Raakel & Raakel
[2024] FedCFamC1F 156
•15 March 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Raakel & Raakel [2024] FedCFamC1F 156
File number(s): BRC 7555 of 2021 Judgment of: HOGAN J Date of judgment: 15 March 2024 Catchwords: FAMILY LAW – PARENTING – Where the mother seeks for the child to live with her and spend time with the father – Where the mother seeks a moratorium of two months – Where the father seeks for the child to remain living with him and spend time with the mother – Where there has been significant parental conflict – Where the child has a resistance to spending time with the mother – Where the mother contends the father has alienated the child – Where there have been significant environmental changes for the child, including international relocation – Where the mother has spent time with the child in accordance with consent orders made in April 2023 – Where the child is to continue to live with the father and spend time with the mother – Where an order for equal shared parental responsibility is in the child’s best interests Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) 93-637; [2015] FamCAFC 36
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morden & Coad [2019] FamCAFC 233
U v U (2002) 211 CLR 238; [2002] HCA 36
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division: First Instance Number of paragraphs: 240 Date of last submission/s: 10 May 2023 Date of hearing: 11, 12, 13, 14 and 31 October 2022; 1 & 2 November 2022; 9 December 2022; 17 April 2023 Place: Brisbane Counsel for the Applicant: Ms Pendergast Solicitor for the Applicant: Barry Nilsson Lawyers and by way of written submissions sealed on 2 May 2023 and 10 May 2023 Counsel for the Respondent: Ms Fraser Solicitor for the Respondent: Australian Family Lawyers Qld – Brisbane and by way of written submissions sealed on 2 May 2023 and 10 May 2023 Counsel for the Independent Children's Lawyer: Mr Taylor Solicitor for the Independent Children's Lawyer: ELR Law ORDERS
BRC 7555 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RAAKEL
Applicant
AND: MR RAAKEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
15 MARCH 2024
IT IS ORDERED BY WAY OF FINAL PARENTING ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The mother and the father have equal shared parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) for the child, X, born 2011 (“the child”) including decisions regarding:
(a)the child’s education, both current and future; and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health and mental health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for her to spend time with a parent.
3.In the exercise of Order 2, the parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)each parent shall inform the other parent about the decision/s proposed to be made in writing; and
(b)the other parent must respond in writing to the requesting parent within seven (7) days informing them of their views about the decision/s proposed to be made; and
(c)each parent must make a genuine effort to come to a joint decision with the other parent; and
(d)if a joint decision is unable to be made then the parents shall attend with a Family Dispute Resolution Practitioner (at equal shared cost) in order to try and reach a joint decision.
4.Notwithstanding the provisions of the above orders:
(a)the father shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with, or spending time with, him; and
(b)the mother shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with, or spending time with, her.
5.The child shall live with the father.
6.The child shall spend time and communicate with the mother at all times as may be agreed between the parents in writing, but failing agreement:
(a)during school terms:
(i)in week 1: from after school or 3:00 pm until 7:30 pm Wednesday; and
(ii)in week 2: from after school or 3:00 pm Friday until before school or 9:00 am Monday.
(b)during the school holidays at the end of Term 1 in 2024:
(i)in week 1: from after school or 3:00 pm until 7:30 pm Wednesday; and
(ii)in week 2: from after school or 3:00 pm Friday until 5.00 pm on Tuesday.
(c)during the school holidays at the end of Term 2 in 2024:
(i)in week 1: from after school or 3:00 pm until 7:30 pm Wednesday; and
(ii)in week 2: from after school or 3:00 pm Friday until 5.00 pm on Wednesday.
(d)during the school holidays at the end of Term 3 in 2024:
(i)in week 1: from after school or 3:00 pm until 7:30 pm Wednesday; and
(ii)in week 2: from after school or 3:00 pm Friday until 5.00 pm on Thursday.
(e)during the school holidays at the end of Term 4 in 2024: for half of the school holidays, with such time to occur during each odd numbered week of the holidays, commencing from 5.00 pm on the Sunday immediately after the conclusion of the school term until 5.00 pm on the following Sunday and each alternate week thereafter;
(f)commencing with the school holidays at the end of Term 1 in 2025 and during each school holiday period thereafter: for the first half of each school holiday period in odd numbered years and for the second half of each school holiday period in even numbered years and with:
(i)each holiday period to commence after school on the last day of school term and to conclude before school on the first day of the next school term; and
(ii)changeover to occur at 5:00 pm on the middle day of each school holiday period and, if there is an uneven number of days in the school holiday period, the parent with the first half of the school holiday period shall have the extra day.
7.Notwithstanding any other Order, the child shall spend time with each of the mother and the father on the following special occasions as may be agreed between them in writing, and failing agreement, as follows:
(a)on the Christmas festive days:
(i)in even numbered years: from 10:00 am on Christmas Eve until 11:00 am on Christmas Day with the mother and from 11:00 am on Christmas Day until 8:00 pm on Boxing Day with the father; and
(ii)in odd numbered years: from 10:00 am on Christmas Eve until 11:00 am on Christmas Day with the father and from 11:00 am on Christmas Day until 8:00 pm on Boxing Day with the mother.
(b)on the Easter festive days:
(i)in even numbered years: from the conclusion of school (or 3:00 pm if a non-school day) on the Thursday immediately preceding Good Friday until 5:00 pm on Easter Saturday with the mother and from 5:00 pm on Easter Saturday until 5:00 pm on Easter Monday with the father; and
(ii)in odd numbered years: from the conclusion of school (or 3:00 pm if a non-school day) on the Thursday immediately preceding Good Friday until 5:00 pm on Easter Saturday with the father and from 5:00 pm on Easter Saturday until 5:00 pm on Easter Monday with the mother.
(c)on the child’s birthday:
(i)if the child is away on holidays with a parent pursuant to these Orders, then by telephone at 9:00 am with the other parent, otherwise from 9.00 am to 3.00 pm with the parent who is not already spending time with the child.
(d)on the celebrating parent’s birthday:
(i)from the conclusion of school (or from 3:00 pm if a non-school day) to 7:30 pm, if the child is not already in that parent’s care.
(e)on Mother’s Day and Father’s Day:
(i)with the celebrating parent from after school on the Friday immediately prior to Mother’s Day or Father’s Day until before school (or 9.00 am if a non-school day) on the following Monday.
8.The child shall spend time with the mother at all other times she expresses a wish to do so and the parents shall ensure they facilitate such time as is reasonably practicable.
9.The father shall actively encourage the child to spend time with the mother.
10.Unless otherwise agreed between the parents in writing, where time is scheduled to commence or end at the beginning or conclusion of school, changeover will take place at school, otherwise changeover will take place at McDonalds’s Suburb C.
11.For the purpose of changeover:
(a)neither parent will approach or follow the other parent and will, as far as practicably possible, remain near their vehicle; and
(b)each parent shall ensure that the child takes with her to each parent’s household any prescribed medication; and
(c)the parents shall use their best endeavours to facilitate that the pet dog (as the case may be) remain with the child during time she spends with each of the parents at each parent’s household.
12.The child shall be permitted to communicate with the parent with whom she is not then living or spending time, at all reasonable times and during such communication, each parent will respect the privacy of the child.
13.With the exception of an emergency or time-sensitive issues, each parent shall communicate about the care, welfare and development of the child with the other parent by way of the communication application, “Our Family Wizard” or such other communication application as agreed between the parents in writing.
14.The costs of utilising the communication application be shared equally between the parents.
15.In the event of emergency, the parents are at liberty to telephone or text the other parent.
16.Unless otherwise agreed between the parents in writing or recommended by Dr B in writing:
(a)the parents shall do all such acts and things necessary to ensure the child continues to attend on Dr B for psychology sessions as and when recommended by Dr B, with the net costs of such attendance (after any Medicare or Private Health Rebate) for the child to be paid equally by the parents; and
(b)the parents shall attend upon Dr B at such frequency and in such manner as recommended by Dr B, with the attending parent to be responsible for the net costs of such attendance after any Medicare or Private Health Rebate.
17.The parties have leave to provide a copy of the Orders made 15 March 2024 and the Reasons for Judgment published in support of the same to Dr B.
18.The mother and father shall:
(a)keep the other informed at all times of their contact telephone number and email address and will notify the other of any change in their details within twenty‑four (24) hours of any such change; and
(b)keep the other informed at all times of their residential address and will notify the other of any change to their residential address at least fourteen (14) days prior to that change occurring; and
(c)keep the other informed of the names and addresses of any treating medical or allied health practitioners who treat the child; and
(d)inform the other as soon as practicable of any medical emergency involving the child, including the name of the treating doctor, hospital and contact number, if known.
19.During the time the child is with either parent, that parent will:
(a)be respectful of the child’s relationship with the other parent and promote the child’s relationship with the other parent; and
(b)speak respectfully of the other parent and not make comments to the child, or to any other person within the child’s hearing, that criticise, demean, belittle or ridicule the other parent, their family or partners, and each parent will remove the child from the presence of any other person making such comments to the child or within the child’s hearing; and
(c)refrain from questioning the child regarding the other parent or the other parent’s personal life; and
(d)not discuss any issues between the parents with, or in the hearing of the child; and
(e)not use the child to communicate messages to the other parent relating to any issue between the parents; and
(f)not discuss the issues the subject of these proceedings with the child other than in the course of participation in a therapeutic process facilitated by a qualified therapist.
20.Each parent is restrained and an injunction issue restraining both parents from:
(a)filming or audio recording, by any means, the other parent without the express written consent of the other parent; and
(b)allowing the child to film or audio record, by any means, the other parent without the express written consent of the other parent.
21.Should either parent wish to remove the child from the Commonwealth of Australia for the purpose of international holiday travel:
(a)the travelling parent must first obtain the other parent’s written consent and will provide the other parent with not less than sixty (60) days written notice of the intention to travel overseas with the child including by providing the proposed destination country/countries and the dates of travel; and
(b)if the travelling parent wishes to take the child out of Australia for the purpose of an overseas holiday at times when the child is not in that parent’s care, the travelling parent will also provide the other parent with any proposed arrangements to make up the other parent’s time with the child; and
(c)the parent receiving the request must respond within seven (7) days of receiving the request and will not unreasonably withhold their consent.
22.Unless otherwise agreed to by the parents in writing, each parent is restrained from taking the child to any country which is not a signatory to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, or which is listed as “Do Not Travel” on the Smart Traveller government website.
23.The travelling parent must provide to the other parent at least thirty (30) days before travel with the child:
(a)copies of return travel tickets for the child; and
(b)flight details; and
(c)a travel itinerary and will notify the other parent of any material change to the itinerary; and
(d)details of all main accommodation and a contact telephone number(s) for the child while travelling; and
(e)a copy of travel insurance certificate or formal confirmation for the child.
