Musto and Walbridge

[2011] FamCA 717

FAMILY COURT OF AUSTRALIA

MUSTO & WALBRIDGE [2011] FamCA 717

FAMILY LAW - CHILDREN - Best interests – With whom a child spends time where the child resides overseas – With whom a child communicates – Where the child has no meaningful relationship with the father - Sole parental responsibility – Whether the father should be at liberty to have written communication with the child - Whether an injunction ought to be granted restraining the change of the child’s surname

Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(3), s 61B, s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 64B(1), s 65AA, s 68B

Chappell and Chappell [2008] Fam CAFC 143
Flanagan v Handcock (2001) FLC 93-074
George and Radford (1976) FLC 90-60
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531

APPLICANT: Ms Musto

RESPONDENT: Mr Walbridge

INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

FILE NUMBER: BRC 8142 of 2007

DATE DELIVERED: 9 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Johnston J

HEARING DATE: 4 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT: Reaburn Solicitors

COUNSEL FOR THE RESPONDENT: Mr Pieterse

SOLICITOR FOR THE RESPONDENT: Christine Vachon Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fleetwood

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

1. The following final parenting orders are made in relation to the child B Walbridge born on … January 2003 (“the child”).

Parental Responsibility

1. That the mother shall have sole parental responsibility for the child.

Live with

1. That the child shall live with her mother in the US.

Time with

1. That the child shall spend no time with her father.

Communication

1. That the father may send a letter or greeting card to B on not more than four occasions each year.

2. That the mother shall keep the father notified of the child’s postal address at all times.

3. That the mother is permitted to vet such communications for their suitability.

4. That the father shall not communicate with the child by any other means.

Specific Issues

1. a.        That the mother shall keep the father notified of the child’s school, usual treating general practitioner and any specialist medical practitioner;

   b.That the mother shall do all things and sign all documents necessary to facilitate copies of relevant school or medical documents relating to the child (including photos, X-rays or similar documents) being made available to the father.

2. a.        That the father is at liberty, at his own expense, to obtain from the child’s school copies of any school report, school newsletter and school photo, and the mother will do everything necessary to have the father listed as being the child’s father on all relevant school reports.

   b.That the father is at liberty, at his own expense, to obtain from the child’s treating medical practitioner any medical records relating to the child.

Further Orders

1. That the order appointing the Independent Child Lawyer is discharged.

2. That following the expiration of the appeal period, all documents produced on subpoena may be returned to the persons or institutions who produced them and all exhibits may be released.

3. That pursuant to s.62B and s.65DA(2) 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRC 8142 of 2007

Ms Musto

Applicant

And

Mr Walbridge

Respondent

REASONS FOR JUDGMENT

Introduction and Applications

1. B Walbridge is 8 years of age having been born in January 2003.  She lives with her mother Ms Musto and her step-father Mr Carter in State 1, United States of America (“the US”).  Her father is Mr Walbridge.  For convenience I shall refer to the adults as “the mother”, “the father” and “Mr Carter”. 

2. The mother and the father have been involved in litigation about the parenting arrangements for B now for some years.  The mother seeks orders in accordance with her Amended Initiating Application filed on 21 February 2011 as final orders, in effect, as follows:

   ·That the child live with her;

   ·That she and the child be permitted to live in the US;

   ·That she have sole parental responsibility for the child.

3. In his original response the father sought orders to the following effect:

   ·That the parents have equal shared parental responsibility for the child;

   ·That the child live in Australia with each of her parents on an equal shared basis which would involve residence week about;

   ·That the mother be restrained from using or being party to or compliant in the use of any surname for the child other than “[Walbridge]”;

   ·Various other restraints including mutual non-denigration injunctions; and

   ·Numerous detailed orders about other aspects of parenting arrangements.

4. To the father’s credit, prior to the hearing commencing, he agreed to the child living with the mother in the United States.  Having made this concession the father amended his application and proposed that instead of making final orders, the Court make the following by way of interim orders:

   ·With the exception of matters set out in paragraph (1)(e) below, the mother have sole parental responsibility for the major long-term decisions (as defined in the Family Law Act 1975) relating to the child [B] born [in] January 2003 (“the child”) save that prior to making any decision about such issue the mother shall:

   (a)use her best endeavours to advise the father in writing of the decision intended to be made;

   (b)seek the father’s written response in relation thereto;

   (c)consider, by reference to the best interests of the child, any such response prior to making any such decision;

   (d)advise the father in writing as soon as reasonably practicable of her ultimate decision;

   (e)in the event of life-threatening medical procedures the mother will not allow the child to undergo (or fail to undergo) such a procedure without the consent of the father.

