Tabano and Yabon (No 4)

[2020] FamCA 1001

FAMILY COURT OF AUSTRALIA

TABANO & YABON (NO. 4) [2020] FamCA 1001

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests – Where final parenting consent orders were made in December 2017 which provided for the three children to live with the mother and spend alternate weekends with the father – Where, within two months, the father had withheld all three children and the matter returned to court and shortly after an order was made, without hearing from the mother, which changed the children’s residence such that they lived with the father – Where approximately eighteen months later a different judge made an order pending trial that the father have no time with the children and that they return to live with their mother –Where the eldest child has repeatedly left the mother’s care and found her way into the care of the father’s associates – Where the eldest child has not been regularly attending school for almost a year – Where the father has “weaponised” the eldest child and has fractured her relationship with the mother – Where the father alleges that the children face unacceptable risks in their mother’s unsupervised care of physical, emotional and sexual abuse by the mother and her husband – Where the Court finds that the mother and her husband do not pose an unacceptable risk of harm – Where the children require stability – Where the mother does not have the capacity to repair her relationship with her eldest daughter – Where it is in the eldest child’s best interests that her wishes to live with her father be respected, for better or for worse – Where the eldest child will live with the father and spend no time with the mother or her two siblings – Where the two younger children will continue to live with the mother, she shall have sole parental responsibility, and they will spend no time nor communicate with their father.

FAMILY LAW – PRACTICE AND PROCEDURE – Order for referral to the Commissioner of the Australian Federal Police – Referral made.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Tabano

RESPONDENT: Mr Yabon

INDEPENDENT CHILDREN’S LAWYER: Gary Rolfe

FILE NUMBER: BRC 8367 of 2016

DATE DELIVERED: 27 November 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 30 March to 3 April; and 20 to 24 April; and 27 April to 1 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: Jurgensen Horne Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hanlon

(until 20 April 2020 only)

SOLICITOR FOR THE RESPONDENT:

Cornerstone Law Offices

(until 20 April 2020 only)

THE RESPONDENT:

Self-represented

(from 20 April 2020 only)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Gary Rolfe Solicitor

Orders

1. That all previously parenting Orders be discharged.

2. That the child, X YABON born … 2006, (“X”) shall live with the father. 

3. That the father shall have sole parental responsibility for all decisions to be made in respect of all “major long-term issues” (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) in relation to the child X.

4. That save for any she initiates herself, X shall spend no time and have no communication with the mother.

5. That the children, Y YABON born … 2008 and Z YABON … 2010, (“Y and Z”) shall live with the mother.

6. That the mother shall have sole parental responsibility for all decisions to be made in respect of all “major long-term issues” (as that term is defined in s 4 of the Family Law Act 1975 (Cth)) in relation to the children, Y and Z.

7. That the children Y and Z shall spend no time and have no communication with the father.

8. That the Independent Children’s Lawyer be discharged.

IT IS RESPECTFULLY REQUESTED

1. That the Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any indictable offence prescribed by s 121 of the Family Law Act 1975 (Cth) in respect of proceedings involving the children, X YABON born … 2006, Y YABON born … 2008 and Z YABON born … 2010, has been committed by the father’s wife, Ms Yabon, in respect of the publication by her of information contained within an email sent by her at 2:24 pm on Wednesday, 31 July 2019 (that is Exhibit 21 in the trial in these proceedings) to all of the recipients listed under the Subject “URGENT – Plea for help – Attention All Chief of Staff”.

IT IS FURTHER DIRECTED

1. That the Principal Registrar of this Court, or his delegated nominee, ensure that a sealed copy of these Orders, along with a sealed or appropriately certified copy of Exhibit 21 in the trial in these proceedings, as well as paragraphs 89 – 91 and 129 – 132 inclusive be forwarded to the Commissioner of the Australian Federal Police for his consideration.

2. That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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 Tabano & Yabon 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 BRISBANE

FILE NUMBER: BRC 8367 of 2016

Ms Tabano

Applicant

And

Mr Yabon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Hearing and determining disputed parenting orders proceedings in this Court is rarely, if ever, an easy task. This case has been particularly difficult for a whole range of reasons. Many observers looking at the court system in which disputes between parents about the parenting of their children are decided, assert that there must be a better, less adversarial, more child-focused way of going about it. Unfortunately, there are just some cases in which the parents, left to their own devices, even assisted by qualified and experienced family lawyers, psychiatrists, child psychologists, social workers, doctors, police, child welfare departmental officials, friends and relatives, simply cannot ever reach a resolution of the conflict that exists between them. They cannot put their enmity towards each other away and truly focus on achieving positive outcomes for those that need them most – their children. Their personalities are such that they persuade themselves that what they are doing is lovingly focusing on what is best for their children and that what the other parent is doing is selfishly and ignorantly focusing on their own personal interests. They very often get support in respect of the righteousness of their position from those close around them, particularly new partners. They cling to, admire and seek to draw further support from any person who gives them hope. They often reject, demonise and attack any person who questions their approach, even experts who are dispassionately trying to help. They have no capacity or insight to appreciate that they fuel the conflict that so terribly damages their children’s emotional and intellectual development. This is one of those cases. There is nothing left but for this Court to do what it is established to do in such cases – make parenting orders as it considers proper, with mandatory regard to the best interests of the subject children as the paramount consideration.

2. In this case, those children are X, who will shortly turn 14 years of age, Y, who will shortly turn 13 years of age and Z who is 10 years of age. They are the three children of the former marriage of Mr Yabon, the Applicant in the case, and Ms Tabano, the Respondent. For convenience, I will refer to each of them as the father and the mother in these reasons.

Some history of the litigation

1. The father and mother married in 2005. They separated in March 2016. The father commenced proceedings in the Federal Circuit Court (“the FCC”) in August 2016. The difficulties in their co-parenting and the impact of those on their children and the litigation led to the appointment by the Court of an Independent Children’s Lawyer (“ICL”) to represent the best interests of the three children. That ICL considered it necessary to obtain the expert assistance of an independent psychiatrist to interview and assess both the mother and the father. That happened and a report was provided. That ICL also considered it necessary to obtain the expert assistance of an independent social worker to interview and assess the family and to provide a family report setting out his expert assessment. That happened, too.

2. At that time, both the mother and the father had solicitors representing and advising them.  Their parenting and property litigation was resolved on a final basis when, assisted by their lawyers, they agreed to terms at a Court facilitated conciliation conference in late November 2017. Over a week later, the terms of that agreement were put to a Judge of the FCC and, with the consent of each of the parents and the ICL, made into what were said to be “final orders”. After nearly two years of conflict and one and a half years of litigation, the father agreed for the three children to continue living with the mother as they had since separation and to spend time with him each alternate weekend. That agreement was reached against a backdrop of the following:

   (i)The father’s case that he had been the primary carer of the children during their marriage;

   (ii)The mother having denied the father any contact with the three children for several months after their separation because of her asserted fear of his abuse;

   (iii)The children’s time with the father, after the Court’s jurisdiction was invoked, being initially limited to supervised time at a children’s contact centre;

   (iv)The children’s time with the father progressing to unsupervised time with the father on alternate weekends;

   (v)The father withholding the child, X, in the months of October and November 2017, and not returning her to her mother’s care after weekend visits, as well as keeping her out of school during some of that time;

   (vi)Many allegations of inappropriate parenting by the mother and her new partner being made by the father.

   The FCC Judge made the final Orders that the ICL, the mother, the father and their lawyers asked him to make. Indeed the parties had over a week to consider their positions between the striking of the agreement and the making of the Orders by the Judge. It would appear that the Judge, as well as all three parties, were plainly satisfied that the parenting orders were proper and in the best interests of the children and that the property adjustment orders were just and equitable.

3. Despite finality being achieved then, within two months, the parents were back in the Court. In early February 2018, the father withheld returning all three children to the mother after they had spent time in his care. He even sought to enrol them in an entirely new school. The mother quickly applied for a Recovery Order and on 14 February 2018, another Judge of the FCC ordered that the three children be returned by the father to the mother’s care, but at the same time, curiously, ordered that the children see a Family Consultant within the Court for a short-form report to be prepared, with the matter being listed for further interim hearing on 27 February 2018.

4. That report issued and the Family Consultant recommended that “a period of stability, would be in [the children’s] best interests at this time”.  Clearly, that meant that they be returned to their mother’s principal care, as it went on:

   The Court may wish to consider ordering the children spend additional weekend time with [the father], for example three out of every four weekends as this may be the least disruptive change while also providing for the children to spend more time with their father.

5. On the day before the hearing, the mother, then without legal representation, contacted the FCC Judge’s chamber’s staff and informed them that she was in labour, soon to give birth to a baby she was having with her new partner and would not be able to appear at Court the next day. The next day, the father, then also without legal representation, appeared before the Judge. So too, did the ICL. That day, the FCC Judge made Orders discharging previous parenting Orders and providing for the three children to be immediately delivered into the care of the father to live with him (over an hour’s drive away from the home in which they had been living with the mother) and to spend time with their mother each alternate weekend. Those Orders also provided for the father to be permitted to enrol them into the new school near his home. Rather extraordinarily, the FCC Judge made those Orders without hearing from the mother or giving her an opportunity to be heard that day or even shortly thereafter. He listed it for a final hearing before himself, six months later on 13 August 2018. His Honour apparently gave no reasons for his determination.

6. Unhappy with that outcome, unsurprisingly, the mother soon filed another application. That came before a different FCC Judge, but not until May 2018. That Judge ordered a transcript of the hearing before the other Judge that had occurred on 27 February 2018, clearly to try to understand why such an exceptional Order had been made, and listed it back before himself in July. In July, conscious of the fact that the matter was listed for a trial on 13 August 2018, that Judge varied the earlier Orders by providing for the children to spend time with the mother three weekends in every four and overnight each Wednesday night.

