Prior & Prior (No 2)
[2022] FedCFamC1F 783
Federal Circuit and Family Court of Australia
(DIVISION 1)
Prior & Prior (No 2) [2022] FedCFamC1F 783
File number(s): MLC 8811 of 2015 Judgment of: BENNETT J Date of judgment: 17 October 2022 Catchwords: FAMILY LAW- PARENTING – high parental conflict – need to protect the child (14 years old) from psychological harm.
FAMILY LAW- PARENTING – enforcement of previous parenting orders for the child to spend time with the father in the United States of America – where mother remained resistant to the child travelling to the United States - where implementation of the orders entitling the child to spend time with the father in the United States was frustrated by COVID-19 protective measures, administrative delay in availability of interviews for applications for a visa and lack of timely co-operation on the part of the mother - where child has left the care of the mother in Australia of his own accord and without her permission.
FAMILY LAW- PARENTING – where father seeks change of residence and to relocate the child to the United States permanently – where mother seeks immediate return of the child and to discharge previous orders for child to spend any time with the father.
FAMILY LAW- PARENTING – where court not satisfied of any change in circumstances whereby child’s best interests are served by re-litigation of earlier parenting dispute
FAMILY LAW- PARENTING – where it is in best interests of the child to remain in the care of third parties at the direction of the husband and to travel to America as soon as possible – where no orders compelling or preventing the child seeing or communicating with the mother and with his older sister before he departs Australia -where outcome accords with the evidence of Court Child Expert as to the child’s best interests.Legislation: Family Law Act 1975 (Cth) s 65DA Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 16, 22 and 26 August 2022 Place: Melbourne (via Ms Teams) Counsel for the Applicant: Ms Jeans Solicitor for the Applicant: CMA Law Solicitor for the Respondent: Victoria Legal Aid Duty Lawyer Counsel for the Independent Children’s Lawyer: Mr Eidelson Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 8811 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PRIOR
Applicant
AND: MS PRIOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
17 october 2022
THE COURT ORDERS THAT:
1.The mother’s application for X born 2008 (“X”) to be returned to her care and reside with her be and is hereby dismissed.
2.This matter be adjourned for a period of 7 months for mention on Friday 30 June 2023 at 9.00 am and there be liberty to the parties to have the matter brought on earlier with proper material if needs be.
3.I otherwise dismiss each parent’s application for interim orders.
4.In lieu of the provisions provided for in the Order of 28 October 2021 for X to spend time with the father in the United States of America, X spend time with the father in the United States of America from such date as X departs Australia, with permission to enter the United States of America, until a date not later than seven months thereafter.
5.The father have sole parental responsibility in relation to X for major long term decisions in relation to health and education to operate whilst X is in the United States of America and the father advise the mother promptly and in writing of decisions which he makes in that regard. Otherwise, the parties have equal shared parental responsibility for the child. For the avoidance of doubt, this attribution of parental responsibility does not exceed the time that X spends in the care of the father pursuant to paragraph 4 of this Order.
6.Each parent advise the other in writing and immediately of any significant illness or medical condition of the child or himself or herself.
7.Any previous orders in relation to the holding of X’s passports be varied to the extent necessary to allow compliance with requirements of the government of the United States of America in relation to the granting of visas or permission to enter the United States.
8.Until further Order, X reside with the father or, at the father’s direction, with Mr K and/or Ms K until such time as X travels to the United States of America to spend time with the father pursuant to paragraph 4 of this Order.
9.Until further Order, the mother not disturb the placement of X in the household of Mr K and/or Ms K pending X’s departure from Australia and to the United States of America.
10.The father be responsible for making arrangements for X to attend any interview for a visa or permission from the United States government for X to enter the United States of America. The father may, at his discretion, delegate responsibility to accompany X to the interview to Mr K and/or Ms K.
11.The person or persons who are to accompany X to an appointment at the United States Consular offices, be entitled to collect the passports of the child (British and Australian) from this Registry of the Court up to 7 days prior to any interview for a visa application AND IT IS NOTED that arrangements were made for the passports to be collected on 11 October 2022.
12.By not later than 1 December 2022, the father advise the mother and the independent children’s lawyer in writing of the date and precise travel arrangements for the return of X to Australia pursuant to paragraph 4 of this Order.
