Ramridge & Nalber
[2023] FedCFamC1F 507
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ramridge & Nalber [2023] FedCFamC1F 507
File number(s): BRC 8100 of 2019 Judgment of: BAUMANN J Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – PARENTING – Child’s wishes – Where the child has experienced significant stress and anxiety in anticipation of and being in the father’s care – Where the father is critical of the mother’s parenting – Where the child has communicated that he does not wish to spend time with the father at this point in time – Where the father sought that the proceedings proceed to trial – Where the father failed to comply with trial directions and engage a lawyer privately or by the s 102NA cross examination scheme – Where the father did not appear at the trial –No finding made as to whether the child is at risk in the father’s care –Final orders made which allow for the child to communicate with the father if he so wishes Legislation: Family Law Act 1975 (Cth) ss 60CC, 102NA Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 5 April 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person (did not participate) Counsel for the Respondent: Mr Cooper Solicitor for the Respondent: Family Centred Law Pty Ltd Counsel for the Independent Children's Lawyer: Ms Marshall Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 8100 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RAMRIDGE
Applicant
AND: MS NALBER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
5 APRIL 2023
THE COURT ORDERS:
1.That the mother have sole parental responsibility for the child, X born 2007 (“the child”).
2.That the child live with the mother.
3.That the child spend time and communicate with the father by any means should the child express a wish do so and the mother will do all things to facilitate the child’s wishes.
4.That the parents keep each other informed at all times of their email and the child’s email address (currently …@...) and will notify the other within twenty four (24) hours of any change to such details.
5.That the father be at liberty to communicate with the child via email.
6.That during the time the child communicates or spends time with the parents, the parents shall:
(a)respect the privacy of the other and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not discuss any issues or re-tell any part of previous legal proceedings with the child or in the hearing or presence of the child; and
(d)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
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 Ramridge & Nalber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
X was born in 2007. It appears he was born after a short and somewhat ambivalent relationship between the young parents ceased some time during 2006. It is suggested that at the time some form of relationship began in 2004, the mother was 14 years of age and the father was 18 years. After X’s birth, the mother says there was a history of conflict and violence between her and the father. The father has always denied that to be the case. It is clear to observe that the parents were young when their relationship began and there was possibly a degree of power imbalance between the mother and the father.
The father raised criticisms early on of the mother’s actions in maintaining regular schooling for the child, asserting in his affidavit and in his comments to the family report writer that there were multiple change of schools. The mother made allegations against the father, which have been continuing, that he would bully the child and be overly critical of X. Be that as it may, on 12 July 2017, with the consent of the mother and father, Judge Lapthorn made final consent Orders, the effect of which was that the parents would have equal shared parental responsibility; X would live with the mother and that the child would spend at least every third weekend with the father from Friday to Sunday.
The mother’s evidence and what she told the report writer is that conflict, however, continued between the parents. I am prepared to accept that they both were capable of making critical comments about the other parent from time to time. It was, sadly, a very unhappy relationship. By early 2019, the mother felt that the child’s distress in witnessing and being exposed to the parents’ conflict and also what she believed, on the child’s reports to her, to be some inappropriate behaviour by the father, caused her to cease making the child available for time with the father under the Orders.
On 15 July 2019, the father commenced fresh proceedings. It is worth noting that by this stage, X was 12 years of age. I am satisfied on all the evidence he was well aware of the ongoing conflict between his parents and it was distressing him greatly. Perhaps the most obvious demonstration of the distress the child was feeling was his attempt in late 2019 to harm himself, although, perhaps because of his age, thankfully it was not successful. Nonetheless, it reflected his ongoing distress in the matter and state of anxiety.
For whatever reason, the mother did not file a Response to the father’s Application until November 2019, shortly before Judge Purdon-Sully in the Federal Circuit Court of Australia (as it was then known) on 28 November 2019 appointed an Independent Children’s Lawyer (“ICL”) and made Orders effectively suspending any time X was to spend with the father. The ICL caused Ms B to prepare a family report, with interviews taking place on 5 March 2020. The report, dated 18 May 2020, is before me and I have read it. The report spent some time dealing with the perceptions X had of his father and the difficulties in that relationship. The recommendations made by Ms B in that report were, at paragraphs 168 to 171, that:
168.[Mr Ramridge] and [Ms Nalber] are both connected with psychologists who are provided with this report to read, with the aim of assisting them to co-parent and support [X] according to his development needs;
169.[Mr Ramridge] receives advice from the psychologist around adapting his approach to [X] and with this guidance begins contact with [X] via correspondence;
170.[Mr Ramridge] and [X] undergo at least two sessions of counselling aimed at [Mr Ramridge] attaining a greater understanding of [X’s] feelings;
171.Depending on the outcome of these sessions, [X] is to spend time with the father on at least two occasions, at a supervised contact centre, as organised by his parents in mediation.
