Medley and Braden

[2019] FCCA 1736

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEDLEY & BRADEN [2019] FCCA 1736

Catchwords:
FAMILY LAW – Parenting – where an order was made over two years ago for a child then aged 13 to live with her father because of a concern about parental alienation – where the placement stuck for two years but where just before Christmas 2018 the child decamped to her mother’s home – where the child is now 15 ½ and is adamant that she will not live with the father and where her views have become increasingly intense with every therapeutic intervention – where an order that the child live with her father is untenable – all existing orders discharged and an order made for the child to live with the mother and spend time with the father in accordance with her wishes.

Legislation:

Family Law Act 1975 (Cth) ss.60CC

Applicant: MR MEDLEY

Respondent: MS BRADEN

File Number: NCC 1987 of 2015

Judgment of: Judge Terry

Hearing date: 4 June 2019

Date of Last Submission: 4 June 2019

Delivered at: Newcastle

Delivered on: 4 June 2019

REPRESENTATION

The Applicant: In person

Solicitors for the Respondent:	Turnbull Hill Lawyers
Solicitors for  the Independent Children’s Lawyer	Legal Aid NSW Newcastle

ORDERS

1. All previous orders are discharged.

2. The father’s application for a recovery order filed on 13 December 2018 is dismissed.

3. The orders made on 14 December 2016 are discharged.

4. The mother shall have sole parental responsibility for the child [X] born … 2003 (“the child”).

5. The child shall live with the mother.

6. The father shall spend time with the child in accordance with the child’s wishes.

7. The parties shall do all acts and things and execute all documents to instruct the Principal of the child’s school to forward to both parties copies of all school reports, school photographs, any notifications and other documents relevant to the child’s welfare and education.

8. The parties shall provide authorisation to any treating medical practitioners of the child to allow both parties to have direct access to the child’s health and medical records and attend medical appointments where possible.

9. Each of the parties shall advise the other party as soon as is practicable in the event of a serious accident or illness of the child whilst the child is in their respective care.

10. Each of the parties shall advise the other party of a change of address or contact telephone number within twenty four (24) house of change in same.

IT IS NOTED that publication of this judgment under the pseudonym Medley & Braden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1987 of 2015

MR MEDLEY

Applicant

And

MS BRADEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter I have to make a decision about what is to happen to [X] who was born on … 2013 and is 15 ½.    

3. Although the Family Law Act applies to all children up to the age of 18 it has long been recognised that as children get more and more into their teens it becomes extremely difficult for the court to make effective orders about them. 

4. They grow and become very large children, so they are not children that a parent can pick up and put in a motor vehicle. They become adolescents who have their own views about how they want their universe to be ordered. Parents have to tread very carefully in managing adolescents if they want them to head in the direction the parents want them to head. Sometimes they are successful in achieving this and sometimes not. 

5. The parents in this matter separated on a final basis in October 2004 when [X] was under a year old. There have been orders in place about her since December 2005 and the first orders were made by consent.[1] 

   [1] The orders provided for [X] to live with mother and spend time with the father

6. In 2009 there were some issues with the child’s stepmother which impacted on her time with her father. How significant they were I do not know but they reared their head again in 2014 and led to the stepmother being charged with assault and an interim ADVO being made.

7. I have not conducted a hearing and I do not know what lay behind the assault charge and the interim ADVO and they were ultimately dismissed. Sometimes that is not the end of the matter in this court because the criminal justice system has a different standard of proof but nevertheless the only information I have is that the charge and the ADVO were dismissed.

8. I glean from the information I have been given about the history of the matter that as time went by the father found it increasingly difficult to spend time with [X]. He filed a contravention application in 2015. The issue did not resolve itself to his satisfaction. His view was that the difficulties in his relationship with [X] were due to the mother not encouraging the relationship and either aligning or alienating the child. The mother’s view was that there was realistic estrangement. 

9. In July 2015 the father filed a parenting application seeking orders which would end in a week about arrangement. The mother did not agree with this proposal and the matter went to trial. If I am wrong in this recollection people can correct me but my understanding is that the trial did not conclude and that after the mother’s evidence some observations might have been made by the judge and some pressure applied by someone and orders were made by consent for [X] live with the father. 

10. The 14 December 2016 orders were carried into effect and [X] lived with the father for the following two years, or almost two years because I think it may have been late November 2018 when she did not return to the father’s home after school and went to the mother’s home.

11. On 13 December 2018 the father filed an application seeking a recovery order. The matter came before me fairly soon after this because there was also an issue with the child being able to go on a planned holiday to Country B with her mother.

12. I dealt with that issue because it seemed to me that nothing would be gained by preventing a child going on a holiday that she was almost certainly looking forward to.

13. However I was not willing to leap in given the child’s age and the history of the matter and force the child to go back to the father. I was of the view that it would not be in the child’s best interests to issue a recovery order requiring the police to collect her and deliver her to the father, nor would it have been productive in terms of ensuring an ongoing relationship between the child and her father.

14. I reappointed the Independent Children's Lawyer and on the next mention date she put forward a proposal that carried with it some slight hope that there could be some rapprochement between the father and [X].  Whether it would have resulted in her returning to live with him voluntarily I do not know, but if successful it would perhaps have resulted in some rapprochement and some recommencement of some time. 

15. An order was made for the parties and the child to attend therapeutic counselling with Mr A, a consulting child psychologist. Mr A has a long history of employment in this court as a family consultant. He ceased that employment last year with a view to going out on his own and earning a living in a different way. He conducted the counselling and he prepared report which was tendered to me this morning.

