Sorrel and Cutten

[2018] FamCA 291

FAMILY COURT OF AUSTRALIA

SORREL & CUTTEN [2018] FamCA 291

FAMILY LAW – CHILDREN – Where the mother fails to comply with filing directions – where there are concerns about her mental health – where the child has predominantly lived with the father but the mother breaches orders in failing to return the child requiring court intervention – where the mother’s written evidence indicates irrational and irrelevant thoughts but which could be inferred to be threatening behaviour towards the child – where the mother claims not to be a citizen of Australia but the Kingdom of Heaven – child found to be at unacceptable risk – no time with the mother permitted.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

In The Marriage of N and S [1996] FLC 92-655
M v M [1988] HCA 68; (1988) 166 CLR 69
Napier v Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395
Sorrel & Cutten [2017] FamCA 838

APPLICANT: Mr Sorrel

RESPONDENT: Ms Cutten

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3489 of 2011

DATE DELIVERED:	3 May 2018
PLACE DELIVERED:	Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swart

SOLICITOR FOR THE APPLICANT: Knight & Associates

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That all extant parenting orders are discharged.

2. The father have sole parental responsibility for the child B born … 2007.

3. That the child live solely with the father.

4. That pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), MS CUTTEN (the mother) is restrained by injunction from approaching, contacting or being in possession of the child B born … 2007.

5. That for the sake of clarity, the father has the sole right to apply for a passport (or an extension thereof) for the child without the requirement of any involvement of the mother MS CUTTEN.

6. Pursuant to s 121 of the Act, the father has leave to produce the following documents to any court in Australia in respect of any proceedings;

   (a)       The orders made this day;

   (b)The reasons for judgment published arising out of the orders this day; and

   (c)       Exhibit F(1) admitted into evidence this day.

7. The father’s application in a case filed 1 May 2018 is dismissed.

8. That the mother’s application for final orders is dismissed for want of prosecution.

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED:

1. That the Exhibit F(1) remain on the court file and not be returned to the mother.

2. That the order appointing an Independent Children’s Lawyer for these proceedings is discharged.

3. That the father’s application for final orders as indicated in his amended response filed 24 April 2018 and as reflected in the outline of case document filed 30 April 2018 are otherwise dismissed.

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 Sorrel & Cutten 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 MELBOURNE

FILE NUMBER: MLC 3489  of 2011

MR SORREL

Applicant

And

MS CUTTEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons concern the parenting orders I made on 3 May 2018 in relation to B born in 2007 (the child).

2. It is unfortunate that I have to be precise about names in these reasons but the logic will be apparent in a moment. 

3. Ms Cutten is the mother of the child.  Mr Sorrel is the father. 

4. As can be seen, the child is 11 years of age and has been embroiled in a parenting dispute involving her parents for over seven years.  There have been two “bouts” of contentious parenting litigation culminating in consent orders previously and this is the third.  What is undoubtedly disconcerting to the court lies in the question of whether the child is at risk of serious harm in the care of her mother, whether that harm is psychological or physical.  For the reasons that follow, I am satisfied that there is a risk and that it is unacceptable. 

The preliminary issue of Locus Standi

1. In October 2017, I made orders adjourning what was then a final hearing to March 2018 at the request of the mother of the child.  She was then represented by counsel and a firm of solicitors.  It is unnecessary for me to repeat my description of the problems of October 2017 suffice to say that the mother’s counsel told the court that the case was not ready and indeed, her own material was either inadequate or wrong.  How that could be possible would normally be hard to explain bearing in mind the lead in time to those proceedings but some explanation may lie in what I am about to now set out.  My reasoning in October can be found in Sorrel & Cutten [2017] FamCA 838.

2. In March 2018 and with no further material having been filed by the mother but yet again being represented by the same firm of solicitors, the father asserted that there had been at least one overholding since the October proceedings and the father then wanted to argue about the mother’s capacity as a parent and her level of responsibility.  The solicitor for the mother in response told the court that she denied having not complied with orders and she intended to produce evidence from a psychiatrist, psychologist and counsellor.  The solicitor alleged that the child’s father “minimised” the mother’s “role”.  At that time, the mother’s role had been severely curtailed as will be evident when I turn to the litigation history below but because of that, I directed that the mother be the applicant in the proceedings.  I set the matter down for 3 May 2018 and ordered the mother to file her material.  She did not file anything within the time frame required.  That left the father in a position where he had nothing to which he could respond but he filed affidavit material in any event.

