Rochester & Aubrey
[2024] FedCFamC2F 1501
•28 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rochester & Aubrey [2024] FedCFamC2F 1501
File number(s): PAC 3911 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 28 October 2024 Catchwords: FAMILY LAW – PARENTING – Undefended hearing as against the applicant father – Repeated failure to comply with Court orders – Circumstances where father has an injury – Views of the child given significant weight due to age and maturity – Circumstances where the father has spent supervised time with the child for prolonged period Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 60CG, 61C, 61D, 61DAA, 64C
Federal Circuit and Family Court of Australia (Family Law) Rules 2012 (Cth) r 1.33
Division: Division 2 Family Law Number of paragraphs: 146 Date of hearing: 21 October 2024 Place: Parramatta Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Jacqui Griffin Mobile Solicitor Counsel for the Respondent: Mr Macpherson Solicitor for the Respondent: Sydney Family Law Specialists Pty Ltd Counsel for the Independent Children's Lawyer: Mr Cook Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 3911 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROCHESTER
Applicant
AND: MS AUBREY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
28 OCTOBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to X (‘child’) born in 2008 are hereby discharged.
2.The mother shall be solely responsible for all long-term decisions for the child.
3.Notwithstanding Order 2, the mother shall inform the father (by email or text to the father's last known email address and/or mobile phone number) at least twenty-one days before making any decisions about any of the following matters:
(a)Any change to the child's schooling; and
(b)Any non-emergency surgery or medical treatment that the child is to undergo before it is undertaken.
4.The father may then reply to the mother's information (by return email or text) within seven days if he so chooses and the mother is to consider the father's reply before making the final decision for the child.
5.The mother must within forty-eight hours of the final decision referred to in Order 3 being made for the child, inform the father (by way of email or text to the father's last known email address and/or mobile phone number) of the final decision made.
6.The mother must notify the father of any serious emergency surgery and/or medical treatment that the child undergoes as soon as practicable and within twenty-four hours of it being undertaken.
7.The child shall live with the mother.
8.The father shall spend time and have communication with the child as agreed between the mother and father in writing and under such conditions as agreed between the mother and father in writing.
9.The father's time pursuant to Order 8 shall be supervised by B Contact Centre (or other such professional supervision service as agreed between the mother and father in writing).
10.The child's time and communication with the father pursuant to Order 8 is subject to her wishes and views and the mother shall facilitate the father's time in this regard.
11.Both parties shall encourage and facilitate the child's relationship with the other parent.
12.The parties shall refrain from making critical or derogatory remarks about the other party or members of the other party's family in the presence of, or within hearing of the child, and that the parties will do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of the other party's family in the presence of, or within hearing of the child.
13.The child X, born in 2008, is permitted to travel internationally without the need for the consent of the father, Mr Rochester born in 1974, to be provided for the issue of a passport to X, born in 2008. The mother, Ms Aubrey born in 1984, shall be the only person with ‘parental responsibility’ of the child X, born in 2008 for the purposes of applying for, and being issued with, an Australian passport for X, born in 2008.
14.If the mother intends to take the child on any overseas travel, the mother shall provide to the father at his last known email and/or postal address the following information no less than twenty-eight days in advance of such travel:
(a)Notification of the intended travel; and
(b)A copy of the travel itinerary, together with such contact details for the child as are available for the duration of the overseas travel.
15.The parties shall communicate by SMS messages in respect of parenting decisions concerning the child unless the matter is urgent, in which case the parties will communicate by phone.
16.The mother and father shall keep each other advised of their contact telephone numbers and email addresses, and shall advise the other party within twenty-four hours of any change to these details.
17.The mother is to file and serve within 28 days of the date of these Orders any evidence and any submissions, limited to no more than 5 pages, in support of any application for costs.
18.The father is to file and serve 14 days thereafter any evidence and any submissions, limited to no more than 5 pages, in reply.
