Lodge & Tiller
[2022] FedCFamC1F 630
•12 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Lodge & Tiller [2022] FedCFamC1F 630
File number: MLC 9308 of 2009 Judgment of: CARTER J Date of judgment: 12 August 2022 Catchwords: FAMILY LAW – CHILD – undefended hearing – relocation – interim order – where the father seeks to proceed with his interim application for sole parental responsibility and to relocate on an undefended basis –interstate relocation – mother’s mental health – where the child exhibits challenging behaviours – child’s best interests – parental capacity to care for the child – where the father’s application is allowed – where an order pursuant to s 102NA(1)(c)(iv) was discharged – where the mother declined to participate in proceedings – orders made. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZX, 102NA Cases cited: A & A: Relocation Approach [2000] FamCA 751
AMS v AIF [1999] HCA 26
KB & TC [2005] FamCA 458
Morgan & Miles [2007] FamCA 1230
Taylor v Barker [2007] FamCA 1246
U v U [2002] HCA 36
Division: Division 1 First Instance Number of paragraphs: 145 Date of last submissions: 12 August 2022 Date of hearing: 1 – 2 August 2022
10 – 12 August 2022Place: Melbourne Counsel for the Applicant: Andrew Combes Solicitor for the Applicant: Wightons Lawyers The Respondent: Litigant in person (did not participate) Counsel for the Independent Children's Lawyer: Sarah Mansfield Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 9308 of 2009 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LODGE
Applicant
AND: MS TILLER
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
CARTER J
DATE OF ORDER:
12 AUGUST 2022
Amended pursuant to rule 10.13(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 19 August 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Parenting Orders
1.The Father have sole parental responsibility for the child X born in 2008.
2.The Father shall notify the mother in writing by text or email of any major decisions made by him in exercise of his parental responsibility within 24 hours of exercising such responsibility.
3.X live with the father.
4.The Father be at liberty to relocate with X to Brisbane region, Queensland.
5.The Mother be and is hereby restrained from initiating any communication directly with X or doing so through a third party, including her daughter Y.
6.Y be at liberty to communicate with X each Monday between 7.00pm and 8.00pm (Queensland time) with the mother to facilitate such communication and the mother to provide privacy to the children during such communications.
7.Upon X relocating to the Brisbane region, and no later than 45 days from the date of such a move, the Father shall attend upon a general practitioner to discuss and where appropriate obtain a mental health Care Plan or other referral to a suitable child and adolescent mental health practitioner or service and thereafter make an appointment for the child, and the Father shall follow all reasonable directions as to X’s treatment.
8.The Father shall be permitted to provide to X’s treating mental health practitioner or service, a copy of these Orders and the judgment of Her Honour Justice Carter that accompanies them.
9.Each parent keep the other advised as to their residential address, landline and mobile telephone numbers, Skype and email addresses, and notify the other of any change to such details within 24 hours of such change.
10.Both parents be permitted to receive, at their respective expense, copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent including access to any online portal.
11.The Father advise the mother as soon as practicable by email, text message, or in the case of an emergency by telephone, upon becoming aware of:
(a)any significant injury or illness affecting X;
(b)any hospital admissions by X.
12.The Father shall provide a copy of these orders to any school at which X is enrolled and attends and to his treating medical and allied health practitioners.
13.Order 8 of the Orders of 2 June 2016 remain in full force and effect.
THE COURT FURTHER ORDERS THAT:
14.The Independent Children’s Lawyer shall meet with X to explain these Orders.
Section 68P
15.Pursuant to section 68P of the Family Law Act 1975, where there is any inconsistency between these Orders and any Intervention Order presently in force for the benefit of the Respondent Mother or any of the children, the Family Law Orders shall take precedence over the Intervention Order.
Final Hearing
16.The proceedings be adjourned for final hearing on 19 January 2023 at 10.00am (with an estimated hearing time of 2 days) by way of Microsoft Teams.
17.The Father file and serve any updated affidavit upon which he seeks to rely, setting out the events that have occurred since the filing of the previous trial affidavit only, including from any treating professional, by no later than 5 January 2023.
18.The Mother file and serve any updated affidavit upon which she seeks to rely, setting out the events that have occurred since the filing of the previous trial affidavit only, including from any treating professional, by no later than 12 January 2023.
Subpoena documents
19.By no later than 19 August 2022, the Mother return the USB stick containing the Organisation B subpoenaed documents to the solicitor for the Applicant’s office.
Liberty to produce
20.The parties are at liberty to produce a copy of
mythe reasons for judgment delivered this day for use in the proceedings in the Magistrates Court or County Court of Victoria with respect to any family violence proceedings initiated/defended or appealed by the Father or by the Mother.21.These reasons be transcribed and provided to the parties.
Filing and Service
22.The Father serve a copy of these orders on the Mother by email this day.
23.No party file any further material other than as provided by these orders without leave of the Court.
Liberty to proceed undefended
24.In the event either party fails to file in accordance with these orders or fails to attend court at the final hearing, the complying part is at liberty to seek to proceed on an undefended basis.
Costs
25.The Father’s costs of these proceedings be reserved.
AND THE COURT NOTES THAT:
A.All parties have already filed their trial material in this matter.
B.Pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court may vary or set aside a judgment or order made in the absence of a party.
C.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, 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 the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lodge & Tiller is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REVISED FROM TRANSCRIPTJUSTICE CARTER
Introduction
This matter relates to the parties’ one child X born in 2008. The parties have been engaged in litigation regarding X’s care on and off since he was about 11 months old. He is now 13. There were proceedings in October 2009 to March 2011, further proceedings in June 2015 to June 2016, a third round of proceedings that commenced in June 2017 and concluded in January 2018. This further round of proceedings commenced on 2 March 2021 with a trial that commenced on 8 December 2021 before me in Division 2, and concluded on 10 December 2021.
Whilst judgment was reserved, further incidents occurred, with the mother ultimately asserting X continued to engage in abuse and disruptive behaviour, such that she no longer wanted to have him in her home. He has lived with the father and spent no time with the mother since around 5 January this year. The father now wishes to relocate with X to Queensland. I understand that relocation is opposed by the mother.
The mother has not attended court this day. She is currently in the middle of being cross-examined, which was due to conclude this morning. I have still to hear the evidence from the Department of Families, Fairness and Housing (“Department”) worker and the Court Child Expert.
The father seeks today to proceed on an undefended basis and made an oral application that he be permitted to relocate to Brisbane with X. To understand that application, I must outline how this hearing has progressed.
Application to proceed undefended
This matter was transferred to Division 1 of this court and originally listed before me in May 2022. The matter was adjourned at that stage to enable the mother to obtain legal representation pursuant to orders made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”). At that time, there were Intervention Order proceedings on foot with the mother as the applicant and the father as the respondent. At that time and in those circumstances, it appeared appropriate to make an order pursuant to s 102NA of the Act. I note that at the hearing that commenced in December 2021 in Division 2 of this court, the mother was also represented pursuant to a s 102NA order.
The hearing before me in Division 1 of this court was then adjourned to commence on 1 August 2022, to be conducted in person at the Melbourne Registry. On that day, the mother appeared at court, unrepresented.
