Partos & Merritt
[2023] FedCFamC1F 307
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Partos & Merritt [2023] FedCFamC1F 307
File number(s): BRC 15338 of 2021 Judgment of: HOWARD J Date of judgment: 20 January 2023 Catchwords: FAMILY LAW – PARENTING – Contravention Applications – Where the mother was found to have contravened orders however where it was also found that the mother did so with reasonable excuse – Where the child is now aged 16 years – Variation of earlier parenting orders – Best interests considerations. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 70NAC, 70NAE, 70NBA, Part VII Cases cited: Carrington & Gunby (No 2) [2013] FamCA 433
Irvin & Carr (2007) FLC 93-322
Rice & Asplund (1979) FLC 90-725
Sandler & Kerrington (2007) FLC 93-323
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 19 – 20 January 2023 Place: Brisbane Counsel for the Applicant: Mr Duplock Solicitor for the Applicant: O’Sullivans Law Firm Counsel for the Respondent: Ms Cullen Solicitor for the Respondent: Jurgensen Horne Lawyers Counsel for the Independent Children’s Lawyer: Ms Fuller Solicitor for the Independent Children’s Lawyer: TLG Law ORDERS
BRC 15338 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PARTOS
Applicant
AND: MS MERRITT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
20 JANUARY 2023
THE COURT FINDS:
1.That the Respondent, MS MERRITT, born 1968:
(a)contravened paragraph 5(b) of the Order of 11 September 2015 on 29 October 2021, but did so with a reasonable excuse; and
(b)contravened paragraph 6(a) of the Order of 1 September 2015 and paragraph 2 of the Order of 7 April 2017 on 31 October 2021, but did so with a reasonable excuse.
THE COURT ORDERS ON A FINAL BASIS:
1.That the Application for Contravention filed by the father on 14 October 2022 is dismissed.
2.That paragraph 3 of the Order of Justice Bell made 18 March 2011 remains in force.
3.That all previous parenting orders are discharged.
4.That the mother have sole parental responsibility for the child C born 2006.
5.That the child live with the mother.
6.That the mother be and is hereby authorised, in her exercise of sole parental responsibility for the child, to make an application to seek renewal of a passport in the name of the child, without the necessity for the consent of the father, and it is requested that all officers of the Department of Foreign Affairs and Trade (the Australian Passports Office) do all acts and things necessary to facilitate the mother obtaining or renewing a passport for the child.
7.That the child spend time and communicate with the father at any time as the child may express a wish to do so.
8.That the father be at liberty to communicate with the child via the email address …@....
9.That the father is otherwise restrained from contacting the child unless invited by the child to do so.
10.That the father is restrained from contacting the mother or the child by way of the mother’s mobile number or home telephone number.
11.That the father is restrained from discussing with the child, in person or by email:
(a)anything to do with the mother, her partner or her family, including reference to parental alienation;
(b)anything to do with any Court proceedings; and
(c)anything to do with COVID vaccinations, or health decisions that are not raised first by the child.
12.That the father is restrained from attending:-
(a)at the child’s place of residence (or within 100 metres thereof);
(b)at the child’s place of employment;
(c)at the child’s place of education or place of training,
unless there is written agreement between the father and the child for the father to do so.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Partos & Merritt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J:
A. These reasons were delivered ex tempore on 20 January 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court is an application for contravention. The contravention alleged is in respect of a parenting order concerning the child, C. C was born in 2006. C is the child of the applicant father, Mr Partos, and the respondent mother, Ms Merritt. This family has a long history of litigation in this jurisdiction. Many previous judges of this Court have heard applications in respect of this family and in respect of this child, C. These judges include Bell J, Murphy J, O’Reilly J and Forrest J. There have been two full trials in the Family Court of Australia, as this Court was then known, before Bell J. They took place in October 2008 and April 2010. There was a further trial before Forrest J in 2015.
