REECE & SEABROOK

[2020] FCCA 1588

FEDERAL CIRCUIT COURT OF AUSTRALIA

REECE & SEABROOK [2020] FCCA 1588

Catchwords:
FAMILY LAW – Parenting – mature child expressing views about a change of residence – history of pressure on the child by the father – history of violence by the father – two previous rounds of litigation – any trial would occur when the child is in Year 11 – potential benefit to child from a change of residence for less than two years before he becomes an adult is outweighed by the potential detriment to the child from further litigation – application dismissed in accordance with the principles in Rice and Asplund.

Cases cited:

Rice & Asplund [1979] FLC 90-725

SPS & PLS (2008) FLC 93-363
Marsden & Winch (2009) 42 Fam LR

Applicant: MR REECE

Respondent: MS SEABROOK

File Number: CAC 2288 of 2019

Judgment of: Judge Hughes

Hearing date: 28 May 2020

Date of Last Submission: 28 May 2020

Delivered at: Canberra

Delivered on: 16 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Trim

Solicitors for the Applicant: Westminsters

Counsel for the Respondent: Ms Davis

Solicitors for the Respondent: Alliance Law

Counsel for the Independent Children's Lawyer: Ms Cruise

Solicitors for the Independent Children's Lawyer: ACT Legal Aid

ORDERS

1. The father's application filed on 8 November 2019 seeking a change of residence of the child, X, born 2005, is dismissed in accordance with the principles in Rice and Asplund [1979] FLC 90 – 725.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 2288 of 2019

MR REECE

Applicant

And

MS SEABROOK

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in which the applicant father seeks orders for the 15 year old child of the parties to live with him.  The mother seeks a summary dismissal of the father's application in accordance with the principles in Rice and Asplund [1979] FLC 90-725.

Background

1. The applicant father is a 43 year old professional.  The mother is a 43 year old professional.

2. The parties married 2001 and separated in February 2009.  They were divorced in May 2010.

3. The parties’ only child, X, was born 2005.

4. A month after the parties separated, the father commenced proceedings seeking orders for the child to live for equal time with each parent in a week about arrangement.  At that time, X was three years old.  During those proceedings a family report was prepared by family consultant, Ms A, dated 10 July 2009.  Ms A interviewed both of the parties and observed each of them with the child who was too young to be separately interviewed.  Ms A also interviewed the paternal grandmother and the maternal grandfather.

5. Each party gave a history of their relationship to Ms A.  The mother alleged the father had been violent to her from shortly after marriage until separation.  She said his violence was the reason for an earlier separation of the parties between June and September 2008.  She said the violence included the father beating her and covering her mouth to stop her screaming.  She said she often had bruising to her face and body as a result of his violence.

6. The mother and maternal grandfather both told Ms A that, in February 2009, the father also assaulted the maternal grandfather by punching him to the face.  The maternal grandfather was holding the child at the time and the punch caused him to drop the child.  The mother said this incident lead to the final separation of the parties. The father was subsequently convicted of assault and of breach of family violence order arising from the incident.

7. Ms A said the father responded to the allegations of violence “by reframing and minimising” and saying he did not know how to disprove the claims.[1]  Ms A reported that, when challenged, the father conceded he had pushed the mother but said she had also occasionally thrown things at him.  He agreed the police were called to the home by a neighbour on one occasion.  Ms A concluded that the father failed to accept responsibility for his actions.[2]

   [1] Family report 10 July 2009 at paragraph 4

   [2] Ibid paragraph 11

8. The mother told Ms A that she did not think the father would ever deliberately harm the child but might hurt him because, when angry, the father becomes “blind with rage” and is incapable of controlling himself.  She told Ms A that the child had witnessed his father assaulting her and had tried to intervene but the father had roughly pushed him away.  She said that, although the child was fully toilet trained, in January 2008 he began wetting himself which the mother attributed to his exposure to his father's violence.

9. The father told Ms A that some of the mother’s reports of his violence reflected misunderstandings during a time when he was suffering from cancer.  He said he was confident the child would cause a reconciliation in the parental relationship.  The mother told Ms A that she would never reconcile with the father.

10. At the time of the family report interviews in June 2009, the child was spending time with his father for three hours, three times a week supervised by a professional supervision agency and extra time each Sunday at a children's indoor play centre on condition that the father was not to leave the centre with the child.

