Murdoch and Aberquero

[2014] FamCA 481

FAMILY COURT OF AUSTRALIA

MURDOCH & ABERQUERO [2014] FamCA 481

FAMILY LAW – CHILDREN – Best interests – with whom the children shall live and spend time – parental responsibility – geographic separation – children’s views – where the children do not derive benefit from their relationship with the father – children to live with the mother – no order made for the children to spend time with the father – where neither party has the financial capacity to facilitate time with the father in another country – mother to have sole parental responsibility –  father the perpetrator of family violence

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 62B, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65DA

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Murdoch

RESPONDENT: Mr Aberquero

FILE NUMBER: NCC 354 of 2011

DATE DELIVERED: 8 July 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 29 May & 27 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. All former orders relating to the children B, born … 1999, and E, born … 2001, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

5. Each party shall notify the other of any medical emergency, illness or injury suffered by either child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

6. The mother shall forthwith:

   (a)Notify the father in writing of the names and addresses of the schools attended by the children; and

   (b)Authorise and request the principals of the schools attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.

7. Leave is granted to the parties to furnish a sealed copy of these orders to the principals of any schools attended by the children.

8. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address, mobile telephone number, and email address.

9. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

10. Any and all outstanding applications are dismissed.

Notation

(A)No orders are made prescribing or precluding the children’s interaction with the father. Whether the children spend time or communicate with the father, and the circumstances under which they may do so, shall be determined by the mother as an incident of her sole parental responsibility for the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murdoch & Aberquero 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 354 of 2011

Ms Murdoch

Applicant

And

Mr Aberquero

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings are the parties’ second bout of litigation over their two children, who are now 14 and 12 years of age.

2. The first proceedings were due to be heard and determined in September 2012, but were compromised two months beforehand in July 2012. The parties agreed upon final parenting orders providing for them to have equal shared parental responsibility for the children, for the children to live with the mother, and for them to spend substantial and significant time with the father.

3. Those orders only held sway until April 2013, when the mother commenced these proceedings.

4. The father is a citizen of the USA and returned to reside in that country with no immediate plans to return to Australia,[1] so the former orders making provision for the children to spend time and communicate with him and for him to share equally in the exercise of parental responsibility for them were suspended consensually in May 2013.[2]

   [1] Notation A made on 3 May 2013

   [2] Orders 1-5 made on 3 May 2013

5. The mother and children reside in Australia and the father continues to reside in the USA. Neither intends to alter their residence and so their future proposals for the children remain polarised.

6. The mother wants sole parental responsibility for the children and no orders prescribing the nature of the children’s interaction with the father, whereas the father wants the children to travel to the USA to see him each year.

7. Through an error of communication, the father did not attend the hearing when it commenced on 29 May 2014. When the error was revealed the proceedings were re-listed and leave was granted to re-open the evidence, since the father wanted to participate and his earlier non-appearance was not his fault. The hearing continued and was completed on 27 June 2014, at which time the father participated by telephone from the USA.

Mother’s proposal

1. The mother sought the orders contained within her Initiating Application filed on 4 April 2013.

2. She proposed discharge of the orders made in July 2012 and their replacement with orders providing for the children to live with her and for her to have sole parental responsibility for them. She proposed that the children spend no time with the father, though she sought that outcome through a declaration rather than an enforceable injunction.

Father’s proposal

1. The father filed his Response on 9 July 2013.

2. In that document he revealed his proposal to be as follows:

   That the children [names and dates of birth recited] are allowed to travel to United States of America to visit their Dad and [paternal] family members. They will travel once a year for a period of four weeks without the presence of any [maternal] family members, due to the negative impact from this family and mother. Kids will be returned to Australia at the end of four weeks. Vacation will be rotated during school year break and Christmas time will rotate every other year (sic).

3. The father refined that proposal more precisely with the Registrar in July 2013,[3] but he maintained a proposal for the children to travel unaccompanied to the USA once per year to visit him for several weeks.

   [3] Notation D made on 30 July 2013

The evidence

1. The mother relied upon her affidavit filed on 7 March 2014 and the Family Report dated 6 February 2014.

2. The father relied upon his affidavit filed on 7 May 2014. Unfortunately, without intending disrespect to the father, large tranches of it were difficult to interpret and understand.

3. The Family Consultant was cross-examined by both parties.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon 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 (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

6. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. The children both have meaningful relationships with the mother from which they each derive substantial benefit. The father did not disagree. His parenting proposal acknowledged the children should continue to live with the mother.

