Sappington and Sappington

[2019] FamCA 244

FAMILY COURT OF AUSTRALIA

SAPPINGTON & SAPPINGTON [2019] FamCA 244

FAMILY LAW – CHILDREN – Best interests of the child – Where the father seeks the youngest child be removed from the mother’s primary care into his care – Where the mother seeks that the youngest child live with her – Where the Independent Children’s Lawyer supports the father’s proposal – Where the mother unilaterally relocated to the E Region – Where extensive Child Protection history – Where the mother alleges the father poses a risk to the child – Where the mother has sought to alienate the child from the father – Where the court satisfied the mother will not facilitate a relationship between the child and the father – Where the mother’s conduct constitutes family violence – Where weight given to the child’s wishes considerably reduced – Where greater weight given under s 60CC(2)(b) than the benefits of the child maintaining a relationship with both parents – Order that the child live with the father and the father have sole parental responsibility.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 64D, 65DAA,
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170

APPLICANT: MR SAPPINGTON

RESPONDENT: MS SAPPINGTON

INDEPENDENT CHILDREN’S LAWYER: Ms Bassano

FILE NUMBER: CSC 383 of 2010

DATE DELIVERED: 18 April 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 3 and 4 April 2019

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Mr McGregor

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Bassano Law

Orders

1. All previous parenting orders relating to the child X born … 2006 (“the child”) be forthwith discharged.

2. The child live with Mr Sappington (“the father”).

3. The father have sole parental responsibility for the child.

1. Ms Sappington (“the mother”) is to cause the child to be delivered at 3:00pm on 23 April 2019 to Cairns Family Court registry.

2. In the event the child is not delivered up to the Cairns Registry at 3:00pm on 23 April 2019, then the father has liberty to seek a Recovery Order, or such other order effecting the change of the child into his care as he may see fit.

3. The Family Report Writer (by telephone) and the Independent Children's Lawyer will meet with the child as soon as possible after her going into the father’s care to explain these Orders to her.

4. The child is to neither spend time nor communicate with the mother until 30 August 2019 (“the moratorium”).

5. From the conclusion of the moratorium, the mother may spend time with the child as follows:

   (a)   In 2019:

   (i)     In the September/October school holidays from 10:00am Tuesday 1 October until 4:00pm Friday 4 October such time to be spent within a radius of 100km of Town B (“the Town B Region);

   (ii)    In the Town B Region in the Christmas school holidays from 10:00am Monday 16 December until 10:00am Friday 20 December;

   with all changeovers to occur at Centre A.

   (b)  In 2020 and each alternate year thereafter:

   (i)In the first half of the Easter school holidays from 10:00am on the first Saturday until 10:00am on the second Saturday;

   (ii)In the first half of mid-year school holidays, from 10:00am on the first Saturday until 10:00am on the Second Saturday;

   (iii)In the first half of third term holidays from 10:00am on the first Saturday until 10:00am on the second Saturday;

   (iv)For the first half of the Christmas school holidays from 10:00am on the first Saturday until 10:00am on the middle Saturday;

   (v)For no more than four weekends to be nominated by the mother, provided that:

   (a)The time is to be spent in the Town B Region;

   (b)The time is to commence at 10:00am on Saturday and conclude at 5:00pm on the Sunday;

   (c)The weekend must not coincide with the child’s birthday, Father’s Day, Easter or Christmas;

   (d)The mother advises the father of her nominated weekend no less than 28 days in advance.

   (c)  In 2021 and each alternate year thereafter:

   (i)In the second half of the Easter school holidays from 10:00am on the second Saturday until 10:00am on the last Saturday;

   (ii)In the second half of mid-year school holidays, from 10:00am on the second Saturday until 10:00am on the last Saturday;

   (iii)In the second half third term holidays from 10:00am on the second Saturday until 10:00am on the last Saturday;

   (iv)For the second half of the Christmas school holidays from 10:00am on the middle Saturday until 10:00am on the last Saturday;

   (v)For no more than four weekends to be nominated by the mother, provided that:

   (a)   The time is only spent in the Town B Region;

   (b)The time is to commence at 10:00am on Saturday and concluding 5:00pm on the Sunday;

   (c)The weekend must not coincide with school holidays, Father’s Day, Easter or Christmas;

   (d)The mother advises the father of her nominated weekend no less than 28 days in advance.

6. The parties are to forthwith undertake all steps necessary to allow changeovers in 2019 to occur at the Centre A.

10.All changeovers not specified in these orders as taking place at the Centre A are to occur at McDonalds at Town B.

11.Until the end of the first school term of 2020, the mother, whether herself, by her agent or howsoever, is restrained from attending any place where the child may be attending at school, or extra-curricular activities which she may be undertaking from time to time.

12.From the conclusion of the moratorium, the child will communicate with the parent whose care she is not then presently in (“the absent parent”) between 6:30pm and 7:00pm each Thursday, and on the following days:

(e)The child’s birthday;

(f)On the absent parent’s birthday;

(g)On Christmas Day;

(h)On Mother’s Day, if the mother is the absent parent ;

(i)On Father’s Day, if the father is the absent parent.

13.The Independent Children's Lawyer is to forthwith identify an appropriately trained allied health professional to assist the child adjust to these orders.  Upon finding the appropriate allied health professional, the Independent Children's Lawyer has liberty to provide a copy of all the Family Reports (Ms C’s two reports and Mr O’s report) and Reasons for Judgment to that person.

14.These Orders shall, without more, act as authority to the child’s school to provide each parent (at that parent’s expense) information about the child’s education’s progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents.

15.These Orders shall, without more, act as authority to each of the child’s medical practitioners (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the child’s medical condition, treatment and copies of medical records and reports.

16.Each parent will ensure that the schools attended by the child, and the child’s usual treating medical practitioners (including counsellors and psychologists) are provided with a copy of these Orders.

17.Both parties are restrained from being under the influence of alcohol or above the legal limit for driving while the child are is in their care, and restrained from consuming any illicit substances.

18.That during the time the child is with either parent, that parent shall:

(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b)      Speak of the other parent respectfully;

(c)Not denigrate or insult the other parent or other family members in the presence or hearing of the child.

19.Both parties are restrained from making any audio or video recording of the child save for still photographs taken with the child’s permission.

20.The Independent Children's Lawyer is discharged with the thanks of the Court on 1 October 2020.

