Lodge & Tiller (No 2)

Case [2023] FedCFamC1F 21

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lodge & Tiller (No 2) [2023] FedCFamC1F 21

File number(s): MLC 9308 of 2009
Judgment of: CARTER J
Date of judgment: 27 January 2023
Catchwords: FAMILY LAW – CHILD – final parenting orders – undefended hearing – protracted litigation – orders made by consent between the father and Independent Children’s Lawyer – where the mother declined to participate in proceedings – where the mother relinquished care of the child – relocation – father to have sole parental responsibility – father permitted to relocate with the child – where the child continues to exhibit challenging behaviours – mother restrained from communicating with the child – child at liberty to communicate with his step-sister – concerns regarding the mother’s capacity to meet the child’s needs, best interests of the child.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAA, 69ZX 91B, 102NA
Cases cited:

 A & A: Relocation Approach [2000] FamCA 751

AMS v AIF [1999] HCA 26

Cotton & Cotton (1983) FLC 91-330

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: 241
Date of last submissions: 19 January 2023
Date of hearing: 19 January 2023 
Place: 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
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:

19 January 2023

THE COURT ORDERS BY CONSENT BETWEEN THE INDEPENDENT CHILDREN’S LAWYER AND THE APPLICANT FATHER THAT:

1.All previous Orders relating to the child X born 2008 (“the child”) be discharged.

2.The father have sole parental responsibility for the child.

3.The father shall notify the mother in writing, by text or email, of any major decisions made by him in the exercise of his parental responsibility within 24 hours of exercising such responsibility.

4.The child live with the father.

5.The father be at liberty to relocate with the child to the Brisbane region of Queensland.

6.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, unless with the written consent of the father, which consent shall take into consideration the wishes of the child. 

7.The child be at liberty to communicate with his step-sister, Y, on such days and times as agreed between the parties upon the child expressing a desire for such communication.

8.Upon X relocating to the Brisbane region, and no later than 60 days from the date of such 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…

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AGLC
Lodge & Tiller (No 2) [2023] FedCFamC1F 21
Case
[2023] FedCFamC1F 21
Decision Date

CaseChat Overview and Summary

The case of Lodge & Tiller (No 2) involved the parties, referred to as the father and the mother, who were engaged in a protracted legal dispute concerning the care, custody, and access arrangements for their child, X. The conflict between the parents was intense, with allegations of abuse and violence exchanged between them. The father, who resided in Brisbane with his wife, Ms A, and the mother, who lived in the City P area, had a tumultuous history dating back to their relationship in 2008. The matter was before the court to determine the best interests of X, taking into account the chronic parental conflict and the child's emotional and psychological needs.

The court was required to decide several key legal issues, including the appropriate living arrangements for X, given the contentious history between the parents and their differing perceptions of the child's behaviours. The court had to weigh the primary considerations outlined in section 60CC(2) of the Act: the benefit to X of having a meaningful relationship with both parents and the need to protect X from physical or psychological harm. Additionally, the court needed to assess the mother's capacity to meet X's needs and the impact of her beliefs and actions on the child.

In its reasoning, the court expressed significant concerns about the mother's ability to meet X's emotional needs, stemming from her belief that she was a victim of ongoing violence and control by the father and her perception of X as a dangerous threat. The court highlighted the problematic nature of the mother's responses to X's behaviours, including her repeated and unnecessary involvement of the police. The court noted that the mother's actions, such as contacting child protection services without justification, appeared to magnify X's issues and difficulties. The court also observed that the mother showed little insight into how her own mental health struggles might affect her interpretation of events and her interactions with X. The court concluded that these factors had a detrimental impact on X's well-being.

The court ultimately decided that it was in X's best interests for him to reside with the father, subject to certain conditions aimed at ensuring his safety and emotional well-being. The court's final orders provided for X to live with the father while also outlining specific measures to support X's relationship with his mother and to protect him from potential harm.