7. On 13 August 2018, the matter was back before the FCC Judge who had made the 27 February 2018 Orders. It was listed for trial. On that day, counsel appeared for the mother instructed by solicitors then acting for her. Counsel also appeared for the ICL. The father was unrepresented. Counsel for the mother asked the Judge to recuse himself because of the extraordinary Orders his Honour had made in February. The Judge recused himself and gave some brief reasons.

8. In those reasons, his Honour said that on 27 February 2018 he had been concerned that no information had been provided to the Court, the ICL or the father as to the “care arrangements” made for the three children by the mother whilst she was in labour and in hospital. For that reason, his Honour said, he had ordered that the children live with the father until further order. His Honour said:

   I was unprepared to countenance a situation where, through a lack of communication, either deliberate or innocent, the father, at the least, had not been informed as to what arrangements had been made for the care of the three children of the marriage.

9. I observe here that the mother and the three children were at the time living in a home with her partner, the father of her new baby, where they had been living for a while, and the children were attending a local primary school. There is no dispute that the father knew that. The evidence before me establishes that. It is difficult to understand what the father or, indeed, the FCC Judge might have thought was happening with the three children whilst the mother was in labour.

10. In any event, his Honour’s reasons went on to mention that he had asked the ICL and the father to “craft appropriate draft orders which would countenance the children residing with the father until further order”. His Honour went on:

    However, as it transpired, the draft orders which were sent to my chambers, and which ultimately I erroneously approved, were far greater in extent than what I had envisaged on the day. What I had envisaged was merely that until further order the children live with the father until either agreement was made to reinstate the arrangement prior to 27 February 2018 or, alternatively, for other short-term orders to be made allowing for the matter to come back before the Court after a short period of time upon the mother’s discharge from hospital.

    The orders which I approved were of far greater extent than that and, for that, I offer my regret. In those circumstances, it is appropriate that an application for recusal has been made, and I accordingly recuse myself from further hearing this matter.

11. His Honour then sent the matter to another Judge to hear the father’s application for variation of the extant parenting Orders.  The father wanted the children’s time with the mother to be reduced. That other FCC Judge heard and dismissed that applicant and, regrettably, adjourned the trial to a date to be advised.

12. A different FCC Judge again, made Orders in chambers on 19 September 2018 listing the matter for a trial over two days, but not until 10 April 2019, and made trial directions.

13. The matter was back before another FCC Judge on 1 November 2018 for the hearing of further contested interim applications. Some of those were resolved by agreement between the unrepresented father, and the barristers who appeared for the mother and the ICL. The fresh interim orders by consent provided for the children’s time with the mother over the Christmas holidays; attendance by the children at the mother’s wedding to her partner, Mr V; the children to be with the father on ANZAC Day in 2019; and for each of the parents to make “every effort to get the children to their extra-curricular activities”; as well as some other matters. The Judge determined, after a contested hearing on the issue, that the children would continue to live with the father and spend three weekends in four with the mother until the trial. His Honour also ordered that the children would attend upon child and adolescent psychologist, Dr O, for counselling and with the parents to be engaged with Dr O in that at Dr O’s direction. At the same time, the Judge restrained the father from taking the children to see two other named counsellors who he had been taking the children to see.

14. On 10 April 2019, the matter came before yet another different FCC Judge. Regrettably, instead of the hearing of the trial that was listed, further interim Orders were made and the matter was adjourned to be heard over three days commencing 11 November 2019. I am uncertain as to the reason for that, but speculate that it might have been because the parties told the Judge it would go for three days, not two. The children were left in the father’s care and Orders were made for the division of the end of term school holidays for the rest of 2019 equally between the parents. Injunctions were put in place restraining the parties from recording the other at any time without the other party’s consent, from discussing the Court proceedings with the children, and from enrolling the children in extracurricular activities to be undertaken whilst in the other parent’s care without the consent of the other parent.

15. On 23 July 2019, the matter was again back before that same FCC Judge who made the 10 April 2019 Orders and listed it for trial in November. There were more competing interim applications and a contravention application filed by the father. The father had withheld X from travelling to Country AA with the mother, her partner and the other children in the June school holidays and he had withheld all three children completely from going to spend time with the mother after those holidays. Before her Honour, the father was again without legal representation and the mother and the ICL were represented by counsel. That day, the Judge made orders pending the trial that the children live with the mother and have no time or communication with the father, that the mother could change the children’s school again, and that the mother have sole parental responsibility for the three children. Her Honour also ordered that the three children recommence counselling with Dr O that the father had unilaterally ceased and restrained the father from attending or contacting the offices of Dr O. Her Honour gave reasons for her Orders. Most significantly, her Honour considered there to be an unacceptable risk of psychological harm to the children should they continue to reside with the father due to his overtly negative views of the mother. Her Honour had the benefit of a report from Dr O and the submissions from the ICL. The father appealed against those Orders.

1. The three children were then returned to the mother’s care, but then began a new stage of tumult in the life of this family. X, then not yet 13 years of age, began repeatedly “running away” from the mother’s home and finding her way into the care of members of the father’s network of friends and relatives. On 5 September 2019, the father was ordered to ensure “his agent” delivered X to the Child Dispute Services at the Court’s Brisbane Registry and on 6 September 2019, an Order was made that X go back into her mother’s care with the Orders of 26 July 2019 to continue.

2. Before long, X had “run away” from her mother’s care again and on 25 September 2019, the FCC Judge who had made the Orders of 26 July 2019 made an Order that a Recovery Order issue for the child to be found and returned to her mother again. That happened, but before the end of October, X had “run away” again. On 1 November 2019, the FCC Judge who had made the 26 July 2019 Orders and who was going to be hearing the trial in November, made another Order that X be returned to the mother’s care and that a Recovery Order issue. Her Honour also transferred the proceedings to this Court, and the trial listed to commence on 11 November 2019 before her Honour was, thereby, effectively vacated, more than a year after the matter was first meant to go back to trial in the FCC. I have no understanding of her Honour’s reasons for transferring the matter, but can only speculate that it was because of the likely length of the trial and her Honour’s appreciation of the difficulties of the case.

3. On 9 December 2019, the matter first came before me on an application by the mother for another Recovery Order as X had “run away” from the mother’s care yet again. She had just turned 13 years of age. I determined to expedite the hearing of the trial and listed it for hearing over five days commencing on 30 March 2020. In return for that, the father agreed that he would, if permitted, contact X and try to persuade her to return to her mother’s care. I lifted the suspension of his contact with the child for that purpose and I ordered that a Recovery Order issue in the event that the father could not persuade X to return to her mother’s care.

4. The father was plainly able to persuade X to return to her mother’s care, as she did. This time, she actually remained there until early February this year, before “running away” again, just weeks before the trial was to start. Each of the people in the father’s network with whom X had stayed before had been restrained from removing her from her mother’s care and from keeping her from her mother’s care. This time though, she found her way into the care of another person, the father’s sister-in-law, Ms P. The mother did not bring a Recovery Application this time and commendably left the matter to trial.

5. The father’s appeal against the July 2019 change of residence went before a Judge of the Appeal Division of this Court early this year. Unsurprisingly, as the matter was already listed for a final hearing shortly thereafter, the Judge dismissed the father’s appeal, finding that it lacked any utility.

The Trial

1. On 30 March 2020, the trial commenced. Because of the restrictions imposed in response to the Coronavirus pandemic, the trial was heard by way of the Teams internet video conferencing platform. I sat each day in a court room within the Brisbane Registry of the Court. Each of the barristers who appeared for the mother, the father and the ICL appeared via computers in their own offices or the offices of their solicitors. The mother and the father appeared either at their solicitors’ offices or from their homes via other computer screens. The father was represented by solicitors and counsel who had been appointed pursuant to the Legal Aid funded scheme for the provision of legal representatives to persons otherwise prohibited from directly cross-examining their former partner by the operation of the relatively new provisions of s 102NA in the Family Law Act. There was a Family Violence Order in place pursuant to Queensland legislation naming the mother as the aggrieved person and the father as the respondent. Accordingly, s 102NA prohibited the father from directly cross-examining the mother.

2. The second scheduled day of the trial was lost to the hearing as the father was too unwell to appear. Cross-examination of the mother and her partner, Mr V, took up virtually all of the five days that were listed for the hearing. At the close of proceedings on Friday, 3 April 2020 the father was under cross-examination. The matter was adjourned part-heard to 6, 7, 8 April. Another trial I was listed to hear had to be transferred to another Judge to hear. At the end of those additional three days of hearing, the cross-examination of the father was still not complete and the matter was adjourned part-heard to 20 April. The matter proceeded again over 20, 21 and 22 April. On 23 April, another day was lost to the trial when the father was again unwell after experiencing a panic attack. The matter was heard again on 24 April before being adjourned part-heard to 27 April. It continued again on 28, 29, 30 April and 1 May. It was adjourned part-heard again to 5 May and was concluded by hearing over 6, 7 and 8 May. At some point during the trial, not long after counsel for the father had finished cross-examining the mother and her partner, counsel for the father sought and was granted leave for himself and his instructing solicitor to withdraw from the proceedings as they had, he informed the Court, “lost the confidence” of their client. The father confirmed this and confirmed that he withdrew his instructions and would conduct the balance of the trial himself. He sought and obtained my leave to proceed with the assistance of his current wife acting in the capacity as a McKenzie friend. I reserved my judgment at the end of that long hearing.

3. On 31 July 2020, I listed and heard another application brought by the mother for a Recovery Order and re-opened the evidence and admitted three further affidavits of evidence into evidence. I dismissed the mother’s Recovery Application but made some other orders dealing with some matters that required attention in respect of communication between the mother and X. I gave written reasons at the time.

4. On 2 November 2020, I had listed and heard another application brought by the father for orders that I immediately and urgently place all three children in the father’s care. I also mentioned a Contravention Application the father had filed. The latter had to be adjourned to a date to be fixed pending the provision of legal aid to the father for legal representation to permit cross-examination of the mother again. I dismissed the father’s other application and gave written reasons at the time.

