Robb and Tillett and Anor
[2016] FCCA 3370
•23 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROBB & TILLETT & ANOR | [2016] FCCA 3370 |
| Catchwords: FAMILY LAW – Parenting – best interests – mother failed to participate in final hearing – child to live with father and spend time with mother. |
| Legislation: Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA, 65DAA |
| Cases cited: Goode v Goode (2007) 36FamLR 422 MRR v GR [2010] HCA 4 |
| Applicant: | MS ROBB |
| First Respondent: | MR TILLETT |
| Second Respondent: | MS A ROBB |
| File Number: | TVC 102 of 2010 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 12 December 2016 |
| Date of Last Submission: | 13 December 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 23 December 2016 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr Raeburn |
| Solicitors for the First Respondent: | Mobbs & Marr Legal |
| Second Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Ms Mayes |
| Solicitors for the Independent Children's Lawyer: | Murray Lyons Solicitors |
ORDERS
All previous parenting orders are discharged.
The Applicant father, MR TILLETT have sole parental responsibility for the child, X born (omitted) 2005 including but not limited to:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name; and
(e)Changes to the child’s living arrangements.
The child shall live with the father.
The father shall inform the mother about decisions regarding the child in a timely manner.
The child shall spend time with the mother during school terms at all times as agreed, and failing agreement as follows:
(a)From after school on Friday until before school on Monday (or Tuesday if Monday is a public holiday or pupil free day) each alternate week;
(b)Such time to commence on the second Friday of Term 1 in 2017;
(c)Thereafter such time to recommence on the first Friday of each school term.
In the event that the child is not otherwise spending time with the mother on Mother’s Day then the child shall spend time with the Mother from 1pm until 7pm.
In the event that the child is not otherwise spending time with the father on Father’s Day then the child shall spend time with the father from 1pm until 7pm.
In the event that the child is not otherwise spending time with the mother on ANZAC Day, then the child shall spend time with the mother from 3pm the day before ANZAC Day until 8.30am the morning after ANZAC Day if a school day or from 5.30pm the day before ANZAC Day until 9am the morning after ANZAC Day if a non-school day.
In the event that the child is not otherwise spending time with the mother on the child’s birthday then the child shall spend from 3pm until 6pm with the Mother if a school day or from 1pm until 7pm if a non-school day.
In the event that the child is not otherwise spending time with the father on the child’s birthday, the child shall spend from 3pm to 6pm with the Father if a school day or from 1pm until 7pm if a non-school day.
The child shall spend time with the mother from 3pm on the birthdays below until before school the following day if a school day or from 9am on those birthdays until 10am the following day if a non-school day:
(a)The Mother’s birthday on (omitted);
(b)A’s birthday on (omitted);
(c)Ms I’s birthday/anniversary on (omitted); and
(d)The grandmother’s (Ms A Robb) birthday on (omitted).
The child shall spend time with the Father from 3pm on the birthdays listed below until before school the following day if a school day or from 9am on those birthdays until 10am the following day if a non-school day:
(a)The father’s birthday on (omitted);
(b)Ms M’s birthday on (omitted);
(c)B’s birthday on (omitted); and
(d)D’s birthday on (omitted).
That the child shall spend time with the mother in the 2016 Christmas school holidays as follows:
(a)The mother’s time with the child is to be supervised by one of the following supervision services:
(i)(omitted) Children's Contact Centre;
(ii)Ms J; or
(iii)(omitted) Family Matters;
(b)The father shall forthwith make arrangements with one of the services listed at subparagraph 13 (a) above, for the child to spend time with the mother once per week for up to four hours, provided such availability exists with one of such services;
(c)The parties will attend any intake sessions and complete all documents required by the service nominated by the father in a timely manner; and
(d)The mother is to pay the costs of any such supervision.
The child shall spend time with the father for the second half of all Queensland Gazetted school holiday periods except for the Christmas Holiday period in even numbered years and shall spend time with the mother for the first half of all Queensland Gazetted school holiday periods except for the Christmas Holiday period in even numbered years.
The child shall spend time with the father for the first half of all Queensland Gazetted school holiday periods except for the Christmas Holiday period in odd numbered years and shall spend time with the mother for the second half of all Queensland Gazetted school holiday periods except for the Christmas Holiday period in odd numbered years.
For the Christmas holiday period in odd numbered years the child shall spend equal amounts of time with the father and mother and shall spend time in the first half of the Christmas school holiday period less one week with the father and shall spend the remainder of the Christmas school holiday period with the mother until one week prior to the commencement of the school term at which time the child shall return to live with the father.
For the Christmas holiday period in even numbered years the child shall spend equal amounts of time with the father and mother and shall spend the first half of the Christmas school holiday period with the mother and the second half of the Christmas school holiday period with the father.
If pursuant to these Orders the child would not otherwise spend time with the father on Christmas Day then the child shall spend time with the father from 1pm Christmas Day until 1pm Boxing Day.
If pursuant to these Orders the child would not otherwise spend time with the mother on Christmas Day then the child shall spend time with the mother from 1pm Christmas Day until 1pm Boxing Day.
As from the third week of the 2017 school term, the child shall have telephone contact with the mother each Wednesday and Friday from 7pm until 7.30pm with the mother to initiate the phone contact.
The father shall ensure that:
(a)The child is able to speak to the mother in a quiet environment;
(b)The call is not on speaker phone or recorded;
(c)If the call is missed, the child return the call as soon as possible; and
(d)The call be ended at the child’s request.
Unless otherwise agreed, changeovers shall occur at school on days the child is attending school or otherwise at McDonald's (omitted).
Ms M shall be permitted to collect the child at the commencement of time or return the child at the conclusion of time as determined by the Father.
The maternal grandmother is at liberty to spend time with the child whilst the child is spending time with the Mother pursuant to these Orders, including any supervised time.
Neither parent will denigrate the other parent or their family members in the presence of or within hearing of the child, or allow another to do so.
The parties are to encourage and not undermine the child’s relationship with the other party.
These Orders shall be sufficient authority to the child’s school(s), extra-curricular activity providers and medical practitioner(s) to ensure that the parents are at liberty to make any enquiries s/he wishes in regard to the child’s schooling and progress and health, noting that this Order does not impact upon the father’s sole parental responsibility for the child.
Pursuant to section 68B of the Family Law Act 1975, the mother is restrained by injunction from:
(a)Discussing or attempting to discuss any parenting proceedings concerning the child or any documents connected to, arising out of or having been filed in any parenting proceedings concerning the child, with the child by any means whatsoever, including but not limited to discussions via telephone, video chat, email, social media, face to face, letter and/or through a third person by any means whatsoever.
(b)Showing or attempting to show any documents connected to, arising out of or having been filed in any parenting proceedings concerning the child, with the child by any means whatsoever, including but not limited via telephone, video chat, email, social media, face to face, letter and/or through a third person by any means whatsoever.
(c)Encouraging, allowing, causing, permitting, or otherwise acquiescing to the child entering the mother’s care and/or control except as strictly provided for in these orders. This includes, but is not limited to, encouraging, allowing, causing, permitting, or otherwise acquiescing to the child entering into any residence where the mother may live or otherwise be present other than when the mother is spending time with the child pursuant to these orders.
(d)Causing, permitting, encouraging or otherwise enciting any person including any member of her family from approaching the child, communicating with him or otherwise taking the child into their care or control without the prior agreement of the father or otherwise in accordance with these Orders.
The father has leave to provide:
(a)These Orders;
(b)The Reasons for Judgment;
(c)The report of Dr B;
(d)The Family Report of Ms S;
(e)The Family Report of Ms M dated 11 March 2016; and
(f)The Family Report of Ms M dated 15 September 2016.
to the Department of Communities and/or the Queensland Police, with a request that these documents be considered as part of any child protection investigation or any criminal complaint made by, or in relation to the child.