19.The application for costs is to be dealt with on the papers, subject to any objection raised by the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of the application for parenting orders by the respondent mother, Ms Aubrey (‘mother’), heard on an undefended basis as against the applicant father, Mr Rochester (‘father’), in respect of the child X, born in 2008 who is 16 years old.
HISTORY OF PROCEEDINGS
On 2 December 2013, final parenting orders were made by consent.
In late 2014, the father had a serious car accident, causing him to have an injury. Following his release from hospital, by agreement between them, the parties have not been complying with the 2013 Orders, and X has spent mostly supervised time with the father thereafter.
The father filed an Initiating Application on 19 July 2022 seeking different orders to the 2013 Orders. The father also filed an Application in a Proceeding for interim parenting orders mirroring those sought on a final basis.
On 24 August 2022, orders were made for the mother to file her material, and for the preparation of a Child Impact Report.
On 30 September 2022, the mother filed her Response to Initiating Application.
On 13 October 2022, the Court made orders placing the matter on the Evatt List, for the appointment of the Independent Children’s Lawyer (‘ICL’), and for the production of documents from the Department of Communities and Justice (‘DCJ’).
On 23 October 2022, orders were made releasing the documents produced by the DCJ to the parties to inspect and to the legal representatives to inspect and photocopy.
On 14 December 2022, orders were made releasing the Child Impact Report to the parties.
On 24 January 2023, the father’s then solicitors filed a Notice of Ceasing to Act.
On 27 January 2023, the father’s solicitors filed a Notice of Address for Service and recommenced acting for him.
On 30 January 2023, the Court made orders for the parties to attend a mediation.
On 6 April 2023, orders were made for the preparation of a Child Impact Addendum Report, and for the progression of the matter. A notation was also made that the parties and ICL had attended a Legal Aid mediation conference, but the matter had not settled.
On 15 May 2023, orders were made for the progression of the matter, including orders for the filing of any amended application or response, for the parties to file all affidavits they sought to rely on at hearing by 7 August 2023, and listing it for a compliance and readiness hearing. A notation was made that the Child Impact Addendum Report ordered on 6 April 2023 could not be prepared as the writer was no longer working at the Court. The father did not file documents in compliance with the orders.
On 12 June 2023, the father’s solicitors filed a Notice of Ceasing to Act.
On 21 August 2023, orders were made for the preparation of a Specific Issues Report, extending the time for the father to file his trial affidavits to 2 October 2023, an order pursuant to s 102NA of the Family Law Act 1975 (Cth) (‘Act’) restraining the father from cross-examining the mother, listing the matter for final hearing on 15 and 16 April 2024, and other orders for the preparation of the matter for hearing. The father again did not file documents in compliance with the orders.
On 20 October 2023, the Court made orders extending the father’s time to file his trial affidavits to 10 November 2023, and a notation that the father had not complied with the filing directions made on 21 August 2023.
On 17 November 2023, orders were made for the father to file his trial affidavits by 1 December 2023 and reserving the mother’s costs of the day. The father again did not file documents in compliance with the orders.
On 17 January 2024, the Specific Issues Report was released to the parties and their legal representatives.
On 15 April 2024, the Court made orders dismissing a Notice of Objection to Subpoena filed on 9 April 2024, adjourning the hearing to 21 and 22 October 2024, for the father to file his trial affidavits by 13 September 2024, for the mother to file an updating affidavit, and reserving the mother’s costs. The father again did not file documents in compliance with the orders.
On 26 August 2024, the father’s solicitors filed a Notice of Address for Service.
On 10 October 2024, orders were made by consent dismissing the Notice of Objection to Subpoena filed on 9 October 2024.
On 11 October 2024, the father, without leave, filed an Amended Initiating Application and a trial affidavit to no effect.[1]
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2012 (Cth) r 1.33.
On 21 October 2024, the hearing proceeding on an undefended basis as against the father and judgment was reserved.
EVIDENCE IN THE PROCEEDINGS
The mother and ICL were in agreement as to orders sought.