   ·The mother is restrained from allowing the child to be known as any name other than [B Walbridge], and do all acts and things necessary to amend any document on which the child is known by any other name;

   ·The father is at liberty, at his own expense, to obtain from the child’s school copies of any school report, school newsletter and school photo, and the mother will do everything necessary to have the father listed as being the child’s father on all relevant school records;

   ·The father is at liberty, at his own expense, to obtain from the child’s treating medical practitioner any medical records relating to the child and to give effect to this order the mother will appraise the father (and keep the father appraised) of the names and contact details of all relevant medical practitioners at which the child attends;

   ·The father is at liberty to write to the child at an address to be provided to him by the mother no less than once each calendar month;

   ·The mother will encourage the child to:

   (a)write to the father;

   (b)communicate with her siblings [C] born [in] February 1997 and [M] born [in] April 2001; and

   (c)have a relationship with the father’s current partner and her children;

   ·The father will, at his expense, meet the costs of flying the child to the Commonwealth of Australia on two occasions in 2011, namely:

   (a)from 5 November 2011 to 14 November 2011 for the father’s wedding on […] November 2011 (and will permit the child to take part in the father’s wedding party); and

   (b)for no less than two weeks during the 2011 Christmas / January school holidays;

   ·When the child spends time with the father pursuant to the previous order:

   (a)the mother and father will do all things necessary (including sharing the costs) to have the father and child engage in therapeutic counselling with a therapist to be chosen by the father; and

   (b)the mother and father will permit the father to arrange for the child to be baptised / christened at the church of his choosing in Australia;

   ·These proceedings be listed for further mention in relation to the state of the child’s relationship with the father at a date to be fixed no earlier than twelve months following the date of these orders.

Background

1. The father was born in 1965 and he is therefore 46 years of age.  The mother was born in 1967 and she is therefore 44 years of age. 

2. The parties commenced cohabitation in April 2002.  They finally separated on 26 April 2007.

3. The father has two children from his former marriage namely, C born in February 1997 and M born in April 2001.

4. On 26 January 2003, the father was arrested and charged with having raped his former wife, Ms R.  He was granted bail, which was revoked the same day after he breached the conditions of bail. He returned to custody.

5. On 24 April 2003, the father was released on bail.  He resumed living with the mother and B.  The mother commenced supervising the time the father spent with his children C and M.

6. On 22 December 2003, the father again breached the conditions of bail and was remanded in custody.

7. On 13 April 2004, the father entered a plea of guilty to rape and was sentenced to imprisonment for 6 years.  While in prison, the father spent time with C and M every 4 to 6 weeks, supervised by the mother.  The mother and B visited him in prison on Sundays.

8. On 15 June 2005, the father was released from prison on parole.  He commenced living with the mother and B.  The mother says that she supervised the father’s time with C and M.

9. The mother alleged that she was raped by the father on 2 April 2007.  He was charged with rape.

10. On 26 April 2007, the mother relocated to City 1, State 1, US with B. The mother did not inform the father of her intention to remove B from Australia.

11. In July 2007, the mother married Mr Carter, a US citizen.

12. On 14 November 2007, the father breached a condition of his parole by training females at the gym where he worked.  He was taken back into custody and was required to serve the balance of his 6 year prison term. 

13. On 12 March 2008, the District Court in State 1, US ordered that B be returned to Australia pursuant to the requirements of the Hague Convention on the Civil Aspects of International Child Abduction.

14. On 12 April 2008, the mother and Mr Carter travelled with B to Australia.

15. On 13 June 2008, orders were made by the Federal Magistrates Court permitting B to return to the US upon certain conditions. These included that the mother and child were to return to Australia within 14 days of being ordered to do so by the Court. The father, who was in prison at the time, was given leave to re-list the proceedings upon certain events including his release from prison. The mother was to facilitate telephone contact between the child and her father on a weekly basis. The proceedings were subsequently transferred to this Court.

16. On 16 June 2008, B, the mother and Mr Carter returned to the US.

17. On 19 June 2008, a no bill was filed in relation to the alleged rape of the mother by the father.

18. On 22 January 2010, the father was released from prison upon completing his sentence for the rape of Ms R.  Weekly telephone calls between the father and B continued.

19. On 18 June 2010, orders were made by Murphy J that, inter alia, a family report be prepared

20. On 8 December 2010, Murphy J made orders that the mother return to Australia with the child by 18 March 2011 and that an updated family report be prepared.

21. B returned to Australia with the mother and Mr Carter on 18 March 2011.

Evidence

1. There were affidavits by both parties as well as other supporting affidavits in the mother’s case.  There were also affidavits by Dr G, psychiatrist, who was instructed to prepare a psychiatric assessment of the father, and of a behavioural scientist, Mr F who interviewed the parents, the step-father, the father’s partner Ms O and her children Z and Y and the child B.  Neither the father nor the experts were cross-examined.  With leave, the mother gave oral evidence in relation to the matters raised in the revised orders sought by the father.  In relation to what the father proposed as conditions to the mother having sole parental responsibility for major long-term decisions, the mother said that would be impractical because the parties have a long-standing inability to communicate appropriately.  She said that she would feel uncomfortable about what the father proposed. 