21.Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sappington & Sappington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC383/2010

MR SAPPINGTON

Applicant

And

MS SAPPINGTON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 29 November 2016, Ms Sappington (“the mother”) and Mr Sappington (“the father”) entered into final parenting orders in relation to their three children, being Z (born in 2001, and hence presently 17 years of age) Y (born in 2003, and hence presently 15 years of age) and X (born in 2006, and hence presently 13 years of age) (“the children”).  Those orders provided, in substance, for the parties to equally share parental responsibility, and for the children to live in a week about arrangement with each parent, which would continue during term school holidays, although extend to two week blocks over the Christmas school period.  Although no such provision was made in relation to X (“the child”) in respect of Z and Y, it was ordered in relation to both school term and holiday time, that they “shall be at liberty to vary those times as they determine.”  That was because of Z and Y’s age, and further, their then fractured relationship with the father, which then saw them disinclined to spend time with him.

2. Those orders operated largely without incident for slightly in excess of a year until, in January 2018, the mother unilaterally, and despite the father’s express opposition, relocated herself and the children from the Town D area to the E Region.  Necessarily, that meant that the week about arrangement in relation to X was not able to continue, and there was thereafter no prospect of either of the older two children living in a week about arrangement, even if they so wished.

3. On 29 January 2018, the father filed an Application – Contravention in the Federal Circuit Court of Australia.  Next, on 21 March 2018 he filed an Application in a Case, seeking the return of the children to the Town D district and their enrolment in schools there from the end of the Easter School holidays in 2018.  In her Response to that Application in a Case filed 12 June 2018, the mother sought a convoluted suite of orders, but, as I read it, substantially sought to regularise her living in the E Region with the children.

4. It would appear as though the Contravention Application was heard in August 2018, and I was told by the mother that she pleaded guilty to it.  On 21 September 2018 the mother was ordered to enter into a good behaviour bond “which includes compliance with the orders made today” which orders provided for X to spend time with the father in the then forthcoming school holidays and over a long weekend.  However significantly there was no suspension or purported discharge of the 29 November 2016 orders, nor otherwise any attempt to regularise the mother’s continuing breach of those orders.

5. On 5 December 2018, the matter was transferred from the Federal Circuit Court to the Family Court of Australia.  On 14 March 2019 I conducted a Trial Management Hearing, and listed these proceedings for trial commencing on Wednesday 3 April 2019. 

6. At that trial, the father sought orders permitting, in effect, the mother and the older two children to remain living in the E Region, but requiring X to return to Town D, and move primarily into his care.  He proposed he have sole parental responsibility for her.

7. On the other hand, at trial the mother sought orders that she have sole parental responsibility for all three children, who would live with her.  Whilst the mother did not contemplate any further orders in relation to the older two children spending time with the father, she proposed that X “spends half school holidays with her dad.”  However she went on to further propose that “X has the right to vary order in consultation with both parents, acknowledging that she has extended family and friends that she will want to spend time with.  Acknowledging the needs of an aging teenager without us returning to Court.”  In effect therefore, the mother was proposing that X would determine what time, if any, she would spend with the father in the future.

8. The Independent Children's Lawyer supported the position of the father. 

9. On 4 April 2019, the trial before me concluded, and I reserved my judgment.  This is that decision and the reasons for it.

BACKGROUND FACTS

The mother

1. The mother was born in 1976.  She mother grew up in the F Region of New South Wales, and it appears that she had a very difficult childhood, particularly because her mother was prone to violence.  It seems that violence led to the maternal grandmother’s relationships, including that with the mother’s father, Mr G, being tempestuous.

2. The mother was 17 or 18 when she formed a relationship with the father in 1994.

The father

1. The father was born in 1968.  I know little of his life until, when he was 25 or 26 years of age, he formed a relationship with the mother.

The relationship

1. Although I know that the parties commenced a relationship in 1994, there is little detail in evidence of its early history.  However in 2000, when the mother was 23 years of age, a family member committed a serious crime, was convicted and sentenced to a lengthy period of imprisonment.  I have little doubt that these events greatly affected the mother, and perhaps the father too.

2. The parties married in 2001.  At some stage, they moved to live in the Town D district.  As I have indicated, the three children were born in 2001, 2003 and 2006 respectively. 

3. The parties finally separated in January 2010.

Post-separation

1. It is unnecessary to traverse in any particular detail the considerable history of conflict and acrimony which have filled the more than nine years since these parties separated.  It commenced with a domestic violence order obtained by the mother against the father in February 2010, the first of many such orders that have come and gone over the years. 

2. Whilst it appears as though the children have always primarily lived with the mother post-separation, there is a long, albeit checkered, history of the children spending time with the father.  A further feature post-separation has been the mother’s intermittent declarations of an intention to relocate away from Town D, variously to the F Region, City H or City J.

3. Communication between the parties post-separation has always been problematic.

4. An important post-separation feature has been the difficulties with all three children’s psychological health.  Z has at times suffered from a serious eating disorder and shown a propensity for self-harm.  Y apparently suffers severe anxiety and has been occasionally bullied at school.  X also has mental health difficulties, and is presently in counselling.

5. It appears that all three children are aware of their family member’s crime.

6. The parties’ proceedings came on for trial before me in 2016, and resolved on 29 November of that year.  I have already detailed, in broad terms, the litigious history since then.

Current situation

1. At the time of the trial before me, the mother remained living in the E Region with all three children, who are attending schools there.  She has obtained employment in administration.  Z is in her final year of high school, and it is said that she intends to study medicine, preferably at University K.  It appears as though her academic performance is of such a standard as to make that a realistic possibility.  Although her self-harming behaviour has abated, it seems that her eating disorder continues.

2. Y had difficulties in adjusting to the move from Town D to the E Region, and was reported to be suffering severe anxiety in consequence.  Perhaps it has now settled.

3. X, on the other hand, appears to have coped better than Y with the change, and on 22 September 2018 reported to Mr O, the Family Report writer in this matter, that she was enjoying school and had good friends in her new location.  However she remains close to a friend in the Town D district, whom the father described as “more of a sister” to X.

4. For his part, the father remains living a little distance from Town D.  At the time of the hearing before me, he had recently obtained employment, which employment sees him work relatively flexible hours. 

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that 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 for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

1. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

2. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal.  Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases.  

4. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

SECTION 60CC CONSIDERATIONS

[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

Overview

1. Although ordinarily I would analyse parenting cases by reference to the issues which the case generates, usually distilled with the assistance of the parties at the Trial Management Hearing, given that both parties are self-represented, and the speed with which the trial was prepared and heard, that did not occur. Further, as it transpired, there is need for my judgment to be published with some haste. Therefore I propose to simply address each of the relevant s 60CC considerations, and in due course identify the matters which are particularly pertinent to the exercise of my discretion in this case.