The mother relied on the following documents in support of her application:
(a)Case Outline Document filed 14 October 2024;
(b)Affidavit of the mother filed 8 August 2023;
(c)Affidavit of the mother filed 15 March 2024; and
(d)Affidavit of the mother filed 20 September 2024.
The ICL relied on the Case Outline Document filed on 18 October 2024.
The exhibits tendered during the proceedings were:
·Exhibit 1 being the Specific Issues Report released on 16 January 2024 prepared by Mr C.
·Exhibit 2 being the Child Impact Report dated 13 December 2022.
·Exhibit 3 being a letter from the father’s treating psychologist Mr D dated 19 August 2024.
None of the witnesses were required for cross-examination.
LEGAL PRINCIPLES
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The child’s best interest remains the paramount consideration in respect of any parenting orders the Court makes, including orders for parental responsibility.
The objects of Part VII of the Act inform how the Court must exercise its discretion. Those objects are to ensure that the best interests of children are met, including by ensuring their safety and to give effect to the Convention on the Rights of the Child.[2]
[2] Family Law Act 1975 (Cth) s 60B (‘Act’).
Division 2 of Part VII of the Act deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[3] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[4]
[3] Act s 64C.
[4] Act s 61DAA.
In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act.
If the child is an Aboriginal or Torres Strait Islander child, the Court must consider the matters set out in s 60CC(3) of the Act, that is the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.
Section 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the child’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the child and of each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child, or a member of the child’s family.[5]
[5] Act s 60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration.
FINDINGS OF FACT
The father was born in 1974 and is currently 49 years old.
The mother was born in 1984, and is currently 40 years old. The mother has re-partnered and there is one child of that relationship, E born in 2021, and currently 2 years old.
The parties met and commenced a relationship in 2004. The parties were never married.
The parties moved in together in around mid-2005.
In 2008, X was born.
In March 2009 the parties separated.
Between April and December 2009, X spent unsupervised time with the father from 10am to 2pm each Tuesday and Thursday.
Between December 2009 and March 2010, the father travelled overseas and communicated with X via phone once per fortnight.
Between March and October 2010, X spent unsupervised time with the father each Wednesday from 9am to 4pm.
From October 2010 until August 2012, X spent unsupervised time with the father on a fortnightly basis, in week 1 from 5pm Friday to 5pm Saturday, and in week 2 from 11am Wednesday to 11am Thursday. During the period the father travelled overseas from early 2011 until April 2011 and communicated via phone with X once each fortnight.
From August 2012 until December 2013, X spent unsupervised time with the father on a fortnightly basis, in week 1 from 4:30pm Friday to 4pm Sunday, and in week 2 from 4pm Wednesday to 4pm Thursday.
In June 2013, the father commenced parenting proceedings.
On 2 December 2013, final parenting orders (‘2013 Orders’) were made by consent for the parties to have equal shared parental responsibility, for X to live with the mother, and for X to spend time with the father on a fortnightly basis, in week 1 from Friday after school until 5pm Sunday, and in week 2 from after school until 7pm on Tuesday, on special occasions, and one week blocks in school holidays.
Between December 2013 and November 2014, X spent time with the father in accordance with the 2013 Orders.
In late 2014, the father was involved in a serious car accident and was hospitalised for approximately twelve months.
In mid-2015, X attended the hospital to visit the father, with her psychologist as a support person. After the visit X was crying and the psychologist told the mother that the father had said some nasty things about the mother, that he did not look well, and that he was slurring his words. The mother said she was concerned about the impact on X and did not take her for any other hospital visits.
In late 2015, the father was discharged from hospital.
Shortly after the father was discharged, the father’s treating psychologist spoke to the mother and raised the possibility of X seeing the father. The mother contacted the father, and they arranged to visit F Venue together. During the visit the father repeatedly yelled at X saying words to the effect ‘you’re getting fat, just like your mum and grandma’ and ‘you eat too much’. The mother told the father that he should not say things like that to X. The mother and X left after two hours, and X was crying after the visit. The mother told X that the father did not mean the things he said and was still unwell.