At the outset, the Court is required to provide reasons for judgment by way of a determination in respect of the application for contravention filed by the father on 14 October 2022. That application was accompanied by an affidavit sworn by the father, also filed on 14 October 2022. At this hearing, the applicant father has been represented by a solicitor and Mr Duplock of counsel, who has provided very able representation for the father in respect of this contravention application. Ms Cullen of counsel has appeared on behalf of the mother, and Ms Fuller of counsel appears on behalf of the Independent Children’s Lawyer (“ICL”). In respect of the application for contravention, the actual allegations of contravention are particularised in the document itself.
I would agree with the submission of Ms Fuller, at least to this extent; that the particulars of allegation in respect of the first alleged contravention are somewhat problematic. However, on a close reading of the first allegation, the view that I have formed is that it is possible to discern what has been alleged, and the first allegation commences at paragraph 6 on page 2 of the application for contravention. In the rectangular box that appears at the bottom of paragraph 6 it is stated:
act or omission contravenes order 5(b) of the orders made on 11th September 2015
The allegation refers to paragraph 5(b) of the orders of Forrest J dated 11 September 2015. Paragraph 5(b) was subsequently varied but not in any respect that is relevant to the contravention alleged. So the father alleges that at 3.02pm on 29 October 2021, in, I infer, both Queensland and New South Wales, the respondent mother contravened paragraph 5(b) of the orders of 11 September 2015. That particular order reads as follows:
5(b)For up to two weekends during each school term at the father’s election, conditional upon, unless otherwise agreed in writing in advance between the parties, the following:
(i) The father giving the mother no less than two full weeks’ notice in writing of his intention to have the child with him on the nominated weekend; and
(ii) The father picking the child up from school on the Friday afternoon and returning him to school on the following Monday morning; and
(iii) The father staying for the weekend with the child somewhere within a 60 km radius of the [Q Town] Post Office; and
(iv) The father taking the child to all of his extra-curricular activities scheduled during that weekend, including any [sports] game, with the mother to give the father details in writing of any such activities and games scheduled during that weekend at the father’s request or as soon after his nomination of that weekend as she learns of the scheduled extracurricular activity or game, whichever is the earlier.
Paragraph 5(b)(iv) was amended by the Order of 7 April 2017 to read as follows:
(iv)The father taking the child to all of his extra-curricular activities scheduled during that weekend, including any [sports] game or games, with the mother to give the father details in writing of any such activities and games scheduled during that weekend at the father’s written request if she is aware of those details at the time of his request or if she is not aware of those details when he first requests them then as soon after his request as she does become aware of those details.
It is the case that applications for contravention are quasi-criminal in nature, and exactness and particularity is required. In the circumstances of this case, as best I can ascertain, the father intended to allege that on 29 October 2021, the mother contravened Order 5(b) by failing to facilitate the child’s time with the father in accordance with that order. The hearing was conducted on that basis, and I understood from Ms Cullen, counsel for the mother, that the allegation was understood by the mother in those terms. It is important to note that as at October 2021, C was aged 15 years. It is also important to note that, as I understand the concessions (on behalf of the parents at least) that were made from the bar table, that from the time of the making of the order of Forrest J in September 2015 until October 2021, there was substantial compliance by the mother with the order which was contained in paragraph 5(b), at least insofar as it related to the child spending time with the father in accordance with that order.
Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) contains the definition or the meaning of “contravened an order”, specifically:
70NAC Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
The section, relevantly, provides that, “A person is taken for the purposes of this Division” – that is, Division 13A of the Act – “to have contravened an order under this Act affecting children if, and only if: where the person is bound by the order - he or she has: intentionally failed to comply with the order; or made no reasonable attempt to comply with the order.”
The plea, as I understand it, on behalf of the mother amounted to an acceptance that on 29 October 2021, the child did not spend time or commence to spend time with the father in accordance with the September 2015 orders, leading to an acceptance by the mother that the order was contravened but that the mother had a reasonable excuse for contravening the order. Section 70NAE of the Act sets out the meaning of reasonable excuse for contravening an order. The definition, of course, is not exhaustive in the section. It states in s 70NAE(1) that the circumstances set out there include, but are not limited to, those particular circumstances.