Orders

Orders of the court

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Background

Background to the litigation

In addition, I have had regard to the Specific Issues Report dated 6 May 2022. The Department of Families Fairness and Housing (“the Department”) have also provided reports, to which I have also had regard.BACKGROUND AND PROCEDURAL HISTORY I am setting out at length the background and history of this matter, much of which has already been articulated in my earlier reasons given 28 March 2022, when I sat in Division 2 of this Court, and my reasons delivered on 12 August 2022, and replicated here. This is in my view a matter where the current issues X faces have their genesis in the chronic parental conflict, and his behaviours and struggles need to be seen in the broader context to better understand how his best interests may be met. The father now lives in Brisbane with his wife Ms A. He is currently studying a degree at V University. Ms A is a health professional. I understand she is working in Brisbane, and assisting in caring for her elderly parents. The mother lives in the City P area. My understanding is she is engaged in home duties. The parties commenced their relationship in early 2008. At that time, they were both engaged in treatment and counselling with UU Program. The parties were together for a few short months, separating in mid-2008. X was born 2008. The mother asserts that the father was violent and abusive to her during their short relationship. That is denied by the father. The father asserts that the mother was abusive and violent towards him. The mother acknowledged that in 2008 she did push and kick the father, pick up a vase and “knocked him on the shoulder”. She said she did not use much force and the father did not require medical treatment. She said that is the only time she was violent towards him. The father sought and obtained an Intervention Order against the mother at that time which she did not contest. The father initiated proceedings seeking time with X in October 2009. Final orders were made on 25 March 2011 which provided for X to spend alternate Monday evenings and each Wednesday evening with the father. Additional orders were made for X to have time with the father during the summer holidays as well as on special occasions. By agreement in July 2012 and January 2013, the parties increased X’s time with the father, such that he was by early 2013 spending 4 nights per fortnight with the father. In 2013, the mother gave birth to her second child Y (“Y”). Y is now 8 years old. 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. In 2014, X commenced school at W School. In early 2015, the father married Ms A. Shortly after their marriage, the mother withheld X from spending time with the father. The mother said she did so as the father had moved an hour away and that X was struggling with the additional travel. The father brought further proceedings in June 2015 in which he sought that X reside with him. The parties entered into final orders by consent on 2 June 2016 pursuant to which X would remain living with his mother, and spend five nights per fortnight with his father together with half of the holidays. Those detailed orders also included a number of restraints 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. Both parties were restrained from “requesting any medical reports or medical referrals for the child without the express written consent of the other party”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As I am not making an order for equal shared parental responsibility, I am accordingly not required to follow the legislative pathway set out in s65DAA. 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. As is plain, I am concerned about the mother’s capacity to meet X’s needs, and in particular, to meet his emotional needs. That stems from her belief that she is a victim of ongoing violence and control perpetrated by the father, and from her belief that X poses a dangerous threat to herself and Y. In turn, the mother’s responses to, and interpretations of X’s behaviours is problematic at times. Her lack of insight into the implications for X by repeatedly involving the police to manage his behaviour is troubling. I accept that some of X’s more recent behaviours has been at the level that police involvement was required. However, the mother historically involved the police at times it was not necessary for her to do so. Her repeated characterisation of X’s behaviours as being significantly dangerous to the health and safety of herself and Y – and her belief that they need to be protected from him – is worrying and must be distressing to X. I anticipate this would re-enforce a negative self-image. I also have concerns that the mother magnifies X’s issues and difficulties. For instance, she was not satisfied with the medical assessment regarding his knee issues or his bike injuries the latter of which she believed required x-rays to be undertaken. She requested the police undertake a welfare check in late 2021 when X had fallen off his scooter at his father’s home. There was no evidence that medical attention of any sort was required at that time. She also contacted child protections on multiple occasions in circumstances that did not appear to be warranted. It is of concern that the mother sought the involvement of the police to assist her with managing X on several occasions as early as 2017. I note that the involvement of the police on that occasion was for a matter as trivial as X bouncing a ball and refusing to stop when requested by the mother. The mother appeared to have no insight into how unnecessary police involvement was in relation to that incident. The mother remained adamant that her involvement of the police to assist her with X has at all times been appropriate. In relation to the events at the end of 2020 which resulted in the police seeking an intervention order against X, the mother did not express any genuine regret or remorse at the impact the events must have had on X. As indicated, she sought an Intervention Order against X on behalf of Y in 2022, for reasons that remain completely unclear. Those sorts of responses and actions by the mother gave me the impression that the mother exaggerated and catastrophized events and difficulties. Additionally, it appeared she did little to reflect on how her own anxieties and mental health struggles might impact upon her interpretation of events, or on X.