Following the visit, the mother spoke to the father and the parties agreed that the father would only speak to X via phone calls until he was ready to resume visits.
From November 2015 to June 2016, X and the father communicated via phone calls at the father’s request, approximately two or three times each week.
In June 2016, following mediation, the father spent unsupervised time with X for five hours each fortnight, building to overnight visits each alternate weekend from 5pm Friday until 5pm Saturday in October 2016.
X would often return from spending time with the father in tears. She told the mother on multiple occasions that she was scared of being around the father and that the father became angry all the time.
In or around 2017, the father refused to sign the application for X’s passport for a family holiday when the mother made the request, but after X approached him during a visit to do so, he did sign the documents.
In mid-2017, the parents both attended an event for X. During the event, the father was restless and, on several occasions, got out of his seat, approached X, and told her it was time to go, to which the mother said ‘she has to stay, go sit down’. On the last two occasions the school principal asked what was going on, and then told the father that he had to sit down and stop approaching X. The father did not respond but returned to his seat. That night X spent time with the father.
The following day, when X returned she was upset and told the mother that after the event when they returned home the father punched walls and was throwing chairs, and that she had been scared.
In mid-2017, while the father was on the phone with X, the mother heard him say ‘I hate your mum, I’m going to kill her’, and that she then terminated the call.
In mid-2017, the father was talking to X on the phone and said ‘I’m going to kill your mum’, and X started crying then hung up the phone. The father then tried to call back, but X did not answer. The father requested a welfare check, and later that night around 8pm the Police attended her home to check on X who was asleep.
From around June 2017, the parties agreed that the father’s time with X would be supervised. As the mother could not find a professional supervision service at that time, she and the maternal grandmother supervised the father’s time with X. On one occasion when the maternal grandmother was unavailable, the mother asked her husband to accompany her, and on that occasion the father became enraged, he gripped X’s hand tightly, and after the mother asked him to let go, he swung around and assaulted the mother’s husband.
From November 2017, the father’s time with X was supervised by B Contact Centre for a period of two hours each fortnight.
In March 2018, a visit was terminated after the father slammed his fists on the table and yelled at X when she expressed not feeling comfortable at his house.
In late 2018, X’s time with the father supervised by B Contact Centre was increased to four hours each fortnight.
In 2018, the father called X for her birthday. The mother heard the father tell X that the mother would not let him see X for her birthday, and then said to X ‘I am going to cut your mother’s throat’, after which the mother took the phone, terminated the call, and comforted X. After X left the room, the father called again, and the mother talked to the father about spending time with X for her birthday, and the father screamed at her in a mixture of English and another language which she could not understand so she terminated the call. Throughout that day the father called the mother’s phone over three hundred times which she did not answer, and by 4pm she contacted police who applied for an interim Apprehended Domestic Violence Order (‘ADVO’).
In early 2019, a final ADVO was made against the father for the protection of the mother for a period of two years.
Between early 2019 and early 2020, the father called the mother from different phone numbers. The mother contacted police, and they gave the father a verbal warning.
During 2019, the mother approached the father in respect of X’s enrolment for high school but never received a response.
In August 2019, the father yelled at X for not wanting to stay with him or visit Country G. He told X he was going to self-harm, but he stopped arguing with X after his brother intervened.
In April 2020, X spent time with the father supervised by B Contact Centre in the father’s home. After she returned home, X said she felt uncomfortable.
In late 2020, the father yelled at X and told her to ‘shut up’ before storming off and laying on a bench facing away from X.
Since 2021, X has spent time with the father supervised by B Contact Centre for four hours each fortnight.
From this date, X has become increasingly reluctant to spend time with the father, saying ‘I don’t want to be around dad when he says mean things and I hate that I have to stay with him, even when he’s making me upset’ and ‘I don’t know how to control things when dad gets angry. It’s scary because I love him and I don’t like seeing him so upset because I know he can’t help it, and there’s nothing anybody can do to control it’.