2. In relation to the injunction proposed by the father directed towards the child retaining the surname Walbridge, the mother said that B has expressed a preference for using her step-father’s surname, namely “[Carter]”.

3. In relation to the father being at liberty to obtain school records and documentation and medical records, the mother said there has been some history of difficulty about the father’s behaviour so far as communication with the child’s school is concerned.  She said that early in 2010 she spoke with the Principal of the child’s school who informed her that the Principal had received a phone call from the father which lasted for 45 minutes.  The mother said the Principal informed her that she had informed the father that the school did not wish to have direct contact with the father and that any communication between the father and the school should be via the father’s attorney. 

4. The mother also said that B did not want the father to have information from her school or from her doctor because B wanted to move forward with her life without involvement by her father in her life.  The mother said that the child had said in the context of telephone conversations between the father and the child “he is not in my life and I don’t want him in my life”.  The mother also said that she would be concerned if the father had information from the school or the doctor because she feared that he would make contact with them which could be embarrassing for B.  She said that there was an occasion when the father contacted the Principal of B’s school and asked the Principal to go to B’s classroom and take a photo of her for him.  The mother said that the Principal informed her that the Principal considered such a request to be completely inappropriate. 

5. The mother also tendered into evidence a card which the father had sent in January 2010 to B.  Without being overly descriptive, the card was quite strange and clearly inappropriate for a child.  It would be open to differences of interpretation amongst adults and would be confusing and probably frightening for a child.  It appeared to be a ventilation of the father’s frustration presumably with the mother’s behaviour in removing the child to America.  It is not a communication which would give pleasure to a young child. 

6. In view of these types of communications the mother wishes to be able to check any written communications to ensure that such are child focused. 

7. In her affidavit the mother described a long history of controlling behaviour towards her and B by the father.  She also enclosed a statement which she made to the Queensland Police.  I am not sure when this statement was made.  Amongst other complaints made by her about the father, the mother alleges that he anally raped her on 2 April 2007.  This matter never went to trial. 

8. On the other hand the father denied that there had been any family violence during the relationship of the parties.  He said that the mother made a false allegation of rape against him in circumstances where he had made an application under the Hague Child Abduction Convention for orders requiring return of B from the US to Australia.  He said that the mother falsely alleged that he had raped her in order to have him imprisoned so that he would not be able to succeed with his application for return of B to Australia under the Hague Convention. 

9. There was no cross-examination by one party of the other in relation to these allegations.  As things stand, as indicated above, the mother’s complaint about the rape never proceeded to prosecution. 

The Applicable Law

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.

3. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

4. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

5. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.

7. Sub-section 61DA(4) of the Act provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

8. The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. As indicated above, the father has agreed that the mother is to have sole parental responsibility for almost the entirety of the major long-term decisions about B subject to the conditions referred to.  But the father has not agreed to the mother having this in relation to decisions about life-threatening medical procedures.  He wishes to retain shared parental responsibility in respect of such decisions.

3. As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.

4. In Chappell and Chappell [2008] Fam CAFC 143 the Full Court said as follows:

   75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interest the Court must take into account the prescribed matters in ss 60CC(2) and (3) …

Section 60(CC) Considerations

1. The two primary considerations set out in s 60CC(2) of the Act are:

   ·The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Mr F prepared a Family Report.  Mr F observed the father and child on three occasions at the Child Dispute Services Section of the Court.  Mr F described the interplay between B and her father on each of those occasions in some detail.  He described the child as being nervous, apprehensive, somewhat unresponsive and uncomfortable.  He described the second session as being far more difficult than the first with B being frustrated and becoming upset towards the end.  On my reading of Mr F’s description of these occasions the child was unreceptive to her father’s efforts to engage her.  There was even some argument between them.  The third occasion ended poorly with B making a criticism of her father and him making a criticism of her.  The child ended up crying and Mr F had to break up the meeting.  After a short break Mr F brought B back to the interview room and her father gave her a bracelet.  He asked her if she liked it and she shrugged.  Finally he asked her for a hug and she did not respond.  He asked to shake her hand and she shook her head.

3. Although Mr F did not say this clearly, it is obvious that he had the opinion that B did not have a relationship with her father.  For example at paragraph 134 of his report he said as follows:

   [B] does not display in this setting any emotional commitment to the development of a relationship with her father.  There are probably different factors that contribute to this.  The first is the structural history.  She has little experience of her father as a carer.  The second relates to her probably being exposed to negativity and mistrust from her mother and step-father.  The final factor relates to her reactions to the comments and questioning of the father.  She presents here with a sense of pressure and burden at interacting with him. 