The benefit to the child of having a meaningful relationship with both their parents

1. Mr O (who, at least initially, was not required for cross-examination by either party) observed that all of the children in this matter have a strong attachment with the mother.  However he went on to say “this attachment however is questionable…” because of his belief that the mother was actively undermining the children’s relationship with the father.

2. Z now has no relationship with the father, and it seems Y last saw him in 2017.  X, however, lived week about with the father in 2017, and has spent some holiday and other time with him in 2018.  The father and the Independent Children's Lawyer have a great concern that X’s relationship with the father is in peril if she remains living with the mother.

3. In his oral evidence, Mr O said that the absence of a meaningful relationship with the father would likely effect medium and long term damage to X.  He thought that depression and anxiety were likely to flow from a loss of her attachment to the father, and was troubled that there may be longitudinal depression, which he says is harder to deal with than other forms of that illness.  He therefore thought that there were positive and strong benefits to X in having and maintaining a meaningful relationship with her father.  However he opined that the difficulty in this case was structuring orders in a way which would ensure the continuation of that relationship.  I accept all of that evidence. 

Need to protect child from physical or psychological harm or from being subjected to being exposed to neglect, abuse or family violence

1. Mr O was of the view that the children have been subjected and exposed to psychological harm, by virtue of being exposed to the conflict between the parents.  Neither party seriously disputed that.

2. The mother asserts that the father has physically harmed X, including striking her, and arguing with her to the point where she is so distressed that she vomits.  Indeed so much has been told by X to, not only a guidance officer at her current school, but also to both Ms M, a Family Consultant who prepared a Child Inclusive Conference Memorandum in July 2018, and Mr O towards the end of that year.  Further, X claims she would have arguments with her father every day when she spent time with him on a week about basis, before she moved away.

3. In her interview with Mr O, X is recorded as having said “that her father hits her when they get into an argument and that he has hit her with a “coat hanger” and thrown the “pet” at her in the past.”

4. The Department of Child Safety has investigated X’s complaints, however as I shall discuss when considering the extensive Child Protection history in this matter, no substantiation of harm has ever been made against the father, and certainly no criminal proceedings have ever been brought against him.

5. Before me, the father was cross-examined about these allegations, but emphatically denied that he has ever physically hit any of the children with anything, and has not even used a coat hanger in the course of play with them.  Rather he said that X is quite determined to get her own way, and gave an illustration of her asking questions, and not being satisfied with non-responsive or evasive answers, but pressing for a substantive response.  I accept that evidence.  The father impressed me as an honest witness, and a loving parent, albeit very frustrated as the difficulties he has faced in this matter.

6. The material does not persuade me that the father has been physically violent with the children, and particularly X, and only persuades me that he is occasionally in conflict with X, in part because of her personality, but no doubt in part because she is now a teenager, with the attendant conflict which those years bring as children seek to become more independent of their parents.

7. In his submissions, Mr McGregor, counsel for the Independent Children's Lawyer, contended that the mother has engaged in a concerted campaign to alienate the children from the father. Further, he said that conduct seeking to prevent the children from making or keeping connection with the father, qualified as family violence as defined under s 4AB of the Family Law Act. He therefore contended that the risk of harm which Mr O identified might ensue if X is prohibited from keeping a meaningful relationship with the father, was a risk which arises for consideration under s 60CC (2)(b), and to which under s 60CC(2A) greater weight must be given than the benefits to the child of maintaining a relationship with both parents. That appears to be correct.

8. In this context it is illustrative to consider part of the voluminous material in evidence derived from the files of the Department of Child Safety.  Whilst it is always difficult to confidently make conclusions on such material, given the heavy redaction which they invariably contain, nonetheless some clear patterns emerge. 

9. The most recent activity involving the Department appears to have been in late 2018.  In the record of that activity, under the heading “Child Protection History,” a Departmental officer noted:

   Since 2010 recorded twenty (20) child concern reports and one notification in 2012.  Themes: ongoing concerns raised regarding the children whilst in care of [the father], continual themes of inappropriate behaviour; observing girls undress her and shower and reports of [the father] making threats of physical abuse and being verbally abusive.  [The father] previously withheld children from mother, since there have been FLC orders.

10. In early 2016 there was a notification received by the Department, which appears to have generated a review of the history of notifications and reports to that point in time.  Whilst I do not state to recite them all, there are, as the summary in 2018 indicates, common themes of the father having physically hurt the children, but other more florid allegations of him feeding the children dog food, pointing a nail gun at them, lying on top of them, and the like.  In that 2016 report, under the heading “risk factor,” it was noted:

    .. Mother has a history of abuse and neglect as a child, it is well documented that childhood history of abuse can impact on parenting, increasing the risk of harm due to poor parental modelling.  Additionally the children’s mother is presenting with poorly managed depression…

11. In October 2016, a further notification was received by the Department.  Of course the notifier is not identified in the material before the court, so one is left guessing who it might have been.  However plainly there was then a looming Family Court proceeding, and it is impossible not to view the notification in that context.  Precisely what the concerns of the notifier were not altogether clear, but it appears to be the father lying on top of X, throwing one of the children’s pets into the fire while they were watching, and an allegation that the father had physically thrown Z down onto the ground.

12. It is recorded that “Z said that the last time she went to her father’s that she only went to protect her sisters.  She resented her sisters for wanting to go there because then she felt she had to go to protect them.”

13. Importantly, the October 2016 Departmental notes record a discussion with the children’s school principal.  Part of that says:

    Principal … stated that she has not observed any changes in [X’s] behaviour.

    …

    [The principal] is aware that [X] now has unsupervised [time] with [the father].  [The principal] did not hold any concerns around this.  [The principal] stated that she was aware of previous allegation against [the father].  [The principal] stated that [the father] .. appears to have the best interests for the children.

    Aware of the unsupervised contact with father – father is over the moon.  Dad has the best interests of his girls.

14. The October 2016 notification apparently led to the children being interviewed by Police.  There is an email in evidence sent by an officer at the Town D Child Protection Investigation Unit to a person whom I assume to be a Departmental Officer.  Although again partially redacted, relevantly it provides:

    Please find attached a summary document relating to all information relating to notifications, 93A and police action relating to the family [SAPPINGTON].  From reviewing these occurrences at no time have any of the girls disclosed offences of a sexual nature and they have now been interviewed under 93A on three separate occasion.  [Redacted]  [The mother] was observed pressuring and leading one of her children during an interview with no free disclosure made without prompting from [the mother].  I am under the belief that [the mother] has now stopped all of the girls having any visitation with their father so the most recent notification October 2016 is surprising.