2. By comparison, the children’s relationships with the father are not so beneficial to them. While the parties advanced different explanations for it, there is no doubt the children’s relationships with the father have deteriorated substantially since orders were last made in July 2012. The mother alleged that was because of the children’s direct experience of the father’s abusive and disrespectful behaviour, whereas the father alleged it was due to the mother’s deliberate alignment of the children against him.[4]

   [4] Family Report, para 15

3. It is undisputed that in September and November 2012 the children absconded in order to avoid spending time with the father.[5] The problems culminated in a confrontation between the parties when the children were exchanged in March 2013, resulting in police intervention and the imposition of a family violence order against the mother for the protection of the father.[6] The mother subsequently informed the father she refused to allow the children any further contact with him pending the resolution of these proceedings.[7]

   [5] Family Report, paras 16, 19

   [6] Family Report, para 22; Father’s affidavit, Annexure C

   [7] Family Report, para 24

4. Within a week of the commencement of the proceedings, the father returned to the USA, ostensibly on a permanent basis.[8] The children have therefore not had any form of contact with the father since March 2013.[9]

   [8] Family Report, paras 25-26

   [9] Mother’s affidavit, para 40

5. The father informed the Court in September 2013 it was unlikely he would return to Australia,[10] and he informed the Family Consultant in January 2014 he would never return to Australia because of his fear of the mother’s verbal and physical abuse of him.[11] He said the same thing at the final hearing.

   [10] Notation B made on 6 September 2013

   [11] Family Report, paras 29, 52

6. When interviewed by the Family Consultant, the eldest child said his relationship with the father was “very poor”, and had been so for a considerable time. He spoke in generally negative terms about the father’s behaviour, which he was able to elaborate with specific examples.[12] The youngest child was also described as “highly critical” of the father and his behaviour, which she too was able to exemplify.[13]

   [12] Family Report, paras 31, 33, 46

   [13] Family Report, paras 39-40, 46

7. The conclusion is inescapable that the children do not presently derive any benefit from their deteriorated filial relationships with the father.

Section 60CC(2)(b)

1. There were allegations of both “family violence” and “abuse” in these proceedings, but the allegations were not usefully explored in the evidence, perhaps because neither party appeared to regard them as influential in the outcome of the dispute.

2. The mother arranged for both children to individually consult with a counsellor in March 2013.[14] The Family Consultant spoke to the counsellor in January 2014 and confirmed the children each only had one consultation with her.[15] During those consultations the children described witnessing physical violence between the father and the maternal grandfather in 2012 and between the father and mother in March 2013. On each occasion the father was described as the aggressor.[16]

   [14] Mother’s affidavit, para 33, Annexure X; Father’s affidavit, Annexure E

   [15] Family Report, page 3

   [16] Mother’s affidavit, Annexure X; Father’s affidavit, Annexure E

3. The Family Consultant reported:[17]

   There are serious allegations of domestic violence in this matter. There are cross allegations and denials and each parent asserts they are the victim and the other parent the perpetrator.

   [17] Family Report, para 45

4. The father repeated his allegations of being physically attacked by the mother at the hearing, but the mother only admitted assaulting the father in self-defence. The mother, therefore, only adduced evidence of family violence perpetrated upon her by the father indirectly. She made no reference to the issue in her affidavit. It is impossible to resolve the factual dispute over which party was the aggressor, but family violence certainly did occur between the parties and it was certainly witnessed by the children.

5. While the children’s reports to the counsellor suggest a need to protect them from harm caused by their exposure to family violence committed by the father, as the mother contended in reliance upon the children’s counsellor,[18] the alleged episodes of violence were not so serious or so frequent to require, of themselves, elimination of the father from the children’s lives. The mother implicitly agrees because she contended during the hearing that she had no objection at all to the children spending time with the father in Australia.

   [18] Mother’s affidavit, para 50

6. I place no weight at all upon the opinions of the children’s counsellor about what future interaction should occur between the children and the father. She met with them only once, she assumed the truth and accuracy of what she was told by the mother and the children, she did not consult with the father for his version of the allegations, and her experience and qualifications remain completely unknown. The opinions of the Family Consultant are much preferable.

7. The oldest child also reported to the counsellor in March 2013 that he had been physically and verbally abused by the father,[19] but it is not apparent from the contents of the Family Report that he made such serious criticisms of the father to the Family Consultant in January 2014.[20]

   [19] Father’s affidavit, Annexure E

   [20] Family Report, paras 31-33

8. There is, of course, lingering concern the children’s reports about the father’s violence and belligerence were either fabricated or exaggerated because of their alignment with the mother. The Family Consultant did confirm in cross-examination his belief the children had been “manipulated” by the mother.

9. Even if the eldest child’s reports of past “abuse” by the father were truthful and accurate, again, the mother did not contend those past events should result in elimination of the father from the children’s lives because she expressly invited the father to communicate with the children by telephone and Skype and inferentially invited the father to spend time with the children in Australia.