The family, as I said, have had a long history of conflict in this jurisdiction. The parents, it seems, never actually lived together and from the time that the child was very young, there has been litigation in respect of the child. The mother gave evidence to the effect that in the approximate 12 months leading up to October 2021, in her discussions with the child C, the child was indicating increasing opposition to going and spending time with his father. I accept that evidence of the mother, and the reason I accept it is because it is in accordance with other evidence in the case. It accords with what the child himself told Ms W and what the child told Ms X.
That is to say, this teenager, for whatever reason, came to the view over a period of time that he wanted to pause his relationship with his father. He wanted to put it on hold. He did not want to see his dad anymore in accordance with the orders, and I accept that he conveyed that sentiment to his mother as the mother has indicated. It is to be noted, importantly, that for approximately six years, Order 5(b) of the September 2015 orders (in terms of time with the father) was substantially complied with in what, I apprehend from the evidence and infer from the evidence, was an atmosphere of increasing opposition from the child, especially in the 12 months leading up to October 2021.
I accept the evidence by the mother that on that particular day in October 2021, C was displaying more opposition than ever to spending time with his dad. I note paragraph 13 of the mother’s affidavit filed 13 October 2022:
[C] had been growing increasingly anxious and would become agitated in the leadup to spending time with his father.
I accept that evidence from the mother.
I also accept her evidence that C was concerned in relation to the father’s views relating to the vaccination in respect of Covid-19. The father gave evidence that there was no dispute between him and C on that issue. As often happens with teenagers, and I have seen it countless times in this Court, it often occurs that a teenager in particular will tell a parent what the child thinks the parent wants to hear, and the child will invariably be doing this to obtain for himself or herself a peaceful life. It may be that the father and the son were at cross-purposes on the issue. That aspect I do not need to make any findings about, but I do accept the mother’s testimony that the boy felt that he would be upsetting his father if he, C, was vaccinated against Covid‑19. That is precisely the conclusion of the independent experts in this case.
In that respect, I note paragraph 17 of the Child Impact Report of Ms X dated 18 January 2022:
17. [C] spoke about why he stopped seeing his dad. He said that his dad is “an antivaxxer, heavy into it”. [C] said that before that “I started to realise for a year that he was manipulating, not normal, not what every dad does”. He said that he got the vaccine because his mum wanted him to and he didn’t care either way. [C] said that he was reluctant to have it because he was worried about his dad’s reaction and when he had the needle he texted his dad and said “sorry I couldn’t stop them… he told me to punch out the doctor”. [C] said that his dad was supposed to pick him up that afternoon for the weekend and he was worried all day because he knew his dad would be mad that he got the vaccine. He said that he wasn’t sure whether he wanted to go with his dad, noting that he had never not gone and he knew his dad would be angry. He said that he realised “if I don’t go I won’t be able to go again, he will just get angrier”.
The point is that on that date, 29 October 2021, C made it abundantly clear to his mother that he did not want to spend time with his father. Indeed, I note paragraph 16 of the mother’s affidavit where she said C said to her during a telephone call that was made to the mother from Y School, where C was then at school, at about 2.20pm on 29 October 2021:
I can’t do it any more, Mum. I never want to see or talk to him [the father] again.
I note that the child had spoken with the student support officer at the school, with whom C had a close and longstanding mentor-type relationship. The point is that I accept the mother’s evidence for the reasons stated, that the boy voiced his opposition very firmly on 29 October 2021 that he, a 15 year old boy, was not willing to go to spend time with his father. The view that I have formed is that in those circumstances, the mother does have a reasonable excuse for contravening that order on that date at that time.
In respect of the second allegation of contravention, I note paragraphs 8 and 9 of the application where reference is made to Order 6(a) of the Order of 11 September 2015 and Order 2 of the Order of 7 April 2017.
