O’DONNELL & DOWNING (No.2)

[2019] FCCA 2380

FEDERAL CIRCUIT COURT OF AUSTRALIA

O’DONNELL & DOWNING (No.2) [2019] FCCA 2380

Catchwords:
FAMILY LAW – PARENTING – Child aged 9 – second round of litigation – where there have been ongoing difficulties with the child spending time with the father and following the religion the parties agreed she should follow since the parties separated five years ago – where the child is caught in a clash between cultures and religions – where the father’s inability to contain his anger about the mother’s conduct is impacting on his relationship with the child – where the only way to relieve pressure on the child is to make an order that the mother have sole parental responsibility for her and that her name be placed on the Watch list until she is 18.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CA

Cases cited:

O’Donnell & Downing [2016] FCCA 3125

Rice & Asplund (1979) FLC 90-725

Applicant: MS O'DONNELL

Respondent: MR DOWNING

File Number: NCC 1332 of 2014

Judgment of: Judge Terry

Hearing date: 29 July 2019

Date of Last Submission: 29 July 2019

Delivered at: Newcastle

Delivered on: 30 July 2019

REPRESENTATION

Counsel for the Applicant: Mr Boyd

Solicitors for the Applicant: Joplin Lawyers

The Respondent: In person

Counsel for the Independent Childrens Lawyer: Ms O’Rourke

Solicitors for the Independent Childrens Lawyer: Legal Aid NSW Newcastle

THE COURT ORDERS ON A FINAL BASIS THAT:

1. All previous parenting orders in relation to the child [X] born … 2010 (“[X]”) are discharged.

2. The mother shall have sole responsibility for the child subject to the following:

   (a)The mother is not permitted to change the child’s name;

   (b)The mother is not permitted to relocate the child’s residence to a place further from Sydney than her current home.

   (c)The mother shall notify the father in writing of any decision she makes in the exercise of her sole parental responsibility for making major decisions about long terms issues in relation to the child.

3. The father MR DOWNING also known as MR DOWNING born … 1978, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [X] also known as [X] born … 2010 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the child on the Family Law Watch List in force at all points or arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until she attains the age of 18.

4. During the Term 4 school holidays in 2019/2020 [X] shall spend time with the father as agreed between the parties but failing agreement as follows:

   (a)From 2pm on 26 December 2019 until 2pm on 30 December 2019, with changeover to occur inside McDonalds at Location A.

5. During the Term 4 school holidays in 2020/2021 [X] shall spend time with the father as agreed between the parties but failing agreement as follows:

   (a)From 2pm on 26 December 2020 until 2pm on 5 January 2021, with changeover to occur inside McDonalds at Location A; and

   (b)From 2pm on 15 January 2021 until 2pm 25 January 2021 with changeover to occur inside McDonalds at Location A.

6. During the Term 4 school holidays in 2021/2022 and onwards [X] shall spend time with the father as agreed between the parties but failing agreement as follows:

   (a)For one half of each school holiday period being:

   (i)From 2pm on 26 December 2021 to 2pm on 15 January in 2022 in the 2021/2022 school holidays and each alternate year thereafter; and

   (ii)From 2pm on 5 January 2023 to 2pm on 25 January 2023 in the 2022/2023 school holidays and each alternate year thereafter.

THE COURT ORDERS ON A FINAL BASIS BY CONSENT:

Live with

1. That the child, [X], born … 2010 live with the mother.

Spend time with

1. That [X] spend time with the father as agreed between the parties but failing agreement:

   (a)for a period of three months from the date of these Orders as follows:

   (i)each alternate Saturday with this time to take place at Region B and be unsupervised;

   (ii)with changeover to be effected by the parties meeting at Location C Contact Centre at times advised by the Contact Centre with these times to be between 9am and 9.30am and 4pm and 4.30pm, and until such time as the Centre has a vacancy for the parties, changeover occur inside McDonalds at Location A at the nominated times;

   (iii)with the parties to follow all direction and rules of the Contact Centre;

   (iv)with the parties to equally share the cost of the changeover facility at the Contact Centre;