The mother’s behaviour at court

1. Albeit well outside the ordered timetable, the mother’s documents were “filed” on the court’s portal but because they did not resemble anything consistent with what would enable the court to decipher admissible evidence, (ss 55 and 56 of the Evidence Act 1995 (Cth)) they were rejected.

2. As the hearing began, a woman clearly identified by the father as the mother, and without legal representation, announced that she was “[Ms Cutten]”.  As the transcript will show, this particular person was at pains to distinguish herself from the persona of the mother.  She resisted any attempt to identify herself as Ms Cutten.  She maintained that she was the agent or attorney of Ms Cutten but as I observed, without the relevant formalities being completed, namely proof of entitlement to appear as agent or guardian, I was not prepared to recognise her status.  The reality was however, everyone else in the court room recognised this person “[Ms Cutten]” as the mother.

3. The mother insisted that the court “read” her documents.  I have marked them as Exhibit F1.  In essence, those documents are but the ramblings of an irrational mind yet they would in many respects, give the appearance of legal argument and asserted facts.  The difficulty is that they do not represent anything that would enable a court to determine the parenting issue under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

4. The documents were sequentially headed:

   ·    Public notice of entry, special appearance and appointment of attorney in fact;

   ·    Verification of complaint;

   ·    General affidavit;

   ·    Declaration of surrender;

   ·    Rebuttal of presumption of death by affidavit;

   ·    Certificate of proof of life; and

   ·    Rebuttal of presumption of abandonment

5. Whilst these ramblings were very carefully constructed and gave the appearance of legal documents including being stamped by a notary public, a careful examination of them disclosed that they could be condensed to a few principles.  Those were:

   ·    The mother was representing herself by her alter ego, the attorney;

   ·    The mother through this attorney asserted that all of her rights came from “the Supreme Judge, not from man, and stand unalienable” and that all governments existed to protect and defend those rights because she was the beneficiary of the mother through a cestui qui Trust “created by operation of law” and the State of Victoria stood as trustee “in the service of this property”.

6. It is of concern just what reference is intended by the word “property”.  Contextually, I consider the mother was referring to the child as property. 

7. The mother’s affidavit went on to say that she waived “any compelled benefits” including that she was even a citizen of the Commonwealth of Australia or “inhabitant of Australia” or “subject of a Crown”.

8. This rambling went on to say that it was her conviction that enforcement of “any Statutory Regulations (Victoria Acts) (sic)” were done in violation of natural law and she wanted them extinguished.

9. One might conclude that this was an assertion that the court had no jurisdiction over the mother (albeit that she may have been physically present but not agreeing to that fact) and that consequently any orders of the Commonwealth of Australia through its courts (albeit the mother thought they had something to do with the State of Victoria) were inconsistent with her rights which arose from natural law divined by God Almighty.

10. The document that followed was 34 paragraphs long and it had statements to which I need to return because they address the issue of unacceptable risk.  Such a reference was made to the union of mother and child to hold until death parted them.  That specific reference gave rise to the question of whether or not the child was at risk. 

11. The same document made reference to the papal encyclical of Pope Leo X111 relating to capital and labour.  Pope Leo of course was the pope in 1891 when he delivered the Encyclical Letter.  This document supported the rights of Labor to form unions, rejected socialism and unrestricted capitalism whilst affirming the right to private property.  Perplexing as the connection may seem to be with a parenting dispute and any issue of Australian law, the mother tendered a document signed by the Right Honourable Gough Whitlam in his capacity as Prime Minister of Australia at the time in 1973 recognising the Vatican as a country for the purposes of international relations.  It seemed that the mother’s position was that such an adoption of the Papal See somehow or other incorporated the papal encyclical into the law of Australia.  If that was intended, one must immediately reject it.  The Constitution of Australia and its parliaments, at State and federal level determine the law.