24.Should the travelling parent fail to provide the information outlined in the preceding Order by the specified date, or other date as agreed to between the parents in writing, the parent receiving the request is at liberty to withdraw their consent for the child to travel.
25.During the trip, the traveling parent will arrange for the child to telephone or video call the other parent at all reasonable times the child requests and no less than every Wednesday.
26.Each parent agrees that they shall maintain the child’s Australian Travel Document (passport) and British passport with no less than six (6) month’s currency and shall renew that passport as required from time to time, with each parent to pay one-half of the cost of renewing the child’s passport on each occasion.
27.Each parent will do all acts and sign all documents necessary to apply for an Australian passport and/or British passport and/or renewal of the child’s passport within twenty‑one (21) days from receiving a written request from the other parent.
28.The father shall retain the child’s passports in his possession and release the passport to the mother no later than thirty (30) days prior to the intended departure date or within two (2) days upon written request from the mother if a visa is required for entry into the country of destination and the original passport is required.
29.The mother shall return the child’s passports to the father within seven (7) days after the child returns to the Commonwealth of Australia.
30.The travelling parent shall meet all visa costs, including providing funds (in advance where possible) to the other parent where they incur costs for the visa application and in relation to the issue of any applicable visas for the child:
(a)the travelling parent shall provide a copy of the applicable visa application; and
(b)if applicable, the parent to whom the visa application is presented shall sign the application and return it to the travelling parent within seven (7) days of receipt of the visa application and otherwise do all things necessary for the visa to issue.
31.Each parent is restrained and an injunction issue restraining them from using the child’s passports without the other parent’s knowledge and consent as provided for under this Order.
32.Each parent shall do all things and sign all documents necessary to give effect to these Orders within seven (7) days of being requested to do so by the other parent.
33.The name of the child, X, a female, born 2011, be removed from the Family Law Watchlist and the Australian Federal Police is requested to give effect to this Order by removing the child’s name from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
34.The father shall hold and be entitled to possession of the following documents relating to the child and, in order to facilitate this possession, the mother shall do all things necessary to cause Barry Nilsson to return the same to the father within seven (7) days of the date of this Order:
(a)Birth Certificate; and
(b)Passport; and
(c)UK National Insurance Card; and
(d)UK Redbook – Immunisation Record; and
(e)US Social Insurance Card; and
(f)Australian Citizenship Certificate; and
(g)All expired passports.
35.The father will make any of the documents relating to the child referred to in the preceding Order available to the mother within seven (7) days of receiving a written request that he do so and, failing further agreement in writing, the mother shall then return such documents to the father.
36.By this order, any school at which the child attends is authorised to provide both parents with copies of school reports, school photographs and any other document regarding the academic progress or achievements of the child and notification of events such as parent/teacher events, sports day and concerts.
37.By this order, any medical practitioner, hospital and/or health care professional upon whom the child attends is hereby authorised to provide both parents with all such information about the child’s health as they are lawfully able to provide.
AND IT IS FURTHER ORDERED THAT
38.Each parent has leave to provide a copy of this Order to any school or educational facility or sporting or recreational club at which the child attends.
39.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the reports prepared by Dr B, the order made on 15 March 2024 and the Reasons for Judgment published in support of the same to any therapist upon whom the parents and/or the child attend for the purpose of therapy and to the Department of Child Safety, Seniors and Disability Services (by whatever name that Department is known), the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
40.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
41.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
42.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
43.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 Raakel & Raakel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings involve the determination of those parenting orders which are now in the best interests of 13 year old X, who was born in 2011.
Both of X’s parents want her to live primarily with them. In seeking this, the father advocates for a continuation of the parenting regime which has existed since the parental separation in mid-February 2021. In advocating for orders requiring X to cease to live primarily with her father, the mother also advocates for a moratorium over X’s time with him to support X in transitioning to her primary care; whilst she initially proposed that she and X attend and participate in a counselling regime operated under the name “[D Counselling]”[1] (which is designed to assist children to repair fractured parental relationships), this was not ultimately pressed.[2]
[1] Affidavit of Ms E sealed 29 August 2022.
[2] Submissions-Applicant sealed 2 May 2023.
X has previously been resistant to spending time with the mother; she and her parents have been engaged in a process facilitated by Dr B, a psychologist, which was intended to assist in the repair of X’s fractured relationship with her mother. After evidence was given by Dr B on 1 November 2022 to the effect that she felt she was very close to a breakthrough with X and that the child was very close to telling her why she did not want to spend time with the mother and that, for the first time, X had been able to “sit with” the idea of spending time with the mother, the mother agreed that the matter should be adjourned to allow the therapeutic process to continue. Consequently, further interim parenting orders were made by consent on 2 November 2022 and the matter was listed for mention on 9 December 2022 to enable the Court to be informed about the implementation of the agreed November 2022 orders.
On 9 December 2022, a further report by Dr B was admitted into evidence and the Court was advised that the parents proposed to continue to implement the terms of the November 2022 order.
When the matter returned on 17 April 2023 (as had been ordered on 2 November 2022), further evidence was given by Dr B and she was cross-examined again. After this, submissions were made by Counsel for the Independent Children's Lawyer and the parties were afforded an opportunity to provide written submissions.[3] In addition, further interim parenting orders (the April 2023 order) were made by consent in terms which provided for X to spend time with the mother as follows:
[3] Both parents filed written submissions on 2 May 2023 and submissions in reply on 10 May 2023.
(a)from 19 April 2023 to 16 June 2023 – on a fortnightly basis:
(i)in week 1: on Wednesday from 3.00 pm or after school to 7.30 pm; and
(ii)in week 2: from 9.00 am to 1.00 pm Saturday; and
(iii)on Mother’s Day: from 9.00 am to 1.00 pm.
(b)from 17 June 2023 to 16 August 2023 – on a fortnightly basis:
(i)in week 1: from after school or 3.00 pm to 7.30 pm on Wednesday; and
(ii)in week 2: from 9.00 am to 5.00 pm Saturday.
(c)from 17 August 2023 to 16 October 2023 – on a fortnightly basis:
(i)in week 1: from after school or 3.00 pm to 7.30 pm Wednesday; and
(ii)in week 2: from after school or 3.00 pm Friday to 5.00 pm Saturday.
(d)from 17 October 2023 – on a fortnightly basis:
(i)in week 1: from after school or 3.00 pm to 7.30 pm Wednesday; and
(ii)in week 2: from after school or 3.00 pm Friday to before school or 9.00 am Monday.
The April 2023 order also afforded the parties liberty to apply on the giving of 48 hours’ notice in writing. No application has been made by either of the parents or the Independent Children's Lawyer in reliance on that liberty. Further, the parties were afforded notice of the impending delivery of Judgment and the making of final parenting orders. No application by either parent or the Independent Children's Lawyer has been made to re-open the evidence.
There is no evidence to suggest that the April 2023 order has not been implemented. Consequently, I have proceeded on the basis that its terms have been complied with and that X has been spending time with the mother in accordance with the same.
A very broad overview of the parenting arrangements and orders which pre-dated the April 2023 order
It is uncontroversial that, until X moved to live in Australia with her parents in early 2020, the mother was her primary carer. It is also uncontroversial that she has lived with the father since the parental separation in mid-February 2021. Since then, the following has happened:
(a)on 23 February 2021 – X and the mother spent two hours together; and
(b)on 25 February 2021 – X and the mother spent one hour together; and
(c)on 28 February 2021 – X and the mother spent around two hours together; and
(d)on 6 March 2021 – X and the mother spent two hours together; and
(e)on 14 March 2021 – X, the mother and the father went to a theme park; and
(f)on 25 March 2021 – X spent overnight time with the mother; and
(g)after interim parenting orders were made by consent on 30 June 2021 in terms which provided for X to spend time with the mother each alternate Sunday from 2:00 pm to 4:00 pm and as recommended by the family therapist or as requested by X:
(i)on 30 July 2021 – the parents attended X’s sporting match; and
(ii)on 15 August 2021 – X spent time with the mother in accordance with the June 2021 orders; and
(iii)on 25 August 2021 – the mother attended an event at X’s school; and
(h)after further interim parenting orders were made by consent on 26 August 2021 in terms which provided for X to spend time with the mother from noon until 4:00 pm on Sunday in week one and from after school until 7:30 pm Wednesday in week two:
(i)on 29 August 2021 – X spent from noon to 4:00 pm with the mother; and
(ii)on 12 September 2021 – X and the mother spent time together at a venue; and
(iii)on Wednesday, 6 October 2021 – X and the mother spent time together, albeit that this was the only Wednesday on which X spent time with her mother; and
(i)after further interim parenting orders were made on 28 January 2022 in terms which provided for X to spend time with the mother as agreed, but at least between 2:00 pm and 4:00 pm on each alternate Sunday and between 9:00 am and 4:00 pm on Mother's Day:
(i)on 20 February 2022 – X spent time with the mother; and
(ii)from 20 February 2022 until 2 November 2022 – X did not spend time with the mother as prescribed by the January 2022 order; and
(iii)on 25 June 2022 – the mother attended X’s sport session; and
(j)after further interim parenting orders were made by consent on 2 November 2022 in terms which provided for X to spend time with the mother for not less than two hours on 28 January 2023, 8 February 2023, 11 March 2023 and 25 March 2023 – X spent time with the mother on those occasions.
The parenting proposals
When the mother commenced proceedings in June 2021, she sought final parenting orders in terms that included that the parents be accorded equal shared parental responsibility for the major long-term issues relating to X and that X live with her parents in an equal time, week‑about parenting regime, with changeovers occurring on Friday afternoons. The father’s response at that time was to seek parenting orders in terms which included that X live with him and spend time with the mother as she wished.
The orders ultimately sought by the Independent Children's Lawyer and the mother were as set out in the documents provided to the Court on the last day of the trial.[4] Whilst the father also provided the Court with proposed orders on that day, his position in respect of certain aspects of the same subsequently changed and, as conveyed in the written submissions filed on his behalf,[5] he ultimately proposed that final parenting orders be made in terms which accord the parents equal shared parental responsibility for the major long-term issues relating to X and which provide for her to continue to live with him and spend time with the mother:
(a)during school terms: as provided for by the terms of the April 2023 order such that, from October 2023, the time occur from after school until 7.30 pm each alternate Wednesday and from after school Friday until before school Monday each alternate weekend; and
(b)during school holidays: on an increasing basis (as particularised in the proposed order attached to the written submissions sealed 2 May 2023) such that, from the holidays at the conclusion of Term 4 in 2024, she will spend equal time with each of her parents.
[4]Save for the amendment to the orders sought by the mother as set out in the submissions filed on her behalf on 2 May 2023.