15. There do not appear to have been any notifications to the Department in 2017, however, more were generated in early 2018 when the father was seeking to re-instate spending time with the children, notwithstanding their relocation to the E Region.  The notifications that were generated in that time relate to X and claim, amongst other things, that she was very distressed about going to her father’s home in two weeks’ time for school holidays, perhaps because she says he watches her closely, particularly in the bathroom, and sometimes would remove a towel she had taken into the bathroom to dry herself with.  There are further allegations that the father has told X he was going to show her naked video recordings of her older sisters, that he has killed a chicken with a nail gun, kicked a puppy, and thrown two kittens at X in the past.  Further it is said that the father has previously punched X in her face, legs, arms and gut, and slapped her on the same body parts.  It is said that “[X] said that she has had bruises all over her body in the past.  He has been doing this for a long time.  Her sisters have also shared stories of her dad hurting them.”

16. The outcome of that notification was that the children were not in need of protection, albeit because the Department thought the mother could withhold X from attending the father if she was sufficiently troubled.

17. There was then a further notification in October 2018, where again it was said that X has reported certain things that the father has done; they appear to be basically a re-hash of the March 2018 concerns.  However it is said “notifier advised X is expected to spend four days alone with [the father] during his visit to the E Region [redacted] worried that [the father] will continue to harm X during the visit.”

18. It was the context of this notification that the child protection history that I have recited at paragraph 51 was made.

19. That notification led to the following assessment:

    Whilst the disclosures are worrying, there is no timeframes of (sic) contextual information around these, there have been no previously observed injuries as a result of physical abuse.  X has further stated that she still wants to see her Dad, indicating there (sic) X may not have significant feelings of fear towards her father.  Further it should be noted there is a pattern of reported concerns regarding children in father’s care that occur prior to children visiting with father however limited reports occurring after the children have returned from father’s care.  Indicating there may be some worries that do not eventuate during visits.  Whilst X is worried her father will not return her to her mother’s care, there are Family Law Court orders in place that will allow mother to address this concern should this occur, there is limited history to support that this worry will eventuate.  At this time there is insufficient evidence to indicate that X is at significant risk of detrimental harm whilst in the care of her father.

20. In this context I should also advert to a most troubling 10 page document written by Z attached to the mother’s affidavit.  The mother says Z wrote it to give to the 2016 Family Report writer, Ms C, however says that Z also gave it to her.  In it, Z refers to the father as “Mr Sappington” rather than any designation reflective of the fact that he is her father.  Much of the material contained therein are petty complaints of an unhappy teen against their parent.  However what is troubling is that a teenager (then seemingly about 13 or 14) has typed 10 pages of closely scripted material listing her complaints, seemingly to assist her mother.  It shows that she was not merely aware of, and exposed to, her parents’ conflict, but actively engaged in it on her mother’s side.

21. There are other matters which show the mother’s campaign against the father as well.  Perhaps the most obvious is her unilateral relocation in January 2018 to the E Region with all three children.  Her explanation for that move was that Z had developed something of a reputation in Town D, not only because of her self-harming behaviour, which was apparently well known, but also because she had on two occasions dated girls rather than boys.  Under cross-examination, the mother freely conceded that by moving to accommodate Z’s concerns, she was preferring her welfare over X’s relationship with the father, and indeed Y’s prospect of a relationship with him as well.  Moreover this relocation must be viewed in the context of the mother having, on at least three earlier occasions, unilaterally advised the father that she intended to relocate away from Town D.

22. Further, after the relocation, the mother has permitted both Z and Y, in their school enrolments, to identify that their preferred family name was in fact G.  This was notwithstanding that at their previous school they had been enrolled as Sappington, their surname legally remains Sappington, and G is a name by which they have never previously been known.  Therefore it seems as though in fact Y and Z now identify to their new peer group by the surname of G rather than Sappington.

1. Allied to this is the mother’s tolerance of the children in her home referring to the father not by any designation reflecting that relationship, but rather by his first name.  The mother attempted to say that there was no significance to that, in that she herself would refer to her own mother by her first name, but even if that be true, I do not accept that by permitting the children to refer to the father by his first name, she is not thereby, at least condoning, and likely actively seeking, the undermining of the paternal relationship.

2. Further, as I shall detail later in this judgment, the mother has sought to place considerable obstacles in the path of the father spending time with X after January 2018, comprising firstly, making allegations of physical abuse of X by the father, which are offered as pretexts for not making the child available to spend time with him, and secondly, arranging attractive activities which clash with the father’s proposed time with X, which necessarily at once motivate the child not to spend time with the father, and create different experiences for the siblings if X does nonetheless spend time with him.

3. The mother was vociferous in her protests in cross-examination that she was not seeking to impede X’s relationship with the father, but I do not accept that.  I am well satisfied that she has, and likely will continue to, actively impede and undermine not only X’s, but all three children’s, relationship with the father.  It is unnecessary for me to speculate, much less conclude, her motivation for doing so, but it seems quite possible that her own very troubled childhood is in some way playing out with her own children.

4. The evidence of Mr O was that the lack of a relationship with the father is likely to harm X in the ways I have detailed earlier.  I am satisfied that the mother is indeed seeking to keep X from having a relationship with a family member, being her father.  It therefore follows that the submission advanced by Mr McGregor is made out in this case, and the mother’s conduct comprises a species of family violence.    

Views expressed by the children

1. Z and Y do not wish to spend further time with the father.  They were adamant to that effect in their interviews with Mr O.  Z is recorded as having said “I hate him, because of all the stuff that has happened,” and Y as saying “I just didn’t feel safe there,” and then went on to say “he was violent, rude and mean and would always cause arguments.”  Mr O recorded “they both noted that they are worried for [X] given what they have both seen, noting that X tells them what is going on in their father’s home.”

2. However at [80] Mr O said as follows:

   80. Whilst [Z] and [Y] have expressed that they do not want contact with [the father], I do hold my reservations around how they have come to these wishes.  Both [Z] and [Y] both displayed signs of parental alienation with comments such as, “I hate him, because of all the stuff that has happened; I just didn’t feel safe there,” and “he was violent, rude and mean and would always cause arguments.”  After reading all the material in this matter, I can find no substantiated material to authenticate these statements.

