SFEIR & MELHEM

[2020] FCCA 1924

FEDERAL CIRCUIT COURT OF AUSTRALIA

SFEIR & MELHEM [2020] FCCA 1924

Catchwords:
FAMILY LAW – Parenting dispute about 6 year old child who has been subject to litigation since 2015 – past pattern of significant periods of time when child has not seen the father – father withdrawing from time with the child for various reasons – resulting fracture of child’s relationship with the father – whether the mother really foments relationship between father and child – family report recommending no time as least unsatisfactory outcome – whether child should remain on Airport Watch List – orders made as sought by the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346

Rice v Asplund (1979) FLC 90-725

Applicant: MS SFEIR

Respondent: MR MELHEM

File Number: MLC 9582 of 2015

Judgment of: Judge Burchardt

Hearing date: 1 July 2020

Date of Last Submission: 1 July 2020

Delivered at: Dandenong

Delivered on: 17 July 2020

REPRESENTATION

Counsel for the Applicant: Ms Oldham

Solicitors for the Applicant: Cathleen Corridon & Associates

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Not applicable

Counsel for the Independent Children's Lawyer: Ms Macgregor

Solicitors for the Independent Children's Lawyer: Macgregor Solicitors

ORDERS

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the child X born … 2013 (“the child”).

3. The child live with the mother.

4. The child spend time and communicate with the father as agreed between the parties from the time to time.

5. The parties each keep the other informed as to their mailing address (including any updates or alterations from time to time), their email address and their mobile phone number.

6. The mother keep the father informed of any significant health or educational issues relating to the child.

7. The father be permitted to send to the child letters, cards and gifts to an address as nominated and kept up to date by the mother.

8. The father be permitted to have access to the Portal at the school attend to by the child from time to time and have all the usual access to information as to her development and progress including order forms for school photographs and school reports.

9. The mother is authorised and permitted to apply for and receive an Australian passport for the child X born … 2013 without first obtaining the written consent of the other parent.

10. Until 17 July 2022, the mother and her servants and agents be restrained from removing or attempting to remove the child X born … 2013 (female) from the Commonwealth of Australia.

11. Until 17 July 2022, the father and his servants and agents be restrained from removing or attempting to remove the child X born … 2013 (female) from the Commonwealth of Australia.

12. Until 17 July 2022, the child X born … 2013 (female) be restrained from leaving the Commonwealth of Australia.

13. The mother be restrained by injunction from using corporal punishment to discipline the child.

14. The appointment of the Independent Children’s Lawyer be discharged.

15. All extant applications be otherwise dismissed.

16. There be liberty to apply.

THE COURT REQUESTS THAT:

1. The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the said child’s name on the airport watch list until 17 July 2022 or further order of the court.

AND THE COURT NOTES THAT:

A. If either parent seeks that the child’s name on the airport watch list after 17 July 2022 then, before that date, that parent should file a further application to that effect supported by affidavit.

B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

C.  Should the father make an appropriate application the rule in Rice v Asplund (1979) FLC 90-725 should not be held against him.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9582 of 2015

MS SFEIR

Applicant

And

MR MELHEM

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a dispute about the best interests of a little girl, X, born on … 2013.  She has been involved in litigation since 2015.  The applicant, which in this tranche of litigation is the mother, seeks that the child live with her and spend no time with the father, with her to have sole parental responsibility.  The Independent Children’s Lawyer’s position, while slightly more nuanced, is essentially to the same effect.  The father’s position is that the child should live with the mother but spend each alternate weekend from Friday to Sunday (or Monday) with him and that there be joint parental responsibility.  He is also adamant that a watch list order presently in place should remain. 

2. For the reasons that follow, albeit with the greatest of reluctance, I have formed the view that X’s best interests will be met by making the orders as sought by the Independent Children’s Lawyer.

Agreed or uncontroversial matters

1. The father was born 1988 and the mother was born 1989.  The mother has lived in Australia, where her parents and a brother also live (there is some confusion because there was reference to a brother who had deceased also during the proceeding).  The father is said to have arrived in Australia in 2009 according to the first family report.  The parties met in Australia in 2011 and were married on … 2012.  Cohabitation commenced thereafter in October 2012. 

2. The parties lived initially with the maternal grandparents and it was predominantly the maternal grandmother who looked after X when the mother went back to work after three months.  The parties eventually moved into their own accommodation but separated finally on 16 October 2015.  Following the father’s first application made on 13 October 2015, consent orders were entered into on 2 September 2016, pursuant to which the child was to live with the mother but spend time with the father increasing to alternate weekend time.

3. It seems common cause that, albeit that the orders may not have been complied with in any way strictly, the father did spend time with X until August 2017 when the mother unilaterally suspended his time following alleged revelations of assault by the father which the father denied.  The mother applied for an Intervention Order against the respondent and an interim one was granted. 

4. On 28 August 2017, the parties divorced and in March 2018 the father issued proceedings again in this court.  Interim orders were made for supervised time on 1 May 2018, supervised by Contact Service A.  Supervised time continued largely in accordance with those orders but, towards the end of 2018 and the beginning of 2019, the father’s attendance became less constant.

5. On 19 March 2019, orders were made for X to spend gradually increasing time with the father up to an eventual outcome of each alternate weekend.  Time took place initially in accordance with those orders but in May 2019 the father ceased attending.  Further family report interviews took place on 26 August 2019 to which it will be necessary to return, but it is sufficient to note that the father was adamant that he did not propose to continue with the application.

6. In October 2019, a further interim hearing took place and orders were made for a further updated family report and final trial in what has turned out to be June 2020.  Some periods of time were spent between the father and the child in October, November and December 2019, but the last such period of time was in December 2019.  On 12 January 2019, an attempt at spend time was a complete failure and the father has not spent time with the child since then.

7. It should be noted in passing that the father has remarried on … 2017 and has a further daughter, C, born … 2018.  During the trial, he informed the court that he is expecting another child.

8. The mother has likewise remarried a person who is presently living in Country B and who is endeavouring to obtain a visa to come to Australia.  There is some dispute as to exactly whether or not he is a cousin of the mother’s and the father makes various allegations in a general way against him.