11. Ms A read the reports from the professional supervisor.  These reports, combined with her own observation of the father and child together, resulted in her concluding that the child had a strong and loving relationship with his father and that the father was able to meet the child’s needs during their time together.

12. Ms A concluded from her observations of the mother and child together that the child has a positive, gentle and sensitive relationship with his mother who was his primary caregiver. 

13. Ms A recommended that the child remain living with his mother and continue to have professionally supervised time with his father until November 2009, then unsupervised daytime contact and, from January 2010, one overnight visit each week.  She recommended that from mid-2010 the visits move to every second weekend but be increased to two nights at a time.  She recommended that the father attend an anger management course and undergo individual counselling, the mother obtain support from a community organisation and that both parents undertake a post-separation parenting program.

14. The report of Ms A was never tested as the proceedings were resolved by final consent orders on 10 August 2009.  The orders provided for the parents to have equal shared parental responsibility and for the child to live with the mother.  They provided for the child to spend time with his father in a gradually increasing regimen, commencing with daytime only and building up to every second weekend, for three hours each Wednesday and school holiday time.  Handovers of the child were to occur at a police station.  Both parents were required to attend a post-separation parenting course and the father was required to complete an anger management course and provide a certificate of completion to the wife.  It was specifically noted that the orders were consistent with the recommendations of the family report.

15. In the course of the 2009 proceedings, orders had been made restraining the parties removing the child from Australia and placing the name the child on the Watchlist.  On 24 November 2009 the mother filed an application seeking to have those orders suspended to allow her to travel overseas with the child for a two week period in December 2009 and January 2010.  Those proceedings were resolved by consent orders on 14 December 2009, which allowed each party to take the child overseas on a two-week holiday and suspending the Watchlist order for the relevant periods.

16. On 30 July 2010 the mother commenced property proceedings.  Those proceedings were ultimately resolved by consent on 3 August 2011.

17. On 23 November 2012, the parties jointly filed an application for consent orders to permit each of them to travel internationally with the child and suspending the Watchlist order for the relevant periods.

18. On 12 November 2013 the mother filed an application seeking permission to relocate with the child to Canberra.  In March 2013 she had married Mr B and he lived in Canberra.  The application was resisted by the father.  During the course of the proceedings a further family report was prepared by psychologist and family consultant, Ms C.

19. Ms C interviewed both parties and the child and carried out an observation of him with each parent.  At the time of the interviews, the child was spending time with his father every second weekend and for three hours each Wednesday.

20. The father told Ms C he had previously agreed to the relocation provided he could still spend time with the child every second weekend and provided the child was at liberty to read his Bible at any time in his mother’s care.  He told Ms C that he had changed his mind and now thought it better for the child to live with him in Melbourne.  He told Ms C that the child’s views exactly matched his and he knew that because he had made his views known to the child who agreed with him.  He said he had encouraged the child to make those views known to her during the interview.  Ms C said the father did not consider that the child might be agreeing with him because that was the father's expectation.  Ms C said that, when she interviewed the child, he was, indeed, well versed in the issues between the parties and his father's views about them.[3]

    [3] Family report 6 February 2014 at paragraph 11

21. The mother told Ms C that she believed the child was hypersensitive to his parents’ needs and that he wanted to please his father in particular.  She said she believed the child was frightened of his father and felt he should agree with his views.  She was concerned about the pressure she believed the father was placing on the child about the issues.

22. Ms C interviewed the child alone.  She said X told her he was uncomfortable about coming to see her because he believed he had to make a choice between his father and his mother.  He said he had been told his decision would determine where he lived and that whatever he said would make one or other parent upset.  He told Ms C that he loved both parents and did not want to make a choice.  Ms C said he was relieved when reassured that he did not have to disclose any views.