[5] Sealed 2 May 2023.
As already noted, the mother no longer pressed for D Counselling to be engaged to assist with X’s transition to living with her because, during the time X had spent with her since January 2023, she had not run away from her care; further, the mother was confident that she possessed the parenting skills necessary to support X to return to her primary care if orders were made in the terms she sought. In the Submissions in Reply filed on her behalf,[6] the mother confirmed that such orders were that X live with her and spend time with the father as summarised below:
(a)no time for the first two months after moving to live with her; and then
(b)supervised time for two hours per fortnight for no less than six weeks; and then (following a positive report from the supervisor);
(c)unsupervised time for six hours per fortnight for three months; and then
(d)unsupervised time from 10.00 am Saturday until 4.00 pm Sunday each alternate weekend for three months; and then
(e)unsupervised time from the conclusion of school on Friday until the commencement of school on Monday each alternate weekend and for one block of five consecutive nights in each of the autumn, winter and spring school holidays and for two non-consecutive blocks of five consecutive nights during the summer school holidays (with such holiday time during the summer school holidays to occur at times subject to her travel plans).
[6] Sealed 10 May 2023.
Counsel for the Independent Children's Lawyer submitted that the final parenting orders which are in X’s best interests are orders which will accord her parents equal shared parental responsibility for the major long-term issues relating to her and which would see a continuation of the regime implemented by the terms of the April 2023 order, with the addition that X spend half of each of the school holidays with the mother.[7]
[7] Independent Children's Lawyer’s proposed orders provided by Counsel 17 April 2023.
Whilst the mother contended, in essence, that the father is almost entirely responsible for the breakdown of her relationship with X and the father contended, in essence, that X’s relationship with her mother broke down because X was exposed to the mother’s dysregulated behaviours toward him and X, any proper assessment of these competing contentions and, more importantly, the determination of the parenting orders which are now in X’s best interests cannot, in my view, fail to focus on X herself – her personality and her reactions. Given this, it is, I think, appropriate to have regard initially to what the evidence establishes about X.
X: her personality and functioning; her resistance to spending time with the mother; her views and the nature of her relationship with each of her parents[8]
[8] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d), (g) and (m).
X has been engaged with Dr B since about April 2021. She has spoken with Ms F (who authored a Family Report) once in December 2021. Whilst the mother has been critical of Dr B’s approach to the reunification task for which she was engaged, Dr B is the professional who has had the greatest opportunity to engage with X on a longitudinal basis. As a consequence of her engagement, she has met with X on many occasions and she has been able to assess her over a much longer period than accorded to Ms F. Given this, where the opinions of Dr B and Ms F differ, I generally prefer the opinions and assessments expressed by Dr B, unless otherwise indicated.
Dr B’s observations of X’s interactions with her parents and her assessment,[9] Ms F’s family report
[9]Affidavit of Dr B filed 28 September 2022; Affidavit of Dr B filed 14 April 2023.
Dr B, who was engaged by the parents to therapeutically assist with reunifying X’s relationship with her mother, was first engaged in late April 2021. I accept that she is well-qualified and very experienced in undertaking reunification work with children and parents in circumstances such as those which exist here. I also accept that her assessment of both parents and X was based primarily on their respective presentations at the therapy sessions she conducted.
Dr B has prepared reports dated 23 August 2021; 10 December 2021; 14 September 2022; 5 December 2022 and 31 March 2023.
After her engagement, but before she issued her first report, interim parenting orders were made on 30 June 2021 in terms which provided for X to continue to live with the father and spend time with the mother for two hours every second Sunday.
Dr B’s August 2021 report
The August 2021 report records that the focus at that time was on stabilising X’s psychological functioning, assisting the parents to develop a functioning co-parenting relationship and supporting the relationship between X and the mother following the parental separation.
As at 23 August 2021, the parents had engaged in both individual and joint sessions with Dr B; X had had five individual sessions between June 2021 and August 2021. Dr B assessed that both parents had been motivated and compliant, had followed directions well and were engaged in the therapy process; she also assessed X as having developed a positive therapeutic relationship with her – she said she had become more open and comfortable as the therapy progressed.
As at 23 August 2021, Dr B noted that:
(a)X presented with significant adjustment issues based on the considerable changes and stressors in her life which she identified as being: relocating from the USA to Australia (which she had been unhappy about); adjusting to the parental separation after being exposed to, and witnessing, high level parental conflict after relocating to Australia and whilst travelling around Australia on a road-trip with her parents; adjusting to her father being available to care for her (as opposed to him being the “working parent”) and being exposed to the “ongoing conflictual and unstable co-parenting relationship between her parents”; and
(b)X had attached strongly to the father and had fractured from the mother; and
(c)X reported that she was uncomfortable and untrusting in her mother’s presence; and
(d)there was a high level of emotional hurt and unresolved issues between the parents – the co-parenting relationship was fragile and there was no trust between the parents, who each had a significantly different way of communicating and were largely ineffective at resolving even small issues; and
(e)the relationship between X and the mother was highly unstable – X felt psychologically unmanaged in her mother’s care and her trust in her had been significantly reduced as a consequence of her exposure to the parental conflict before the parental separation; and
(f)X had reported improved mental health stability and an improvement in her connection with the mother after their time together was reduced to occurring on alternate Sundays; and
(g)X was then “highly resistant” to increases in spending time with the mother – given this, such increases needed to be gradual and mindful of her adjustment issues and she was likely to manage an increase in time to between noon and 4.00 pm each alternate Sunday and, potentially, from after school until 6:00 pm on each alternate Wednesday; and
(h)the focus needed to turn to reducing parental conflict and increasing parental trust in order to provide X with the space and support she required to reconnect confidently with the mother; and
(i)the therapeutical focus needed to be on assisting X psychologically to manage adjusting to living in Australia and to the parental separation and to understand and heal from her exposure to the parental conflict so that she could feel able to reconnect with the mother in a secure manner.
Dr B opined that she was hopeful that, if the parents committed to the therapy process, X could reconnect with the mother and increase her time with her to the point where she was spending meaningful and substantial time in her care; she said it was imperative that the process was handled sensitively and gradually because X’s mental health was then fragile because of the large changes in her life she had experienced. Dr B also thought that parental emotional distrust would likely lead to further issues for X and would block her development of a reconnected relationship with the mother.
Dr B foreshadowed that, as time progressed, X and the mother would have joint appointments to help improve the trust in their relationship. However, she also considered that X was not then open to meeting jointly with the mother and was not then psychologically prepared for this – she noted the therapy would work toward this outcome.
After Dr B issued her first report, but before she issued her second report, further interim parenting orders were made on 26 August 2021 in terms which included that X continue to live with the father and spend time with the mother for four hours every alternate Sunday and for three and a half hours every alternate Wednesday after school.
Dr B’s December 2021 report
As at 10 December 2021, both parents had attended a further four individual sessions with Dr B; X had had a further seven individual sessions between September 2021 and November 2021.
In the December 2021 report, Dr B summarised what she regarded as relevant from the material provided to her, which included affidavits from each parent, a psychiatric report prepared by Dr G and various documents obtained as a consequence of subpoenas that had issued. Included within this summary is the accurate conclusion that each parent had presented a different narrative about the reason for their separation – in essence, the father had said that the marriage ended because of the parental inability to communicate and engagement in long-running arguments instigated and perpetuated by the mother, whilst the mother said, in essence, that the relationship ended because of the father’s controlling behaviour, raging and attempt to turn X against her.
Dr B noted that, when the parents attended on her in April 2021, it was clear there was ongoing parental conflict and that X was refusing to attend the time with her mother that had been agreed between the parents – which in turn escalated the issues between the parents. She also noted that, after X continued to resist the previously established regime of spending time with the mother for several hours every alternate weekend and little progress had been achieved, the mother commenced proceedings seeking, on an interim basis, that X live with her and spend time with the father each alternate weekend and, on a final basis, that X live with her parents in an equal time parenting regime.
Dr B also noted that, whilst the recommended increase in time between X and the mother had commenced in September 2021, such time had not occurred consistently – rather, X’s refusal to spend time with the mother became more pronounced and the visits had been largely unsuccessful.
As at 10 December 2021, X refused completely to spend time with the mother and had not spent time with her since October 2021; Dr B described her as having been very angry and disrespectful in her interactions with her mother; each parent blamed the other for the situation in which all found themselves – the father maintained that, whilst he continued to encourage X to spend time with the mother, she was highly resistant to this and did not trust her mother, whom he suggested had contributed to the problem by failing to meet X’s emotional needs when she was in her care, blaming him for the situation and failing to appreciate the impact her own behaviour had had on their daughter; the mother blamed the father and said that he had “demonised” her to X and had worked actively to undermine their relationship.
Dr B noted that the co-parenting relationship was “extremely volatile and problematic”; she assessed the parents as showing “limited to no capacity” to communicate effectively; she said the joint parental sessions ceased after two sessions because the mother felt that the father had been abusive toward her during them and had emphasised her view of his alleged previous domestic violence history.
Dr B recounted that she had assessed the father as presenting as “a committed and loving father” who was genuinely concerned about X’s wellbeing; whilst verbose and exasperated in his communication, he had not been aggressive or inappropriate during either the individual or joint sessions – he followed her directions well, was proactive in seeking help to support X and took guidance well when the same was offered. She also noted that he had told her that X often became angry with him when he tried to speak with her about the mother and that she had become distressed and upset when he encouraged her to spend time with her mother or respond to her messages. He had advised Dr B that he was supportive of X having a relationship with her mother and Dr B reported that she had not seen him blocking or discouraging their relationship.
Dr B reported that the mother presented in a highly anxious manner and was clearly and understandably concerned about her relationship with X – she presented in a very hypervigilant manner in relation to X’s wellbeing, often spoke about her in a way that suggested she was not functioning well, referenced her needs as being “somewhat lower than her chronological age”, and was often emotive and teary. She also said that the mother:
(a)acknowledged that X had been witness to escalated parental conflict whilst the family was travelling on the road-trip and that this would have impacted negatively on her: she also said that it was whilst they were travelling that the father started to undermine her relationship with X by, for example, calling her names and recording her and otherwise undermining her role as a parent; and
(b)said that the father was not caring appropriately for X, was not parenting her appropriately and the child’s functioning was declining – she thought X was not managing and was “spiralling out of control” in the father’s care; and
(c)considered that X’s negative behaviour toward her was the result of the father’s negative behaviour; and
(d)had recently made suggestion of “sexualised/inappropriate boundary insinuation” against the father – which Dr B considered to be highly concerning given that she thought there was a lack of evidence for “such strong allegations”.