3. As to X, she was interviewed twice by Mr O, firstly at her mother’s home and secondly at the father’s.  She told him:

   ·“She must go up for every holiday and does not want to do this as she wants to spend time with her sisters and mother on the holidays as well”;

   ·That she has a “good” relationship with the father, but “he hurts me; we have arguments”;

   ·That the father has hit her when they get into an argument and he has hit her with “a coat hanger” and thrown the “pet” at her in the past;

   ·That she gets overwhelmed in arguments with the father to the point where she has vomited.

4. Interestingly, when interviewed later at the father’s residence, X reported that her time with him thus far had been “good.”  However she complained that the father will raise his voice and bring up issues, and said that although she had not been hit this holiday “we have had a few arguments.”

5. She told Mr O that she would not like to come back up to Town D “as she would like to have a strong relationship with her sisters and she has made friends where she is.”  She denied her wishes were the product of pressure put on her by her sisters, but interestingly also said “I put my boundaries up” around her decision making as to whether she would or would not spend time or speak with her father.  To my mind, that is an implicit acknowledgment of the open hostility to the father in the mother’s household.  There was also a concern expressed by X that the father might “rape” her, but her understanding of that concept appears to be merely touching without consent, rather than having any sexual connotation.

6. As to X’s wishes, Mr O at [83] said:

   83. I would usually note that a child in this age group has the cognitive ability to express their wishes and understand the consequences of these wishes, however considering the environmental influences in this matter, I am inclined to recommend to the court that the material be given more weight than [X’s] expressed wishes.

7. As I have detailed earlier, I am well satisfied that the mother is antipathetic towards the father, and desirous of minimising any relationship between him and the children.  I have also referred to the mother’s concession that she prioritised Z’s wellbeing over the father’s relationship with the children, by moving to the E Region in 2018.  There are also the other indications of her being content for the children’s relationship with the father to wither and die, including:

   ·Her accepting the children referring to the father as by his first name;

   ·Her accepting that the older children will be known at their new school not by the surname of Sappington, but by her maiden name of G;

   ·The regular involvement of the Department in advance of the children, and most recently X, being scheduled to spend time with the father, which I interpret as being a tolerably clear attempt to generate justifications for the children not spending time with the father as planned.

8. It cannot be overlooked that during 2017, X spent each alternate week with the father, and there were, it seems, no notifications to the Department made in that time.  The notifications that have been made, and X’s complaints, appear to have their genesis in the mother’s household (albeit the mother may not be the actual notifier) and I am well satisfied that there is an atmosphere of open hostility towards the father demonstrated in that home by not only the mother, but by Z and Y as well.

9. I therefore accept Mr O’s view that the weight which would otherwise be given to X’s wishes is considerably reduced.

The nature of the relationship of the child with each of their parents

1. I have already observed that the older two girls do not have an extant relationship of any significance with the father.  Since the orders were made in November 2016, their relationship with him has worsened.  X has an intact and fair relationship with the father, however I accept Mr O’s pessimistic view that it “is heading the same way” as those of the older children.

2. Subject to the concerns of alienating the father from the children, the mother’s relationship with them appears sound.

The willingness and ability of each parent to facilitate a meaningful relationship with the other

1. The mother insists, and continued to do so before me, that she will permit X to maintain a relationship with the father, however I do not accept that evidence.  Not only did she unilaterally relocate X (and the other two children) some 1700km away from where the father was residing, thereby practically prohibiting the week about time regime that she had consented to only about a year earlier from (successfully) continuing, but she has thereafter sought to erect ongoing barriers to X continuing to spend time with the father.  These have been on two levels.  The first is to allege that the father poses a risk of harm to X.  The second is to manipulate circumstances so that X perceives that by going to the father, she is missing out on opportunities and activities which the mother and the other girls will undertake during that time.

2. As to the former, the clearest example perhaps is the mother’s email to the father of 24 March 2018, only two months after she had relocated without his consent.  It relevantly reads:

   [X] will not be attending your residence on the Easter school holidays.  It is not in her best interests.  [X] suffers anxiety, depression and panic attacks.  These attacks are a direct result of abuse you have perpetrated against her.  [X] stated on 21/03/2018 that she was in fear of you bashing, raping and killing her if she returns.  [X] reported this to me, her intake officer and her psychologist.

   [X] becomes anxious when you phone her.  She becomes in heightened state of anxiety, sometimes for hours.  [X] cries and sometimes screams that she does not want to take your call.  It is not in [X’s] best interests to receive phone calls from you.  [X] has access to a phone, she will phone you if and when she chooses. 

   I have notified [X’s] school that you are not to collect her, I have stated Child at Risk for such.

   Do not contact me or [X] by text or phone.

   Correspondence will only be received by email.  I have blocked your phone number will not be unblocking it.

   You attended the [E Region] earlier this month.  If you attend my property I will phone the police immediately.

3. Indeed an examination of the school records in relation to X confirms that two days earlier, on 22 March 2018, the mother had been apprehensive that the father may seek to speak with X at the school.  That record of contact with the mother is as follows:

   [X] will not be attending school today.  [The mother] came to the school to discuss the possibility that [the father] may be coming to the school to see or make contact with [X].  She did not want this to happen.  She advised that [X] has made contact with Kids Helpline and the DOCHS were assisting [X] but no contact with mum has been made at this stage from Child Safety.

4. As I have observed, the Department did not thereafter act in a way that substantially supported the mother’s concerns.

5. Precisely when the father thereafter spent time with X is unclear, but notwithstanding the mother’s 24 March 2018 email, later in the year the parties negotiated X spending time with the father, and indeed she was doing so in October when she was interviewed by Mr O.

6. However the negotiations between the parties in relation to school holidays demonstrate the second means utilised by the mother to seek to undermine the father’s relationship with X, namely providing attractive alternative options, which will disincline X from wanting to spend time with the father over school holidays.

7. In evidence before me was an email from the mother to the father of 13 December 2018.  At the time, they were discussing school holiday visits for 2019.  The mother said:

   “Furthermore as we are travelling to [Country P] for the June/July school holidays may I offer you make up time for the Easter school holidays for [X], alternatively make up time can be offered for the third term holidays.  This is the first holiday that all three girls and I have ever had the opportunity to take…

8. However, in a later email of 10 March 2019, the mother apparently changed her mind about X spending time with the father at Easter.  On 3 March he had advised the mother that “X’s plane ticket is booked for 8 April and my mum will be in the holidays looking forward to seeing her,” to which the mother, said on 10 March:

   I advised that [X] was hoping to spend these upcoming holidays with her aunts and cousin in New South Wales.