At the outset, the mother sought that the matter be adjourned on a number of bases, including that X be properly assessed by a paediatrician. She said it was premature for the court to proceed to determine the care arrangements for X without a proper and completed assessment as to his physical functioning and mental health. Further, she said she was unable to articulate the orders that she sought as it was unclear as to what X’s health situation was.
The mother also said she had been unable to obtain legal representation. Notably, she had declined the assistance that she was offered under the Commonwealth Family Violence and Cross-Examination of Parties Scheme. The mother said she did so as she was told that the funding extended to her would not include funding any other witnesses being called other than herself. That meant she would not be able to call her psychologist or her psychotherapist or counsellors amongst her other witnesses. She said that in those circumstances it was not appropriate that she be represented with a grant of aid pursuant to s 102NA of the Act. She said that, despite making considerable efforts to secure independent or other legal representation, she was unable to do so, either privately or through legal aid.
The mother also said she needed an adjournment as she had not been able to make care arrangements for her younger child Y, whom she had brought with her to the court building. Y is not the father’s child and is not the subject of these proceedings. The mother said she had no family or friends upon whom she could rely to assist her. She said she was unable to use the out of hours school care at Y ’s school as she said she had lodged a formal complaint against the service as a result of, allegedly, one of the supervisors not attending appropriately to Y when she was in their care and was injured. Accordingly, she said she had been barred from using the service.
The mother’s application for an adjournment was dismissed. As outlined, the parties have been engaged in litigation across much of X’s life, and this does need to come to an end. It also appeared to me that the mother’s decision to decline the use of legal representation could not properly provide an appropriate reason to grant her a further adjournment. Additionally, it did not appear that granting an adjournment would likely result in the mother being able to obtain private representation, given the number of firms she had already approached, and who had not been prepared to act on her behalf.
In order to accommodate the mother’s responsibilities to provide care for Y, the hearing was moved to Microsoft Teams. That enabled the mother to return home and conduct proceedings from there, which would also enable her to manage caring for Y outside of school hours. The mother informed the Court that if the matter was conducted in that manner, she would be able to participate.
Additionally, on 1 August 2022, I discharged the orders that were made on 2 May 2022, pursuant to the discretionary limb of s 102NA(1)(c)(iv) of the Act. As I said, at the time that order was made, there was an interim Intervention Order on foot between the parties that had not yet been heard and determined. The mother was described as a protected family member and the father as the respondent. However, that application was heard and dismissed by the Magistrates’ Court on mid 2022. It does not appear to be in dispute that the order was refused prior to the father giving his evidence. That is, the Magistrate was not satisfied on the mother’s evidence that there was a basis for the making of an Intervention Order, and the father was not required to give any evidence at hearing.
The mother has appealed that decision and that hearing de novo will commence in the County Court later this year. However, there is no Intervention Order currently in place. Given that the mother declined to pursue representation pursuant to the orders made on 2 May 2022, and in light of the dismissal of the mother’s application for an Intervention Order, it seemed to me appropriate to discharge the order. That thereby enabled the mother to cross-examine the father and to test his evidence, which otherwise would have been prevented. I understood that the mother did not object to that course being adopted.
The parties also agreed at the outset that the court could - and should - admit the transcript of the proceedings that had occurred on 8, 9 and 10 December 2021, pursuant to s69ZX(3) of the Act. An order was made to that effect.
The matter then proceeded by Microsoft Teams, commencing on the afternoon of 1 August 2022, after the mother had returned back home. I gave the mother information regarding how the trial would proceed, and counsel for the applicant opened his case. Helpfully, counsel for the Independent Children’s Lawyer was prepared to cross-examine the father before the mother was required to do so, which assisted both the court and the mother. Counsel for the Independent Children’s Lawyer then completed her cross-examination of the father that afternoon. The mother was reminded to prepare her questions to ask the father by way of cross-examination to commence at 10.00 am on 2 August 2022, again by Microsoft Teams.
The mother did not attend court, either in person or by Microsoft Teams, on 2 August 2022. At 5.07 am, the parties received the following email from the mother, which was subsequently forwarded to my chambers:
Dear Parties,
At 8:17 PM last night the ambulance ordered a taxi to take me into [Hospital C]. I have have been in hospital most of the night and have just arrived home.
I am being referred through to [Organisation B] Mental Health Services tomorrow.
After hearing of my son's distress at his new school and hearing that most of his conversations with [Ms A] and [Mr Lodge] are about Court Issues, I had an extreme stress reaction. Most likely exacerbated by my lack of legal assistance and lack of child care services for my daughter.
I do not feel SAFE cross-examining [Mr Lodge] tomorrow and have not slept all night. I will be attending to my mental health tomorrow, and prioritising my self care.
Kind regards,
[Ms Tiller]
(As per the original)
The matter then did not proceed on 2 August 2022 in the mother’s absence. Instead, the matter was adjourned. I made an order that the matter would resume on 10 August, as well as an order requiring the mother to produce an affidavit from a medical practitioner explaining her non-attendance that day. In the event the mother did not attend court on 10 August 2022, I gave the father leave to seek to proceed on an undefended basis. In the event the trial was not able to proceed, the father was also given leave to seek interim orders that he have, amongst other things, sole parental responsibility for X, and that he be permitted to relocate with X to Queensland as soon as practicable. These matters were reflected on the orders made that day, which were subsequently served on her by the Independent Children’s Lawyer.
My orders also included that the Independent Children’s Lawyer had leave to subpoena Organisation B for the production of the mother’s medical records, in light of her having indicated she was attending there.
On 10 August 2022, the matter resumed on Microsoft Teams. The mother did attend but by telephone only. She said she had not been able to adduce evidence from a medical practitioner. I am now are that amongst the documents produced by Organisation B was included a note dated 1 August 2022. This has now been tendered before me by the father in these proceedings. That note indicated that the mother was seen by a Mr D at Organisation B some time on the evening of 1 August 2022 and was ultimately discharged from the Emergency Department, it appears, at around 4.40 am. That note records:
[Ms Tiller] reports an emotional crisis today following appearing in court. Had been in a 'fit of anger' and 'wanting to scream' so presented to the EMD for emotional support. Additional stress of her father not providing $60 so she could purchase ink cartridges for her printer at home.
Longstanding legal issues persist relating to the custody of her children.
- 9 y.o. daughter remains in her care
- 13 y.o. son which has recently been diagnosed with autism remains with her ex-partner.
Describes ex-partner to be perpetrator of family violence against her. Reports tomorrow she will be made to 'cross examine' him which she feels incapable of doing so. Denies having the support of legal aid to do so.
Describes being too emotionally vulnerable to go through with this cross examination and it will increase her suicide risk. Is fearful she may do something in response to this stress. Continues to speak of her potential to escalate in terms of her risk of suicide without any clear plan or intent.
Nil deliberate self-harm tonight.
Well-supported by psychotherapist [Ms E] and long-term Psychologist [Ms F].
[Ms Tiller] is aware that I do not feel comfortable supporting any adjournment for court proceedings based on presentation and requests for mental health support tonight. Has been directed to consider liaising with her pre-existing formal supports.
Throughout being provided the opportunity to ventilate her stressors, appeared to be able to formulate how to approach her complex social issues. [Ms Tiller] plans to:
- Avoid attending Court tomorrow and go to the beach with her daughter.