Dr B recounted that, during a joint parental session, the mother had been highly emotive and emotionally dysregulated – she had often claimed the father was being intimidating and was yelling when, from Dr B’s perspective, he was asserting his point of view appropriately. Dr B expressed her view that the mother did not display “a clear understanding of her own actions and the impact of these on others” and was unable to take accountability for the contribution she had made to the escalated conflict prior to the parental separation.
Dr B also noted that both of the parents acknowledged that there was minimal trust between them and that they had significant difficulty communicating.
As at 10 December 2021, Dr B described X (then 10 years of age and having just completed Year 4) as presenting as a child older than her chronological age; she was said to be compliant and polite; whilst she had initially been cautious in developing trust and security in “the therapy space”, Dr B considered that a positive therapeutic relationship had been formed. Dr B recounted, amongst other things, that X:
(a)found it difficult to articulate difficult emotions and express her feelings freely; and
(b)could become angry and frustrated at times if challenged or questioned; and
(c)could refuse to discuss some topics if she did not feel comfortable doing so; and
(d)reported some difficulties making friends, but had successfully done so since starting her new school; and
(e)said she wished that she and her family had remained living in the USA; and
(f)said she found it very difficult to express her feelings and kept them to herself and had always done so; and
(g)did not exhibit any clinical elevations to indicate that she was suffering clinical anxiety and did not present or identify symptoms consistent with a depressed state; and
(h)reported regularly feeling angry and that these feelings arose in relation to her relationship with her mother and when she had been “forced” to spend time with her, in her view, contrary to her wishes.
I accept that, from information provided by X, Dr B summarised and concluded that: before she moved to live in Australia in early 2020, X had spent most of her time with her mother (as her father worked away) and “everything was okay”; elements in the family dynamic changed substantially after the family moved to Australia and spent an extended period of time in a small space during the road-trip; X saw lots of parental fighting which, when combined with her view that her mother has changed since the parental separation (for example, she told Dr B that she felt that, whilst her mother was trying to be nice, this was not genuine or real), caused her relationship with her mother to fracture significantly.
Dr B recounted that X’s reporting also included, in essence, that: her mother did not listen to her; spending time with her mother made her uncomfortable and unsettled; her mother’s reaction to her being upset (that is, telling a friend that she had been having a “panic attack”) made her feel worse and embarrassed; she felt disconnected from her mother and they were not getting along; her mother made her feel worse and upset when they were together as she fought with her, did not listen to her, treated her differently than she had previously, would not leave her alone when she was upset and said bad things about the father. X also made comments to the effect that she did not want to spend time with her mother because this did not make her feel good, the interactions between them did not feel comfortable and it felt forced and weird (as if the mother was trying too hard); she felt “less trusting” of her mother and their relationship and complained that her mother treated her like a baby and did the wrong thing at the wrong time – like taking her phone when she was upset and making her feel worse when she was already struggling.
Dr B reported that X told her that she had a close relationship with the father – she said “I just feel more comfortable with him”; she also told Dr B that he had been encouraging of her time with the mother and that he did not speak badly about her mother in her company.
By way of a summary of what had happened since she had been engaged, Dr B outlined that X had become more resistant to spending time with the mother as time progressed; she assessed there had been “notable regression” in X’s connection with her mother after the “panic attack” incident during which, as a result of the mother’s decision to call her friend and recount that X had been having a panic attack, X felt unheard, embarrassed, exposed emotionally and betrayed – Dr B described her as being “acutely wounded” by the experience. Dr B also reported, in essence, that X had been very critical of the mother’s response to her injury – she had described the mother as “selfish” in the way she managed the situation and considered that the mother had not listened to her, had organised things for her without asking her and had treated her like a baby. Dr B noted that, since that time (September 2021), X had been highly resistant to spending time with her mother – she had also rejected Dr B’s suggestion of having joint sessions with her mother to try and work on the issues.
Dr B also recounted that X told her that she had progressed to swearing, name-calling and rude gestures toward her mother because her telling her mother that she did not want to spend time with her had not been heard. Dr B assessed X as “very angry” – she completely refused to attend any of the Court-ordered time with the mother and had told Dr B that if she was “forced” to see her mother, she would simply refuse to do so or would “run away” back to the father’s home.
I accept Dr B’s assertion that a child rejecting a parent after a parental separation is complex and can occur because of various underlying issues. I accept her evidence to the effect that the reasons a child may refuse to spend time with a parent could include: choosing one parent’s “side” (consequent upon being torn between divided loyalties in a high conflict separation); exposure to adult topics and information instigated by the non-rejected parent, which brings the child into the adult matters and impacts the relationship with the rejected parent; justifiably and rationally becoming estranged from the rejected parent due to that adult’s own behaviour (either toward the child or to which the child has been exposed); exposure to, or direct experience of, physical or emotional abuse perpetrated by the rejected parent; pre-separation preferential attachment to the non-rejected parent; an absence of pre-separation secure attachment to the rejected parent; the actions of the non-rejected parent in “gate-keeping” the child’s time with the rejected parent; a pre-existing enmeshed, anxious or co-dependent attachment with the non-rejected parent; feeling displaced by the presence of the rejected parent having a new partner; connecting to the partner of the non-rejected parent, who “replaces” the role of the rejected parent; assimilating the non-rejected parent’s feelings of abandonment, rejection and/or anger consequent upon the separation; conforming with the non-rejected parent’s “entrenched unfounded negative belief system” about the rejected parent in circumstances when the non-rejected parent is unwilling to facilitate the child having a relationship with the rejected parent.
Dr B also opined, and I accept, that the reality in cases in which a child rejects a parent is that both of that child’s parents play (or have played) some role in such rejection and that parental conflict is typically a major factor.
Having regard to the sessions she had had with each of the parents and X and the information provided to her, Dr B considered that the main issues that had led to X rejecting spending time with the mother appeared to be:
(a)the substantial change in the dynamic and role of the parents – which brought about extended, escalated conflict between them that she had seen; and
(b)X’s current psychological vulnerability resultant upon the number of changes in her life, which included: relocating from the USA to Australia (which she was unhappy about); adjusting to home-schooling during the road-trip and then to a new school environment; exposure to the parental conflict; adapting to the changes in her parents’ roles and that they were equally present and the parental separation; and
(c)that the mother appeared to have struggled to provide her with the support she needed to adjust to her changed life circumstances and had often “missed the mark”, such that her parenting style caused X to feel emotionally vulnerable in her care; and
(d)the mother’s minimal insight into her own behaviour, blaming of the father for the fracture in X’s relationship with her and X’s refusal to spend time with her and her demonstrated high levels of anxiety and, at times, inability to manage her own emotions effectively, which escalated X, particularly at times of emotional need; and
(e)X’s own struggles to express and understand her own emotions and that she had not adjusted well to being exposed to parental conflict or her parents’ separation; and
(f)the absence of a co-parenting relationship between the parents and their poor communication, both before and after the parental separation.
I accept that Dr B said that, at that time, there was a clear fracture in X’s relationship with her mother – she also said this appeared linked to her exposure to the parental conflict which followed the family’s relocation to Australia and a change in the dynamic between her parents.
I accept that whilst Dr B noted, in essence, that it was not in X’s best interests to not have a relationship with her mother (who she assessed as capable and willing to be a substantial parental figure in her life, as she had been prior to the parental separation), she was also concerned about the impact on X of any “reversal” of her care arrangements because she feared that X would simply refuse to comply, would completely resist spending time with her mother and would become escalated in her emotional state. Given these assessments, Dr B said that she considered that X needed a gentle and therapeutically supported reintroduction into her mother’s care; she also thought that X would benefit if her parents’ complete focus was diverted away from her (for example, toward work of some kind) because this would enable the child to “transition effectively into adolescence with independence, self-efficacy and confidence”.
I accept, as Dr B also noted, that X was “highly aware” of the parental conflict and that, given this, her parents needed to work actively on their co-parenting relationship.
I accept that, as at December 2021, Dr B’s recommendations included that: the mother focus her attention during her own therapy to understanding the need to shift her parenting approach and to reduce her “notable” anxiety in order to allow X to feel more comfortable in their relationship dynamic; both parents do the Teen Triple P course to assist them to understand age-appropriate management of children entering adolescence; X continue with her sessions to increase her readiness to commence a joint session with the mother in lieu of reunification and the recommencement of time together; and that X undergo a comprehensive formal assessment, undertaken by a clinical neuropsychologist, of her social, emotional and cognitive function to determine how she was managing with all of the changes she had faced during the previous year.
Ms F’s 21 January 2022 Family Report
Ms F’s Family Report, dated 21 January 2022, was prepared following interviews held on 16 December 2021. She noted that X had not spend time with the mother in accordance with the orders since 6 October 2021 and that, whilst the mother had tried to collect her from school on 3 November 2021, this did not happen; further X was not answering the mother’s calls.
Given that Ms F only saw X once for 45 minutes, I accept, as she did, that it is certainly possible that, given the limited nature of that interaction, she was unable to glean a complete appreciation of what was going on with X; I also accept, again as Ms F did, the general proposition that the longer a clinician spends with a client, the deeper the therapist’s rapport likely becomes and the more nuanced their understanding of the client.
Ms F recorded that the mother would like to co-parent with the father and care for X in an equal time parenting regime: however, she wanted X to live primarily with her in the short-term until their relationship normalised and thought that, given the previously close bond between them, in the right circumstances and with the right support, she would flourish. She also believed both parents and X needed therapeutic support; she was concerned that Dr B’s reunification process was not progressing; she thought that, unless changes were made, her relationship with X would deteriorate further.
Ms F noted that the mother accepted that the co-parenting relationship was then non-existent; she also thought it was unhealthy that the father was the only parent with authority, and she just wanted to be treated as a co-parent.
Ms F noted that the father said that he wanted X to have a relationship with the mother and that, if she told him she wanted to see her, he would facilitate that; he believed that he had been able to admit where he had gone wrong, but the mother had not; he informed that his concerns included that the mother: was unable to control her emotions; could not communicate effectively; was unable to remain calm in conflict and spoke negatively about him in X’s presence.
In speaking with Ms F, the father denied alienating X from the mother; he said he encouraged contact between them but sometimes felt he needed to protect X from the mother; he also said the parents had argued about major events and the mother was aggressive during such arguments – whilst he admitted he had “gotten angry and lost my temper”, he said this only lasted for 10 minutes and he had apologised; whilst he admitted having yelled, he said he had not yelled anywhere as much as the mother had yelled and his yelling had happened when he was trying to get the mother to stop yelling; he also said the mother did not follow a therapist’s recommendation that they stop fighting in front of X.
Ms F said that X’s observed interactions with the mother were strained: X did not want to speak with her mother at all, made a couple of rude comments to her, poked her tongue out at her and gave her some “dirty looks”. However, despite this overt behaviour, the mother told her that X had been carrying a bag they bought together and wore a bracelet with a charm that the mother had given her.