   [X] has now confirmed her intention to spend these holidays with her family and confirmation received from my sisters that would indeed love to spend time with [X].  They have not had the opportunity to see [X] for almost two years unlike [Y] and [Z] whom they see annually.  

9. The mother then went on to detail aboriginal cultural activities that X will be involved in with her aunts in the F Region.

10. As I understand it, the mother did not make arrangements for X to spend time with the father over the 2019 Easter school holidays.

11. All of this persuades me that the mother will not facilitate a relationship between X and the father, and will use allegations against the father, or manufacture more attractive options for X, so as to create obstacles to the relationship continuing.

12. The father is an untested primary carer of X, and hence his capacity to facilitate a relationship between her and the mother is also untested.  However there is nothing in the material before me which suggests that he will act in any way like the mother has, by seeking to restrict the child from spending time and communicating with her.  To the contrary, his approach often appears to be one of passivity and non-resistance to the mother’s demands, and certainly there is nothing which would suggest that he will seek to manipulate the child in a way so as to deprive her of a relationship with the mother.

Likely effect of changes in child’s circumstances

1. The parties’ proposals are starkly different.  The mother says that X should live with her, and spend time and communicate with the father as she may wish.  However I am well satisfied that the net outcome of that will be that the child will lose her relationship with the father, as her elder sisters have done.

2. On the other hand, the father proposes that X should come into his care, and in consequence, be removed from her mother’s primary care and from living with her two sisters.

3. I have already discussed Mr O’s opinion in relation to the likely effect on X of losing a relationship with her father.

4. However the impact of the father’s proposal upon X will also be considerable.  Mr O said that X would experience short term stress and upset at the move in to the father’s care, and would likewise be distressed at ceasing to live with her mother and sisters.  He thought that X would need the assistance of some counselling or other therapy to help her cope with that change.  That said, he thought that distress would settle, particularly with the assistance of counselling, and that X would adapt.

5. Of course, one of the most concerning aspects of the father and Independent Children's Lawyer’s proposal, is the separation of X from her two siblings, who are only slightly older than her.  Mr O in his report noted that the separation of siblings “is not normally recommended” but said that the children “are at an age where they can process the court’s decisions,” should they be required to relocate.

6. As to the effect of separation from X on the other two girls, Mr O thought that they would be concerned with their sister being placed in the primary care of the father, of whom they do not have a high opinion.  However he thought that the siblings would be able to work through those issues, although they may need some assistance in doing so.

7. As to the prospect that the sibling connection between the older two girls and X could be destroyed altogether, Mr O was of the view that would only occur if the mother allowed it to happen.  As to that, there was discussion about whether or not there should be a prohibition on communication between the siblings in which, although Mr O recommended a moratorium of time and communication between the mother and X, he recognised that in reality, the prospect of being able to achieve that between the siblings was practically remote.  Therefore the effect of the orders proposed by the father and Independent Children's Lawyer would see a moratorium of time and communication with the mother, but not of communication between X and the siblings.

8. Although I accept it will not replace sibling bonds, X does have a close friend in Town D, and the father’s evidence is that he has approached the child’s likely school, who is willing to place her in the same class as her friend, in order to assist her to adapt back to living in the Town D.  That may assist to some degree in helping the child cope with any change.

Practical difficulty and expense of child spending time and communicating with a parent

1. By virtue of the mother’s unilateral and unlawful relocation to the E Region, she has created practical difficulties and expense in any of the children spending time with the father, or indeed X spending time with the mother if she is in the father’s care.  That said, it is not contended that the parties cannot afford the costs of reasonably frequent travel for the child, or indeed themselves.

The capacity of the parents to provide for the needs of the child including emotional and intellectual needs

1. Although some slight criticism of made of the father’s housing, which is said to be somewhat messy, I do not understand there to be any suggestion that the parties are incapable of providing for the physical needs of the children.  Likewise there is no suggestion, at least on the material before me, that the parents are not able to provide for the children’s intellectual needs, and certainly that was not a concern of Mr O.

2. However Mr O, and indeed I, do hold reservations as to the capacity of the parents to provide for the children’s emotional needs, considering their perpetuation of parental conflict, in the knowledge that it must be distressing their children, given their obviously difficult psychological journeys to date. 

3. I am satisfied that the mother does not value the father’s involvement in the children’s lives, and does not appreciate the benefits which a meaningful relationship with him will provide them.  In that sense, there is a deficiency in her capacity to provide for their needs.

Maturity, sex, lifestyle and background of the child

1. Significantly, X has her adolescent years immediately ahead of her.  Mr O opined that “[X] certainly does not need the pressure she is getting from not only Ms Sappington, but also both her sisters in this matter.”  Further, there is plainly the opportunity for conflict between X and the father, given X’s habit of seeking to elicit answers to her questions, notwithstanding his attempts to avoid giving them.

2. However of greater significance is Mr O’s evidence that, during adolescence, X’s will be subject to influence as to how she sees her father, and particularly from her two siblings.  Having discussed this, he reached the following conclusion at paragraph 103 of the Family Report:

   103. The issue of the coercive effect of [Z] and [Y’s] views on [X] is prevalent in this matter and unfortunately it is my professional view that without drastic change, which may not be in [X’s] best interests, will eventually have the same effect on [X].

3. For his part, the father recognised that this was his last chance to have a relationship with a child of his.  He recognised that X was at a point in her life where, if he lost his relationship with her now, he may never regain it, or at least it would take many years to rebuild it. 

4. I accept that this is a critical stage of X’s life.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents

1. Both of these parties love their children, and take the responsibility of parenthood seriously.  However that is not to say that they are beyond criticism.  As to the father, he has in the past sought to protect himself from allegations made by the mother by audio and video recording of the children.  He has historically, it would seem, had some issues in relation to the consumption of alcohol, although as I say, they now appear to be in the past.  Moreover there is a demonstrated history of him being, as Mr O says, obstructive, irrational and confrontational when dealing with others in relation to his children.  There are good examples of that in his dealings with the children’s present school, although I accept that he was extremely frustrated at that time.  Nonetheless his behaviour falls below an appropriate standard.

1. There are criticisms that also must be levelled at the mother, however I am mindful of her own very difficult childhood, which must necessarily be factored into any understanding of her behaviour.  However nonetheless I am well satisfied that the mother has, by relocating to the E Region, unequivocally demonstrated that she does not see any significance to the children’s relationship with their father.  In his oral evidence, Mr O was highly critical of that, in that he thought it was one of the mother’s responsibilities as a parent to facilitate the relationship between the children and the father, which she has abjectly failed to do.  Particularly Mr O pointed out that the mother could have just as easily relocated to the Town B Region, in the event that relocation to help Z was actually necessary, which would have enabled the father’s relationship with the children to have been less impeded. 