- Cease fighting for the care of her biological son due to the perceived risk of violence/aggression/verbal taunting. Allow for her 13 y.o. son to remain in the care of his biological husband
- Plans to link contact her pre-existing supports to notify them of her decision.
There is nil concerns regarding her capacity to make these decisions. Continues to feel quite powerless given current situation. Strong external locus of control.
From her actions tonight, there is evidence to suggest potential difficulty problem solving or wanting to feel supported in these decisions to avoid any associated guilt.
Impression:
- Emotional crisis, complicated by own childhood experiences and trauma of neglect/abandonment
Risks:
- Low risk of harm to self
- Low risk of harm to others
- Risk of escalating risk profile whilst comprehending her decisions in response to custody issues.
(As per the original)
In addition, there was a brief plan that suggested Organisation B would follow up with the mother after that.
On 10 August 2022, the mother also advised that she had issues with her internet, which is why she was unable to join the virtual courtroom except on her mobile telephone, without a camera. I understand there was a significant problem with the mother’s internet provider and their service in her home area at that time, and that that was not rectified until sometime later in August 2022.
After discussing the matter with the parties, it was agreed that the mother could conduct her cross-examination of the father that day as follows:
(a)the father would remain at his solicitor’s office, in a room there alone, and he remain visible to me via Microsoft Teams throughout the day.
(b)the mother remain at her home and conduct+ the cross-examination using her telephone. I was not able to see the mother as she could not join the Microsoft Teams virtual courtroom with her camera.
There were no objections taken to the matter proceeding in that way. In fact, all parties were seemingly content with the matter proceeding as I have just explained.
The mother then proceeded to cross-examine the father in the manner described throughout the day.
The matter resumed on 11 August 2022 in person at the Melbourne registry. To assist the mother, Court Child Services kindly provided care for Y for the entire day, so that the mother was able to attend court in person. She completed her cross-examination of the father in person and of his wife, who attended via Microsoft Teams.
The mother then gave an opening to her case, was sworn in and adopted her trial material.
Counsel for the father then commenced his cross-examination of her. That was not concluded by the end of the court day and the matter was adjourned part heard to today. At the conclusion of the day yesterday, the mother was provided with a hard copy of some of the documents produced by Organisation B pursuant to the subpoena, being a print out of 19 specific pages upon which counsel for the father sought to cross-examine her today. She was also provided with a USB stick containing the entirety of the Organisation B records that had been produced. Those subpoenaed documents had previously been released to the parties with the mother having provided the usual undertaking orally in court, and the other parties providing that undertaking in writing, with respect to not disseminating or providing those documents to other parties and to destroy copies or delete downloads in the usual course. I understand that the mother had been unable to view those documents because she had had some internet issues, and also because she was subject to time pressures and other pressing matters.
Again, to assist the mother, and given that the mother’s internet appeared to have been repaired, it was agreed that the hearing would then revert to Microsoft Teams today. It was to commence at 9.30 this morning to try to make up some court time that had been lost. As indicated, the mother had said she was not able to access before or after care for Y and accordingly, she said if the matter had continued in person at the Melbourne registry on 12 August, she would have had to have brought Y into court again. Court Child Services was not able to assist with providing care for Y for a second day, and at any rate, it is obvious that Y ought to be attending school rather than being cared for at a court building. As I have already said, the mother has not attended the court via Microsoft Teams at any stage today. It is now 3.30 pm.
At 7.40 am this morning, the mother sent an email to the Independent Children’s Lawyer and the father’s lawyer, asserting that she did not have a copy of the 19 page document upon which it was sought she be cross-examined. As indicated, that is not correct. It was provided to her at court. She also said she had not been able to go through all the records on the USB. She wrote, amongst other things:
What has become clear to me upon brief inspection of these records is that I will need to thoroughly read the total records before I am cross-examined on anything relating to my mental health in the Court today.
I previously requested [the ICL] subpoena my clinical psychologist, [Ms E] for this matter. I will not agree to be cross-examined on my mental health without my clinical psychologist appearing in Court.
I was only made aware on the 1 August 2022 [sic] that my [Organisation B] medical records were going to be subpoenaed. This has not given me reasonable time to subponena [sic] my clinical psychologist to appear in Court, or seek legal advice regarding this matter. I will phone Victoria legal Aid today and request to speak to a lawyer. I have been informed previously that I can access a duty lawyer at the Court for my matter.
I will phone FASS tomorrow also.
Kind regards,
[Ms Tiller]
As an aside, I note that the Independent Children’s Lawyer is not required to subpoena the mother’s treators. It is a matter for the mother as to how she conducts her case, the witnesses she wishes to call, and which documents she wishes to subpoena. The matter has been listed for final hearing since May 2022, giving the mother about three months to arrange for her psychologist to give evidence if she wanted to do so. It is not reasonable, in my view, for the mother to complain part way through a final hearing that her psychologist is not on affidavit or called to give evidence. This is particularly so when the mother’s mental health has been an issue throughout these proceedings.
At 9.15 am this morning, the mother contacted my chambers by telephone. I am informed she said she could not find the Microsoft Teams link. It was then resent to her. She also asked what time the matter was resuming and was told 9.30 am. The mother told my associate she had not been given the specific document from the voluminous subpoena material from Organisation B upon which counsel for the father said he wanted to cross-examine her. I understand she was reminded that she had been given a hard copy of those 19 pages at the conclusion of court the day before, and that she had been provided with a note accompanying the USB stick that set out the specific name of the document that was sought to be relied upon. I note she did not mention to my chambers that she was suffering poor mental health, nor did she indicate she would not be attending court this morning or today at any stage.
At 9.45 am, some 15 minutes after the matter had been due to start, and the mother was not present in the virtual courtroom, my chambers received a call from a man called Mr G at Department H, Organisation B. He advised my chambers that the mother had contacted Organisation B, and that she was quite escalated and too distressed to attend court this day.
The matter was stood down for the Independent Children’s Lawyer and the father to have some discussions about how best to progress the matter. Whilst the matter was stood down, counsel for the Independent Children’s Lawyer was able to contact Organisation B, and she and her instructor spoke with Ms J general counsel at Organisation B. I am told that Ms J informed them that the mother had not presented in person to Organisation B today but had contacted them by telephone.
Apparently, the mother had called the Emergency Department about eight times overnight and had been able to speak with someone this morning. Ms J said that the mother’s presenting issues appeared to be legal and social issues, but not mental health issues that required their intervention or treatment. She said Organisation B had no current therapeutic relationship with the mother and would not be taking the matter any further. Ms J did not indicate that there were any safety concerns for the mother this day.
At about the same time the court was informed of this conversation, the mother emailed the court and the other parties with a three page document in which inter alia the mother says the court has failed to protect the children’s rights, and that she now seeks an order for X to reside in her sole care, once she receives a three bedroom home. She also sets out in that document that she wants orders that X be linked into various services, including a clinical psychologist and family therapist.
Although the mother prepared and forwarded that email to the court, she continued to not answer her telephone. Further, she continued not to join the Microsoft Teams link when the matter was recalled shortly before midday.
The father and the Independent Children’s Lawyer now seek interim orders that include an order that the father be at liberty to relocate with X to Queensland, on an interim basis.