5. At the end of the trial, and on 31 July and 2 November 2020, there was no dispute that X continued to live in the home of Ms P, sister of the father’s current wife, Ms T Yabon (“Ms Yabon”). Whilst at the end of the trial X was having some telephone communication with her mother which continued up to 31 July, it stopped thereafter. According to the father, he has not spent time with X since being restrained from doing so in July last year, and only communicated with her once when I permitted him to do so in December 2019. He maintains that he has had nothing to do with her “running away” and with her retention by his sister-in-law.

6. Y and Z have been living with the mother and Mr V since July last year and have not spent any time with the father, nor communicated with him since then.

What then is to be decided in this case?

1. The father wants the Court to make an Order that puts all three children back in his full-time care and for their time with their mother to be limited and conditioned upon supervision. His case is that the children face unacceptable risks in their mother’s unsupervised care of physical, emotional and even sexual abuse at the mother’s hands and at the hands of her current husband. He seeks to persuade the Court that the children’s best interests are served by all three living together in his care and minimising and restricting their time with their mother. He seeks sole parental responsibility for all three children.

2. The mother wants the Court to leave things as they are with respect to the two younger children – living with her, no time or communication with the father and sole parental responsibility to her. As for X, the mother wants her to be returned to her care with no time or communication with the father and sole parental responsibility to her. She asks the Court to accept that she can manage the difficulties that would go with that and turn things around in her relationship with X with the assistance of experts.

3. The ICL contends, firstly, that the Court should make Orders such as those sought by the mother and reject every aspect of the father’s case. Nevertheless, demonstrating a more nuanced and child focused view of the reality of the evidence than either of the parents in my respectful view, counsel for the ICL submitted, as a secondary fall-back position, that if I find myself unpersuaded by the mother’s assertions that she will adequately manage X’s successful re-integration into her household, an order placing X into her father’s care must be made – effectively as a “least worst” option.  However, counsel reiterated the need to leave the two younger children in the mother’s care to serve their best interests, and the need to maintain the restraint on them spending any time with the father or communicating with him. Quite conscious of the fact that would split the sib-ship, counsel for the ICL confirmed that his submission was that such an arrangement was still in the best interests of the younger two children and that the stability and certainty that might nevertheless provide to X might improve her chances of experiencing better emotional health in the longer term.  

4. As troublesome as it is for me to do, I will be making Orders that provide for X to go and live with her father who I will give sole parental responsibility for all decisions relating to “major long-term issues” (as defined in s 4 of the Act) in respect of her. I will not make any Orders requiring her to spend time with her mother or to communicate with her other than as X herself shall determine and initiate. I will not make any Orders that require her to spend any time with her younger siblings, Y and Z, or that require the three of them to communicate in any way.

5. On the other hand, I will be making Orders that provide for Y and Z to continue to live with their mother and for her to continue to have sole parental responsibility for all decisions relating to “major long-term issues” (as defined in s 4 of the Act) in respect to both of them. I will not make any Orders requiring those two to be provided to spend time with their father at all, nor will I be making any Orders requiring them to communicate with him. As I just said before, I will not make any Orders that require them to be brought into contact with their older sister either.

6. I will now set out my reasons for these clearly troublesome and difficult decisions. Troubled as I am about splitting the siblings, I nevertheless consider this must be done in the best interests of all three of these children.

How are the proper Orders to be determined?

1. As I have already observed, the Court’s task is to “make such parenting order as it thinks proper” subject to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).[1] In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.[2]  Section 60CC(1) provides that in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of the same section.

   [1]Family Law Act 1975 (Cth), s 65D.

   [2]Ibid, s 60CA.

2. Subsection (2) sets out two primary considerations which are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

3. Critically, in respect of this particular case, subsection (2A) provides that the Court must give greater weight (my emphasis) to the second of those two primary considerations when applying them. I have done that in the determination of this case.

4. Section 60CC (3) sets out a relatively long list of “additional considerations”, the last of which – “any other fact or circumstance that the court thinks is relevant” – demonstrates how broad the discretionary inquiry can be.

5. Also, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[3] Parental responsibility, in relation to a child, means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.[4] Section 61DA(2) provides factual circumstances which, if they exist, cause the presumption just referred to not to apply. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   [3]Ibid, s 61DA.

   [4]Ibid, s 61B.

6. If, and only if, the Court decides to make a parenting order that provides for a child’s parents to have equal shared parental responsibility for the child, the Court must then consider whether the child spending equal time with each of the parents would be in the best interests of the child and also whether the child spending equal time with each of the parents is reasonably practicable.[5] “Reasonable practicality” is determined, pursuant to s 65DAA(5), having regard to how far apart the parents live from each other, their current and future capacity to implement an arrangement for the child spending equal time with the other parent, their current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an equal time arrangement, the impact that an equal time arrangement would have on the child and such other matters as the Court considers relevant.

Why have I decided in this case that equal shared parental responsibility is not in the best interests of any of the three children?

[5]Ibid, s 65DAA(1).

1. I repeat again what I have said many times in judgments I have written over the years. Where I am satisfied that parents cannot communicate with each other in a reasonable, respectful and appropriately child-focused manner, I do not consider it in their child or children’s best interests to confer parental responsibility upon them equally. I consider that to be a recipe for disaster in so far as the child is concerned. Important decisions about major long-term issues need to be carefully and sensibly made for the child’s sake. I do not think it to be appropriate for them to be made by parents in extremely high conflict and who act without respect for the other parent’s point of view. In such circumstances, I consider the risk of an important decision not being able to be made at all, thus forcing the parties back to Court to litigate about it if it must be made, is too high. That is not in their child’s best interests.

2. Equal shared parental responsibility orders actually impose onerous obligations upon parents through the operation of s 65DAC of the Act. They must do a number of things when making a decision about a major long-term issue in relation to the child or children for whom they share parental responsibility. Each parent is required to consult the other parent in relation to the decision. They are required to make a genuine effort to come to a joint decision about that issue, and they are required to make the decision jointly. It follows that if they cannot make the decision jointly that it cannot be made unilaterally by one of them. It would require a Court having jurisdiction to make the decision if it is to be made at all, where they cannot make it jointly.

3. Nothing I have seen in the evidence in this case gives me any reason to consider that these two parents could make an equal shared parental responsibility order work in respect of any of their three children.  Indeed, the father asks for sole parental responsibility to be given to him for all three children and the mother asks for it to be given to her in respect of all three children. No party contends that parental responsibility should be shared equally between the parents. Where no party asks for equal shared parental responsibility, it is a good sign that such an order would not work and would not be in the best interests of the children. I will not make an order conferring parental responsibility equally on the parents in a shared way.

4. I consider that because of the toxic nature of the parents’ relationship that sole parental responsibility should be conferred on the parent with respect to the child or the children living in his or her care. The father will have X living in his care, so he will be given sole parental responsibility for her. The mother will have Y and Z living in her care, so she will have sole parental responsibility for them. I will not make any Orders that condition the exercise of that sole responsibility on canvassing the other parent’s views and taking them into account. I am satisfied that in this case, not even that would work with any degree of success.

So, why split the siblings and put X with the father and the younger two with the mother?

1. I turn firstly to the evidence of Mr EE, the family report writer who has over the last four years written four family reports in respect of this family.  In the final updated report he wrote in March this year, just before the trial commenced, he recommended the following:

   It is recommended that Y and Z remain in the care of Ms Tabano, that she has sole parental responsibility for their needs and that X be placed in the care of Mr Yabon and that he has sole parental responsibility for her needs. This writer has placed particular weight on the children’s wishes and their relationship with both parents at this time and the risk to X physically and psychologically should something not be done to curve her need to place herself at risk.

   While it is not the usual for this writer to give recommendations on sole parental responsibility in these matters, considering the years of entrenched conflict between these parties, the Report Writer believes this may reduce some of the conflict in the decision making for the children.

2. It would be obvious to the reader that I have accepted these particular recommendations of Mr EE as appropriate to follow.

3. X will soon be fourteen years old. She wants to live with her father. In the period between July last year and February this year, when she was living at home with her mother, Mr V and her siblings, she was acting out badly. According to her mother and Mr V and to reports of Dr O of conversations with her younger siblings, X was moody, destructive, aggressive, rude and even deliberately hurtful of her siblings, including, disturbingly, her little two year old sister. That is all of very great concern. The father would have the Court accept that X’s behaviour is a direct response to having been abused emotionally, physically and even sexually by her mother and stepfather. He asks the Court to accept that this has driven the child to repeatedly run away from her mother’s home, and to threats of self-harm, even suicide.

4. In short, there was much evidence going to the issue of X’s allegations against her mother and stepfather, including video recordings of interviews between her and police. There was other very relevant evidence, too, including video recordings of interviews between X’s younger sister, Y, and police and Mr V and police. There was also evidence from Dr O’s notes of her sessions with all three children, as well as Mr EE’s reports. There was the evidence of the father and his current wife as to things allegedly said to them. After having considered all of that, I state categorically that I do not accept the claims that X was abused by her mother and stepfather. I simply do not believe X’s claims.

1. On point, having interviewed both parents and read much of the evidentiary material in this case, Dr M, Psychiatrist, carefully offered up the following opinion:

   With respect to X’s behaviour and her attitude to her mother, I would suggest the following hypotheses for consideration in no particular order.

   (i)X finds the situation in her mother’s household and mother’s and stepfather’s behaviour towards her intolerable to the extent she cannot bear to live there. This seems unlikely given that the two younger children on the data available seem quite happy to be with the mother and stepfather.

   (ii)The father has consciously and deliberately sought to “alienate” the child X from her mother by sharing his negative views of her with the child, encouraging the child to make allegations about the mother and stepfather, and moreover encouraging her to run away from her mother’s home and placing her in the care of his associates or relatives.