4. Previously at paragraphs 129 and 130 Mr F had said:

   129.  [B] has a structural history that has seen the vast bulk of her care met by her mother.  The involvement of her father with her hands on care occurred for a number of months in her first year of life and age for about 10 months when she was aged 3 to 4 years.  She effectively moved through an attachment stage of development in the sole care of her mother.

   130.  From the age of 4 and a half years she has not seen her father.  There has been telephone communication only.  The communication has been tense and difficult at times.  There is an overt level of tension from her mother and step-father in relation to the calls and [B’s] responses to them.  It is evident that particularly during his time in prison, the father has at times displayed something of an aggrieved, proprietorial stance to his daughter, stressing to her he is her father and her surname is [Walbridge].  The father it appears in this setting is attempting to assert his inherent place in his child’s life. 

5. At paragraph 139 Mr F said:

   139.  It is my overall view that there is little likelihood a relationship of much substance is going to develop between [B] and her father regardless of whether she remains in Australia or the USA.  I am not of the view it is in her interests to relocate to Australia.  She should be entitled to some information about her father, with occasional calls and letters a few times a year. 

6. What I deduce from the above expert opinion of Mr F is that B has missed out on forming an attachment to her father in the complicated circumstances referred to by him.  Life has become complicated for B and Mr F observed that there was information that suggested the child’s mother and step-father Mr Carter have done little to promote her relationship with her father from across a distance.  He also said that there was little doubt in his view that B looks to Mr Carter as a psychological father.  He is involved in her care and she is receptive to him and thinks of him as her Dad. 

7. The difficulties referred to by Mr F and the distress experienced by the child, particularly in the last meeting with her father, are consistent with two other areas of the evidence.  Firstly, the mother tendered into the evidence an audio recording which she made of the child following the child participating in a telephone call from her father in January 2011.  This recording was played in open court.  What I heard was a very distressed child crying almost hysterically and uncontrollably saying she did not want to do [the telephone calls] any more, that it screws her up.  She referred to her father as already knowing how she feels and that she has told him how she feels, that she is only [a child] in second grade [at school].  The mother said that the recording was generally representative of B’s frustration and distress at the telephone calls. 

8. The other evidence is contained in the affidavit by Ms S who is the school counsellor at the child’s school, W School in US City 1, State 1.  Ms S said that she had been counselling B since September 2009 commencing with work on social skills and self-esteem.  Ms S said that as she worked with the child, the child’s anger, fears and anxiety came out concerning the time when she lived in Australia with her father and her subsequent interactions with him via telephone calls.  Ms S said that the child had expressed to her the child’s fear of her father coming to get her and hurting her Mum.  The child has had nightmares around the time of her phone calls with her father.  She said that the child’s self-esteem had improved and that the child had been able to become more assertive in her telephone conversations with her father.  Ms S said that B had informed her how much she dislikes her telephone calls with her father, that those conversations had been very exhausting for her and that she wished she did not have to make the telephone calls.

9. Accordingly, in terms of the first of the primary considerations, namely the benefit to the child of having a meaningful relationship with both of her parents, I find that the child does not have any meaningful relationship with her father.  The expert opinion of Mr F, as indicated above, is that there is little likelihood that a relationship of much substance is going to develop between B and her father for the reasons also referred to above and set out in more detail in Mr F’s report. 

10. In addition, under the second of the primary considerations, the Court is to consider the need to protect the child from psychological harm and from being subjected to, or exposed to, abuse. In my view there is some overlap between this and some of the additional considerations pursuant to s 60CC (3) of the Act.

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. It is clear, as was submitted by the Independent Children’s Lawyer, that B has expressed a strong wish not to be involved with her father.  She said to Mr F that she didn’t love him, didn’t want to be around him and that he makes her feel “really, really scared” and “makes her sad on the phone”.

2. B is 8 years of age and in my view some weight should be afforded to the views which she has expressed. 

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) 

1. I have referred to this matter above.  It is unnecessary to refer again in detail to the child’s relationship with her father except to observe that there is no doubt that the father loves B. 

2. The child’s primary relationship is obviously with her mother and this relationship is also supported by Mr Carter as the child’s psychological father.  B has a close, loving relationship with them both.

3. The mother said that the child also has a close and loving relationship with her maternal grandparents in the US.  They live very close to the child’s residence.  When the mother and B went to the US in April 2007 they lived with the mother’s parents for 4 months.  I accept this.

4. I am not aware that there is any relationship between B and her older siblings C and M.  But the mother said that B has a close bond with Mr Carter’s daughter T.

Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The mother said in her affidavit that she believed it to be in B’s interests to have a relationship with her father. Yet I have no reason to doubt the observations made by Mr F referred to above, namely that the mother and Mr Carter have done little to promote a relationship between B and her father.  There is nothing to indicate that there would be any improvement in that situation, in fact, in my view, it would almost certainly be the reverse. 

2. And of course the mother removed B from Australia without the father being consulted about this in circumstances in which she must have known for her to be acting in such a manner would make it very difficult for B to have any relationship with her father.

3. Despite the mother professing to believe that it would be in B’s interests to have a relationship with her father, I am not persuaded that the mother has any commitment to this.  It is true that the mother has complied with court orders, and in the face of considerable upset and distress on the part of B.  I also believe the mother when she says that she would not breach court orders.  But in my view, that is where behaviour on her part in the direction of assisting the child to have a relationship with her father would stop.

4. On the other hand the father has, on numerous occasions, endeavoured to undermine the relationship between the child and her mother and Mr Carter.  And, as indicated above, Dr G, psychiatrist has expressed the opinion that the father would be unlikely to be able to refrain from criticising the mother to the child.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. In my view this is relevant in the context of the application by the father for orders that the child journey from the United States to Australia a couple of times each year and spend time with him and his partner and her children.  Given the observations by Mr F in his report to which I have referred above, one could only expect that the child would be most distressed if she was forced to leave the care of her mother in the US to travel to Australia for this purpose.  One could only wonder about the psychological and emotional effects on the child of such a course and there could be no confidence that such effects would be anything other than negative for the child. 

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. 

1. The distance between the US and Australia poses an enormous practical difficulty and expense.  The father has indicated that he does not have the funds to be able to pay for such visits.  There is no question in my mind that this also poses as a significant obstacle in the way of the child being able to develop a meaningful relationship with her father.

2. If the child was to travel to Australia to spend time with her father the mother said that it would be difficult for her to take time off work without losing her job.  The mother said that she is entitled only to one week’s leave per year so that even if she was able to obtain the leave without prejudicing her continuing employment, the leave would have to be taken without pay. 

Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. The child has lived with her mother for the whole of her life.

2. Mr F said at paragraph 135 of his report as follows:

   135.  There is no information that suggests the mother and [Mr Carter] lack the capacity to care for the child.  There is no information that suggests the child has any special needs or developmental issues.  …

   As indicated, above Mr F had also observed that the mother and Mr Carter have done little to promote B’s relationship with her father as I have said.

3. In relation to the father’s capacity in this regard, in my view, there are some serious limitations.  Dr G, psychiatrist, has provided a psychiatric assessment in relation to the father.  At page 9 of her report Dr G provided her opinion of the father as follows:

   I believe that [the father] demonstrates a disorder of personality functioning which most closely resembles narcissistic personality disorder.  However, I don’t believe that he fills all the criteria for diagnosis of this condition and consequently personality disorder not otherwise specified is probably the most accurate representation.  Certainly I believe that his personality has caused significant distress or impairment in important areas of functioning.  In particular I believe that his lack of empathy is significant.  He continually justifies and rationalises his past conduct and I believe that it is highly improbable that he could resist criticising his ex-partners to his children were he to have unsupervised contact with them.  Areas of major concern are his rape of his ex-wife and the circumcision of his son without her knowledge. 

   His presentation almost certainly relates to his account of a dysfunctional early childhood.  The material indicates that he has had intensive counselling as a result of his incarceration but I believe that his sense of entitlement remains and that he would tend to see his children as an extension of himself rather than demonstrate an awareness of their developmental needs.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; and

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

1. There are no matters relevant to these considerations.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. In my view the mother failed to demonstrate an appropriate attitude to B and to her parental responsibilities when she removed the child from Australia in the manner referred to above. 

2. Consistent with this is the failure by the mother to encourage a relationship between the child and her father apart from arranging for the child to take telephone calls from her father.

3. Other than these matters, the mother’s attitude in respect of the relevant matters appears to have been appropriate.

4. On the basis of Dr G’s opinion as expressed above, in my view there is some deficiency in regard to these matters in the case of the father.  Also I regard the card which the father sent to the child which depicted the creepy character as being an illustration of insensitivity by the father to the child and as demonstrating some inappropriateness of attitude to responsible parenting. 

5. There have also been numerous other instances of the father writing to B in terms quite inappropriate for a young child.  For example, in March 2009, when B would have been just 6 years of age, the father wrote to her assuring her that he was her “real” father.  In the course of this letter the father said that he had a copy of the DNA results from the paternity test that says he is her real father.  He also said that the only reason she was still in the US was “because of a malicious allegation made against me – lies that would even disappoint God.  Evil intent has taken you away from me.”  And there was other material in the letter which was quite inappropriate particularly for such a young child.