13.Both parents be and are hereby mutually restrained from causing, permitting or suffering any application to be made to any court in the United States of America to extend the period for which this Order provides (by paragraph 4) that X may spend time in the United States of America.
14.Both parents advise the other and keep the other advised of his or her current residential address and contact telephone numbers and an email address, and any changes thereto be advised in writing no less than 7 clear days prior to such change.
15.IT IS DIRECTED THAT the independent children’s lawyer provide a copy of this Order and my reasons for decision to Mr and Ms K.
16.There be liberty reserved to each party and to Mr and Ms K to make urgent application to me in relation to implementation of this Order.
17.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
AND IT IS NOTED BY THE COURT that the parents acknowledged to the Court and to one another and to the independent children’s lawyer that X remains habitually resident in Australia, within the context of the 1980 Convention on the Civil Aspects of International Child Abduction and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, notwithstanding the time he will spend out of Australia as contemplated by this Order.
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 Prior & Prior has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me for determination of the father’s application for sole parental responsibility in respect of the child, X (aged 14) and for X to travel to the United States to live with the father.
On 28 October 2021 I made orders which, inter alia, permitted X to travel to the United States on three occasions. The matter was listed before me urgently at the request of the father on 13 May 2022. My reasons for decision were released to the parties on 19 July 2022 and published in case neutral citation [2022] FedCFamC1F 518. I incorporate those reasons into these reasons. Paragraphs 4, 5 and 6 of my Order of 13 May 2022, inter alia, required the mother to do all acts and things necessary to transfer responsibility for the visa application and interview to the father. I requested the re-appointment of the independent children’s lawyer, Ms B. Ms B was re-appointed and she has been an excellent independent children’s lawyer in this difficult case.
On 11 August 2022 the father filed an amended initiating application (Folio …) seeking sole parental responsibility for X, that X live with the father in the United States and for X to have such contact with the mother as he wishes. The affidavit in support of the Amended Application was sworn or affirmed on 11 August 2022 (Folio …). The father deposed, inter alia, that X had left the mother’s home on or about 1 August 2022 and had gone to live with Mr K and Ms K in Suburb L. Mr K and Ms K have two children, M and N. On 12 August 2022, the father sought interim orders for sole parental responsibility, delivery of X's British and Australian passports, that he be solely responsible for obtaining a B2 visa for X’s entry into the United States and that, if the mother was unable to escort X to his visa application appointment, at the United States consulate, that either Mr and Ms K or Ms O escort X to the appointment at the cost of the father. The father sought that the mother pay his costs of the interim aspects of the Amended Initiating Application.
In summary, the father deposed that X was not living with the only person in Australia who has parental responsibility for him. He was also not attending school and had grave concerns for X’s mental health. The father sought the child’s two passports for the purpose of the interview with the United States Consulate.
On 12 August 2022, I made an ex-parte order that the mother deliver or cause to be delivered to the Melbourne Registry of the court each and every passport for X. I adjourned the application to 16 August 2022. The mother communicated with the Registry that she was too sick to bring the passports to the court. It was arranged that a court provided courier would collect the passports from the mother and that occurred on 16 August 2022.
On 16 August 2022, the proceedings came before me on an inter party basis, with the father represented by Ms Jeans of Counsel, the Duty lawyer appeared for the mother and Mr Eidelson of Counsel appeared on behalf of the independent children’s lawyer.
On 16 August 2022 the mother confirmed that X had been out of her care since 2 August 2022 and that her partner, Mr P, had ceased to reside with her on 25 June 2022 although she characterised his absence from her home as them “taking a break” including some time when he was in Country R. The independent children’s lawyer, through Mr Eidelson of Counsel, informed the court that she had spoken to X on 15 August 2022 as well as speaking to Mr & Ms K. All were content for X to remain in Mr & Ms K’s household and there was no complaint about lack of parental responsibility in relation to school activities, medical matters or day to day support. X told the independent children’s lawyer that he wished to remain at Mr & Ms K’s home. He specifically said that he did not want to go back to the mother’s home or to communicate with her in any way.
Mr Eidelson informed me that there has been a complete breakdown of the relationship between X and the mother. X wishes to go into his father’s primary care in the United States as soon “as possible even if that means giving up his place at school (in Melbourne)”, or words to that effect.