12. The final reference that needs to be understood was that the mother considered herself only bound by the law of God Almighty and she rejected any entitlement to or citizenship of, the Commonwealth of Australia.  She then said:

    [29]…and in keeping with the duties conferred unto Him by the Grace of God does declare and accept the Church of [K] as the ONLY Lawful Civil Authority, for Jesus Christ is the Foundation al (sic) All (sic)…

13. When I asked the mother about the church to which she referred, she confirmed that she was talking about the K Church.  This church apparently has its roots in the United States and which any internet search would show is the subject of controversy.  I have concluded that what the mother was saying amounted to an acknowledgement that only the laws of that church guided her decision-making and that having abandoned any citizenship of Australia, she did not consider herself bound by its laws.

14. The rest of the documents related to birth certificates. A cursory examination of them will show that whilst they were clearly issued by the State of Victoria, they have no relevance to this parenting dispute as there is ample evidence (not to mention previous orders) under which the child was and is in Australia at the relevant time referred to in the Act. I am satisfied in the circumstances that the provisions of s 65C and s 65D of the Act apply.

15. Section 65D provides that in proceedings for a parenting order (subject to certain restrictions provided by other sections of the Act), the court may make such parenting order as it thinks proper.

16. The jurisdiction of this court is therefore not seriously challenged.

The mother’s resistance to the jurisdiction

1. The mother refused to identify herself as Ms Cutten and persistently requested that she be referred to as “[Ms Cutten]”.  When I asked whether she was the mother, she pointed to the document relating to what she considered was a form of power designated to an attorney and which I have already dismissed as irrelevant.  I indicated that if she was not the mother, she was not entitled to participate. 

2. Ultimately, the mother said that she wanted a “letter” so that she could go to the Supreme Court of Victoria.  I would be very hesitant to impose the sort of nonsensical argument that I have heard upon any other court in this country but it may be that the Supreme Court of Victoria will have to deal with the same sort of argument to which I have referred.  For that reason, I have given leave to the father to use these reasons, and specifically the documents to which I have referred, in any future court proceedings in this country.  It is curious that the mother does not see herself as a citizen of Australia yet she would want to rely upon powers of the Supreme Court of Victoria which have been no doubt constitutionally granted appropriately.

The application of the mother

1. As the mother had not filed any affidavit material that would assist in making a parenting decision, and specifically having not filed documents that would enable her to participate in the proceedings properly, I dismissed her application for relief (such as it was) on the basis of her failure to comply with the orders previously made.

The orders sought by the father

1. The father initially sought orders that there be restrictions on the mother’s time with the child but events in very recent days prior to the commencement of this hearing made him alter that position.  What had previously been an agreement that the mother should have a relationship with the child, was altered to an application made orally (and accepted by the court) for an injunction precluding the mother from having any contact with the child.  He otherwise sought orders which were effectively already in place as a result of previous orders.

The historical background

1. It is not necessary for me to set out precisely what has happened in the past but I agree with counsel for the father that her client would be entitled to feel “litigation fatigue”.

2. Proceedings began in 2011.  In February 2012, the parties entered into a consensual arrangement which was endorsed by the court leaving the child in the mother’s care for eight out of 14 days and the father six days.

3. It would appear that immediately after those orders, problems began to arise.  Further litigation was commenced.  The Federal Circuit Court referred the parties to psychiatrist Dr C.  The father relied upon Dr C’s affidavit filed in 2014.  Dr C examined the father but expressed no concerns.  His opinion of the mother however was quite enlightening.  He said that the mother had an untreated psychiatric illness, the likely diagnosis of which, was post-natal depression with some psychotic features.  In 2014, he thought she was “unwell” and “essentially disturbed”. 

4. Importantly, Dr C observed:

   There are indications that she involves the child in various delusions or concerns about (the father).  There are indications that her parenting is not appropriate.  She sleeps with the child and it is likely that the child is fast becoming a parentified child.

5. Dr C opined that the child was at risk in the mother’s care of emotional harm from parentification and that the mother needed appropriate psychiatric treatment which he thought she was likely to resist.  He was apparently correct.