The recommendations were consistent with the report, which identified that, at that stage, X was expressing significant and strong wishes not to spend time with the father. The father took the view then and has consistently taken the view that the wishes the child is expressing are not his own views but are shaped by either coercion, coaching or influence of his mother, who has been his primary carer. Armed with that report, Judge Purdon-Sully on 5 June 2020 made various orders consistent with the report, but, in particular, made Orders for the child and the father to have joint counselling. The parties were to engage with a psychologist at the C Health Service.
The evidence from the ICL, Ms Adcock, reveals that it took the father some six months before he completed an intake appointment with the counselling service in late 2020; the mother did not do her intake session until early 2021 and the child first saw the counsellor pursuant to the Orders of Judge Purdon-Sully in March 2021.
I can recall the father on more than one occasion expressing to me in court his frustration that the Orders made for counselling to take place had not been given priority by, he would say, the mother. Be that as it may, it is clear from the evidence that on 10 March 2021, the counsellor who had been appointed to engage in the therapy between the child and the father confirmed in orally to the ICL that she was not prepared to undertake the joint counselling, I infer because she was concerned of its likely success and the stance then being taken by X. At this stage, X was 13 years of age. Although Orders were made for different counsellors to engage with the family, no such counselling took place, and by 16 December 2021, the matter was transferred to Division 1 of the Court.
After the matter came into Division 1, I, as case management Judge, had a number of discussions with the father about his approach to the matter. It was clear to me that the father did not see himself as having done anything wrong to justify the child’s remarks about him. He was totally focused on what he said were his proper criticisms of the mother and her failure to get the child to facilitate time with the father. The last affidavit filed by the father was on 1 July 2022. The father was at that stage unrepresented. The father’s evidence is, in my view, worth repeating in these Reasons considering the father has not appeared today and will be provided with a copy of these Reasons. I need him to know that I have understood what he has said in his affidavit even though he has not appeared today to support any orders different to those which I intend to make. The father said in that affidavit:
2.I am filing and serving an affidavit setting out orders sought on a final basis additional to or in substitution for the orders on a final basis proposed by the Independent Children’s Lawyer and the mother as requested by his Honourable Justice Baumann.
3.I make this application as the mother arbitrarily relocated from [E Town] with [X], and I have not spent time or communicated with [X] since [early] 2019, despite numerous efforts to contact [X].
4.I have complied with all reasonable requests made upon myself during these lengthy proceedings.
5.I see myself as a hardworking member of society and believe I have many skills I could pass on to [X], to help shape him into a well-respected member of society.
6.I wish to facilitate a relationship with [X] and for [X] to have a relationship with his Grandparents, Uncles, Aunties, Cousins, and Brother [and] Sisters on the [Ramridge] side of his lineage.
I thought it appropriate, considering that it was over two years since Ms B had interviewed X, to make an order for a “children’s wishes report”, ideally to also be conducted by Ms B. On 18 August 2022, Ms B interviewed X, delivering a report on 4 September 2022. I have read that report. It is clear from the report that X made some strong comments which would have been hurtful to his father but which he knew, I infer, the father was likely to read. The comments and observations made of relevance include:
(a)X presented as polite, comfortable and at ease, demonstrated regular eye contact and answered all questions asked of him throughout his interview. He spoke very happily about living on a property with several animals, which he talked about with much affection; and
(b)X expressed sadness about the deaths of his great-grandfather in 2021 and his grandfather in 2022, and he felt quite low after the loss of his grandfather and great‑grandfather and his school marks dropped dramatically. He noted that he had usually achieved Cs or higher but his marks had dropped to Ds.
Tellingly, at paragraph 5, the report writer dealt with the serious concerns of X’s conduct in late 2019, where he attempted self-harm. X is recorded as saying:
5.[X] thought about suicide because he didn’t want to go back to his father because of the way he treated him. He said if he ever felt that way again, he would talk to his mother, as they have a good relationship and ‘talk through a lot of stuff’, and he has been coping by watching videos and talking to friends.
Ms B went on to record:
7.[X] stated that he had not seen his father since prior to the previous family report interviews, and added, ‘After what he did, I prefer not to see him again.’ [X] said since the previous family report, his father had e-mailed him, and ‘tried to make out he was the good guy in all this’. However, he said he had never replied to his father’s e-mails and [Mr Ramridge] hadn’t emailed for 6‑7 months.
The child is further is recorded as stating that:
8.he had always been afraid of what his father would do to him, because at a young age, he saw him hit his mother with a [vehicle]. He added that on another occasion, [Mr Ramridge] had clipped his nose in the [vehicle], when he tried to hit his mother in the [vehicle].
