Maple and Niu

[2016] FamCA 1160

FAMILY COURT OF AUSTRALIA

MAPLE & NIU [2016] FamCA 1160

FAMILY LAW – CHILDREN – Interlocutory – With whom a child lives – Child’s views – Where there were three sets of previous final parenting orders imposed upon the parties – Where the father seeks reversal of the last set of orders on an interim basis – Where the child is 14 years old and her maturity is commensurate with her biological age – Where the child’s views are the most significant feature of the evidence – Where the child is keenly aware of the parental conflict – Decided that limited weight should be placed on the views expressed by the child to the parents – Where the child independently expressed the desire to live with the father to other impartial persons, being a general practitioner, a counsellor, and a family consultant – Where there is no guarantee the child will abide by orders of the Court – Where the depth and authenticity of the child’s views has not been fully tested – Decided that allowing the child to have greater influence over her own life may reprieve her from the parental conflict – Ordered that all former parenting orders in relation to the child are suspended

Family Law Act 1975 (Cth), ss 60CC, 61C, 61DA, 65DAA, 65DAC

APPLICANT: Mr Maple

RESPONDENT: Ms Niu

FILE NUMBER: NCC 1862 of 2007

DATE DELIVERED: 22 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 22 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Court

SOLICITOR FOR THE APPLICANT: Court Solicitors & Barristers

COUNSEL FOR THE RESPONDENT: Mr Levick

SOLICITOR FOR THE RESPONDENT: Attwaters

Orders

1. All former parenting orders (excluding Order 13 made on 20 June 2014) relating to the child V, born … 2002, are suspended.

2. The application for interim relief contained within the Amended Initiating Application filed on 5 December 2016 is dismissed.

1. The application for interim relief contained within the Amended Response filed on 21 December 2016 is dismissed.

1. Any and all other outstanding applications for interim relief are dismissed.

NOTATIONS

A.Both parties have parental responsibility for the child pursuant to s 61C of the Family Law Act.

B.These orders intentionally make no provision in respect of with whom the child shall live or with whom she will spend time and communicate.

C.The substantive proceedings are referred back to the Registrar for further procedural directions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maple & Niu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1862 of 2007

Mr Maple

Applicant

And

Ms Niu

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings were commenced in October 2016, but the litigation between the parties has a much longer history. The mother’s counsel described the litigation as “incredibly troubling” and I tend to agree.

2. The litigation concerns parenting orders in respect of the parties’ only child, a daughter, who is now aged 14 years. The litigation history stretches back over a decade. Final parenting orders were first made between the parties in August 2005, with their consent. At that time, the orders generally provided for the child to live with the mother and to spend substantial time with the father, but those orders did not hold the family in check for long. The second set of final parenting orders was made in March 2008, again with the parties’ consent.  Those orders provided for the parties to have equal share of parental responsibility for the child and for the child to live with the parties for equal time. The third set of final orders was made between the parties in June 2014 and provided for the mother to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial time with the father.

3. Over the last 12 months, problems developed with the existing regime established by the orders made in June 2014. The Family Consultant, who recently conferred with the family, observed in a memorandum to the Court that the child’s behaviour over the last 12 months “strongly indicates that her mental health is poor”. He observed that she has been consuming alcohol, smoking cigarettes, using illicit drugs, and engaging in various sexual activities, including with much older adolescents. She has had recent involvement with the police, the NSW Department of Family and Community Services, the NSW Joint Investigation Response Team, a hospital, and she has experienced other difficulties at school. The evidence indicates that the child overdosed on some tablets on or about 14 October 2016, though it is unclear whether it was a genuine suicide attempt. 

4. In response to those events, these proceedings were commenced by the father a couple of weeks later on 26 October 2016. He wants to change the orders made in 2014 by reversing the child’s residence, his assumption of sole parental responsibility for the child, and enabling the child to spend substantial time with the mother. His proposal is, effectively, inversion of the existing parenting regime. 

5. The mother responded by seeking orders suspending the existing parenting regime, insofar as the orders provide for the child’s visits with the father, and authorising her to enrol the child at a boarding school. The mother abandoned that interim proposal at the commencement of the interim hearing and now simply seeks to retain, in all respects, the orders made in June 2014.