I asked the mother what objections (if any) she had to Mr or Ms K accompanying X to the interview with the United States Consulate for a B2 visa. The mother would not give a direct answer other than she wanted X to be confident she supported him and had a “balanced view”. Eventually, the mother stated that she did not see anything unfavourable to Mr & Ms K taking X to the interview. However, she preferred a situation whereby X was returned to her care for however many days were required to have her and Y (X’s older sister) accompany X to the interview in Sydney. Counsel for the independent children’s lawyer submitted that forcing X to return to the mother’s household or into her care could have disastrous consequences, including, if he sought to escape the mother’s care or has lost the prospect of going to the United States in the short term. The view of the independent children’s lawyer corresponds with my own. I am satisfied that X would be highly anxious, if not despairing, at the prospect of the mother accompanying him to the interview and having the opportunity to sabotage his visa application. X would be in no doubt that his mother is resistant to him going to America and that she has delayed the progress of his visa application. It would be cruel to put him in that position.
The father modified his interim application so that he could have sole control over the visa application and have the passports produced for that purpose. After the luncheon adjournment the mother said she was too ill to proceed and I adjourned the matter to 22 August 2022 at 4:30pm for further submissions.
On 22 August 2022, Ms Jeans, of Counsel, appeared on behalf of the father, the mother appeared in person and the independent children’s lawyer was represented by Mr Eidelson of Counsel. Earlier in the day, the mother sent a lengthy document to the court. It was a number of documents including 12 pages entitled “Affidavit”. The mother sought that the father’s Amended Initiating Application be dismissed, that the father be declared a “vexatious litigant” and that all orders relating to X spending time with the father outside Australia be suspended and the proceedings adjourned until after the father has notified the court that he has obtained a visa for X. The mother sought that X be immediately returned to her care or, alternatively, to the residence of his aunt (her sister) for one week before being returned to her care. She further sought that X immediately receive mental health support from a therapist selected by the independent children’s lawyer. Such therapy was to incorporate the mother, father and Y, to the extent Y was comfortable to participate. The mother sought that X be placed on “passport watch list” until further order which would have the effect of preventing X leaving Australia.
The father and the independent children’s lawyer opposed all of the relief sought by the mother on 22 August 2022. I required the mother to put her evidence in admissible form by 24 August 2022 and adjourned the matter to 26 August 2022. I also ordered that if practicable, X be interviewed by the Court Child Expert who had prepared the last report in the substantive proceedings. Court Child Expert, Ms Q, had completed the family report dated 18 March 2021. The order for the involvement of the Court Child Expert was not enthusiastically supported by Counsel for the independent children’s lawyer who is concerned that X has made it very clear that he thinks that he already has been assessed by too many experts to no avail. Mr Eidelson referred to the concluding paragraphs of Ms Q’s family report dated 18 March 2021, in particular:
73. Should [Mr Prior] and [Ms Prior’s] relationship issues remain unresolved, it is highly likely they will continue to struggle in joint decision-making and the unresolved acrimony between them will continue ad infinitum. It is likely that the emotional impact on [X] (and [Y]) will grow exponentially over time and may result in [X] not having opportunity to meet his developmental potential, both due to mental health issues and delayed decision-making. It may also result in [X] seeking to reject one or both of his parents in an attempt to shield himself from further emotional pain and distress.
[…]
75. It is [X] (and [Y’s]) right to be protected from the emotional burden they currently experience, brought about by their parents’ inability or unwillingness to resolve their differences to benefit their children. [X], in this instance has made his views very clear about how his parents’ behaviour is affecting him. It would be of great benefit to [X] if his mother and father could hear what he is trying to tell them; to do otherwise, would seem contrary to what they desire for their son.
[…]
80. If the matter remains in dispute, avoidance of the need for [X] to have to participate in further family assessments or Family Reports, unless he expresses a wish to do so to the ICL.
The mother filed her affidavit on 24 August 2022 (Folio …) of 21 pages including annexures. The father filed a response on 25 August 2022 (Folio …).
X declined to see Ms Q. I am satisfied that it was necessary to provide X with an opportunity to meet with Ms Q given that he has left the mother’s home, refuses to return and is not living with anyone who has parental responsibility for him as far as his school or any health professionals are concerned.