Section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

1. There is a real issue between the parties about family violence. I have referred to this matter above.

2. On the one hand, as I have said, the mother complained about a long-standing pattern of intimidation and controlling behaviour perpetrated against her and the child by the father.  The mother alleged that she was raped by the father.  But the mother also informed Mr F that apart from that alleged incident the relationship between the father and herself was not violent.  I infer from this that the mother meant not physically violent. 

3. On the other hand, as indicated above, the father strenuously denied that he raped the mother and I note that it was not the subject of a trial.  The father said that there had been no violence between him and the mother.  As I have said neither party tested the other’s assertions about these matters.

4. But having said this, as indicated above, the father was convicted of the rape of his former wife Ms R and he served a period of incarceration in respect of this.  Clearly this is a fact in evidence in the proceedings and, in my view, the matter must be regarded as one in which violence is a relevant ingredient. 

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. As indicated above the father has sought a regime of orders on an interim basis, which would have the effect of a progressive reintroduction of time spent directly between the child and her father.  If the Court was to put such orders in place this would lead to the inevitability of the proceedings coming back before the Court in something like twelve months time for re-evaluation. 

2. The Court was urged by the Independent Children’s Lawyer to make orders on a final basis.  This submission was strongly reinforced by learned counsel for the mother who said that the proceedings have been very costly to the mother not only in a financial sense but also in terms of the time consumed by the litigation and the stress involved to the mother, Mr Carter and most importantly to B.  In all the circumstances the Court was urged on behalf of the mother and by the counsel for the Independent Children’s Lawyer to make orders on a final basis.

3. In my view it would not serve the interests of the child for there to be any further litigation and I accept that it is in the child’s interests to make final orders.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. There is nothing of substance to include here.

Conclusion about the child’s best interests

1. On the basis of the above, particularly the observations and opinion of Mr F it appears to be the sad reality in this case that B does not have a relationship with her father.  I accept her view that she does not wish to see her father.  As indicated above, Mr F has the opinion that B is unlikely to develop a relationship with her father.  Amongst all the complicated factors which appear to have been operating against the child having a relationship with her father is the central difficulty identified by Mr F.  This is that the child does not appear to have any emotional commitment to the development of a relationship with her father.

1. Some efforts have been made by implementing the current orders to endeavour to facilitate a relationship between the child and her father.  These included the orders for telephone communication between them. 

2. The mother said that after the telephone communication between B and her father resumed following the orders of the Federal Magistrates Court in 2008 it went well for some weeks.  But the mother said that B became bored with it.

3. I am satisfied that the telephone communication has become distressing for the child and clearly it has failed to fulfil the hopes behind the making of that order.  I cannot see how persisting with such an arrangement could possibly be consistent with the emotional and psychological well-being of the child. 

4. The father is most desirous to have put in place some form of therapy between himself and the child with a view to enabling development of a relationship between them.  In my view, there are a number of difficulties with such a course.  Firstly, it is difficult to see how taking the risk which would be involved in requiring the child to have face to face time and telephone communication with her father, in the light of the very negative developments concerning the telephone communication, might be justified when all the indications are that it is highly unlikely that any relationship would develop between them. 

5. Clearly the child is well settled living with her mother and Mr Carter and she is giving all indications of wanting to preserve the stability and closeness that this offers her as against what she appears to regard as a somewhat threatening and frightening relationship with her father.  For example at the end of the first interview with her father conducted by Mr F, when the father was endeavouring to persuade B to give him an opportunity to have a relationship with her, including telling her that if he got married to his partner Ms O she would be B’s step-mum, B said as follows:

   I’m going to have two Mums and two Dads and I don’t want my life to be that way.

6. B then left the session without offering any farewell to her father.  And at the last session she said to her father:

   I like the life I have already and I want it to be like this probably until I die.  You’re lucky you got to see me.

7. Also there are the practical difficulties imposed by the vast distance between parents as well as the problems identified by Dr G about the capacity of the father to be able to provide for the child’s needs.

8. In my view, all of this adds up to there being insurmountable difficulties standing in the way of the Court being able to have any confidence that to require B to spend time with her father or to have telephone communication with him would be in her best interests.  In my view, on the evidence before the Court, it is clear that it would not be.

Conclusion about parental responsibility

1. There is a very poor relationship between the parents and an ongoing level of conflict between them as exemplified by this litigation.  The mother informed Mr F that she had not spoken to the father about B since separation.

2. In my view, these are hardly circumstances conducive to it being in the interests of B for them to share parental responsibility for her. 

3. As indicated above, the father, to his credit has conceded sole responsibility for most of the major long-term decisions concerning B except in relation to the life-threatening medical procedures.  But in my view, B cannot afford to be subject to circumstances which might permit disputation between her parents to prevent an important decision being made about some aspect of her life including any medical emergency. 