23. Ms C said the child was able to identify positive attributes of each parent. She said he told her he had memories of the parental conflict but, since separation, his situation had improved considerably and he enjoyed spending time with his father and engaging in activities with him.  She formed the view from her conversation with the child that X was questioned by his father about events at his mother's home.  She commented that the boundaries between the child and his father seemed to be blurred.  For instance, in November 2013, the father had taken X with him to his cancer specialist and obtained advice that he was clearly in remission.  The father told Ms C that he and the child were able to rejoice together in the good news.  Ms C commented that he was diffident in his response to her question about whether it was advisable to take the child with him, especially if the outcome had been different.[4]

    [4] Family report 6 February 2014 paragraph 8

24. Ms C reported that, at the beginning of the observation session between the child and his father, X warmly and happily greeted his father and immediately reassured him, without prompting, that in his interview with Ms C he had supported his father’s view that it would be best for the current arrangements to continue.  Ms C told the father that X clearly loved both parents and was not asked to choose between his parents or whether to live in Canberra or Melbourne.  Despite this, the child again told his father that he wanted to stay in Melbourne and have alternate weekends and holidays with him, just as his father wanted.  Ms C said the child continued to instigate physical contact with his father and to reassure him of his affection and loyalty.  She said there was one point at which there was some tension in the air when a particular subject was mentioned.  Ms C said it was immediately evident at that point that the child had a fear of his father's reaction or disapproval.

25. Ms C said that the observation of the child with his mother indicated a qualitatively different relationship between the two.  She said there was a much more tender and open relationship and no evidence of the child being fearful of his mother.  She said the child spoke openly with her, teased her and appeared to feel free to be himself and to be a child.

26. Ms C reported her conclusion about the child's relationship with each parent as follows:

    …X’s relationship with his father is solid and fully formed.  However his relationship with his mother is his primary relationship and is consistent with having had a primary attachment to her.  There is a significant qualitative difference in his relationship with his parents, with X perceiving his mother as supportive and nurturing and whose emotional support he continues to need.  His relationship with his father is more functional and there is also love and affection, and acknowledgement of his father's strengths and a need to maintain his contact with him.  I observed that the child had a degree of fear of his father’s reactions and that he was concerned to please his father and tell him what he considered his father wanted...  [5]

    [5] Family report paragraph 45

27. Ms C concluded that the positive nature of the child's relationship with his father meant that the relationship would easily withstand the proposed relocation and any change to the frequency or length of time he spends with his father.

28. In relation to the child’s views, Ms C said the following:

    While Mr Reece believed that the child’s views were exactly the same as his, I have formed the clear opinion that any views expressed by X to his father would have been as a result of his father asking those questions and the child agreeing with his father because he would want to please him.  He told his father during the joint interview that he had expressed his wish to me that he wants things [to] remain as they have been.  I am also confident in my opinion that X wants to continue to live with his mother although X was not asked to make such a statement at interview because of his difficulty in expressing views which would appear to favour one or other of his parents.  Ms Seabrook had a much better understanding of the child's needs and feelings while Mr Reece had little awareness or was closed to the child's needs and responses. [6]

    [6] Ibid paragraph 46

29. Ms C ultimately recommended that X continue to live with his mother and that she be permitted to relocate with the child to Canberra.  She made recommendations about the amount of time the child should spend with his father.  She recommended against the child flying to Melbourne more than once each school term and suggested the father could instead travel to Canberra to visit the child.

30. The report of Ms C was never tested because, once again, final orders were made by consent on 18 March 2014 which permitted the mother to relocate with the child to Canberra.  The orders provided for the parents to have equal shared parental responsibility and for the child to spend time with his father, effectively, every second weekend during school term, alternating between Melbourne and Canberra and half of all school holidays.  This varied from the recommendations of the family report. 

31. On 8 November 2019 the father filed his application which commenced the current proceedings.  He said he was motivated to bring the application because of repeated requests by X to live with him.  The mother said she believed that any statements made by the child about living with his father were likely the result of pressure from his father rather than reflecting the child's true feelings.

32. On 30 January 2020 I made an order for the appointment of an independent children's lawyer.  Given the age of the child and the likely weight to be attributed to his views, there seemed a reasonable prospect of the matter being able to be resolved without the need for a final hearing if the child had strongly held views which could be communicated to the parents.

33. The matter did not resolve and on 31 March 2020 I listed the matter for a hearing of the mother's application that the proceedings be summarily dismissed.