6. Remarkably, despite Dr C’s concerns, in August 2014, the parties consented to the child primarily living with the father but the mother having her for alternate weekends from Friday to Monday and overnight each Wednesday.  That order must have flown in the face of Dr C’s concerns.

7. It was not long however before a dispute arose over schooling and that led to proceedings again in the Federal Circuit Court.  Judge Small made an order for a family report to be updated by Ms H who had already prepared one earlier.  That update was in July 2016. 

8. Ms H considered that the mother’s presentation was one of “transient anxiety with a paranoid flavour and relational boundary diffusion and is characteristic of generalised emotional disturbance of Borderline traits

9. Again remarkably, the mother’s time with the child continued albeit with some restrictions.

10. In August 2017, despite the court’s order, the mother overheld the child and that led to a recovery order.  Ultimately, the matter was transferred to this court and the proceeding came before me as I have indicated in October 2017.

11. Despite the parties telling the court that these orders were in the best interests of the child well-knowing that there were professional concerns about the mother’s health, time between mother and child continued.  All of that brought into focus the hearing in October 2017 and more importantly now, what has occurred since that time.

The events after October 2017

1. As a result of the orders of the court, the father enrolled the child nearby to his residence and all of the evidence indicates that she has settled well.  That is in contra-distinction to the assertions against the mother whilst in her care, that there was inconsistency in the child’s attendance at school.  The transition in the schooling was not a problem. 

2. In November 2017, the father was required to travel overseas for work.  In his absence on a weekend, the child spent time with her mother but was returned late to the father’s wife.  The mother was aware that the father was overseas and she wrote to the father indicating that because he was away, she would take over the care.  That was not permitted under the previous orders of the court.

3. When the mother attended school in the absence of the father, the principal justifiably resisted permitting her on the premises to take the child away.  I have concluded that the child was protected from that unseemly event. 

4. School holidays followed over the 2017/2018 summer and despite all of the problems of the past, the father proposed that the mother spend time with the child for 16 days.  As the starting date loomed, the mother had not responded.  Eventually contact did take place but the mother did not return the child to the father at his stipulated time.  Rather she took her to her first day of school in January 2018.

5. In February 2018, the father sent the mother a text message about the child’s involvement in netball and, in anticipation of the mother having the child and needing to be involved, he let her know that the fixture would soon be released.  The mother’s only response was:

   Ezekiel 34:10

6. It is the father’s evidence, and there is no reason for me to doubt, the reference in Ezekiel is to shepherds and flocks and the Lord God’s view about them.  The absence of context was perplexing.  In the context of what I have now seen however, I find that the mother interprets scriptures as they suit her but she does so in an obtuse way.

1. In the middle of March 2018, the mother refused to return the child indicating that she wanted to stay at home and when the father insisted that she comply with the orders, the mother’s response was “I don’t care”.

2. Further problems then occurred including the mother filming the father at times when he attended the child’s school and a failure by the mother to return school uniforms requiring the father to purchase new clothing each fortnight.  In addition there were passport problems and the mother’s lack of cooperation was there seen.

The events of the week of 30 April

1. Remarkably, with only days to go before the commencement of the final trial, the mother over held the child again.  Some reference was made to the fact that the child was ill but as counsel for the father observed, the mother was endeavouring to complete the documents to which I have earlier referred and indeed attending at the court to file them with the child in tow.  To the extent that the child was indisposed in some way, it was not apparent when the father ultimately collected her from school.  The mother ultimately took the child back to school later in the week.  At its highest, the father was able to glean from the child that she had had problems with her “tummy”.

Conclusion about the mother’s conduct

1. There is a long history in this case of lack of cooperation and indeed involvement in litigation entirely as a result of the conduct of the mother. The absence of explanation is perplexing.  The constant need to protect the child from such things as recovery orders, is alarming.  There has been at least one situation in late 2017 where a recovery order was required to be executed and involved police attendance.  There is the reference (obtuse as it may be) to Ezekiel.  There is the denial by the mother of the jurisdiction of the courts to protect the welfare of the child.  The mother’s only allegiance appears to be to a religious organisation in the United States.  Just what support, if any, she has in Australia remains obscure.