The date of the alleged contravention is 31 October 2021, 6.00pm, taking place in Queensland and New South Wales. This is the allegation relating to telephone time between the father and the child. I note that the date was two days after the boy had told his mother he did not want to see or talk to his father again. As I understand it, the plea put forward on behalf of the mother by her counsel, Ms Cullen, was that the mother did block the calls from the father, but that she had a reasonable excuse for doing so, noting the other evidence to which I have referred. Having accepted the evidence that this 15 year old boy had made it abundantly clear to his mother that, certainly, at that point in time, he did not wish to see or speak to his father, the view that I have formed is that the mother had a reasonable excuse for contravening the order.
To the extent that paragraph 9 of the application seeks to maintain a so-called “ongoing contravention”, I do not consider that is sufficiently particular to even require the Court’s consideration. I would note, though, that the comment in the last sentence of the box at the bottom of paragraph 9 on page 4 of the applicant for contravention is clearly not correct. The sentence says:
My son and I have had zero communications since our video chat on 27 October 2021.
There are plenty of emails to show that is not the case. The father did explain, though, that when he originally typed that document – because he prepared it himself – he merely refiled that at the suggestion of the Court. So there may be some crossover there and some miscommunication, which is not relevant for the purposes of today. The point is that I have formed the view for the reasons stated that, because of the strong wishes stated by the child to his mother at a point in time when the child was aged 15 years, the mother has reasonable excuses in respect of the two contraventions alleged to have occurred or said to have occurred on 29 October 2021 and 31 October 2021.
As I said to the parties when the matter was before me in August of 2022, I sought that they would indicate to the Court any orders they might seek that the Court make by way of variations of the earlier final orders by reference to s 70NBA of the Act. That section reads, relevantly:
Variation of parenting order
(1)A court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the court does not find that the person committed a contravention of the primary order; or
(ii)the court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b)there was no post-separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
It is apparent from that section that if an application for contravention is filed, then the Court has the power to vary a primary order. A primary order here would include the September 2015 order as varied by the April 2017 order. When s 70NBA becomes relevant, as it is here, the relevant principles are those outlined in cases such as Sandler & Kerrington (2007) FLC 93-323, Irvin & Carr (2007) FLC 93-322, Carrington & Gunby (No 2) [2013] FamCA 433.
In those cases, it is apparent that the Court has the power to vary an earlier final parenting order – but that the Court should not do so without first turning its mind to the rule in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). In Rice & Asplund, it was made clear by the Full Court that an earlier final parenting order ought not be amended or overturned unless there has been some significant change in circumstances. In my view, in this case, there has been a significant change in circumstances.
When the 2015 order was made, C was only aged nine years. As at today’s date, he is 16 years. He is a lot older – and as was pointed out, views which the boy expressed in a Family Report in 2015 are very different to the views expressed by the boy now. The difference between a nine year old and a child of 16 years are, of course, astounding. He is old enough and mature enough to have his wishes taken into account. His views have changed.
Noting the proposed orders handed to the Court by the parties in submissions, there is an acceptance that there has been a change in circumstances sufficient to vary the orders. That is firmly the view of the Court, for the reasons stated. There having been such a significant change in circumstances permitting the Court to vary the earlier order, the Court is required to approach the question in a similar way to the making of any parenting order. That is, by reference to Part VII of the Act and, in particular, s 60CC and the relevant sections thereabouts.
In view of the orders that were proposed by the parties, the scope is limited in terms of the extent to which the Court needs to provide reasons in relation to those sections in Part VII. Section 60CA requires that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how it is that a Court is to determine what is in a child’s best interests. I have had close regard to the primary considerations set out in s 60CC(2) and, indeed, the additional considerations in s 60CC(3). It is well known that the Court only needs to provide reasons in relation to those various subsections which are particularly relevant in the case before the Court.