The legal principles

1. In Rice and Asplund the Full Court of the Family Court of Australia set out the principles which apply when, after final parenting orders have been made, a court exercising family law jurisdiction is asked to entertain further parenting proceedings.  Evatt CJ set out the following principles with which Pawley SJ and Fogarty J agreed:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and material on which that order was based.  It should not lightly entertain any application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that…there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material… These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.[7]

   [7] In the marriage of Rice and Asplund (1979) FLC 90-725, pages 78-905–78,906.

2. It is now more than 40 years since the principles in Rice and Asplund were enunciated.  They have been the subject of discussion in numerous cases both at first instance and by the Full Court of the Family Court. 

3. In the case of SPS and PLS, Warnick J described how the preliminary determination is to be approached:

   Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”.  Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing.  Though sometimes unstated, the underlying conclusion will or ought to be that the interests of the child in not being subject to further litigation is more powerfully in the child’s welfare than to allow the application to continue.[8]

   [8] SPS and PLS (2008) FLC 93 – 363, at paragraph 81.

4. In Marsden v Winch (2009) 42 Fam LR 1 the Full Court comprising Bryant CJ, Flynn and Cronin JJ said that the principles were “founded on the notion that continuous litigation over the child or children is not generally in their interests.  It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children.”[9]  Their honours noted, however, that there would always be cases in which the particular circumstances required a court to reconsider the parenting arrangements despite final orders having previously been made.  They set out the matters which should be taken into account in determining whether or not further proceedings are justified.  They are as follows:

   (1)    The past circumstances, including the reasons for decision and the evidence upon which it was based.

   (2)    Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3)    If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.[10]

   [9] At paragraph 49.

   [10] At paragraph 50.

1. Their Honours set out a two-step process to be followed in which there was a requirement:

   (1)    for a prima facie case of changed circumstances to have been established; and

   (2)    for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on hearing. [11]

   [11] At paragraph 58.

2. The father relied on a range of factors to demonstrate there had been a significant change of circumstances.  The first was the age of the child and what were said to be his strongly held views.  The father pointed out that the last time the child was interviewed by a family consultant to obtain independent evidence of his views, X was aged only eight.  Seven years have elapsed since then.  I agree that the considered views of a 15 year old in relation to where he lives would normally be very weighty and often determinative of proceedings.  Assuming the father's evidence of the child’s views is accepted, this would amount to a significant change of circumstances. 

3. According to the father’s affidavit material, over the last five years the child has said on more than 50 occasions that he wanted to live in Melbourne.  The number of conversations referred to by the father raises concern as it may indicate the father has been discussing the issue with the child to an inappropriate extent.  The father gave particulars of some of those discussions.  One occurred on 17 September 2018 after an alleged altercation between the child and his mother and stepfather, to which I will return.  One occurred during the school holidays in October 2018 and another occurred during an overseas trip in December 2018.  Each of the other examples given by the father occurred in conjunction with the child engaging in some enjoyable activity with his father in Melbourne.[12]

   [12] The father’s affidavit filed 25 May 2020 at paragraph 13.

4. The mother said that she believed the father was putting pressure on X to move to Melbourne and was deliberately trying to influence his views.  She said that when the father first sent an email to her in September 2018 about X relocating to Melbourne, she spoke to the child about it.  She asked whether he knew anything about it.  She said X responded “Yes, I want to move to Melbourne, you were nice to me until I was three years old and then you’ve been mean and nasty to me”.[13]

   [13] The mother’s affidavit filed 27 February 2020 at paragraph 68.

5. The mother said there was no further discussion between her and the child until the father commenced these proceedings.  The mother then raised the issue again with the child and asked whether he wanted to move to Melbourne.  She said his response was “Yeah, I’ve been with you for so long, it’s fair that I live with dad now”.[14]

   [14] Ibid paragraph 91.

6. The mother said she was concerned that the child was looking after his father's needs and had accepted that it was fair for him to live with his father, rather than considering what was best for himself.