9. The father has spent no time with the child since January 2020.

The parties’ affidavits

1. Most of what is in the mother’s first affidavit filed 8 March 2018 is paraphrased in the agreed matters above.  I note that there is some reference to family violence, most particularly an occasion in May 2017 to which I have already referred when the father is said to have assaulted X.  There is reference to an attempted kidnap on the father’s part but this has played no noticeable place in the actual trial.  I note that the Intervention Order applied for was ultimately made final in August 2018. 

2. The father’s first affidavit filed 28 May 2018 denies allegations of mental ill-health on his part.  He asserts that he was assaulted by the wife and generally denies the mother’s allegations that are made against him.  I note that he alleges that the mother had bipolar disorder and that her home was generally unhygienic.

3. The mother’s affidavit of 24 June 2020 asserts that previous difficulties for X in relation to her being overweight have largely resolved.  The father’s final affidavit filed on 17 June 2020 repeats his allegation of borderline personality disorder on the mother’s part (something there is no medical evidence to support) and repeats his demand that the child not travel overseas and that he be permitted to telephone the child every day. 

The supervision reports

1. Two affidavits have been filed by the supervisors but the second affidavit in fact re-traverses all the material in the earlier one.  The reports annexed to the affidavit of Ms D sworn 12 March 2019 show a number of things in my view.  It is not necessary to paraphrase the reports in detail.  Unsurprisingly, the child was at least initially very reluctant to spend any time at all with her father, and the reports of the supervisors suggest that the mother was making every appropriate endeavour to enable time to occur. 

2. The time X spent with her father did gradually improve and she became less tense and started to enjoy her time with her father far more, although I note she appears to have remained resistant to, or at the very least non reciprocal to, physical affection from her father.  I note the increased number of non-attendances towards the end of 2018 and start of 2019 and I note that under the heading on page 64 of 65 of the affidavit:

   In summary:

   ·The father was at times difficult to work with when he was unresponsive to calls and text messages about confirmation.  The supervisor struggled to plan other contacts on the day, due to the father’s inability to be on time, resulted in the supervisor being late to other appointments.

   ·The father responded to calls and text messages irregularly.

   ·On the occasions when the father didn’t attend contact, there was no follow-up or communication regarding his absence.  When the father required information or an answer to a question, however, he was very persistent with calls or text messages until he got a response.

   ·The mother was very easy to work with, always on time and communicated well with the supervisor.

   ·The child was shy to begin with; however, she was happy for the supervisor to walk with her to the father.  The supervisor observed the father to greet her in an excitable manner, however the child appeared awkward when he embraced her – the supervisor did not witness any affecting being reciprocated from the child.  When the child was returned to her mother, she would allow the father to hug and kiss her, however, would stand motionless with no expression.  On the days the father didn’t show up, the child didn’t seem disappointed; she seemed happy to stay with her mother.

The family reports

1. I have, of course, read carefully the family report of Ms E dated 16 September 2018.  It is not necessary to traverse it in great detail as it has in my view largely been overtaken by events.  I note, and this is a matter I perhaps should have noted earlier, that the father and mother live in Suburb F (where the mother has returned to her own family post-separation) and Suburb G, which is at least one hour by traffic.

2. The report traversed some somewhat faintly articulated assertions of mental ill-health made by both parties and their mutual denials and some brief reference to alleged drug use on the father’s part which has not been prosecuted at trial.  I note that the mother commented that she know that the father loves X and she would like her to maintain a relationship with him (paragraph 42).  I note that Ms E recorded a significant concern as to the lack of any mechanism for parental communication which is entirely addressed through their lawyers (paragraph 53) and that each party was prepared to engage with a parent orders program to assist them (paragraph 54). 

3. X was initially observed with both her parents and was extremely anxious while her mother was present but relaxed immediately when she left.  Indeed, X wanted to spend more time with her father at the conclusion of her time with him.

4. Ms E noted that the relationship with the father was disrupted for nearly a year from August 2017 following conflict between the parties and at paragraph 70:

   70. The father-child observations made by this writer concur with the observations detailed in the latter visits of the Contact Centre report.  An important observation made by this writer is that X was reluctant to interact with her father whilst her mother was present in the room.  This may prove to be a challenge for the parents if they conduct changeovers themselves.  They may wish to consider changeovers occurring from a Contact Centre if not from the child’s kindergarten/school once the current contact supervisor ceases his role.

5. Ms E went on to recommend referring the parties to a Parenting Orders Program (“POP”) and that supervised time continue with the father until he rented a place close to the child’s home (something that has not occurred).  Once the POP had commenced, Ms E recommended unsupervised time.

6. The updated family report by Ms H dated 16 September 2019 noted at paragraph 5 that X had not spent any time with the father since 5 May 2019 “at which time Mr Melhem reportedly informed the changeover supervisor he would no longer be attending for any spend time arrangements”.

7. Having noted the history of the matter, Ms H noted the proposals of the parties.  At paragraph 14, it was noted that the mother proposed that X live with her and spend time with the father during daytime only each alternate weekend with the mother to have sole parental responsibility.  At paragraph 15, Ms H recorded that the father advised he no longer sought parenting orders and that he intended to withdraw from proceeding but sought for X’s name to remain on the Airport Watch List.   

8. I note that the father continued his allegations of family violence on the part of the mother which she denied (paragraph 17). 

9. At paragraph 18, the report noted:

   18. Ms Sfeir said she is concerned for X’s emotional wellbeing due to Mr Melhem’s inconsistent and unpredictable presence in her life.  Both parties raised the issue of corporal punishment being used on X; both denied doing so.

10. Mr Melhem repeated his belief that the mother has borderline personality disorder (paragraph 20).

11. The mother’s position was essentially that she wanted the father to have a relationship with X but on the proviso that the time was consistent and reliable (paragraph 27).  She has had a lot of difficulty in providing the appropriate information as to why time had ceased in May of the year (paragraph 29). 