   The child’s totally negative view of her mother is indicative that this may be happening but on the other hand I note that initially when the child expressed a preference to stay with the father she expressed love for the mother and was happy to see her. Moreover if “alienation” was going on, I would have expected that the child’s relationship with the mother would improve at least to some extent in the eight weeks she has spent with her mother and while apparently away from the influence of the father.

   If “alienation” is an issue, then a question that arises is why is only one child the subject (sic).

   (iii)The child X has made a decision that she wants to live with her father as against her mother despite loving her mother and while not unwilling to spend visitation time with her. When her expressed wishes have been denied she has become more stringent and wilful with her expression of her preference and moreover has lied about her mother and stepfathers behaviour so as to achieve her ends. Against this is that when she was in fact living with the father and seeing the mother for visitation over a period of 18 months, it seems there was nevertheless reluctance to see the mother, such as on a holiday to Country AA.

   There is some indication in the documentation, albeit meagre, that X’s attachment to the mother may not have been as secure as with her siblings.

   (iv)It may be that elements of all of the above are playing a part.

2. After hearing evidence in this matter over many days and dealing with a number of other interim applications on other days, and having considered all the evidence and submissions of the parties, I am quite satisfied that the explanation for X’s behaviour lies in a combination of the hypotheses Dr M set out in (ii) and (iii) in the preceding paragraph. I am satisfied that both the father and his current wife, Ms Yabon, have consciously and deliberately sought to “alienate” X from her mother by their words and their actions over the last four years, as well as unconsciously and less deliberately doing so at the same time, but to the same effect.  I am also satisfied that X has become more stringent and wilful in the expression of her preference to live with her father, encouraged and fortified by her father’s complete support for her position, and that she has also wilfully lied to her father, to police and to others about her mother’s behaviour and her stepfather’s behaviour so as to achieve her ends. When she has done that, her father willingly and unquestionably accepts all that she says as truthful.

3. I am satisfied that the whole process of conscious and deliberate influencing of X against her mother and in favour of living with the father started at least as far back as October and November of 2017 when the father first began withholding X on the weekends that she was staying with him pursuant to Orders that existed at that time. Though the father then consented to final parenting and property orders being made in December 2017, I am satisfied that he never really had a firm commitment to the parenting Orders that he agreed to, nor an intention to even honour them.

4. His own evidence given to the Court provides a great deal of support to that finding. He told the Court that he felt he was placed under “duress” by both his solicitor and the Registrar of the Court who convened the conciliation conference in late November 2017 and that he did not really want to agree to the terms of the settlement, but felt he had no choice. I do not accept that he was placed under such pressure or duress that his own will was actually suborned. Mr Yabon is most definitely not a man who would be easily suborned. He did give evidence that he had been told that the mother would be seeking orders to secure more of his military pension in the property division if the matter went to trial. That clearly troubled him. I am satisfied that he settled the matters that day so as to particularly avoid the risk of that prospect in the property division, and not being at all committed to leaving the three children living in the mother’s care and knowing that was a circumstance that he could potentially reverse in future, in any event.

5. Indeed, within several weeks of asking the Federal Circuit Court to make Orders that the three children live with their mother and spend alternate weekends with him, the father failed to return all three children to their mother at the start of February 2018. He had even set about enrolling them in a new school, near to where he lived. After the mother obtained a fresh Order from the Court that the father return them to her care, with his wife, two of her daughters and their baby son in his car, he took the three children to the mother’s home pursuant to the Order to return them and then permitted an extraordinary scene to take place in front of the mother’s home. After the two younger children got out of his car and went inside the mother’s house, he facilitated a circumstance where X did not get out of the car for a long while, before she ultimately got out and went and spoke with her heavily pregnant mother in the shade in the front yard of the mother’s home. All this time, the father did not drive away, but waited expectantly for 11 year old X to return to the car to drive away with him. When she did not, he got out and went over to her and the mother and then proceeded to put unfair pressure on X to get her to leave with him rather than stay with the mother. He even got noticeably cranky with her when she did not answer a question he asked her about whether she felt safe in her mother’s care in the affirmative rather than the negative as he expected her to. Ultimately, he put pressure on her to leave with him, which she did, only to be returned again a little while later. The circumstances of the return are not clear to me. It all must have been extremely troublesome for eleven year old X.

6. During cross-examination of the father, counsel for the mother suggested to the father that he had said certain inappropriate things to X and to the mother during that time outside the mother’s home. He forcefully denied that. However, sadly, both the father’s current wife and the mother had recorded the events of this handover. Ms Yabon recorded much of it on her phone with video image as well as sound. The mother recorded much of it with her phone, but with only audio recording. Recordings made by both women on the day were adduced into evidence and played in court. I have listened to them over again in my chambers and my Associate transcribed the mother’s recording for me to read in chambers.  The mother’s audio recording of the events proved that the father’s denials of the propositions put to him by counsel for the mother as to the inappropriateness of things he had said to X and to the mother in X’s presence were false. Part of the conversation towards the end of the liaison went like this:

   Father:Well, the priority is that they’re happy and safe, and their wellbeing.

   Mother:       They’re happy and safe here, ok.

   Father:         X, do you feel safe and happy here with mum?

   X:                 Yeah.

   Father:You do? Ok, well that’s not what you tell me. You know. So maybe get your bag and stay with mum. That’s fine. (said in an angry tone)

   Mother:       Yeah, for just two days and then she…

   Father:         That’s fine. I’ll get your bag. (short and sharp)

   Mother:       … then she come back and sees you.

   Father:         I’ll get your bag. (short and sharp)

   X:                 No

   Mother:X, it’s two night and then you go back with Dad, honey. Can you give me at least two nights, honey, please?

   Father:Here you go. Alright. You’re happy and safe with mum! Give us a cuddle, baby. I’ve got to get going darling. BB has been in the car for like three or four hours today, and unfortunately I’ve got the other two kids in the car. I’ve got to get going. I need to know what you want to do. If you want to come with Dad, I’m not going to force you to stay here X, ok. School? We’ll sort that out. I’m not worried about school. My priority is their safety and her feeling ok and well. That’s it. I want her to be happy, Ms Tabano. That’s it.

   Mother:       We both want our child to be safe and happy.

   Father:         Yeah, that’s right.

   Mother:       That’s what every parent wants for their child

   Father:Well every parent should want that. Not every parent wants that. Not every parent wants that. But, yeah, as a parent you should be like that.

   Mother:       That’s the priority.

   Father:Yeah, Well what are you doing darling? Because I need to know.

   X:                 I want to go with Dad.

   Father:Alright, well jump up, give mum a cuddle because we’ve got to get going. Give mum a cuddle darl.

   Mother:       X, two days.

   Father:Baby, jump up and given mum a cuddle so we can get going. Come on. Mum can even ring you tonight, it’s Wednesday night.

7. As I have already observed, the father drove away from the mother’s place with X after that, but later returned her again. But it was then only a couple of weeks until the FCC Judge made the Order that I have already referred to that placed all three children in the father’s care until further order, whilst the mother was in hospital giving birth to her baby daughter. A few months later, the mother secured another interim order from a different Judge of the FCC that provided for the children to spend three weekends in every four weekends with the mother.

8. The mother lived with Mr V and their baby in a home about an hour’s drive away from where the father and the three children were living with Ms Yabon, two of her three daughters and their baby boy.  In October 2018, the mother asked the father to refrain from enrolling the children in any extra-curricular activities that impacted upon the time the children spent in her care. Despite that, in November 2018 interim orders made by an FCC Judge included the following:

   6.That the parties will make every effort to get the children to their extra-curricular activities, and in the event that the Mother/Father is unable to get the children to their activities that the Mother/Father be given the opportunity to facilitate such arrangements.

9. Then began more difficulties for the mother. Keeping horses has been something the father has done for years. The evidence supports a finding that he kept horses that the children, particularly X, became quite fond of. X had, I accept, always enjoyed riding horses. Without any consultation with the mother, the father put X into a local Pony Club near where he and the children were living and she was to ride a horse or pony that he kept. The father had the horse float and was, therefore, responsible for transporting the horse to and from the location where the Pony Club activity that X was entered in on weekends was to take place. Sometimes those activities were in different locations around south-east Queensland. My understanding of the evidence is that as the owner of the horse that X was riding, the father was required by rules to be present whilst ever the horse was present at the Pony Club event.

10. Although X was, along with her two younger siblings, by order, required to spend three out of every four weekends in her mother’s care, the father caused her to be enrolled or registered in Pony Club events on many of these weekends. Then, relying on the Order that I have set out in paragraph 56 above, he expected the mother to get X to those Pony Club activities which would usually last for hours at a time – sometimes up to six hours. That created logistical difficulties for the mother, considering the distances involved and the fact that she had the other two children in her care. The father nevertheless expected her to comply, criticised her if she did not want to stay around for the entirety of the Pony Club event, even though he was there.  I am also satisfied that he told X that the Orders required her mother to take her and made much of the mother’s unhappiness at having to do so, suggesting it indicated she did not care for her daughter. X, I accept, told her mother that she had to take her to Pony Club and demanded that of her. She could only have been informed of that by her father.  If the mother could not assure the father and X that she would be able to take X to Pony Club events on these weekends that she was to be in the mother’s care pursuant to the Orders, then the father would rely on the Order to withhold X on those weekends. All this, I am satisfied, exacerbated difficulties in the relationship between X and the mother and, I have no doubt, is exactly what the father intended to happen.

11. On 1 November 2018, an FCC Judge also ordered the following:

    17.That the children will attend upon Dr O for the purposes of counselling with both parents to be engaged with Dr O at her direction and the parents to ensure that the children attend upon Dr O commencing at 2.00 pm on 27 December 2018 and thereafter as directed.