The father has liberty to provide to the Principal of any school which the child may from time to time be enrolled in a copy of:
(a)These Orders; and
(b)The Reasons for Judgment.
Any Application in a Case, Initiating Application, Contravention Application and/or Recovery Order Application filed by the mother within 24 months of the date of these Orders is to be listed before Judge Obradovic.
The mother may not file any application or take any further step in any proceedings for parenting orders in relation to the child without leave of the Court first had and obtained.
The Independent Children’s Lawyer is discharged.
Pursuant to Section 65DA(2) 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 party contravenes these Orders are included in these Orders, annexed hereto.
IT IS NOTED that publication of this judgment under the pseudonym Robb & Tillett & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 102 of 2010
| MS ROBB |
Applicant
And
| MR TILLETT |
First Respondent
| MS A ROBB |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are final parenting proceedings in respect of the only child of the parties, X born on (omitted) 2005.
The matter has a complex and long history, and unfortunately for X, his parents have been embroiled in parenting proceedings for more than half his young life. The conflict between the parents is high.
The family dynamics in the parents’ households are also complex, with X having a number of half-siblings and step siblings.
Even the final hearing itself was not without difficulty, and proceeded in quite extraordinary circumstances. What occurred at final hearing is set out in some detail later in these Reasons.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
The central enquiry is for the Court to determine the outcome that will be best for the child.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and secondary considerations which the Court is to take into account in determining what is in the best interests of the child. In applying the primary considerations[1], the Court is to give greater weight to the consideration set out in paragraph (b).
[1] Namely, the considerations set out in s60CC(2)
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[2]. The Court may include in the order any safeguards[3] that it considers necessary for the safety of those affected by the order.
[2] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[3] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA(1) which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents[4]. Section 65DAA(1) is expressed in imperative terms.[5]
[4] s65DAA(2)
[5] MRR v GRR at
The Full Court in Goode v Goode[6] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[7] affirmed the legislative pathway.
[6] (2007) 36 Fam LR 422, (2006) FLC 93-286
[7] [2010] HCA 4
In Starr & Duggan[8] Boland, Thackray & Watts JJ stated :
…. the legislation does not mandate consideration of the relevant sections in any particular order.
The Evidence in the Proceedings
[8] [2009] FamCAFC 115 at [38]
The Mother
The mother, who was the Applicant in the proceedings did not participate in the final hearing and the matter proceeded on an undefended basis as against her.
The Maternal Grandmother
The maternal grandmother, who was the Second Respondent, did not participate to the conclusion of the final hearing.
Her application for time with the child was dismissed.
The Father
The father, who was the Respondent in the proceedings, in summary sought orders that he have sole parental responsibility, that the child live with him and after a short period of supervised time, that the child spend time with the mother on alternate weekends and during school holidays.
The father’s final position with respect to orders was in line with the position of the Independent Children’s Lawyer.
The father relied upon the following documents:
a)Amended Response filed 8 August 2016;
b)Affidavit of MR TILLETT filed 18 November 2016;
c)Affidavit of MR TILLETT filed 12 December 2016; and
d)Affidavit of Ms M filed 18 November 2016.
The Independent Children’s Lawyer
The Independent Children’s Lawyers sought orders[9] which the father ultimately adopted, and which are set out later in these Reasons.
[9] Which were set out in a short minute handed up
The Independent Children’s Lawyer relied upon the following documents:
a)Affidavit of Ms S dated 8 December 2010;
b)Affidavit of Mr C dated 28 July 2016;
c)Affidavit of Mr C dated 31 October 2016;
d)Affidavit of Mr C dated 1 November 2016; and
e)Affidavit of Dr B dated 12 December 2016
Documents Tendered
The following documents were tendered and became Exhibits in the proceedings:
a)Exhibit 1 – Email correspondence from the Applicant mother dated 12 December 2016 and 13 December 2016, letter from the (omitted) Hospital dated 12 December 2016 and facsimile from the (omitted) Medical Centre dated 13 December 16;
b)Exhibit 2 – Two reports of Ms B dated 12 December 2016;
c)Exhibit 3 – Family Report of Ms B dated 11 March 2016;
d)Exhibit 4 – Family Report of Ms B dated 15 September 2016; and
e)Exhibit 5 – Tender Bundle of Subpoena material collated by the Independent Children’s Lawyer.
Chronology
Set out below is a detailed chronology, of not only the relevant procedural matters[10] but also some of the relevant facts[11]:
[10] Mostly as evident from the Court file; however, the chronology does not contain all of the orders made nor steps taken by the parties in the proceedings
[11] Noting that the matter was heard on an undefended basis, these Reasons do not set out a full chronology of the parties’ history, which the Court had before it as contained in the three Family Reports, the evidence in the father’s case and the Exhibits.
a)On (omitted) 1940 the Second Respondent was born.
b)On (omitted) 1973 the Applicant mother was born.
c)On (omitted) 1974 the Respondent father was born.
d)On (omitted) 1978 the father’s current wife, Ms M was born.
e)On (omitted) 1993 C (mother's child from previous relationship) was born.
f)On (omitted) 1997 A (mother's child from previous relationship) was born.
g)The parties met in late 2000 and were married on (omitted) 2004.
h)On (omitted) 2005 the subject child of these proceedings X was born.
i)The parties separated in June 2009.
j)Upon separation, the child lived with each parent for varying periods of time. The mother subsequently relocated with the child (and A) to New South Wales without the father’s consent.
k)On 1 February 2010 the father filed an Initiating Application in parenting matters for X and A, seeking a location order; and the return of X to (omitted).
l)On 5 May 2010 the mother filed a Response and Affidavit, where she alleged that she moved away because of a fear of violence from her new partner (Mr K) and she sought an Order that the child reside with her in New South Wales.
m)On 7 May 2010 Interim Orders were made by the Court, including a recovery order and that both A and X be forthwith returned to the father in (omitted). Upon the children returning to (omitted), the children were to live with the father, provided however that should the mother return to (omitted), then the children live with each of the parents on a 9/5 split. An independent children’s lawyer was appointed to represent the interests of A and X.
n)On 12 May 2010 the mother filed a Notice of Appeal against the Orders of 7 May 2010 alleging:
i)Pre-judgment;
ii)No right of reply – cut off when trying to explain;
iii)No orders given for mother staying New South Wales for access to children – right taken away; and
iv)Police and DOCS investigation re children's safety.
v)Her grounds of appeal were:
§Magistrate failed to give any time for mother to contact or visitation rights, clearly stated cannot return to (omitted);
§Pre-judged before second hearing – ready to sign order;
§Accepted evidence attributed evidence not applicable to mother, another person’s;
§Continued to accept Affidavits ½ hour before Court from Applicant, respondent not given opportunity to read/respond;
§Magistrates insinuated towards me however did not give me chance to reply i.e. living conditions and schooling;
§Accused me of my eldest child's erratic change in behaviour was due to me informing him of Court proceedings. Failed to read counsellor's report; and
§Police investigation following new evidence.
o)On 14 May 2010 the mother sought a stay of the orders made on 7 May 2010.
p)On 21 May 2010 the mother's application for stay was dismissed insofar as it relates to X, and on 24 May 2010 the orders in relation to A were stayed. A further recovery order with respect to X was made.
q)In July 2010 the mother's Appeal is dismissed for non-compliance with the Rules.
r)On 2 July 2010 the father filed an Application in a Case seeking suspension of the mother's forthcoming holiday time with X.
s)On 6 July 2010 orders were made suspending time between X and the mother.
t)On 2 December 2010 the Family Report of Ms S was completed.