My chambers advised the mother in an email forwarded to her at 12.11 pm that the matter would resume at 12.30 pm this day, and that the father and the Independent Children’s Lawyer would be seeking that the interim orders be made permitting the relocation. She was informed that the matter would proceed in her absence if she did not re-join the hearing. At 12.01 pm, counsel for the Independent Children’s Lawyer had sent a similar email, attaching the minutes sought by the Independent Children’s Lawyer and the father. That email also indicated that submissions would be made at 12.30 pm and that it would be sought that the matter proceed in the mother’s absence if she did not join the link. She did not join the link.
The mother has been given every opportunity to participate in these proceedings. She is declining to do so. I note that on 2 August 2022, the mother did not attend, as I have already set out. She adduced no medical evidence to support her assertion that she was unable to attend that day as a result of her mental health or other medical issue. To the contrary, the evidence from Organisation B indicates that she wanted to avoid court and deliberately took the day off to go to the beach with her daughter to achieve this. Those health records suggest the writer was not prepared to provide a report in support of the mother’s non-attendance at court on the basis of mental health concerns. It also indicates that the mother was low risk of harm to herself and others and clearly able to make decisions.
Similarly, the information provided today from Organisation B suggests that the mother is not unable to attend as a result of any mental health crisis. I have no doubt that she is finding these proceedings extremely difficult. They are. But that is not an appropriate reason to decline to participate in, or to effectively seek to hold up the proceedings.
It is not, in my view, appropriate that the proceedings be derailed in the circumstances. The father has spent considerable sums on legal fees and both he and his wife, and most importantly X, are under considerable emotional stress and distress. It is apparent from the father’s evidence about events that occurred in mid 2022 that X continues to be deeply distressed and emotionally overwhelmed at his unhappy circumstances – which at least on their face appear to have been somewhat aggravated by the mother’s decision to seek an interim Intervention Order against X on behalf of his sister Y in mid 2022. I will return to that shortly.
X has already had to attend the Magistrates Court on at least three occasions in response to an Intervention Order that his mother sought against him in late 2020. He has now had to be personally served by police for the Intervention Order application his mother has recently sought against him. He has had to attend a lawyer and court proceedings, and the matter has been adjourned to a future date.
In all the circumstances, I am satisfied that:
(a)the mother knows the interim orders are being agitated today and she knows what interim orders are being sought;
(b)she is able to participate in the proceedings should she choose to do so; and
(c)that X’s best interests require that I hear and determine the oral interim application made by the father and strongly supported by the Independent Children’s Lawyer.
I note that once I have determined the interim application that I am about to turn shortly to, the matter will then be able to be listed and resume for a further two days on 19 January 2023.
the parties’ proposals
Turning now to the application that is before me, the father and the Independent Children’s Lawyer seek interim orders that the father have sole parental responsibility for X and that he notify the mother of any major decision made by him in the exercise of that parental responsibility within 24 hours of doing so. He also seeks orders on an interim basis that X live with him and that he be at liberty to relocate to the Brisbane region in Queensland.
There were additional orders sought including orders restraining the mother from initiating any communication directly with X, and also providing for Y to be able to communicate with X. The father also proposes that shortly after relocating to Queensland he will obtain a mental health care plan from the GP to obtain appropriate referrals to suitable practitioners and/or services in Brisbane to ensure that X is well supported at this difficult time. Other additional orders sought included that the parties keep each other up to date with their contact details, that the parties both receive school information and that the father keeps the mother informed of any emergencies involving X.
I note that at the outset of these proceedings on 1 August 2022 the mother had declined to articulate with any particularity the orders she seeks in relation to X’s care arrangements. She did outline that she opposed the relocation application, although, she is not here today to run that argument. During the running of the hearing, the mother maintained that she could not formulate any specific orders for X’s care, insisting that she needed his mental health status reviewed before she could do so and that she had a duty of care to her daughter. There was some suggestion in some material that she had a view that it was appropriate that X be placed into foster care. However, yesterday she said that she was no longer sure if that was an appropriate arrangement for X’s care in the immediate future. She did maintain that he remained at risk in his father’s care, which she says is an unsafe environment. I note that it appears she told Organisation B on 1 August 2022 that she was considering allowing X to remain in his father’s care.
During the hearing the mother was also able to articulate that she wanted orders that she have sole parental responsibility for X. She also wanted the orders injuncting her from taking X to medical and allied health appointments without the father’s consent to be discharged. As I have indicated, she also wants X to live with her but says that that cannot happen until she has a three bedroom accommodation and she does not know when that might occur. She also said that there should be family therapy before X can return to her care. At one stage, she indicated that Organisation K would be the appropriate provider of that family therapy, which she said could assist the family and would not charge a fee to do so. Notably, the mother was not able to articulate what actual living arrangements she currently proposed for X, nor was she able to articulate what orders she sought either for her time with X if he was living with the father, nor for the father’s time with X if he was living with her. Nor did she make any proposals for time between the siblings.
Background
The matter has a lengthy background. For the purposes of this interim hearing, I note that short form reasons are permitted. However, it is important to understand the context of what has gone on in this family. I will endeavour to confine my remarks to the matters that are particularly relevant to the interim application that I am now asked to determine.
The parties commenced their relationship in early 2008 when they were both engaged in treatment and counselling with Alcoholics Anonymous. They were together only for a few short months, separating in around April 2008, when the mother was in the early stages of her pregnancy. X was born in 2008.
The mother asserts that the father was violent and abusive to her both during this short relationship and in the years since. That is denied by the father.
The father initiated proceedings seeking time with X in October 2009. Final orders were made on 25 March 2011 that provided for X to spend alternate Monday evenings and each Wednesday evening with the father for a meal. Additional orders were made for X to have time with his father during the school holidays and on special occasions.
The parties were able to reach agreements to vary those orders and rearrange and increase X’s time with his father, such that by early 2013, he was spending about four nights a fortnight with the father.
In 2013, the mother gave birth to her second child, Y, to whom I have already referred. She is nine years old. I understand her father plays no real role in her life and she lives full-time with the mother.
In mid-2013, the father commenced a relationship with Ms A, to whom he is now married. It is Ms A’s family who reside in Queensland, and the relocation application is made in part to enable the father and his wife to provide care for Ms A’s elderly parents, as well as to be supported by her extended family who remain living in the area.
Shortly after the father married Ms A, the mother withheld X from spending time with him. That resulted in the father bringing further proceedings in June 2015, in which he sought that X reside with him. With the benefit of a family report, the parties were able to enter into final orders by consent on 2 June 2016, pursuant to which X remained living with his mother and spending five nights a fortnight with his father together with half of the holidays. Those detailed consent orders also included a number of restraints, including on the mother’s ability to take X to any doctor, allied health practitioner, psychologist, counsellor, counselling support service or mental health professional without the father’s express written consent or in the case of a genuine emergency. It is clear that the mother very much wishes to have that restraint discharged.
In June 2017, the mother filed an application seeking to change X’s name from Lodge to Tiller-Lodge. That application was dismissed in part, and withdrawn in part, with an order that the mother pay the father’s costs of $1560.