The mother has continued to encourage X to spend time with the father, and to assure her that the supervisors are there to help.
In early 2021, the father attempted shoplifting while spending time with X. The supervisor and X had to tell him that it was not the right thing to do.
In late 2021, the father asked X for her phone number. When she declined to give it to him, the father threw his wallet on the ground. Later during the visit, the father became angry when the supervisor told him to stop asking X questions about the mother.
In early 2022, the father became angry at X and was also speaking negatively about the mother.
On 19 July 2022, the father filed his Initiating Application commencing these proceedings.
In late 2022, after asking X if she wanted to travel overseas with him and she declined, the father became angry, threw his food, and told X he would not see her in the future if she did not travel with him. The father punched his hand on a railing when he was told by the supervisor not to tell X he would not see her and, after X had left following the visit being terminated, he told the supervisor that he was going to harm himself.
In late 2022, the father told X that her make-up did not look good, which upset X, and the supervisor had to speak to the father about how to communicate with X.
In late 2022, during a visit with X, the father spilled his liquid medication over a menu and licked the liquid off the menu. The supervisor and X asked him to stop and told him that it was not appropriate, but the father continued.
On 17 December 2022, after the release of the Child Impact Report, the father told X that he was not happy with what she had said regarding the Court matter. X responded that she had been honest, and the father then walked away and punched a pole. On that occasion the visit was terminated by the supervisor.
In early 2023, the father asked X whether she wanted to see the paternal grandmother, and he became angry when X said only for fifteen minutes. The father’s carer walked away with him to calm him down and the father later apologised.
In mid-2023, during X’s time with him, the father became angry at X and called her a ‘liar’. The supervisor had to intervene between X and the father as they were arguing about X wanting to go away on holidays with the mother.
In early 2024, X returned from spending time with the father upset and told the mother that the father only wanted to spend time with X once a month, and that the father had said to her that she was only using him for money.
In February 2024, the mother was contacted by B Contact Centre as the father wished to move visits to monthly rather than fortnightly. The mother said after speaking to X about this, that she appeared shocked and that she spent the night in her room with the door closed. They later had a conversation where X asked if she could say no to monthly visits, but the mother told her it was out of their hands.
It was February 2024 that X next spent time with the father. X was nervous before the visit that the father would yell and say it was X’s fault that the visits had changed to monthly. The visit commenced at 10am and at 10:30am the maternal grandmother received a phone call from the supervisor asking them to meet. The mother spoke to the supervisor who told her that the father was angry, that the father had told X he was going to reduce the money he gives her because she did not call him, that X was upset and crying and had to walk away, and that when the supervisor could not calm X who looked panicked, they called the mother and maternal grandmother. The mother then spoke to X about whether she wanted to continue with the visit, and X responded ‘No, I just want to go home’.
Between March and June 2024, X spent time with the father once a month supervised by B Contact Centre in accordance with the father’s wishes. During this time X would express a desire to see the father each fortnight.
In around May 2024, the mother received an email from B Contact Centre that the father would like to resume fortnightly visits.
From July 2024, X resumed spending supervised time with the father each fortnight. On this occasion, the father was speaking to X about an item of jewellery he had purchased for her, he asked for her to give it back and this upset X.
In July 2024, the father asked X for the jewellery back and she gave it to him, but then returned it to her when she told him it reminded her of him. The father also spoke to X about how McDonald’s makes a person overweight, and this upset X who took it as a personal attack.
In August 2024, the father spoke to the supervisor when X was not present and expressed his belief X was overweight and blamed the mother for not caring properly. When X returned, the father asked X what her weight was, which X found upsetting.
Later in August 2024, at the commencement of the visit the father almost immediately raised X’s weight and talked about getting her onto the scale. X and the supervisor repeatedly told the father to stop discussing X’s weight and eventually X walked away. X expressed that she wanted to continue the visit but not talk about her weight, but the visit was terminated by the supervisor. The father yelled ‘fuck’, threw the gift bag with the Father’s Day present from X, and yelled ‘Never come back! Never come back! Never. Ever. Ever. Ever!’