u)On 9 December 2010 orders were made for X to spend time with the mother and for the child to be returned to the father on 10 January 2011. Trial directions for the preparation of the matter for hearing were also made.
v)On 14 January 2011 the father filed an Application for Contravention against the mother for failing to return X and an Application in a Case for a recovery order in relation to X.
w)On 20 January 2011 the mother filed an Application in a Case seeking an order that X remain living with her in New South Wales.
x)On 28 January 2011 the Court heard the mother's Application which was dismissed. A recovery order was made for X to be returned to the father. Furthermore, the operation of all orders in relation to X spending time with the mother and communicating with the mother were suspended. A costs order against the mother in the amount of $2,500 was made.
y)On 12 April 2011 the father's Application - Contravention was heard. The mother failed to appear and the Court made orders in her absence. The contravention was proven, but no penalty was imposed. The mother was ordered to pay the father’s costs fixed in the sum of $8250.00 within 35 days. The matter was listed for final hearing on 19 July 2011 in Townsville.
z)On 19 July 2011 the proceedings were determined on a final basis, but undefended. Final orders were made as follows:
i)X shall live with the Father.
ii)The father shall have sole parental responsibility for X.
iii)The father will inform the mother about decisions regarding X and the father will consult with the mother prior to the exercise of any major long-term decisions regarding the said child provided however that the father is only required to consult with the mother prior to any major decisions that he intends to make upon the basis that the mother keeps the father informed of her contact details.
iv)The child X will spend time with and communicate with the mother and the maternal grandmother at all such reasonable times as may be agreed between the Father and the mother and the father and the maternal grandmother.
v)The father, mother and maternal grandmother will keep each other regularly informed of their residential, postal and email addresses and/or contact telephone numbers.
vi)The Independent Children’s Lawyer be discharged with the thanks of the Court.
vii)Any written submissions on costs by the father and/or the Independent Children’s Lawyers be filed within 28 days of the date of these orders.
aa)The parties were divorced on 12 August 2013.
bb)On (omitted) 2013 the father’s child with his current wife, B was born.
cc)On 4 March 2014 the father filed an Application for Protection Order against the mother in the Townsville Magistrates Court which was returnable on 19 March 2014.
dd)On 30 April 2014 the mother filed an Initiating Application in the Federal Circuit Court of Australia in Townsville together with an Affidavit, seeking interim orders that:
i)Child have shared time with mother.
ii)They both have equal custody and the father's current girlfriend can't be there when he has got the child
ee)The mother filed a second Affidavit in the proceedings on 27 June 2014. The maternal grandmother files an Affidavit in the proceedings on 1 July 2014.
ff)On 9 July 2014 the Magistrates Court in Townsville makes a Domestic Violence Order against the mother in favour of the father and naming Ms M as a protected persons which expired on 8 July 2016. The mother to be of good behaviour and is prohibited from contacting the Respondent or the named person.
gg)On 11 August 2014 the mother, father and maternal grandmother and X (then 9 years 5 months) attended a Child Inclusive Conference.
hh)On 12 August 2014 the mother filed an Amended Initiating Application seeking final orders for:
i)Equal shared parental responsibility;
ii)The child live with the father;
iii)The child have alternate weekend time and school holiday time with mother; and
iv)Interim Orders sought were the same as final orders, plus preparation of Family Report.
ii)On 19 August 2014 Interim Orders were made by consent that:
i)The mother spend time with X at all reasonable times as agreed by the parties, in default of agreement:
ii)Commencing Friday 29th August 2014 each alternate weekend from after school on Friday to Monday before school; and
iii)Telephone (to a specific telephone number provided by the father) or Skype communication each Tuesday and each Friday that she is not spending time with the child, between 7pm and 7.30pm and the mother shall make the call to the child.
iv)Provided that the mother has first attempted to contact the father and requested him to take the child to a doctor, the mother is only to take the child to a registered Medical Practitioner in the event of an emergency and the doctor to whom the child is taken is to provide to the mother a letter confirming that the consultation was urgent and could not await a day when the father could take him.
v)Within fourteen (14) days of this Order both parties enrol in and undertake any intake program to undertake the “PPP Parenting Program”.
vi)Neither party denigrates the other in the presence of the child and shall remove the child from the presence of any other person denigrating the other party or their family.
vii)Neither parties discuss with the child the progress of these proceedings, nor interrogate the child about the other’s lifestyle or home life.
viii)When the child is not at school the collection and pick up points will be the MacDonald’s Family Restaurant at (omitted); and on school days to the child’s school at 8.30am on Mondays and at the end of school at 2.35pm on Fridays.
ix)On changeovers on non-school days the Father shall not be accompanied by his current partner and the mother shall not be accompanied by her Mother.
x)The matter be adjourned to 13 October 2014 at 10am for further directions.
xi)The mother agreed that she will not take the child X to either the police or the Department of Communities (Child Safety Services) complaining about acts of child abuse of the said child or any other issue.
jj)On 13 October 2014 the Court set the matter down for final hearing and issued trial directions. No hearing date was fixed.
kk)On 23 December 2014 consent orders were made for the child to have time with the mother. The mother is restrained from travelling outside of (omitted) and a recovery order issues in default of the mother returning the child.
ll)On 13 October 2015 the maternal grandmother filed a Response seeking final orders for:
i)Visitation rights especially when the mother moves into permanent accommodation; and
ii)Regular phone contact – weekly.
mm)On 13 November 2015 orders for the preparation of an updated family report were made.
nn)On 15 February 2016 the father's solicitors wrote to the Court asking for the father's partner, the mother's partner and the child, A to be interviewed. Report writer declined because of late notice.
oo)On 16 February 2016 Family Report interviews were conducted in (omitted) and the Report was released on 14 March 2016.
pp)On 21 March 2016 the mother filed an Application in a Case seeking:
i)Relocation of Court proceedings to Brisbane;
ii)That perjury be considered; and
iii)That orders be made in relation to neglect of son's feet.
The maternal grandmother files a similar Application in a Case on the same day.
qq)On the same day, orders were made pending further order for the parties to each spend time with X during the upcoming school holidays and the mother’s and maternal grandmother’s applications for interim relief were both dismissed.
rr)The Family Report of Ms B was released on 11 March 2016.
ss)On 12 May 2016 inter alia orders were made for:
i)X to be represented in these proceedings by a Cairns based Independent Children’s Lawyer.
ii)The mother is to file and serve an Affidavit annexing all of the Facebook pages and any other evidence which suggests that the father’s partner has bipolar and to also include the mother’s weekly routine and/or work arrangements, within 14 days of the date of this Order.
tt)On 31 May 2016 the mother filed an Application – Contravention alleging the father failed to hand the child over on the 27 May 2016 at (omitted) Police Station.
uu)On 23 June 2016 the Court made orders that:
i)The Mother spend time with X from after school on Friday 24 June 2016 until 5:30 pm on Wednesday 6 July 2016. Handover is to occur at McDonald's (omitted) on 6 July 2016 (this was an order by consent).
ii)Ms A Robb is discharged as a party to the proceedings.
iii)The Application for Contravention filed on 31 May 2016 is dismissed.
iv)The mother is to file and serve a Second Amended Application setting out the Orders specifically sought within 14 days of the date of this Order.
v)The father is to file and serve an Amended Response within 14 days of being served with the mother’s Amended Application.
vi)No further material is to be filed unless provided for in this Order or Ordered by the Court.
vii)Trial Directions preparing the matter for final hearing.
viii)That the application be listed for two days hearing as a reserve hearing in the week commencing 26 September 2016 before a Judge other than Judge Coker in Townsville.
ix)That the application be listed for a compliance check to ensure the matters readiness for trial on 20 September 2016.