12. The father’s position as recorded at paragraph 33:

    33. Mr Melhem presented as frustrated and somewhat defensive; he was clearly unhappy with the current circumstances and the events of the last two years, which he considered the mother to be wholly responsible for.  Mr Melhem did not accept he may have contributed to the parental dispute, which he said arose as a result of the mother’s jealous and bitter feelings towards him for leaving her and remarrying. 

13. At paragraphs 36-37, the report continued:

    36. Mr Melhem reiterated a number of times that his proposal to withdraw from the proceedings is resolute;  he said the only matter he felt insistent upon with regards to future Orders is that X remain on the Airport Watch List.  He said he held a genuine concern Ms Sfeir may remove X permanently to Country B.  Mr Melhem said that the two other concerns he held were the mother’s alleged use of physical discipline and that she is not sufficiently focused on X’s education. 

    37. Mr Melhem became very emotional at times during his interview, showing clear signs of distress and frustration.  His narrative was rather repetitive, with a focus on the alleged violence he said the mother perpetrated against him during the relationship and her alleged attempts to limit his relationship with X post-separation.  Mr Melhem also expressed his dismay at the financial implications of the proceedings and supervision of his time with X.  He said he was no longer able to meet these costs which was an additional factor in him choosing to “walk away” from the proceedings.

14. I note that X was observed and appears to have indicated that the mother had hit her on various occasions (paragraph 46).  X was confused by some of the questions put to her and her response about seeing her father was in my view equivocal (paragraph 44). 

15. At paragraph 53, Ms H recorded:

    53. X’s presentation during this assessment, whereby she appeared to be clingy with Ms Sfeir and reluctant to separate from her was reminiscent of that observed and reported during some of the supervised contact sessions, particularly in the early stages.  It is evident she has had some troubled experiences in her formative years that have very likely contributed to these behavioural and emotional traits.  Despite being not yet six years of age X has been subject to proceedings – on and off – for four years.  It is inevitable she has experienced significant exposure to the parental dispute as well as disjointed care and spend time arrangements.  X needs to be protected from further emotional harm and to be provided with a sense of certainty and stability.  It is recommended that this will be best achieved in her mother’s primary care.

16. The report went on unsurprisingly to recommend sole parental responsibility for the mother.  I note that Ms H was of the view that the Court should consider removing X’s name from the Airport Watch List, together with an order that the mother be restrained from using corporal discipline on X.

17. The further updated report by Ms H is dated 2 April 2020.  I note the report detailed five occasions of spending time between October 2019 and 2020 and that X last saw her father on 12 January 2020 briefly at changeover (paragraph 13).

18. Paragraphs 14 and 15 contain the parties’ proposals.  The mother was now proposing no time for the father and he was now proposing Friday to Sunday, or alternatively every second weekend.  Much of the material in the report repeats, understandably, the earlier reports.  At paragraph 28, Ms H noted:

    28. …Whilst she did not seek to specifically denigrate Mr Melhem, it was apparent Ms Sfeir felt frustrated towards him and had a poor view of, in her opinion, his capacity to provide a consistently positive role or presence in X’s life. 

1. At paragraph 30, the report noted:

   30. During interview Ms Sfeir said X had spent no substantive time with Mr Melhem since 29 December 2019, and had not seen or communicated with him since 12 January 2020.  The mother said on this last occasion she took X to changeover but X refused to go in the car with Mr Melhem.  X reportedly said to her mother “What if it happens again?  What if he hits me?”  Ms Sfeir said she did not know why X said this as her only knowledge was of Mr Melhem hitting X some years prior and she did not understand how X could remember this. 

2. Having traversed the rest of that incident in January 2020 at paragraphs 32-33 the report continued:

   32. …Ms Sfeir said since then she has consistently taken X to changeovers each alternate weekend and waited the required length of time but Mr Melhem has never attended.  Ms Sfeir was concerned that despite her efforts to provide alternative explanations to X, X is very much aware of her father’s failure to attend and this is to some degree unsettling for her. 

   33. Ms Sfeir said that, while she hoped X could share a relationship with Mr Melhem, X’s experience of spend time arrangements to date had been so disjointed and disrupted she believed it was more detrimental than beneficial to X’s emotional wellbeing to persist with spend time.  She refuted the idea she has sought to undermine the relationship or has attempted to influence X to express negative views regarding Mr Melhem, or, to reject spending time with him.  She cited her consistent attendance for time arrangements over the years, including most recently even in the absence of Mr Melhem attending for the same.

3. At paragraph 35 the report continued:

   35. Ms Sfeir said X does not ask about Mr Melhem’s whereabouts nor does she ask to spend time with him.  She said it was her belief X genuinely does not wish to spend time with Mr Melhem and she felt it was time, after years of failed attempts, that the matter is put to rest and X permitted to move on from being in the midst of Court proceedings and the parental dispute.

4. Paragraph 37 of the report traversed the interview with Mr Melhem.  The report said:

   37. Similarly to his previous interview (conducted with the report writer) Mr Melhem presented as rather emotional and spent some time expressing his frustration with Ms Sfeir in particular, but also the Court process.  He said that he intends to sue the people and organisations that have made allegations against him as he was tired of defending himself against alleged falsities.  Whilst Mr Melhem expressed a fervent wish to spend time with X he lacked a coherent explanation as to why he had chosen to not attend for spend time arrangements during the course of the previous two months, as had similarly occurred on other occasions. 

   38. Mr Melhem said that when he had spent time with X on the last five occasions (since October 2019) it had been of very good quality and he believed X had enjoyed herself and the opportunity to spend time with him and his family. He did not believe there were any issues or difficulties in their time together. He was adamant that X’s current stance that she does not wish to spend time with him is solely attributable to Ms Sfeir and her emotional influence of X. Mr Melhem stated that Ms Sfeir had expressed to him in the past that she would withhold X from him should he ever re-partner/re-marry. Mr Melhem spoke fondly of the time spent with X, which he said occurred both in the community and in his home.