4. Submissions consistent with this were made by not only counsel for the mother but also by counsel for the Independent Children’s Lawyer.  I accept the thrust of these submissions.  It was submitted on behalf of the father that it would not be difficult for the mother simply to send him an email to inform him about a decision she proposed to make about B, asking him for his view, considering his view and then sending another email informing him about the decision she had made.

5. I must say looking at this suggestion from the perspective of the child’s best interests, I can see no worthwhile purpose in such a requirement.  In fact it might be seen merely as a sop to the father.  But of more concern is the fact that it could provide opportunity for further litigation between the parents if the father was to think that the mother had not attended to her obligations to consult him about relevant decisions.  Further litigation would not be in B’s interests.

Other Orders Sought

Change of Name

1. As indicated above the father is seeking the following order:

   The mother is restrained from allowing the Child to be known as any name other than [B Walbridge], and do all acts and things necessary to amend any document on which the Child is known by any other name.

The Relevant Law

1. Clearly the father is seeking an injunction. Injunctions in relation to a child may be ordered pursuant to s 68B(1) or s 68B(2) of the Act.

2. Subsection 68B(1) provides as follows:

   (1)If proceedings are instituted in a court having jurisdiction under (Part VII) for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a)an injunction for the personal protection of the child;

   (b)an injunction for the personal protection of: (a parent or various persons connected with the child;

   (c)an injunction restraining a person from entering or remaining in: (the child’s residence or various specified areas); or

   (d)an injunction restraining a person from entering or remaining in:  (various specified places).

3. Subsection 68(B)(2) provides as follows:

   A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1 applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

4. Looking historically at the development of the jurisprudence in relation to determining disputes about children’s surnames the relevant consideration has always been the best interests of the child.  For example, in this Court as long ago as 1976, in the case of George and Radford (1976) FLC 90-060 Watson J said at page 75,296 that the first of several factors which his Honour considered should guide him in relation to such a decision was that “the final decision must be governed not by supposed parental right but must be in the best interests of the children”.

5. In the Full Court case of Flanagan v Handcock (2001) FLC 93-074 the majority Kay and Holden JJ in considering the relevance of the principle that the best interests of the child were paramount to the exercise of power pursuant to the then s 68B(1) which was in similar form to the present provision, the majority said as follows (at page 88,303):

   … If the paramountcy principle was not decisive, it was certainly relevant and needed to be given careful consideration, which it was. 

6. Finn J said as follows (at page 88,305):

   … A reading of the current Pt VII of the Act reveals that the requirement that the Court must regard the best interests of the child as a paramount consideration … has not been expressly imposed on the exercise of the court’s power to issue injunctions under s68B(1). Rather, under that sub-section, the Court is empowered to “make such order or grant such injunction as it considers appropriate for the welfare of the child”.

   Thus, in my view, it could well be said that the welfare of the child is the paramount consideration or essential test for an exercise of the jurisdiction under s60B(1) …”.

7. Turning to the current provisions of the Act as indicated above, clearly s 68B(1) of the Act is within Pt VII of the Act.

8. As indicated above, s 60CA provides to the effect that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. In my view, there is no question that an order for an injunction under s 68B(1) is a parenting order. This is because s 64B(1) of the Act defines what a parenting order is. It provides in effect as follows:

   (1)      A parenting order is:

   (a)an order under this Part … dealing with a matter mentioned in subsection (2) …

9. Sub-section 64B(2) provides in effect that a parenting order may deal with one or more of the following:

   …

   (i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. 

10. In my view, to the extent that previously the manner in which the relevant provisions of the Act had been drafted might have left any uncertainty about the matter, the current provisions now leave no such uncertainty. That is, that when considering the granting of an injunction pursuant to s 68B(1) of the Act the relevant consideration is that set out in s 60CA namely the best interests of the child.

Evidence

1. The mother gave evidence during examination in chief that B prefers to use the surname “[Carter]”.  The issue is not referred to directly in her affidavit.  It is also the mother’s evidence that she has observed a close and loving relationship between B and Mr Carter.  As indicated above the mother said that she shares the role of primary caregiver for B with her husband.

2. Mr Carter informed Mr F that B calls him “Dad”.  And during the course of B’s interview by Mr F she indicated that she calls Mr Carter “Dad”.  It is clear that the surname of “[Carter]” is being used for B.  This is because in her affidavit, Ms S, the school counsellor at B’s school, referred to B as “[B Walbridge Carter]”.