vv)On 8 August 2016 the father filed an Amended Response seeking final orders that:
i)Mother's Application be dismissed pursuant to Rice & Asplund;
ii)That the previous costs order be paid;
iii)That the father have sole parental responsibility for the child;
iv)That the parties share the school holidays; and
v)The child has alternate weekends with the mother from afternoon Friday until before school Monday.
ww)On 31 August 2016 Judge Baumann ordered vacating the final hearing dates and making a number of procedural orders.
xx)On 16 September 2016 an Updated Family Report of Ms B dated 15 September 2016 was released.
yy)On 19 September 2016 the mother filed an Application in a Case, seeking:
i)Recovery order for X;
ii)Order postponing his surgery set for 20 September 2016; and
iii)That the father, Ms M and Mr B be dealt with within the Court Circuit for constant breaches on the orders to make their own orders.
zz)On 19 September 2016 the matter was again mentioned before Judge Baumann. The Court was advised that the surgery of the 20 September 2016 is cancelled and the Court orders that X spend time with the mother during the September school holiday.
aaa)On 29 September 2016 Judge Baumann made orders for the child has time with the maternal grandmother on the 15 October and the 12 November 2016. Importantly, the matter was listed for hearing from the 12 to 14 December 2016.
bbb)On 30 September 2016 (5:00pm) the mother writes to Independent Children’s Lawyer saying amongst other things "”I will be asking legal aid to change ICL for my son".
ccc)On 5 October 2016 (3:58pm) the mother writes to Independent Children’s Lawyer saying "This is a final notice. Mr C are to cease contact with me immediately…".
ddd)On 5 October 2016 the mother emailed the Independent Children’s Lawyer saying amongst other things: "HOW HARD IS IT YOU ARE NOT TO CONTACT ME VIA EMAIL. FUNNY YOU AND MR C ARE CONSULTING WITH EACH OTHER AND EXCLUDING MATERNAL GRANDMOTHER AND I. CEASE ALL CONTACT IMMEDIATELY WITH ME…".
eee)On 12 October 2016 (9:21pm) the mother emailed Independent Children’s Lawyer addressed to Mr B in which she says "YOU AND THE SOLICITOR YOU WORK WITH MR C ARE NOT ABOVE THE LAW AS YOU BOTH THINK YOU ARE AND I CAN TAKE ACTION TO HAVE YOU STOPPED".
fff)On 12 October 2016 the mother emailed Independent Children’s Lawyer advising "STOP CONTACTING ME IMMEDIATELY ONRI [sic] WILL BE TAKING ACTION".
ggg)On 31 October 2016 the Independent Children’s Lawyer filed an Application in a Case seeking orders that mother and father attend a psychiatric examination.
hhh)On 31 October 2016 the mother emailed Independent Children’s Lawyer saying "STOP CONTACTING ME".
You will be paying for my loss of wages for bond cleans totalling $1250 and for me breaching on the COUNSELLING oath I took – Your [sic] an idiot mr C - Still protecting Ms M - Where is here [sic] appointment time - I am forwarding Mr Tillett pedifile [sic] letter to and from minors to this doctor so he clearly knows what is being covered up seem as the ICL will not sopena [sic] nsw POLICE RECORDS to protect the father - When are you stepping out of the case mr C as you haven't protected X at all just the father - Did you even know there has been a change to the orders made today? - Ms Robb"
iii)On 31 October 2016 the Mother emailed the Independent Children’s Lawyer saying:
I have now contacted (omitted) police and contacted your office with a formal warning to CEASE communication with me. You disregard this so now I request police involvement Thank you".
Most Recent Events
On 2 December 2016, at 2.31pm the mother sent to the father a text message stating that it was up to X if he wanted to read the Court documents “in particular the lies”. Other text messages followed, which included the following:
I am requesting urgent action before Monday for courts permission to stop just returning to.your (sic) care until such time Ms M has had full pysch (sic) assessment… I advise I am to speak to my police friends and ask for information and on what can be done… Don’t expose him again to her breakdowns.
And
… This is why he needs to see whats (sic) in the court papers… you and your fruitcake have scared him so much and he is hurting to the point he doesn’t want to see yiu (sic)and especially her after Friday morning…
On 5 December 2016 the father attended the school to see if X had been delivered by the mother. X was not at school. The father then texted the mother to confirm he had been dropped off and the mother responded with a number of text messages, some of which were as follows:
If he has gone missing this is on your head…
Find him and sort yours and fatso mental health out I tild (sic) you he was scared
At 1.13pm, the mother texted the father to say that the child had been found by “(omitted)” and that the Police were on their way. Relevantly, the mother further advised the father that “DOCS” were now involved and that she had requested that X “gets placed into foster care”.
According to a further text from the mother in the early afternoon of 5 December 2016, X was not with her and had run away again. That evening, the mother advised the father by text that the child was in a “community safe house” and that the Police would be handing him over to the Department.
The father sought legal advice, and also tried to get information from the Department.
In the meantime, X did not attend school for the whole week, nor did he go back to his father’s in accordance with the relevant orders.
Relevant to what occurred at final hearing and the mother’s conduct at final hearing are some recent posts by the mother on Faceboook.
On 30 November 2016, the mother posted the following on Facebook:
I am so happy. After six years of family court, I finally filed last court document today forever on this case.
I have come this far being a solicitor now on the 12Th (sic) December I get to be a Barrister.
Not bad for someone who represents herself
Early on 5 December 2016 the mother posted on Facebook discussing what X had apparently witnessed namely his step-mother “having a mental breakdown” which scared him, that “other things have been going on in that home too”, that the father was aware of what had happened and:
Has not attempted to call X. X’s court appointed lawyer has made no attempts either. Custody trial is on 12th-14th December. The woman in question has put threats on social media to harm me and my family is on strong anti-depressants for serious mental health problems.
The mother updated her Facebook page at 6.34pm that evening to advise that “X is in a community safe house where he will now be handed over to Department of Child Safety”. Other posts followed.
Why the mother thought it appropriate to post such things on Facebook remains a mystery. It is not child-focused behaviour. It is not behaviour which has X’s best interests at heart.
On Saturday, 10 December 2016, the mother posted photographs of X putting up a Christmas tree with the commentary “It is the best feeling having all my children chatting while putting up the Christmas tree. It’s been six years since that has happened” a photograph of A and X in the swimming pool at her mother’s house was also posted.
On Sunday, 11 December 2016, the day before the final hearing was due to commence, the mother posted the following on Facebook:
Our three day custody trial is due to commence tomorrow however due to new information to light it can’t proceed at this point. Also makes it hard when I am suppose (sic) to be in hospital due to chemical burn in the throats and lungs. Off to hospital straight after court.
The night before the final hearing, the father received a text message from the maternal grandmother advising that “X will not be at court tomorrow he will see the ICL later”. The Court notes that the Independent Children’s Lawyer had arranged to meet with X at 9am on 12 December 2016.
Final Hearing
Prior to the commencement of the hearing, the mother at 9.26pm on Sunday 11 December 2016 forwarded correspondence via email to the Independent Children’s Lawyer, the solicitor for the father, the maternal grandmother and the Townsville Family Law Courts Registry. The correspondence was in relation to the mother advising all parties that she would ‘have a doctors certificate for exclusion from court tomorrow’. The mother went on to explain that she had a ‘chemical burn to the throat and lungs’ and consequently she was ‘unable to talk’.
Despite the email correspondence alluding to the fact that the mother would not attend the hearing on 12 December 2016, she did attend in person. The mother presented at Court with a letter from a ‘House Call Doctor’ dated 11 December 2016 stating that a Doctor:
‘[h]as examined Ms Robb and that she is suffering from a medical condition and she will be unfit for duty up to an including 12 December 2016’.
