set out in her report. She said that the child was articulate, intelligent and sensitive. She said that he was progressing well in his day to day life and felt unconditionally loved and supported by his father and his father’s wife. She said that he had very strong views about his mother and that they were most concerning because they related to either serious emotional and physical abuse in her care or to serious and concerted efforts to be alienated from his mother.
As I have indicated, I find there is no evidence that the father has endeavoured to alienate C from his mother.
Finally, the family consultant said that if the mother refused to accept her son’s position and continued to litigate, there was little doubt she would strengthen her son’s resolve to keep her out of his life for even longer than is currently in his contemplation.
In her family report, the family consultant described C as an articulate, intelligent and sensitive adolescent who demonstrated a sense of frustration at going unheard despite the strength and consistency of his opposition to having any relationship with his mother at this point in his life.
The mother cross-examined Ms W about why she had adopted the position of supporting C about the allegation of abuse. All Ms W was saying was that these were C’s views and that they were strident.
In her evidence, the family consultant said that she informed the mother about the strength of C’s views. She reported that the mother responded with her opinions about the origin of those views rather than expressing any emotion.
The mother told the family consultant that C had been brainwashed by his father and that he, C, should think about the long-term consequences of what he was doing. The mother was cross-examined about that statement by the Independent Children’s Lawyer’s counsel. Rather than explain it away as a misstatement or a misunderstanding, the mother reaffirmed that that is exactly how she felt.
To suggest that C could live with his mother on any basis as she proposed, would have to be seen as absurd.
The family consultant also reported that the mother’s view was that she had an excellent relationship with C prior to him going to live in his father’s care and she had denied doing anything that would contribute to the child’s negative view of her. That of course was inconsistent with what C himself told the family consultant.
C told the family consultant that when he was living with her, she would abuse him, hit him, kick him, verbally abuse and threaten him. C told the family consultant that he had been scared of his mother’s reaction when he expressed to the Independent Children’s Lawyer that he did not want to see his mother. That is completely inconsistent with what Mrs A said.
The mother cross-examined Ms W and asked her about what advice she would give. Ms W indicated that it was not her function to provide advice. She did however indicate that if the mother refused to accept C’s position and continued the litigation battle, in her mind, it would simply strengthen C’s resolve to keep his mother out of his life for even longer. I accept that evidence.
Mrs A
The mother called Mrs A from Gippsland. Mrs A has been a long-time supporter of the mother. Her evidence was mostly about what happened before the orders in 2007. She could not accept that C would have the particular views that he had articulated to the family consultant because they were inconsistent with what she knew for many years.
The second of the two affidavits by Mrs A which was not challenged by either the father or counsel for the Independent Children’s Lawyer asserted that not once during a stay at the A’s property in 2006 had she seen the mother “physically or verbally abuse” C. She said that she had seen the mother reprimand C but never to be cruel or assault him. She said that for anybody to say otherwise, they were being “completely dishonest”.
The significance of this evidence is that it clashes with the statements made by C to the family consultant to which I shall refer below.
Mrs A said that the mother was a wonderful mother to C and that they had had a loving relationship. She pointed out all of the things that the mother had done with C including precise details about their involvement in football. She referred to the fact that she and C talked about football matches and she considered that C loved visiting her and her property.
As for the father, Mrs A said that she found him to be controlling, manipulative and prepared to resort to whatever means necessary to get his own way.
Mrs A was critical of the father for removing C from his private school and enrolling him at a local inner city primary school. I must say that I found that piece of evidence puzzling. The evidence was that C was attending a private school in an outer western suburb and the father removed him from there and enrolled him at the inner city suburban school. The geographical distance must have been enormous and it certainly seemed to me to be more sensible to have C attending a nearby school to where he lived.
Mrs A said that the father had only taken an interest in C since he had remarried.
Factoring in that the affidavit was written in December 2006 and Mrs A had not had any knowledge of C’s life subsequent to the change of residence, one would have thought she might be prepared to acknowledge that C had grown older and become more assertive. She maintained however that she did not accept what C was saying was true.
Mrs A had a very jaundiced view of the father and was a strong and partisan advocate for the mother’s cause. Her evidence was not particularly helpful because of what has happened to C since 2007.