2. In my view, there is a risk to the child of a continuation of what Dr C explained was symptomatic of a psychiatric illness and which was supported by the concerns expressed by Ms H some two years later.

3. I find in the circumstances that the child faces the prospect of an ongoing disruption unless the court restrains the mother from having an involvement in her life.  The mother’s mental health position was well known to her lawyers until they recently ceased involvement.  Mr J, the solicitor who appeared for her at the mention hearing in March 2018 made reference to her attendance on, and evidence from, psychiatrists, psychologists and counsellors.  Presumably, there have been attendances on those professionals but no evidence was produced by the mother nor, more importantly, did she indicate that she had been attending them.  Her rejection of the jurisdiction of the court and her claim that she was not a citizen of the Commonwealth of Australia, would presumably mean that she has been paying all of those expenses privately on the basis that she would not accept the benefits of the medical system from a country to which she did not belong.

4. All of these things mean that the child is at risk particularly in relation to the warning of the psychologist Ms H in 2016 that the child was becoming a parentified child.  In my view that is unacceptable for a child of the child’s age.  The history of this case shows that it has continued over a space of seven years and would now appear, on the face of what I observed in the courtroom, getting worse.

5. That then leaves the question of what to do.  

The evidence of the father

1. The evidence of the father was unchallenged. As a precaution, just in case “[Ms Cutten]” was the mother, I asked her whether she wanted to cross-examine the father. She declined, as did counsel for the Independent Children’s Lawyer. There is therefore no reason for me to doubt his description of what is happening in the child’s life.

2. The child is part of a family which comprises three other children. Two children are from the father’s wife’s former relationship and they are aged 10 and 12 years. There is a child of the father and his wife, now aged 3. There is no suggestion of lack of care or lack of harmony in the father’s household.

3. The family lives on 13 acres and the child enjoys the lifestyle.

4. As already indicated, the child’s school attendance since she moved to a school closer to the father has been good by comparison to her history. She is described as a settled child who enjoys activities outside of school.

5. The controversial issue in this case is the relationship with the child’s mother. The father’s perception was as follows:

   [51]I know that [the child] loves and cares for her mother and I have gone out of my way to make sure that the child is able to spend time with (the mother) and enjoy that time. I am concerned that [the child] is anxious about her mother and worries about leaving her when she is with her, to the extent of significant disruption to her schooling when she was at (L) school when (the mother) kept her home from school or sent her late to school.

6. There is no evidence other than that just described about how the child will manage the absence of her mother but that gave rise to a question of whether an interim order could be made that excluded the mother until she had addressed the issues raised by Dr C and Ms H. Against that, counsel for the Independent Children’s Lawyer submitted that the court could have confidence in the father to protect the child and if he considered she needed time with her mother, it could be explored. There is nothing to indicate that perception is not correct. When I asked “[Ms Cutten]” (in case she was the mother) whether she had submissions to make about the proposal for an injunction, she returned to her theme of what the documents said that she had submitted.

7. Counsel for the Independent Children’s Lawyer submitted the case should be finalised (see s 60CC) rather than some alternative arrangement because:

   ·The documents showed irrational behaviour;

   ·The mother was divorced from reality;

   ·The mother denied that she was beholden to the jurisdiction of the Court;

   ·There was an over-holding of the child only this week without adequate explanation or action; and

   ·It was time to finish all of the years of litigation.

8. I accept the submission put by counsel.

9. Counsel for the mother submitted that the actions indicated a “troubled mind” but what was concerning was the subtle messages hidden amidst the verbose language of the pages of ramblings. It was these that caused the father the most concern and I agree. It is important to observe that parents who have a mental illness or suffer the dysfunctional traits of Borderline Personality Disorder and paranoia can still parent their children. There must be a connection between the asserted illness and the statutory requirements imposed on the court to assess what is in a child’s best interests as determined by reference (in particular) to s 60CC of the Act. In this case, that connection is present and apparent.

