NIVEN & DERRICK

[2016] FamCA 377

FAMILY COURT OF AUSTRALIA

NIVEN & DERRICK [2016] FamCA 377

FAMILY LAW – CHILDREN – Best Interests – Where there is a benefit to the child in having a meaningful relationship with both of his parents – Where the current parenting arrangement has become unworkable and intolerable for the child – Where there is a need to protect the child from psychological harm in the mother’s household – Children’s views – Sibling relationships – Where the mother wishes to relocate to the USA and there is a real risk she will not return with the child – Where given all the circumstances of the current matter, the mother has a limited capacity to meet the child’s emotional needs – Where the question becomes which of the parents is more likely to support the relationship with the other parent – Where on balance the father is the one who is likely to do so – Where there will be a positive impact on the child of a change of residence – Child to live with the father – Child to spend time with the mother during school holidays in Australia, following an initial embargo period  

FAMILY LAW – CHILDREN – Parental Responsibility – Where the communication, consultation and compromise required for equal shared parental responsibility is an impossibility for these two parents – Where whichever parent the child lives with should exercise sole parental responsibility – Father to have sole parental responsibility

Family Law Act 1975 (Cth), ss 60CC, 64B, 68B, 70NEC

APPLICANT: Mr Niven

RESPONDENT: Ms Derrick

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle

FILE NUMBER: NCC 1499 of 2009

DATE DELIVERED: 20 May 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 9-11 and 16 March and
15 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kent

SOLICITOR FOR THE APPLICANT: Kernick Law

COUNSEL FOR THE RESPONDENT: Mr Bithrey

SOLICITOR FOR THE RESPONDENT: Tonkin Drysdale Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle

Orders

1. That all previous orders relating to the child B born … 2004 (“the child”) are discharged.

Parental Responsibility 

1. That the father shall have sole parental responsibility for the long-term care, welfare and development of the child.

2. That the father shall notify the mother of the school/s in which he enrols the child and authorise and request the principal of the school to provide the mother, at her expense if any, copies of all school reports and school photograph order forms relating to the child.

Residence

1. That the child shall live with the father.

2. That for a period of not less than twelve (12) weeks from the date of these Orders, there shall be no time and communication between the mother and the child.

   5.1During that period of twelve (12) weeks the mother is restrained       from:

   5.1.1Contacting the child by any means whatsoever, personally and via third parties;

   5.1.2Approaching the child directly on any occasion; and

   5.1.3Attending at the child’s school whether or not the child is in attendance.

   EXCEPT THAT in the event that the mother returns to live in the USA during the twelve (12) week period AND she provides the father with the time and date of her departure, then the child may spend time with the mother for a period of two (2) hours supervised in accordance with Order 6.1 in the week prior to her departure.

3. Thereafter the child shall spend time and communicate with the mother as follows:

   6.1During 2016, until the mother moves to live in the USA:

   6.1.1On one day of each alternate weekend for two (2) hours on a supervised basis, commencing not before the 13^th Saturday from the date of these Orders until the end of 2016 or the date on which the mother moves to live in the USA, whichever date is earlier;

   6.1.2For the implementation of Order 6.1.1 herein, unless otherwise agreed, the supervisor shall be the staff at the C Supervised Contact (“the organisation”) and for that purpose the parties shall do the following:

   (a)   Within seven (7) days following the making of these Orders, each party shall contact the organisation and complete any intake assessments or procedures required by the organisation;

   (b)   The time that is to be spent by the child with the mother shall occur when it is made available by the organisation and is subject to agreement by the parties;

   (c)   The venue at which the time is to be spent by the child with the mother shall be as agreed between the parties and the organisation and failing agreement, as designated by the organisation;

   (d)   The parties shall share equally in any costs due to the organisation;

   (e)   The father shall cause the delivery of the child to, and his collection from, the venue for the time spent by him with the mother; and

   (f)   The parties shall comply with all reasonable requests and direction of the organisation.

   6.2Commencing from 2017 and subject to compliance by the mother with Order 7 herein (return of passport) the mother may spend time with the child, unsupervised, in Australia and communicate with him as follows:

   6.2.1During two of the three NSW gazetted school term holiday periods in each year, with the mother to nominate by the last day of each calendar year which of the two school holiday periods she wishes to spend in the following year, commencing with nomination for 2017; and

   6.2.2During the Australian Christmas school holiday period for the first half in each year in which Christmas Day falls in an odd numbered year commencing in December 2017 and for the second half in each year in which Christmas Day falls in an even numbered year commencing in January 2019.

   6.3For the purpose of the implementation of Order 6.2 herein the periods of holiday time are deemed to commence at 9.00 am on the first day following the last day of the school term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which the child is due to return to school in the new school term, and the mid-point is midday on the day that is halfway between those dates.

   6.4For the purposes of changeover for holiday periods the father or his nominee shall deliver the child to the home of the mother at the commencement of the holiday period, and the mother or her nominee shall deliver the child to the home of the father at the conclusion of the holiday period.

   6.5The mother may communicate with the child as follows:

   6.5.1By way of telephone (including FaceTime/Skype) at 7.30 pm (AEST and AEDT);

   (a)   Each Sunday;

   (b)  On the child’s birthday;

   (c)  On the mother’s, stepfather’s and sister’s birthday;

   (d)  On Christmas Day in even numbered years; and

   (e)  Each Mother’s Day.

   6.5.2For this purpose the mother shall telephone (or FaceTime/Skype) the child on the telephone number provided to her by the father and that the father shall ensure the child is able to receive the mother’s calls at that time.

Restraint on removal of the child from Australia

1. The mother shall forthwith deliver to the solicitors for the father the passport(s) of the child.

2. The mother Ms Derrick born … 1964 is restrained from removing B born … 2004 from the Commonwealth of Australia.

3. Upon the father being provided with the child’s passports(s) the father may, at his discretion, remove the name of the child from the Airport Watch List.

Restraints on conduct

1. Pursuant to s 68B of the Family Law Act the mother is restrained from:

   (a)entering upon or approaching within 100 metres of the child’s place of schooling; and

   (b)Making contact or communicating with the child by any means, except in accordance with these Orders, or by the father’s consent in writing.

2. Each party is restrained from denigrating the other in the presence or within the hearing of the child and from permitting him to remain in the presence of any third party denigrating the other parent.

3. Each party is restrained from discussing these proceedings with the child except so far as is required to comply with these Orders.

4. Each party shall notify the other of any medical emergency, serious illness or injury suffered by the child whilst in their respective care and the father shall use his parental responsibility for the child to authorise any treating health professionals to communicate with the mother about the condition and his treatment.

5. Each party shall inform the other and keep the other informed, in writing, of their current respective residential address and mobile telephone numbers.

6. The mother is restrained from bringing the child into contact with (either face to face or by telephone) Mr D, psychologist.

7. In the event that the mother does not cause the delivery back of the child to the father in accordance with these Orders following periods of time spent by the mother with the child, then all Orders for time and communication are thereafter suspended until further order of the court.

Education

1. The Independent Children’s Lawyer shall forthwith provide to the principal of E School a copy of these Orders.

2. The father may provide to the principal of any school in which he enrols the child a copy of these orders and these Reasons for Judgment to read (but not copy) if the father considers it necessary in relation to:

   (a)Any period of time which the child will be absent from school immediately following these Orders;

   (b)Any change of school for the child; and

   (c)Any behaviour of the child at school which might otherwise be difficult to explain.

Explanation of the Orders

1. The father shall, within twenty eight days (28) days of these Orders, cause the child to be made available for interview with the Family Consultant who prepared the Family Report, or as the Senior Family Consultant directs, at the Newcastle Registry of the Family Court of Australia in order for the Family Consultant to explain to the child the effect of these Orders and to consider any relevant questions he may ask.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1499 of 2009

Mr Niven

Applicant

And

Ms Derrick

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child, B, a boy aged 12 (“the child”). He is in his final year of primary education.

2. The parties met in 1997, began living together in 1998 and married in 2000. Their first child, F, a girl now aged 17 years, was born the following year. Their second child, B, was born in 2004. The parties separated in February/March 2008 and were divorced in August 2009.

3. The parties have each formed new relationships. Both live on the Central Coast of NSW, although that is a temporary arrangement for the mother.

4. Both children gradually became opposed to spending time with the father. First F, who has now rejected the father and is openly scornful of him, and later the child, who has been highly resistant to spending time with the father but has also actively enjoyed a block of time with him as recently as early this year.

5. The child is under crippling emotional pressure, partly as a result of the conflicting wishes of his parents, but mostly as a result of their mutually hateful uncommunicative relationship as parents.

The Father

1. The father is the applicant, aged 48.  He was born in Country G and migrated to Australia as a young man in 1988.  He is a tradesman by occupation.

2. His present household consists of himself, his partner of five years, Ms H, aged 40, and her son, J, aged 15. 

3. The application of the father to the Court is that he have sole parental responsibility for the child who would live with him and spend time with the mother when she is in Australia.

The Mother

1. The mother is the respondent, aged 51. She was born in Australia. When she met the father she had been previously married and divorced.

2. The mother has worked in a sports business together with her current husband of four years, Mr I, aged 48.  However she is waiting for the outcome of these proceedings before moving to the USA to re-join her husband, who moved to live and work there in 2014. Mr I’s son, K, almost 17 years old, and the parties’ older child F, are also members of the household in the USA.

3. The orders sought by the mother are for leave to establish a residence for the child in the USA with her, F, his step-father and step-brother.  The mother asks for sole parental responsibility and proposes regular holiday time for the child in Australia with the father.

Short History of Relevant Events since separation

1. In early 2008 the parties separated, just after the child’s fourth birthday. The mother had met her current husband. He too separated from his wife at that time. Late in 2008 the mother and Mr I formed their relationship.

2. The parties participated in dispute resolution and implemented an equal-time shared care arrangement for the children in short periods with three changeovers per week.

3. In August 2009 the parties were divorced.

4. On 30 December 2009 the mother filed an Initiating Application for parenting orders in the Family Court. She proposed residence for the children with her and four nights per fortnight with the father.

5. In February 2010 the parties commenced counselling with Mr D to assist with conflict between them.

6. Also in that month the father filed his Response which was a mirror proposal to the mother’s. However his expressed wish to the Family Consultant was to continue with equal shared time arrangement, but in seven day blocks.

Children and Parents Issues Assessment

1. On 16 March 2010 a Children and Parents Issues Assessment (“CAPIA”) was provided to the court by a Family Consultant.

2. Serious problems in the family were identified. There is a description of F as follows:[1]

   … [F] presented as a serious child and was clearly weighed down emotionally by the ongoing conflict between her parents.  [F] spoke about her parents separating because they were arguing all of the time and described the arguments as occurring for about a year and described the arguments as either both parents yelling at each other or simply both parents arguing about things.  [F] stated that she had never seen any physical elements to any of her parents’ arguments.