   (b)following the conclusion of the time period identified in Order 8.a as follows:

   (i)each alternate weekend from 10am Saturday to 5pm Sunday with this time to be unsupervised;

   (ii)with changeover to be effected by the parties, meeting inside McDonalds at Location A at the nominated times;

   (c)Commencing the Term 1 2020 school holidays, during the Term 1, 2 and 3 school holiday periods as follows:

   (i)From 10am on the first Saturday of the holidays until 5pm on the second Saturday of the holidays;

   (ii)With changeover to be effected by the parties meeting inside McDonalds at Location A at the nominated times.

Special Occasions

1. That should the father be spending time with [X] on the Mother's Day weekend, this time be suspended.

2. That [X] spend time with the Father on the Father's Day weekend as agreed between the parties but failing agreement as follows:

   (a)In 2019 from 9am to 4pm on that day with changeover to take place inside McDonalds at Location A;

   (b)In 2020 and thereafter from 10am on the Saturday until 5pm on the Sunday with changeover to take place inside McDonalds at Location A.

Restraints and Requirements

1. That both parties notify one another within 48 hours of any change to their address, contact phone numbers and email addresses.

2. That both parties be restrained from denigrating the other or members of their family in the hearing or presence of [X] and from allowing or causing [X] to remain in the presence of third parties doing so.

3. That the parties be restrained from using physical discipline against [X] and from allowing or causing third parties do to so.

Education and health

1. That both parties be authorised to receive from any school [X] attends, all documents and information ordinarily provided to parents.

2. That both parties be authorised to attend any school [X] attends for the purpose of any function or event ordinarily attended by parents.

3. That should [X] suffer an injury or illness whilst in the care of one party that requires treatment by a medical professional, the party whom [X] is with notify the other as soon as practicable, providing the details of the treating professional, and authorise that party to liaise directly with the treating professional.

4. [X] shall have private telephone communication with the parties as follows unless otherwise agreed:

   (a)With the father each Wednesday from 7pm to 7:30pm and each Saturday [X] is not with the father from 7pm to 7:30 pm.

   (b)With the mother each Wednesday she is not with the mother from 7pm to 7:30 pm.

5. [X] shall spend additional time with the father for Religion D celebrations as follows:

   (a)On no more than two occasions per year for no more than four days on each occasion and [X] to miss no more than two consecutive days of school on each occasion.

   (b)With this time to not occur until after 1 January 2020.

6. In the event the mother is unavailable or unable to drive the mother be at liberty to have a nominee attend at change over with the father and [X] to have met that person prior.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1332 of 2014

MS O'DONNELL

Applicant

And

MR DOWNING

Respondent

REASONS FOR JUDGMENT

Introduction

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

2. The proceedings before me involve [X] aged nine and it is a second round of litigation.

3. The first round began in 2014 and concluded with a judgment I handed down on 14 December 2016 after conducting a four day trial in April and May.[1]

   [1] O’Donnell & Downing [2016] FCCA 3125

4. The background to the matter is set out in that judgment but just briefly, the parties met in Sydney and were in a relationship between April 2008 and May 2014, although as I observed in my judgment from mid-2013 they were sleeping in separate rooms and the father was often away working in Sydney.

5. I felt considerable sympathy for the father during the first round of proceedings and I said as follows in my judgment:

   The mother presented as calm and reasonable at the family report interviews and she sought to portray herself during the hearing and in her trial affidavit as a calm and reasonable person who was much put upon. However this presentation belies a significant underlying problem in this matter caused by the mother’s behaviour.

   Prior to [X]’s birth the mother led the father to believe that she was agreeable to living in Sydney and after her birth she led him to believe that the move to Town E was temporary. The father went along with the mother’s wishes for several years notwithstanding that he was a fish out of water in Town E.

   The mother manoeuvred the father to court on 17 April 2014 where he was presented in front of the family consultant with the fait accompli that the mother intended to separate from him and was faced with the mother seeking court orders about parenting arrangements on that day when he had no time to prepare.