3. Clearly the father has a strong view that B should be using his surname.  For example, the father wrote a letter to the child’s school in 2009 stating that “at no time did I give permission for [the mother] to take our daughter out of Australia, or change her last name from [Walbridge] to [Carter].  I have enclosed a copy of proof that [B’s] last name is [Walbridge], not “[Carter]”.  Secondly, it is illegal to change a child’s last name without the permission or consent of both parents.  Thirdly it is not only wrong to change a name of a child in the state of [US State 1] without the real father’s permission, it is illegal to enrol a child in a school using another name.  It is also cruel to the child herself (confusing)”.

4. The father also expressed concern to Mr F, that B was using the surname “[Carter]” without his permission.  He said that he had spoken to B about it.

5. Mr F asked the mother’s view regarding B’s surname.  The mother said that B would say she is B Carter “because she wants to be” but that anything on her school record is Walbridge.  This appears to be at some odds with the affidavit of Ms S referred to above. 

6. The father’s frustration about this matter is understandable.  He sees the use by B of a different surname from his as just another measure by the mother to eliminate him from the child’s life.  It was submitted on behalf of the father that preserving the child’s use of her father’s surname would go a long way to assisting the child to remember her connection with her father.

7. But as indicated above, the child is well settled and happy in her life with the mother and Mr Carter.  She has a close relationship with him and calls him “Dad”.  She prefers to use the surname “[Carter]” and has been using this surname at school and presumably in most other contexts.  It would appear that everyone in her household including her mother uses the surname “[Carter]”. 

8. B does not wish to develop a relationship with her father and sadly, on all present indications, is unlikely to have a relationship with him.

9. In all the circumstances, in my view, it could not be consistent with B’s best interests to apply the Court’s authority to restrain her mother from using a surname in relation to B other than that of her father.

School and medical records

1. In relation to the orders sought by the father to permit him to obtain from the child’s school relevant school reports, photos and relevant documents, and medical records from the child’s treating medical practitioners, I note the submissions made in respect of these matters. 

2. In particular I note that it was submitted on behalf of the mother that school and medical records should only be ordered to be available to the father if such information is likely to be palatable to B knowing that her father has such information about her.  I must say I find this submission difficult to accept.  In my view, despite cause for pessimism at this point in time that B is likely to develop any relationship with her father, one cannot rule this out entirely.  In this context in my view, receipt by the father of this information could be regarded as serving the best interests of the child.

3. I accept that there was an occasion when the father had a very long telephone call with the Principal of B’s school.  But in my view this does not justify a situation where he is simply frozen out of having relevant information about the child’s progress and about her medical condition. 

4. I accept the other part of the submission by learned counsel for the wife that if the father was to use any such information to intrude upon, or disrupt, the child’s upbringing this would be a different matter.

5. I propose to put in place these orders as sought by the father. 

Written communication from father

1. As indicated above the father also seeks an order to the effect that he be at liberty to write to the child at least once per calendar month.

2. There was no opposition in principle to the father writing or sending a card to the child.  In particular, the mother did not oppose “infrequent written communications” by the father to B.

3. But counsel for the Independent Children’s Lawyer submitted that the mother ought to be able to vet any correspondence from the father to B to ensure that it is appropriate.  I note that the mother did this in relation to the inappropriate card with the creepy character as I have said and I regard her actions on that occasion to have been entirely appropriate.  There have also been various other inappropriately written communications from the father to the child as I have indicated above.

4. It was also submitted by counsel for the Independent Children’s Lawyer that the Court would not order the mother to pass on any correspondence from the father to B.  I accept this submission but note that the Court would expect the mother to give the child her correspondence unless there was a reasonable basis to regard such as being in an unsuitable form.

5. I note also that Mr F said (at paragraph 138):

   “that there should be some structure that allows [B] the scope to receive information from [her father], especially where it appears she is being raised in an environment of low tolerance toward [the father].”.  [Mr F] suggested occasional calls and letters a few times a year.

6. In all the circumstances I propose that the father may send a letter or a card to B not more than four times per year.

Written communication from child

1. The remaining matter for consideration is the application by the father for orders which would require the mother to encourage B to write to her father, communicate with her siblings C and M and have a relationship with the father’s partner and her children.

2. In my view, having regard to the various matters referred to above, it would be quite unrealistic to anticipate that there would be any commitment by the mother to such an order, or that in fact such an order would achieve the effect desired by the father.  Given all the difficulties which have developed about the orders for telephone communication between B and her father, in my view the order sought by the father would be likely to be counter-productive.

3. It might also open up opportunity for further litigation. 

4. One would hope that with the passage of time, B might become curious to know something of her siblings and her father and about their lives.  But to push things in the manner suggested by such an order might not only cause considerable distress and anxiety for the child but also extinguish this glimmer of hope.

5. I do not regard such an order to be in B’s best interests.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice W P Johnston delivered on 9 September 2011.

Associate:     

Date:              9 September 2011