   Since the parents’ separation, [F] has become the messenger between her parents and she has begun to censor what information she relays to each parent.  It appears as though [F] tends to tell each parent what [F] thinks that they want to hear.  [F] stated that she was not playing [sport] this year ‘which is good because there won’t be any problems (between the parents) now’. It is noted that last year [F] played [sport] and attended training every second week (when with [the father]) and also undertook [alternative] training and events every second week (when with [the mother]).

   [F] was well aware of the detail of the parents’ conflict and appeared to see the current conflict as a battle that only one ‘side’ could ‘win’.   [F] spoke about going to [L School] … ‘if Mom won’ and going to [M School] and getting a dog … ‘if Dad won’. It is noted that when discussing schools F stated that Mum says bad things about [M School] (all the girls there are Lesbians) and Dad says bad things about [L School] (all the kids there are bullies)!  [F] stated that if she could wish for anything in the world she would wish that her parents would stop fighting and be nice to each other.  Sadly [F] was not confident that this would happen. [F] stated that when she gets sad at school she cries and the reason she gets sad if because of the fighting between her parents.

   [1] CAPIA dated 16/03/2010, page 3

3. At that time, the Family Consultant noted that the child, then aged six years and one month old, was “… only vaguely aware of his parents’ proposals and did not appear to be as concerned as F about the conflict between his parents. The child volunteered his preference to see both of his parents and did not appear to understand the implications of each of his parents’ proposals”.[2]

   [2] CAPIA dated 16/03/2010, page 4

4. The CAPIA summarised the situation as follows:[3]

   Despite separating 19 months ago, the parents were still engaging in ongoing conflict.  Both parents know that this is extremely harmful for the children and both parents want the situation to improve. 

   F had been inappropriately exposed to the adult conflict by both parents and this is clearly having a significant negative impact upon her …

   Both children are currently attending counselling with [Mr D], clinical psychologist … [F] states that she does not find her discussions with [Mr D] helpful.

   The current level of communication between the parents did not support a continuation of a shared care living arrangement.

   [3] CAPIA dated 16/03/2010, page 5

5. It is reasonable to infer that F buckled under the pressure described above and when the opportunity later came to choose one parent or the other, chose the mother and rejected the father.

6. On 17 May 2010 interim parenting orders were made by consent. They provided for equal shared time on a week-about basis and with provision for other special times.

7. In July 2010 the mother began living with Mr I.

8. In November 2010 final property orders were made by consent.

9. On 12 October 2010 the father picked the child up from school for an eye appointment. He did not tell the mother. When the mother found out she rang the police. There had clearly been no improvement in the ability of the parties to communicate or to protect their children from their own competition for parental authority.

10. In February 2011 the father commenced a relationship with Ms H.

11. In that same month, Mr I was divorced from his first wife.

12. In April 2011 a Family Report was released.

Current Orders May 2011

1. On 12 May 2011 a set of final parenting Orders were made by consent.  Those Orders appeared to provide for the parties to have equal shared parental responsibility, although in fact, the mother was the ultimate arbiter of long-term issues where there was no agreement after dispute resolution.[4]  

   [4] Orders 1 and 2 made 12 May 2011

2. The Orders otherwise provided for the children to live with the mother and spend time with the father in each alternate week for one night overnight and each alternate weekend from Friday to Monday, half school holidays and special occasions. The parties agreed through their Orders to participate in a Keeping in Contact program.

3. The Orders did not provide relief from conflict or engender a co-operative approach. One example is that in 2011 the father began attending reading group at the child’s school on Fridays.  The mother objected because the Orders did not provide for the child to spend time with the father in that way. The mother withheld the child from school on Fridays. The father stopped going to reading group. Another is that in 2013 the child was enrolled to play soccer by each parent with a different team.  He played alternate weeks that season.

4. In 2011 the mother married Mr I.

5. Later in 2011 the father began living with Ms H.

6. The relationship between F and the father deteriorated. She became increasingly reluctant to spend time with him and then to communicate with him. The father considered that F should have some latitude in the amount of time she spent with him, a decision he has come to regret. There is now complete estrangement between F and the father. Two-and-a-half years have passed since she last spent time him. Her behaviour towards him has been rude and contemptuous; her written communication quite poisonous.

7. From 2012 the child asked the father more than once if he could spend a bit more time with him. The mother, who had been strongly supportive of F’s wish to spend less time with the father, did not support the child’s wish for more time. The focus of the mother increasingly was the new family unit of herself, Mr I and the three children.  The children called Mr I “Dad”.  He attended the Father’s Day event at the child’s school.

1. I conclude that the mother saw a benefit in minimising the role of the father because in her own view her new husband was not only a better partner to her but a much better father for the children. However genuinely held, that view denied the children’s own feelings and the significance to them of their independent relationship with the father.

2. In April 2014 there were events in the American parent company of the business run by Mr I, which lead to a request for him to come over and “help rebuild the company”.[5] In May 2014 Mr I booked a family holiday for himself, his son, the mother, and her two children. The holiday was said to “mark [the mother’s] 50^th birthday” and was for about four weeks between November and December 2014.

   [5] Affidavit of Mr I filed 02/03/2016, pars 12-14

3. However, I do not accept that the sole purpose of that holiday was to celebrate the mother’s birthday. By that stage Mr I was well aware that the

   
   

   12 month period that he had initially been asked to work in the USA was likely to be extended. The offer had been made in April 2014 and the evidence of

   
   

   Mr I is that when he arrived in the USA the company was in a far worse position than he had expected. He refers in his affidavit to improvements effected by him in the period between early 2015 and early 2016 and there is no reference to a return to Australia. 

4. It is clear that for the foreseeable future, Mr I’s future is in the USA and his intention is that the mother and her two children live with him.  His own son has lived with him since his separation from his former wife.

5. The mother was not straight-forward with the father about the possibility of extended time in the USA when the holiday was raised.

6. Between 14 March 2014 and 13 May 2014 the mother withheld the child from spending time with the father. Ostensibly, this was because he had injured his thumb in the father’s care prior to that period of time and the mother was not confident that the father could manage the injury.  During that period there was also no telephone contact. When contact resumed in May 2014 the child was pleased to see the father, “I missed you Dad, I wish I could see you more”.[6]

   [6] Affidavit of the father filed 01/03/2016, par 115

7. The mother made some dramatic allegations thereafter about the child suffering from nightmares and fears for which he required counselling.  I am confident that the child knew at that time that the mother wished to go to the USA, or at the very least that there was a controversial holiday looming.

8. In May 2014 the mother contacted the father, advising him of her wish to take both children to the USA for a holiday at the end of that year. Soon after, the mother sent a further email asking for the father’s consent to allowing the children to relocate to live in the USA for a period of 12 months. By that time Mr I knew that he would be working in the USA.

9. The father had been willing to agree to the holiday but was uncertain about a 12 month period.  It became apparent to the father, by June 2014, that the child knew of the mother’s wishes about the USA trip and that the child saw it as his task to persuade the father to allow him to go.

10. The mother pressed for consent to the 12 month relocation. In her email to the father,[7] the mother referred to the child having told her that the father had agreed to residence in the USA if he was to come back every second week. The mother also referred to the fact that F had “decided to get her own solicitor for a couple of matters and that she was old enough to make her own choices now about going overseas”. There was no attempt to consult with the father in respect to F.

    [7] Affidavit of the father filed 01/03/2016, Annexure NRN41

11. The father gives evidence that on 1 June 2014 the child was spending time with him in accordance with Orders and he observed the child to be worried about something. He also observed that the child was receiving a great many text messages on his mobile telephone. When the father checked the text messages they were both from the mother and F, and were messages such as:[8]

    I’m really missing you this weekend.

    I want to let you know ‘you can do it!’ I love you with all of my heart.

    Have you done it yet?

    How’s it going?

    I hope you went alright this afternoon.

    Just thinking of you.

    [8] Affidavit of the father filed 01/03/2016, par 126, Annexure NRN43

12. The father discerned that the child was in the position of being the family advocate for the trip to the USA at a time when the father was uncertain about the significance of the initial request for a holiday being extended to a 12 month relocation. The father explained his thought process to the child and unsurprisingly the child was disappointed. The father was uncertain as to whether he was disappointed about the trip or disappointed that he would have let the mother down by not obtaining permission.

13. In July 2014 the parties attended Family Dispute Resolution.

14. By November 2014 the child was refusing to spend time with the father.

15. On 24 November 2014 the father filed an Initiating Application in the Federal Circuit Court. He proposed that in the event the mother chose to live outside NSW, the child should live with him and spend time with the mother as agreed.  He also sought interim orders restraining the child being taken from Australia and asking for his name to be put on the Airport Watch List. The father was still open to the holiday if there was reassuring evidence of certain return to Australia.

16. On 25 November 2014 the father went to the child’s school to see him before he left for the holiday in the USA. He was able to see the child and reported a happy exchange. The child confirmed that he was excited about the holiday and was looking forward to seeing the father on return for Christmas Eve. At that time, the father had still not received copies of the child’s return ticket and a confirmation that he would definitely be coming back.  He pressed the mother on this topic, she provided screen shots on the telephone of the cruise itinerary and a screen shot of flight numbers.

17. At 5.35 pm on 25 November 2014 the father sent another text to the mother, including these words, “If you are not going to send a copy showing a return ticket then you will need to make other arrangements for [the child]”.   Approximately one hour later the mother sent an email to the psychologist who was providing therapy to the child with a copy of the return tickets.  She copied the father in on that email but did not communicate with him directly.

18. The mother was served with the father’s Initiating Application and supporting affidavit on the evening of that day.  There was clearly turmoil in the household and I am reasonably confident that the child blamed the father for that turmoil.

19. In any event on 26 November 2014 the mother, Mr I, the child and the other two children, F and K, left for the trip to the USA. There was no communication from the child to the father during this trip. When he returned, the father’s expectation was that the child would be delivered to his house on Christmas Eve.  At 10.25 am on that day, the father received an email from the mother which simply said “… [the child] does not wish to see you, he wants to stay with us and I am supporting his decision [signed by the mother]”.[9]

    [9] Affidavit of the father filed 01/03/2016, par 156, Annexure NRN58

20. I am satisfied that the child was subjected to negative commentary about the father and the application that he had made to the court during the time away.  I am also reasonably confident that the mother wished to live in the USA and was no longer willing to comply with the orders to any extent.