In s 60CC(2)(a) there is a consideration noting the benefit to the child of having a meaningful relationship with both of his parents. In this respect, this is where I want to comment in relation to the child’s relationship with his father. The impression I have is that the relationship has not completely broken down. I think that it is the case that with this teenager, he wanted a break from seeing his father and from communicating with him. There is no doubt that on the evidence from over the years – including the photos that the father referred the Court to – that there is a long history of a close, loving, and meaningful relationship between the child and the father. But as everybody in this Courtroom knows, when a young person goes from being a child to being a teenager, on the verge of manhood, as C is, relationships can be impacted. I am certain that is what has happened here, in relation to the father’s relationship with the child. There is no question that the mother had and maintains a meaningful relationship with the child.
There is, in s 60CC(2)(b), a need to protect children from various forms of harm, including psychological harm. There is evidence, from Ms X in particular, – and Ms W, for that matter – that any attempt to force the child to see the father could possibly cause psychological harm to the child.
But noting the orders sought by the father – apart from one that he personally put forward to the Court at the end – the father is not seeking any enforcement of the boy spending time with him. That is to say, the father is not requiring that the boy be physically collected, for instance, by the New South Wales Police and driven across the border to the Queensland Police and then delivered to the father. The father does not seek that and it is to his credit, obviously, that he accepts the situation in that respect. Any order that would put a positive obligation on the child to spend time with the father or to communicate with the father, certainly on an ongoing basis, would, on the evidence of Ms X, at the least, possibly cause psychological harm to the child. That is apparent enough from his very strongly expressed wishes.
I do not think it is necessary to make any further comments on s 60CC(2)(b). The additional considerations in determining best interests are contained in s 60CC(3) and, by far the most important for the purposes of this case is s 60CC(3)(a):
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
It is abundantly clear what the child’s views are, at this stage. At this point in time, he does not want to spend time with his father. At this point in time, he does not want to communicate with his father. His age and his level of maturity are such that his expressed views should be given great weight by the Court. And they are given great weight by the Court. There is simply no way around it. The evidence in that regard is overwhelming.
There was some suggestions by the father that the views expressed by the child are not his own - that the boy has been overborne or influenced by the mother to the point where the child has expressed these views. I am not satisfied that that is the case. The child said to Ms X, that he was upset at the suggestion that these views were his mother’s views or that her will was being imposed upon him. The child made it very clear that it is his own views.
The father had also suggested through his counsel – the possibility that there has been parental alienation. The father himself is firmly of the view that there has been parental alienation. Ms X gave evidence that she considered there was no evidence of parental alienation and nor was there any indication of parental alienation by the mother, and Ms X set out in her oral testimony on 19 January 2023, the types of indicators she would expect to see in circumstances where there has been parental alienation.
Ms X said that you would expect to see similarities in the language used by a child and the parent who is perpetrating the alienation. You would expect to see the same stories told by the child and the parent. You would expect to see similar overreactions to relatively small matters. You would expect to see from a child some consciousness of the parent’s emotional state. Ms X said she did not see anything like that in this child C. She said he was very angry and insisted that these were his own feelings, that is to say, his express wishes not to spend time or communicate at this stage with his father, and, to restate what I said earlier, the child said to Ms X at or about this point that he was upset that his mother was being blamed.
I noted earlier, and I will restate it here, that, in fact, it was in Ms X’s report, at paragraph 17, that the boy gave the explanation to her that he thought the father would be very upset about the fact that the boy got a vaccination for COVID. Ms X’s evidence was that the child thought that the father would react negatively when he found out that the child had been vaccinated. Ms X gave evidence that the child had been struggling already in the dynamics of his relationship with his father. The evidence is that the child indicated to the report writer that the boy thought that if he stopped spending time with his father, the decision would have to be for good.
Now, this, obviously, I state, could be the immature view or the immature conclusion of a teenager. I strongly suspect it was. Parents and teenagers often have disputes. There is often controversies of the gravest nature, but very often – I would say more often than not – parents and teenagers are eventually able to get past those differences and those controversies, but the view expressed to the report writer, which I have accepted, is that the boy had been troubled about his relationship with his dad for a while, and about the dynamics of that relationship, and the vaccination issue was a catalyst for a ceasing or a pausing of that relationship.