Mrs S
Mrs S was in a similar position to Mrs A. She swore an affidavit on 1 February 2009 referring to an incident in September 2006. This was obviously after the change of residence had occurred.
Mrs S said that she was at McDonalds Restaurant when C said he was getting “a new mum”. She said that she replied “[Ms Lindberg] is your mum”. She said that C then replied “That’s what my dad said”. That brief conversation is open to two interpretations. The first is that C was saying that his father had told him that he was getting a replacement mother. The second interpretation is that Mrs S was confirming that Ms Lindberg was his mother and C confirmed that his father had said likewise. The mother asked me to draw the former inference.
Mrs S’s evidence was not subjected to cross-examination. I see no reason therefore why the evidence should not be read literally and sequentially. As such, the evidence must mean that C was reaffirming just who his mother was.
Insofar as the evidence of Mrs S was presented to show some form of alienation by the father, I reject that suggestion.
Mrs S also had an affidavit sworn on 1 February 2009 setting out considerable detail about what happened prior to 2007. Nowhere did she say anything about her understanding about why the mother agreed to the residence orders before Hartnett FM in 2006. On the contrary, all she mentioned was an unhappy child not wanting to spend time with his father. She went further and spoke of all of the wonderful things that mother and child did together.
Without being tested, the evidence of Mrs S is of little probative value in the dispute before me because the final orders were made in 2007 along with the strident views expressed by C.
The evidence of the father
The father’s evidence was that since C had come into his care, he and his wife had helped the child develop in terms of his social and academic skills. He made reference to the fact that there had been significant improvement in table manners and hygiene.
The father said that C’s academic performance had improved greatly. I have no evidence against which to judge any such improvement but it is quite obvious from reading the school report that C is doing well and is being commended for his efforts.
The father said that he sat down with C at night to assist with homework. He pointed to the fact that he had the advantage of his wife having an arts degree majoring in English as well as an extensive background in information technology.
The father pointed to the many extra-curricular activities that C is involved in now. That was not challenged.
The father set out the details about his residence and how it will have adequate personal space and open study for C.
The father set out considerable evidence about the nature of the relationship between C and those around him including his half-sibling, his maternal grandmother and various other relatives. That was not challenged.
As a result of what the father described as the mother’s past erratic and irrational behaviour at C’s school causing the child discomfort, C had expressly requested that the mother not be informed of the name or location of his current school.
The father said that he did not receive any child support notwithstanding the mother’s current income position as he understood it. He said that since the last court hearing, he had received two parcels from the mother.
The father’s evidence was uncontroversial. When questioned about what view he took of C’s relatives contacting him, he indicated that he had no problems in them calling the mobile number. He made the observation that C had his own mobile telephone and that the calls were not monitored or vetted so that if C wanted to telephone his mother or any other person, he was able to do so.
The father pointed out that immediately after the contravention applications were dismissed by Connolly FM, there was a host of calls to him. The mother in cross-examining the father, put that this was something that C was entitled to receive because these were adults who had been his friends and acquaintances all of his life. The child at this stage was about 11 years old and for better or worse, a number of adults were all inquiring of, and wanting to, speak to C.
There was argument between the parties about exactly what was said, how it was said, who was aggressive and/or abrupt.
What was puzzling however was that the mother seemed to think that there was nothing wrong with these calls or the motives behind them.
I find it impossible to accept that all of these people suddenly decided that they would call C out of some love or affinity for him.
I find that the calls were directly or indirectly undertaken at the instigation of the mother. In saying that, I appreciate that the Children’s Court magistrate found the opposite. Whilst her Honour in those proceedings had the opportunity to see and hear all of the witnesses and made subjective findings about the link between the mother and these other adults, I do not accept that the mother was oblivious to what was going on. Knowing the complex history of these proceedings, I do not accept that was the case. In my view, even if they were not directly controlled by the mother, the calls were insensitive and inappropriate and they were harassing. The mother has to take responsibility for that.
The mother asked the father about a letter that she had sent to C. The father acknowledged that C received it. The mother read out in court the sentiments that she had expressed in that letter. The father said the words had no noticeable emotional impact on C. I accept that evidence having regard to the views of Ms W.