21. On the afternoon of Christmas Eve 2014, the mother contacted the father telling him that she believed it was unhealthy for him to see the child and that she was fully supporting his decision and that F had been to the police about getting a restraining order against the father. The child did not see the father at Christmas and on 30 December 2014 the father received a telephone call from the child where he left a voice mail message as follows, “You tried to ruin my holiday. I never want to see you again”.[10]

    [10] Affidavit of the father filed 01/03/2016, par 160

22. On 31 December 2014 the mother sent a sternly worded email to the father letting him know that she was supporting F and the child’s wishes not to see him or to speak to him again.[11]  When term began in 2015 the father contacted the school to make arrangements to go and see the child.  He was told that the child was no longer a student at the school. The father rang around until he found out that the child had been enrolled at his current primary school. Nobody at the new school was willing to discuss the child’s education or welfare with the father.

    [11] Affidavit of the father filed 01/03/2016, Annexure NRN61

23. On 3 February 2015 the father was made aware of a post on the mother’s Facebook page which said, “Any fool can be a father, but it takes a real man to be a Daddy!!” It is uncontroversial that both children were Facebook friends with the mother and could have seen that post, although there is no evidence to confirm that they did.

24. On 4 February 2015 interim Orders were made in the Federal Circuit Court directing the parties to attend a Child Inclusive Conference and restraining them from discussing any aspect of the proceedings with the child. The mother was restrained from removing the child from Australia and he was placed on the Airport Watch List. The mother was restrained from changing the enrolment of the child away from his new school.

25. On 4 March 2015 consent Orders were made between Mr I and his former wife that their child K could accompany the father to the USA for 12 months.

26. On 12 March 2015 the father filed an Amended Initiating Application proposing sole parental responsibility and re-enrolment of the child at his former school. The father also filed a Notice of Risk alleging that the mother was undermining the child’s relationship with him.

27. On 16 March 2015 the parties attended a Child Inclusive Conference with a different Family Consultant who said this:[12]

    [The child] presented as a young man who has been immersed in the parental conflict for many years.  He seemed to be under an enormous amount of pressure as a consequence of the way the parents have behaved over the years.  For example he explained how for a period of time he played [football] on one weekend (with the mother) and [football] on the other weekend (with the father). He said that he had over time repeatedly lied to both parents in an attempt to make them happy [emphasis added] – for example he hadn’t told his mother that he had played [football] with the father as she told him he couldn’t do any other sports until he had achieved his [sports qualification].  He said that this put him in the middle and was very awkward for him. [The child] also said that he has read emails between the parents (apparently shown to him by the father) and heard the father speak negatively about the mother and stepfather (denied by the father) …

    [[The child] had some criticisms to make of the father, but also apparently related] some very happy and positive times he had experienced with the father …

    [The child] is very aware that the parents “hate each other”  “They both hate each other. Dad hates mum even more than mum hates dad”.  He sees the mother as the victim from the father’s abuse/manipulation. 

    [12]Child Inclusive Conference Memorandum dated 16/03/2015, page 2

28. The Family Consultant concluded that the child “siding with the mother in the parental conflict was consistent with her being his primary attachment figure and an associated loyalty to her”. The Family Consultant also noted that it could be “consistent with the father behaving in the manner alleged by the mother” or that the child knew that the father would “be there for him no matter what”, but the “mother’s relationship with him is conditional on the child not having a relationship with the father”.[13]

    [13] Child Inclusive Conference Memorandum dated 06/03/2015, page 2

29. This last issue was described as the key issue needing to be explored in the recommended Family Report. The Family Consultant considered that the child’s stated preference to live with the mother and spend no time with the father “is consistent with a boy who has been exhausted by the parental conflict and is seeking an emotional respite from the conflict”.

30. The Family Consultant expressed the opinion that although this approach would provide some short term benefits for the child in terms of happiness and relief, in the longer term, a lack of a relationship with the father “is likely to have a salient impact on his development, including his self-esteem, his mental health and his ability to engage appropriately in peer and intimate relationships”.[14]

    [14] Child Inclusive Conference Memorandum dated 06/03/2015, page 3

31. F was also interviewed. She described her “parents as always having gotten on horribly. They don’t talk – they email, they wouldn’t tell the other one about us being sick. They would drop us at the front door and go. I’d have a note and have to tell mum what has happened”. Sadly, F also said, “A kid wants to be loved by their parents. I know he didn’t love me. It’s taken me a long time to get over it. I don’t think I have really”. She also said, “You can tell we all hate him. Even [the child] can understand what [the father] is doing”.

32. I conclude that both children, F very much more so, were strongly aligned with the mother at this time, partly for reasons of historical conflict outlined in the Child Inclusive Memorandum, but also because of the additional pressure of the mother’s desire to start a fresh life in the USA and conscious that the court’s permission was required.

33. On 16 March 2015 the mother filed an Application in a Case seeking amongst other orders, liberty to take the child to live in the USA for 12 months. She also proposed the payment of a bond for return and for communication by Skype. She also undertook to pay for the child’s return to Australia to be present for all court events where he is required.

34. On 17 March 2015, in the Federal Circuit Court, the mother’s oral application for permission to take the child to the USA for the looming school holidays was refused. The matter was transferred to this Court at that time. An Independent Children’s Lawyer was also appointed.

35. Three days later on 20 March 2015 the mother’s husband moved to the USA with F and K and they have lived there since. There has been no credible explanation by the mother as to why F did not remain in Australia with her.

36. On 26 March 2015 the mother travelled to the USA leaving her parents, her niece and Mr I’s father to care for the child. The mother sent the child a Facebook message setting out the things that the child could do once he was able to live in the USA, including tennis, which Mr I was organising for him.    It must have been a very difficult situation for the child to tolerate.

37. On 19 May 2015 the father filed an application for the mother to be dealt with for contravention.  Directions were made in respect of the primary applications.

38. On 2 September 2015 the mother filed an Application in a Case asking that she be permitted to take the child to the USA from 18 September 2015 to 5 October 2015 and again for seven weeks in December 2015 and January 2016.

39. On 11 September 2015 the father’s Contravention Application was allocated for hearing. The application relating to the forthcoming school holiday was dismissed and the application in respect of the Christmas holiday was left to be determined in due course. A full Family Report was also ordered.

40. On 14 October 2015 the application of the father in respect of the contraventions was heard. The mother was found to have contravened without reasonable excuse and was ordered to enter into a Bond pursuant to the provisions of s 70NEC of the Family Law Act 1975 (“the Act”).  The Bond was for 12 months without surety and on the condition the mother strictly comply with the Orders and attend a Parenting after Separation course. The application to take the child to the USA at Christmas was allocated a hearing date. Time between the child and the father took a turn for the worse.

41. On 19 October 2015 the father had a conversation with the child’s psychologist, Mr D, who informed the father that the child did not wish to see him. There was an agreement that it would be a good idea if the mother dropped the child off to the father at his house. The mother confirmed that she would do so.

42. The next day, 20 October 2015, the father received a call from the child’s school principal who informed him that he would need to pick the child up from school at 2.45 pm. The father attended the school to collect the child but was told that the child was missing. People began searching and the police arrived around 5.00 pm.  The child was missing for a total of seven hours. At 10.00 pm that night the father received a call from the police that the child had been found.  The father entertained the suspicion that the mother knew where he was. The mother denies she did.

43. On 23 October 2015 the father and Ms H attended for changeover and were met by the child’s school principal and teacher who informed the father that the child had disclosed to them that the father had punched him and they would need to notify the Department of Family and Community Services (“the Department”). There was an angry scene between the father and the police officer; this exchange having happened at Suburb N Police Station.  The father left without the child.

44. On 6 November 2015 the father went to the school to collect the child and was told by the principal that the child was adamant that he did not want to go with the father. The police were called to the school who took the child home to the mother’s house.

45. On 19 November 2015 the application by the mother to travel with the child to the USA for seven weeks over the Christmas period was declined.

46. On 19 November 2015 the mother filed a further Application in a Case asking that all of the 2011 Orders be suspended.

Preparation of the Family Report

1. On Friday 20 November 2015 observations and interviews with the paternal family took place for the Family Report. This was the first time together for the child and the father for a year.

2. The child arrived with the mother and separated from her without issue. He was compliant with the process. It is reported that he entered the room and was warmly greeted by the father, Ms H and step-brother J, who were playing a card game. A chair was found for the child and he sat down, although at some distance from the table where the game was occurring.  This remained the case for about 45 minutes of the session. Towards the end he pulled his chair in close to play a particular game with J.

3. The Family Consultant notes that the father, Ms H and J were very relaxed and engaging with the child for the duration of the observation sessions. Initially, the child only responded when asked questions and he did not make eye contact. By the end of the one-hour session he was making spontaneous comments and suggestions to others present, although he did not appear to be completely relaxed. He smiled at times at antics that were happening in the room but at no time did he appear to be fearful of the father or anyone else present. At all times, those present clearly endeavoured to make the child feel comfortable and to convey a sense that things were normal.

4. At the conclusion of that session, that Family Consultant then spoke to the child separately. She became aware for the first time that it was intended that the child was to be going home with the father for the weekend.  The child waited in the Family Consultant’s office whilst she went to get his bags from the mother. It is apparent that the mother had not told the Family Consultant of the weekend plans.

5. The mother was advised that she could now leave.  She asked to say goodbye to the child.  The Family Consultant expressed the view that it would not be a good idea for that to occur as that would make the transition difficult for the child, as had occurred at the school previously. Although the mother said she understood that might be the case for the child, she is reported as having started to cry and to say that she did not think it was fair that she did not get to say goodbye to the child. She then left the floor.  This conduct by the mother is hard to understand in the context of the child spending the vast majority of time in her care, in her household.

1. The Family Consultant reports that on leaving with the father, the child was highly animated, laughing and having a good time. He “appeared to be completely relaxed and happy on leaving the Child Dispute Services in the company of the father”. That accords exactly with the father’s later report that he had a “beautiful weekend” with the child on that occasion.

2. I conclude that the management of the changeover made a tremendous difference to the child and he was able to draw on the pleasure of being together with the father in the Family Consultant’s room and flow on to an experience similar to those he had had in the past.

3. At about 11.30 pm that night the child ran out of the father’s house to the car of Ms O, a friend of the mother’s. Police were called. Ms O reports the child was “sobbing in her arms” and the child was returned to the mother’s house. The next day, 21 November 2015, the father firmly stated to the mother that the child should return to him for the weekend. The mother firmly responded that she would not take the child to the father’s home but to a police station for collection, which she did.

4. Despite the dramatic disruption to it, the child enjoyed the weekend time with the father when it resumed. The father noted that the child appeared to relax as the weekend progressed, “once [the child] resettled he had a beautiful weekend.”[15]

   [15] Affidavit of the father filed 01/03/2016, par 235

5. On 23 November 2015, the father and Ms H travelled to Country G for a pre-planned holiday. All calls from the father to the child went unanswered.