Ms Q gave evidence on 24 August 2022 and was cross-examined by the independent children’s lawyer, the mother and then the father. Ms Q is an impressive witness. She was not at all surprised that X did not take the opportunity to meet with her, even electronically. She agreed that her prediction, from the family report in March 2021, that a continuation of the extraordinary level of parental conflict may result in X rejecting one or both parents in order to shield himself from further emotional pain or distress, had come to pass. She referred to X having “voted with his feet”. Her evidence was incisive and her responses to the “cross-examination” of the mother was empathetic. She answered the mother’s questions clearly but in a manner which demonstrated that Ms Q was at pains to have the mother understand how potentially destructive the mother’s actions and proposals were of the relationship between the mother and X and X and his older sister, who is aligned with the mother and has no communication with the father. When the mother asked the same question over and over, Ms Q responded consistently and patiently. At times Ms Q’s explanations resembled a therapy session.
Ms Q could not endorse the mother’s proposal that the mother and Y accompany X to the visa appointment. Ms Q said that, unless the court could be satisfied that the mother wouldn’t use the requirement that she and Y be present as an opportunity to place further emotional stress on X, any such condition would be inappropriate. That is, unless the mother was able to make it clear to X she was supportive of him going to America and gave him the “emotional permission” to go to America, then the mother’s proposal in respect of the visa appointment was contrary to the best interests of X. Ms Q considered it a “real possibility” that if X was made to attend the visa appointment with his mother and sister that he may again “exercise self-help” and run away. Further, that the prospect of X running away from the mother in a city that is foreign to him (like Sydney), brings with it aggravated risks.
Ms Q agreed that any requirement for the mother to attend the visa appointment would cause X to fret about how the mother would likely sabotage the application and engender in him feelings of helplessness, anguish and hopelessness. Ms Q gave evidence that the mother’s proposal was unrealistic to the point of lacking reasonable insight.
Ms Q commented on the likelihood or otherwise that X was influenced by the father to go to live with Mr & Ms K, stating:
when there are high conflict families – we deal with lots of children in high conflict families – it is not at all uncommon when the child is in conflict with one parent to then want to go to the other parent and to be actively encouraged to do so and whatever the original argument was in the household to then be weaponised. Given this situation and dad being in America, it would appear that [Mr & Ms K] are by proxy going to dad’s. Now, had there not been any option, it may be that whatever the dispute was between [X] his mum may have – may have settled down and passed. But [Mr & Ms K] were an opportunity for him. And I suspect that should there – should he be returned to his mum’s and there are further disputes, which given he’s an adolescent boy are probably quite likely, he will probably do the same thing again. I think that’s going to be – it’s highly likely that will develop into a pattern. At the moment, he probably has a very idealised idea of what life with his dad is like, and he desperately wants to try it out. So I think this is his way of just trying to make that happen.
Ms Q commented that the pressure on X is originating from both his parents but that X’s ability to recognise that will depend on the state of his relationships with his parents.
Ms Q commented that the relationship between the mother and X could benefit from some space, stating:
I think putting further pressure on this child that’s already under enormous pressure, it’s going to be counterproductive and is not going to help her rebuild her relationship. I understand that she – sorry, your Honour – get down – I understand that she probably is desperate to have him home and thinks all she needs to do is to get him into a room and, you know, they will be able to sort it through; however, I think it has got beyond that now.
[…]
He definitely needs some time to cool down and calm down, an opportunity probably to miss her. I think if she pushes, he is going to push back even harder.
Ms Q’s view was that X is not ready for any therapeutic intervention as sought by the mother.
As indicated, Ms Prior’s cross-examination of Ms Q was half forensic and half therapeutic. There was the following exchange:-
So do you continue to represent that if [X] had been provided with that opportunity facilitated by the ICL or another person’s home perhaps where it was more of a – less of a one home of either parent being represented that he – that things may have ..... in a different outcome and he would have been able to return home?---I don’t know whether it would have been a different outcome, but I think the situation has arisen because of the years of litigation and dispute between yourself and [Mr Prior]. I don’t see that this is an incident that could be looked at in isolation. So for children where they have a dispute with a parent where there isn’t a high conflict separated family situation, then often those kind of parental adolescent disputes do blow over. However, if you have a history of high conflict, as you do with [Mr Prior], then these kind of disputes are often weaponised and used by either parent, and the child will frequently vote with their feet. Now, because – I – I would imagine if [Mr Prior] had been in Melbourne, he would have gone there. He would have gone straight there, and you would have exactly the same situation as you have now. I don’t believe that just simply, you know, putting him in a different house would have necessarily changed the outcome, but the point is rather moot now.