   The mother agreed to [X] being brought up as Religion D prior to the child’s birth and continued to agree to it throughout the party’s marriage and after separation to the point of informing the family report writer that she would consent to a final order ratifying this.  She even told the family report writer that she had researched (omitted) in Newcastle. However she has never in fact sought out a (omitted) in Newcastle and in recent times she has allowed her mother to take the child to (omitted) which has led to distress and confusion for the child.

   The mother pays lip service to the importance of [X] learning Language D but she has never done a single thing to encourage it or support [X] within her home acquainting herself with this language which might have made all the difference to [X]’s attitude to learning it. At the same time she commented in her affidavit on how much [X] enjoyed learning Language F.

   The mother enrolled [X] in school at the age of 4 years and 9 months over the father’s known opposition and without allowing him to attend the child’s first day at school and she called the police when the father turned up one day outside the school in April. There was absolutely nothing to suggest the father behaved in an untoward way at the school, he was just there, and there was no reason why he should not have been. He said that he wanted to see his daughter in her school uniform.

   It is the mother who has behaved throughout with a sense of proprietorship in relation to the child, and her behaviour of saying one thing and doing something else or saying one thing but having a hidden agenda and manipulating the situation to achieve something else would be extremely difficult for anyone to deal with.

6. Since I handed down the decision the mother has continued to behave in ways which would try anyone’s patience. For example, she consented to a final order that the father have sole parental responsibility for religion. She has never allowed that order to be carried into effect. 

7. I made an order for the parties to otherwise share parental responsibility and the mother has made not the smallest attempt to comply with it. Just as she did before the first hearing she has repeatedly made decisions about the child’s education and her attendance on health professionals without making even a token effort to communicate with the father. 

8. In addition she stopped the father’s time with the child. Time only resumed after the father filed a contravention application and the mother was pressured into applying for a variation of the orders she was not complying with and some interim orders were made.

9. The father responded to the mother’s application by again seeking an order that the child live with him, which had been his position in the first proceedings. The parties were also in disagreement about the time the child should spend with the father if she lived with the mother. 

10. A family report was prepared. That did not result in any agreement and the matter was listed for a trial which began yesterday. 

11. The parties agreed yesterday to some orders for the father to spend time with the child. It will be a miracle if that actually happens. Although I commented positively in my first judgment on the mother’s compliance with orders, the reality is that she has only complied with orders when the matter has been before the Court. Once the first trial finished she ceased to comply with them and she only began complying when this Court made some fresh orders. 

12. To date she has complied with those fresh orders. Whether she will continue to do comply with orders after the matter is completed has to be seriously open to question. The statement in her trial affidavit that “I will be guided by [X]” rings an alarm bell for me.  I hope I am wrong and that [X] is allowed to have a relationship with both her parents but I have grave concerns that this may not happen. 

13. The sad fact is that in a small minority of cases which come before the Court there is nothing the Court can do to enable a child to have a relationship with both parents, not because of the undesirability of a parent but because of the intransigence of the parent with whom the child lives. It is an abiding problem faced by this Court. 

14. Most litigants comply with court orders even if they do not like them.  A tiny proportion however do not and take measures to make sure the orders are not carried into effect because they are rigidly convinced that they are right and the Court is wrong. 

15. An extreme example of someone doing that was the bombings in Sydney which led to the death of a judge and a judge’s wife. That is extremely rare. Less rarely, although luckily not very commonly, intransigence takes the form of a parent running off with a child and going into hiding. 

16. More commonly intransigence takes the form of a parent just stubbornly refusing to comply with an order.

17. Matters where there does not seem to be any good reason why orders should not be complied with but where they are nevertheless not being complied with are extremely frustrating, not just for the other party, who not uncommonly displays their frustration and their disbelief about the Court’s inefficacy in the way the father did yesterday, but also for judges, because the only effective response to ensure that a child spends time with the other parent in the face of such intransigence is usually to order a change of residence and that so often simply means that the child is damaged.