6. On 1 December 2015 there were further observations and the interviews with maternal family members for the Family Report.

7. When the child was observed on 1 December 2015 with the mother, Mr I, F and his step-brother K. The child referred to his step-father as “Dad” throughout the session. The Family Consultant noted that a loving, comfortable and relaxed relationship was observed and that all present in the room were “very closely emotionally connected”. The child appeared to the Family Consultant to be much more animated and relaxed in this session as compared when he was observed with the father.[16] These observations speak to the strength of emotional attachment between the child, both his parents and other family members.

   [16] Family Report dated 04/12/2015,  par 225

8. On 8 December 2015 the Family Report was released. The report was a lengthy, detailed and thoughtful document. The recommendations were stark as follows:[17]

   There is no current co-parenting,  nor history of the parents being able to effectively co-parent and accordingly it is recommended that the parent with whom [the child] lives has sole parental responsibility for him.

   It is recommended that a Judicial decision is made as to the parenting arrangement which is likely to be in [the child’s] short, medium and long term interests.  If the Court is of the view that he should live with his father then this should occur with urgency.

   It is recommended that consideration is given as to whether therapeutic assistance (counselling with [Mr D]) is likely to be in the child’s best interests if it continues.  [If so] then it is recommended that Mr D is provided with a copy of this report.

   [17] Family Report dated 04/12/2015, pars 251-253

9. Between 16 December and 25 December 2015 the mother was in the USA.

10. On Christmas Day 2015 the father, in Country G, received a text from the child to the effect that he did not want to see the father ever again. The child was in Australia without either of his parents or his sister. However kind other family members were to him, it must have been a wretched day for the child.

11. On 9 January 2016 the father’s holiday time with the child began. The changeover at a police station took place and the child moved into his care relatively easily. The father reports that it took some time for the child to resettle in his household.[18]  The father also noticed that the child became more and more agitated.  Sensibly, in my view, given the history of the matter, the father made the decision to take the child’s mobile telephone from him during the course of that period of time. He was concerned that there may again be a situation where the child ran away in the night, or otherwise be unsettled by messages.

    [18] Affidavit of the father filed 01/03/2016, par 239

12. The father reports that he explained to the child that he would need to rebuild trust between himself and the father and Ms H, prior to having his telephone returned. He was candid with the child about his concerns of him running away and/or being collected from the father’s home without his prior knowledge. In retrospect, it was the right thing to do. There were several messages sent to the child, none of them were controversial in themselves, but potentially unsettling.

13. On 10 January 2016 the father took the child, along with Ms H and J, to the beach for the day. At 10.30 am the father suggested to the child that he telephone the mother where there was good reception before they went to the beach where there was not. He placed the call on speaker phone. The conversation set out by the father was purposeful by the mother. She asked the child whether the phone was on loud speaker and asked whether his telephone had been taken.  The father heard the child ask “has [Mr I] got the Jeep yet?  Get [Mr I] to drive down the street with the new Jeep. Let me know when you’re coming Mum, we’ll be home at 5.00 ok, at 5.00”. The father heard the mother beginning to sob uncontrollably and tell the child how much she missed him. The father terminated the telephone call.

14. The father and Ms H had a conversation with the child and asked him whether he knew how much trouble his running away again would cause. He answer was instructive, “Yes. Mum could go to gaol”.[19] That night the father continued to withhold the child’s telephone and the next morning noted that there had been “a lot of notifications on the screen from [F] and the mother, including an invitation to talk on Facetime at 4.31 am from [F]”. The sending of messages continued including a message from F on Facebook and by text which were simply the repetition of the child’s name more than 20 times.

    [19] Affidavit of the father filed 01/03/2016, par 254

15. On 12 January 2016 at 4.00 pm the father suggested to the child that he might want to ring the mother.  There had continued to be a steady stream of text messages and Facetime calls to the child’s telephone; the mother, Mr I and F all sending messages sometimes on a few minutes apart. There was also a message from a cousin which repeated the one aspect of the messages often repeated, that the sender could not stop worrying about the child.

16. When the child rang the mother, the father remained in the background and heard the general conversation about what the child had done during the day.  He then heard the mother again start crying and say “I miss you so much [B], I am imagining holding you and wish I could wrap my arms around you.  I miss you so much”. When the father saw the child become upset by this, he terminated the call. The mother called out “goodbye, I love you” about half a dozen times before the call was terminated. This conduct by the maternal family persisted and the father struggled with frustration at the intrusion into his time with the child after such a long period of separation.

17. On one occasion the psychologist, Mr D, rang and questioned the father as to why he was not allowing the child to telephone the mother. The father calmly explained that he had allowed the child to speak to the mother every second day and that there had been Facetime contact between the child and F and his step-brother. The father lost confidence that Mr D was child-focused and decided he may have become aligned with the mother. It is a reasonable observation. Thereafter, the holiday period progressed well.

18. On 14 January 2016 the father’s solicitor received a letter from the mother’s solicitor alleging that there had been failure to allow reasonable telephone contact during this period of time. Messages continued to come, including from members of the extended family and Mr D.

19. There were a variety of summer holiday events, barbeques, trips to the beach, swimming etc.  The child was insistent that there be no photographs of him having fun or smiling. There were persistent references to the child not being allowed to call and that it is “sad that you’re not allowed to talk to me”.[20] Mr D subsequently sent two emails to the father, one of them asking to have a conversation with the child, which the father declined on the basis that there was no apparent need for it.

    [20] Affidavit of the father filed 01/03/2016, pars 359-360

20. On 21 January 2016 the child was walking past the father, stopped and gave him a cuddle and told him he loved him. The child became increasingly affectionate as the days of the holiday period passed.

21. On 23 January 2016 the father delivered the child back to the home of the mother without incident. That evening, the father received the first correspondence from the mother, including assertions that the child had been “locked in the house like it was a gaol” during the holiday.[21]

    [21] Affidavit of the father filed 01/03/2016, par 409

22. The father was due to have the child for the first weekend of term commencing 29 January 2016. When the father arrived, the school principal told him that the child did not want to come with him.  The father saw the child who was sitting on a chair at the front of the principal’s office and the child willingly came with him.

23. On 30 January 2016 the child asked to ring the mother and the father agreed. The father heard the child tell the mother that he had a friend coming over to stay that night so he might not call her and he heard the mother’s response, “you have to call me again [B], I have orders saying so”. The weekend proceeded uneventfully and the father reports that the child got out of his car saying “love you Dad, bye”. 

24. Three days later on 4 February 2016 the father rang the child and was told by the child that he did not have time to talk and subsequently that he did not have to talk to him.

25. On 9 February 2016 the father went to collect the child and was told by the principal that the child did not want to go with him and that the legal section of the Department of Education had instructed the principal that she did not have to hand the child over, that he would have to be taken to the police station. The father got in contact with the mother and sent a message asking her to call the child or the school to ensure that the contact period commenced.  Ultimately he left without the child.

26. The father contacted the mother and asked her to deliver the child to his house.  She arranged for a friend, Mr P, to drop him off.  Mr P approached the father to introduce himself, leaving the child in the car, who then locked himself in. The child refused to get out of the car. The father rang the mother and asked her to direct the child to get out of the car. At approximately 8.00 pm the police arrived and removed the child back to the mother’s home.

27. On 11 February 2016 in a telephone call the child said to the father, “I won’t be coming with you after school tomorrow, and I won’t be coming with you ever again”.

28. The mother declined to participate in further changeovers and the principal declined to allow the father to take the child allegedly against his wishes. A changeover at the police station saw the child telling a police officer that the reason he did not want to go with the father was because “he smacks me”.  When asked, the child was unable to remember when that had happened.

29. There were some other changeovers at the police station. On two occasions the mother declined to participate on the basis that she was too afraid of being in the presence of the father. The child began leaving messages on the father’s telephone along the lines of he was having too much fun with the mother and Mr I to come over to see him.

30. It is reasonable to conclude that moving between his parents had become unworkable and intolerable for the child. I also infer that the child was more than ever doing what he had told the Family Consultant in March 2015 - he was lying to his parents in an attempt to make them happy.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Father

   (a)Amended Amended Initiating Application filed 15/02/2016;

   (b)Notice of Risk filed 12/03/2015;

   (c)Affidavit of the father filed 01/03/2016;

   (d)Affidavit of Ms H, the father’s partner, filed 01/03/2016;

   The Mother

   (e)Amended Response filed 15/02/2016;

   (f)Affidavit of the mother filed 02/03/2016;

   (g)Affidavit of Mr I, the mother’s husband, filed 02/03/2016;

   (h)Affidavit of Ms O filed 02/03/2016;

   (i)Affidavit of Mr P filed 02/03/2016;

   Reports

   (j)CAPIA dated 16/03/2010;

   (k)Child Inclusive Conference Memorandum (“the Memorandum”) dated 16/03/2015; and

   (l)Family Report dated 04/12/2015.

Oral Evidence

The Father

1. The father presented as determined to pursue this application. I am satisfied that his motivation is to preserve his relationship with the child and to avoid the total breakdown of that relationship, as has happened with F. I accept the evidence of the father that he bitterly regrets having allowed the situation with F to have slipped away from him. She quickly moved from asking not to come for particular events to resisting all time and communication with him.

2. The father gave the impression of being an emotionally contained man, somewhat taciturn.

3. The mother has alleged that her relationship with the father was categorised by violence directed at her by the father.  The father denies any assault or violence at all.

4. In relation to that matter, the mother described an incident when the parties were in Country G for a year from the end on 2002 to the end of 2003. She was then pregnant with the child. On the day that the parties and F were due to leave Country G, the mother says that all his family were coming round to say goodbye to them but the father instead went to the pub, “he did this because he did not wish to leave [Country G]”.

5. The mother relates that the father came home about 10.30 pm, F was in bed, and the father was intoxicated.  She said to him, “you don’t even have the decency to say goodbye to your brothers”.  The mother’s evidence is that the father then came through the kitchen door with his fists raised at her, was insulting, and the mother feared that he was going to punch her. She asserts that the paternal grandfather came in, grabbed the father and spoke sharply to him about treating her in that way.

6. Whatever the truth of the events around the incident, it is entirely consistent with my observation of the father that strong emotion causes him to withdraw and become more contained and the mother finds that behaviour frustrating and inexplicable.

7. The father readily conceded that the relationship between him and the mother was highly conflicted and that they always had difficulty co-parenting and that the child was aware of it.