I have already made comment about the parents – the nature of the parents’ relationships with the child, noting as I do the requirement there in s 60CC(3)(b). I have had close regard to the other subsections of s 60CC(3), many of which I have already touched on in one way or another. I have obviously noted the clear view stated by the child to the two report writers. At this part, under s 60CC(3)(m), I will include some of the paragraphs from those report writers where the writers have expressed the boy’s wishes. In the Child Impact Report prepared by Ms X and dated 26 August 2022, I note the following relevant paragraphs:
20. [C] said that his dad reacts really strongly to things and “I knew when I decided not to go it would have to be for good”. With regard to his view about having contact with his dad in future [C] said “not right now… not in the foreseeable future… I know he’s not going to change his behaviour, he never acknowledges, blames me and Mum… the only way I would want to see him is if he would acknowledge what he’s done and change, and then see him when I want to… cause at the moment he thinks he has control and I don’t like that… he thinks he’s perfect… doesn’t listen to my perspective, I never disagreed with him, I knew he would react, be angry”.
21. [C] said that he is aware that his dad tried to get a recovery order and his understanding of what this meant was that “police come and take me from my mother’s house”. He said if that happened “he would end up in hospital and I would end up in juvie” affirming when the writer sought clarification that he meant that he would hurt his dad. [C] said that he would be extremely angry if there was any attempt to make him see his dad.
In the Specific Issues Report prepared by Ms W (dated 13 September 2022), I note the following paragraphs:
6. [C] stated that although he misses “things and friends” at the father’s residence, he feels no loss, remorse or longing for the father. [C] is frustrated and “pissed off” that he is unable to access possessions such as his [bike], however he stated “it’s not worth seeing dad for it though”. [C] stated the mother and the father “continue to push and ask” and he is “sick of feeling obligated” and reflected that with “the stupid recovery order, I have said, I will put him in hospital” and confirmed this reference as being willing to harm the father.
7. [C] again stated clearly “I want to choose, I want to call him if and when I want and if I want to see him, I will make that happen, not him”. [C] stated the father does not have his phone number or email currently and he “wants it to stay that way” and he “hates that he can get me on my school email, because I can’t delete that one”. He stated he is unsure of the future and what the contact will be with the father, however for now “definitely not at this stage, I want it all to stop, no court, no demands, [and] no orders”.
I have particularly noted the maturity of this child, referred to in s 60CC(3)(g). As to the extent of any reasons required concerning the variation to the parenting order, the fact that the submissions from the parties acknowledge a variation is required means, in my view, that the extent of reasons required can be appropriately confined. The parties, then, have put forward their particular views in relation to the orders that should be made. The Court has the ICL’s proposal, Exhibit 5, and the proposal of the parents, Exhibit 6 and 7, being respectively the father’s proposal and the mother’s proposal.
The ICL and the mother both seek an order that all previous parenting orders are discharged, and the intention there is to maintain in existence the order that was made by Bell J in 2011. The order was made on 18 March 2011. Order 3 in particular says:
Save for Order 2 of these Orders, UNTIL FURTHER ORDER [Ms Merritt] or [Mr Partos] must not institute proceedings in this Court without first obtaining leave of the Court or a Judge.
That order was made by Bell J on 18 March 2011. I understand there was some discussion about it by one of the other judges, Murphy J, at some stage. But importantly, in the September 2015 judgment of Forrest J, his Honour stated in paragraph 90:
Finally, I will not discharge paragraph 3 of Bell J’s Order of 18 March 2011. Accordingly, neither parent may institute any further proceedings in the Court without first obtaining the leave of the Court or a Judge. I do not consider it in the child’s best interests to free the parents from the need to persuade a Judge that further proceedings are necessary if either of them wishes to commence any in the future.