10. Counsel for the father pointed to the mother’s own documents to highlight the concern. The relevant parts are as follows:

    [2][Ms Cutten], C.S., B, C.S., by the Grace of God, stands pledged to and remains a citizen of Kingdom of Heaven, thus a foreigner with respect to Commonwealth of Australia and this fact stands undisputed;

    [21]Pursuant to (the Papal Encyclical)…...Paternal authority can be neither abolished nor absorbed by the State; for it has the same source as human life itself. “The child belongs to the father,” and is, as it were, the continuation of the father’s personality; and speaking strictly, the child takes its place in civil society, not of its own right, but its quality as member of the family in which it was born. And for the very reason that “the child belongs to the father” it is, as St Thomas Aquinas says, “before it attains the use of free will, under the power and charge of its parents.” The socialists, therefore, in setting aside the parent and setting up a State supervision, act against natural justice, and destroy the structure of the home. This fact stands undisputed.

11. This apparent concept of a child being property is not part of the law of Australia but even if it was, the mother seems to be saying that the child belongs to the father. The connection between socialists and an Australian law made by Parliament under the watchful eye of the Constitution is unclear. It is uncontroversial that the validity of the Family Law Act, as a proper exercise of Commonwealth Parliamentary power, has been considered more than once by the High Court of Australia.

12. The mother went on and, intending to quote from the Papal Encyclical said:

    [23]….Women, again, are not suited for certain occupations; a woman is by nature fitted for home-work, and it is that which is best adapted to preserve her modesty and to promote the good bringing up of children and the well-being of the family.

13. Leaving aside the arcane reference to the role of women which I have no doubt would be rejected by many in the community, nothing in the Act indicates that one gender is to be preferred over the other (see s 60B). It would be wrong to decide a parenting case on the basis of gender. More significantly here, the father has had an increasingly greater role in the nurturing and care of the child subsequent to separation and the mother’s role has not just been diminishing but also being seen to more destructive of the child’s well-being.

14. Counsel for the father pointed to the statement to indicate that it is the mother’s misguided perception that children should be cared for by mothers alone.

15. The mother referred to “International Humanitarian Law” to observe that private property could not be confiscated. The father interpreted this as a reference to the child being property because the previous orders have consistently removed her from her care into his. Without explanation, it is hard to know what the mother meant but the rest of the document would support his perception.

16. The document then reads that the “Church of K” is the civil authority responsible for laws. A tenet of that church’s faith (as the Internet would have us believe) is that its members are subject to the laws of the land. The mother also offered definitions from American literature; they have no place in these proceedings. Whilst courts may, and often do, look outside of the common law, and decided cases, for guidance, the Act here is plain and the authorities clear. Nothing in the mother’s reference to religion makes sense here.

17. To heighten the father’s anxiety, the mother at [31] talked of a “union” of the mother and child and then seemed to suggest they were “envoys” of “the House of [Cutten]”. The father interpreted this as being consistent with what she said in [23] about mothers being the carers of children. The reference to House of Cutten may have some obtuse meaning but in the context of the whole document, it was meaningless.

18. The main document ended with reference to the “Declaration of Surrender” in “perfection of this union” and “let no man allow another to tear this union asunder”. The father interpreted this as indicating (again) that the child should not be removed from her mother.

19. As I earlier observed, these statements, if intended to be philosophical, should better be directed to the legislators but it would seem that the mother does not recognise their legitimacy either. They do not assist me work out which of the two parents has the capacity to provide for the physical and emotional needs of the child; which of those parents has acted responsibly as a parent (if not both); how the child sees her parents; and, how she might want to have them participate in her life. Indeed, if the mother’s mantras are to be taken as to her philosophical views about parenting, those views are inconsistent with the aspirations of the Australian Parliament for this community’s children (see s 60B).

20. Part VII of the Act is a mandatory provision which sets the framework for this decision. The court is obliged to make the order that best meets the interests of the child. To determine best interests, the court is to consider the matters set out in s 60CC of the Act.