8. The father was cross-examined at some length about the incident in

   
   

   March 2014 when the child’s thumb was broken during time he was spending in the father’s home. The father agreed that the child had hurt his hand when riding his bike. He said that the child asked him to bandage his thumb so he could get back on his bike. The father taped the thumb up and thought it was just a bruise. He said, and I accept, that had he known that the thumb was damaged in any significant way, he would have told the mother.

9. Given the nature of the relationship between the parents, I accept it is highly likely that the child did not think too much of the injury at the time, but was willing to make complaints of neglectful or indifferent treatment by the father, to please the mother, who was willing to believe that the father was either incompetent or indifferent to the injured child, or both. It is just one of many incidents where it is clear that the child had told each parent what he thinks that that parent would like to hear in a particular circumstance.

10. The father was asked about an incident in March 2014.  The child had confided in Ms H that his step-father had “threatened to punch him”.  Ms H telephoned the Department Helpline at 9.00 pm that evening and reported the child’s disclosure to her. Ms H was advised to contact the police. Together, she and the father explained to the child that he could go to the police station and talk to a policeman about what Mr I had said to him. The father reminded him that he needed to be sure that what he was saying was the truth.[22]

    [22] Affidavit of the father filed 01/03/2016, pars 74-82

11. The report was made to the police and police officers assured the father that the Mr I would be warned not to discuss the incident with the child. He was also advised to let the mother know that the police would be in contact. The father did so while he was still at the police station. He then realised that the child was frightened of the consequences in the mother’s home. The child later reported to the father and Ms H that the mother and Mr I had sat him down on the lounge when he got home from school, “they told me I lied”.[23]

    [23] Affidavit of the father filed 01/03/2016, par 80

12. There was an easy and candid conversation between the child and the father and Ms H. The child himself said “that perhaps he’d been wrong and made a mistake about his step-father wanting to punch him”. The father reports that in hindsight he thought perhaps he had over-reacted.

13. The oral evidence supports the fact that there was an incident where Mr I became exasperated with the child in the car over a word game. In his oral evidence Mr I reported that a week or two prior to the report to police he had said to the child “sometimes you make me so cranky I could hit something”. Mr I also stated that the child had come to him after the mother had spoken to him about having complained to police. The child said “I didn’t tell the truth. That was the wrong thing to say”. I also accept that it is likely the child did tell Mr I that he had been taken to the police station and told to say “[Mr I] said he’d punch me in the head”.  The child was trapped in a no-win situation.

14. On balance I consider that there was an incident between the child and his step-father which the child found frightening .The incident was over spelling. Mr I described the child as “literally being difficult over a word, deliberately difficult, giving me the wrong spelling.  The older children were in the car and were probably laughing or goading”. The child, in his innocence, confided in Ms H, perhaps as a neutral person. Ms H and the father, concerned about such a threat, took the appropriate course in ringing the Department and acted on the advice given to ring the police.   

15. Taking the child to the police station in the way that was done did put the child in a position where he was likely to be in trouble at home with the mother over the report and that was not well-considered. However, it is hard to see how else the father could have protected the child if there was substance to the report of a threat. 

16. A possible consequence of that incident, and others like it, is that the child has learned not to confide in anybody in a truthful way for fear of consequences.  By saying that, I do not conclude that there was a direct threat made by

    
    

    Mr I to punch the child, rather the child was reporting an emotional truth of having felt frightened in a particular situation, probably exaggerated what was said or misunderstood it and was then overtaken by events. Had there been direct open communication between the parents, the child would not have been exposed to the unfolding adverse consequences for himself.

17. The father was cross-examined about his attitude to the gluten-free diet for the child maintained by the mother.  The situation is another example of the impact on the child of his parents’ attitude to each other.

1. In the second half of 2013 the child travelled with the father for a month back to Country G.  He reported to the doctor that he had a great time and that he was good with his diet (gluten free) until the last couple of days when they were in Europe and the father let him have pretzels and hot dogs. It was not a significant issue of health for the child it appears, but it became a huge issue between the parents. The mother asserted that the child was nauseous and constipated and had abdominal pains for at least two or three days after he returned. She was angry with the father for failing, in her view, to manage the child’s diet. The paediatrician noted that the child was significantly anxious and needed not to worry too much about his diet or to feel guilty about occasional treats which departed from it.[24]

   [24] Exhibit 6

2. The mother’s position was that the father was subverting her authority. The father’s position was that he was largely compliant with dietary requirements but held the view that anxiety was playing a part in any digestive problems the child had. Their conflict over it appeared to have the most adverse effect from the child’s point of view.

3. The father was questioned about F and readily agreed that he had at the relevant time, when she was about 13 years old, made it pretty clear that if she did not want to come to spend time with him, she did not have to. The father accepted that there was a risk that the child, approaching that age, feels entitled to behave the same way. I do not consider that that is the complete explanation for the child’s conduct. The child is reaching his emotional limits coping with his parents.

4. The father conceded that there was an important relationship between the child and Mr I and that he would likely enjoy being a part of the family unit constituted by the mother’s household. Importantly, the father conceded that the child would be upset if he came to live with him and could run away again. 

5. By the end of his cross-examination, I concluded that the father has a realistic attitude to the emotional reaction that the child would have to leaving the mother’s household and living permanently with him. 

6. The father recalled his relationship with the children at separation, when they were aged almost nine and four years old with pleasure and clarity. He said that F had been inseparable from him, that she had a great relationship with the mother, and that at that stage, she was “very well advanced at school, had poor eye sight and was a funny child”. The child, he said, had a playful relationship with him and with the mother, that he was a happy child, and that both children had a “wonderful relationship with both of us”.

7. I conclude that although the father was competitive with the mother in terms of parental authority and obstinate at times, he does understand the importance to both the children of maintaining relationships with both parents.

The Father’s Partner, Ms H  

1. Ms H impressed as a calm and mature person. She is the parent of an almost 16 year old son and has remained supportive of the father and of the child throughout the past five years of her relationship with him. She referred with great enthusiasm to a holiday in Country G with the father and the child and herself and her son, “it was a fantastic time”.

2. Ms H conceded that there was no relationship between herself and the mother. However, she did not agree that the child would understand that she and the mother did not get on. She did however think that the child would understand that the two households did not get on, which must surely be the case.

3. In relation to the child’s disclosure to Ms H of his step-father’s threat to punch him, I accept that she acted in a protective and not a malicious way, “he was so upset when he said it and he said it with such emotion that I believed the story”. The proposition was put to her that she had placed the child in conflict between the households. That was indeed the outcome. However, I accept

   
   

   Ms H’s response as also true, “if there is a risk of harm to the child, threats by the mother’s husband, at the time I thought it was the right thing to do.

   
   

   I don’t think it would have been right not to report an alleged assault”.

4. Ms H spoke positively about their holiday in January 2016. She described the child as “within three or four days back participating in family life, joking and laughing. By day seven he was reluctant to call the mother.

   
   

   He actively sought out [the father’s] company. I found it reassuring”.

5. Ms H appeared to be realistic about what would be involved if the child became a member of the household. She said she thought the child would need a lot of help and love and support if he came there to live. She also said she doubted that the child would run away if there was no outside support for his doing so.

6. I conclude that Ms H is not simply supportive of the father in his wish to have the child live with him, but is also genuinely fond of the child and is supportive of him independently.

The Mother

1. The mother was first questioned about her allegations.[25] The mother alleged that “throughout the course of my marriage to [the father, he] was violent and he assaulted me”. The father had absolutely denied physical violence, generally and specifically. He gave a qualified denial to name-calling, but otherwise rejected any proposition that he had harmed or threatened to harm the mother.

   [25] Affidavit of the mother filed 02/03/2016, paras 10-33

2. The mother agreed that none of the incidents raised by her in her affidavit had been reported to police. She denied having invented those incidences. I note that those complaints were made to the Family Consultant who prepared the CAPIA. The Family Consultant noted that there were serious allegations and denials of family violence in this matter. He made a recommendation that the mother undertake specific domestic violence counselling as soon as possible and recommended that if the court considered it relevant, that the father undertake appropriate domestic violence programs as well.

3. There was no evidence before me of the mother having undertaken domestic violence counselling. That is entirely a matter for her to make a decision in her own best interest in that regard. However, I am left with allegations of

   
   

   name-calling, abusive slurs and drunken assaults during the course of the marriage. I note that in 2006 the mother organised marriage counselling to try, in her words, to keep the marriage together.  

4. There seems little doubt that the separation in early 2008 was acrimonious. The level of anger and conflict still on show eight years later confirms it. However, I have no basis for finding that any particular act of violence took place.

   
   

   Post-separation the parties had an equal-time arrangement for the children.

   
   

   I infer that each party had sufficient confidence in the other parent to enter into that agreement at the time.

5. The mother presented as stressed and dismayed, constantly blinking, and sometimes apparently nervous.

6. The mother made important concessions. She conceded that had she heard from the child what Ms H was told, she too would have rung the Department.

7. I formed the impression that the mother has seen in Mr I a strong, protective partner who she finds to be a great source of comfort and support. Unfortunately, she appears to have been unable to see that her belief that life was better in every way with Mr I as her husband did not mean that her children must inevitably see the formation of the new family in the same way.

8. The mother referred to herself as the “mother” of her husband’s son and referred to Mr I as the “father” of her two children. That reflected an artificial construct; “our happy family” often repeated. This is a reference by the mother to herself, her husband and the three children to the exclusion of the subject children’s father (and K’s mother) entirely.

9. The mother also conceded that there had been many times when she had not sent the child for time with the father when she should have. However she was also inclined to qualify, “I made him go … he resisted … I probably should have sent him along … I look at it differently”.

10. A turning point in the child’s unwillingness to see the father was the first trip to the USA in November 2014. The mother conceded that she and Mr I were speaking in the house, upset and distressed, when the father’s application was served. It is understandable. However, the mother was unable to concede that her unwillingness to talk to the father, to tell him about the trip, to explain about the basis for the relocation, and most urgently, to show him a return ticket for the child for the holiday, gave rise to that application.

11. The child heard the mother and Mr I wondering whether they would be able to go on the holiday to the USA, due to take place in the next 48 hours.

    
    

    She conceded having said, “how could [the father] do this to the kids and I. He knew this was a family holiday, a 50^th birthday. Why is he doing this?” These dramatic statements must have been upsetting and disappointing for the children and would be highly likely to make them feel defensive of the mother.

12. When the mother finally did provide a copy of the return ticket for the child, on the day before departure, the father withdrew any objection. In that sense, the mother was the author of her own misfortune. She asserts that she found the father too threatening to talk to, an explanation for having copied the father into an email to Mr D enclosing the child’s return ticket.

13. This does not represent an explanation for why she did not by electronic means show the father the return ticket for the child long in advance of the trip. It was after all considered in April 2014. It is highly probable that the mother knew from April 2014 that she and Mr I would be moving to the USA on account of his invitation to work there, on short notice. She wanted to go with him and she wanted the children to accompany her.