The medical certificate was not annexed to an Affidavit nor did it state what the medical condition was or why the mother would be unfit for duty. The document also did not state explicitly, that the mother was unfit to attend Court. Accompanying that certificate was a seven page undated hand written document signed by the mother explaining that the she has gone against doctor’s instructions to be in Hospital for tests, x-rays and treatment. The mother did not wish to formally tender the document to the Court. The mother did not make any application to adjourn the final hearing.
Prior to the hearing commencing, Counsel for the father explained that the child had not been returned to the father’s care on 5 December 2016. The mother explained that the child had in fact been in her care during this time and was still in her care as at 12 December 2016. The mother and the maternal grandmother both explained that the mother withheld the child from the father on the grounds that the mother had approached the Department of Communities, Child Safety and Disability Services to attempt to place the child in foster care due to safety concerns and they had advised her that the child should stay with the mother and not go back to the father. Counsel for the Independent Children’s Lawyer explained that the Independent Children’s Lawyer had made arrangements for the child to be brought into Court at 9am on 12 December 2016 to meet with the Independent Children’s Lawyer and the Family Consultant Ms B to ascertain the child’s wishes however, the Mother had not cooperated.
At 10:21am on 12 December 2016 the mother was directed by the Court to collect the child from her residence and bring the child to the Court precinct to meet with the Independent Children’s Lawyer and the Family Consultant Ms M and it was explained that the hearing would not commence until this had been done.
The mother returned to the Court precinct with the child to allow the Independent Children’s Lawyer and the Family Consultant to speak with the child. Court recommenced at 11.30am and Counsel for the Independent Children’s Lawyer explained to the Court that when Ms M approached the child in the foyer of the Court, the maternal grandmother said to Ms M in front of the child, ‘I don’t trust you’. Ms M was directed to prepare a short report on her interview with the child. The proceedings were then adjourned to 2.15pm for the hearing to commence thereafter.
After the luncheon adjournment, Counsel for the Independent Children’s Lawyer notified the Court that during the adjournment, she had explained to the mother that she would be cross-examined first as she was the Applicant. The mother became increasingly agitated after speaking with Counsel for the Independent Children’ Lawyer to the point where she was lying on a couch in the foyer in a state of extremely high distress and crying loudly. The child was present during this episode and only at the request of the Independent Children’s Lawyer was the child removed from the situation. The security guards of the Townsville Registry called an ambulance for the mother. The mother was attended to by the ambulance officers in the precincts of the Court and was subsequently taken to the (omitted) Hospital.
Legal representatives for the father drafted a minute of proposed orders during the adjournment, however, as the Mother had been taken to Hospital they were unable to provide her with a copy. The maternal grandmother agreed to provide to the mother a copy of the proposed orders of the father and also a copy of the short report prepared by Ms B on 12 December 2016. The matter was adjourned to 10.00am on 13 December 2016.
The mother at 8.08am on 13 December 2016 forwarded correspondence again via email to the Independent Children’s Lawyer’s secretary, the solicitor for the father, the maternal grandmother and the Townsville Family Law Courts Registry. The correspondence was directed ‘To whom it may concern’ and indicated that the maternal grandmother had a letter from the hospital to provide to the Courts regarding the events of 12 December 2016.
The mother outlined in the email that she understood the comments made in Court in her absence were to the effect that she:
did not have chest pain or chemical burn and I was only hysterical’ and that ‘As court would know the hospital legal department is to be sent sopena [sic] for detailed report and certificate.’
The email further states that the maternal grandmother “initiated a call to DOCS yesterday and there [sic] story is different to the affidavit of the father.” The mother’s explanation for the father not being aware of any Departmental involvement is that “they are not in a position to tell the father if he is being investigated for the safety of the child.” She explains in the email that the Department was aware of the child’s whereabouts and:
even went to the extent of telling me to keep in contact with them and police and that in the event that X [sic] was to return to the father that we had to work out an emergency escape route if he felt in danger or threatened.
The mother stated that “[t]here is an investigation regarding concerns for X [sic] but department has concerns for the other children.” The ‘other children’ referred to by the mother are not divulged. The mother goes on to state that she has “requested an appeal of yesterday’s (12 December 2016) events, involvement of legal services and allegations made that I did not have chest pains and was putting it on.”[12] Except for some procedural orders no orders were made on 12 December 2016 and in fact the hearing had not yet commenced.
[12] Except an order granting the father leave to file an affidavit dated 12 December 2016 and rely on that affidavit at final hearing
Prior to the commencement of Court on 13 December 2016, the maternal grandmother handed a Registry staff member a letter from the (omitted) Hospital Emergency Department dated 12 December 2016. The letter was addressed ‘Dear Usual GP’ stating that the mother was presented to the Emergency Department at 1.42pm on 12 December 2016 mother’s diagnosis was ‘Undifferentiated illness’. The letter alludes to the mother undergoing several tests with her blood tests, electrocardiogram (ECG) and Chest X-ray (CXR) all being identified as ‘unremarkable’.
A facsimile from the (omitted) Medical Centre dated 13 December 2016 signed by Dr S was received by the Registry by facsimile at 9.32am on 13 December 2016, prior to Court recommencing. This correspondence was addressed ‘To whom it may concern’ stating that the Mother has ‘inhaled chemicals (a) few days ago while cleaning and it cause(d) her (a) sore throat and pain in (the) chest.’ The fax further states that ‘Today still she complains of sore throat and some sore chest and she has haorsness [sic] and she is very emotional and it is difficult for her to talk.’
The matter was brought on at 10.00am on 13 December 2016 with all parties in attendance except the Mother. The maternal grandmother explained to the Court that the Mother choose to not come to Court as she was supporting her eldest son A (19 years old) who was distressed over the events of 12 December 2016.
The father then made an oral application for the matter to proceed on an undefended basis which the Independent Children’s Lawyer supported, but maternal grandmother opposed. The maternal grandmother made an oral application for the matter to be adjourned on the basis that the mother was absent from Court and also that things were “very, very iffy”. The maternal grandmother was then sworn in to give evidence in relation to her oral application for an adjournment. The maternal grandmother gave evidence in relation to the events of 12 December 2016 and the whereabouts/welfare of the mother. The maternal grandmother’s evidence purported to the mother’s health, she stated particularly that, “physically, I don’t think she is safe to drive in here at the moment, that is my opinion.”
The maternal grandmother’s application for an adjournment was dismissed and the father’s application to proceed on an undefended basis was granted. The only order the maternal grandmother sought was that the child spend one overnight period with the maternal grandmother per month. The maternal grandmother provided no evidence in support of her application for overnight time with the child and stated that she was only relying upon “the charity of these people” and gestured to the other parties at the Bar Table. On application the maternal grandmother’s application was subsequently dismissed and at 12:36pm the maternal grandmother left the courtroom choosing not to further participate in the proceedings. Whilst exiting the courtroom the maternal grandmother stated, “if Ms Robb (the Mother) gets charged for costs, watch out.”
Ms B's Reports of 12 December 2016
Of significant concern to the Court, are the matters reported by Ms B on 12 December 2016, particularly when considered in light of the most recent events, including the fact that the child was due to be returned to his father on 5 December 2016 pursuant to relevant orders and was not.
As already noted, the matter was stood in the list on 12 December 2016, so that the mother could deliver X to Court. When she did so, he was spoken to Ms B.
While in the Registry and while being accompanied by Ms B on her way to be interviewed by her, the maternal grandmother called out to Ms M, “we don’t trust you.”
Ms M reported that X’s demeanour was distinctly different while he was talking about family issues and while talking about neutral subjects. In discussions regarding family, X displayed signs of anxiety, his face appeared sad, he rested his head on the table, he appeared careful about his comments and asked a number of times to be returned to A.