At paragraph 9, tellingly, it is recorded that:
9.[X] stated strongly that he doesn’t want to spend any time with his father at all, and said he had told him many times, that he ‘hates’ him and wishes he wasn’t his father. [X] recounted his experiences at his father’s home, and asserted that he is ’a terrible, terrible, person’. He said he ‘got a paedophile vibe’ from [Mr Ramridge] as he used to ’grab his butt and tried to stick his fingers in’. Without prompting, [X] stated that at the time, he was too afraid to tell the police how he felt because [Mr Ramridge] was present, and [Mr Ramridge’s] partner had been angry with him because of the police’s presence.
When the father was confronted with this no doubt difficult expression of X’s wishes, I wished to give him one further opportunity to save the public purse (the ICL and the mother are being funded by Legal Aid) and himself a trial if there was no utility in having a trial based on the strong wishes of this mature-age boy. The father told me on 14 November 2022 that he wanted a trial. I am satisfied that his wishes at that stage were genuine, and that he felt a trial would be an opportunity for him to show that the comments made by the child should not be accepted as truthful.
On 22 December 2022, I made an order that activated s 102NA of the Family Law Act 1975 (Cth). The father has had the opportunity to obtain a lawyer at no cost to himself but has failed to do so. Despite his requests for this matter to be listed for trial, he has failed to appear today without any explanation. The mother, who had retained lawyers, retained Mr Cooper of Counsel. The ICL retained Ms Marshall of Counsel. In the absence of any explanation as to why the father has failed to appear today; failed to engage, as was available to him, a lawyer under the cross-examination scheme funded by the Commonwealth, and further failed to comply with any trial directions, I propose to proceed with the Application today on an undefended basis.
I accept to do so means that I have not tested much of the allegations that the child makes against the father which, I accept, he has strenuously denied. But what is clear from all the evidence, in my view, is however these perceptions may have been created in the mind of a child (and I certainly find no evidence to support a view that the mother has in some way coached, intimidated or influenced the child), the child has consistently expressed this as his lived experience with his father. For a long period of time, pursuant to Orders made by Judge Lapthorn, the child was spending regular time with the father. I am sure there were positive memories from some of those times. However, it seems apparent that as the child got older and perhaps challenged some of his father’s thinking, remarks or comments, the evidence would suggest that the father found that difficult to cope with.
X had in his mother an available, comforting and, I find, more than adequate parent who could provide a different style of parenting and relationship than the father was capable of doing. The reports made by Ms B identified, without making factual findings of what had occurred during this chaotic relationship between the parents - who got together, as I say, very young, including the mother being at the age of 14 – that the father had to change his approach to engaging with his son.
Everything I have seen reveals that X is an impressive young man who has had much to deal with. The evidence from the mother for the trial is that he is now engaged in a school-based apprenticeship. He seems to have a happy community around him and he seems to be enjoying his life. It is, of course, sad when a relationship between a parent and a child breaks down. However, the principles of cases like this are not that a child must have time with a biological parent but, rather, the child should spend time with a parent if it is in his best interests and safe to do so. The best interests of the child is the paramount but not only consideration. For a child of this age with the experience of life that X has had, it is my view that weight – in fact, determinative weight – should be given to the expression of his wishes. Whilst that is only one factor in s 60CC(3), in this case, it is a significant factor.
Little is served by trying to understand why counselling did not work. Distance between the parents and attitude of the parents may have shaped the difficulties. My impression is that the mother has been worn out by these proceedings but has continued to observe the Court’s directions as best she can. I am satisfied that this father has, as he says, some aspects of his life which would enrich the life of the child. I make no absolute finding that the child is at risk in the father’s care, as the mother asserts and as X has at times described. However, this is a case where to pursue any other form of order other than those which appear at the commencement of these Reasons and draw the consent of both the ICL and the mother, would be to expose this child to further conflict between his parents at a time when his focus, quite properly, is on his future as an apprentice tradesman and the life that, hopefully, the completion of his apprenticeship will create for him.
The father will obtain a copy of these Reasons as is appropriate. It is to be hoped at some point in time in this child’s life he may see some value in engagement with his father in a more mature way. He may do so in the hope that his father’s attitude to him when he is a young adult might be different than what he had perceived his father’s attitude to him was as a child. I am satisfied it is in the best interests of the child that he live with the mother and that she have sole parental responsibility. In a practical sense, the mother and father are unable to communicate at any real level, and that is a principal reason for departing from the presumption of equal shared parental responsibility.
Based on the wishes and the other aspects of the case which I have referred to in these ex tempore Reasons, I do not make an order for any prescribed time between the child and the father of a physical nature. To do so could be merely setting up the child for failure and/or, even more importantly, creating an environment where the Court might be asked to consider, if such arrangements broke down again, applications for contraventions. A valid consideration under s 60CC(3) in this case is making orders least likely to lead to further proceedings. The orders which appear at the commencement of these Reasons are in the best interests of the child at this time. I discharge the ICL.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 28 June 2023
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