2. At [122] of the Family Report, Mr O said:

   122. [The mother’s] actions are in line with the literature in this area which suggests that “parental alienation” is one of the tactics deployed by the residential parent who used the restriction of contact of the child with the non-residential parent, with the aim to undermine the relationship between the non-residential parent and the child, which has been successful regarding [the father’s] relationship with [Z] and [Y].

3. Further, at [126] Mr O concluded that the mother has not corrected her behaviour, which can only indicate that will continue.

4. I accept that evidence, as unfortunate as it is.

The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and an impact of a proposed parenting order that may have on that right

1. The mother, and hence the children also, have indigenous cultural heritage based in the F Region.  Although the mother is likely to be the principal facilitator of X and the other children enjoying that culture, I do not apprehend that, whether the children live in the E Region or Town D, will in any way impact that right to enjoyment of their cultural heritage.

Family violence issues

1. There have been several family violence orders made between these parties, however on the material before me, I am not satisfied that there has even been physical violence between them, notwithstanding the various allegations that have been raised from time to time by the mother.  On the other hand I am satisfied that the parental conflict at times has satisfied the definition of family violence, and further, the mother’s attempts to isolate the children from the father also satisfies the definition of family violence.

2. The inference which I draw from the fact of the family violence orders, is that the hostility between the parents at times has reached a level where the intervention of police and the Courts have proved necessary in order to ensure that the escalation of their conflict is contained.

PARENTAL RESPONSIBILITY

1. The evidence is littered with numerous examples of the parties being unable to negotiate in any meaningful way, and of the parties’ communication including many antagonistic barbs, seeking to either inflame or frustrate the other.  The mother has a long history of unilateral decision making in relation to the children, and I am not satisfied that she would willingly participate in equal negotiation with the father in relation to any matter.  For his part, as I have noted, the father at times appears to have a passive approach to conflict with the mother in negotiations, which does not suggest that a process of negotiation is likely to actually be of much use.

2. I am well satisfied that these parties could not presently discharge the obligations of equal shared parental responsibility in relation to X.  Therefore parental responsibility will need to flow with her primary residence.

WITH WHOM SHOULD X LIVE

1. This is the nub of the case.

2. During submissions, and with the assistance of the parties, I identified the following points as being in favour of the father and Independent Children's Lawyer’s proposal, or alternatively against the mother’s proposal:

   ·The Independent Children's Lawyer’s proposal is likely the only way X will have any chance of a relationship with both parents, from which relationships she will obtain benefit, and without them, will suffer;

   ·The Independent Children's Lawyer’s proposal will, notwithstanding they do not co-habit, nonetheless on balance likely see X maintain sibling relationships, or at least see them maintained as well as they otherwise might be, especially if Z goes to University or leaves home in 10 months time;

   ·The Independent Children's Lawyer’s proposal may perhaps assist, at some time in the future, the rehabilitation of older two sibling’s relationship with the father;

   ·The Independent Children's Lawyer’s proposal may shield X from her mother’s and siblings strongly adverse views of the father;

   ·The Independent Children's Lawyer’s proposal conforms with Mr O’s recommendation.

   ·The mother’s proposal is highly likely to see X lose her relationship with the father, which will likely have significant adverse psychological and other consequences for her in the medium to long term, and hence does not protect her from that harm.

3. On the other hand, the points in favour of the mother’s proposal, or against the father’s and Independent Children's Lawyer’s proposal, are as follows:

   ·The mother’s proposal would see no disruption to X’s present regime, including her relationships with her mother and siblings;

   ·There is a (very small) possibility that the mother’s proposal may shield X from the parental conflict;

   ·To the extent that the father poses a risk of harm to X, the mother’s proposal reduces, but does not eliminate, that risk;

   ·The mother’s proposal accords with X’s wishes, (although given that they are in part the result of the mother’s and her sibling influence, I give them much reduced weight);

   ·The Independent Children's Lawyer’s proposal will likely cause short term stress to X;

   ·The Independent Children's Lawyer’s proposal may, to an extent, impact adversely on X’s relationship with her mother and siblings; certainly in relation to the mother in the short term, but in relation to her siblings, it will depend on the mother’s reaction;

   ·The Independent Children's Lawyer’s proposal may not resolve the parental conflict in relation to X.

4. Weighing those considerations tellingly demonstrates that there is no good outcome in this case.  However, the reason for that is the mother’s unilateral relocation to the E Region.  As I said to her during submissions, it is she who has created this very sad situation, and she who must take the responsibility for it, and likewise, the responsibility for the inevitably poor outcome which this case must have.

5. Ultimately, weighing the relevant considerations in the balance tells generally in favour of the Independent Children's Lawyer and father’s proposal.  I place particular weight upon the fact that the elder two children have lost their relationship with the father, and that X’s will nigh inevitably go the same way, unless her primary residence is changed.  The cost of that is to dislocate her relationship with her mother and siblings.  However, with great reluctance, I assess that cost as being outweighed by the benefit which she will obtain from a relationship with her father.

6. There will therefore be an order that the child live with the father, and it follows therefore that sole parental responsibility should flow to him.  Although this outcome is far from ideal, it is, as compared with the alternative, more in the best interests of X, and hence I will so order. 

TIME AND COMMUNICATION WITH MOTHER

1. The mother did not articulate any proposal for the time which X should spend with her in the event that she did not live with her.  Particularly she did not address the suggestion by the Independent Children's Lawyer that there be a moratorium on her time and communication with the child, to enable her to settle into living with the father without the mother’s interference.  That proposal would see the child not spend time with the mother until the September/October school holidays in 2019, with further, albeit very limited, time in the December school holidays.  It was then proposed that there would be week blocks of holiday time in the Easter and September/October school holidays, but not the mid-year school holidays, and no time with the mother in the Christmas school holidays for 2020, other than Christmas Day itself.  Thereafter in 2021, the Independent Children's Lawyer proposed that there be a block of one week in each of the shorter school holiday periods, and a period of about 12 days (albeit in two separate blocks) at Christmas.  Perhaps it was oversight, but the Independent Children's Lawyer did not thereafter propose any time being spent by the mother with the child in Christmas holidays thereafter, albeit shorter holidays were addressed.