X reported that on Friday, 2 December 2016[13], before going to school, he observed his step-mother crying while doing her daughter’s hair. When he asked her why she was crying, the step-mother responded with “don’t worry mate, it’s just the doctors”. Prior to this X had been dressed for school; he was “playing games and watching TV and stuff”. He then went to school. X reports that although he was worried, he did not act like he was worried. X went home to his mother for the weekend after school on that Friday.
[13] Ms B’s report refers to 3 December which was a Saturday, therefore the date recorded in the report appears to be a mistake
According to what X said to Ms B, it wasn’t until Monday, 5 December 2016, that X told his mother about his step-mother crying[14]. Apparently, X said to the mother that he “didn’t want to go back to Dad’s because Ms M had that breakdown.” After telling the mother this, she then telephoned the school and according to X told the school that he was not going back anymore, that he had finished school.
[14] The mother’s Facebook posts indicate that she was discussing these issues on Facebook at 7.12am on 5 December 2016. The father’s evidence of the text messages he received from the mother on 2 December 2016 seem to indicate that X had already told his mother something, but this is not clear.
X said to Ms M that if the judge ordered him to live with his father that he would “keep sneaking away” until he could “get put” with her. X said he would sneak away “to my mum’s friends or the Police Beat down the road.” X explained the reason was “after all this Courts been happening. It’s made me angry, sad, confused. Think there’s two more but not sure, (then recalled) scared and worried.”
X reported to Ms M that if his mother did not have more time with him she would feel very angry, sad and depressed. X recalled that his mother had told him the Courts had made the wrong decision, that he had been taken away from her and that there was no need to do this.
X also stated that his mother had spoken to him ‘sort of’ about living elsewhere this past week… X thought that he may have felt differently regarding returning to the paternal home if he knew the reason for Ms M’s ‘mental breakdown.’
In Ms M’s opinion:
X’s presentation raises issues regarding his level of awareness regarding the Court process, the degree to which he feels responsible for his mother’s well-being, and the degree to which he is modelling the mother’s behaviour.
In her second report produced on the same afternoon, following the mother being taken away by ambulance, Ms M was requested to attend in the children’s playroom where “X was exhibiting high pitched wailing behaviour accompanied by the repetitive statement ‘I want to be with A’. Despite this behaviour no obvious tears were observed.” The observed behaviour continued for a while, both inside the children’s room and outside. Eventually, after continued intervention from the father, the step-mother and the paternal grandmother, the child settled and left with his father.
The Evidence of Ms S
Early in the history of parenting proceedings between these parties, following a recovery order for X to be returned to the father after the mother’s move to New South Wales with X and A, Ms S, Registered Psychologist, was commissioned to prepare a Family Report. That report is part of the evidence in these proceedings.
In preparing her report, Ms S spoke to and observed the following individuals, who at the relevant time were involved with the various households:
a)Ms Robb (the mother);
b)Mr Tillett (the father);
c)X (the subject child of these proceedings);
d)A (X’s half-sibling);
e)Ms A Robb (the maternal grandmother);
f)Mr A (A’s father);
g)Ms K (the father’s then partner); and
h)E (the daughter of Ms K who was living in the same household as X at the time)
At the time of the interviews with Ms S in or around October 2010, A was 13 years and 3 months old and X was 5 years and 8 months old.
While new events have overtaken much of what was relevant at the time that Ms S prepared her report, some of her observations and opinions remain relevant. In particular as follows:
a)The mother, during the initial telephone conversation with Ms S on 4 October 2010 was “quite distressed” and “complained that the family report process was unfair”. The mother was too distressed to engage in a discussion about arranging a visit with Ms S for the purposes of the preparation of the Family Report;
b)The mother was interviewed by Ms S at a park in (omitted) on 18 October 2010. At the time the mother was living with A on the (omitted), New South Wales. A accompanied the mother to the interview.
c)When Ms S explained to the mother that she was requested to carry out a psychological assessment of her, the mother objected “as she felt that Ms K should also undergo a psychological assessment due to her mental health problems”. The report writer subsequently did not conduct a psychological assessment given the mother’s objections.
d)A was present for the initial part of the interview with the mother. “They both confirmed that they believed that if A lived with Mr A that X would be returned to Ms Robb.” The mother, in A’s presence, proceeded to speak about the parties to the proceedings and became quite emotive. The report writer then had to suggest for A to play a distance away while the interview was being conducted.
e)The mother, during the interview, stated several times that she felt the information regarding her health would be used against her in Court, including her ‘breakdown’ that had occurred in July 2010. “She stated that she had been declared ‘… an unfit mother’.”
f)The mother indicated that “she was not prepared to return to (omitted) as she had established a life in New South Wales. She also said that she felt that the Court and everyone involved was against her so it would not be possible to have a fair outcome.”
g)In Ms S’s opinion there was no cause for concern about the mother’s ability to parent A and X.
h)Mr A said to Ms S that “A told him he wants to live with [the mother]… as she has lost X… A had concerns that if he came to live with him that this would cause difficulties for [the mother]…[the mother] is aware of A’s views…”
i)When Ms S asked A about X, he said that he missed X that he could see him on holidays, but then went on to add “X needs to be back with my mum, ‘cos she’s really upset and I’m really upset…”
j)Ms S opined as follows:
A demonstrated some parentalised behaviours in relation to [the mother]… He tried to support [the mother’s]… assertions about the alleged misconduct of [the father and his then partner]… A was quick to provide assistance to [the mother]…
when he was asked about after school care arrangements for him while the mother was at work.
k)When Ms S spoke to the mother about the possibility of A living with his father, the mother said that A was “her best friend… her rock.” According to Ms S:
A appeared to have taken on this parentalised role in response to the ongoing conflict as well as a means of assisting [the mother]… in managing her emotional distress.
l)During the interviews with Ms S, the father did not object to X spending time with the mother, A or the maternal grandmother. He indicated that he was prepared to encourage X to know and have a relationship with both the mother and A.
m)The mother:
indicated that she saw no point in seeking orders regarding X as she believes he will not be allowed to live with her in New South Wales. She… is unwilling to abandon the life she has established in New South Wales.
n)The Court notes that at the time she had been living in New South Wales for approximately 12 months.
The Evidence of the Family Consultant
Ms B prepared two Family Reports in this matter, dated 11 March 2016 and 15 September 2016. Two short form reports of Ms B were also received into evidence[15], those reports relating to the events of 12 December 2016 at Court.
[15] Exhibit 2
During the interviews for the first Family Report, the mother made a significant number of complaints about her treatment during the proceedings about what was going on in the father’s household, that the father lied, that she had lodged complaints with the Legal Services Commissioner, that X was not looked after property by the father, that she had been stopped from taking X to the doctor, that she was entitled to 50% care of X and then said that if she was not successful in her proposal for equal share that:
I will take it higher. I will take it to Legal Services. Told your child doesn’t need to know you. Treated like I was a prostitute, druggo. There’s three judges on the case (so will) go through Legal Services. I would like an explanation why I can’t get my son. The way I’m being treated.
The mother presented as pleasant and overall co-operative during the interview with Ms M.
The father, during the interviews for the first Family Report, spoke about the parties’ history, how X came to be in his care after a recovery order was made, that at the time he had trouble locating the mother and the children (A and X), he spoke about his relationships over the years, including his current household dynamics, he spoke about what he could offer X that being “A nice stable role in his life. No animosity at home.” He spoke of the high school he was intending on sending X to, and discussed X’s health. The father spoke of the difficulties he has had with the mother in not giving full information out.