Ms F said that, after X interacted with her mother, she saw her run crying into the father’s arms – he stoked her back and told her “I’ve got you”; he also said, in X’s presence, that there had been “seven months of no apologies”. Ms F considered that what she described as X’s desperate need to be physically consoled by her father was inconsistent with what had occurred during her interaction with the mother – when she told the father that the mother had not been rude or unkind (in contrast with X, whose behaviour had been disrespectful), X said that: “I would rather her be realistic and not fake”; the father reassured X that “it’s all over now”.
I accept Ms F’s account that not quite 11 year old X explained her understanding of the interview as being “because I don't want to be with my mum and my mother wants to spend time with me and I don't want to spend time with her”; she described good things about the father and also things that he could improve on; she said, in essence, that when they lived in the USA, her mother had been a good mother and good at all the “mum things” – but she was now terrible at them and could improve on “being kind”, “not yelling”, “not being mean” and “not saying I’m having a panic attack when I’m scared over a bug”.
I accept that X also told Ms F, when asked what she would do if she could do magic, that she would “make mum walk away”, that her mother had done “petty apologies” and she wanted her to leave her alone and wanted a break from her for “10 years”; I accept that when Ms F asked her to describe what seeing her mother earlier had been like, X said that it had been “horrible”; when asked why, she said “hearing her voice” and “seeing her face” and became tearful – she said she hated her mother and did not like seeing her.
I accept that, when Ms F asked her what the worst thing her mother had done was, X said that it was when her mother called friends and told them she (X) was having a panic attack when that was not true: she said her mother had yelled at her and called a maternal aunt to tell her that and her aunt had cursed at the father; X also said that her mother did not listen: she said “she is a bitch and I hate her with all of my soul and I have told her this”; she also said that she would not accept an apology from her mother because “they are not sincere, they are fake.”
I accept that Ms F opined, amongst other things, that X’s reasons for “hating” her mother were disproportionate to this emotion – she suggested that she was dysfunctionally aligned with her father. Ms F also said that X had “black and white” thinking, in which the father was all good and the mother was all bad and had developed a narrative that fortified (and reinforced) her position. I accept that Ms F also thought that being exposed to parental conflict during which her mother was emotionally dysregulated would not ordinarily result in a child taking the position that X had taken vis-à-vis her mother.
I accept that Ms F also noted that the father may not have been aware of how he subtly influenced X – for example: his comments on her return to him after being observed with the mother reinforced that she had just survived a “major threat” (her mother); saying that there had not been an apology reinforced to X that the mother’s behaviour was problematic; by acceding to the mother’s requests that he collect X from her early during their time together, he reinforced that X was not safe in her mother’s care; participating in the exchange of more than 150 texts when X was in her mother’s care had been highly intrusive; not involving the mother in X’s activities and ignoring her views about medical matters (e.g X’s injury) demonstrated that the mother’s views were “over the top”; failing to address with X her conclusion, following after Dr B’s comment about her parents having different views about things, that this meant that the mother was lying (and, therefore, he was telling the truth). Ms F said, in essence, that whilst the father had said he encouraged X to spend time with the mother, his behaviour in respects contradicted this.
I accept that Ms F’s opinion was that, given X’s response to the seven factors identified by Dr B in her report was disproportionate, the “gap” in proportionality can be attributed to the unwitting, or perhaps, deliberate actions of the father. Whilst it may well be that Ms F has previously seen other familial circumstances involving similar factors which did not result in the dynamic that existed between X and the mother, the requirement here (as in every parenting case) is to consider the attributes of the particular child the subject of the proceedings.
I accept that Ms F assessed X as being aligned with the father and that she thought this unhelpful and had resulted in X being essentially “trapped.” She also thought that, whilst X had offered some criticisms about her father, these were, in essence, of a different “depth” to those criticism she had levelled against her mother – her criticism of the father went to his actions rather than, as was the case in relation to her mother, his character.
Whilst I accept that Ms F’s evidence to the effect that, without proper assistance, X would suffer a loss of individuation, a loss of maternal-based experiences and mother-daughter participation in the community and disenfranchised grief in isolation was not the subject of challenge in cross-examination, I consider that X has been supported by Dr B, that she will continue to be supported by her and that provided the terms of orders are complied with and she spends time with her mother, she will be afforded the opportunity to engage in future maternal-based experiences and mother-daughter participation in the community.
Whilst I accept Ms F’s evidence to the effect there is a significant amount of evidence that allowing 10 year olds to choose what happens in terms of many aspects of their life is problematic for them, I consider that both of X’s parents have, in the time prior to their separation, parented her in such a way as to allow her a significant voice in and, I suspect, a significant degree of control over, many many aspects of her life; I am not persuaded that only X’s father approached her parenting in this manner.
Dr B’s September 2022 report
As at 14 September 2021, the mother had had two further individual sessions with Dr B (in February 2022 and September 2022); X had had a further 13 individual sessions between January 2022 and September 2022.
In addition, Dr B had facilitated an appointment between X and the Independent Children's Lawyer on 13 September 2022 which enabled X to be informed about the legal process in an age-appropriate manner; this interaction also enabled the Independent Children's Lawyer to appreciate, first-hand, X’s presentation and current wishes.
As at the September 2022 report, X had not spent time with the mother for more than one year – she continued to be highly resistant to spending time with her and was rejecting of any therapeutic process intended to reconnect her with her mother. Further, the parents had not established a functioning co-parenting relationship and continued to disagree about the living arrangements that were in X’s best interests.
Dr B advised that, given the unsuccessful attempts to engage X in reunification therapy and the issues associated with her attempts to engage these parents in effective co-parenting discussions, she had reverted to simply providing X with therapy and psychological assistance to:
(a)ensure that she functioned “in a stable manner in terms of her cognitive, social and psychological wellbeing”; and
(b)assist her to process her feelings about the parental separation and her mother in a “more healthy and balanced matter”; and
(c)assist her to “reach a space” where she could successfully re-engage with the mother.
I accept Dr B’s evidence that X was functioning in a stable and appropriate manner for her age and did not display symptoms of anxiety or depression, which indicated that her psychological state was stable.
I accept that X had told Dr B that she had a close relationship with the father and that she said he did not speak negatively about the mother and encouraged her to spend time with her and to respond to her texts; I accept X also told Dr B that her father responded negatively to her if she responded in a bad-mannered fashion to her mother’s texts or interactions. Whilst X was not then saying that she was being exposed to the parental conflict, it was clear to Dr B that she knew that her parents did not have a close relationship.
I accept Dr B’s account that X continued to be highly resistant to spending any time in her mother’s care; I accept she refused to engage in any joint session with her mother and that she refused to participate in any reunification process intended to reconnect them. I accept Dr B’s evidence to the effect that X continued to report feeling an absence of trust toward her mother and that her mother did not connect with her in a way that met her needs or settled her – I accept she told Dr B that she felt her mother did not listen to her or consider what she wanted; I also accept X often spoke about the high levels of distress she experienced during the time she initially spent with her mother after the parental separation; I accept she also continued to be highly distressed when talking about the “panic attack” incident and I accept Dr B’s account that X continued to experience high levels of emotional response about how vulnerable she had felt and how she felt unsafe “within her own emotions”.
I accept Dr B’s assessment that X then continued to express “a large amount of anger” toward her mother and that she was “adamantly resistant” to any attempt at reconnection between them – whilst X could acknowledge to Dr B that she had enjoyed a positive relationship with her mother before the parental separation, she also told her she felt that, since that time, their relationship had corroded. I accept Dr B’s account that X had expressed little faith that the relationship between them could be improved.
I accept Dr B’s report that X had told her that, if she was “forced” to spend time with the mother, she would refuse to do so and would either remain at the father’s home or stay with a friend. Given Dr B’s earlier recounting of X’s determined opposition to her attempts to enjoin her in participating in the reunification process and her assessment of X as a “determined and positional child who presented as physically and emotionally older than her chronological age” (which assessment I accept), I consider that the therapist’s expectation that X would be “highly oppositional and resistant” if she felt “forced” into a situation against her expressed wishes was entirely well-founded.
I accept Dr B’s evidence to the effect that, whilst she had continued to speak with X about the importance of working on reconnecting with her mother, the child was “concrete” in her thought processes and her “underlying negative view” about her mother had continued over time. I accept that X displayed “black and white” thought processes to Dr B, who assessed her to feel strongly about “unfairness” and what she perceived as breaches of trust and respect. I accept Dr B’s opinion that X was more adamant and vocal in relation to these beliefs than was typically seen in children of her chronological age – which Dr B hypothesised was due to her “more advanced emotional and cognitive intelligence combined with her temperament and the parenting style she has been exposed to”.
Insofar as the issue of the parenting style to which X has been exposed is concerned, it seemed to me, based on Dr B’s recommendation that both parents, in essence, find a focus other than X, that it is much more likely than not that X had been raised, prior to the February 2021 parental separation, to consider that her views and opinions about things are important, that she is entitled to express them and is entitled to expect that they are “heard” by her parents and that they deserve to be accorded relatively significant weight.
Such conclusions are supported by other aspects of Dr B’s evidence to the effect that she thought that, for some time prior to the parental separation, X had been accorded the capacity to have a “very, very strong voice and influence over both the parents” – she noted that X was the parents’ only child and that both were hypervigilant about meeting all of her needs; she also said she thought that X had been afforded the capacity to, in some ways, “parent the parents” – which she regarded as having contributed to the current problem in the relationship between X and the mother.
I accept Dr B’s report that, whilst X’s “strong negative belief” about the mother had shifted somewhat during the therapeutical interaction, she remained “positional”; I also accept her assessment that, as X develops further into adolescence, her cognitive reasoning will become more abstract and she will likely be able to hold a more complex understanding of “grey” issues; I note that Dr B predicted that, at such time – which she estimated would likely occur over the following six to 12 month period – X would likely be more able to shift her positional beliefs and would likely be more open to reunification with her mother in a therapeutically supported manner.
I accept Dr B’s account that, during her involvement with X’s therapy over the previous 18 months, she had observed a supportive and positive relationship between X and the father; she reiterated that he had followed the therapy direction well, had not tried to dictate her process and had not been seen to speak negatively about the mother in front of X. Dr B said the father had shown a capacity to understand the complexities of the circumstances for X and had displayed insight into potential impacts “linked to his own wrong doings and past mistakes”.