Applications and evidence

1. The father moved on the Amended Application filed on 5 December 2016, in support of which he read his affidavit filed on 26 October 2016 and tendered two exhibits (Exhibits F1 and F2). He abandoned his application for proposed interim orders 5, 8(a), 12-16, and 20-21. 

2. The mother moved on her Amended Response filed on 21 December 2016, in support of which she read her affidavit filed on 11 November 2016. The mother pressed for only proposed interim order 1 and abandoned proposed interim orders 2-6 inclusive. 

3. Both parties also relied upon the Child Inclusive Conference Memorandum prepared on 14 December 2016 by the Family Consultant who has consulted with the family.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) (“the Act”), where the meaning of a parenting order is defined.

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought to be made. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies the criteria which must be considered in arriving at a conclusion as to what it in the child’s best interests.

3. The Act enforces a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents, though the presumption may not apply or be rebutted in certain circumstances. The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear upon the issue. 

4. In light of that legal context, I turn to consider the evidence available by reference to the criteria specified in s 60CC of the Act.

Child’s best interests

Section 60CC(2)(a)

1. The Family Consultant observed that the child spoke “generally and mildly positively about both parents”. 

2. There seems to be no dispute in these proceedings that the child enjoys a meaningful relationship with both parents, from which she does and should continue to derive benefit. So much is obvious from the mother’s desire that the orders made in June 2014 continue in force, because they provide for the child to spend substantial amounts of time with the father. Similarly, although the father wants to change the orders made in June 2014, his interim proposal is that the child should spend substantial amounts of time with the mother.  Axiomatically, they both accept the child should have a continuing positive relationship with each of them.

Section 60CC(2)(b)

1. No evidence was advanced and no submission was made to suggest that the child is in need of protection from physical or psychological harm as a result of her being subjected or exposed to abuse, neglect or family violence in either party’s household. 

2. Consequently, that factor is of no influence in the outcome of these proceedings.

Section 60CC(3)

1. Not all of the additional considerations referred to in s 60CC(3) of the Act were the subject of submission and, in any event, many of those factors are not influential in the determination of the child’s best interests at this interim stage of the proceedings.

2. Having regarded to the evidence adduced and the submissions made, I am satisfied that the principal issues requiring consideration under s 60CC(3) are the parties’ parenting capacities and the child’s wishes.

3. The Family Consultant was moved to describe the parties’ “co-parenting relationship” as “toxic”. He observed it was a tragedy that, after 13 years of separation, two intelligent people like the father and mother are in their current predicament. Because of the “toxic” parental relationship, they appear incapable of placing the child’s needs ahead of their own. Regrettably, the parties have two completely different perceptions about the problem at hand and the way in which it might be solved, which reflects poorly upon their parenting capacity. Their distrust and animosity seems to take priority over the child’s best interests in the decisions they make.

4. The father told the Family Consultant that the child was desperately unhappy living with the mother and under increasing strain in the mother’s household. The father asserted his concern was the child has developed a poor relationship with the mother, resembling the similarly poor relationship the mother has with the maternal grandmother. Self-evidently, the father thinks the problem lies with the mother and what happens in her household. 

5. Conversely, the mother informed the Family Consultant that the father showers the child with money and other resources, allows boys to stay over at his home, permits the child to drink alcohol and smoke cigarettes, and generally provides inadequate supervision for the child. Although the father denied the accusation, the mother genuinely adheres to her perception. Self-evidently, she thinks the child’s problems lie with the father and what occurs in his household. 

6. As the Family Consultant keenly observed, in circumstances where the parties both have such polarised perceptions about the problem:

   There is a risk that (the child) will play one parent off against the other and the parents will respond with a “race to the bottom”.

7. The chronology of the litigation, as already summarised, suggests the parties are indeed “racing to the bottom” at full speed and without due regard for the consequences.

8. The child’s views about the situation are interlinked with the Family Consultant’s opinion. The child is now just over 14 years of age and no aspect of the evidence suggested her maturity was anything other than commensurate with her chronological age, in which event she is clearly at an age and level of development where considerable weight must be reposed in her wishes. Nevertheless, I am not prepared to repose much, if any, weight in what the child allegedly represented separately to the parties because, as the Family Consultant said, there is a risk she is willing to “play them off”. I infer her keen awareness of the parental conflict allows her to understand it is advantageous to tell each parent what she perceives that parent wishes to hear from her. The views the child has expressed to other independent parties are much more significant because they are more likely genuine. The evidence proves she has independently consulted with and expressed her views to a general practitioner, a counsellor, and the Family Consultant. 