5. The report continued at paragraphs 39-40:

   39. Mr Melhem confirmed that on the last occasion he saw X on the 12^th of January 2020 she had come over to his car from her mother’s (in a McDonalds parking lot) and told him she did not want to spend time with him. He said he spent approximately 40 minutes trying to persuade X otherwise but she would not change her position and said to him “Dad please don’t come and take me”. He said there was a “little bit of argument” between them and that he had not attended any changeovers since that day as he believed it would be pointless. He said he had not informed Ms Sfeir he did not plan to attend changeovers and appeared somewhat defiant in his stance on this, refuting the notion it may have been more appropriate to inform her of this.

   40. Mr Melhem was insistent that X should remain on the Airport Watch List (AWL); he alleged that Ms Sfeir had, in the past, told him she would sell X in Country B and he considered this to be of such genuine concern he wanted X to remain on the AWL until she was eighteen years old. Mr Melhem said that this issue was the reason he had persisted with Court proceedings after having previously told the writer during the last Family Report assessment that he intended to withdraw. Mr Melhem said once it became apparent to him during a Court hearing that X may be removed from the AWL if he did not continue with proceedings he felt it best to persist.

6. The father went on to complain again about the emotional harm the mother was visiting upon X together with in my view rather opaque criticism of the mother’s new husband.  I note that the interview with Mr Melhem’s new wife was completely uneventful.

7. X was interviewed and was particularly shy and anxious.  It is perhaps sufficient to repeat paragraph 55:

   55. X was absolutely clear that she did not wish to participate in an observation with Mr Melhem and/or his wife and child. She could offer no rationale for this position.

8. Notwithstanding this X was observed with Mr Melhem, his wife and half-sibling C.  She did not smile or make any attempt to interact physically (paragraph 56).  Essentially she really did not engage.  Under the heading “Evaluation” at paragraph 62-65, Ms H noted:

   62.    This matter is concerned with the parenting arrangements for X, aged 6 years. X currently lives with her mother and has spent no time with her father since 12 January 2020. Prior to this X’s spend time arrangements with Mr Melhem had been sporadic and inconsistent, with lengthy periods during which no time was spent. Much of the time that X has spent with her father has been supervised and those notes/reports have previously been considered by the Court. In brief summary, they indicated a developing relationship over time and did not raise any significant concerns regarding the interactions between father and daughter.

   63.    Following the conclusion of supervised time in late 2018 changeovers continued to be supervised until Mr Melhem became frustrated with this and ceased all time, in May 2019. After briefly resuming for a two month period in late 2019 time again ceased in January 2020. There is a consistency in the reports from both the mother and father that spend time arrangements ceased in January because X told her father she no longer wanted to spend time with him and Mr Melhem subsequently ceased attending changeovers.

   64.    It is deemed pertinent in this assessment that following this occasion Ms Sfeir continued to attend for changeovers with X and spent time each fortnight waiting for Mr Melhem, to no avail. The emotional and psychological implications of this for X are likely to be significant, as she has repeatedly been exposed to her father’s non-attendance with little or potentially inadequate explanation provided to her. Even if Ms Sfeir has not used these opportunities to directly or explicitly malign Mr Melhem to X, there is an inherent message sent to her in such a circumstance that almost certainly has been detrimental to X’s perception of her father. This is not at all dissimilar to the period in 2019 when X was given the rather flimsy explanation that her father’s lengthy absence from spend time was due to him being overseas visiting a (non-existent) relative.

   65.    There have been a number of occasions over the years when time between X and her father has ceased, most significantly for a period of approximately one year from May 2017, until supervised time commenced in 2018. Mr Melhem appears to trend towards behaviours in which he eventually becomes so emotionally frustrated with the limitations on his time with X that he walks away completely. He quite clearly has a strong belief in his right to time and a relationship with X and his deep seated anger towards Ms Sfeir, whom he believes is purposefully preventing him from such, at times appears to overwhelm him and causes him to ‘give up’. In doing so, and in particular with immediate effect and no explanation provided to X, he is deemed to be acting in a self-interested manner with little or no regard for X’s emotional welfare.

9. At paragraph 67-70, the report continued:

   67.    It is evident that, over time, X’s relationship with her father has significantly deteriorated. Whilst in the past they have enjoyed (according to supervised reports) a warm and loving relationship, this has been so frequently interrupted and curtailed that there are no longer any signs from X that this is something she holds dear, or considers of value. Whilst it is clear this has in part been attributable to Mr Melhem’s actions in not attending spend time, it is also certainly possible that Ms Sfeir’s views regarding Mr Melhem may have in turn influenced X’s, be this via explicit denigration or via more subtle messaging.

   68.    However the current situation has come about, there is very little confidence stemming from this assessment that it will resolve or repair in the foreseeable future. What must not be ignored is that X has been embroiled in the parent’s dispute for the great majority of her life and has been subject to numerous assessments of varying natures throughout Court proceedings. She is quite evidently a troubled and anxious child who no doubt wishes to no longer be the subject of such scrutiny, nor be exposed to ongoing conflict.    

   69.    The Court is thus presented with a situation in which neither option available is optimal for the child, and this assessment would indicate matters may have reached a point where it has become necessary to move towards the ‘least harm’ option. The mother’s proposal would see X’s time and relationship with Mr Melhem cease completely, while Mr Melhem’s proposal –at least in part - appears to stem from a perceived right to time arrangements, although he has thwarted such arrangements on multiple occasions in the past. There is very little confidence that he would not do so again in future if he felt he was not ‘getting his way’. To shield X from further proceedings, dispute and assessment it therefore seems necessary to consider that time with Mr Melhem be reserved.    

   70.    In light of the particularly fraught nature of the relationship between the parents and given the fact it is highly likely there will be no ongoing communication between them, it seems prudent for the Court to consider whether parental responsibility for X rest solely with Ms Sfeir.

10. The report went on to recommend that if that were so there would be appropriate information provided to the father about X’s development.  The report noted that the watch list order continuation for the remainder for X’s childhood and youth might seem unduly restrictive.  A number of ancillary recommendations were also made. 

The Submissions and Evidence at Court

1. Although Ms Sfeir is the applicant in the case as it now stands Mr Melhem interjected several times to indicate that he wanted to see his child fortnightly from Friday 6:00pm until Sunday 6:00pm and that he had been accused of child abuse which has not happened.  Rather there had been an incident with a hairdryer.