After this visit, X told the mother that she did not wish to see the father and wanted to cancel the next visit because ‘dad makes me feel bad about myself’. The mother contacted B Contact Centre and cancelled the visit scheduled for September 2024.
Prior to a later scheduled visit in September 2024, X said to the mother words ‘I’m glad I had a break, I think I’ll be ready to see dad next time’.
Expert Evidence
Child Impact Report Dated 13 December 2022
The Child Impact Reported dated 13 December 2022 was prepared by Ms H. In the report Ms H set out a brief history of the parties, their then circumstances, and a short history of the care of X.
Ms H noted that X presented as an articulate child demonstrating emotional maturity in being open to considering alternate views and possibilities.
X spoke to Ms H positively about her father and her relationship with him, but also commented that the father would sometimes make comments or ask questions that make her uncomfortable. Ms H noted that X spoke quite compassionately about the father and how his injury affects his thoughts and interactions, but that she found it frustrating that the father would continue to pursue topics such as staying at his home or going on holidays with him, and that when she explains she does not want to talk about these the father persists and can become frustrated with her. X told Ms H that she enjoyed having a supervisor as it makes her feel safe when the father refuses to accept her answers. Later, when talking about how X finds it difficult when the father wants her to share information she considers personal, X expressed a wish for the father to respect her choice to keep some information private.
In terms of her preferences, X told Ms H that she wished for her time with the father to continue as per the current arrangements, clearly stating that she did not want her time to be reduced and, following exploration, that she would not feel comfortable with longer periods or overnight time as she is not confident the father would be able to meet her needs and that he is not accepting of her answers. X also expressed some concern that she may ultimately be responsible for caring for the father.
In relation to X’s relationship with the mother, X described a positive relationship and thought that the mother was happy for her to spend time with the father. Ms H noted that X was aware that she and the mother had different thoughts about the father, but that X felt that this was ok because they have different experiences of him. Ms H opined that X’s comfortability with having a different view to the mother was a sign of maturity and likely the result of the mother’s capacity to prioritise X’s needs above her own.
Ms H outlined the allegations of the mother in respect of her consideration of any family violence issues. Following which, when considering additional risk and harm issues, Ms H set out the father’s treatment and caring arrangements following his injury, and the father’s expression of much dissatisfaction with the current arrangements with X as he feels like a ‘donor’ rather than a father and does not understand why he should be paying money to spend time with her. The father also expressed concern the mother was unable to meet the financial costs of providing for X, but became quite defensive when asked further about the issue stating he pays for child support. Ms H noted that the father appeared to be struggling with the lack of information he received about X and his inability to contact her regularly. The mother informed Ms H about the situation surrounding X’s school event and how supervised time came about, and expressed a belief that X should spend regular time with the father but that such time is safe and suitable to X’s needs. The mother did not think X had the necessary skills to manage the complexities of her relationship with the father at this stage of her development.
Child Impact Analysis
In her analysis, Ms H noted that X had an age-appropriate understanding of the father’s injury and has maintained a positive albeit limited relationship with him. She opined that X is at the developmental stage where she may become more forthcoming and expressive in her views, and if the father is unable to sensitively respond to her in a way that makes her feel heard, validated, and understood then this may cause further friction in their relationship.
Ms H acknowledged the issues with the father’s behaviour identified by X and in the contact reports of B Contact Centre and commented that, if the described behaviour has persisted since 2018 it would appear unlikely that the father would be significantly able to change his behaviour.
In regard to X’s relationship with the father, Ms H thought it likely to become strained and that there was a risk their relationship could break down if the father is unable to protect X from his negative views of the mother, and if X continues to feel pressured to make decisions about the arrangements for spending time with him. While the father appeared to recognise such conversations may place pressure on X, Ms H noted that it seemed difficult for the father to refrain from doing so.