21. In contemplating what, if any, orders should be made, s 60B of the Act makes clear the importance of the role of both parents in a child’s life and the need to ensure the benefit to the child of both parents being involved. The mother’s history of frustrating orders and interrupting the child’s life, when seen in the context of her philosophical statements, gives some insight as to what happens when she has a major (and the father would now say, any) role in the child’s life. The lack of explanation about the over-holding, the obtuse reference to Bible quotes and the behaviour in the courtroom, all indicate that the child is at risk of psychological harm in the mother’s care. The father reads into the statements that there is a risk of physical harm as well and absent some explanation as to where she sees the father’s role in the child’s life, I agree.

22. It is in the child’s interests to maintain a relationship with both parents but that has to be read subject to s 60CC(2A) which requires the court to give greater weight to protection, the emphasis of which is seen in s 60CC(2)(b). That provision reads:

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

23. There is ample evidence here to find that the child is exposed to psychological harm by being subjected to neglect by her mother. There is also a real risk that in the mother’s care, she could be physically harmed if there is any significance in the words about not putting “the union asunder”.

24. The child is anxious in her mother’s care because she is parenting her. That is not appropriate for a child of her age.

25. In Napier v Hepburn [2006] FamCA 1316; (2006) 36 Fam LR 395, Warnick J discussed the question of unacceptable risk with the goal being to provide “a platform, for any future consideration of the family circumstances”. That examination, said his Honour, was to enable parents to “subsequently explore options for change”. That cannot happen here and is unlikely to change without the mother addressing the issues raised by the two professionals. However, it is the assessment of risk that is most critical here.

26. In The Marriage of N and S [1996] FLC 92-655 Fogarty J said (at 82,713-4):

    Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.

27. What therefore is the likely occurrence of the father’s (and the Court’s) concern about what might happen to the child? What happens to the child if it does? Based on history, the likelihood is high. The consequences have already been seen: loss of schooling and the child becoming her mother’s parent, if not entirely, certainly worrying about her mother. As to the test or standard for that risk, assistance may be gleaned from M v M [1988] HCA 68; (1988) 166 CLR 69 where the High Court used the word “unacceptable”. That determination is made after balancing all of the considerations known to the Court. The essential determination must be made in the context of protecting the child from any such unacceptable risk. To date, she has not been so protected and the problem has continued unabated. It is time to stop that recurring. I find the degree of risk if contact resumes, and the consequences of that, unacceptable for the child.

Parental responsibility

1. In October 2017, on an interim basis, I determined parental responsibility. Nothing the mother has presented notwithstanding the opportunity to do so, seeks to alter that position. It is therefore unnecessary for me to consider the provisions of s 61DA beyond saying that even if it was contemplated, I could not find there is anything to indicate that the mother would co-operatively make decisions about the child’s future which is the logic underpinning parental responsibility for decisions about children. The very number of unilateral actions here are alarming. The court has been inappropriately used to continue the problem and it is time to bring all of that to an end for the sake of settling the child.  It would not be in the child’s best interests for her parents to have any shared responsibility.

2. No doubt, the child will miss her mother but those matters are in the mother’s hands. Responsible parents who can put together the sort of document presented to this Court should be able to recognise there is a shortcoming in their parenting skills. I do not know what the mother thinks and she has not assisted me.

3. I find that s 65DAA is also not engaged because I am not making an order for equal shared parental responsibility.

4. Section 60CA requires the Court to consider the best interests of a child as the paramount consideration. That is determined by reference to s 60CC. I have already addressed those matters in the sense that the mother has presented no evidence that would enable findings to be made. The father’s evidence is unchallenged. To the extent that not all matters are covered by these reasons, all factors in s 60CC have been considered. I have no evidence other than that shown above about how the child views her own future relationship with her mother. There is no evidence about financial support by the mother of the child and when I asked what her source of income was, she bluntly declined to tell me. The father did not raise complaint about lack of financial assistance. I do not know about intervention orders to date but was told that based on what the mother had written, the father would immediately seek one. There is sense in that having regard to what I read and because the material presented to this court may be of assistance to that other court, I have given leave for it to be so used along with these reasons and the orders I have pronounced.

5. This matter needs a permanent conclusion and the orders I have made should continue until the child is an adult. I find that is in her best interests.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 May 2018.

Associate: 

Date:  3 May 2018