It is clear from the material that the mother maintains that the father subjected X and her to ongoing abuse and torment. She says that X at times has mirrored the father’s behaviour and become abusive and aggressive towards her and to his sister. She says he has also behaved in a violent way at school towards students and teachers, which she says may well reflect an undiagnosed mental health or behaviour disorder. It is clear from the evidence that I have heard and as was given in December 2021 that the mother has, on a number of occasions, called the police to assist her with managing X’s challenging behaviours.
The father, for his part, agrees that X can lash out and act inappropriately. He does not, however, characterise X as a violent perpetrator of family violence as the mother does. Rather, he sees X as a deeply troubled boy who can become and has become very overwhelmed and somewhat fragile as a result of a combination of complex factors, including a highly compromised and unstable relationship with his mother, as well as diagnosed learning and social difficulties.
There were significant disruptions to the arrangements for X beginning in early 2020. The mother asserts that the father continued to expose X to family violence from that time. There was a period when the mother retained X in her care for an extended period. There was another period where the mother said that as a result of the COVID-19 pandemic, the father was to retain the care of the child. Throughout that time, the mother also asserted that X was subjecting his sister to bullying and aggressive behaviours. As I said, the father denies all allegations that he has subjected X or the mother to any violence or abusive, controlling behaviours in any way.
In late 2020, there was an altercation between X and his sister involving what I understand now to be a butter knife. The father characterises this as a normal sibling dispute over who got the last piece of fruit toast. The mother, however, maintains that this was a violent attack by X on Y. The mother said there was then a second altercation between X and his sister in late November 2020, which led to the mother attending upon the police and providing a statement asserting that X had assaulted both his sister and his mother. The police then, on the basis of the mother’s reports, made an application for an Intervention Order against X. I should say that there is some dispute as to whether or not what the mother asserted occurred was accurately recorded by the police. That is a matter that will be determined, presumably, at a final hearing. X, in the course of that Intervention Order proceedings, was interviewed by the police. He had to attend the court on three occasions and speak with a duty lawyer. I have no doubt that this would have been an extremely distressing, confusing and upsetting period for X. The Intervention Order application was ultimately withdrawn.
X then commenced secondary school at the conclusion of the January 2021 long summer holidays.
The father commenced these proceedings on 21 March 2021, seeking an equal time arrangement be put in place for X.
The parties continued to have disagreements regarding X over 2021, including disputes regarding appropriate medical treatment and whether or not the father was providing safe and appropriate care.
Notably in around April 2021, the mother appeared to suffer what she described as a severe deterioration in her mental health. There was a time when she did not collect X from school and appeared to be prepared to relinquish X into the father’s care. On the morning of 27 April 2021 she sent an email to the father saying she could not manage X and proposed that the father retain him in his care until about 10 May 2021. Just four hours later, the mother appeared to have rescinded that proposal and said she would indeed collect X from school. No doubt, that change in the mother’s proposal would have been confusing and upsetting to X.
The matter returned to this court on 21 July 2021. I made orders that day for X to live on a week about basis with each of his parents. The parties were ordered to undergo a psychiatric assessment. The matter was listed for final hearing to commence before me on 19 October 2021 and a family report was to be prepared shortly prior to the final hearing.
The parties then implemented the week about arrangement. However, the mother says there were further violent and dangerous incidents involving X, and by the end of August 2021 the mother determined she could only have X for day time visits.
The mother says that X was in a very poor mental health state and threatened self-harm on 3 August 2021. She asserts that on 7 August 2021 he assaulted his sister, punching her in the arm twice, leaving a welt, and subjected her to verbal and emotional abuse. In an email to the father dated 13 August 2021, the mother said X’s behaviour was disruptive at school and “escalating again towards his sister”. The mother contacted a number of support services, as she has done on multiple occasions throughout these proceedings. A notification was also made to Child Protection. The mother sought the father’s agreement for X to be referred to a psychologist.
The mother filed a further Notice of Child Abuse, Family Violence or Risk on 16 August 2021. In that she outlined her concerns including that X, she says, had assaulted his sister. The mother appears to suggest that X’s behaviour in this regard was as a result of him having increased time in his father’s care and her belief that he was being exposed to family violence whilst in the father’s home.
On around 21 August 2021, the mother said that X was again verbally and physically abusive towards Y. In an email she wrote to the father on 23 August 2021 she described X as also being obstructive and defiant if she tried to remove his mobile phone from him, of assaulting his sister, damaging property and verbally abusing the mother and his sister. The mother again contacted the police and Organisation L regarding X’s behaviour.
The father said that X was not behaving particularly poorly or aggressively in his care at that time. The father says that it has been and continues to be his practice to implement consistent routines, and that he maintains clear and consistent boundaries in his home regarding routines and the usage of devices.
I understand that the father spoke with the school at this time, and indeed, has spoken to them on many occasions. The school did not share the mother’s significant concerns about X being violent or aggressive. The school did identify that X was struggling in the classroom, and offered separate meetings and a joint meeting with the parents to occur on 27 August 2021, to discuss whether X required any form of assessment. In those circumstances, the father did not agree to X being referred for mental health treatment. However he did arrange for X to commence additional tuition, as recommended by the school.
On 24 August 2021, the mother sent the father and the legal practitioners an email in which she said that there needed to be a safety plan immediately created to keep Y safe. In that email, the mother said that X could not return to her home on 20 August 2021 unless the plan was finalised and signed by each parent prior to his return. She wrote “it is important that a plan be created immediately to keep [Y] safe from being exposed to family violence...I have a duty of care to my eight year old daughter to make sure she is protected from family violence”.
In another email also dated 24 August 2021, sent by the mother to her lawyer, the mother wrote that X was subjecting Y to very unpleasant insults and physical aggression. In that email, she said she did not believe it was in Y’s best interests for X to spend overnight time in her care, given the father had not committed to the safety plan. She said that time would have to be during the day time only.
On 25 August 2021, the mother sent the father another email in which she said that X “is not able to return to my care on Monday 30 August 2021, due to family violence, where [X] is subjecting [Y] to harm… [X] is currently unable to stay in my home overnight until he seeks mental health assistance, and I have been allocated a three bedroom home” She nominated that she have day time contact only on weekends with X.
I understand an agreement was then reached that X would primarily live with the father and spend only daytime visits in accordance with the mother’s proposals.
Notwithstanding that the parties reached an agreement, it appears that X was very upset and distressed that he was not spending overnight time in his mother’s care and somewhat confused about the reasons for that.
X did spend some time with his mother in early September but that was not without incident. The mother then proposed that her time with X be further reduced.
Child Protection provided a report to the Court on 6 September 2021. At that time, they had interviewed the parties and X and they recommended that X be placed in the care of the father and that court orders be varied to reflect that.
Time occurred between the mother and X on 18 and 19 September 2021. Those visits proceeded well.
On 28 September 2021, the matter returned to court again. Orders were made by consent at that time for X to live with the father and spend time with the mother during the day, on alternate Saturdays and Sundays from 10.00 am to 6.00 pm. Orders were made for the father to obtain a mental health care plan for X and a paediatric assessment, and to engage with such medical or psychological services as might be recommended. The trial date was adjourned from 19 October to 8 December 2021 to enable these matters to be undertaken.