Best interests of children – additional considerations

1. The eldest child reported to the Family Consultant he wanted nothing to do with the father and never would. He was worried about travelling to the USA to spend time with the father and being detained there by the father.[21]

   [21] Family Report, paras 35, 46

2. Similarly, the youngest child reported to the Family Consultant she did not want to travel to the USA to visit with the father and paternal family, but she remained open-minded about the prospect of future communication and contact with the father.[22]

   [22] Family Report, paras 42, 46

3. The Family Consultant reported that the children do not even wish to spend time with the father in Australia.[23]

   [23] Family Report, paras 52, 53

4. While it is feasible, or even probable, the children’s adverse views of the father were influenced deliberately or inadvertently by the mother, the children’s age and maturity necessarily mean their expressed views should be accorded significant weight.

5. The mother probably did deliberately involve the children in the parental conflict and immerse them in the details of this litigation, which reflects poorly upon her parenting capacity. The eldest child was able to report to the Family Consultant specific details about the parties’ respective parenting proposals,[24] which information he must have gleaned from the mother. The youngest child reported the mother gave them reports of their counsellor to read just prior to their most recent appointments with the Family Consultant in January 2014.[25]

   [24] Family Report, para 35

   [25] Family Report, para 41

6. The Family Consultant was justified in holding “enormous concern” about such conduct by the mother.[26] In all probability, the mother’s denial of such conduct was disingenuous.[27] She holds “strong negative opinions” about the father and is also fearful of the children’s detention in the USA if they travel there to see the father, of which the children are well aware, so she would be motivated to ensure the children’s alignment with her against him.[28] The mother’s capacity to appreciate the importance of the father’s paternal influence in the children’s lives is quite impaired. She does not really wish for the children to have any relationship at all with the father.[29] Her suggestions to the contrary at the hearing, implying her willingness to support the children’s relationships with the father, or at least not to thwart them, were probably deceitful.

   [26] Family Report, para 47

   [27] Family Report, paras 47, 49

   [28] Family Report, para 48

   [29] Mother’s affidavit, para 55

7. However, it is really unnecessary to positively determine whether the children’s adverse attitudes towards the father are the product of their deliberate alignment, their inadvertent involvement in the conflict, their own experiences, or an admixture of those factors. Irrespective, the fact remains the children, and in particular the eldest child, now hold “negative opinions” about the father and the father is well aware of it.[30] There is now no utility in trying to allocate blame for that fact because the only task at hand is to determine whether and how the children should visit the father periodically in the USA. The resolution of why the children now feel so adversely towards the father does not materially assist in that ultimate determination.

   [30] Family Report, para 50

1. The father and paternal family have not taken any steps to try and counteract the effect of the mother’s alleged alignment upon the children. Even though the mother previously invited electronic communication with the children,[31] the father and paternal family members have not availed themselves of that invitation by emailing, Skyping or telephoning them.[32]

   [31] Mother’s affidavit, para 42, Annexure AB

   [32] Mother’s affidavit, paras 41, 77

2. The father informed the Family Consultant in January 2014 he would meet half the cost of the children’s return travel to visit him in the USA,[33] but there are practical difficulties with that proposal.

   [33] Family Report, para 29

3. The father told the Family Consultant,[34] and the Court before that,[35] of his financial limitations. At the hearing, the father gave evidence he had only been in full-time employment since February 2014. Even with current employment he said he could only contribute to the children’s travel costs by incurring further debt. Apparently, he has no capital reserves and no capacity to seek financial assistance from members of his family.

   [34] Family Report, paras 26, 52

   [35] Notation B made on 30 July 2013

4. The evidence adduced by the mother proved she could not afford half of the children’s travel costs,[36] even if the father did have the capacity to pay the other half.

   [36] Mother’s affidavit, paras 43-44

5. The parties’ financial predicament needs to be considered in context. The Family Consultant noted, without revealing the source of his information, the father had been paying child support to the mother since February 2011,[37] but the mother deposed to the inaccuracy of that information. She deposed the current child support assessment is only $7.49 per week and that child support arrears of some $4,000 were only reduced by the father to about $3,000 in January 2014.[38] The father admitted as much in cross-examination.

   [37] Family Report, para 8

   [38] Mother’s affidavit, paras 25-27

6. The father’s financial capacity must be very limited indeed if he cannot afford to regularly pay only $7.49 per week for the children’s maintenance. When the financial burden of maintaining the children falls so heavily upon the mother it is little wonder she cannot contribute to the cost of their annual travel to the USA. Nor is it unreasonable for her to question the father’s ability to partially fund the children’s return travel to the USA.[39]

   [39] Mother’s affidavit, para 46

7. The father has South American cultural heritage. Spanish is his first language. If the children have no contact with the father they will be deprived of inculcation with their paternal cultural heritage. That consequence should be avoided if possible, but their deprivation of that cultural experience is not presently significant because the unchallenged evidence is the father has done little to encourage their enjoyment of it.[40] He admitted they do not speak Spanish.