18. That would have been the result if I had gone down that path to solve the problem in this case. [X] is nine. An order for a change residence would have ensured that she spent time with her father but it would have been against her wishes.  She would very likely have found the reason for it incomprehensible. She would have been required to move from the environment with which she is familiar to a very different environment. It would have achieved one objective, that is, that she spent time with her father, but it would have been destructive for her and it is not something I could have done. 

19. I can therefore only make the orders the parties have agreed on and hope and pray that this time the mother complies with them. 

Time during the Christmas school holidays

1. The parties could not agree on three small issues about the father’s time with [X].

2. The first was whether the initial time during the Christmas school holidays should be for four days or seven days. I am going to make it four days.  There will only have been one overnight prior to that.  [X] is nine and she should cope with more than four days and I do not want to pander to the mother but anything which reduces the likelihood of complaint by the mother is to be preferred. The mother supported the four days and that is the order I am going to make.

3. The second was about length of the time during school holidays in the following years. The mother wanted two seven-day blocks in 2020. The father wanted longer.

4. By December 2020 [X] will be considerably older and in my view she should have an opportunity to spend more extended time with her father. I am going to order that during the 2020/2021 school holidays the time be two 10-day blocks and the following year I am going to make it half-half. 

5. There was also a dispute about Christmas Day. The mother wanted every Christmas Day. She said that the father was [practicing] Religion D so it did not matter to him. To an extent that is true but the father made a good point. He is living in Australia where Christmas is celebrated. He said that he had never prevented [X] having presents on Christmas Day and celebrating Christmas. 

6. However in all the circumstances of the case I am not going to commence the father’s time on Christmas Day. I am going to start it directly after that, again not because I want to pander to the mother but because I am simply concerned to do what I can to lessen the risk of non-compliance with the orders. 

Parental responsibility

1. The significant issues in dispute are the issues of parental responsibility and whether the child should be placed on the Watch list until she is 18. 

2. Orders have previously been made in this matter and pursuant to the Rule in Rice & Asplund[2] in determining whether to vary those orders I must have regard to the previous orders and the reasons why they were made.

   [2] Rice & Asplund (1979) FLC 90-725

3. In 2016 I ordered that the father have sole parental responsibility for decisions about religion and that the parties otherwise share parental responsibility.

4. Importantly, the order that the father have sole parental responsibility for decision about religion was consented to by the mother. I expressed concern in my judgment about whether she would comply with it and she has not but nevertheless she consented to it.  Now she wants it changed.   

5. The mother also seeks an order for sole parental responsibility overall.  She will agree to a restriction on being able to change the child’s name and a restriction on being able to relocate, although the likelihood of the mother leaving the Town E area seems remote. Otherwise she seeks an order for sole parental responsibility.

6. In my view this is not really about parental responsibility generally.  I say that because the mother has never complied with the order about a general sharing parental responsibility, not even once, and you could argue that there is no need to change that order because the mother does as she wishes anyway and the father has not sought to complain about it.  His complaint has been about not spending time with the child. 

7. The real significance of the mother’s application, and the mother and everyone else needs to understand this, is that the mother is seeking to remove the order about the father having sole parental responsibility for the child’s religious upbringing. 

8. That causes me considerable disquiet. The parties agreed when the child was born that she would be brought up [practicing] Religion D. Nobody twisted the mother’s arm about that. She agreed to it.  She told the first family report writer that she had agreed to it and would continue to abide by that agreement. She said somewhere, and I think it might have been to the report writer but it could have been somewhere else, that she had investigated Religion D in Newcastle. 

1. During the first trial the mother said that she was agnostic although she said that she had been brought up [practicing] Religion G and was attending some Religion G services.

2. During the first trial the Independent Children’s Lawyer supported the order about the father having sole parental responsibility for religion and the mother agreed to that order.

3. I expressed concern in my decision about whether the mother would comply with it and she has not.

4. The mother has never facilitated the child learning Language D, which would have been an important part of her engaging with Religion D and as I said in my first judgment the mother being positive rather than neutral or negative about that would have made all the difference to whether [X] was interested in learning that language. 