It is common ground that X struggled with those reduced time arrangements as he wanted to spend overnight time at that stage with his mother and sister. However, at that time, the mother had quite clearly indicated that while she missed X, she was not able to accommodate him overnight. X then absconded from his father’s home and went to the mother’s house and stayed there for a few nights. This happened on a few occasions in late 2021. The mother asserts that this is because he was being abused in the father’s household. The father denies that and said it was in response to the father having put in boundaries about schoolwork, or challenging X in relation to poor behaviour. There is some suggestion that the mother may have been providing X with somewhat mixed messages about his care arrangements at that time. For instance, there is a suggestion that X perhaps had wrongly formed the view that it was the father who was attempting to limit his time with his mother, rather than the mother being the one who was indicating she was not able to manage him in her household overnight or for extended periods.
Clearly feeling distressed and upset, X did exhibit some angry and aggressive behaviour in the father’s care on about 25 October 2021. The father says that was when he sought to confront X about an incident at school for which he got into trouble. X was not happy. He damaged property and threw his phone at the father. The father then agreed for X to go to his mother’s home, as that is what X wanted to do at that stage, although – and I am not quite sure why – the father did not communicate that with the mother before delivering X into the mother’s care. At that time, the parties agreed to re-implement a week about arrangement.
At trial in December 2021, my recollection is that the mother had said that that arrangement was working reasonably well. However, it is quite clear that X, according to the mother at least, continued to be disruptive at school. Additionally, she deposed to ongoing incidents of problematic behaviour demonstrated by X whilst in her care.
The parties received a report from Dr M on 23 November 2021 in which it was identified that X has Medical Condition N. The report outlined a number of strategies and supports that needed to be implemented at home and at school to assist him. Dr M opined that supporting X to manage his learning disorder may result in an improvement in his behaviour and he recommended that X continue with his counsellor and be assessed by a paediatrician.
The father subsequently obtained a referral for X to attend upon a paediatrician and there is some movement about that with Dr O having been engaged. I also understand that the father has arranged for X to commence specialised therapy, with which X has generally continued to engage. The mother is dissatisfied with the information that the father has provided to Dr M, and is unhappy she has been largely excluded from Dr M’s assessment.
The matter ran for three days before me in December 2021 in Division 2 of this court. I reserved my decision at the conclusion of the hearing.
Whilst that decision was reserved, the shared care arrangement that the parties had indicated they would implement rapidly broke down. The mother asserted in late December 2021 that X’s behaviour had again deteriorated, to the extent that she once again involved the police and Child Protection. X was returned to the father’s care on 5 January 2022 or thereabouts and has remained in the father’s care since that time.
The parties and X were then interviewed by Child Protection in early 2022. The mother’s allegations at that time were that:
(d)the father was blocking her attempts to arrange appropriate interventions for X;
(e)Y is hypervigilant and was very fearful and frightened of X, and scared that he would hurt her;
(f)X needed to take accountability for his violent behaviours;
(g)X had been subjecting his dog to sexual acts;
(h)X had been aggressive and oppositional whilst in her home, and that she did not want X to return to her home until he received appropriate assessment and treatments; and
(i)the father was attempting to alienate X from her.
X was interviewed by Child Protection on 19 January 2022, and the details of that interview are set out in the Department response dated 18 March 2022. That records as follows:
On 19/01/2022, [X] was interviewed by Child Protection. [X] presented as a withdrawn child. [X] advised Child Protection that [Ms Tiller’s] house is a hard place to live, that [Ms Tiller] makes up lies about him, that [Ms Tiller] repeatedly rings the police on him, and that he believes her mental health to be bad. [X] advised that in a recent incident, he had an argument with [Y] and [Y] was hitting him and he pushed her away, and [Ms Tiller] called the police on him.
[X] showed Child Protection SMS sent between himself and [Ms Tiller] regarding [Ms Tiller] withholding $50 [X] was gifted by his maternal grandfather for Christmas. In these messages, [Ms Tiller] asks if [X] is taking his medication […] at [Mr Lodge’s] house. When [X] advises that he is, [Ms Tiller] responds that she is punishing [X] for not taking the medication at her house by keeping the $50. [X] responds to [Ms Tiller] that she has lost his trust and he is blocking her on his phone, to which [Ms Tiller] responds that he is entitled to do as he likes.
[X] denied touching the dog's penis or trying to put something in the dog's bottom, though acknowledged when he was around 8 or 9 years old he touched the dog’s penis once and [Y] was there also and did the same thing.
[X] indicated that he wants to remain living with his father [Mr Lodge] and doesn't want to see [Ms Tiller] again. [X] indicated that he wants to move to Brisbane, where [Ms A’s] family live, in order to get away from [Ms Tiller]. [X] advised Child Protection that he didn’t think [Ms Tiller] would care about him not wanting to come back to her house because she had told him in the past she didn’t want him living with her and he felt she meant it.
On 10/03/2022, Child Protection interviewed [X] again. [X] presented as withdrawn, making minimal eye contact and facing away during the interview. [X] was not expressive or expansive in his responses to Child Protection, but did advise that he didn’t want contact with [Ms Tiller], was open to contact with [Y], that he continues to miss his dog […], that he is enjoying having a new dog […], and that he prefers his new school to his previous one because it is more sporty. [X] advised Child Protection that he has not been aggressive towards [Y], but acknowledged there were instances when they argued and he pushed her, stating “because we are brother and sister”. [X] continued to deny being sexually inappropriate with the dog and advised Child Protection that [Ms Tiller] tells lies about him and that she had also lied to him about [Mr Lodge] being abusive. [X] advised Child Protection that [Ms Tiller] has been aggressive towards him in the past, yelling at him for drinking some of her apple juice then chasing him in the house, putting him in a headlock and pulling his hair. [X] again advised that he wants to move to Brisbane with [Mr Lodge and Ms A].
Child Protection wrote that they hold significant concerns about the emotional harm caused to X by ongoing exposure to the conflict with his mother, her rejection of him, the frequent litigation and the mother frequently calling the police on X. They concluded that the mother appeared to be responsible for causing X emotional harm and it was recommended that X remained living with the father, who they assessed as a protective parent. They wrote:
Child Protection are concerned that [Ms Tiller’s] rigid and problem saturated view of [X] will be internalised by [X], and impact the already tumultuous start to his adolescence. It is essential for [X’s] adolescence and his healthy development into adulthood that he be provided with stability and safety in his living arrangements.
The mother does not accept the reports made by Child Protection nor their observations or conclusions. Indeed, she regards the reports as seriously deficient. Arrangements had been made for the mother to be able to cross-examine the report writer this day. That would have occurred had the trial proceeded. Accordingly, the Court does not have the benefit, at this stage, of that evidence having been tested. In my view, and notwithstanding having read the mother’s voluminous complaints about the report and report writer, there does not appear to be any obvious reason for the Court to reject that report at an interim hearing.
Orders were made on 14 February 2022 suspending the mother’s time and communication with X. Orders were then made on 28 March 2022 providing that, amongst other things, X was at liberty to communicate with the mother or his sister at his discretion, with the father to provide him with a mobile telephone to do so. My understanding is that he did do that. I note that there was no restraint on Y contacting or initiating contact with X despite the mother repeatedly saying so during these proceedings.