The ICL wants to maintain that order. The mother wants to maintain it. I did give the father the extraordinary opportunity of making some oral submissions on his own behalf. I should pause there to explain what happened. This matter has been set down for some time. An order was made under s 102NA of the Act banning cross-examination in the absence of a legal representative of the other parent. The father, as I say, was ably represented by Mr Duplock of counsel and solicitors were on the record in having instructed Mr Duplock also.
When the father rose at the end of all the submissions to see if he could say a few things, Mr Duplock sought the court’s leave to withdraw, but the view I took then, and I did give some brief reasons, was that given how far through the trial we were, virtually at the conclusion, it was not appropriate to grant leave to withdraw. So I took the extraordinary step of permitting a parent to make their own oral submissions, notwithstanding the fact that they also had a barrister and solicitor in the courtroom. Then for approximately 30 or 40 minutes, Mr Partos made some oral submissions. I apprehend from what the father said that he personally thought that the vexatious litigant order made by Bell J ought to continue in respect of the mother but not in respect of himself.
The view that I take is the same as the view taken by Forrest J. I do not consider it would be in C’s best interests to free these parents from the need to persuade a judge that further proceedings are necessary. In the reasons for judgment that I gave in respect of the August 2022 hearing, I made comment of the history of that restraint, and I came to the conclusion that it was appropriate, notwithstanding the fact that the Act had changed significantly in relation to the question of vexatious litigants, to leave the order in place. Nothing I have heard in the last two days has changed my mind in relation to the correctness of that view.
To put it another way, I have no intention of discharging Bell J’s order of 18 March 2011. There will be an order along the lines that all previous parenting orders are discharged, but there will be a separate sentence to remove any doubt that paragraph 3 of the orders of Bell J of 18 March 2011 remains in force. The first order will be that the application for contravention filed by the father on 14 October 2022 is dismissed, the court having noted that whilst contraventions may have been proved, the mother had reasonable excuses in respect of all allegations of contravention.
There will be an order the child live with the mother. There will be an order for sole parental responsibility to the mother. There will be an order as sought by the mother in respect of the passport. It makes sense as the mother has sole parental responsibility. These parents have no chance of communicating in an effective manner on a passport application, so the paragraph 3 from the mother’s proposed order will be included. Paragraph 5 from the mother’s proposed order will be included; it is the same as the ICLs and very similar to that proposed by the father. There is no evidence to support the making of an injunction as sought by the father restraining overseas travel for the boy. There is no evidence whatsoever of any flight risk.
Much was said in relation to email addresses. The mother’s evidence was that the boy is no longer at school, he is going to do a training course. As such, the old New South Wales Education email address is no longer operative or accessible by the boy, so what is proposed is that the father can communicate via email to …@…. Now, the father also says that he would like a second email address, but I am confident that the evidence discloses that the child himself had access to that email address. And if and when the boy comes to the conclusion he wants to write back to the father from that email address, I am sure that he will do so. I do not see there is any need for any further email address to be provided.
Now, I take the view that the evidence of Ms X is persuasive, in this respect: I do not consider it necessary for there to be any restraint on the number of times the father can send an email. Because the view that I have formed based on the evidence of Ms X is that the boy, if he does not want to read the email, will not. I am not persuaded that any such restraint, as sought by the mother or the ICL, is necessary or in the best interests of the child. I rely on the evidence of Ms X in that regard. As Ms X said, if there were to be, from the father, some unreasonable number of emails sent through, then that is likely to further entrench the boy’s opposition to communicating with the father. I am sure that point will not be lost on the father.
Other restraints have been sought by the ICL and the mother. I think the best way to put it is like this. Given that I am the fifth judge, in this Court, to be called upon to provide a determination in relation to this family, I do consider that it will be in the best interests of young C if I provide some further parameters by way of some injunctions under s 68B, in terms, as requested by the mother, of paragraph 7 and 8 and 9 of Exhibit 7. This will further reduce the possibility of further litigation. Paragraph 7 from the mother’s draft will be amended so it says that, otherwise, the father is restrained from contacting the child unless invited, in writing, by the child to do so.