X was interviewed as well as observed with his parents and the various household members. The Family Report[16] records as follows:
X remarked that his parents ‘don’t get along very well.’ He then disclosed that his mother had told him the reason for this was ‘maybe after the Courts did wrong decision. They took me away from their mum and there was no need to.’ X though that his mother had told him this ‘few weeks ago or last year’.
[16] Paragraph 142 of Family Report dated 11 March 2016
This was said by X on 16 February 2016 when he was interviewed by Ms B. Concerning to the Court, X said almost exactly the same thing to Ms B on 12 December 2012[17]:
X recalled that his mother had told him the Courts had made wrong decisions, took me away and there was no need to do so.
[17] Referred to earlier in these reasons
In her first Family Report Ms B opines as follows:
Of concern is [the mother’s]… persistent view or interpretation of ‘why I can’t get my son. The way I’m being treated.’ The mother presented generally as self-focused, displaying little recognition, understanding and/or willingness to accept responsibility for her behaviour and to be based in reality. The themes of being prejudged, people using personal information against her and/or intentionally preventing the child spending time with her and/or living with her are persistent themes in the mother’s life… [T]his puts at risk the mother’s ability to perceive X realistically, empathise with the child or give priority to the child’s developmental needs.”
The interviews conducted for the second Family Report were with A and the step-mother, Ms M. Ms B had tried to speak to C, X’s eldest half-sibling, but was not able to do so after numerous attempts. During Ms B’s attempts to speak with C, the mother telephoned the report writer and stated that she “wrote a letter of complaint about you”.
Ms B said of sibling relationships:
A sibling relationship may be the longest relationship an individual will experience in his or her lifetime. Research indicates that positive sibling relationships are associated with more opportunities for cognitive development, increased social functioning and elevated self-esteem. It was encouraging that despite the parental dispute X’s relationship with his half-brother A was recognised as important by both the maternal and paternal families.
X was aware that A wanted to join the (omitted) and that this would mean that he would not be able to see him for a while.
X acknowledged that he would miss his little step-sister (D) and half-sibling (B) if he was away from them for too long. According to Ms B:
Growing up with multiple siblings provides increased opportunities to learn about cooperation and sharing, and building relationships with other children.
According to the step-mother, the mother’s behaviour has negatively impacted psychologically and emotionally on X.
X reported a positive relationship with his stepmother in the February 2016 interviews, and the observations of the Family Consultant supported this view.
In terms of risks to X, Ms B had the following to say:
While [the mother]… presented as pleasant and cooperative overall during her interview her words (both spoken and written) are suggestive of feelings of sustained anger. Anger often covers up fear, hurt or sadness and [the mother]… seems to have experienced each of these feelings/emotions in her life…
The basis of [the mother’s]… expression of anger at times seems to be in reaction to perceived unfair treatment by many persons. This seems related to the mother’s expectations that parenting arrangements for X will be different than what they are presently. [The mother’s]… viewpoint including the comment ‘entitled to fifty percent’ is suggestive that the mother may experience difficulty separating her needs from those of X.
The expressed anger towards the Report Write/Family Consultant on the grounds of bias, “a conflict of interest” and not conforming to her expectations may be a strategy to influence the writer to align with her. Anger directed towards Ms Tillett may be an attempt to punish the stepmother for usurping her mothering role…
In February 2016 [the mother]… stated that Ms Tillett was “not his mother; not even his stepmother”. Her behaviour (at times) seems centred on removing the stepmother’s influence in the child’s life and/or undermining X’s relationship with Ms Tillett…
While [the father and the stepmother]… may also feel some degree of anger towards [the mother]… the father and stepmother seem better able to separate their feelings from the needs of X to maintain a relationship with his mother…
…
A risk exists in that the mother’s anger may be related to a learned way of coping, which in turn results in decreases in objectivity and empathy, and/or the capacity to self-monitor.
The two short form reports are referred to earlier in these Reasons.[18]
[18] Under the heading “Most Recent Events”
The Evidence of Dr B
Dr B, a consultant psychiatrist, prepared a report after the parties had agreed to be assessed by the expert. The interviews were conducted via video conferencing, due to the expert being located in Melbourne, Victoria and the parties in (omitted), Queensland.
Some of the assumed facts upon which Dr B relied are clearly not established on the evidence, for example, that X is currently spending nine nights a fortnight with his father and four nights a fortnight with his mother. [19] For those reasons, the opinions expressed by Dr B need to be carefully considered in light of the established facts and where those opinions are based on facts which have not been established or are clearly wrong, the opinions will be disregarded as they are not relevant. Furthermore, some of the opinions of Dr B are not relevant[20] – for example what Dr B thinks about the parent’s parenting capacity.
[19] Paragraph 59 of the Report, ( noting of course that there are 14 nights in a fortnight)
[20] Clearly falling outside the exception in s79 Evidence Act Cth
It is only the relevant opinions[21] of Dr B which are referred to below.
[21] Being an opinion based wholly or substantially on Dr B’s specialised knowledge
Dr B does not see the mother “as having significant psychiatric disturbance as such.”
In the opinion of Dr B the mother’s behaviour related to this matter is specific to this relationship and the legal process that has followed thereafter. Furthermore, Dr B opines:
While I do not see her as having a long term psychiatric problem and I do not see her as having sufficient personality dysfunction to use the term personality disorder, she clearly has a somewhat paranoid perspective – in that she thinks that when she does not get something or when something is done that she does not approve of, the she is being treated unreasonably and everybody else is at fault.
This is not sufficient to make a psychiatric diagnosis. While I say she has a paranoid orientation about all of this, I am emphasis that it is not sufficient to say she has a paranoid personality disorder or a paranoid psychosis but it does seem to reflect and accentuate the problems here.
My view is that she is absolutely preoccupied with the legal aspects of this, does not see her own part in it at all and will not accept any judgment, ruling or opinion that does not support her completely.
She does not seem to understand that continuing engagement in this process does not serve the child well and certainly does not serve her well.
…
Unless the Court and all those involved strongly support her and her position and view, she will most likely continue in this process.
…
… she also appears to become absolutely preoccupied about bias…
I should also add that it is quite clear that anybody that does not see things her light, she will see as biased.
In respect of the father, Dr B opines as follows:
There was nothing in his presentation suggestive of any psychiatric or psychological disturbance.
… my impression of the way he functions is that he functions well.
Furthermore, Dr B went on to comment:
Of these two people, I must say I have more concern about the mother than I do about the father, as I see her as being absolutely preoccupied with the legal process and having a somewhat paranoid position and perspective of this situation.
…
I am of the view that … [the father’s] judgement about the child and welfare (sic) is more reliable than is [the mother’s]…
… I do have grave reservations about the mother and her behaviour in this matter…
…
To summarise, I do not think that either of these two people as having a formal psychiatric disturbance, although I do have very serious concerns about the mother’s involvement in all this legal process and her preoccupation with all these matters.
Other relevant evidence
The father is of the view that it is in X’s best interest that he have a relationship with the other, despite his concerns about the negative effects which such a relationship might have on X.
The father is concerned that the mother is unable to place her own needs above those of X. This is borne out by the evidence of the Family Consultant.
X has been attending counselling to help him deal with the effects of his mother’s behaviour.
Parental Responsibility
The question of parental capacity to implement arrangements and to communicate and resolve difficulties are important issues in this matter. This is particularly so because of the importance to the child and the mother of the mother being involved in the child’s life, and because of the relationship the child has with the mother.
The Court finds that there is sufficient evidence of poor behaviour and lack of child focus from the mother and poor communications between that make the sharing of parental responsibility very difficult and not in the child’s best interest. The Court finds that the presumption of equal shared parental responsibility is rebutted.
An order for sole parental responsibility is therefore made.