2. What follows is taken from my notes.  It is self-evidently not a transcript that records matters I found significant.

The Opening and Evidence of the Mother

1. Counsel for the applicant noted the final orders made in 2016.

2. Counsel noted that family violence had led to the suspension of time.  There were orders for an increase of time up to overnight but this was not taken up by the father.  It was submitted that it was better for the child not to have any relationship with the father other than letters, cards and the like.  Stop-start was not in the child’s best interests.  The mother sought the orders in her case outline.

3. The mother was called and adopted her affidavit as true and correct subject to some changes.  She is a public servant.  Some minor factual amendments were made to the substantive text of the affidavit.

4. Cross-examination by the father, who was self-represented, proved problematic.  He had understandable difficulty in formulating matters as questions but tended rather to make somewhat lengthy addresses.

5. He cross-examined about an alleged $5,000 paid to the mother as child support plus other funds he had given her.   The mother said that the Child Support Agency had nothing to do with it.  She had told them about the $5,000.  This was in fact a payment pursuant to the marriage certificate in the Muslim culture in which they were married.  It was a sum that could be paid at any time or paid on divorce.  The father elected not to put any further questions.  There was no cross-examination by the Independent Children’s Lawyer and no re-examination.

The Opening and Evidence of the Father

1. The father opened his case.  He said at the time of the divorce the mother was in a relationship with someone else.  He gave her time.  He tried his best because there was a child involved.  The mother was challenging him and would prevent him from seeing his child.  Every time he gets orders, the mother breaks his streak every time.  She says the child is unwell or sleeping.  He misses his daughter every day.  He wants X to have a clear opportunity with both parents at the same time.  The mother should encourage the child to go.  There is no point in him arguing to get his daughter.  He wants strict orders for the mother not to keep the child away from him.  He just wants his daughter.  He denies the accusations against him.  He runs a business.

2. The father was sworn and affirmed his affidavits as true and correct.

3. Under cross-examination the father was asked what he understood the phrase parental responsibility to mean.  He said parental responsibility is to see what X requires, her health and schooling, everything.  He should know everything and get an opportunity to make decisions.  He would make decisions via email.  He understands there should be joint decisions.  He does not talk often with the mother.  He was receiving calls since her brother passed away and called her to look into the matter less than one month ago.  The last meeting with the child was at McDonald’s on about 12 January 2020.  This was his last contact with the mother and X.

4. Since separation there have been no joint decisions.  She always did things her way.  If his daughter was injured she did not tell him.  All she wants is money.  He conceded that there were very bad communications between the parents but it was all her fault.  When asked if he had emailed the mother his first answer was evasive.  He then went on to say that there were no communications by email but there are communications by text.  He had read the family report but did not agree with the recommendations.  He had read paragraph 70 of the family report. 

5. He said that the suggestion of sole parental responsibility to the mother was completely because of her current husband’s request.  He said that as a father he had a complete right to be a parent.  He said he is missing everything because of one woman.  He would be happy with communications by email.  If there was no agreement he would have to come back to Court.  In 2016, he wanted to get out of the marriage (notwithstanding that he had earlier said that he wished to continue).  The mother said to him that if he got married she would keep his daughter out of his life.  He admits the fact that the child had been in litigation most of her life was not good for her.  He said in between he gave up.  He realised it was not fair to his daughter.  He should be there as her father.

6. The father recalled the Court orders of 1 May 2018.  The mother did not pay half the cost of supervision.  He attended on 13 of the 15 sessions.  Further orders were made in September 2018.  He attended 9 out of 17 sessions but he has missed them because the mother was going overseas.  Her parents brought the child for two weeks.  He said the time he could pay he paid.  After McDonald’s, she breached the orders.

7. It was put to the father that he had ceased time between May and October 2019 and he agreed.  His answer as to why this was the case was I regret to say difficult to understand.  He went on to say that the reason he stopped, he would drive to Town I and she would ring and say that the child did not want to see him.  In future changeovers should be outside police station J.  He wanted both parents to decide which hospital the child attended.  Everything should be on email.

8. The father conceded he had told an earlier family report that he wished to walk away.  If the mother would support him it would be good for his daughter.  He then said the child is lucky to have a step-father who was going to come to Australia in the future (once again inconsistently with his affidavit criticisms).  He said “every single day of my life I miss her”.

9. The father conceded that there was no time from May to October 2019.  The father denied he was late for the first pickup after the orders made in October when he picked her up from school.  He said he was not late but was confused inside the school.  He asserted his child was undertaking athletics and was second in a race.

10. The father conceded that time continued without issue until the visit on 11 January 2020.  The child was saying please don’t come.  Ms Sfeir does not like it.  He had told the child to discuss the matter at school and she said she could not.  He was surprised that the child was so scared.  He knows she has been told not to see him.  She has been pressurised not to see him.

11. When it was put to him that the mother said she would see him the next week the father said that there was the issue of money.  She will break the streak.  He was quite emotional.  He sees the torture for his daughter.  He is worried about his daughter.  If I understood him correctly he said he was not wrong to withdraw from time with her.  He said he will not walk away in the future.  He will give the child time.  He said he travels quite far to Town I.  He said the mother needs to send him an email if there are any problems.

12. I should interpolate at this stage that the father’s evidence was uniformly and unremittingly critical of the mother and while I am doing my best to report what he said, much of what he said could be characterised as extensive vents.

13. The father said he would try to avoid conflict 100 per cent in front of his child.  When it was put to him he was late to changeover he said he apologised.  He complained that he was only off by one or two minutes late.  He asked why the mother should not bring the child half the way to the city.

14. The father was cross-examined about his desire to have the child on the Airport Watch List.  He said the mother has said she will sell the child in Country B.  She will do anything.  She has borderline personality disorder.  She will behave like a five year old child.  He just wants his daughter here for her safety.  Australia is a big country and there is a lot to explore.  She can go overseas when she has grown up.  He said “she is my daughter.  I am worried about her.  It is not fair”.