Child support issues
There was also considerable cross-examination of the father by the mother about child support issues. The father took umbrage at the amount he was receiving from the mother and all of what he had to go through with the Child Support Agency so he “cancelled” the assessment. The mother expressed frustration and anger about the fact that she was being criticised for not providing child support when it was in fact the father who “cancelled” it.
On the evidence of Ms W and the father, I accept that C knows about the child support issue. In January 2009, I indicated to the parties that I was interested to hear about child support. The mother took that to mean that I was directing her to provide for C as a result of which, she sent him pencils, a movie ticket, a store voucher and a track suit. The evidence of the father was that C was unimpressed. The evidence of the family consultant was that C returned the track suit to his mother through her.
I suggested to the father that the mother could make a money contribution. The father said that the mother had not trusted him in the past and therefore she would not pay him cash. Such is the level of distrust.
I could not find a resolution about the finance issue other than that the Child Support Agency assessment process was the appropriate one but neither party was happy about that even though the mother was critical of the fact that the father cancelled the assessment. There is no suggestion that she could not use the agency calculations to make a real provision of some sort for C.
The mother’s view is that because she has no input into C’s life and there is no responsive recognition of her by C, there ought not to be any basis for her to pay. If that is her view, it is misguided and wrong.
The school break-up incident
I have been concerned about the fact that the mother has endeavoured to re-litigate this whole case after the final determination in the Federal Magistrates Court but in fairness, the following incident is subsequent to April 2007. Rather than that becoming something of a positive thing upon which the mother could say there has been a change of circumstances, it only highlighted that the situation had deteriorated.
The dispute was about what happened at the child’s school at the end of his primary school years when the mother and her friend handed out pamphlets seeking to acquire a copy of a DVD of C’s concert performance. The factual dispute centred on whether pamphlets were placed on cars. Curiously, the mother doggedly denied that any such conduct occurred yet was not troubled about acknowledging that she was at the gate of the school handing out pamphlets. Her friend was at another gate. The purpose was to presumably “cover all bases” and as such, whether a pamphlet went onto a car windscreen was not only irrelevant but also insignificant.
The mother was at pains to say that she was not known at the school and therefore handing out pamphlets would not cause any embarrassment to C.
The purpose of the mother wishing to obtain a copy of the DVD was that she took a dim view of the concert and wanted a copy because the psychologist she was seeing, and to whom the mother had expressed concerns about the child’s satirical performance, had concerns about it. The concert had only just occurred some days before and the mother was present at it. She did not speak to C.
From what I can gather reading the decision of Magistrate Bowles, C participated in a satirical piece of the play. It is hard to imagine how any primary school would deal with such an issue differently in this day and age. The mother thought otherwise to the extent that she spoke to a psychologist about it which in turn gave rise to the need for the psychologist to apparently see the DVD.
The father’s version of the events of the school yard was entirely different.
The father said that C told him that a friend had said at school that the mother was at school and that he, C, needed to see a psychiatrist.
I have no reason to reject the evidence of the father as it was not seriously challenged.
I find that the incident in relation to the school highlights the mother’s lack of insight into the impact of her actions on C. Her course of action was driven by her obsession with establishing that she has not contributed to the current dilemma and that it is the father who has brainwashed C.
I reject the suggestion that C is brainwashed.
C’s views
C has adopted a very negative view of the mother. Endeavouring to explain why that is so is difficult. There is no plausible explanation other than the one offered by C himself but that was not supported by any specific evidence before me. It may be that it was the evidence before Federal Magistrate O’Dwyer. That is, C believes that his mother was physically and verbally abusive of him.
There is no evidence of things occurring subsequent to the final orders from which I could conclude that anything has changed to warrant making another attempt to have C commence or resume a relationship with his mother.
There are two very significant problems facing the Court even if there was an inclination to make one final effort.
The first is that C is much more mature and less vulnerable than he was when the orders were made in 2007. He is a teenager who according to the family consultant was very bright, thoughtful and well-mannered. That means that his views need to be carefully considered.
The second matter is that apart from his being resistant to having anything to do with his mother, he is now articulating very carefully that he has “repeated again and again for the last two years that he did not want to see” his mother and according to the family consultant, he was expressing considerable frustration and disappointment that the Court was again listening to his mother and not to him.