5. The mother has never taken the child to (omitted) as she said she would and never identified any (omitted) in Newcastle. I was told today that there was no (omitted) in Town E.

6. I also received a complaint today voiced through the Independent Children’s Lawyer, and I am not blaming her for this but this is just where it came from, that the father had sent a letter to the school requesting the child not attend religious education because the only religious education on offer was Christian religious education. 

7. The mother is clearly determined to take control of this aspect of the child’s life just as she is determined to take control of every other aspect of her life, including whether she spends time with her father. 

8. The Independent Children’s Lawyer in the current proceedings supports an order which will allow the mother to take charge of this but it appeared to be largely on the basis that there was no Religion D education available in Town E.

9. I am gravely disquieted about what has happened. This is yet another example of the mother agreeing to things and just continually resiling from what she has agreed to and changing her position and undermining orders and failing to comply with them. 

10. However as with every other decision I make about [X] my focus has to be on the child. She did not ask for the parents she has. She is not responsible for her mother’s attitude and her refusal to comply with orders and in the face of the mother’s intransigence the only effect of me leaving in place the order for [X] to be brought up [practicing] Relgion D is that [X] is going to suffer. 

11. [X] is not going to be instructed in Religion D because the mother will make sure it does not happen. She will frustrate any order I make and if the existing order remains in place the child is simply going to be torn in two and feel herself the subject of conflict endlessly. 

12. The mother is doing this child real harm. The father is [practicing] Religion D. It was clear yesterday from his submissions that it is part of his very being and that he has a strong desire to bring [X] up [practicing] Religion D. I fear his reaction if the child is inculcated into the Religion G faith.

13. The mother’s counsel said yesterday the child could be both. I strongly disagree with that. It is simply not possible. It may be possible to be one sort of a Christian in one place and one sort of a Christian in the other.  It is not possible to be a Christian and [practicing] Religion D.  I referred in my first judgment to the mother saying the child could be both, so I fear that is also the mother’s view.  I do not accept that it is possible. 

14. But for [X]’s sake I am going to discharge the order about the father having sole parental responsibility for religion because the mother is never going to allow it to be carried into effect and the child is simply going to be torn in two as a result of the mother’s attitude.

15. I commented in my first judgment about the mother’s lack of insight into the fact that [X] was an Country H-Australian child and I have no  reason to suppose that anything has changed in that regard.  But there is no point in leaving that order in place. It is simply going to cause pain and harm and conflict for the child. 

16. The father said that he had done nothing wrong and the order should not be changed but even if I agreed 100% with that there is a significant detriment to the child in leaving it in place. 

17. It is bitter enough to ask the father to accept a change to the order about religion and I am even more conflicted about whether to change the remainder of the order.

18. I referred in my 2016 judgment to the reasons why sharing parental responsibility was desirable. I said as follows:

    However it is serious thing to remove parental responsibility from a parent and it has much wider implications than just allowing one parent to choose a school or organise a counsellor. Only a parent who has parental responsibility has a right to be consulted about the issue of a passport for the child, and it can have implications in Hague Convention matters. It also removes a parent’s right to have a say about matters which cannot necessarily be foreseen and may arise five or more years in the future when the situation of the parties and the child may be very different.

    It is a very serious thing to remove parental responsibility from a parent who will be seeing their child regularly and will be a significant part of their child’s life. [3]

    [3] O’Donnell & Downing [2016] supra 176 & 177

19. I am concerned about rewarding the mother for her non-compliance with the order by changing it.  What sort of message is that sending to parents about the need to comply with orders and about the Court’s ability to enforce its orders?

20. However I come back again to the point that I have repeatedly made.   [X] has to be at the forefront of my decision-making. She is nine years old. She is an innocent in this case. It is a bitter thing for me to have to give in to the mother’s refusal to share parental responsibility and change the order but it could impact on [X] if I do not. Leaving it is in place is simply going to cause an ongoing conflict for her and I consider it is in [X]’s best interests that I change the order.