X clearly expressed a preference to spend time with the father as per the current arrangements, with her reasons appearing considered and reflective of her experiences of her father. Ms H stated that considerable weight could be given to X’s views given her age and stage of development and, while supervised time is often not in a child’s best interest, in this case supervised time offers the optimal arrangement for X to spend time with the father whilst supporting her overall emotional wellbeing and safety.
When assessing the parents’ understanding of X’s needs, Ms H noted the father presented as a committed parent eager to be actively involved. But when X’s views were shared with the father, he became agitated and upset, and it appeared challenging for the father to understand X’s point of view, it became difficult for him to regulate his emotions, and resulted in him swearing, raising his voice, and stating he would ‘give up’ in respect of the Court proceedings.
The mother presented as child focused and supportive of X’s relationship with her father.
Ms H viewed the key issue in dispute was whether X should spend increased and unsupervised time with the father. Based on the information in the assessment, Ms H believed it was not clear that X spending unsupervised time with the father would, at that stage, be in X’s best interests.
Ms H also suggested for the report to be provided to the father’s psychologist as the father would benefit from ongoing support, and the father being provided with the report may have a negative impact on his emotional wellbeing and engagement with X on the next occasion.
Specific Issues Report Dated 20 December 2023
The Specific Issues Report dated 20 December 2023 was prepared by Mr C. In the report, Mr C set out the specific issues identified in the Orders dated 23 August 2023, namely:
(a)Any views expressed by X provided she is not required to express a view in relation to any matter;
(b)The nature of the relationships between X and each of the parents and with significant other persons; and
(c)Such other issues as considered relevant.
Mr C noted in the report that, given X’s age and extensive experience with supervised time, conducting formal observations would not significantly add to the assessment and their absence was not considered a limitation.
In the report, Mr C noted that X clearly, articulately, and repeatedly expressed the view that she does not want changes to the current arrangements and that she would feel uncomfortable if a supervisor was not present when spending time with her father. X also made it very clear that she loves and looks forward to seeing her father, but that she does not wish to extend the time past four hours because she starts to feel tired, and she notices changes in the father’s behaviour such as him becoming cranky. Mr C commented that from what and the way X expressed herself, it was clear that as much as she loves and understands the impact of her father’s injury, she still experiences spending time with him to be emotionally and physically taxing. Mr C noted that X demonstrated significant compassion for the difficulties her father experiences.
Mr C also noted that X raised concerns about the father’s reaction to the Specific Issues Report during their time together, and Mr C assured her that the report would be delayed until after her birthday.
In respect of X’s relationships, Mr C identified that X had a generally positive relationship with the mother and the occasional tensions were as would be expected in a relationship between an adolescent and a parent. X also indicated positive views regarding her younger sister, and did not identify any concerns in relation to her stepfather. While X raised a difficulty in respect of a maternal relative, she generally reported positive relationships with most of her family.
In respect of her father, X said ‘He won’t respect my opinion’ and that he would not listen when she tells him she does not want more time or to ring him. Mr C noted that X had felt upset when the father had offered her money to contact him by telephone and that while X does not mind calling the father, she does not want it to be an obligation. Mr C observed that the dynamic was not significantly impacting X’s relationship at the time, but it is possible X’s desire to spend time with the father will diminish over time because of it.
Mr C summarised:
[X] demonstrated a level of maturity and sophistication, as well as empathy for her father, beyond what may be considered as typical for her age and state of development, when explaining her views. There was nothing in what [X] said, or the way she said it, to raise concern that her views had been significantly influenced by anything apart from her own lived experiences. No reasons were identified to suggest [X]’s views should not be given significant weight by the Court.
When considering additional information, Mr C noted the background from the Child Impact Report and that X’s views were very similar to those documented within.