12. That counselling began after that Order and was progressing as expected for several months. However, by July 2019, the father had completely fallen out with Dr O to the extent of formally making a written complaint against her to the Office of the Health Ombudsman in Brisbane and withdrawing his consent for the children to attend more sessions with her, despite the fact that they were ordered by the Court to attend. The Health Ombudsman referred the complaint on to the Australian Health Practitioner Regulation Agency and, at the time of trial (nine months later), the father told the Court that the Agency had not finished its investigation, though Dr O told the Court that she had not heard from the Agency at all in all that time.

13. The father’s complaint included claims of “bias” on the part of Dr O against him and in favour of the mother, assertions that Dr O would spend too much time conversing with the mother, and complaint, said to be based on information given him by X, that Dr O ignored things X raised with her about her mother and her partner and did not listen to her. Importantly though, the “falling out” really came about in June 2019 when the father asserted that Dr O had acted unprofessionally by giving him advice in front of X in the reception area of her practice that was later contradicted by the ICL.  This lead to the father alleging that Dr O had unprofessionally contradicted herself in respect of the advice she had given to the father and to the ICL.

14. On 10 April 2019, at one of the contested interim hearings between the parties, a Judge of the FCC ordered that the three children spend the first half of the June/July and September school holidays with the mother and the second half with the father. On 15 May 2019, the father wrote to the ICL and the mother’s solicitors telling them that X had “expressed concerns for her emotional and psychological wellbeing”. The father wanted X to speak to “someone” so that she could “articulate her concerns, views and wishes.” He asked for the ICL or the Family Report writer to see X as a matter of priority but did not mention Dr O. He said that X had requested a “break” from spending time with the mother. The ICL wrote back and advised that it was far more appropriate that X immediately attend upon Dr O for her to assess the matter after speaking with X.

15. The father withheld and did not send X for the scheduled weekend with her mother on 24 May 2019. An appointment for X to see Dr O was put in place for 29 May 2019. The mother was to collect her from school and to take her. That was the arrangement that had been put in place by the ICL in conjunction with Dr O. There were some issues that arose surrounding that, said to be to do with whether X wanted to be taken there by her mother or not. The father ended up picking X up from the school and taking her. He claimed innocence in that – asserting he was just doing what X wanted.  That was said by the ICL to be in “direct non-compliance with the Independent Children’s Lawyer (sic) clear instructions”.

16. According to the father, when he arrived at Dr O’s rooms, her receptionist, Mr FF, verbally attacked and abused the father for bringing X there and being there himself. The father complained to Dr O about this. After X’s interview with Dr O that day, Dr O communicated with the ICL about the results of the counselling. The ICL then wrote to the parents and informed them in clear and unmistakeably precise terms that “the parties are to strictly adhere to the current orders made in the Federal Circuit Court as to time that X is to spend with each of the parties”. Clearly, that arose from the circumstances of that day and the recent withholding of X. But importantly, it made clear the ICL’s position that X was to spend all of the time with her mother that was ordered, and that included the week during the looming school holidays.

17. The mother had arranged a trip to Country AA for her and the three children during her scheduled week in the June/July holidays, to travel there with Mr V who was also going to spend some time with his own daughter who lives there. Friday, 28 June 2019, was to be the last day of school term in Queensland.

18. Apparently still concerned about X going to Country AA with the mother for the first week of the holidays, the father made another urgent appointment for X to see Dr O. I am satisfied that he did not want X to travel to Country AA and was asserting that she did not want to go. This apparently necessitated the “urgent” appointment. The father took X to see Dr O on 25 June. No doubt, he expected X to tell Dr O that she did not want to go to Country AA.

19. The father asserted that because he was troubled by the way he said he had been treated by Mr FF when he was previously in Dr O’s reception area, he secretly recorded events in the reception area as Dr O accompanied X out to return her to his care in the reception area. However, the evidence demonstrates that the father had been recording changeovers and similar events well before that day. He habitually recorded events so as to have records afterwards. In my assessment, that was about producing evidence if he considered something that was recorded might assist his cause. That recording was produced by the father and was adduced into evidence at the trial. It was played during the trial and I have listened to it multiple times over and over again in my chambers. The transcript of the recording (as transcribed by my Administrative Associate and checked and corrected as accurate by me) follows:

    Mr Yabon:Hey Darlin’ (to X as she walks out). Alright pack them away (to another child)

    Dr O:All done, um so I will try and see her in the second week of holidays. So she’s with you all holidays?

    Mr Yabon:   Right…

    Dr O:           Yep?

    Mr Yabon:   Yeah... well

    Dr O:           First week, mum’s in Country AA?

    Mr Yabon:   Yeah, mum’s doing a Country AA trip the first week, so...

    Dr O:Yep. (Then talking to a member of staff – then back to the father) Mr FF’s just pointed out that I have, that I’ve got a booking for the Tuesday…

    Mr Yabon:   The second one

    Dr O:           …that we are there with you...

    Mr Yabon:   Yeah, yeah I think so, yeah that’s right

    Dr O:           Leave that, is that ok?

    Mr Yabon:   Yeah, yeah, of course

    Dr O:Yeah, yeah, cool. Then I will see you then.  Um, we are looking at maybe in that second week, um, potentially catching up with mum for like a lunch somewhere probably for something like a sushi train or something….

    Mr Yabon:Well, I’ve actually suggested that to X already I’ve said that

    Dr O:           Excellent, ok

    Mr Yabon:   I said,… long story short…

    Dr O:           Yeah, yeah, good

    Mr Yabon:You can’t not have a relationship with mum. Ok. Alright there’s things that has to be worked on. That’s just what I… that’s my input

    Dr O:           Yeah no, no, no, that’s what I said so…

    Mr Yabon:Maybe I said we put it to mum maybe even just a Saturday we drop you at mum’s and go to lunch and go home with mum, whatever, but…

    Dr O:           Yeah, no, that’s great

    Mr Yabon:   I don’t know if that’s what, you know…

    Dr O:Well I was thinking something smaller I was thinking like just a

    Mr Yabon:   That’s fine I wasn’t, I’m open to…

    Dr O:           Yeah like 2 to 4 hours

    Mr Yabon:   What you

    Dr O:Yeah, so 2 to 4 hours max in that second week by herself, I don’t want her to be [indecipherable]

    Mr Yabon:   Yeah

    Dr O:           In a private place

    Mr Yabon:   Ok

    Dr O:           Yep, so just the two of them

    Mr Yabon:   Yeah, yeah

    Dr O:Yep.  She was happy with that and then if she can do that preferably then, on the Monday, propose that to her so I can see how it goes when I see her on the Tuesday

    Mr Yabon:   Right, ok, yeah so

    Dr O:Do you reckon that you can shoot that out and say you had a chat to me and that I think that, that would be…

    Mr Yabon:   Yeah

    Dr O:I don’t know when she will be back. It’ll have to be before then because when do you have the children?

    Mr Yabon:   Well they’re returning from Country AA on the 6th

    Dr O:           Which is?

    Mr Yabon:   Which is the changeover

    Dr O:           When is that?

    Mr Yabon:   6th of July

    Dr O:           That’s a Saturday?

    Mr Yabon:   I’m not sure, yeah, that might be a Saturday, yeah.

    Dr O:Yeah ok. Do you think we could, you could maybe have a.., and then they’ll be with you? So then it would just be X with mum

    Mr Yabon:   Well, yeah, that’s right

    Dr O:So they can go for sushi or something for lunch, two hours on the Monday

    Mr Yabon:Yeah and that’s what I’m saying, you don’t. That’s right.   Yep

    Dr O:           Yep ok, well dad will [indecipherable]

    Mr Yabon:   Well, we will try to organise that with mum and….

    Dr O:Yeah, that’s perfect can you just cc me in that and just say you’ve had a had a chat and I think that it’s a good idea

    Mr Yabon:   Yep, yep, no worries

    Dr O:           Great ok, and have a good holiday

    Mr Yabon:   I lost my wallet

    …

1. Following that conversation with Dr O, the father firmed up in his determination to hold onto X and not let her go on the trip to Country AA with the mother and her siblings. He then presented the issue as if this is what Dr O had “directed” in that conversation – advice or “direction” (as he described it) he was apparently happy to “accept”, but then later complained about her giving in the child’s presence in the reception area. However, within a very short space of time that same day or the day after, the ICL informed the father, after having spoken with Dr O, that the father was mistaken and that it was not Dr O’s position that X should not go to Country AA with her mother and siblings. The ICL informed the father that Dr O had conducted the session with X on 26 June under a misapprehension that the parents had reached an agreement that X was not going to go to Country AA and would be staying in Australia with the father. Dr O did not consider that X should be withheld from her mother’s care, but rather, being under the misapprehension that the parents had agreed that X would not travel to Country AA, recommended that X alone spend a few hours with her mother soon after her mother got back from Country AA whilst the younger two siblings were in their father’s care in the second week of the holidays. The ICL told the parents that it was his position that the Orders be complied with and that X travel to Country AA with her mother.

2. The father then revealed he had secretly recorded the conversation and asserted that the recording would reveal Dr O’s contradictory position. Frankly, it does not, but the father does not accept that.  The transcript of the recording the father had prepared with the assistance of his wife, is wrong in some material respects. When listened to with an understanding of the position that Dr O misunderstood that there was an agreement between the parents that X was not going to be travelling to Country AA, Dr O’s position is completely understandable. What the father says he heard reflects either a totally mistaken view by him of what he understood he heard or a deliberately misrepresented position to suit his own purposes. It seems, given his evidence that his current wife also listened to it and transcribed it for him, that she, too, heard it and interpreted it incorrectly in material respects. I am satisfied that is how they wanted to present it. I consider that it is most likely a deliberate misrepresentation by the two of them.