9. In October 2016, within days of the child’s overdose, she conferred with her general practitioner. The notes of the general practitioner record from that consultation (Exhibit F2):

   Dad’s more relaxed – prefers to live there.  Mum fights with her all the time.

10. Not so along afterwards, the child conferred with her counsellor. The counsellor’s notes from 16 November 2016 record (Exhibit F1):

    I want to live with Dad.  I want to tell Mother but worried to tell her to her face.  She gets angry.

11. As I have already indicated, the Family Consultant conferred with the child on 14 December 2016 and the Family Consultant recorded the child expressed to him “a very clear and moderately strong view that she wanted to reverse the current parenting arrangements such that she would live predominantly with the father rather than predominantly with the mother.” The Family Consultant explored that idea with the child in greater detail and posited the prospect of the current residential regime being reversed for only one school term and then reviewed in April 2017, but the child counter-proposed a longer trial with a review of the changed arrangement after two school terms in July 2017. 

Conclusion

1. Regrettably, there is precious little uncontroversial evidence in this case and very few inferences can be legitimately drawn from the controversy, but I am satisfied the relatively clear and consistent views expressed by a 14 year old child to parties independent of her parents – such as her doctor, her counsellor, and the Family Consultant – should be accorded considerable weight. Her views are the most significant feature of the evidence, since neither party seems to have a better developed parenting capacity than the other.

2. But the attribution of weight to the child’s views does not necessarily mean that her views should simply dictate the orders of the Court. The parties separated 13 years ago and, since the child is 14 years of age, the parties have been fighting over her for most of her life. Three sets of final orders have already been made, two of those with the parties’ consent, and all three sets of orders have failed to finally quell the parties’ dispute. I remain gravely uncomfortable about making an impulsive interlocutory decision completely reversing existing arrangements when the evidence is not tested and, in particular, there has been no real opportunity to test the depth and authenticity of the child’s expressed views. Given the child is a maturing adolescent and the Family Consultant considers there is a risk she will play one parent off against the other, there is no guarantee she would abide by any orders made by the Court with which she disagrees anyway and, even if she agrees with any orders made now, there is no guarantee she should would continue to abide by them into the future. She is apparently aware both parents want to harbour her from the other, so her views about where she wants to live may change from time to time.

3. At this juncture, it is appropriate for me to return to the presumption of equal shared parental responsibility. Relevantly for present purposes, s 61DA(3) of the Act provides as follows:

   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. I invoke s 61DA(3). I am not satisfied that the presumption of equal shared parental responsibility should apply. The parties seem so hopelessly conflicted it defies logic they could be expected to share parental responsibility in the way the law envisages (s 65DAC).

5. It should not go unnoticed that the orders made in June 2014 provided for the mother, who was then designated as the residential parent, to have sole parental responsibility for the child. However, the Act requires the allocation of parental responsibility to be reconsidered under s 61DA once further orders are sought under Part VII of the Act.

6. Given I do not intend to order, presumptively or otherwise, the allocation of equal shared parental responsibility to the parents, s 65DAA of the Act is not engaged and I am not obliged to consider orders for the child to live with the parties for equal time, or alternatively, for the child to live predominantly with one parent and to spend substantial and significant time with the other.

7. Ultimately, I have come to the conclusion that I should suspend all orders in relation to the child. The father argued for a “flexible” approach. Suspension of the existing orders achieves such an outcome, albeit perhaps not in the way he envisaged. The mother argued for retention of the existing orders, but they are demonstrably not working because the child is presently with the father and currently wants to stay with him. The manner in which I intend to dispose of this case, at least on an interim basis, will mean that the child is free to live where she chooses and parental responsibility for her will lie with the parents where it falls pursuant to s 61C of the Act. Prescriptive orders designating the child’s residence and contact with the non-residential parent have not worked on three prior occasions. It seems to me there is no option but to try something different. Allowing the child to have greater influence over her own life might help release her from the focus of the parties’ unrelenting animosity and conflict.

8. For those reasons, I make the following orders.

ORDERS DELIVERED

1. I also make the following notations.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 December 2016.

Associate:  K. Paterson

Date:  8 February 2017