7. The second matter relied upon by the father to establish a significant change of circumstances is the relationship between the child and his stepfather, Mr B.  The father said that the child has been fearful of his stepfather since an altercation occurred between them in 2013.  This appears on the evidence not to have been a physical altercation.  The father said the child told him he had made a mistake and his stepfather required him to repeatedly apologise for it.  He said the child complained that, although he had repeatedly apologised when requested by his mother, his stepfather unnecessarily reprimanded him.  The father said that, following this incident, the child told Ms C in 2014 that he wished to stay in Melbourne.  I have already discussed the contents of Ms C’s family report.  She said that that in her separate interview with the child, X expressly wished not to express a view about where he lived and both parents were advised of that.  Nevertheless, the child told his father in front of Ms C that he had told Ms C he wanted to live with him.  It seems that in the present proceedings the father recalls what the child said to him in the presence of Ms C, but not the balance of the report which made it clear that X did not, in fact, express that view to Ms C.  In any event, the particular issue which the father believed lead to the child expressing that view occurred prior to the final consent orders in 2014 and does not amount to any change of circumstances.

8. The father said there were further altercations between X and his stepfather on 9 September and 16 September 2018.  The child sent his father an email on 17 September 2018 in which he set out his version of events.  He said that on 9 September 2018 his stepfather collected him from the airport when he returned from a weekend with his father.  His mother had been overseas and was due to return to Australia later that evening.  X told his father that his stepfather bought McDonald’s on the way home from the airport and when he, X, tried to take his drink into his bedroom that night, his stepfather blocked his way.  He described some mutual pushing and said his stepfather then grabbed his wrist and squeezed it as hard as he could.  He complained that this really hurt him because he had sprained his wrist two months earlier and had broken the same wrist two years earlier.  He said that, after that, his stepfather left him alone.  X told his father that, later that evening, his stepfather collected his mother from the airport.  When she came home she saw the child had his computer and phone and asked him why he was not in bed.  X said they got into an argument but it was eventually resolved.

9. In the email, X also told his father that on 16 September 2018 his mother told him to put on his watch but he was annoyed with her so he did not do it.  It is common ground that X suffered some sort of seizure in March 2018 and is required to wear a special seizure alert watch at night time.  According to X’s email to his father, his mother threatened him on 16 September that, if he did not wear the watch, she would confiscate his phone.  He put the watch on so loose that it was not touching his skin.  When his mother told him to make sure it was touching his skin, he turned the watch on its side.  His mother then told him his phone was confiscated.  He threw the watch at his mother.  He said his mother then pushed him off the bed, causing him to land on his Rubik’s cube and causing him pain in his leg.  He said he went into his mother's bedroom looking for his phone and his mother eventually became very angry and hit him.  He said his stepfather also pulled his hair.  The child told his father that his mother said to him that evening “You’re becoming just like your father, a monster and a liar.”  He said he replied that it was “better than becoming like you, a stupid idiot”.  He said his mother tried to smack him but he jumped up and grabbed her wrist and then his stepfather “slammed me into a wall”.  He said his stepfather was nice to him the next day and apologised but his mother kept on being mean to him.  He ended his email with “Can I please go to Melbourne”.[15]

   [15] Annexure AR3 to the father’s affidavit filed 8 November 2019.

10. The mother’s husband, Mr B, has a son, Z, two years younger than X.  The mother said in her affidavit material that she and Mr B agreed from the beginning of their relationship that they would not impose any punishment for the other’s child.  She said X had never made any comments to her about being scared of Mr B and she had never observed anything which would cause her to think that he was.  The mother said she and X have a close relationship and, whenever she travels away from Canberra, she calls him every day.  She said she travelled to Country D on 26 August 2018 for a business trip but, four days later, on 30 August 2018, her father died and she travelled to Country E.  Her return to Canberra was delayed by these events until 9 September 2018, which was much longer than she originally planned to be away.  She said that, because of the arrangements for her father's funeral, she was unable to call X every day.

11. The mother said that when her husband collected her from the airport on the evening of 9 September 2018, he said to her “X was arguing with me about dinner and then he tried to punch me.  I blocked his punch by holding his wrist to prevent the situation from escalating.  You need to talk to him”.  She said that she did ask X what happened when she came home and he objected to that being the first thing she said to him after being away so long.  She said he then said “You didn’t even call me every day while you are away.  Mr B was being mean to me and talking nonsense”.

12. The mother said that when she returns from trips, she usually tries to spend extra time with X and make special food for him until they settle back into their usual day-to-day routine.  She said that both she and X were grieving the loss of her father at this time and she had to return to work straight away, so they could not engage in their usual routine.