I accept Dr B’s account that her interactions with the mother revealed her to continue to be anxious and understandably distressed about the circumstances in which she and X found themselves; I accept that the mother presented with what Dr B described as a “strong narrative” that the father was a highly controlling individual whose behaviour was solely to blame for X’s rejection of her. I also accept, though, that Dr B thought the mother displayed insight into some of her behaviours which were likely to have negatively impacted on X – particularly, the parental conflict to which X was exposed prior to the parental separation. Despite this assessment about the mother’s level of insight, Dr B also considered that she had simplified the complexities associated with X’s rejection of her – she opined that the mother did not demonstrate an understanding of X’s level of distress and the resultant erosion of trust in her, and respect for her, that was connected to the way in which she had managed X’s emotions after the parental separation.
I accept Dr B’s assertion that both parents presented with an anxious temperament; I accept that both were highly focused on X and strongly prioritised her; I accept that both were easily distressed if X was emotionally distraught or dysregulated and that this is a matter Dr B emphasised as important when considering whether there should be any significant change to X’s care arrangements that would likely result in her manifesting high levels of expressed emotion. I also accept, given Dr B’s assessment that X had genuinely reported high levels of distress and a fracturing of her relationship with her mother since the parental separation and that she remained highly resistant to reunification with her mother or any contact she viewed as “forced”, that significant consideration needed to be given to how X and her parents would manage any substantial change in X’s living arrangements, as was being sought by the mother.
I accept Dr B’s opinion that X requires a relationship with both of her parents, who are both willing and able to be significantly involved in her life. I also accept her opinion that there were complex reasons why X had rejected her mother and that such rejection cannot, in this case, be simplified to being the consequence of only the conduct or influence of the father.
31 October 2022: some of Dr B’s evidence when cross-examined[10]
[10] Noting that other aspects of her evidence whenever given is considered elsewhere in these Reasons.
I accept Dr B’s evidence to the effect that, during her engagement with X and the parents, she kept the parents informed about how matters were progressing by providing them with information during their individual sessions, via email and by the provision of the various reports she has authored. She also said, and I accept, that unlike many of her clients, this family was quite uncontained when they first presented: that is, their issues were not confined to those relating only to X but also involved attachment and parental issues – which meant that she had to take longer to assess the situation for the purpose of determining an appropriate therapeutic plan than she would otherwise have needed.
I accept Dr B’s confirmation that when, during her discussion with X in session on 7 September 2021 about the parental agreement that, in addition to spending time with her mother for a number of hours on alternate Saturdays, she would also spend time on each alternate Wednesday after school with her mother, X appeared shocked. I accept that Dr B told X during this session that both of her parents had agreed that she should spend time on Wednesdays with her mother and that both were supportive of this time occurring; I accept Dr B also told X that she had spoken with her father and he agreed that she should spend this time with her mother. I accept, as she emphasised, that Dr B conveyed to X that her father completely agreed that she should spend time with her mother on alternate Wednesday afternoons.
I accept that, after X was unsure about this increase in her time with the mother and did not want too much time too soon, Dr B conveyed this to the parents via an email sent on 17 September 2021[11] in terms which included the suggestion that X be allowed some time to settle and to see how she was feeling in the following week; I accept that Dr B’s email also recorded that she had previously spoken with both parents about the importance of encouraging X to have a positive relationship with each parent and to spend such time with the mother as was consistent with the Court orders. I accept that, in emailing the parents as she did, Dr B’s intention was to convey that they should encourage X to attend time with her mother in accordance with the Court order, but also be mindful of her response. I accept Dr B’s emphatic assertion that she would never suggest to the parents that they refrain from following court orders.
[11] Exhibit 1, page 50.
The “panic attack” comment
I accept Dr B’s evidence to the effect that the mother’s conduct in telling her friend over the phone that X had been having a panic attack was a “massive issue” for X – I accept her explanation that X was not very good at expressing her emotions, saw vulnerability in being hurt or psychologically vulnerable and was very mindful of how that came across to others such that she was extremely wounded when she heard her mother saying that she had psychological problems or was having a “panic attack”. I also accept Dr B’s evidence that this event was something that had come up in “nearly every one” of her sessions with X.
I note Dr B’s opinion that the existence of something of a fracture between X and her mother, which predated the mother’s comment about her having a “panic attack”, resulted in X according that comment such significance; she thought it likely that, when the mother spoke as she did, X had a fragile core belief (which encapsulates things like whether a person is good, does not lie, is trustworthy and respectful or not) about her mother; she thought this core belief had been corroding as a consequence of events which pre-dated the mother’s one-off comment about a “panic attack” – as I appreciated it, whilst seemingly innocuous enough when considered in isolation, the mother’s one-off comment was the final accumulation that significantly “flipped” X’s view of her.
The injury
Whilst Counsel for the mother submitted that, given the father lacks the capacity to support X’s need to have a relationship with her mother, he therefore lacks the capacity to ensure that her other emotional needs are met, there is nothing in the evidence given by Dr B (the therapeutic professional who has had the greatest opportunity to observe X and engage with her) to suggest that this is the case.
Counsel for the mother submitted that, given the history of X’s failure to spend time with the mother despite the terms of interim parenting orders, made by consent, which provided for such time to occur, the Court would be persuaded that the father only proposed the orders that were agreed in April 2023 because he was fearful that an order may be made for X to live with the mother. Whilst I do not discount that such fear may well have been a motivator, the real issue is, it seems to me, that X’s time with her mother since that order was made has occurred in accordance with its terms.
The submissions made on behalf of the father included that the Court would not be persuaded that he had not actively supported X in attempting to reconcile her relationship with the mother because:
(a)he was the parent who suggested that they engage Dr B in 2021 in an attempt to redress the relationship between X and the mother; and
(b)he only collected X from the mother on 20 October 2021 and 3 November 2021, earlier than had been prescribed, after the mother had contacted him to ask him to do so – requests which occurred after he had ignored X’s direct requests to him that he collect her early; and
(c)X had told Dr B that he did not speak negatively about her mother; and
(d)Dr B’s observations included that he was always encouraging of X spending time with the mother and responsive to her directions about this issue; and
(e)he had consistently agreed to interim parenting orders in terms which have required X to spend time with the mother and had sought final parenting orders in terms which will require her to have regular time with the mother on an overnight basis; and
(f)he had said that he would facilitate whatever additional time X may seek to spend with the mother, including to the point where he positively sought an order to this effect.
The force of such submissions is, I consider, undermined by Ms F’s observations of the father’s interactions with X after she saw her mother. Given such observations, I cannot discount that the father has acted as summarised above whilst also acting in a manner that has been less than 100 per cent supportive of X having an ongoing relationship with her mother.
Family Violence
The father refuted the Independent Children's Lawyer ’s submissions to the effect that the Court would be persuaded that he perpetrated family violence against the mother during the parental cohabitation – instead, it was submitted that, given the mother’s admissions when cross examined, the Court would conclude that the mother committed family violence on 20 December 2020 when she verbally attacked him and X asked her to stop.
Whilst the father accepted, when cross-examined, that, when the mother said in either 2014 or 2015 that she wanted to separate, he had told her something like she would have eight weeks to leave the USA, he denied telling her that she would not be able to take X with her – he said that they would have left the USA as a family. I found this aspect of the father’s evidence particularly unpersuasive. I think it much more likely than not that the father would have told the mother that she could leave the relationship and the USA if she wanted to, but X was not leaving the country.
When cross-examined by Counsel for the mother, the father also admitted that, on a handful of occasions during arguments with the mother, he had told her that he wanted to take his vehicle and crash it into the wall or that he would drive his vehicle into a wall. He also accepted the suggestion that he would reasonably expect that such conduct would have made the mother fearful that he intended to act in the manner he had threatened.
Whilst the father also agreed that his comments would have caused the mother to be considerably anxious at the thought of him taking X in his vehicle with him, it was suggested that he refused to alleviate this anxiety by agreeing to an order prohibiting him from taking her in the vehicle.
When cross-examined by Counsel for the mother, the father admitted that, when driving in the USA in June with the mother and X as passengers, he had: yelled at the mother for falling asleep; called her a liar for saying that she was only dozing off, not sleeping; played heavy metal music and swerved the car once. I accept that his actions on this occasion would have caused the mother to be fearful.
I accept that, when X was almost nine years of age, the father held her up over a railing which prevented people from going too close to the ocean and that, during this, she dropped a toy she had been holding and it fell into the ocean, some 10 metres below. The mother’s evidence included that she started screaming at the father in fear that he would accidentally drop X; the father’s evidence included that it was intended as a joke and he had been intending to give X, who he said remained on the “good” side of the railing, a fright. He said that he did not believe X was in a dangerous situation, the mother had been angry at him for doing what he had done and that he regretted his actions as it was a bad joke.
I am not persuaded that, in holding X up over the railing and acting as he did, the father intended to terrify the mother. Whilst I think it much more likely than not that he thought what he was doing was a joke and that X was not in any danger (because he had his arm around her), I also accept that the mother was very scared by his actions and reacted by screaming at him to stop doing what he was doing.
Given Dr B’s assessment of both parents’ hypervigilance around X, I am not persuaded by him making the comments that he did during arguments with the mother that it is likely the father would deliberately harm X physically, either by driving his vehicle into a wall or by acting in any other manner. Whilst, as noted elsewhere in these Reasons, the father has admitted that he may, on occasion, be “a bit too relaxed” in his approach to addressing complaints about physical injury, this is, I consider, a very different failing to the suggestion of deliberately harming a child.
I consider that it is more likely than not that, during the heated argument on a boat, the father threatened to use the paddleboard to paddle away, leaving X and the mother there; I accept that whilst he left the boat and stood on the paddleboard, the father did not paddle away from the boat because X begged him to stay.
When cross-examined by Counsel for the mother, the father conceded that, when frustrated with the mother, he made fists with his hands beside him, which the mother would have seen. I accept that the mother found this conduct intimidating.
The father’s evidence included that his recording of the mother was done to stop her verbally abusing him. However, I accept, as the father ultimately conceded when cross-examined, that such recording was a form of controlling the mother. Whilst the father maintained that he did not enlist X to record her mother, he ultimately conceded that it was likely she did this because she had seen him doing the same thing to her mother.
Counsel for the mother submitted that the Court would accept and place particular weight upon Ms F’s evidence about the nature of coercive controlling family violence and the part that the same possibly played in the existing dynamic between X and her mother. Whilst it was also submitted that Dr B failed to consider the role this possibly played in that dynamic, I am not necessarily persuaded that this was the case.
The likely effect on X if the orders sought by her parents are made[23]
[23] Family Law Act 1975 (Cth) ss 60CC(3)(d).