[...]
where there’s an inability to proceed to just make things happen, you know, because we’re operating within the realms of the court orders and things that may or may not have been complied with, would that – so I’m essentially operating with my hands strung in that respect. Is that likely to also have this impact on [X] that you’re describing?---
Look, [Ms Prior] and [Mr Prior], what I would say is, if your child hadn’t experienced all of the fighting and litigation that he has been experiencing all these years, he would be able to tolerate things like administrative delays. He would be frustrated just like any other 14 year old would be frustrated. But that’s not the context that he has seen this in. So whether it’s a delay over a particular visa or a form or something else, I think his behaviour – his behaviour is a culmination. It’s – it’s a result of the culmination of what has been going on rather than a single incident or a single – a single dispute.
[…]
the situations in the house weren’t sort of normalised throughout that time, you know, that, you know, [X] feeling nagged to pick up his socks and put them in the wash, for example, was seen to be something that was exceptional, it wasn’t normalised in that respect, would that also have an impact on the relationship and how he views that?---Yes. Of course. And this is a common pattern in high dispute families where normal parental boundaries are presented by the other parent as somehow being abusive or inappropriate and a child is encouraged to either not comply or view themselves as being the victim of such abuse. I think this is a pattern that you and [Mr Prior] have already run with [Y], and now it’s happening again with [X], and I hold both of you responsible for it.
I am satisfied that X regards the mother’s household as toxic and wants nothing to do with the mother or Y. It is a reaction to the exceptionally high conflict to which he has been subjected by both parents in the last years of his residence in the mother’s household. It has reached the point where X can no longer tolerate having two parents. Ms Q predicted this eventuality in her assessment.
Ms Q introduced the concept of a “loyalty bind”, typical of children in high conflict situations, stating:
they may well feel guilty, enjoyment – if – if they are of the belief that – that they only have permission by each parent to love that parent, then they may well feel guilty if they spend time enjoying it if they then think that’s going to betray their other parent. He may well demonstrate a similar behaviour when he’s with his father. I don’t know. But I’m – I don’t know if [X] – if that’s what was going on for [X]. But it’s not atypical for children in high conflict.
Ms Q agreed that while Mr Prior may have been attempting to undermine Ms Prior in organising for X to go to Mr & Ms K’s that it “is just one of many instances where the [parents] have undermined each other”. Ms Q went on to say:
COURT CHILD EXPERT: I don’t think he’s in a neutral space now because I think [Mr & Ms K] are aligned with [Mr Prior], but at the end of the day, the two of you by your – both of your behaviour – and I’m pointing at both of you here – you are forcing your son to make this choice. [Y] made her choice, and that was through actions by both of you, and she chose her mum. At the moment, by his actions, I would say that [X] is showing us that he’s choosing his dad. But both of you are forcing your children to have to make that choice by continuing this fighting over and not being able to come to any kind of sensible child-focused timely decisions. So both of you are to blame for this. I’m not holding you fully responsible for this, [Ms Prior]. I hold [Mr Prior] equally responsible. This is a result of what has been happening for the last – what, since 2015 for this child
[…]
HER HONOUR: You have given him a blueprint in your daughter. He knew what he had to do because you laid it out for him and you let that girl live that life?---
COURT CHILD EXPERT: It’s – I think the 45 great shame of it is you’re going to have two children who are going to grow up believing that somehow they have been subject to terrible abuse that hasn’t actually been abusive, but what has been abusive is the emotional harm that has been caused by just this long, drawn out fighting over everything. Now, I know you love your kids. I know both of you do. But this needs to stop. If you want a healthy, functioning, happy son, this needs to stop.