13. The mother said that on the night of the second incident on 16 September 2018, X was refusing to wear his seizure monitoring watch and then refused to go to bed on time.  She said she insisted X put the watch on and X became upset and yelled various insults at her including “You are just a failed abortion”.  She said she told X she was confiscating his mobile phone and laptop but he refused to hand them over and she pulled them from his hands.  She said X followed her to her bedroom and was banging on the bedroom door calling her names such as “Bitch” and “Nasty piece of work”.  She said she told him to go back to bed and she would return his devices in the morning.  She said X then sat on a chair in her bedroom and then on the floor and refused to go back to bed.  She said that, at one point while she was speaking to him, X suddenly became very upset and lunged at her as if he was going to hit her.  She said her husband jumped between them and pushed X away.  She said X stumbled backwards but immediately regained his balance.  She said that no part of him hit the wall.  She said he stayed in the bedroom for a bit longer, asking for his devices, before eventually returning to his own room for the night.

14. The mother specifically denied pushing X off his bed or hitting him.  She said the email X sent to his father on 17 September 2018 was immediately after a phone call with his father that evening.  She said, a few days, later X apologised for calling her names and was clearly upset about it.  Although the father said he reported the incidents to ACT Child and Youth Protection Services, the mother said she had had no contact from them.

15. The mother said that the period between September 2018 and October 2018 was not a good period for her relationship with X.  She said he occasionally refused to get ready for school or to attend school.  She said, that on one occasion, he refused to get ready to go to the airport to fly to Melbourne to see his father unless she promised to buy him a new phone which she would not do.  She said that, after October 2018, things gradually settled down and there had been no further behaviour of that sort.  She said she and X still occasionally have disagreements but they do not escalate.  She said that X is doing well at school, is engaged in extracurricular activities including music and cricket, and has a happy and settled life in Canberra.  She said she is worried about the disruption to his life a move to Melbourne would cause.

16. During the hearing of this matter on 28 May 2020, Counsel for each parent referred to correspondence sent to them by the independent children's lawyer.  To make sense of the comments I asked whether there was any objection to me seeing the correspondence.  There was not.  The letter dated 26 May 2020 was received into evidence as exhibit A.  The body of the letter reads as follows:

    I confirm that I met with X via Zoom on 21 May 2020.

    My discussion with X was mainly to provide him with information about my role as the Independent Children's Lawyer (ICL) and to provide him with an opportunity to participate in the proceedings (or to opt out of doing so) by giving me an indication of his views and wishes.

    X was able to describe to me positive aspects of time in both Canberra and Melbourne and he indicated he did not have any current safety concerns in either house.  X obviously loves and respects both his parents and appears to me to be conscious of not hurting either parent's feelings.  X's preference as communicated to me is that he does not mind which way the court – or the parties – decide.  If pressed for a preference, X indicated he would nominate living in Melbourne with his father.

    In my view, X’s presentation and his discussion with me was consistent with the observations set out in the Family Law Report of Ms C dated 6 February 2014 ('the Report') and set out at annexure A of the mother's affidavit filed 27 February 2020.  I note that Report was done after the review of Court documents, interviews with the parties and observations of the parties with X, which is very different from my meeting with X.

    In my view, I cannot see any compelling reason at this time – either arising out of my meeting with X or out of the parties' evidence – for the conclusions reached by Ms C at paragraph 51 of her Report to be revisited.

    For this reason, and subject to hearing the submissions of the parties' legal representatives and her Honour’s view, my preliminary view is that I do not support the application made by the Father to change X’s residence.

17. The letter was clearly written to the parents to report on the independent children’s lawyer’s conversation with X, to indicate her attitude to the current proceedings and, if possible, to try to help the parents resolve the proceedings.

18. Normally the evidence of a child’s views would be presented through a family consultant or other child expert who would also assess whether the child was subject to any pressure and whether the child had sufficient maturity and understanding of the long term implications of any views expressed to have those views accorded significant weight.  The letter from the independent children’s lawyer to the parties was not intended to form part of the evidence but, following my enquiry, was tendered without objection and neither party suggested the report of the independent children’s lawyer’s conversation with the child was inaccurate.  Although this is not the way the Court would normally receive information about the child’s views, it is the only independent information I have at this stage.