C went further according to the family consultant and conveyed a message to his mother stating “basically to lay off and that I don’t really want her in my life at this point”. He made clear to the family consultant that if I ordered him to see his mother he would not go.
The mother alleges throughout these proceedings that C has been brainwashed and deliberately alienated from her by the father. I find there is no evidence of that at all.
The law and legal issues
Whilst I have considerable reservations about the fact that the mother wished to re-open all of the litigation, the application before me has been conducted as a parenting dispute.
Part VII of the Act provides the structure for the determination of the dispute.
Section 60B(1) of the Act provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount but not the only consideration.
Section 60CC(1), provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Sections 60CC(2)(a) and (b), provide as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no legislative definition of “meaningful relationship”.
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. I find that there is nothing of benefit for C nor is there any prospect of any relationship let alone a meaningful one, being arranged between the mother and C.
Conversely, there is a very strong and therefore meaningful relationship, between C and his father.
The mother did not challenge the father about the nature of his relationship with C.
The Court cannot manufacture a relationship. At best, it can give the parties and a child every possible opportunity to commence, resume or develop such a relationship.
In this case, when I contemplate the number of court hearings and the professional involvement of Ms W and apparently of Mr B, I am puzzled as to what else the legal system can do.
In those circumstances, the Court would normally look to the parties for some glimmer of hope as to how they see the prospect of a relationship being developed.
I sadly concede that the parties have provided no glimmer of hope here. Worse still, I find that the mother has either no insight as to how she can undertake that task or no desire to do so. An example of that can be seen in her view that counselling should have been in the western suburb rather than the inner eastern suburb because of the location of her residence. Another was that if C was moving away from the city area, it would make her contact difficult. The focus has always been on the mother’s predicament rather than on showing some endeavour to overcome any obstacles.
On the evidence of Ms W, there is no immediately foreseeable prospect that persevering would provide any benefit for C.
Ms W said that if left alone, C might show some interest at an age such as 16 but I accept that that would very much depend upon C’s view that his mother had obtained the help that he sees her as needing. No evidence was provided by the mother that she sees herself as the problem.
It is important to recognise that C has a meaningful relationship with father.
If the Court persevered as the mother would have had it do so, there is every prospect that that action would destabilise C and in turn, that would have an adverse impact on his relationship with his father and step-mother.
I accept that C knows what is going on to the extent that when the father “puts a tie on” in the morning, C reads that as a sign that he is going to court rather than to work.
For whatever reason, the mother’s conduct in pursuing the litigation has had the effect of destroying the relationship with C. It must be remembered that until the orders of O’Dwyer FM, the mother was entitled pursuant to orders to spend time with C. That has now turned to complete resistance.
There is therefore no point in giving the first of the primary considerations in s 60CC any further thought.
The second of the considerations relates to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I am satisfied that there is no prospect of C being physically harmed any more by either his mother or father as he is a tall and apparently strong boy.
In this case therefore, it is only the exposure to psychological harm of abuse that is of concern.
“Abuse” is defined in s 4 in relation to a child as referring to assaults and sexual abuse. The word “abuse” in S 60CC has a wider meaning than the definition in s 4. The provision refers to exposure to abuse generally including in my view, exposure to abuse by parents, one of the other. The section is designed to direct a court’s attention as a primary consideration, to make orders which prevent if possible, the psychological abuse that flows from children watching some of the appalling physical and emotional abuse perpetrated by parents. In the same way, it is a very significant responsibility of a court to endeavour to protect children from psychological abuse such as them being stalked or harassed. In this case, the mother’s direct behaviour of attending the school and causing embarrassment for C and her pursuit of information through channels within the Education Department, are all forms of abuse.
Section 60CC(3) provides a number of additional considerations. The first of those relates to the views expressed by a child.
The Family Consultant set out C’s views very clearly and professionally. Her description of C’s level of understanding and maturity make it such that I have no hesitation in following his views. The mother tried to put to the Family Consultant as an analogous situation that if C decided he was not going to go to school, under the proposition put by the Family Consultant, he would be allowed to make such a choice. There is no similarity between the two situations.
The nature of the relationship between C and his father and C and his mother could not be more stark.