3. Quite clearly, at the start of the conversation, Dr O is not directing the father that X must stay with him for the two weeks of the holidays and not travel to Country AA. Dr O actually asks him the question as to whether X is staying with him for the two weeks, which he confirms in a circuitous way by saying that she is because her mother is going to Country AA for the first week. In his trial affidavit, the father has repeated his assertion that Dr O “directed” X to remain in his care for “all holidays” and for X to spend “two to four hours max with mum in a safe place”. The father presented this as if Dr O had directed him that X was to have no more than a couple of hours at a time with her mother and that it had to be in a “safe” place. The father made out that his position was being totally supported by Dr O expressing the view that X needed to be protected from her mother. That position was just completely false and totally misrepresents Dr O’s real position.

4. Nevertheless, what followed from that was the father entrenching himself in the righteous view that he had expert support for withholding X again and not sending her on the holiday to Country AA with her mother and siblings and then just hanging onto her completely without letting her spend more time with her mother. What also followed was this terribly unfortunate attack on Dr O’s professionalism, ethics and integrity based on a secretly recorded conversation that he completely misheard and wilfully continued to mishear, clearly, each time he listened to it. Even when I pointed out to him at the trial that he was clearly mistaken in his understanding of that conversation, he would not accept that and made it absolutely clear that he considered I was the one who was wrong. Any independent person listening objectively to that recording will, in my judgement, quickly realise the father is mistaken about that. That conversation that was recorded that day was a critical juncture in this high conflict parenting dispute. The father’s position is quite emblematic of his personality overall. He forms a view about something, whether it is objectively right or wrong, and steadfastly maintains that position, righteously defending it against any question and wilfully rejecting the views of any person who takes a contrary position.

5. The conflict between the parents took a significant turn for the worse from then on. The father also turned his attention to criticising the ICL. Whilst the mother was away in Country AA with the two younger children, the father filed contravention proceedings against her, asserting multiple contraventions on her part. Shortly after she returned home to Australia, he filed an Application in a Case in which he sought the discharge of the ICL from the proceedings, the appointment of a new ICL and that the children’s time with their mother on Wednesday nights cease. Two weeks later, before either of those applications had been heard, the father filed another in which he sought orders that restricted the children’s time with the mother to supervised time only for eight weeks at a commercial contact centre and then day-time contact only for eight weeks. He knew that would take the matter up to the final trial dates that had been set in the FCC for November 2019. He also sought orders that the mother’s partner, Mr V, have no un-supervised time with the children.

6. It is also right at this time that the allegations of inappropriate sexual conduct on the part of Mr V first began to emerge, said to be emanating from X. As I have already observed, it was on the hearing of the matter again before the FCC Judge later in the month of July, after the father had been withholding the children from their mother (X since May/June and the other two since they returned from Country AA), that the Judge took the very significant step of making interim Orders to move the three children back to the care of the mother and to suspend all of their time with the father. Her Honour did not discharge the ICL and appoint a new ICL. Her Honour did not discharge Dr O, but rather made an Order that the children “forthwith recommence therapeutic counselling” with Dr O as directed by her. Her Honour also restrained the father from attending upon or contacting Dr O’s offices.

7. Dr O had asked that the father no longer attend her offices, after she learned that he had secretly recorded their conversation despite, she said, the father having signed her consent forms that clearly prohibit recordings and “with clear signage” in her building, she said, that prohibits any recordings being made. The father argued that those prohibitions did not prohibit him from recording his conversation with Dr O, but I accept Dr O’s evidence that the message was clear. The fact that the father was recording secretly, without asking for Dr O’s permission, tells me in any event that he knew it would probably not be permitted if he asked. Dr O said in her final report provided to the Court that the father only lodged his complaint against her with the Health Ombudsman after she asked him not to attend anymore. The record of his complaint first made on 22 July 2019 appears to reflect that is correct.

8. The father would, no doubt, point to the transcript of the conversation and highlight the passage where he says to Dr O that he had told X that she “can’t not have a relationship with mum” as evidence that he was encouraging of the relationship with her mother. I do not accept that.  He said that to Dr O knowing that he was secretly recording the conversation and that if the recording was ever produced in evidence, whatever he said would be scrutinised. I do not accept that the father has appropriately promoted the relationship between X and her mother or encouraged it as he wanted Dr O to accept on that day. They were just words.

9. Dr O’s final report that was adduced into evidence on 30 March 2020 was of considerable assistance. Dr O said of X, when writing of her initial appointments with the children:

   ... it was evident that X was struggling the most, and was experiencing periods of anxiety and displayed traits of Attentional Deficit Hyperactivity Disorder (ADHD). X was impulsive and suspectable (sic – read “susceptible”) to suggestions, and struggled at times to understand the consequences of her actions.

   X had initially reported that she wished to live with her father and see her mother every second weekend. She explained initially that this was due to wanting access to attend her sports club which was difficult for her to do with the time arrangement that was in place and the practical distance to travel for her mother. X reported that she wanted to live with her father, however was clear that she wished to continue time with her mother, siblings and stepfather. However, as the care arrangements did not alter to X’s wishes, she became increasingly more frustrated. At this time, X commenced reporting more serious issues at her mother’s house and with her stepfather, including alcohol misuse, verbal abuse, and physically inappropriate behaviour. These were not issues that X initially reported and the other siblings did not report witnessing or experiencing the presence of the issues that X raised.

10. Then Dr O wrote of X after the late June 2019 crisis and the changeover to living with the mother that was ordered by the FCC in late July:

    Since July 2019, I have seen a significant decline in X’s behaviour, presentation and attitude. X’s psychological decline was more pronounced immediately after her return to her mother’s care after each occasion of her “running away” from her mother’s home over the previous six months. X presented as more “hyped” in her behaviour, more impulsive, and at times would “zone out”. X was often confused in sessions regarding her beliefs and behaviours and would question my child focused approach and appeared distrusting of me. X would make reference to court decisions and had knowledge of adult matters. Each time I saw X over the last six months up until our last session in February 2020, she had assimilated to her father’s belief set. X expressed that the court system was wrong and was punishing her father for no reason, and that her mother had significant problems and that her mother’s husband was “abusive”. X also reported that people outside her father’s network could not be trusted. When I asked X for examples and specifics regarding her beliefs, she was unable to provide clear evidence and would often be inconsistent with her reports and her feelings. X would often cry in session and was clearly confused regarding the situation. In addition to this X’s experienced significant disturbance to her schooling and has missed a significant time from school this year. There has also been a decline in her relationship with her mother and her stepfather, and there has been a significant disruption to her relationship with both her siblings.

    During the more recent sessions, X displayed an idealistic view of her father, and commenced to demonise her mother and her mother’s partner.  This was inconsistent with X’s beliefs at the initial commencement of our treatment. [The mother] also reported concerning behaviours that X was exhibiting when she returned to her care following her “running away”, which included aggressive acting out, destruction of property,  purposefully hurting and teasing her youngest sister, and name calling of her siblings.

11. Of the other two children, Dr O wrote:

    [The other two children] are confused and angry regarding X’s behaviour. When speaking of X’s behaviour since July 2019, both children reported that she has changed and turned into a “devil” and have also reported on numerous occasions that X has been “brain washed” against the mother and her stepfather. They consistently have reported that X previously enjoyed a close relationship with their mother and stepfather.

12. The father would have the Court accept that it is these two children that have actually been “brain washed” by their mother. I do not accept that. Their positions have not really changed at all in the course of the entire proceedings.

13. Dr O concludes by saying:

    I have concerns regarding the intensity of [the father’s] entrenched negative views about [the mother] and her husband. X has assimilated to his negative belief set regarding [the mother] over the course of my treatment. The younger siblings do not support witnessing or experiencing the negative behaviours and actions alleged of [the mother] and her husband. … X’s psychological profile is suspectable (sic – read “susceptible”) to assimilating to view points. X is impulsive and emotionally dysregulated. I have concerns that [the father] has shown a pattern of behaviour during my involvement of attempting to undermine my treatment, and undermine my professional integrity once boundaries where (sic) placed on his behaviour. I have serious concerns that [the father] has an entrenched enduring negative belief set about [the mother] that is driving his behaviour to result in non-child focused decisions which place the children at risk.

    It is apparent that the level of toxicity between the parents will render any kind of effective co-parenting relationship impossible. These children have been seriously impacted by the conflict that has ensured since their parent’s (sic) separation. The children need stability and serious psychological assistance. X needs a referral to a psychiatrist, psychometric testing, and ongoing psychological support. The younger two siblings need ongoing psychological assistance moving forward.

1. After the father had withdrawn his instructions from the solicitor and barrister who had acted for him during the first part of the trial, the father personally cross-examined Dr O. Despite his obvious lack of skill and experience, he did his very best to discredit her professionalism and her expert opinions. As I have said, he maintained his stance on the substance of the conversation that he had recorded that allegedly played such a critical part in his attitudinal change to Dr O, despite her clarification about that and my clearly openly-stated assessment of that. Showing a degree of utter frustration, he even tried to delve into the deeply personal nature of her relationship with her receptionist, Mr FF, who he was so critical of. In doing so, he even referred to Facebook searches he said he had done. Ultimately, after objection from the ICL as to relevance, I would not allow him to go down that path, satisfied that the nature of Dr O’s relationship with her receptionist was actually irrelevant. With respect to the father, his cross-examination of Dr O had no effect on the impact of her opinion evidence on me. All that she had said in her reports and in her oral evidence resonated with me, having regard to all of the other evidence I had before me in the matter. I accept the correctness of her opinions completely.   