15. The father conceded that the mother and maternal grandparents live in Australia and that the mother has been here since she was one year old.  He does not want the maternal grandparents in his daughter’s life.  He is not aware that the mother is working.  He conceded the mother has good ties to Australia.

16. Under cross-examination by counsel for the Independent Children’s Lawyer, the father accurately gave the child’s age at 6.  He was not able to say whether she was in grade 2 or grade 3 because he is not in touch.  He said his daughter likes toys, likes going to basketball with him.  She loves time in the rain and is a smart kid.  He said that his daughter would feel bad if he withdraws from her.

1. When asked why he had not spent time with his daughter from May until October 2019, the father said he saw his daughter was in a bad place.  She was saying please do not come.

2. It was put to the father that time ceased in January.  She did not want to see him and after that he would not go.  He wants to be in her life.  He went in January but X was very pressurised.  So he walked away.  The wife still took the daughter 5 times even though he was not attending.

3. The father said it would take 10 to 15 minutes after the mother departs.  Changeover should be in front of the police station so no one can lie.  He agreed that the relationship had been broken twice when he withdrew from his daughter.  When asked how he could rebuild the relationship he was clear he said he did not want counselling.  He did not want it for his daughter.  He said after the first 15 minutes in his house his daughter will be completely comfortable.  He wants strict action taken against the mother.  He said X is very close to his wife.  The child has seen physical violence on him by the mother.  He will make sure he will be there to pick her up.  If the mother breaches Court orders the Court should enforce them.  He needs 5 to 10 minutes by telephone every evening.  Changeover should be at police station J.  There is a cafeteria in front and a parking building nearby.

4. It was put to the father that there might be school trips overseas in the future.  The father said “no I do not want overseas”.  This would be 10 years away.  He would not approve a holiday to Fiji or New Zealand as there is no guarantee the child will come back safely.  He said he was sacrificing his heart and time.  He was not going to let her travel until she is grown up.

5. It was put to the father that he might participate in counselling with a family therapist.  The father said he would not.  He has done a lot of parenting courses.  The relationship with his daughter is not really burst.  Fifteen minutes will be enough.  Daytime the first few times would be okay.  He was not prepared to undertake family therapy.

6. In re-examination the father said that the mother was seeking 100 per cent custody and this was not acceptable.  He said “I need my daughter to spend time with me for two nights.  She knows my house”.  He has a newborn on the way.  He has a good setup at his home.  The mother’s house is not clean.  He will always be there.  He does not want restrictions on what he provides to his daughter.  He is not questioning their parenting but he knows how they parent (in the mother’s house).

7. It should be noted that the father’s evidence remained unremittingly critical of the mother as I have indicated and he was labile throughout portions of his submissions and evidence in which he said in terms that he was pleading with the Court to obtain the outcome that he sought.  Much of what he said was given with considerable pressure of speech.

Final Submissions of the Independent Children’s Lawyer

1. Counsel sought in addition to the minute of orders she had sent, the recommendations in paragraph 75 to 77 in the family report.  It was a concern for the Independent Children’s Lawyer that the father had twice withdrawn from the child in May 2018 and January 2020.  She is a very young child who was 5 last May.  The child would feel it badly.  Family therapy would be required from someone like Dr K.  The child would be confused.  The Independent Children’s Lawyer proffered the possibility that the matter be adjourned for 6 months to enable therapy but with no set time at the moment.

Final Submissions by Counsel for the Mother

1. Counsel indicated that the mother still wants sole parental responsibility.  There is a lack of communications between the parents.  Sole parental responsibility was recommended by the family report.  The mother says the child should spend no time with the father.  The father’s inconsistency will occur again and the child should be shielded from future assessments.  The father will not engage with therapy.  It would be hard to re-establish the relationship.  Counsel relied on the contact reports in this regard.  There were times when the father did not turn up or was late.  The paediatric assessment is awaited and the child is already undertaking physical exercise (there has been an issue in the case as to her weight which the mother’s most recent affidavit suggested may be dissipating as a problem).  Overseas holidays should be permitted now.  The mother seeks the orders in her outline of case.

Final Submissions of the Father

1. The father said he refuses therapy.  He does not want his daughter to have any pressure.  Fifteen to twenty minutes with him would be enough.  He refuses to give the mother sole parental responsibility. He said “As a father I have a complete right to be in her life”.  He desires the Airport Watch List orders to continue.  He has not abandoned his daughter.  She was in tears and he walked away.  She is a smart kid.  He pleaded with the Court not to keep his daughter away.  He said he had lost four years because of the mother’s pressure.  A lawyer took his money and did not come to Court.  He wants to see his daughter.  This has been broken off because of the money.  His final address I regret should also be characterised I am afraid as an emotional outpouring.

Findings about the Facts

1. It is of course unfortunate that no cross-examination of the mother took place.  This means that her evidence has not been the subject of appropriate challenge.  Notwithstanding this however the broad pattern of events seems to me to be largely undisputed.  I have dealt with the agreed or uncontested matters earlier in this judgment.  Perhaps for these purposes it is sufficient to say that there is really no room for doubt that the father’s attendance upon his child has been marked in the past by three substantial periods where he did not spend any time with the child. 

2. I confess that I share Ms H’s reservation as to the mother’s motivation.  Taking the child on numerous occasions to changeover in circumstances where she must have known the father was not going to turn up has an inherent accusatory element to it.  Of course it would be said on her behalf that she was merely obeying the Court’s orders and I accept that such a construction is open, but I have a suspicion that the mother’s true position is much less keen to foment a relationship between the father and the child than she would wish to assert.

3. Whatever the true position may ultimately be in this regard however the reality is that the father is in large part the author of his own misfortunes.  He has walked away from his child on two occasions at least.  He says in substance that he did this because of the distress he observed in his daughter.  That once again may in fact be so although it speaks a certain lack of commitment on his part.  There were aspects of his evidence that appeared to suggest that driving to Town I was really too far to be worth the trouble and he was complaining of the cost of it as well.  In the end, as with the mother’s motivation, it does not really matter.  The reality is that this child who is still so very young has spent substantial periods of time not seeing her father.  I entirely accept the submissions of the Independent Children’s Lawyer that the child must have been disconcerted and upset by her father coming in and coming out of her life as he has.