C has a strong relationship with his father and I accept that that is good for him. The father was able to explain to me that there are challenges as one would expect in any teenager but they are open to discussion and guidance.
I can only find on the evidence that there is no relationship between C and his mother.
The evidence also shows that C has a warm and loving relationship with his step-mother. That was not challenged by the mother.
The mother did considerably challenge the relationship of C and his half-brother D. D is a man now of 27 years. D had significant behavioural problems in his earlier years but has now obviously matured. The closeness of the relationship between C and D could not be challenged by the mother because she has only viewed D from afar and only in a negative way. I am satisfied that there is a good relationship and that D provides a good role model for C.
There was considerable angst in the mother about C’s relationship with his ageing maternal grandmother. The mother cross-examined the father about the nature of the past rather than the future of that relationship. I am satisfied that her bitterness about her own mother may very well be justified but it cannot overshadow the fact that C has a positive relationship with his own grandmother.
S 60CC obliges me to consider the willingness and ability of each of the parents to facilitate and encourage a close and loving relationship between the child and the other parent.
I do not accept that the father has been destructive of the relationship between C and his mother. All of the objective evidence suggests that he has complied with court orders and been persistent in endeavouring to ensure that C was safe and happy. I cannot say the same about the mother. In my view, she is pursuing her own vindication rather than the interests of C.
I have taken into account the likely effect of any changes in the child’s circumstances on the basis of the separation from either of his parents. C is not distressed by the absence of his mother but he would be very upset from being away from his father.
I have considered the capacity of each of the parents to provide for the needs of C. The father has the capacity and the ability to care for all of the needs of C. I cannot make a similar finding in respect of the mother. For reasons that I have set out, I find she has no insight into the needs of the child and is continuing on a path which is destructive of their possible relationship in the future.
From a physical point of view, I have the evidence of the mother that she had redirected money that could have been used for C’s education or for that matter, welfare, on the basis that he had turned his back on the relatives who were the source of the money. The mother does have or has had, the capacity to provide for his needs but has chosen to redirect them elsewhere.
I am obliged to take into account the attitude to the child and the responsibilities of parenthood demonstrated by both parents. I have no criticisms of father but serious concerns about the approach of the mother. I find she has not acted responsibly.
There are now no family violence issues about which I am concerned as the Children’s Court order expired on 13 May 2009.
I have endeavoured to set out how the mother viewed the family violence issue and I say that I am satisfied that there is no evidence about which I should be concerned. That is not to say that there were no such problems but rather that having been given every opportunity to present the evidence, the mother failed to do so. The mother gave as an example of violence, the father’s videoing of her at changeovers. All of this occurred prior to the 2007 orders but in any event, the father said that he did it on legal advice as a protection. I accept that.
The mother asserted that the father had stalked her including mooring a boat at the house and spied upon her. The father rejected that. I have no reason to doubt the father.
Section 60CC urges courts to make final orders wherever possible to prevent further litigation. This is one such case where the child is crying out for a permanent resolution. I agree that nothing further should be tried to enable any relationship to be developed and that C should be given the opportunity to grow through his adolescent years in peace.
Section 60CC also requires a court to consider historically what has happened in sub-secs (4A) and (4) but in this case, those matters were all matters considered or capable of being considered in 2007 and I can contribute little further.
It goes without saying therefore that I find that the orders that I am about to make are in the best interests of the child.
Equal shared parental responsiblity
Part VII of the Act also requires that in any parenting application, the court start from the fact that each parent has equal shared parental responsibility.
The mother pursued the opportunity to participate in the shared decision-making process even though she seemed to resignedly accept that there was little prospect that that could work. The provision in the Act reads as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
I am satisfied that there is ample evidence to show:
(a)there is no communication between the parties, no respect for one another and no prospect that any form of communication such as a communication book would ever enable them to have a means of working out decisions for C’s future; and
(b)it is not generally in the best interests of C for there to be equal shared parental responsibility because he will be most distressed about the involvement in his life of his mother.
I find that it would not be in his best interests for the parents to have equal shared parental responsibility.
It follows that the father should continue to make the long-term decisions as well as the daily decisions for C.