In respect of the mother, Mr C noted that she was supportive of X’s expressed views and her opinion that X was of an age capable of making decisions about the time she spends with her father. The mother also expressed concern about the father’s capacity to regulate his moods and manage his behaviour when with X, her ongoing fear for herself, and the impact of the father using ‘[prescription medication]’.
In relation to the father, Mr C noted the father’s belief that X’s views had been negatively influenced by the mother, that X was fearful of the mother, and his frustration that the four-hour arrangement does not allow for activities. The father recounted his concerns that the mother had been violent to him in the past, and that the mother had sustained a significant injury whilst younger which impacts her thinking and behaviour. The father told Mr C that his use of prescription medication does not affect him, apart from slurring speech when spending time with X.
In conclusion, Mr C recommended no changes to the arrangements for X to spend time with the father. Mr C also raised the possibility of orders for arrangements contingent on X’s views in light of the likelihood of changes in the way she spends her time as peer relationships, study, and part-time employment may become more important to her.
DETERMINATION
The best interests’ considerations below are to be read and understood together with the Court’s findings made earlier.
Best Interest Considerations
Section 60CC(2)(a): What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
In 2019, a final ADVO was made for the protection of the mother against the father for a period of two years.
The father has displayed erratic and at times violent behaviour while spending time with X, including when such time was supervised:
(a)The father has denigrated the mother to X;
(b)The father has threatened to harm the mother in X’s presence;
(c)The father has commented on X’s body and weight, including when asked not to;
(d)The father has threatened to harm himself in the presence of X; and
(e)The father has punched walls and thrown chairs, and he has assaulted the mother’s husband.
X has described that she does not feel safe to spend time with the father, unless such time is supervised.
Section 60CC(2)(b): Any views expressed by the child
X is 16 years old, and her views are afforded significant weight.
X’s expressed views about spending time with the father have been consistent for years. While she enjoys seeing her father, she is worried about his behaviour and has expressed a firm view that her time with the father remain supervised.
Section 60CC(2)(c): Developmental, psychological, emotional and cultural needs of the child
X is a mature young woman, well on the path to adulthood.
She is about to start a course of study.
Section 60CC(2)(d): Capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
X has some vulnerabilities relating to anxiety, which have been supported by the mother and the care that she provides, including through assisting X in obtaining counselling as needed.
The father has demonstrated a lack of capacity and insight into meeting X’s needs. He has behaved in a manner that is hurtful and embarrassing to her, and his behaviour has at times made her fearful.
Section 60CC(2)(e): Benefit to the child of being able to have a relationship with child’s parents, and other persons who are significant to the child, where it is safe to do so
X has a close, safe, and loving relationship with the mother.
X loves her father and wants to continue spending time with him, as long as she feels safe and supported. In those circumstances, she will benefit from a continued relationship with him.
Section 60CC(2)(f): Anything else that is relevant to the particular circumstances of the child
The father is the applicant in these proceedings. He has time and time again failed to comply with procedural orders made for the purpose of progressing these proceedings. Ultimately, and notwithstanding that he is the applicant, the final hearing occurred on an undefended basis against him.
The Court notes that the father’s continuation of the proceedings, in the face of X’s clear views and level of maturity, and his recalcitrance in terms of procedural orders might be indicative of the father putting his own needs above those of the child.
CONCLUSION
In all of the circumstances, the orders as proposed by the mother and the ICL jointly are appropriate and in X’s best interest.
It is in X’s best interest that she live with the mother, who will be solely responsible for all long-term decisions for her. The father will not be left out, as the mother will inform him before she makes the decision, and he can then choose to provide feedback.
X will have the opportunity of spending time with the father, in a safe and supervised setting, and subject to her input. While this will require the parents to co-operate and agree on the time, they have shown a capacity and willingness to do so to date.
The balance of the orders the Court makes are self-explanatory noting the issues raised on the evidence.
Costs
Costs of the mother were reserved on 17 November 2023 and 15 April 2024.
If such costs are pressed, the determination of that issue, subject to the parties not objecting, can be done on the papers.
The Court so orders.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 28 October 2024
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