16. Mr A noted that the relationship between the parents had completely broken down and that it seemed unlikely that it would improve. He said, and there is every reason to suppose this is correct, that it was likely that ongoing court intervention would put even further strain on the parents’ relationship. 

17. Mr A interviewed [X] on 16 April 2019.  She was less strident in her views on that occasion. She complained about some difficulties in the father’s household, difficulties I might add that the father does not accept are real, but [X] outlined some to Mr A. However Mr A said that her complaints about the father’s household were a bit vague and he put the problem down to the child’s preferential fit being with the mother.

18. Mr A saw [X] again on 14 May 2019. He suggested to her the possibility of her continuing to live with the mother and spending time with the father.  He said that [X] then became very strident in her complaints about the father’s household. She complained that she was called “fat” and “lazy”, that people swore at her and that they physically disciplined the younger children in the household and yelled. She also complained about some emotional abuse although I am not sure whether she labelled it that or Mr A did; but she complained about being falsely accused of things, having her phone removed and being encouraged to exercise and avoid unhealthy snack foods.

19. I am not sure that last should be a cause of complaint.  

20. That brings to mind however that a precipitating event to [X] leaving the father’s care in November 2018 was that the father took her phone and went through it and viewed various communications that were on it including communications with her mother, although he said that the child invited him to do so.

21. At the end of Mr A’s conversation with [X] on 14 May 2019 she became adamant that she would not have any further communication or contact with her father. 

22. Mr A said as follows in the report which tendered this morning:

    [X] has been dragged into her parents’ ongoing conflict. She has been exposed to her parent’s views and her own experiences have been clouded by those views. It is impossible for her to please both of her parents. This is putting significant psychological strain upon her.

    [X] is currently maintaining a strong view that she should live predominantly with her mother. She accepts her mother’s position that the existing Court Orders are based on manipulation and falsehood and should not be followed. She appears keen to make it extremely clear to the Court that this is her view. She appear to believe that if she shows any interest in having communication with the father in any way, then the Court may use this to make orders that she should live predominantly with her father. It is likely that if she is required to, [X] will go to increasing lengths to justify this view and that she will be encouraged and supported by her mother to do so.

    [X] would benefit from supportive therapeutic counselling but this would have minimal or no benefit, and would possibly be harmful, until after all current Family Law Court matters are resolved and there is no realistic possibility of subsequent Family Law Court proceedings.

    [X] would benefit from a meaningful and ongoing relationship with both of her parents and ideally would be encouraged and supported to achieve that. Given the nature and extent of the parental conflict, however, it seems unlikely this will be achieved through Family Law Court Orders. Accordingly, it is recommended that no specific orders be made mandating with whom [X] should live and that arrangements be made from time to time in accordance with [X]’s own wishes. [2]

    [2] Exhibit A - Family Therapeutic Counselling – Summary Report page 3

23. In summary I have a child whose parents separated when she was almost one. For a lengthy period she spent regular time with her father. Then things deteriorated to the point where the father felt obliged to bring court proceedings and there was a change of residence. [X] was 13, an older child, when that happened. 

24. Unlike what sometimes happens in such cases this arrangement actually stuck for two years, but [X] has now gone back to her mother and she is now 15 ½ years old.   

25. [X] has a strong view about what she wants. The views of children are something I have to place weight on and the older children get the more weight I have to place on them, because of the difficulty of forcing an older child to do something they do not want to.

26. Regardless of the genesis of [X]’s views and regardless of whether she has those views because of things the mother has said and a subtle undermining of her relationship with the father by the mother, or because of difficulties with things the father has done or because of a combination of both, they have to be given weight simply because of her age. 

27. [X] knows her father; she has been spending time with him since her parents separated when she was less than one. It is regrettable that their relationship has now come to a grinding halt but it is not as if [X] has never had a chance to know her father, to experience her father and to meet members of his household; she has had that opportunity. She is expressing a very strong view that she does not want to continue to do that.

28. [X] is in her mid-high school years. She needs to be given peace and space so that she can successfully get through the rest of her high school years without being subjected to stress. 

29. Mr A said that there would be no benefit to [X] in trying to force her to spend time with her father and it is very clear to me that there would be no benefit to her in me making an order requiring her to either return to the father’s care or spend time with him. 

30. [X] is big enough to resist that physically by getting on a bus, walking somewhere (perhaps somewhere she shouldn’t be walking) and accessing a mobile phone (either her own or somebody else’s) and getting somebody to get her out of the situation.

31. She is well able to exercise that power. She will deeply resent me making an order forcing her to go to her father it is very unlikely that it will be able to be carried into effect and it is highly likely that it will  result in further contravention proceedings. There have been contravention proceedings previously.

32. The situation probably could not get any worse but making orders trying to force [X] to live with or see the father is only going to lead to further conflict between the parents and further pressure on [X] who needs to be allowed to get on with her education and grow and develop. 

33. I cannot promise the father that if I make the orders the mother is wanting and take the pressure off [X] that she will drift back to him.  That may not happen and I have to be absolutely frank with him about that. However the only order that would be in [X]’s best interests would be that the previous orders are discharged, that the mother have sole parental responsibility for her and that the child lives with the mother and spends time with the father in accordance with her wishes. 

34. I am conscious of the fact that the father feels incredibly let down by the court system because I have declined to enforce the existing orders, but a court exercising family law jurisdiction is not dealing with objects or animals or breaches of the criminal law; it is not that kind of jurisdiction. Sometimes this court has to reconsider its orders. It is sometimes in the best interests of children that this occur. In this particular case I am satisfied that this is so and I am going to make the orders outlined above.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date: 7 August 2019