14. By November 2014 it was clear that there would be not less than 12 months away and the family holiday quite reasonably gave the mother and Mr I the opportunity to show the children how they would be living and where they would go to school. By keeping the father uninformed, she created the possibility that she did not intend to bring the child back after the holiday.

15. The mother conceded that after this incident, when there was the possibility, although not the reality, of the USA holiday being stopped, the child did not see the father for a year. She agreed that he “might have got the impression his father was stopping his holiday”. This was a serious understatement.

16. I conclude that the child was directly exposed to those statements in the household and did not understand. The mother asserted that she explained to the child that she had been wrong about that but she was unable to explain to the Court why the child might have remained angry and blaming towards the father for a year after the event.

17. The mother sent pictures from website of American properties which the child saw. The mother asserted that she was constantly looking at houses all around the world and it was not meant for the purposes of enticement or persuasion,

    
    

    “It’s just how we dream”. The email, which included a photograph of a particular house in the USA, had this message attached from the Mr I, “Focus on You and the child over here and living together as a family of 5 in this ... This one we could actually afford. I can see the child riding a motorbike round instead of a horse though”.[26] That photograph and message came three weeks before the family holiday to the USA.

    [26] Affidavit of the father filed 01/03/2016, Annexure NRN129

18. I conclude that the child must have been aware that there was a possibility of going to live permanently in the USA. The more appropriate course would have been for the child to know nothing of any such plans until there was an agreement or court order in place about relocation. It is a limit on the mother’s capacity to meet the child’s needs; that the child was exposed to her dream of living in the USA which became a pressure on him as to how to persuade the father to allow it. It is a limit on the capacity of the mother to meet the child’s emotional needs.

19. The mother was cross-examined about events during the two-week holiday period for the child with the father in January 2016. The mother denied that her many messages and tears on the phone would have been unhelpful. She answered, “I was just grounding him”. The mother also gave evidence that she knew that Mr I was also sending a great many messages and that the family messaged each other all the time, “it’s what we do”.

20. The overall evidence tends to support that Mr I is inclined to message each member of his family at least once every day. It is consistent with the mother’s statements. However, I note that F condemned the father as a stalker when he has messaged her in the past.

21. Importantly the mother was cross-examined about her application for overseas relocation with two blocks of holidays for the child back in Australia with the father. She was asked how realistic it was that she would be able to have the child spend that time. The mother said she thought she possibly could do it, “Yes I think I can”, in terms of getting the child to go. I had the impression that the mother herself realised how unlikely her answer sounded.

22. The mother was unwilling to concede that the father loved the children. Her answer was, “in a fashion, yes”. She went on to explain that people’s perception of love is totally different and “I don’t believe he’s shown his love as other people do”. This is especially relevant to F’s statement that she knows the father does not love her and how she was still recovering from the impact of that knowledge.

23. Later the mother responded, “I know he loves them unconditionally”.

24. The mother agreed that her habit was to sit and listen to complaints about the father, which she said she disavowed some of the time. In answer to the direct question “did you ever say ‘I can see you’re upset but I know Dad wouldn’t hurt you or words to that effect’?” her answer was “we just live in the truth”. I take that to mean that the mother was quite unwilling to reassure the children that the father would not hurt them and unwilling to reassure them that he did truly love them and they must put any contrary ideas out of their head.

25. The mother was asked about the impact of F’s beliefs about the father (not loving her) on her young adulthood. The mother’s answer was, “I don’t understand”. The evidence suggests that the mother does not understand and has seen F’s alignment with her and rejection of the father as something positive about her parenting.

26. The mother said she was trying to get F back to Australia to do counselling at the C to restore relationships with the father. It was a completely unrealistic answer. F has lived in the USA for more than a year with Mr I while the mother has been in Australia, other than for occasional visits. F was almost 17 years at the time of the trial and there was no suggestion that she would be returning to Australia for any purpose.

27. The mother was challenged about her decision to remove the child from his former school and enrol him in his current school without reference to the father. Further, both the mother and Mr I were overtly critical of the child’s former principal. The mother at that time described herself as “in a battle with both ex’s trying to stop our happy family”. When the proposition was put to her that she had enrolled the child without the father’s consent and then sent a letter to the principal about an abusive relationship between the child and the father, the mother said she did not know how to answer that. I accept she did not.

28. The mother conceded to the Independent Children’s Lawyer that she had portrayed the father in a bad light to the child, which had influenced the child’s attitudes. The Family Consultant in her report had said that the child was the victim of “emotional contagion”, that is, he was fearful because the mother was fearful. When this topic was raised with the mother, she said that she did not “understand the psychology of all that, but it’s something I could have done”.  While giving this answer, the mother, through her demeanour and body language, created an atmosphere of heightened emotion. Her speech sped up, she was blinking furiously, and she was obviously stressed.

29. The mother asked what she would do if the child remained in Australia living with the father. She thought she would stay for 6-12 months and then relocate to the USA. I note the contrast with a similar question being put to Mr I which was “where do you expect your wife will live if the child is living with his father in Australia”. His answer “she’ll come to America and look after her other two kids” was swiftly and spontaneously given. I consider it unlikely that the mother will remain in Australia for 6-12 months.

30. My overall conclusion is that the mother finds herself in intolerable conflict. Her husband has moved to the USA for work and she has agreed to F going ahead and living there, which she has been doing now for more than a year. In the event that she is unable to take the child with her, she will have one child in each continent and a terrible conflict of loyalties between the child, her new marriage and F.

The Mother’s Husband, Mr I

1. Mr I presented as a self-confident, rather domineering man. He agreed with some relish that he had referred to the father as a “childish little leprechaun” in an SMS exchange between them in June 2013.[27] His explanation for doing so was that he was trying to annoy the father because the father had driven off when his arm had still been on the door of the car.

   [27] Affidavit of the father filed 01/03/2016, Annexure NRN25

2. Mr I was asked why F had left Australia for the USA when she did in March 2015. His explanation was this, “she wanted to be as far away from [the father] as she could”. It was a revelation of how disrespectful the attitude in the mother’s household is to the father.

3. As has been previously referred to in these reasons, Mr I expects that the mother will return to the USA whether or not the child can come with her. He was also clear to say that if the child did remain in Australia, that he and the mother would come back twice a year.

4. Mr I was questioned about the numbers of message he sent to the child during the holiday period with the father in January 2016. He denied safety concerns for the child but agreed that the majority of the message had included some version of the words “are you safe”. His explanation was that he was used to daily talks with the child so had become concerned. When pressed,

   
   

   Mr I sighed and became dismissive.

5. The proposition was effectively put to Mr I that he was not giving the child space to spend time with the father. His response was that had the child responded even once he would have felt better. It suggests that the messages were more about Mr I, that it was his practice to speak to all members of his household not less than once every day, and he was not content to change that pattern. It was more about him than a reflection on the child’s needs.

6. Mr I conceded that he had formed a negative view of the father from the beginning of his relationship with the mother who had told him about being in a violent relationship with the father. He agreed that he felt protective in his role as his wife and the father of his children.

7. Mr I had reacted with some anger to the principal of the child’s former school. He agreed that he thought that the principal’s friendship with the father had adversely affected the principal’s judgment. He certainly felt that he had been justified in accusing the principal and a teacher of lying. It was an arrogant thing to do, given that he had no legal parental responsibility over the child; although some moral responsibility.

8. Mr I had seen nothing wrong with enrolling the child at a different school without reference to the father. In relation to his own son K, Mr I simply stated that K did not wish to return to Australia so he was staying in the USA with him. I had the impression that Mr I could not see what any of the fuss was about. He had his child with him and the mother should have her children with her.

1. It is likely that if the child continued to live in the mother’s household that

   
   

   Mr I would treat him as if he were his own son, would provide for him, and be protective of him. He would likely continue to make constant contact with him on a daily basis.  In my view he is unlikely to support the relationship between the child and the father for two reasons. First, he himself has a poor view of the father and secondly, because he has been willing to take on the responsibility of the mother’s two children, he does not see the need for the father to be involved in his family.

Ms O

1. Ms O is a close friend of the mother’s. She is the child’s Godmother.

2. On 20 October 2015 Ms O was involved in the search for the child who went missing from his school on a day when he was due to be collected by the father.

3. Soon after, on 17 November 2015, she involved herself in disrupting a period of time between the child and the father. Her evidence is that the child rang her at 3.10 pm in the afternoon simply to let her know that he was at school and that Ms H was there to pick him up, “I’m not going with her. I hate her”. This disrespectful and probably quite untrue statement was not challenged by Ms O. Instead she replied, “Mate, its only overnight. You’ll be asleep most of it anyway”.

4. Ms O then rang the mother and told her about the phone call. The child left messages on her phone and Ms O rang him back. The child apparently let her know that he was “waiting for the police to turn up” because he was not going with Ms H. Again, if accurately reported, the child was being flamboyantly disrespectful, referring to the father in this way, “he doesn’t even bother to come get me himself. He just sends her. Well I’m not going anywhere” and much more of the same. Ms O indulged this conversation at some length and several more during the course of the afternoon. Ms O went to the school, apparently at the child’s request, and police arrived. The child was refusing to go and the father did not press the issue.

5. On Friday 20 November 2015, the child again contacted Ms O. He was already at the father’s home, the changeover having been at the Court after the observations for the Family Report. In exactly the same pattern of disrespect and drama, the child is reported to have said, “Hi [Ms O]. I’m at dads. The court made me go”. She replied, “Its only for the weekend Mate. It will be okay”.  He asked Ms O to come and collect him. The child then sent a text message letting Ms O know he would ring her that night. In fact he rang in less than an hour to apparently boast to her that he was pretending to play games whilst talking to her.

6. Ms O spoke to the mother in the afternoon and during that time apparently missed three calls from the child. On the fourth occasion she spoke with the child who started the conversation with, “Get me out of here. I’m not staying here”. He rang again at 5.44 pm to say that he was in “really big trouble. I’m scared. Dad’s angry”. There is a flavour to the affidavit of

   
   

   Ms O relishing the drama of the situation, which was also reflected in the witness box.

7. On that evening at 11.09 pm the child is reported to have rung Ms O and again stated that he “didn’t want to be in his father’s home” and asking her to get him. The child denied that the friend who was staying over was really his friend, suggested that the father was drunk, and threatened to run away. Ms O apparently said to the child, “I’m listening to you mate. It’s a sucky situation but you have to do it”. There was more such dramatic conversation, the child apparently crying and sobbing. The call ended and 13 minutes later there was another one with more of the same.