Application under s 118 of the Act
The father sought an order that the mother be “prohibited from making further application…without seeking leave…of the Court”.
The power to make the sort of order contemplated by the father is set out in s 118. It reads:
(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings;
(b)make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c).
I have an application by the father for an order under s 118(1)(c).
The father’s application is not supported by the Independent Children’s lawyer who said that the mother had not brought a frivolous or vexatious application and there was little evidence to make an order. He said that for the future, the father was protected by the rule in Rice and Asplund.
The father pointed with exasperation to the litigious history and said that if the mother was not stopped, she would press on.
The Shorter Oxford English Dictionary (3rd ed) defines “frivolous” as meaning “of little or no weight or importance; paltry, trumpery; not worth serious attention.” “law. In pleading: manifestly futile…characterised by lack of seriousness, sense or reverence; given to trifling, silly.”
The word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings (see Pitt v OneSteel Reinforcing Pty Ltd[2008] FCA 923 at [9].)
The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless” (Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”: Abrahams v Comcare (2006) 93 ALD 147at [24], per Madgwick J.)
“Futile” in the dictionary means incapable of producing any result.
I do not find that the mother brought these proceedings to harass the father albeit that they had just that effect. I find that the mother did however have a collateral purpose namely to endeavour to vindicate her own position that everyone else had got the outcome wrong. Her focus was on anything other than on the best interests of the child.
Even if in some misguided way, she thought she was doing what was best for C, the evidence of the hearing before O’Dwyer FM followed by the appeal before Kay J should have meant that she needed to recognise that the litigation path she was pursuing was not only futile but also damaging to C.
While the mother may not have had the advantage of the Family Consultant’s report until this year, even at that time or shortly thereafter, she should have realised that her son’s wishes and views were articulately and strongly being put and she should have heeded them.
If, as I suspect, the mother does not accept the position that I have just postulated, there is every reason to suggest that she will continue on some sort of crusade of vindication. That would be destructive of C’s own psychological and emotional health.
These proceedings therefore were futile. I have no confidence that the withdrawal by the mother at the conclusion of the evidence meant that she has abandoned her pursuit.
I find that there is every prospect of further litigation under the Act and that would be harmful to C and unreasonable for the father.
It is obvious that a court should only deny someone access to the courts as a last resort. It is a fundamental right in our democracy to have free access to the courts. An order under s 118 does not restrict the freedom of a party to the courts. Rather, it restricts involving another party in litigation until a court is satisfied that circumstances warrant it.
Even with the application of the rule in Rice v Asplund, the father would have to be served and be involved again despite the onus being on the mother to show that there was evidence to warrant the matter proceeding to a full investigation.
I also have the very strong evidence that litigation is something C understands and finds difficult to deal with. He particularly views the past hearings as his own position not being heard.
This Court does not slavishly follow the views or wishes of children including teenage children but it is obliged by the Act to consider those views if they are properly held and expressed. I find that is the case here.
In the circumstances, I will make an order that the mother not be permitted to issue any application for proceedings under this Act in any court having jurisdiction under the Family Law Act without first having the leave of a judge of the Family Court of Australia.
Finally, there is the pursuit by the father but more particularly by the Independent Children’s Lawyer, for orders precluding the mother having access to various information about C.
So strong is the view of C about his mother knowing anything about him that he finds it difficult to accept that she can have access to that information. It distresses him.
It may be bizarre that a child of C’s age would adopt a position that he did not even want his mother to even know what he looked like but that is a view he holds and it is sound. I think his view needs to be respected because it will enable him to begin to settle into a normal teenager’s life and that is in his best interests.
If, as the Independent Children’s Lawyer urges, the mother does something to solve her own problems, there may be a prospect that C may be interested in her in the future. I would certainly hope that to be the case.
I note that the father has agreed to provide to the mother details of C’s progress despite the concern that C might have but I see that as a positive step because it might encourage the mother to sort out her own life with a view to endeavouring to prove to C in the future that she has changed.
I propose to discharge the order for the appointment of the Independent Children’s Lawyer but not until 21 days from now to enable these matters to be canvassed with C by the lawyer so that he has an objective understanding of what I have endeavoured to do.
I certify that the preceding Two Hundred and Fifty One (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 1 June 2009
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