Paragraph 8 - frankly, it is just as well to put that in the orders. It really takes the mother out of the equation. The boy is mature enough to manage his relationship with his father alone. And if this provides some further mechanism by which we can be assured of no further litigation, then paragraph 8 is appropriate. Given some of the topics raised in the email correspondence by the father with the child, I also take the view that it is in C’s best interests for the restraints proposed in paragraph 9 to be made.
As to the proposed restraints about the child’s residence, or within 100 metres or place of employment or education or training, I note what the father had to say about this: that it is really something that could be done by a different Court. But the matter is before this Court and the matter has been before this Court for too long and has been the subject of way too many applications and the subject of way too many hearings. The view that I take is that this kind of injunction is certainly open to the Court on the basis of the evidence and s 68B. On the basis of the evidence, because when the father did attend at the school, I accept he was genuinely trying to reconnect with the boy - I accept that - but in the context of this case, the boy had made it clear that at that point in time, he did not want to reconnect with his father. In those circumstances, I think it is reasonable and in the best interests of the child to make the order in paragraph 10.
I note the evidence in this regard. I will put it this way – whether the boy’s apprehension, worry or fear was reasonable at the time, he apparently went and slept somewhere else for a night or two because he wanted to make sure he did not cross paths with his dad at the boy’s usual residence, if that eventuated. I think it will give the boy some comfort – and it is in his best interests – to make the orders by way of restraint – that is to say, injunctions under s 68B – sought by the mother in paragraph 10. To put it another way, I am firmly of the view – it will be apparent from these reasons – that the relationship between the father and the child will eventually be repaired, but it will take time. If this sort of order gives the boy some comfort and, from his perspective, peace while he matures further, then it is in his best interests. And that is what I think it achieves.
There is one change to it that I am going to make, though. I do not think it is appropriate that the words, “unless there is a written agreement between the parties for him to do so” should be included in the order. The order should contain the words “unless there is a written agreement between the father and C for the father to do so”. This should be left to the father and C. The boy is nearly 17. He is mature enough, old enough and smart enough to text his father if he wants to and say, “Well, why don’t you meet me after work and we will go for a coffee”. For the reasons stated, paragraph 10 from the mother’s draft is appropriate.
There are a couple of other points – at least one, in particular - that I want to make. The father asked for a specific order that there be a meeting between C and himself. And the father said, “Look, even if [C] wants the coach to be present”, because C seems to have a good connection with the coach.
What he is asking for is perfectly reasonable, but in the context of this evidence, it is not possible for the court to justify such an order. If I can put it this way, there has been such a long history between this mother and this father. They both have in their minds everything that was said by the other over the years, they can recall every slight. There is a complete lack of trust.
The point I am making is this. There may be a lot of things that happened in the history, but I can only – indeed, must only - decide this case based on the evidence before me in this application. The evidence before me in this application, in particular, from the two independent experts, would lead me to conclude that it would not be in the best interests of C for me to make an order requiring him to actually physically meet up with his father at this point in time. That much was made clear by both Ms W and Ms X.
Given my reasons concerning the residence and the proposal from paragraph 10 of the mother’s draft, it will be apparent that I think it is neither necessary nor appropriate for there to be such an order about providing the address of the child. The view that I have is as follows. When this boy is ready to communicate with his father again, he will do so. When he is ready. He is almost 17. When he is ready, he will do it. At that point, if he wants to tell his dad the address that he lives at, he will do it. I am not going to require the mother to provide that address, nor am I going to require the mother to provide an email address, unless it was consented to.
I am satisfied that if it got to the point that the mother needed to contact the father about the child, she would be able to do it. There has been too much conflict between the parents. And when I said earlier this litigation has to end – I also mean that the conflict between the parents must end. And to further ensure that it ends, it is a very good idea that there be no exchange of email addresses or the residential addresses. I do not consider that those final two requests on behalf of the father are in the best interests of the child, and I will not be making any orders in that regard.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 21 April 2023
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