Ms Q attempted to re-assure Ms Prior of the strength of her relationship with X in circumstances where X is permitted to travel to America, stating:
he does have a strong foundational relationship with you, [Ms Prior] and you may well find, after a bit of space and opportunity to know – once [X] is aware – and it has actually happened – that he feels people have listened, he’s had his opportunity to be in America, that foundation is not just – it won’t just get wiped out. Now, we’re not talking about a six year old or a five year 5 old that needs somebody to dial the phone for them. We’re talking about a teenager. I would be very surprised if he didn’t reach out to you once he’s over there. I think it’s more about just making sure that he’s aware the pressure is off and the invitation is open.
Speaking on the strength of X’s views and the weight that may be placed on them considering X’s young age Ms Q stated:
I don’t think [X] is in a position to know what he wants forever. I think at the moment he’s an angry 14 and a half year old who’s feeling very thwarted and unheard. He may well feel differently. He may get over there and discover life isn’t as he has idealised it and he may start missing his mum, his sister, his friends, his life in Australia, but, by then, he’s probably going to be nearly 15 and he’s going to be in a much better position, I think, to be able to make some choices and those choices be given more weight than he was when he was, say, 12 or 13. Now, ideally, this is not a decision that would ever rest on the shoulders of a child, because those kind of decisions also carry the weight of the consequences of those decisions and the responsibility for holding them. And where that can be problematic for children is that they then feel responsible about the happiness or unhappiness of those that those decisions effect. But the reality is you and his father simply haven’t been able to make those decisions or you haven’t been able to make them in a way that they’ve maintained. So, in effect, you’re kind of forcing him to make the decision, and he will. But I think you’re pre-empting that, despite him living in your care for 14 and a half years, he is suddenly not going to want to know you. I think that’s probably how he’s feeling right now, because he’s angry and he’s upset, but you have a strong foundation. I think you’re underestimating the strength of that relationship in your fear that you’re losing him.
Ms Q spoke on the importance of Ms Prior demonstrating her support for X travelling to America and to that end putting “faith” and “trust” into her relationship with X. Ms Q urged the mother to be supportive in letting X’s wishes play out, stating:
I think [X] has wanted this experience for a long time, and [Ms Prior], he will have a very romanticised, idealised version of what it’s going to be like. Okay. So his lived experience may not be all he thinks it’s going to be. That’s quite likely, because the time that he has spent with Dad has been fun time. It has been no boundaries time. He’s experienced to Mum who has been around and been available to him. [Mr Prior], you’ve made it clear to me that you have various work commitments, that you may well not be at home all of the time. We don’t know. [X] may not find that’s not really to his liking. So I think – but all of this is projecting into the future, and I think at the moment, he just needs to go. He needs to have this time that the two of you agreed to.
In my assessment, X has experienced too much duplicity from his mother to readily accept that she is now supportive of him staying with his father in America for an extended time.
Ms Q gave her opinion on whether she thought there was opportunity for X and the mother to mend their relationship prior to X travelling to America. Ms Q and Ms Prior had the following exchange:-
COURT CHILD EXPERT: [X] is not going to be open to even contemplating speaking to you if he thinks you’re preventing him from going. If he knows that you’ve agreed for him to go and it’s all happening, then he may soften on that and there may be opportunity for you to be able to do some repair work before he goes. But if you don’t – if you step in his way or make it conditional, then he’s going to be resentful and highly resistant. So I think if you want that opportunity to do repair work, which is absolutely understandable, of course you do, but I think it’s not going to happen – he’s not going to be willing to come to the table if he thinks you’re preventing it. If he thinks that you’ve agreed and you’re going, “Actually, no, it’s all happening. Your dad is taking over”, whatever it is with the visa, I’m not really across all of that. But in those circumstances where he believes that you are genuinely in agreement with him going and you’re not going to try and prevent it, then at that point he may well be willing to do some repair work with you ..... before he goes. He also may be reluctant to speak to you because he will also be wondering about how it’s going to feel when he gets over there, he will be worried about missing you. This is normal. He will be worried about missing you. Sometimes when a child is forced into a choice like this, particularly if they think the choice is going to be long-term, then it is easier to be angrier with the parent that they’re leaving behind because it doesn’t hurt as much, okay? But ultimately, he will want to repair your relationship. It’s something he will want. So whether it happens before he steps on the plane or after he steps off it. And, [Mr Prior], if you value your son’s wellbeing and mental health, you will 35 do everything you can do to support it because it will not help him if he’s carrying that sense of anger and betrayal from his mum. None of that will help him.