Section 60CC(3) Factors
Child’s views
X is about to turn 12 years old. Given his age, it might be expected that his views would be accorded significant weight. However, X is a child who has been embroiled in this family law litigation for far too long, and who is far too aware of the proceedings and what is happening.
X’s expressed views need to be considered in light of all of the evidence in these proceedings, particularly in light of the evidence of the three experts and the identified risk factors.
The Court is satisfied that X has been mimicking his mother’s behaviour and that he is being influenced by the mother to express ideas about running away if he is to live with his father. The Court is satisfied that the mother has embroiled X in the proceedings and that she may not, even with an order preventing her from doing so, be able to control herself and not further involve the child. Her recent comments to the father about letting the child read the Court papers are of utmost concern and clearly show an intention to influence the child’s views about the parenting proceedings.
Nature of the Children’s relationships
The child, despite all of the difficulties experienced, has loving relationships with each of his parents, and also with his step-mother. There is evidence in the Family Reports that X has a close relationship with his maternal grandmother, and it is a pity for X that the maternal grandmother did not seek to rely on any evidence in support of her application, resulting in its dismissal.
The child also has close relationships with his half-siblings A and B, his step-siblings in the father’s household and he also appears to have a relationship with his older half-sibling C.
The orders which the father and the Independent Children’s Lawyer contend for are going to see X maintain all of the important relationships in his life.
The Court is satisfied on the father’s case that the father will not only encourage and facilitate a relationship between X and his mother, but that he will also, without the need for an order, encourage and facilitate a relationship between X and the maternal grandmother and also with X’s half-siblings in the mother’s household. Specifically, the notation which the father proposed in his final orders show that he will actively encourage X spending time with A, and his evidence during cross-examination shows that the father will facilitate a relationship between X and the maternal grandmother.
The extent to which each of the parents has taken, or failed to take, the opportunity to participate in making long-term decisions, spend time with the child and communicate with the child; Parents’ obligations towards maintaining the child
The mother has to date sought to be involved in X’s life and to have a significant say in any long-term decisions concerning X. She has actively sought to spend time with him and to communicate with him. Ms B suggests that without the mother’s active involvement, the father might not have taken as active steps as he otherwise did in relation to the child being constipated. However, this is a minor issue.
The Court finds that the mother’s insistence to be involved in long-term medical decisions has not been child focused, and has resulted in confusion for the child and difficulties for the father in following recommended treatment. This is apparent from the chronology of events surrounding the surgery booked for the child by the father which was due to occur on 20 September 2016.
The father has been active in his care of the child, with the associated difficulties of being employed on a full-time basis. He has been assisted by his wife, and previously by another partner. This does not mean that the father is not actively involved, indeed it shows a willingness to financially, physically and emotionally support the child while also being a positive role model by being engaged in full-time employment.
Likely effect of any changes in the child’s circumstances
The orders proposed by the father on a final basis, differ very slightly from the orders which have been in place, both on a final and an interim basis for some years. The main difference is the period of time leading up to early 2017 that the father proposes for the child’s time with the mother to be supervised.
The father and the Independent Children’s Lawyer submit that a period of supervision is needed to protect X from harm given the recent events and that the mother has been working out an emergency escape route for the child.
A short break from the pressure which the mother exerts on X will, the Court is certain, be a welcome relief to him.
Practical difficulty and expense of a child spending time with a parent
There is no practical difficulty or expense associated with the child spending time with either of their parents, although there will be some practical difficulty and expense if orders for supervised time are to be made. Any such practical difficulty is not of weighty significance in the circumstances of this case, and particularly not so in light of the identified risk factors to X.
Capacity to provide for needs of the children
The father lives in stable accommodation with all of the usual amenities. It is a busy household.
The father has been able to provide for X’s physical and emotional needs to date. He has sought assistance from professionals to help X deal with any emotional turmoil resulting from his mother’s behaviour or otherwise. The father places X’s needs above his own.
The mother lives in stable accommodation and is able to meet X’s physical needs.
The mother places her own emotional needs above X’s. The evidence of the Family Consultant is supportive of a finding that the mother has not demonstrated a capacity to meet X’s emotional needs.
Maturity, sex, lifestyle and background of child and parents
The father lives in a busy, blended household. He works full-time and he has recently re-married.
Neither of the parent is an Aboriginal or a Torres Strait Islander.
Attitudes to the children
The father has demonstrated an appropriate attitude to the child. He has placed X’s needs above his own and he has shown great insight in asking the Court to make orders for X to continue spending time with his mother despite all of the difficulties which have been encountered by the father and X in respect of X’s time with the mother and the father since separation.
The Court finds, having observed the mother on the first day the matter was set down for hearing, before the final hearing commenced, that she has little, if any, insight into her actions and a very poor attitude towards the child.
Allegations of Family Violence
The mother makes numerous and significant allegations of violence to the Family Consultant against the father and his wife, none of which are supported by any probative evidence.
There is nothing in the material which has been tendered that could lead to any findings of fact in respect of the allegations of family violence. Indeed, the documents contained in Exhibit 5 disclose complaints being made to Police, Department of Communities (Qld) and Family and Community Services (NSW) and those complaints being duly investigated by the various authorities. None of the complaints were substantiated and there were never any charges laid in respect of the complaints made.
There are no family violence orders currently in place.
Likelihood of further proceedings
The orders which are going to be made take into consideration the vulnerability of the child, and the need for his living arrangements to provide him with stability and security.
The Court is satisfied that an order requiring the mother to obtain leave before she can file any further application with respect to the child is an order that is warranted and in the best interests of the child. It goes without saying that the mother would need to meet the Rice & Asplund test if she was to seek any further parenting orders on a final basis.
The order which the Court intends to make is not an order declaring the mother a vexatious litigant, this is not a finding which the Court makes. It is an order which seeks to protect the child from further harm of being embroiled in litigation.
Other relevant matters
A significant concern to the Court is the possibility and likelihood that the mother will continue to make complaints about not only this process, but about the father’s care of X to various authorities, such as the Police or the Department of Communities. Indeed, the Court considers complaints to X’s school also a likely possibility.
It is for that reason that the Court will make an order permitting the father to release the three Family Reports and Dr B’s report to any relevant authority and a copy of these Reasons to X’s school, if any further complaints are made by the mother.
Primary Considerations
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[22] However, the relevant facts of this case are such that the need to protect the child from harm is a matter which is at the forefront of the Court’s deliberations.
[22] see for example Slater & Light [2011] FamCAFC 1at [45]
Having carefully considered the facts set out earlier in these Reasons the Court finds that the child if he were to spend greater periods of time than is proposed for in the orders with the mother he would be placed at an unacceptable risk of harm. Indeed any order for time between the mother and the child places the child at risk of harm. The Court is gravely concerned about the influence on the child by the mother, particularly given the events after 2 December 2016 to the conclusion of the hearing.
Likewise there are risks to the child if there was to be an order for no time with the mother, most recently evidenced by the child’s expressed intention that he will run away if he is to live with his father after being retained by his mother contrary to orders which existed at the time.
It is therefore a matter of weighing up the risks and the benefit to the child of having a meaningful relationship with their mother.
It was submitted by the Independent Children’s Lawyer that there was a greater risk to the child if there was no time between him and the mother, than if there was some time between the child and the mother.
In all of the circumstances the Court finds that there is a benefit to the child of spending some time with the mother and thereby continuing and maintaining a meaningful relationship with her.
The orders which the Court is making have safeguards in place to ensure that the child is not placed at an unacceptable risk of harm during periods of time that he is spending with the mother.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best interest for orders to be made as set out in the forefront of these reasons.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 23 December 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Remedies
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Procedural Fairness
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Jurisdiction
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