Ms E’s evidence included that there are significant psychological and emotional risks to children who are subjected to relationship enmeshment on the one hand and alienation issues on the other; she said that children who fail to maintain a positive and significant relationship with both parents after parental separation do less well on a variety of psychological and emotional measures into adulthood and, in essence, are more likely to experience heightened anxiety, depression, addictions, behavioural difficulties, poor educational outcomes and lifelong relationship difficulties. Given these outcomes, she said that intervention is recommended in cases where a child unreasonably and irrationally rejects one parent in circumstances that may meet the criteria of severe alienation (and, therefore, child psychological maltreatment or abuse). Ms E outlined that child psychological maltreatment included: placing a child in a loyalty bind by making the child unnecessarily choose to have a relationship with one parent to the exclusion of the other parent, (intentionally or not); placing unreasonable limitations or restrictions on social interactions with family members, peers or adults in the community; inculcating the child with unfounded beliefs or views about a parent that leads the child to justify their rejection of that parent; corrupting the parent-child relationship to engage the child in making adult choices and/or to perform adult or parenting roles. She also said that failing to intervene in the “alienation process” perpetuates the psychological maltreatment and abuse of the affected child.
Whilst, as noted elsewhere in these Reasons, Dr B did not agree with the suggestion that X’s beliefs about her mother, from the child’s perspective given her personality and the manner in which she has previously been parented (including prior to the parental separation in February 2021) were unreasonable and irrational or that she was being or had been “alienated” from her mother (as opposed to reacting in a way that was arguably consistent with her very “black and white” thinking and positional attitude), there was nothing in her evidence to suggest that she fundamentally disagreed with the findings of the research recounted by Ms E or with the assertion that failing to intervene in an “alienation process” would permit the psychological mistreatment of a child to continue.
Consequences for X of not having a relationship with her mother
When cross-examined in October 2022, Dr B had no hesitation in accepting that X would benefit from having a relationship with the mother. I accept her evidence to the effect that, if X does not rebuild her relationship with her mother, the consequences for her will be quite significant because:
(a)it will mean she will have severed a pre-existing attachment with her mother, which severing will cause interpersonal issues for her in the intermediate term and will also mean that she will be more prone to psychological dysfunction in the long-term; and
(b)she will likely have some further attachment issues later in life; and
(c)she will miss out on the substantial benefits that come from having a loving mother-role in her life.
I generally accept Ms F’s evidence to the effect that if X’s relationship with her mother is not rectified, she may (at least, theoretically) internalise a sense of worthlessness, and suffer from a loss of self-confidence, low self-esteem, anxiety, depression, possible substance abuse and have difficulty trusting others in the future.
Consequences for X if orders are made for her to continue to live primarily with the father
Counsel for the mother submitted that, if X remains living primarily with the father, he will continue to indulge her in what she described as her “petty grievances” against the mother (and X will likely continue to find fault with her mother in order to appease him) and the time between them is likely to “fall away”. Counsel submitted that the father does not value the mother as an integral part of X’s life and has failed to encourage X to value their relationship; he has not promoted X having a relationship with her mother and, it was submitted, only agreed to the interim parenting orders that he did because of the “duress of the proceedings”. Counsel also submitted that, without a disruption to the father’s influence over X, the previously deep and meaningful relationship between X and the mother will not be accorded the opportunity to resume and, despite the existence of orders, will likely “languish” as opposed to “flowering”. Such submissions seem to me to ignore Dr B’s evidence about the likely multifactorial reasons for X’s rejection of her mother.
It was submitted on behalf of the father, in essence, that the Court would accept Dr B’s evidence to the effect that she was confident she could work with the parents to implement the orders he sought, which were in terms that provided for X to spend regular and frequent time with her mother.
I accept that if X remains living with the father she will continue in the parenting regime that has existed since early 2021.
Consequences for X if orders are made for her to live with the mother
Ms F opined that it would be in X’s best interests for her to move to live with her mother. Her assessment of the logistical risks of removing X from her current living arrangements seemed to be limited to some protesting from X; however, given Dr B’s evidence about X’s attitude and comments and my assessment of her general attitude consequent upon the way her parents have decided to parent her, it seems to me to be highly likely that such assessment significantly understates X’s reaction if orders were made for her to move to live primarily with her mother.
Counsel for the mother also submitted that the Court would be persuaded that the mother possesses the parenting capacity to support X in moving to live with her and, once she is away from the father’s influence, she will settle into her care. It was also submitted that the two‑month moratorium the mother proposed was necessary to enable X to transition into her mother's primary care and to allow her to do so without “feeling torn” between her parents; it was also submitted that the moratorium period is relatively short – it would be long enough to support X’s transition to living with her mother but not so long as to adversely affect her relationship with her father.
If orders are made in the terms sought by the mother, X will move to live with her and there will be a moratorium of two months’ duration over her time with the father, following which their time together will initially be supervised, so that the mother/daughter relationship will be able to be re-established without the father either overtly or covertly undermining the same. The experience of spending supervised time with a parent is not something to which X has previously been subjected.
For X, orders in the terms sought by her mother will mean that, having already experienced all of the disruptions and changes consequent upon moving to live in Australia and then consequent upon the parental separation and having lived primarily with the father since mid‑February 2021 and having spent time with her mother in the manner outlined throughout these Reasons, she will be expected to manage this further change – a change that is contrary to her views and wishes.
When cross-examined in October 2022, Dr B agreed that reversal of care orders can be highly effective in cases where children are found to have irrational and unfounded beliefs, consequent upon assimilation with the non-rejected parent, about the rejected parent and where their rejection of that parent is, therefore, unjustified. She said that, in such circumstances, her experience has been that the child reconnects with the rejected parent and there is a positive outcome.
Dr B also said, however, that, in this case where, in her opinion, it has not been firmly established that X’s underlying beliefs are irrational and unfounded and there is significant dysfunction in the mother/child relationship, reversing X’s care arrangements may result in her becoming extremely distressed and emotionally dysregulated, which could lead to self-harm and high-risk behaviours such as running away. Dr B was also concerned that the parents may not be equipped to manage X’s behaviour and may become very anxious and emotionally distressed – she also thought that reversing X’s care regime would effectively destroy any prospect that her parents could have a functional co-parenting relationship in the future.
Dr B said that:
(a)if it was not determined that X had an irrational and unfounded belief about her mother (which belief emanated from the father); and
(b)it was accepted that the father and X had a strong attachment; and
(c)it was accepted that the father is now X’s primary hierarchical attachment figure,
it was likely that X would experience attachment distress if removed from her father’s care.
I accept Dr B’s explanation that “attachment distress” is where a secure attachment figure is removed abruptly from a child’s life. I also accept that it is likely that X would suffer such distress if required to live primarily with the mother. I also accept her evidence to the effect that attachment distress results in children regressing in different areas of their functioning and that it was likely that, if removed from the father’s primary care, X would experience sleep difficulties, become emotionally dysregulated and, potentially, anxious. I accept Dr B’s evidence that removing X from the father’s care would likely destabilise the secure attachment between them and that, given the absence of a secure attachment with the mother, X would be left with no secure attachment figure.
Counsel for the mother submitted that Dr B’s concerns about the possibility that X would run away if required to live with her mother needed to be assessed against the circumstance that she had not run away during any of the four periods of time she had spent with her mother since January 2023. However, I consider that X’s response during these interactions needs to be assessed as having occurred in circumstances where she had been told by Dr B that she was expected to go and spend that time with her mother – being told that she was to move to live with her mother is, I consider, a very different thing; given Dr B’s assessment of X’s personality, I am not at all confident that one can safely extrapolate from her absence of flight when spending time with her mother that there will likely be an absence of flight if she is required, contrary to her wishes, to move to live with her.
I accept that Dr B’s expressed concerns about how the mother would cope with, and manage, X’s behaviour if she lived with her have to be seen in the context of the mother having had plenty of opportunity to develop what was described as a “stoic” approach in dealing with X and her access to Dr H as a source of support and assistance; further, Dr H had expressed no concerns about how the mother would cope in parenting X and considered her to be now quite capable of managing her emotions and responding to X’s emotions.
I accept the thrust of the submissions made on behalf of the father that orders made in the terms sought by the mother would not guarantee that X will be able to develop a meaningful relationship with her; whilst I am not persuaded that they would have the result that his meaningful relationship with their daughter would be “severed” I accept that there is a significant risk of disruption to that relationship. It was also submitted that X would likely react poorly to such orders and, given her age, may put herself at physical risk if she thereafter made erratic and/or impulsive decisions; further, it was submitted that X would also likely be placed at risk of suffering significant emotional dysregulation – as Dr B opined, she would be very angry and would be behaviourally reactive and difficult to manage. I generally accept these submissions.
I also accept that making orders in the terms sought by the mother is attended by the risks that:
(a)X’s relationship with her mother may be further corroded; and
(b)X would likely lose her secure attachment figure (the father), with the associated risk that she may develop anxiety; and
(c)X’s relationship with the father may be negatively impacted and there may be, generally speaking, a negative impact on her overall functioning.
Parental Relationship
It is clear that, prior to the mid-February 2021 parental separation, X was exposed to the manifestation of the significant parental conflict – as the mother described it to Ms F, she was seeing her parents “fighting like never before”; it is also clear, in my view, that she heard both of her parents make derogatory and accusatory comments about the other's conduct and that she heard both of them attempt to defend themselves against such comments.
I think it highly likely that each parent behaved quite differently during these arguments than X had previously seen them behave; I also think it highly likely that X saw what appeared to her to be a calmer response from the father during the parental arguments than the response by the mother – as the mother said to Ms F, having felt, amongst other things, devalued by the father’s behaviour in doing things like spending time with X without her and making comments like he told X that she loved her but she just did not show that, she started to react and “fight back”; as the mother also said to Ms F, X must have felt confused, scared and disconnected – I conclude, as a result of being exposed to parental arguing of a scale, intensity, ferocity and frequency to which she had not previously been exposed.
When cross-examined in late October 2022, Dr B’s evidence included that, if the father had engaged in verbal abuse and coercive control of the mother to which X had been exposed, the working hypothesis would be that such conduct would have negatively impacted on X’s underlying core beliefs about the mother and it was possible that some of her gravitation toward him might be attributable to that being a place of relative emotional safety; she also said that, if such conduct was ongoing, it would have an ongoing negative impact on X.
Dr B said that she thought that, if there had been a toxic dynamic in the parental relationship prior to the separation (as, in my view, there clearly was), it was possible, usually with the assistance of a third party, for the parents to establish a healthy co-parenting relationship; however, she also said that, if there was ongoing coercive control and/or violent behaviours perpetrated by one parent against the other, it was inappropriate to facilitate the continuation of that dynamic by requiring the parents to engage in a co-parenting relationship. Such evidence needs to be seen in the context that, if X remains living with the father, the mother seeks an order for equal shared parental responsibility.
WHAT ORDERS ARE IN X’S BEST INTERESTS?