[MS PRIOR]: One of the concerns that I had was that [X] at present would be departing with a very heavy heart and full of anger?
COURT CHILD EXPERT: Yes. And there’s no guarantee that that won’t happen. But standing in his way is not going to prevent it, it will just make him angrier, and he will stay resisting and refusing to return to your care. I just want to touch on the comment you made earlier because it really highlighted to me the damage that is being done to your son. This notion that, you know, you don’t love him because you didn’t fight for him that, somehow, he’s now equating litigation in court equals love. This is really the message you want your kids to carry?
[MS PRIOR]: No, [Ms Q]. I was trying to row our own boat and find an end to it?- -
COURT CHILD EXPERT: Well, the litigation needs to end. It needs to end. And until you two actually start supporting each other instead of trying to tear each other to pieces, then any opportunity for your children to mend their relationships is out the window.
In my assessment, there is no realistic prospect of a reduction in the extraordinarily high level of parental conflict to which X has been subject. Neither parent appears to have the personal resources to change his or her behaviour to the drastic extent it would be necessary to change in order to lead to a different experience for X and/or for him to be confident that that they would continue to act so differently.
Ms Q agreed with counsel for the father that the best interest of X would be met by permitting X to travel to America as soon as possible once he has obtained the necessary visa.
Ms Q stressed the need for X to have certainty around his travel plans. It was in this context that Ms Q was not supportive of an order allowing X to travel to America until further order. Ms Q expressed that she had no faith in the parent’s ability to cooperate and make a decision that would take into account X’s views. That coincides with my assessment. Ms Q recommended that any order made for X’s travel should be framed to include an end date.
Ms Q ultimately agreed with the summary of the evidence proffered by counsel for the independent children’s lawyer that the mother has a “deep-seeded insecurity” in the strength of her relationship with her son. In my assessment, that insecurity is soundly based. From all of the evidence that I have heard and the many interactions which I have observed between the parents in this proceeding, I am satisfied that life for X within the mother’s household has been intolerable over these past few years. To the extent that life for X was rendered tolerable that was by the presence of the mother’s relationship partner who is now residing separately from the mother.
I accept that the mother’s actions and reactions are driven by insecurity. The position which the mother has taken is certainly not driven by an appreciation of what is in X’s best interests. I am satisfied that the mother has little (if any) capacity to appreciate how destructive her actions have been of her relationship with X who, from what I have seen and heard of him, is a sensitive, compassionate and sweet young man.
I accept Ms Q’s assessment that X will benefit from having a significant distance placed between him and the mother and Y. Further, that any repair to his relationship with the mother is probably dependent upon him being given that distance.
In making any parenting decision I am required to take into account various factors when deciding what is in X’s best interests. X’s best interests is the paramount consideration.
If I were satisfied that further developments and the further expert evidence required me to reconsider whether it is in X’s best interests that he be allowed to go and live temporarily with the father, I would do so. The opposite is the case. The further developments and evidence are compelling in relation to the need for X to be able to go to the United States as soon as possible. That is the position of the father and the independent children’s lawyer. Neither parent asserted that there was insufficient change in circumstances to warrant a further round of litigation about X although that is what their respective applications, in effect, call for. The mother wants to suspend the father’s time with X and the father wants a change of residence. Both have ‘upped the ante’. Neither parent is keeping faith with X. I am satisfied that a further round of litigation would be excruciating for X and contrary to his best interests in all respects. There is no new circumstance that justifies more litigation. The problem is, and always has been, unabatingly extreme parental conflict. The fact that X has left the mother’s home and won’t communicate with her is merely a manifestation of the pre-existing problem which has been on show throughout all the litigation.
I reject the father’s application in so far as he seeks to make the move by X to America permanent. The visit should be temporary and it should be date specific. I reject the mother’s application that X be returned to her care and he be restrained from leaving Australia by a watch list order. This does not preclude either parent from making a further application when, or if, there is a genuine change of circumstances which warrants the court revisiting the matter. That will not be a knee jerk reaction by either of them.
I have proceeded with this matter as an implementation or enforcement of the parenting arrangements for which the court has already made orders.
I give considerable weight to the views and attitude of X to go to America. This is a plan that he was allowed to formulate and which he knows is supported by orders previously made by the court with the consent of both parents.