8. At 12.27 am Ms O received a phone call from the mother who had received a call from the father’s house number. There was then a discussion between them about the child’s contacts and his threats to run away. Ms O told the mother that she thought she might take a drive over there to the father’s house. She said she ran outside and got into her daughter’s car. She drove over to the father’s home. She drove into a driveway only to find that she had been blocked into the driveway by a van that she recognised as belonging to the father. Ms O said she felt scared and I accept that she was.

9. Ms O asked the Court to believe that unexpectedly the passenger door of her car flew open and the child threw himself into the car, shouting “lock the doors. Don’t let him get me. Don’t let him get me. Lock the doors. Don’t let them take me”. Ms O told the father she had called the police; she had not, but she subsequently did. Police arrived at 1.00 am.

10. If I accept every word of the affidavit of Ms O as accurate, it was irresponsible conduct by her. She indulged the child with phone calls and clearly encouraged him to believe that if he ran away she would collect him. The course she did not take was to ring the father and let him know what was happening, although she attests to have known him for 25 years.

11. Ms O, who took a somewhat officious and self-important tone in the witness box, denied that there was a pre-arranged rendezvous between herself and the child. She explained it as a coincidence based on motherly intuition. I do not accept her evidence in that regard.

12. Ms O’s answers reflected contempt for the father. She expressed the view that it was only when the mother and Mr I wanted to go to the USA that the father wanted to “play the father. He doesn’t have a relationship with his daughter either”. Ms O denied that she had ever openly denigrated the father but on her evidence she has communicated to the child her support for his disrespectful and dishonest conversations with her and support.

Mr P

1. Mr P impressed as an honest straight-forward man. He has known the mother and children for about five years.

2. He agreed that he had been told by the mother that her marriage to the father had been an abusive one but he did not know the father and he had not seen any evidence of such conduct.

3. It was to Mr P’s house that the child appeared after running away from school in October 2015. Mr P agreed that it was possible, since he leaves the doors of his home unlocked, that the child had been in the house for some time before he appeared. When he became aware of it, Mr P responsibly rang the mother and told her that the child was with him.

4. My impression is that Mr P has been drawn into the litigation but his intention was to provide support and assistance to the mother and to the child whenever it was needed.

The Family Consultant

1. The Family Consultant confirmed that in her view the child “presents as an alienated child”. She agreed that the mother allowed the children to choose whether or not to spend time with the father and more that the mother held the belief that the child should be able to choose whether to have a relationship with the father.

2. The Family Consultant was taken to the writing task of F contained within the Department of Education Records[28] where F had written it “was Tuesday so I had to go to dad’s house. I love him but he does not love me”. It was simply included as a factual statement in a two-page exercise of writing about her family. The Family Consultant confirmed that F had said to her that the father did not want to spend time with them and he did not make time to do things with him.

   [28] Exhibit 9 (ICL3)

3. The Family Consultant explained that an aligned parent gives a sympathetic ear to complaints on return; that is certainly the case here. The mother described herself as simply listening and rarely disavowing complaints.

4. It was the firm view of the Family Consultant that both parents had contributed to the breakdown of relationships. She felt that the mother had deliberately or unwittingly caused harm by revealing her own fears and attitudes to the children and supporting complaints but that the father had lacked empathy and said to the children “your mother has brain washed you”, which reflected a lack of understanding that the feelings and beliefs of the child are real to him.

5. The Family Consultant gave evidence on the family system of the mother and Mr I and the three children. She described it as a “closed system” by which she meant that the attitude was “you’re with us or against us”. In such a closed system, she said that everyone is expected to hold and express the same views and beliefs and it is difficult to express a different position. This is consistent with the way the child was willing to say that he had made a mistake in making a report to the police about the threat of being punched by Mr I. He withdrew and apologised and yet there had been emotional substance in his complaint.

6. The Family Consultant was clear to say that if the child lived with the mother he would not comply with orders. There would only be self-initiated contact, if any, and the mother herself would not comply. She recommended that if the child went to live with the father there should be no time for a period of eight weeks, followed by a period of 12 weeks of supervised time before the mother’s return to the USA. She was also clear to say that although there would be stress for the child if he went to live with the father, it would be short-term if well managed.

7. The question posed for the Court by the Family Consultant was which parent is more likely to promote the well-being and emotional development of the child. I conclude that the Family Consultant thought that it was more likely to be the father, despite some deficiencies. I am supported in this view by the fact that the Family Consultant did not assess Ms H as having contributed to the conflict. Indeed the Family Consultant regarded her as having acted appropriately and protectively when the child made a complaint to her about Mr I’s conduct.

8. The Family Consultant expressed the view, which is well supported by the evidence, that the conflict between the parents is unlikely to abate, ever.  She did think however that the father would be more open to hearing new ways of parenting and interacting with the child than the mother is.

9. The Family Consultant was conscious of the impact of separation of siblings but her evidence suggested that F’s intensity was more about the enmeshed system of the Derrick household than genuine fears for the child’s safety; that is not to say that brother and sister are not important to each other. The Family Consultant gave evidence that the child is close to F but wondered whether it was a heathy closeness at this time given the intense rejection, hatred and fear F is expressing about the father.

10. The Family Consultant suggested a period of eight weeks for the child of complete separation from the mother, but during the course of cross-examination moved to not less than three months. The Family Consultant referred to this initial settling in period as a “critical period”. I accept that evidence. The two week holiday in January 2016 went remarkably well for the child but he quickly changed to a position of rejecting time with the father after returning to the mother’s home.

11. The child starts High School next year. It is crucial for him to be in a settled family situation and to be emotionally stable in order to start his secondary education and make new friends and associations.

The Law

1. The objects of the Act in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. Each of the parents seeks sole parental responsibility. It is, in a way, recognition of the fact that shared parental responsibility, consented to in May 2011, has not worked. Admittedly the orders said equal shared parental responsibility but in the event there was disagreement about a particular issue, then if after dispute resolution there was no agreement, the mother had the authority to make the decision.

2. However, I am comfortably satisfied, having heard all of the evidence, that the communication, consultation and compromise required for equal shared parental responsibility is an impossibility for these two parents.

3. The father has felt frustrated and excluded since at least 2011, if not earlier.  The mother expresses herself to be too frightened to deal with the father directly. She relies on the support and authority of Mr I, who shows a barely concealed contempt for the father.

4. Correspondence quickly flares into dispute, accusation and criticism.

   
   

   One parent must take responsibility and I accept that whichever parent the child lives with should have that role, particularly as each parent will be, for the foreseeable future, in a different country – Australia and the USA.

Primary Considerations

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

1. There is a benefit to the child with having a meaningful relationship with both of his parents. The child loves each of his parents. His difficulty is that in the mother’s household, he is obliged to conceal his feelings about the father and tell lies. I accept that doing so is emotionally harmful to him.

2. So the question becomes which of the parents is more likely to support the relationship with the other parent – on balance I consider it is the father who is likely to do so.

3. One piece of evidence, of many, supports that view.  In the two weeks of the holiday in January 2016 the father quite properly removed the child’s phone to avoid him from being distressed and distracted by a barrage of messages from the mother, Mr I, F and various other members of the extended maternal family. However, he ensured that the child could contact the mother by phone every second day and continued to allow that despite the fact that the mother broke into tears and questioned the child about his safety on at least two occasions.

4. The father spontaneously spoke very well of the strength of the love and affection of the mother and both children at the time of separation and does appear to understand the difference between his feelings towards the mother, which are intensely negative, and the children’s feelings for the mother, which are important for their psychological development.

5. I accept the evidence of the Family Consultant that if the child continues to live with the mother he will not see the father and given that he would be living in the USA, it is possible that the relationship would be broken down and not restored in the father’s lifetime. It would be a huge loss for the child who at first spent equal time between his parents, until about ages four to six, and then substantial time with the father, but from 2012 was asking for more.

6. I have come to the conclusion that although he will be distressed in the

   
   

   short-term and feel the shock of separation between continents, the child will do better in the care of the father and the father’s household than with the mother in her household.

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

1. There is a need to protect the child from psychological harm. I accept the evidence of the Family Consultant that the mother’s fears and feelings about the father have affected the child through “emotional contagion” and that he is not being true to himself when he makes negative remarks about the father and resists all contact and communication with him.

2. The father has in the past told the child he has been “brain washed” by the mother, which the child would have experienced as insulting to the mother and a failure by the father to accept his feelings.

Additional Considerations

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. The child is 12 years old and next year he will be in High School. He has been subjected to loyalty conflicts throughout his parents’ separation when he was four years old.

2. He presented to the Family Consultant as a “child under significant pressure”.[29] His theme throughout interview was that he did not want to see the father and that no-one was listening to him. He became distressed at times, “I want this all off me. I’ve told everyone what I want”. Unsurprisingly the child expressed the view that he did not want the hassle of court and the psychologist, “I want to be with my family. I’m separated from my brother and sister and dad [a reference to Mr I, F and K]. It feels like a part of me has left”. He went onto describe that F and K were telling everyone in the USA about him, “I wanna be over there and have a life”.

   [29] Family Reported dated 04/12/2015, para 214

3. Inconsistently he went onto complain that the father did not pay him enough attention, that the father was always working, and gave him the wrong food. He made complaints about having broken his thumb in the father’s care, that there was no food in the father’s house, and that the father hit him twice when he was eight years old, but had not told anyone about it because he was scared the father would find out.

4. As his message to the Judge as to anything he wanted the Judge to know he said, “I want to go and see my family. I don’t want to be here going to [the father’s]”.[30] He was very strong and clear to say that he “wanted to be with his brother, sister, mum and dad in the USA”.

   [30] Family Reported dated 04/12/2015, para 218

5. At 12 years of age, 13 early next year, the child’s views should be of importance and they are. However I note the dissonance between what the child stated as his views and how the child behaved in observation. Despite all that had gone on between November 2014 and November 2015 the child quickly warmed up to the father and Ms H and J and apparently fell back into a pattern of easy affectionate, humorous interaction with them. He left with the father willingly and happily for a weekend which was as relaxed and comfortable, as he had had for many years. Remarkably that was true despite his attempting to run away on the first night.

6. It seems to me that the documented pressures operating on the child were responsible for his carefully and strongly stated assertion that his real family was the mother, Mr I, F and K. He had done his duty, but his natural feelings surfaced.

7. I do not consider it would be appropriate to implement the views expressed by the child in those circumstances.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has a loving relationship with the mother but she has permitted him to choose whether to spend time with the father or whether to have a relationship with the father at all. He has become part of her fearful, negative feelings towards the father.

1. There is no doubt the child loves the mother who has been warmly attentive to his needs and interested in his development. At times, however, her focus on her new family has caused her to lose focus on the child’s independent needs. Nevertheless, it is a most important relationship for the child.