   [40] Mother’s affidavit, para 76

Conclusions and orders

1. There are reasonable grounds to believe that one of the parties, and perhaps both, engaged in family violence. The presumption of equal shared parental responsibility therefore does not apply (s 61DA(2)(b)). Even though the father apparently denies his responsibility for any violence, he asserted the mother perpetrated family violence upon him. He remains so frightened of further violence by the mother that he refuses to return to Australia from the USA. It must therefore follow that he agrees the presumption of equal shared parental responsibility does not apply.

2. Even if the presumption did apply, the evidence suggests the children’s best interests would be served by not allocating equal shared parental responsibility to the parties and so the presumption would be rebutted (s 61DA(4)). The parties live on different continents and are riven by conflict and distrust. It is highly unlikely they are able to rationally and civilly discuss issues of importance to the children, as the law would require of them if they were allocated equal shared parental responsibility for the children (s 65DAC).

3. The mother was allocated sole parental responsibility for the children, with the father’s consent, on an interim basis in May 2013.[41] That decision does not, however, influence the final allocation of parental responsibility for the children (s 61DB).

   [41] Order 2 made on 3 May 2013

4. The mother wanted sole parental responsibility for the children, but the father did not engage that particular debate. The only tenable outcome is for the mother to have exclusive parental responsibility for the children, as she will continue to be their residential carer. The evidence suggests some immediate decisions need to be made about the eldest child’s orthodontic and paediatric care.[42] The mother should be enabled to ensure they are made promptly. Her allocation of sole parental responsibility will also enable her to resolve the problem she perceives with the father’s frustration of the youngest child’s school enrolment.[43]

   [42] Mother’s affidavit, para 58

   [43] Mother’s affidavit, para 59

5. Since equal shared parental responsibility for the children is not allocated to the parties, s 65DAA of the Act has no application. The children will continue to live with the mother.

6. It is impracticable to make any orders at all for the children to spend time with the father, let alone orders of the type he envisages. That conclusion is inevitable for several reasons.

7. First, neither party has the financial capacity to fund the children’s travel between Australia and the USA.

8. Second, as the Family Consultant poignantly observed,[44] it is “extremely likely” the children would sabotage any planned travel to the USA by refusing to board the aircraft. They are now old enough to physically resist being dragged and restrained. That situation is unlikely to change until the children’s relationships with the father are improved by therapy, but that is impossible while they remain on opposite sides of the planet.[45]

   [44] Family Report, para 54

   [45] Family Report, paras 55-58

9. Lastly, it is not even possible to make orders for the children to resume their relationships with the father in the perceived safety of Australia, because the father refuses to return here.[46] The children seemingly remain resistant to that alternative anyway.

   [46] Notation B made on 6 September 2013; Family Report, paras 29, 52

10. The orders therefore make no prescriptive provision for the children’s future interaction with the father. Whether and how that occurs should be left to the mother to decide as an incident of her sole parental responsibility for the children. Making a declaratory order in rem, as the mother proposed,[47] is ineffectual so no such order is made.

    [47] Initiating Application filed 4/4/13, Order 4

11. If the mother’s evidence was truthful, which remains in doubt, she would not oppose the father’s communication with the children, provided the father establishes the electronic or telephonic connection with the children at his expense. He has not done so for quite some time, because he perceives the mother will frustrate his attempts. No orders are made prescribing the nature of communication between the children and the father because, firstly, neither party sought it, secondly, the evidence does not allow any firm conclusion the father would willingly bear the expense, and thirdly, the children may well be unwilling. The mother will also control any communication between the children and the father.

12. When the children eventually acquire sufficient maturity they will be able to form their own conclusions about whether or not their adverse views of the father were unfairly influenced by the mother and whether or not the mother exercised her exclusive parental responsibility for them wisely.

13. The orders preclude the parties’ denigration of one another in the children’s presence. That injunction includes the father in case the mother allows the children to spend time or communicate with him in the future.

14. As a salve for the father’s effective temporary elimination from the children’s lives, the mother is obliged to notify the father of any serious medical complication suffered by either child and to authorise the father’s procurement of the children’s school reports and school photographs.

15. The orders also require the parties to keep one another appraised of their current contact details in case the need arises for their communication over the children.

16. I am satisfied that, on the evidence adduced, the orders set out at the commencement of these reasons reflect the children’s best interests.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 July 2014.

Associate: 

Date:  8 July 2014