4. It is particularly concerning that the father is adamantly opposed to family therapy and still adopts the view that a mere quarter of an hour or so in his family home would dissolve all the ongoing difficulties. I will return to this matter in considering the matters under section 60CC but this position reflects a most unfortunate and complete lack of insight on the father’s part.

5. The statutory pathway is illuminated by paragraph 65 of the decision of the Full Court in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”).  It is, despite legislative amendment, in my view still the guiding path:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends and holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.    The child’s best interests remain the overriding consideration.”

Parental Responsibility

1. The Court is of course required to consider an order for equal shared parental responsibility.  In circumstances where the mother has denied any family violence on her part and has not been cross-examined it is not possible to give any weight to the father’s assertions of assault on him by her.  The mother’s allegations of family violence are likewise so historical and unconvincing as in my view not to operate on the matter in any significant way, notwithstanding the final intervention order made in August 2018.   

2. The real difficulty with the father’s desire for equal shared parental decision-making lies in the history of the matter and the interpersonal dynamic of the parents.  The fact is that the mother has had in practice sole parental responsibility since separation, which happened when X was only 2.  The father did not see the child for almost a year following separation and there have been two substantial interruptions since.  This has left the decision-making process to the mother. 

3. I entirely accept that the communications between the parents are absolutely either non-existent or are, to the very limited extent that they might have obtained, fraught.  There is no realistic possibility that these parties will sensibly be able to come to agreement about anything.  Self-evidently, and further, if I make the orders as to time that the mother seeks then there would be no work for parental responsibility to do in any event.  The matter is further complicated by the father’s highly possessory attitude towards the child.  He said on a number of occasions words to the effect that as the child’s father he is entitled to equal shared parental responsibility and to have the child in his life.  That absence of child focus is unfortunate.  In these circumstances, and given that I propose to make the orders the mother seeks, it is plain that there should be an order for sole parental responsibility to the mother.

Section 60CC(2) – The Primary Considerations

1. At least superficially everybody agrees that it is in X’s best interests to have a meaningful relationship with each of her parents.  That is what the mother says even though I have expressed some doubt as to whether she really means it.  The father certainly wishes the child to have a meaningful relationship with him but this desire must be evaluated in the context of the unquestioned history of the matter.  The fact is that he has simply not thus far played the role in his child’s life that in my view he should have.  His deliberate decisions to walk away suggest, despite his fervent denials, a lack of true commitment.

2. There must be a risk to the child that if orders are made for an ongoing spend-time regime, of whatever nature, the father will not continue to carry through if he perceives things to be going his way, to adopt counsel’s phrase.  Time would need to be on any view of the matter carefully managed and would in my view require family therapy given the current state of the child’s disassociation from her father.  Since he is not prepared to engage in family therapy this becomes all the more problematic.  Any further reintroduction and then withdrawal of the father into the child’s life would in my view expose her to emotional harm that is entirely undesirable.

The Additional Considerations

Section 60CC(3)(a)

1. The child’s view could not be clearer.  It is the father’s own evidence but that upon the last occasion they saw one another she did not wish to see him.  This is entirely consistent with the observations with Ms H and I repeat Ms H’s observation at paragraph 67:

   67. Whilst in the past they have enjoyed (according to supervised reports) a warm and loving relationship, this has been so frequently interrupted and curtailed that there are no longer any signs from X that it is something she holds dear, or considers of value. 

2. This is entirely consistent with X’s expressed lack of desire to see her father or his family during the family report interviews.  It should be noted however that she is still very young and will not turn seven until October.  The weight to be given to her views must be affected by her very young age.

Section 60CC(3)(b)

1. The child clearly has a very close and developed relationship with her mother.  There is nothing in the materials to suggest that it is in any way an inappropriately enmeshed relationship.  It is reasonable to infer that the child has warm relationships with her maternal grandparents.  Her grandmother looked after her when she was very young and she now lives in the grandparents’ household.  X’s relationship with the father is as I have just described it above.  I note that the father clearly loves her devotedly and indeed when he and his wife saw X during the family report interviews their love for her was as obvious as their lack of understanding of X’s restraint in accepting it.  X appears to have no relationship with her half-sibling whatever as the family report makes clear.

Section 60CC(3)(c)

1. In the context of this case this is an important subsection.  The mother has as earlier indicated always been the primary carer for the child and for all practical purposes has essentially made all the decisions about the child since separation.  The father was unable to see the child from mid-2017 until orders were made in 2018 and has withdrawn again between May 2019 and October 2019 and again from January 2020 until now.  While he has said, and in the most emotive and repeated way, how much he misses his daughter and wishes to be in her life, the history of the matter is not consistent with him acting out always in accordance with such views.  His withdrawals are in my view misguided and while obviously I cannot see what is in his mind, it has to be said at the lowest that his actions have not been consistent with what he has expressed.

Section 60CC (3)(ca)

1. The mother has plainly fulfilled her obligations to maintain the child.  It is not necessary to say more than that.  The father’s fulfillment of this obligation is necessarily diminished by the periods of time that he has disengaged from X.  I confess that such dispute as there may be about child support has been articulated in terms that do not enable me to make any conclusive findings about that aspect of the matter.  There may well be arrears but it would seem to me that the matter was shrouded in some measure of confusion.

Section 60CC(3)(d)

1. The father would require the child to move in effect instantly to weekend alternate time with him.  In circumstances where he has not even seen X since January of this year, and did not see her for a substantial period in 2019, this is plainly a fanciful proposition.  His notion that only a quarter of an hour in his care would be enough to resolve all difficulties flies completely in the face of the family report observations and conclusions.  Any separation from the mother at the present time would be likely to be extremely difficult for X, who has not spent so far as I can see any overnight time with the father since separation.  Any such separation from her mother would also be likely to be extremely stressful for the mother which would only go to place further stress upon the child.