The Watch List order   

1. This issue was discussed at length in the first judgment and I made some findings. I indicated that I was not prepared to extend the Watch list order until [X] was 18 and said as follows:

   It would not be appropriate no matter what the circumstances to make a Watch Order until [X] is 18. It is impossible to see clearly into the next 12 years and be sure that this is appropriate. Counsel for the Independent Children’s Lawyer said that the father could apply to discharge the order but while this is true if I make such an order it may send a message to a future decision maker that there is some barrier the father needs to overcome and prevent the matter being considered in the future with fresh eyes.[4]

   [4] O’Donnell & Downing [2017] supra paragraph 231

2. I am now being asked to reconsider that and place [X]’s name on the watch list until she is 18.

3. The findings I made and the observations I made in the first judgment remain valid but again I bump up against the reality that the mother is never going to consent to an order for [X] to travel overseas and there is a high risk that if I make an order she disagrees with there will be ongoing difficulties with the father spending time with the child. I am not sure that making a long term watch list order is going to ensure that time occurs I might add, because there is a watch list order is place currently. The order I made on 14 December 2016 does not expire until December this year. 

4. However the mother is never going to consent to the child travelling.  There will be ongoing difficulties for the child if I do not do what the mother asks me to do and in the circumstances I feel that my hands are bound. 

5. I do it with considerable regret. 

6. Every case in this Court turns on its own facts and there are cases in which there is justification for preventing a child travelling overseas but in this case I feel a considerable sense of regret about being required to make an order which will prevent [X] from seeing her father’s home and meeting her Country H family until she is 18 and makes her own choice to do so. 

7. The mother knew the father was Country H when she formed a relationship with him. She knew he was proud of his country. Prior to separation she travelled to Country H with him. She now seeks an order which will prevent [X] from ever going there again until she turns 18 and is able to make her own decision, while the mother will be free to take [X] wherever she wants in her own country and introduce her to any family member she wants.

8. I was not convinced in 2016 that there was a compelling reason for making an airport watch order until [X] was 18. I made an order for three years hoping that matters might settle down. Sadly they did not.  They probably got worse after the decision was made rather than better.  For the last two and a half years the parties have remained in dispute.

9. [X] is nine years old. The parties have been in dispute about parenting arrangements for her for five years and indeed they have been in dispute from the very day of separation, which was actually the day the mother and her solicitor inveigled the father to attend court in response to an application the mother had just filed. 

10. I cannot alter the mother’s attitude. I cannot alter her opposition. The dispute has been ongoing for a very large part of [X]’s life and in my view it is in her best interests that I make an order which will obviate the necessity for the matter to come back to court. 

11. I greatly regret being forced to make the orders the mother proposes about parental responsibility and overseas travel, but I have to do the job the Act requires me to do. Pursuant to s. 60CA I must regard [X]’s best interests as the paramount consideration and it is in her best interests that she be removed from being a source of ongoing conflict between her parents.

12. The mother will have to explain to [X] when she is older that it was her choices, and perhaps her irrational fears and anxiety, which resulted in the child being cut off from a connection with her father’s religion, her father’s family, her father’s language and her father’s country of origin. I hope she does not also have explain to her that it was her choices which cut [X] off from having any connection with her father at all. Whether she has to do that will depend on her compliance with the order about [X] spending time with her father.

13. I can understand the father’s anger and frustration, which was on display yesterday. I cannot blame him for being angry and frustrated with an ineffectual court system but I would emphasise to him that he is only playing into the mother’s hands by displaying that anger. It is only giving her a choice not to comply. 

14. I made a comment in the original judgment about the fact that none of this was [X]’s fault and that the father simply had to accept, if he wanted to have a relationship with his daughter, that he had a lovely little daughter and form the best relationship he could with her in the circumstances. 

15. To an extent whether time happens uneventfully from now on also depends on the father putting aside his bitterness, anger and frustration and accepting the reality of what has happened, because there is nothing that I can do to change the mother or her attitude. 

16. I make orders about parental responsibility and the watch list with an exceptionally heavy heart but I have given reasons and I feel compelled to do so. 

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 29 August 2019