2. Ultimately, despite my serious reservations about X’s long-term emotional well-being if she goes to live with her father and Ms Yabon and does not have contact with her mother, I have determined that it is in the best interests of X and her two younger siblings that she does go to live with her father. That is where X wants to live, for better or for worse, and she is now almost 14 years old. There, it is expected that she will be sent to school on a daily basis, though I have concerns about the father’s commitment to his children’s regular and consistent school attendance. She will have a younger brother and two stepsisters (two of the daughters of Ms Yabon who I understand still live with their mother and Mr Yabon) living there with her. She will be able to focus on her horse-riding and her schooling. It is, I consider, important to get her out of the situation that has endured since February where it is said that she has been living with Ms Yabon’s sister but not going to school. Though the father maintains that he has not had contact with X in all that time, I strongly suspect, though stop short of making a finding without direct evidence to support it, that X has had contact with him or, if not with him, more likely indirectly with him through Ms Yabon. Whether there has been contact or not, I am satisfied that the father and Ms Yabon have directed and supported X’s living arrangements in that time. If that is as good as it will otherwise get for X, it is better that she go and live with her father and stepmother openly now.

3. The mother did not waiver from her call for the Court to order that X go back to live with her. She effectively was pleading for the Court’s support and assistance in that respect. For the trial though, she led no evidence of the proposals or plans she had to support X’s reintegration into the family that could give me any confidence that another attempt to achieve that would work, when six or seven attempts already had failed dismally, with X creating chaos in the household and “running away” from home over and over again, even whilst she had the assistance of Dr O. When the mother filed an Application in a Case after the trial had concluded and whilst I was reserved and the evidence in support of that was admitted into evidence for the purposes of the trial, a valiant effort was made to try to fill the gap in that evidence that I had made clear existed at the trial. The mother said she was engaging with a number of particular experts, including a child psychiatrist specialised in trauma and an organisation called GG Service from whom she was getting assistance. She proposed having X live somewhere else with a long-term friend until she could be successfully reintegrated.

4. With all due respect to the mother, I am just not satisfied that even with all of this professional help the mother is capable of successfully overcoming X’s resistance to her and the apparent determination to live with her father. Though I acknowledge the mother’s love for X, I do not think the mother has the emotional capacity to be able to restore the relationship and reintegrate her into the family. I am just not persuaded that it is worth trying it again. I am particularly concerned that X has become ‘weaponised’ by the father in the process of achieving his desired end, which is to have all three children living with him and fracturing all of their relationships with their mother. I will not be ordering her to return to live with her mother. What time and contact she has with her mother as she now grows through the few short years to adulthood and independence will be a matter for her.

5. In my judgment, it is clearly in the best interests of the two younger children that they stay living with their mother. Apart from the period between February 2018 and July 2019, they have lived in the mother’s principal care since the parents separated. For about one year of that time between February 2018 and July 2019, they were spending all of three weekends in every four with the mother. Since July 2019, they have not spent any time or had any communication with the father. Y, who is 12 years old, has expressed the view for some time that she would prefer to live with her mother. Z, who is now 10 years old, has not expressed a clear preference to live with one parent or the other, but has taken what he has said was the “fair” approach and said he would live with each on an equal time basis. I will not be making such an order in this case. Both Y and Z will be living with their mother, Mr V and their little sister.  They will continue to go to the same schools that they have been attending since living back with their mother from July last year. They need predictability and stability now, not another change of home and principal carer and school.

1. At the same time, the father wrote to the ICL trying to engage him and elicit his support. He wrote:

   Please accept my sincere apologies for the urgency of requesting your advices or instructions. I’m extremely concerned for the well being of the children given the response received from [the mother’s solicitor] demanding [the mother] will be collecting the children from school tomorrow despite the children’s resistance to spend the Wednesday overnight with their mother.

   I’m gravely concerned about the unpredictable behaviour from [the mother] that may potentially arise at the children’s school tomorrow afternoon. The children do not need to be subjected to [the mother’s] emotional tirade, and this unfortunate circumstance is due to [the mother’s] past history resulting in the children having no faith that [the mother] will ensure that the children are taken to school on Thursday morning to be collected to attend our Wedding that day. The children are adamant and refusing to spend this time with [the mother] in fear that they will not get to be apart (sic) of our Wedding Day.

2. The ICL wrote to both parents and advised them of the expectation that they each comply with the existing orders. He also appropriately wrote:

   Furthermore, the Independent Children’s Lawyer is extremely concerned to note that the alleged views of the children in relation to parenting matters (that should be involving the parties only) are being quoted by both parties in an attempt to advance their arguments. The Independent Children’s Lawyer is extremely concerned that the children are being continually placed as the centre pawns in the high level of conflict that exists between the parties, without any real consideration as to the impact of how involving the children will negatively impact and affect the children in the short and long term.

3. The father wrote back and said:

   The children are being forced against their will to spend the court ordered time with [the mother] this evening. This had had a detrimental effect on all of the children.

   The children against their wishes will be available for collection from after school this afternoon.

4. The mother gave evidence that when she collected the three children from school that Wednesday afternoon, all three of them were excited to see her and Mr V and to be attending baby DD’s first birthday party that afternoon. She said not one of them mentioned the issue of the father’s wedding the next day. The mother said that despite the father having been requested not to park near her, he and Ms Yabon parked right in front of her car and glared at her while she waited for the children. I accept the mother’s evidence about this.

5. To his credit, the father did not ultimately actually prevent the children from going to spend that scheduled Wednesday night with the mother, but there was a lot of unnecessary rancour expressed by him in that period immediately leading up to his wedding, where looking after his interests appeared to take priority over looking after the children’s interests and respecting the mother’s desire for the family to celebrate her daughter’s first birthday. In the end, there was no dispute that the children were returned by the mother to the father’s care the next morning and attended the father’s wedding.

6. There were other times, as I have already observed, when the father simply chose not to comply with the extant Court orders because he determined he would not. Some of those were occasions when he was to return the children to the mother after they had spent time with him or when he was to deliver them to the mother when they were to spend time with her.

7. Here, I acknowledge that Mr EE recommended that whilst the two younger children should continue to live with their mother they should nevertheless still spend time with the father.  I asked Mr EE when he was being questioned about this recommendation by counsel for the mother during the trial whether he accepted the proposition that the father had in fact not complied with orders in the past when he (the father) had considered he should not. Mr EE’s simple and frank response was “yes, your Honour”. Accepting that, Mr EE nevertheless went on to express the view that effectively the father should be given a further chance to prove that he will comply with the Court’s orders in future. He expressed the view that if the father withholds the children again when they are to be returned to their mother, then the time they spend with him should be stopped. When pressed about the basis for this opinion by counsel for the mother, Mr EE simply advanced the proposition the children should be given the chance to see their father because of their ages and their wishes.  He did then add a final caveat, saying “unless the court deems it is just not possible”.   

8. Dr O’s evidence also supported the proposition that the two younger children want to see their father. She reported in her final report that both Y and Z said they want to see their father. Dr O went on to say though, that they both still reported that they “are anxious [their father] may retain them and they would not be able to return to their mother’s care”. Even the children, it seems, have insight into the reality of that prospect.

9. Counsel for the ICL forcefully made the submission, fully cognisant of what the experts had said, that if the Court determined to place X with the father that no order for contact with the younger two children should be made in his favour and nor should an order be made that permits X to spend any time with her mother or her younger brother and sister. He submitted that to do so would “further what is a never ending process where the children are damaged”.

10. I am satisfied that there is merit in that submission and, taking up the words Mr EE expressed in his final caveat, I am satisfied that it is just not possible to make orders providing for the two younger children to spend time with the father without their relationship with their mother being placed at an unacceptable risk of destruction. Counsel for the ICL also submitted that the Court could not find, on any evidence, that the father can truly facilitate a relationship between the children and their mother. I accept that submission. I am satisfied that if orders are made for the two younger children to spend any time with the father that the father, his wife and X will put significant emotional pressure on those two children with a view to persuade them to stay and live in the father’s household and not to return to the mother’s household. It will not take much at all for the father to simply decide to withhold them from the mother again. The father has demonstrated an absolute willingness to simply defy orders if he considers that to be justified. I have little doubt that will happen again and that the two children will just continue to be “pawns” in the process. Their best interests will be met by being protected from that.

11. I also accept the submission of the ICL that the mother’s personality is such that she could not stand up to and resist the father where necessary and that facilitating contact between them will place her at risk of being overborn by him when it comes to decisions about the children, particularly once the matter is no longer within the Court system.

12. Furthermore, as counsel for the ICL submitted, the “weaponisation” of X by the father, having totally aligned her to his cause, means that any contact she has with her two younger siblings, even if that is separate and distinct from contact with their father, would expose the two younger children to an unacceptable risk of emotional abuse and potential to be dragged into that same alignment. I will not be making any orders that provide for the three children to spend time with each other or to communicate with each other by phone or internet video platform. It will also now be clear that a terrible consequence of this outcome is that X will probably not have a relationship with her younger sister, DD, unless she seeks that out and pursues it herself through some sort of rapprochement with her mother and that Y and Z will, similarly, probably not have a relationship with their younger brother, BB, until they seek that out for themselves after they become independent adults. I have considered those likely outcomes and am, nevertheless, still satisfied, sadly, that the orders I will make are the proper orders to make.  

13. I have also given consideration to the question of whether professionally supervised time between the father and the two younger children should be ordered. Supervised time is generally not considered in the best interests of children if it is long-term and without prospect of changing from supervised to unsupervised at some point in time. There are, of course, exceptions to every general position in this jurisdiction. However, as I consider the matter, I could only foresee any time that was supervised being in place long-term. I do not see potential for the father’s attitude and behaviour vis-à-vis the mother and her part in the children’s lives to change. It is deeply entrenched.

14. There was a significant amount of evidence in the case about the mental health of both parents.  I have not discussed much of the evidence about the history of the parents’ lives or their lives together. Relevantly, I observe here that the father joined the Australian Defence Force at the age of 16. After some tours of duty he went absent without leave and was ultimately discharged, diagnosed with Post-Traumatic Stress Disorder (PTSD) and some other physical issues for which he was granted a Total and Permanently Disabled service pension that I understand he receives for life. Thereafter, he went through a period of being an active member of a motorcycle club, referred to by authorities as an ‘Outlaw Motorcycle Gang’. It seems that his son, Z, is even named after that club. Then, there was the period when he converted to the Islamic faith. He has not been in employment for many years, and, during his marriage to the mother, he provided significant amounts of parenting to the three children, particularly when the mother was working in hospitality. His current wife works full-time and he cares for their son, BB, whilst she is at work. 