2. The child has a long-standing, loving and affectionate relationship with the father. He appears to be confident that no matter what he says and does, the father will continue to be available for him. So much was clear during the day of observations in November 2015. He has had two wonderfully enjoyable holidays with the father, a month in Country G in 2013 and a fortnight in the local area in January 2016. Despite all the tumult before and after, it seems he can tap back into his relationship with the father.

3. The child has an easy affectionate relationship with Ms H. He turned to her with his fears about a threat by the step-father.

4. The child has a relationship with Mr I, which is somewhat intrusive.

   
   

   He checks on the child every day and was unwilling to give him space and privacy to enjoy time with the father in January 2016.

5. The child has a close relationship with F, however, he is 12 and she is

   
   

   17 years old. They are at very different stages of life and she is intent on ‘saving him’ from the father. That idea will not be helpful to the child now, but long-term this is an important relationship between two siblings.

6. The child has a relationship with K, his step-brother, who is also 17 and whom he does not know very well. There is no reason to think it is not a positive brotherly relationship.

7. The child has a relationship with J, his step-brother in the father’s household, which he is dismissive about or positive about, depending on who he is talking to.

8. There are also relatives on both sides of the extended family to whom the child is important.  His Country G grandparents, his Australian grandparents and other family members.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. Each of the parents has wanted to make decisions. At times they have done so without reference to the other for fear of disagreement or in the expectation that anything they suggested would likely be dismissed.

2. When consent orders were reached in May 2011 there was some kind of celebration in the mother’s household because she had ‘won’ in respect of reducing equal shared time to a lesser number of days per fortnight.

3. Each parent has made poor decisions about the children, particularly expecting them to participate in sports on alternate weekly basis to suit their own choices.

4. The mother made a poor decision to remove the child from his school on the basis of her own hostility to the principal who was complying with court orders, which did not suit the mother at that particular time. The mother and

   
   

   Mr I took an aggressive and critical stance towards the principal and removed the child from the school and re-enrolled him at another school without reference to the father.

5. Each of the parents has at all times wanted to spend time with the child and communicate with him.  

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. Each of the parents has the ability to support and maintain the child.

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

1. This factor is of great significance.

2. By moving to live in the father’s household, the child will become a part of that household and will only see the mother, Mr I, F and K when they are in Australia.  It must be that way.

3. On three occasions, the mother’s oral application to take the child away for trips to the USA, after the first trip in November 2014, have been declined by the court. On each occasion the risk was that the child would not be returned. That risk continues in my view to be a real one.

4. Accordingly there will be a significant impact on the child who may well feel excluded from the family circle in the USA.

5. There will also be a positive impact on the child of greater emotional freedom in his own growth and development in his ability to relate to people, in his freedom to continue to love the mother and other family members, and to be overt about it, and to draw on his historical, safe, and loving relationship with the father, which he was able to express towards the end of the January 2016 holiday, quite spontaneously.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. Because of the child’s history with resisting time, and at least on one occasion of running away, and his tendency to complain and ask for help for family members and interested third parties, there must be a period of time when the child spends no time with the mother to enable him to settle into his new environment. Thereafter supervised time will be necessary to ensure he is not unsettled by the mother’s distress.

2. The mother will be able to travel to Australia at least twice a year. There will also be electronic communication by Skype, email, text and Facetime.

   
   

   No doubt the parties will continue to talk on social media.  

3. The mother and Mr I are Australian and have family members here. There is little chance that they will not return to Australia from time-to-time at their own expense.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The father has some limits to capacity. He has been so focused on blaming the mother for difficulties in his relationship with the child that he has not acknowledged to himself or the child that the child really feels and believes inconsistent things and although it could be argued that the mother has ‘brainwashed’ him against the father, the father has not understood that he needed to support those feelings and to help the child understand his own dilemma. Having said that, the father otherwise has the capacity to meet the child’s emotional and intellectual needs, particularly his need to maintain his relationship with the mother.

2. The mother has some limits on her capacity to meet the child’s needs.  She did not in a straight-forward way tell the father about Mr I’s change in work arrangements and their need to live in the USA and reassure him in every way she could as to what arrangements would be in place for the child coming back to Australia on a regular basis.

3. Her behaviour around the holiday in November 2014 was hard to understand. For months the father had been asking to sight a return ticket for the child, concerned as he was, given the mother’s shift in position from just a holiday to 12 months relocation, that the child might leave Australia and not come back.

   
   

   The mother waited until the day before the holiday to provide the father with that evidence. Then, when the father’s application was served on the mother, which he had left to the last minute in the hope that the mother would provide him with the necessary evidence, the mother denounced the father in front of the children for having tried to disrupt the holiday.

4. These actions successfully manipulated the child into believing that the father was directly responsible for trying to spoil the holiday and his anger about that was not discouraged, nor was the situation explained to him in a way that enabled him to understand.

5. A further limit on capacity is the mother’s intense wish to recreate a new family; for her husband to be her children’s new father, for her to be the new mother of her husband’s son, and for them to be a family without a history, in particular without the father.

6. The mother is a loving mother, somewhat over-protective, but she has also chosen to allow F to live in the USA without knowing the outcome of these proceedings.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is a 12 year old boy, no doubt approaching puberty.

2. The father is from Country G and he has family connections in Country G.

3. The mother is Australian and he has family connections close by in Australia.

4. The child has some learning difficulties which have to date not been assessed in a way that satisfied the father, whose preference was for the child to see a clinical psychological, skilled in dyslexia, to assess the child, rather than the self-styled dyslexia expert that the mother had consulted.

5. The child is a healthy child, with some gluten intolerance that can be managed by diet. More seriously, he has been diagnosed by his paediatrician as anxious and caught, to use the doctor’s words, as “piggy in the middle”, between his parents for many years. The child needs relief from anxiety and some emotional freedom.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. Each of the parents has been competitive with each other about the children.

2. F as a young child sometimes spontaneously cried at school when she remembered the level of her parents fighting. She went on to make a decision to reject the father and to zealously support the mother’s position.

3. Approaching the same age when F began that process, the child is teetering between rejecting the father and embracing the relationship with him.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There have been no family violence orders in respect of this family.

2. There have been no reports to police but complaints made to third parties have been put before the Court. The mother asserts, and the father denies, that there was family violence in the relationship. The mother avoids contact with the father because she describes herself as “frightened” of him.

3. If the mother took up the recommendation of the Family Consultant in the first assessment to undergo domestic violence counselling, there is no evidence of it before me. She may have done or may have decided it was unnecessary. In any event, I do not consider that this is a matter where children have been exposed to family violence and I am unable to make findings in respect of the mother’s allegations.

4. The child has at times told others that the father has hit him or hurt him. There is no evidence of any such thing. At other times the child has denied that the father has hit him or hurt him.   

5. F has memories of intense conflict between her parents, yelling and arguing, but had not seen anything physical between them when interviewed not long after separation.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. This is a significant factor.

2. In the event that the orders were made which the mother sought, that is that the child live with her in the USA and return to Australia at least twice a year to spend time with the father, the evidence suggests that it would be highly unlikely that the child would return or communicate in any way with the father. That would perhaps lead to a further application or further contravention applications or an application for breach of the Bond which is in place for the mother in respect of her contravention found in October 2015.

3. In the event that the child is living with the father, I am satisfied that the father will make him available for time with the mother when she comes to Australia.

Any other fact or circumstance that the court thinks is relevant

1. For many years, both parents and both children have been receiving therapeutic counselling from Mr D. The evidence suggests that Mr D has become part of the children’s lives, perhaps because the conflict between the parents has not let up. However, the evidence also suggests that Mr D has become something of an advocate for the mother. It is understandable the father was surprised that Mr D would ring him during the January 2016 holiday and challenge him about limits being put on the time that the child could speak to the mother by phone. He was clearly ringing on behalf of the mother.

2. There may well have been great assistance provided by Mr D in the past, he encouraged the father to persist in his attempts to maintain relationships with the children, but the point has now come sadly where the child has to live with one parent or the other. No amount of therapeutic counselling is likely to affect an improvement in a parenting relationship which has been hostile and uncommunicative for at least seven years.

3. It will be a matter for the father to determine whether the child sees Mr D for therapeutic assistance any further. It is likely that that relationship will cease.

Conclusion

1. I have come to the conclusion that the child should live with the father and that the change should happen straight away.

2. In the event that the mother chooses to return to the USA quickly, provision has been made for a period of supervised time between the child and the mother for her to say goodbye to him. That will be distressing for the child but on balance less distressing than knowing she has gone without his ability to see her.

3. There will be a period of twelve weeks without contact which will be hard on the child but I accept the evidence that the only way he can fully settle in, as he did in January 2016, is if there is no communication at all and that he has the undivided attention and reassurance of the father for a substantial period of time.

4. Provision has been made for an immediate transfer today and for the child to come back to ask whatever questions he wishes of the Family Consultant, or another Family Consultant as the Senior Family Consultant directs.

5. An Order is made for the mother to bring the child to the court counselling service on the day that these Orders and reasons for judgment are delivered. The intention is to effect a changeover for the child with the least amount of emotional distress.

6. One possibility was for the father to go to the school to collect the child in the ordinary way, but given the extensive history of involvement of the school in conflict between the parents and failed attempts to changeover via the school,

   
   

   I consider it is a better course that he be brought into the Registry, delivered by the mother, and taken home, or to school, at his discretion, by the father.

7. Orders are made for the child to spend time with the mother when she is in Australia and I am confident that the father will facilitate that time even if it proves to be unsettling and disruptive emotionally.

8. Provision has also been made for immediate suspension of Orders in the event that the mother fails to return the child after a period of time. I consider that this is less likely given that the mother’s permanent residence will be in the USA and that she is restrained from removing the child from Australia. However, it is essential that the child never again be subjected to periods of time where he is withheld from the father, contrary to orders.

9. The Orders require the father to keep the mother advised of where the child is at school. The father may choose to return the child to his previous primary school or possibly allow him to continue for the balance of his primary education in his present school. That will be a matter for the father.

10. Provision is made for the father to provide a copy of these reasons for judgment to the principal of the child’s school to read if the father, in his discretion considered it necessary, in the event that he takes the child out of school for a holiday for a period, changes his school, or has need for a candid conversation about why the child’s behaviour might be difficult to manage.

11. Overall it has to be said that there is no really good outcome for the child and some loss would be associated with whatever orders were made for him. However, I am confident for the reasons stated above that the better choice is for the child to live with the father and spend time with the mother as and when she is in Australia in accordance with the Orders.

12. Final Orders are made accordingly.

I certify that the preceding two hundred and ninety eight (298) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 May 2016.

Associate: 

Date:  19 May 2016