On 17 May 2022, the mother indicated she would not proceed with the funding application under the Commonwealth Family Violence and Cross-Examination of Parties Scheme to which I have already referred.
The parties then attended a local Magistrates’ Court in mid 2022 for the hearing of the mother’s application for an Intervention Order against the father. At the conclusion of the mother’s evidence, the Magistrate said he did not require evidence from the father, and dismissed the mother’s application. He was not satisfied that the father had committed acts of family violence.
On 1 June 2022, the mother filed an appeal against the Magistrates’ decision to strike out her Intervention Order application. That is yet to be heard.
On 8 June 2022, very shortly after her application for an Intervention Order against the father was dismissed by the Magistrates’ Court, the mother filed a fresh Intervention Order application, this time on behalf of Y, seeking an order against X. It is somewhat difficult to understand why that application was brought, in circumstances where there was no time occurring between the siblings and given that the mother had previously sought that the siblings spend time together. I accept that being personally served with an application by the police, then having to attend upon a solicitor and then at court in relation to that application would be deeply distressing, confusing and hurtful for X.
I have already set out what procedurally has occurred since that time.
It is notable that on 19 July 2022 X’s behaviour at the father’s home was quite out of control. He kicked holes in the walls and was unable to be sufficiently calmed by the father such that the father, for the first time, called the police to attend to assist him. The father said X was reasonably responsive to the police, who spoke with him and told him his behaviour was not acceptable. X did then go to school, but I understand from the father that he remains somewhat angry with his father, for at least that day.
It is regrettable that the father did not advise the court of this incident at the outset of the hearing. It was only revealed after Child Protection provided the Independent Children’s Lawyer with an update of their involvement. That incident makes it plain that X continues to be a troubled and burdened young man, often overwhelmed and confused by his circumstances.
The relevant legal principles
I note that the father’s application today for interim orders includes an application to be permitted to relocate with X to Brisbane. Relocation cases are not a separate category of parenting cases and I am required to apply the law and determine what orders should be made having X’s best interests as the paramount consideration. I can also have regard to the rights of parents including their rights to determine where they wish to live.
There are many relocations cases. From authorities including: AMS v AIF [1999] HCA 26); A & A: Relocation Approach [2000] FamCA 751; U v U [2002] HCA 36; Taylor v Barker [2007] FamCA 1246; KB & TC [2005] FamCA 458; and Morgan & Miles [2007] FamCA 1230, the following propositions can be distilled:
(a)the best interests of the children are the paramount, but not the sole consideration;
(b)the person seeking to move does not need to provide compelling reasons for the relocation sought;
(c)the court must evaluate the competing proposals, giving consideration to how each proposal will provide advantages and disadvantages for the children’s best interests;
(d)the question of whether there should be a relocation cannot be treated as a separate or discrete issue to that of the question of residence;
(e)neither party bears an onus to establish that an order permitting or restraining relocation is in the children’s best interests; and
(f)the Court must weigh the competing proposals and consider all the relevant factors, including the right of freedom of movement of the parent who wishes to relocate.
This is an interim hearing and accordingly, findings of fact cannot be made where matters are in dispute. However, if serious issues are plausibly raised, that does not mean they can be safely ignored.
I note that the authorities also indicate that it is generally highly desirable that relocation matters should not ordinarily be determined at an abridged interim hearing. I am, however, in a somewhat unusual position, having heard the parties’ and Ms A give extensive evidence in December 2021 and again, having had the opportunity to hear the father’s evidence in its entirety in these proceedings and the mother’s evidence in part. I have not, of course, heard from Child Protection, nor from the Court Child Expert who prepared the most recent Specific Issues Report.
Another unusual factor in this case is that the mother is not currently having time with X. I understand from her comments during these proceedings that she regards that as not being a result of her doing in any way. Despite that view, she does not provide any indications to what orders she might now seek for X’s time with her, beyond saying that they should engage in family therapy. As indicated previously, she has recently proposed that X ought be placed in foster care – although she yesterday said she did not know now whether that was appropriate. She does not say she is currently in a position for X to live with her, or even stay with her overnight in her current housing. That is, the mother opposes a relocation to Brisbane in circumstances where she is not putting herself forward as person with whom X can spend any time for an undefined and unknown period.
Pursuant to s60CA of the Act, the court must consider the best interests of X as the paramount consideration when I am making parenting orders. The multiple considerations that I have to take into account in determining X’s best interests are set out in sections 60CC(2) and (3) of the Act. As noted, however, this an interim hearing and despite how long these reasons have already been, short form reasons are permissible. I am not required to go through each and every consideration where the matter really turns on only a handful of those considerations.
Parental responsibility
It is notable that neither party seeks an order for shared parental responsibility – it apparently being common ground that the parties are unable to appropriately negotiate and liaise in relation to X’s long-term needs. Each of them proposes that they have sole parental responsibility.
It is abundantly clear that the parties do not have a sufficiently developed co-parenting relationship that would allow the parties to engage in constructive and respectful communication regarding X. There is no trust. There is no meaningful communication and there is no evidence that I could rely on to suggest that the parties could genuinely liaise with one another to reach agreements regarding X’s long-term wellbeing. Indeed, the parties have frequently disagreed in relation to appropriate interventions and treatment for X.
Decisions do need to be made for X in the circumstances it is overwhelming clear that his best interests would be met by one parent having sole parental responsibility, at least on an interim basis.
The primary considerations
Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
(a)the benefit to X of having a meaningful relationship with both of his parents; and
(b)the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect X from harm.
Meaningful relationship
The legislation does not provide a definition for the word “meaningful”. The case law demonstrates that what the court is striving to achieve is a relationship that is important, significant and of consequence to a child.
In terms of a meaningful relationship, it seems that X currently has a meaningful relationship with his father.
It is not currently clear at this interim stage, that X will benefit from having, or that he is even able to have, at this time, a meaningful relationship with his mother. It is a fraught and fractured relationship, for which the mother seemingly takes little responsibility.
Risk issues
As already outlined, it is the mother’s case that the father’s poor parenting exposes X to risks including exposure to violence, lack of proper supervision, and ongoing failure to manage medical and mental health issues. Conversely, the father says that the mother provides a risk to X’s mental and emotional health for the reasons that I have already outlined. That is supported by the as yet untested Department response.
I note that Child Protection have been engaged multiple times with this family and have never assessed the father as causing harm to X.
In an earlier Department response dated 6 September 2021, it is poignantly recorded that:
[X] discussed not wanting his parents to fight anymore and he was feeling like he was stuck in the middle and that he feels that [Y] will tell [Ms Tiller] that [X] has hurt her, to ensure that he was in trouble, and that [Ms Tiller] will never listen to him when this occurs.
It was observed that [X] had a strong understanding of Family Law Court matters and arrangements and when discussing this he became more withdrawn.
The Child Protection investigations have not only not found that the father has presented a risk to the child, but they have also not revealed any evidence from any other professional, including X’s teachers, to corroborate the mother’s views that the father is subjecting either her or X to abuse.
As I have noted, the mother is highly critical of the Department responses in these proceedings. She does not accept them and as I said, regards them as highly deficient. As I have further noted, she did not attend today to take up the opportunity to cross-examine the Child Protection worker.
I also note that despite the mother having sought Intervention Orders against the father on a number of occasions, there have been no interim orders made and no final orders made.