2. The first point to note in relation to the Independent Children's Lawyer’s proposal is that it would not allow the parties flexibility, as the Independent Children's Lawyer also proposes that there be no opportunity for the parties to vary the orders without order of the Court.  The second is that the Independent Children's Lawyer proposes that the mother’s time with the child, at least until the end of 2020, be spent in Town B, rather than elsewhere.  That said, the mother still retains property in the Town D district, albeit apparently the home on that property is rented out.

3. A further difficulty with the Independent Children's Lawyer’s proposal is that it severely restricts the mother’s time with the child, albeit communication would not be prohibited after 15 September 2019.  Since I have found that the child will benefit from a meaningful relationship with both parents, the regime of time needs to be at a level to ensure that the child continues to obtain benefit from a meaningful relationship with her mother.  Moreover the purpose of restricting the mother’s time to the Town B area for the next couple of years is a little difficult to fathom, unless the purpose behind it is to minimise the mother’s prospects of retaining the child, and hence further litigation ensuing to have the child returned to the father.

4. Of course, one further difficulty is that the mother has a clear history of breaching orders, and conceded that she would not comply with orders if she thought that compliance was inappropriate.  Thus, for instance, she said that she would not comply with an order requiring her to relocate back to the Town D area.

5. There is, of course, no ideal solution to this problem.  However whilst the only actual proposal before me is that of the Independent Children's Lawyer, I am not restricted to it.  Whilst that proposal does provide a mechanism whereby the child can maintain some relationship with her mother, and maximises the prospects of the child’s relationship with the father continuing relatively uninfluenced by the mother’s campaign against him, I am very troubled that the child may lose the significant benefits from her relationship with the mother.

6. That said, I am satisfied that there should be an embargo on communication and time between the mother and the child (but not between the child and her siblings) for some months, and thereafter the mother be permitted to speak with the child weekly for one half hour period each Thursday and gradually re-commence spending time with her.  However I am not satisfied that there should be any restraint on the child initiating communication with the mother should she so wish after the moratorium, and the mother should be permitted to take such calls.

7. Unfortunately, the swiftness of the bringing on of the trial, and its short duration, meant that I did not articulate to the parties the orders which, with the benefit of a little reflection, presently seen (subject to submission) to likely best pave a future path in this matter.  Whilst it is regrettable to perhaps have further involvement of the parties in this litigation, natural justice requires it.

8. I will therefore pronounce the orders as set out at the commencement of these reasons except orders 8 and 21, but afford the parties an opportunity to make written submissions in relation to order 8 within 14 days.

9. However, I should explain my provisional thinking behind proposed order 8, as follows:

   ·Resuming a communication regime between X and the mother in advance of the resumption of time, is likely to see that first period of face-to-face holiday time more effective;

   ·Requiring the mother’s time with X for the first year to be spent in the Town B Region will restrict the chances of her withholding her, however thereafter I cannot presently discern, on the evidence, any need for such restriction;

   ·The move to X spending half school holidays with the mother should be arrived at more swiftly than contemplated by the Independent Children's Lawyer, so as to ensure her relationship with the mother is not unduly restricted, and there are significant opportunities for her to spend time with her siblings;

   ·It seems practically sensible to split school holidays equally, including at Christmas, as it will allow both parents opportunities for longer holidays with X;

   ·The mother should be able to spend a weekend with X during each school term, should she so wish, so long as it does not affect days special to the father (except her birthday, which should be shared, if the mother wishes, by an alternate year regime).  To avoid disruption however, such time should occur near X’s home.

OTHER ORDERS

1. The Independent Children's Lawyer seeks restraints on the mother from attending the school of the child until 1 January 2022.  Exactly why that year was selected is a little unclear, and I am not persuaded that the mother should be excluded from the child’s education for that period of time.  On the other hand she should be excluded from attending the child’s school for the balance of this year and the first term of 2020 year.  She may attend X’s school and other activities from the end of first term in 2020.

2. The Independent Children's Lawyer also seeks orders under s 64D(2) of the Family Law Act, providing that these orders can only be varied by a subsequent order of the Court, and not by a parenting plan.  The reason advanced for that was the father’s passivity when dealing with the mother, at least in some respects.  It is said that his personality tends to accept matters that are imposed upon him by others, without much resistance.  Thus, for instance, as I understand the evidence, on two occasions now, while X has been in his care, he has permitted associates of the mother to attend upon the home and take her away.

3. On the other hand, the father has demonstrated a capacity to resist the mother, for instance, not giving his consent to her relocating with the children to the E Region, and bringing contravention proceedings, and indeed these proceedings, and prosecuting them with reasonable diligence.

4. Upon balance, I am not satisfied that the father’s personality, and to the extent that it exists, demonstrated history of passivity, comprise exceptional circumstances for the purposes of s 64D(2). Even if I were so persuaded, I would not exercise my discretion to include a s 64D(2) order, as it seems to me that to compel the parties to litigate further, rather than record any variation agreed by them in a parenting plan, does not allow any flexibility whatsoever in relation circumstances that may arise in the future. To take but one obvious example, it may be that X wishes to participate in a school exchange program. The orders would be unlikely to be an easy fit to such an arrangement. However before she could engage in such a program, it would require the parties to come back to Court.

5. Further, how the child reacts to these orders, and particularly the change in residence, given her wishes to remain living with the mother, is necessarily unclear. The predictions of Mr O, which I generally accept, are nonetheless only predictions, and may not prove accurate. If the child has some massive adverse reaction to these orders, and the father accepts the need for some different arrangements to prevail, to compel the parties to litigate in order to achieve an obvious and agreed solution, would be perverse. Therefore in my view, the best interests of the child would not be served by the making of an order under s 64D(2).

6. The Independent Children's Lawyer also sought that, if the mother does not produce the child to go into the father’s care, a recovery order issue without need for further hearing.  A recovery order should be a remedy of last resort.  To have the child physically torn from her home, mother and siblings by police, and forced into the father’s care, is unlikely to be an ideal start to the operation of these orders.

7. It seems to me a better option might be for the father to act so as to take the child into his care.  As unfortunate as it would be to require him to further litigate, it seems to me that it is not in X’s best interests for a recovery order to automatically issue.

8. Otherwise I am satisfied that the ancillary orders as sought by the Independent Children's Lawyer are in the child’s best interests, and I will make them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment with the exceptions of orders 8 and 21.  If the parties wish to do so, they may make written submissions about the proposed order 8 within 14 days.  In the event that no such submissions are received, then I will also pronounce order 8 in chambers without the need for further order on 3 May 2019 for the provisional reasons advanced at paragraph 32 of this judgment.

I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 April 2019.

Associate:

Date: 18 April 2019