I have taken into account the fractured nature of X’s relationship with the mother and for that matter, with his sister. I agree with the evidence of the Court Child Expert that X’s attitude to his mother and sister may well soften during his time in America and be most beneficial to the fractured relationship being repaired. I am satisfied that there is a sufficiently strong relationship between the father and X for X to feel cared for within the father’s household. This is notwithstanding that the father’s partner will also reside in the household. I take into account that the mother has been the sole financial supporter of X for some time and that the father has failed to honour his commitments to pay child support. I am not prejudging the outstanding child support applications of the parties (currently reserved to myself). However, I have obtained the impression that the father will extend himself to be able to support X whilst X is in his care to an extent which exceeds anything he would be prepared to pay the mother by way of contribution to X’s support when X is in her care.
Going to live temporarily in the United States will be a big adjustment for X. It is a change which he has sought for a long time. He is understandably frustrated it has not come to pass. X will be separated from his sister, his mother and life in Melbourne. The mother conceded that X does not have a particular close relationship with her sister, his aunt, in spite of naming her in the current application. However, all such changes were within the contemplation of the parties at the time orders were agreed to.
In the circumstances of this case, the practical difficulty and expense of X seeing and communicating with his family in Australia will not be impaired by him living temporarily in the United States. He does not currently wish to see his mother or sister face to face. I accept that communication will be easy for X if he wants to communicate.
I have taken into consideration each parent’s attitude to their responsibilities as a parent, to both X and Y. I am concerned about the capacity of each parent but I am more concerned at the current time about the impact of the mother’s poor parenting skills on X.
I assess the parents as being unable to work together or co-operate with one another in relation to decisions about X. Any requirement that one consult with the other or obtain the others agreement or approval is likely to lead to a paralysis in decision making in relation to X.
I am satisfied that X should have a meaningful relationship with both parents. He currently has a meaningful relationship with both parents.
There is a need to protect X from the stress and anguish which he experiences within the mother’s household as a result of the conflict between both parents. I accept the opinion of the Court Child Expert, Ms Q that X’s best interests will be served by him being able to go to America as soon as possible.
Section 65DA of the Family Law Act 1975 (Cth) provides a presumption that equal shared parental responsibility is in X’s best interests unless I am satisfied on the evidence that the presumption is displaced. I am satisfied that equal shared parental responsibility would be wholly impracticable for any period during which X is living with the father. This is because the parents are unable to communicate with one another in any constructive manner. Accordingly, I will accede to the application of the father for sole parental responsibility for the period during which X resides with him in the United States of America but only in relation to health and education because there is potential for immediate issues in that respect. I do not regard the other aspects of parental responsibility as being likely to arise during X’s absence from Australia. That includes responsibility to determine where X shall live. I have already decided that X should live in Australia but spend this extended period of time with the father in America. The parameters of that visit are known and must be respected subject to any further or other order of this court (my emphasis).
Everyone agreed before me that the Australian courts retain jurisdiction over X. The father should not go forum shopping and petition a court in the United States for any change in parenting arrangements. Each agreed to an injunction to this effect.
Mr & Ms K are not parties to these proceedings and do not seek to be heard. My understanding is that they are content for X to continue to reside with them until such time as he goes to America. I will not be making any Order directed to either of them. It is my expectation that X will continue to reside with Mr & Ms K until he is placed into the care of the father either in Australia or in the United States. Mr & Ms K can take X for the interview at the Consulate, wherever that interview may be.
I am specifically not making any orders compelling X to see the mother and/or Y prior to him leaving Australia. That includes in any therapeutic or supervised context, by face to face visit or electronic communication. If X wants to see his mother or sister, he knows where to find them. They should respect his independence. X can reach out to them if he wants to do so either before or after he leaves Australia.
Having regard to the above, I conclude that the father should be responsible for obtaining X’s visa to enter into the United States and that Mr & Ms K should take X to the appointment in the event that the father is not in Australia at the time of the appointment. I am satisfied that the orders set out at the beginning of these reasons are in X’s best interests.
For case management purposes, I adjourn the proceedings for 7 months although it can be brought on earlier with proper material if needs be. I otherwise dismiss each parent’s application for interim orders.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 17 October 2022