There is also no evidence that the father has ever been interviewed or charged by the police in relation to alleged acts of family violence perpetrated by him either on the mother or X.
On the incomplete and partially untested evidence as it currently stands before me, I am not of the view that X is at risk in the father’s care. Conversely, I do have significant concerns about the mother’s ability to provide safe, stable, predictable and reliable care giving for X.
Additional considerations
In terms of the additional considerations, there are really only a few that I can meaningfully engage with at this stage of the proceedings.
In terms of X’s views, it is abundantly clear that he has expressed different views at different times. He has also, on occasion, absconded from his father’s care or from school or from other activities to the mother’s home. I understand that on some occasions he has said he would like to move to Brisbane. I understand that at other times he has expressed a view that he would like to remain in Victoria and connected to friends here. That his views oscillates is not surprising given the history that I have already outlined.
It does not appear that X currently wishes to have a relationship with his mother but again, that might be something that changes in due course. I understand he would very much like to have a relationship with his sister but that is not occurring at the moment.
In terms of X’s relationship with each of his parents and other significant persons in his life, on the evidence that I currently have before me, I am sufficiently satisfied that X has a good and secure relationship with his father. It is not perfect. It is not without its problems. But it is a secure and reliable relationship for X.
Conversely, X’s relationship with his mother appears fractured and somewhat problematic.
I accept that X loves his sister, and he would like to see her. The difficulty is that Y not subject to these proceedings. She lives with the mother, and it is difficult to see how orders can be framed to ensure that the sibling relationship is appropriately supported. That is particularly so in circumstances where the mother has sought a limited Intervention Order against X on behalf of Y and in circumstances where the mother acknowledged that she has destroyed Y’s SIM card in her phone, thereby depriving X of the ability to directly communicate with his sister and her with him.
Currently, X is not seeing or communicating with his mother. There is no proposal in any meaningful sense by the mother before me to change that at this time. I do note that the mother wanted to engage X in family therapy. That is not something that I would impose on X at this stage. Firstly, the mother is not here to pursue that application. But more importantly it is something that really needs to be considered after the Court Child Expert has given evidence.
I appreciate that if I allow the relocation, that means X will be physically at a significant distance from his mother and his sister. He has already separated from them in one sense, in that he is not speaking to or spending time with them at all. Relocation would see X move to another school. He only commenced at his current school this year. It could, potentially, be really quite disruptive for him to move from his second high school to a third, new high school in Queensland. He would be required to leave the community he knows. He would be required to leave behind the friends that he has made. He would be required to make new friends in an unfamiliar environment and that may be very difficult for him to manage given all the issues that he faces.
However, I am also satisfied that the father and his wife are sufficiently attuned and child focused, that they will do all they can to support X in the event that they are permitted to relocate.
In relation to the balance of the considerations there is much in dispute and no doubt findings will be made in due course when all of the evidence has been completed. That includes concluded findings regarding the capacity of the parties to meet X’s needs and concluded findings regarding the allegations of family violence. It does seem to me, at this interim hearing, that the father seems well able to meet X’s needs and that he is doing so sufficiently. He also appears to be well-supported by his wife.
The advantages and disadvantages for X
The benefits to X, if he is permitted to relocate, include that he would be living with his father and his stepmother in an environment in which they want to live. They will be supported by Ms A’s extended family. X will have the potentially significant benefit of being able to ‘start afresh’, away from the negative memories he has, it seems, formed around his current home area. He may feel relieved. He may feel less pressure being physically further away from the conflict and distresses that he has endured to date.
There are obviously clear disadvantages upon which I have already touched. X will have to change schools, make new friends, and find himself in a new community. He has already endured significant changes and interruptions to his school and home life. He is somewhat fragile, and his ability to manage more changes is not yet known. If he is then returned to Melbourne following a final hearing, he will endure more changes and disruptions.
It is plain that it will be more difficult for X to rekindle a relationship with his mother and his sister if he moves a physical distance from them. However, as already observed, I am reasonably satisfied that the father and Ms A will do all they can to manage and assist X, to make sure that he feels loved and supported and that they will ensure that he receives all the professional assistance that can be engaged. I am also reasonably satisfied that the father will support X to have a relationship with his sister and his mother if X expresses a view that he wishes to pursue that.
Orders to be made
I have already indicated that it is in X’s best interests that one parent has sole parental responsibility. In circumstances where X is living with his father and there is no serious challenge to that, at least for the foreseeable future by the mother, it is appropriate that the father have sole parental responsibility for X. I am satisfied that the father is better placed than the mother to take on those responsibilities given the current arrangements that are in place.
I have no doubt that the mother loves X very much and I am sure that he also loves her. But currently, it does seem to me, that when balancing the myriad of considerations and taking into account the advantages and disadvantages of the proposed relocation, I am satisfied that on an interim basis, it is in X’s best interest that he be permitted to live with his father and relocate to Queensland.
I note that the father’s orders that he seeks today include an order restraining the mother from initiating any contact or communication with X. It does seem to me that that is an appropriate restraint to make. In circumstances where the mother appears to be somewhat unpredictable and inconsistent, and when there is still a significant question raised by the mother herself as to her mental health and functioning, it does seem appropriate that X be protected from being contacted by his mother at this stage. Accordingly, I will make the restraint that is sought by the father and the Independent Children’s Lawyer in that regard.
The father, very sensibly, also proposes orders that permit Y and X to communicate with each other at a set time each Monday. Whether the mother complies with that order is yet to be seen, but it is much to the father’s credit that he is trying to find ways to facilitate and support that sibling relationship and accordingly I will make that order.
Again, sensibly, the father is indicated that within 45 days of relocating to Brisbane, he will ensure that he obtains a mental health care plan for X and that he will then ensure that he engages in appropriate supports for X in Queensland. How the father acts upon that, the Court should be told at the resumption of the final hearing early next year.
It is also appropriate that any treators of X have a copy of these orders and these reasons for judgment which I will also transcribe. In terms of there being any inconsistency, I will make the declaration in relation to Intervention Orders, but I have already indicated there may be some issues with that because, I think, those sections refer to inconsistencies with existing orders rather than prospective intervention orders.
I make the other orders sought regarding the parties keeping each other informed of their contact details, the father informing the mother of any emergencies involving X and permission for both parties to receive schooling information. I am not going to make the order that had been drafted about the provision of the documents to the Magistrates’ Court, but I will make my usual order about that.
To ensure X understands why these orders were made, so that he does not blame either of his parents and so that any questions that he may have can be answered in an age-appropriate manner, I am most grateful to the Independent Children’s Lawyer for agreeing to explain these orders to X.
I also remake Order 8 of the orders of 2 June 2016. That order was previously made by consent. It should remain in full force and effect. There have been ongoing disputes about the appropriate treatment for X. The father is having sole parental responsibility and, in the circumstances, it would be utterly confusing for X to be taken by his parents to different treators and have different courses of medication and treatment sought for him.
For all of foregoing reasons, I will make the orders as set out. They include a number of procedural orders including otherwise adjourning the matter, part heard to 19 January 2022 for a further two days. It is hoped that the matter can be dealt with on a final basis as that time, and the conflict between the parties brought to an end.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 26 August 2022
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