19. The way X’s views were expressed to the independent children’s lawyer suggests significant ambivalence in his views with a slight preference for living in Melbourne with his father.

20. The mother is not prepared to accede to the views expressed by X because, she said, she is worried about the father's history of violence, including towards X, is concerned the father may be violent to his current wife and that the father is, in any event, a poor role model for the child in terms of his lack of respect for the mother which, she believes, is reflected in the child's attitude to her when he returns from spending time with his father.  These are all matters which would be explored in a trial if the application proceeds.

21. If the matter were to proceed a final hearing, it is likely to be more than a year away, if listed in the usual course.  The child is due to commence Year 11 in 2021.  If the father’s application was successful, a change of residence partway through Year 11 is unlikely to be in the child’s best interests.  In order for the matter to be heard before the end of 2020, significant priority would have to be given to it ahead of other matters, many of which contain serious allegations of risk to children.  I am not persuaded that the matter warrants that level of expedition, especially given the degree of ambivalence expressed by the child to the independent children’s lawyer about his views.

22. Counsel for the father pressed for a family report to be prepared in the matter.  This may be useful but it may also create pressure on the child to express a view.  In any event, unless the parties agree to accept the recommendations of a family consultant, the matter would still need to go to trial.  The mother does not dispute that the child has said that he wishes to live in Melbourne as he said that to her on two occasions.  However, she submits that it would not be in the child's best interest to implement those views, even if they were firmly held by him.

23. The child will be 18 in less than three years.  By the time a trial occurred, there would be less than two years before X reaches adulthood. 

24. I am satisfied that the age of the child and his expression of some desire to live with his father represents a significant change of circumstances.  The first step of the two-stage process is, therefore, satisfied.  However, in the particular circumstances of this case, I am not satisfied that the further litigation required to change the arrangements is warranted.  In summary, my reasons for reaching that view are as follows:

    a)The views expressed by the child to both parents in September 2018 were during a period of disharmony between the child and his mother and stepfather which was, on the mother's evidence, short lived.

    b)The child’s statement to his mother after the father commenced proceedings in November 2019 was expressed in terms of what was “fair” to his father.  This raises issues about whether they are a true reflection of the child's desires.  The history of apparent pressure on the child in previous years raises the prospect of the child continuing to be influenced by his father.

    c)The views expressed to the independent children's lawyer indicated a significant level of ambivalence, albeit slightly preferring a change of residence.

    d)The history of violence by the father against the mother and maternal grandfather raises the issue of whether the father would be an appropriate role model for his son if X lived with him.

    e)The views of the child must be weighed in light of the evidence of other matters relevant to his wellbeing including the evidence of the father’s violence.  All of these matters would need to be explored in a final hearing which cannot occur for approximately 12 months, at which time the child will be halfway through Year 11.  The hearing is likely to be an unwelcome distraction from the child's studies and not likely to serve his best interests.

    f)The potential benefit to be gained by the child from the litigation is the opportunity to live with his father for the remaining period of his childhood which, by the time of a trial, will be less than two years.  That benefit, in my view, is significantly outweighed by the detriment likely to be visited upon the child by further litigation, including the likely disruption to him at an important time in his education.

25. The father presented some other matters which he said amounted to a change of circumstances.  They included that the father had remarried and moved to a new home.  That is not a significant change of circumstances.  It is a common event following the breakdown of the marriage and would not warrant further litigation.

26. The father also alleged that, since the restrictions imposed in order to deal with the COVID-19 pandemic, the mother had refused to allow the child to travel to Melbourne.  It is difficult to assess this matter as it was only raised by the father in the last of his three affidavits, filed on 25 May 2020, three days before the interim hearing, and the mother did not file any further material in reply.  The father annexed to that affidavit his solicitor’s letters to the mother’s solicitors about the mother’s refusal to send the child to Melbourne during the pandemic.  None of the mother’s responses are annexed.  However, I infer from the content of the letters from the father's solicitors that the mother wanted to wait for the COVID-19 restrictions to ease before X resumed travelling to Melbourne and suggested that the father come to Canberra for the visits instead.  This is not a matter which influences my determination as, prior to the pandemic, there is no suggestion that the mother had ever withheld X from spending time with his father.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Associate:

Date: 16 June 2020