It is well settled that the exercise of the discretion involved in determining the parenting orders which are in X’s best interests “necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition”.[24]
[24]Morden & Coad [2019] FamCAFC 233 at [13] and the reference to U v U (2002) 211 CLR 238 per Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) at [90]; CDJ v VAJ (1998) 197 CLR 172 per the plurality at 218-219.
Allocation of parental responsibility
Whilst Counsel for the mother submitted that the presumption of equal shared parental responsibility was “rebutted” by the family violence that occurred during the relationship, the correct submission is that the presumption does not apply if there are reasonable grounds to believe that a parent had engaged in family violence.[25]
[25] Family Law Act 1975 (Cth) s 61DA(2)(b).
Given the evidence given by both parents, I consider that the presumption that it is in X’s best interests that her parents have equal shared parental responsibility for the major long-term issues relating to her[26] does not apply in this case.
[26] Family Law Act 1975 (Cth) ss 61DA and 61DA(2).
This does not, though, dispose of the issue – rather, the Court is required to consider whether, irrespective of the non-application of the presumption, it is in X’s best interests for her parents to be accorded equal shared parental responsibility for the major long-term issues relating to her.
When cross-examined, the mother’s evidence included that she would be able to come to a joint decision with the father in relation to matters affecting X on a long-term basis; she did not think that the father should be accorded sole parental responsibility for the major long-term issues relating to X and, accordingly, did not think that the parent with whom X was primarily living should have sole parental responsibility for the major long-term issues relating to her.
When cross-examined by Counsel for the Independent Children's Lawyer, the father accepted that there might be some value in X seeing her parents making joint decisions about things that are important to her because that would, in essence, send a clear message to her that her mother is important and interested in her life. He also said, in essence, that he thought he could make the joint decision-making process as effective as possible by communicating openly, explaining his reasons for a particular choice, and addressing any concerns that may be raised by the mother with rational, logical reasons.
Both the Independent Children's Lawyer and the father advocated that an order that X’s parents be accorded equal shared parental responsibility for the major long-term issues relating to her is an order that is in her best interests.
Counsel for the mother submitted that, whilst they are both intelligent, articulate people with “good world experience”, the parents bicker over the minutiae of X’s life to the extent that the Court would not be persuaded that they are capable of making decisions about major long-term issues relating to X jointly, [27] as they would be required to do if an order for equal shared parental responsibility was made.
[27] Family Law Act 1975 (Cth) s 65DAC(2).
Such incapacity was, though, relied upon only if an order was made for X to live with the mother – in which circumstances it was submitted that, because of the mother’s concerns that an order for equal shared parental responsibility would result in her decision-making becoming bogged down and ineffective, an order according her sole parental responsibility for the major long-term issues relating to X (accompanied by an associated obligation that she consult with the father) would be in the child’s best interests. However, if X remained living primarily with the father, it was submitted that an order for equal shared parental responsibility should be made to ensure that the mother is not sidelined by the father and that her views are not disregarded and minimised.
As well as requiring that a decision about a major long-term issue in relation to X be made jointly, an order for equal shared parental responsibility for the major long-term issues relating to X would also require her parents to consult about the decision to be made about such issue and to make a genuine effort to come to a joint decision about it.[28]
[28] Family Law Act 1975 (Cth) s 65DAC(3) of the Act.
I accept that the parents are capable of consulting about any decision to be made about a major long-term issue relating to X; I also accept that they are capable of making a genuine effort to come to a joint decisions about such issues – the problem here, it seems to me is that whilst each is likely to regard their own efforts as being genuine, it is highly likely that they will each regard the other’s efforts as being anything but genuine.
Despite the very real possibility that an order for equal shared parental responsibility for the major long-term issues relating to X may result in a parental impasse, I consider her best interests will be better served by such an order than by an order according that responsibility to only one of her parents. I also consider there is much in the suggestion that, by requiring both parents to be involved in making decisions about such issues, X will be provided with a clear demonstration that both of her parents care about her and are interested in her and, importantly, exercise equal power about such decisions.
Living and time orders: what orders are in X’s best interests?
Given the circumstances of this case, I am not persuaded that it is X’s best interests to spend equal time with each parent at this stage; nor would such a regime be reasonably practicable given the significant impact that such an arrangement would likely have on X at this point in time and the significant limitations on the parties’ current capacity to implement an arrangement for such time and communicate so as to resolve difficulties that might arise in implementing such an arrangement.
The Independent Children's Lawyer ultimately sought orders in terms of the Minute provided by Counsel.[29] By way of broad overview, the orders sought included that X continue to live primarily with the father; the parents be accorded equal shared parental responsibility for the major long-term issues relating to X and that she spend time with the mother on a gradually increasing basis as provided for in the Minute.
[29] During the course of oral submissions made on 17 April 2023.
I consider there is force in the submissions made by Counsel for the Independent Children's Lawyer to the effect that it is likely that X was simultaneously exposed to, and required to adjust to, significant internal and external changes to her world from the time the family moved to live in Australia and that these changes included:
(a)the availability of her father to parent her and the associated requirement that her parents try to co-parent her – in circumstances where they had never really been required to do this; and
(b)the consequences for her of moving to Australia – in terms of the complete dislocation from her home in the USA and her friends and life there; and
(c)the associated requirements that she live with her parents in close confines while travelling and participate in home-schooling – and endure her parents clearly very different approaches to shepherding through this new experience; and
(d)what was described (accurately) as “a front-row seat” to the graphic and clearly uncontained deterioration of the parental relationship – I suspect made even more impactful by the fact that, because of the father’s previous absences from the home as a result of his work commitments and the mother’s consequent discharge of almost all the parenting responsibilities, she had previously been exposed to very little parental discord – and the “emotional collapse” of the mother, the parent from whom she had, until then, received the vast majority of her parenting and care.
I have already expressed my general acceptance of Dr B’s opinion that X’s resistance to spending time with her mother was not based upon irrational or unfounded beliefs and that the reasons underpinning this are complex and multifactorial and cannot simply be regarded as being the consequence of the father’s conduct.
Given my acceptance of Dr B’s assessment of the complexity of the situation and that it is not as simple as concluding that X’s rejection of her mother is the result of only the father’s conduct, I am not persuaded that the views X has expressed about her preferred parenting regime are only reflections of the father’s attitude.
Whilst Counsel for the mother submitted that the explanation X provided to Ms F in answer to her request that she tell her “the worst” thing that her mother had done was unlikely to be the real basis for her subsequent rejection of her mother, such submission seems to me to substantially ignore Dr B’s assessment of X’s personality and functioning generally and her evidence that X’s described “black and white” approach is not limited in its application to only her mother. That X allowed her mother to collect her from school after the “panic attack” evening and that she spent the night in her mother’s care does not necessarily mean that her subsequent positional attitude toward her mother was not the consequence of many factors, as Dr B opined.
I accept that, at her age, X is unlikely to be able to fully appreciate all of the consequences (particularly in a long-term sense) for her of a decision to limit her relationship with her mother. I also accept the submission made by Counsel for the mother that it is highly likely that X’s life may not be easily lived if she thinks that she can reject those with whom she has relationships every time she becomes upset or disaffected with them: however, whether she continues to approach her decision-making through the prism of the described “black and white” thinking or whether the harshness of her approach is ameliorated as she moves through adolescence is, it seems to me, very difficult to predict with any degree of certainty – although, as noted elsewhere in these Reasons, Dr B opined, in essence, that it was quite possible that this would continue to be an issue for X and that, consequently, she would benefit from ongoing therapeutic support to assist her to navigate her future relationships and, I infer, the consequences for her in the future of continuing to hold such “black and white” views about others.
Given Dr B’s assessment of X’s likely resistance to orders requiring her to live with her mother and what I regard as the very real possibility that she might react very negatively to the same and in a way that may expose her to significant risk of harm and because of:
(a)the positive changes in X’s relationship with the mother since January 2023 which evidenced a softening of her previously staunchly held views – a contention based on Dr B’s evidence in April 2023 to the effect that:
(i)X’s tendency to “shut down” the mother’s positive comments about her had decreased since January 2023 – which she thought could be seen as X according tacit approval to such positive comments; and
(ii)based on the mother’s account of the four visits between January 2023 and April 2023, X’s interactions with her had substantially improved and she had been sitting and speaking with her in a much more open manner than had previously occurred; and
(b)the risk that making such an order may result in X hardening again in relation to her previously expressed views about her mother and may adversely impact on her relationship with the father and her overall functioning generally,
I am not persuaded that it is currently in X’s best interests to be required to move to live with her mother.
I am, though, easily persuaded that it is in X’s best interests to have a meaningful relationship with her mother and to spend regular and frequent time with her. I have taken X’s views about her interactions with her mother into account in determining the progression of her time with her mother that I consider to be in her best interests and the quantum of the same.
Who is to keep certain important documents?
Whilst Counsel for the mother submitted that the order sought by the mother was appropriate and in X’s best interests because the documents referred to are important identity ones that could be used by the father to support applications for passports for X in both Australia and, given that he has a Country K passport and is eligible to apply for a Country L passport, in other countries, I consider that it is appropriate for the parent with whom X will primarily live to have possession of the same.
The Watchlist order
The mother’s position was that X’s name should remain on the watchlist. It was submitted, in essence, that the Court would be persuaded that this is in X’s best interests because the father could otherwise remove her from Australia without the mother’s knowledge and take her to live with him overseas.
The father submitted that the Court would accept his evidence to the effect that he has no intention of removing X from Australia to live in another country and that he enjoys living in Australia. It was also submitted that there is simply no evidence that the father lacks strong friendship ties to Australia[30] and/or that he wants to leave Australia to live somewhere else. When asked by Counsel for the mother whether he would agree that it was his position that he and X continue to reside in Brisbane, his answer was “Yes”.
[30] Such issue not having been the subject of cross-examination.
In the circumstances, I am not persuaded that it is in X’s best interests for her name to remain on the Watchlist as I consider that there is a very real prospect that this will unnecessarily hinder her ability to travel internationally with her parents.
Concluding comments about the terms of the orders determined to be in X’s best interests
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in X’s best interests because such orders reflect my acceptance of Dr B’s evidence about the frequency and duration of X’s time with her mother and will, for example: enable both parents to be kept informed about her and her progress; afford her the opportunity to maintain communication with each parent in the time between face to face interactions; ensure, as far as possible, that she is protected from the harm which may be caused to her as a consequence of exposure to derogatory comments about each of their parents; enable her to enjoy holidays of longer than seven consecutive nights with each of her parents and enable her to spend time with each of them on celebratory and special days.
To the extent that the orders made do not include orders sought by either parent or the Independent Children’s Lawyer, that is because I have not been persuaded that the same are in X’s best interests.
For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of X’s circumstances, as established by the evidence before me and as adverted to above, are now in her best interests.
I certify that the preceding two hundred and forty (240) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 15 March 2024
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