Section 60CC(3)(e)

1. The father’s case appeared to suggest at times that the distance between where he lives and where the mother lives were such that it impacted upon his desire and/or capacity to attend.  Interrelated with this appear to be questions of expense (his desire for changeover in the city appeared to be a combination of convenience, expense and the desirability of having CCTV coverage).  Nonetheless the practical difficulty that stands at the foremost of this case is the fact that the father’s all-too-frequent withdrawals from the child make compelling the child now to spend time with him problematic to say the least.

Section 60CC(3)(f)

1. The mother appears well-equipped to cope with the child’s needs.  She has done so throughout her life.  The father undoubtedly loves the child but his capacity to provide for her needs seems to me to be marred by his inconsistency in spending time with her and the lack of insight that is attendant on those withdrawals.  He simply is unable to engage with the proposition that his lack of time with the child means that the child is no longer engaged with him and that to recommence it would require at the very least a therapeutic intervention, which he declines in the strongest terms.

Section 60CC(3)(g)

1. The child is, according to Ms H, who is not of course required for cross-examination, “a troubled and anxious child who no doubt wishes to no longer be the subject of such scrutiny, nor be exposed to ongoing conflict” (family report paragraph 68).  This is an important consideration.  The mother’s evidence suggests that she is in employment, she appears to have re-partnered albeit that her husband is still in Country B awaiting a visa, and her circumstances appear to be generally unremarkable.  There is nothing to support the father’s occasional assertions that she has borderline personality disorder.  The father has also re-partnered in what is according to the family report a stable and supportive relationship by which he has one child with another on the way. 

2. The father struck me as an intelligent and articulate man (he said in final addresses that family members are professionals and otherwise well-qualified professional people).  Nonetheless, and even making allowances perhaps for some possible cultural influences arising from his Muslim Country B background, the father’s presentation was florid and labile and suggested a lack of emotional containment when under stress that would be only likely to affect X negatively were such stress to arise while she was spending time with him or being the subject of endeavours to make her do so.  Having said that however there is nothing to suggest that the father is anything other than a loving husband and parent to his other children and he is in employment and no doubt otherwise a perfectly proper and lawful citizen.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. The mother’s attitude towards the child appears to be a caring and thoughtful and appropriate one.  The father’s attitude to the child is highly possessory.  I accept that this may well be a culturally accentuated matter although fathers feeling that the child is theirs is scarcely unknown to mainstream Australian society.  On any view of the matter however his repeated references to the fact that X is his daughter and he is entitled to be in her life reflect a non-child focused approach.

Section 60CC(3)(j)

1. In truth neither party had much to say about the historical instances of physical abuse each makes against the other during the relationship.  The father’s allegations of assault have simply not been pressed in cross-examination and indeed the allegations of violence by the father were likewise not pressed in cross-examination.  On any view, while these allegations form part of the parties’ perceptions of one another, they have not been advanced in such a fashion as to operate upon the Court’s conclusions.

Section 60CC (3)(k)

1. As I have said there was an Intervention Order (it is not clear if this has expired) but it does not operate on this matter now in my view.

Section 60CC (3)(l)

1. The Independent Children’s Lawyer’s submissions appear to suggest that it might be appropriate to order family therapy and adjourn this matter for six months to see how things went.  That submission of course was made before the father made clear in his address his adamantine refusal to engage in family therapy.  I note that Ms H’s report opined that the child would not wish to be involved in further scrutiny and I accept that that is likely so.  In my view this case cries out for finality albeit that the form of finality is in itself in many ways very regrettable.  These parties should not be wasting their relatively slender financial resources in further litigation in circumstances where the outcome is so unfortunately clear.

Section 60CC(3)(m)

1. The only other further relevant matter is the question of the Airport Watch List order.  The father’s desire to prevent the child going to Country B is based upon ridiculous notions that the mother might actually sell the child or otherwise dispose of her in Country B.  The mother adores the child and the father’s assertion is little short of ridiculous.  She has employment as a public servant, her close relatives live in Australia (her parents with her) and she has lived here almost all her life.

2. Although she has a husband in Country B awaiting a visa, and no doubt extended family there also, the notion that the mother would decamp to Country B with X is, on the evidence, farfetched. On the other hand, if the mother does wish to visit Country B, such a desire would be understandable.

3. In these circumstances and most particularly the present uncertainty of the husband in Country B’s visa status, I think the Independent Children’s Lawyer’s proposal is in X’s best interests. There is nothing to suggest any imminent emergency requiring travel to Country B and a delay until X is aged at least 8 is likely to enable her to appreciate any such travel in a more developed way.

Conclusion

1. This is a terribly unfortunate state of affairs.  I am however quite persuaded in the light of all relevant considerations that I have discussed above that the orders proposed by the Independent Children’s Lawyer, save for Airport Watch List orders with which I have just dealt, should be made.  The fact is that the father’s conduct in the past has led to the child no longer having a relationship with the father upon which she puts any value.  She has told him in terms that she does not want to see him. 

2. Whether this is implicitly or explicitly fomented by the mother does not at this point really matter.  That is because the father’s admitted conduct has undoubtedly contributed massively to this outcome.  All the more regrettably, he does not appreciate this and persists in his misconceived idea that 15 minutes of time with the child would be enough to solve all the problems. 

3. Family therapy is plainly the only way in which the matter could possibly move towards a resumption of the relationship that would require a commitment that it appears the father is unable to give.  It is said that our experience of the past informs our appreciation of the future and in this case his past conduct simply does not suggest that he would be likely properly to commit himself to his daughter but would rather walk away again in the event of some development perceived by him to be undesirable.

4. Notwithstanding that the excision of her father is highly likely to have deleterious effects, particularly in the long run, it is the only set of orders the Court can make in her best interests at the present time.  I will however leave the door open to the father.  If, having considered this judgment, which will no doubt be deeply distressing to him, he is able to reconsider the matter and more particularly his attitude to family therapy and the degree to which he would need to truly commit himself to it and its sequelae, I will order that there be a notation that should he make an appropriate application the rule in Rice v Asplund (1979) FLC 90-725 should not be held against him.

I certify that the preceding one-hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 17 July 2020