15. The Consultant Psychiatrist, Dr M, expressed the view that the father’s PTSD was in remission. The doctor said “more accurately, the PTSD can be said to be currently subsyndromal. His overall functioning is quite good with the exception of not being in the workforce.” Dr M said that he did not consider that there is in fact any psychiatric impediment to the father returning to the workforce. Dr M ultimately opined that it is not mental health issues, but rather “it is highly likely that personality issues are the major driver of the current dispute before the Family Court”. I accept that expert opinion. As counsel for the ICL submitted, “medication will not fix this”. Respectfully, I cannot see the father’s personality changing. As counsel for the ICL also pointed out, over one hundred sessions for the father with his own psychologist over the years since he was diagnosed with PTSD and discharged from the ADF has not improved things to this point. There is merit, I am also satisfied, in the additional submission of counsel for the ICL that the father does not go to see the psychologist or a psychiatrist for therapy to become a better, more astute, insightful, child-focused parent, but rather for “vindication, support and evidence gathering”. It might be time for that to change. The father ought to change the focus of his visits to the psychologist and the psychiatrist in the future.

16. I am also not persuaded that this case is exceptional to the point of considering it in the children’s best interests that supervised time with their father be ordered to take place on a long-term basis. Having sat in this matter over many days and considered a lot of evidence, I do not consider that the father could or would work reasonably and cooperatively with a professional children’s contact supervisor on a final, indefinite, long-term basis where he is challenged by his own fixed belief set that supervision is not necessary. I do not consider that the children should be exposed to that prospect. I will not make Orders for supervised time.

What of the aboriginality of the children?

1. Section 60CC(3) includes the following consideration that must be taken into account in determining what is in a child’s best interests:

   (h)      if the child is an Aboriginal child or a Torres Strait Island child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right.

2. As I understood the father’s evidence, his late grandfather was an aboriginal man, and as such, he and his children are all of aboriginal descent. The father complained in his evidence that the mother would not let him take the children to their great grandfather’s funeral when he died sometime post-separation during the time the children were living with the mother and there they would have met many of their aboriginal relatives. There did not appear to be any dispute that the children had never met that great-grandfather, did not know him and had no relationship with him at all. There was no evidence adduced by the father as to when and how he first learned of his aboriginality or as to how he or the children enjoyed and shared that aboriginality and culture whilst he and the mother were still a couple and the family was intact. Indeed, I did not understand the mother’s evidence to even concede that aboriginality was ever something the father acknowledged and claimed for himself and the children whilst the family was still intact. She certainly gave no evidence that could be interpreted as corroborating or even conceding that the father and the three children are aboriginal.

3. The father did adduce evidence that supports a finding that he acknowledges aboriginality now and has since he and the mother separated. He adduced evidence that X has also embraced that aboriginality and has become involved in some aboriginal cultural learning and support groups. That the father, learning of his aboriginal descent, has proudly embraced that and has encouraged and supported X’s proud embracing of that is indeed commendable and to be encouraged. Indeed, that this country possesses the oldest living culture on Earth is and should be a source of tremendous pride for all who call Australia home. We all have so much to gain by sharing and enjoying that culture, but most particularly those of us who are aboriginal do.

4. Though I must consider the matters I set out above, I have to say that the father did not expressly make clear to me exactly what case he makes in respect of it. He did not submit to the Court that the only way in which the children will get to enjoy and share their aboriginal culture is by living with him or spending time with him. However, even though he did not submit that, he should know that I expect he would have submitted that if he had known or thought to. I certainly understood that as the essence of his raising the issue of the children’s aboriginality as he did during the trial. As I have said, I saw no evidence that the mother accepts and acknowledges or ever has accepted and acknowledged that her three children with Mr Yabon are of aboriginal descent. I certainly hope that is not through wilful refusal. If it is that she does know or accept the father’s case that he and the children are of aboriginal descent, it is sincerely hoped that she will encourage the children’s understanding of that and their enjoyment and sharing of their aboriginal heritage. I certainly did not see or hear any evidence from the mother that she does not accept that the children are aboriginal. I certainly did not see or hear any evidence from her that supports a finding that knowing of their aboriginality she will not support or encourage them in embracing, sharing and enjoying that culture.

5. Having considered the evidence about the matter, I certainly am not satisfied that the right of the younger two children to enjoy their aboriginal culture will be so detrimentally affected by the parenting Orders I propose that I must not make them. 

6. As for all of the other matters set out in s 60CC(3), I have considered each and every one of them in reaching the decision I have and before making the Orders that I intend to make. That I have not gone through them, one by one, and set out discussion under each heading should not be considered as a failure to consider them. However, one more of them that I will expressly mention though is sub-paragraph (l) – “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”. I am satisfied that if I make orders that provided for the youngest two children to spend time with their father or even separately with their sister, that further proceedings in relation to the children would be just a matter of a short time away in the form of contravention proceedings, recovery proceedings or even applications to change the living arrangements again.  The history of the highly conflictual litigation in the FCC and this Court, particularly when there already was a set of so-called “final orders” made in December 2017, gives considerable weight to such a view. With Orders providing for the children to spend no time with each other and, most particularly, providing for the younger two children to spend no time with the father, apart from an appeal against such orders, each parent’s right to bring fresh proceedings seeking changes to those Orders will require judicial consideration of the rule in Rice & Asplund.[6] It will be, I would expect, quite difficult for either party to obtain leave to proceed with such an application without being able to demonstrate material change in circumstances. An end to this highly conflictual litigation between their parents is most definitely in the best interests of the children.

Some other Matters

[6](1979) FLC 90-725

The contravention of the s 121 prohibition against publication of matters

1. During the trial, after the evidence about the publication of matters that I considered was done in contravention of s 121 of the Act, I invited submissions on notice as to why I should not refer Ms Yabon to the Australian Federal Police for them to consider whether she ought to be charged with the offence that s 121 clearly provides for. At the end of the trial, I asked Mr Yabon for his submissions. He submitted that I should not refer the matter and the essence of those submissions was that Ms Yabon was not aware that it was an offence under s 121 to do what she had done and that she was acting “in good faith” when she published the details to all of the people that she published them to. I note though, that ignorance of the existence of the s 121 prohibition is not a defence to a charge of contravening it.

2. Referral was supported by counsel for the mother and counsel for the ICL.

3. I have experience of referrals to the Australian Federal Police in matters in the past where I considered there were prima facie contraventions of the prohibition contained within s 121. One of those resulted in a successful prosecution against a media organisation for publication in a prominent daily newspaper of details that identified parties to proceedings under the Act and the children who were the subject of the proceedings. One of them resulted in a decision, that I was notified of, not to prosecute because it was considered not to be in the public interest to do so. In that case, a party to parenting proceedings had published to the internet much material that identified parties to the proceedings, their children, some witnesses and the lawyers involved.

1. That experience informs me that a referral of Ms Yabon may not result in her being prosecuted. It may again be the case that prosecutorial authorities determine that it is not in the public interest to prosecute Ms Yabon for contravening s 121. Nevertheless, that is for the prosecutorial authorities to determine and not for me. I see a clear and blatant contravention of the s 121 prohibition and consider it to be entirely appropriate to refer the matter to the prosecutorial authorities for their consideration. How they decide to deal with it will be a matter for them.

The ICL’s submission that the Father’s General Practitioner be referred to the Medical Board of Australia

1. At the end of the trial, counsel for the ICL also made submissions that I should also refer the father’s General Practitioner to the Medical Board of Australia for unprofessional conduct. It will be noted at this point in the reading of this judgment that I have not even referred to the father’s General Practitioner at all before now, and not to any of the evidence of his involvement in any of the factual matters that found their way into the evidence before me. That is because in writing these reasons for judgment I did not consider it ultimately necessary to go into discussion about all of that evidence in order to adequately explain my reasons for the parenting Orders I have made.

2. Suffice it to say that all of the evidence given by the father, other witnesses he relied upon and by the father’s General Practitioner himself, about the doctor’s professional involvement with X, raised more concerns for me about the father’s parenting, his child-focus and his evidence gathering motives than it did in providing any meritorious assistance to the father’s case for the parenting orders he sought. 

3. There were a number of matters of evidence pertaining to the doctor that particularly concerned the ICL. Rightly so, in my judgment. These included evidence about the doctor’s apparent willingness to take up the father’s position without any sensible questioning, evidence about the doctor’s lack of complete candour and co-operation when it came to providing documents to the ICL, and evidence about the doctor’s failure to properly and adequately assess X’s Gillick competency before apparently giving the father and the other adults in his circle some sort of assurance that she was Gillick competent, and evidence of the provision of multiple versions of a “Doctor’s Certificate” supposedly justifying the father’s inability to participate in the proceedings on day two of the trial, to name a few.

4. Yet again, like in very many cases that I have heard and decided over the years, a party’s General Practitioner appeared to become an enthusiastic advocate for their patient’s cause in a high conflict parenting dispute without maintaining a sensible degree of professional objectivity and independence.

5. However, unlike in the case of a referral to prosecutorial authorities for what I determine is a prima facie contravention of s 121 of the Family Law Act, I do not consider it is necessarily part of my duties as a Judge of this Court, administering justice in the exercise of the jurisdiction conferred on me by that Act, to refer medical practitioners to the Medical Board for investigation in respect of their professionalism. I will not do that in this case. I gained a sense from the doctor concerned that he sincerely regretted being “dragged” into this case and that he will be carefully reviewing his practices and his willingness to become an “adversarial” witness for a patient in a similar manner in the future.

6. For all of those reasons, I make the Orders set out in writing at the commencement hereof.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 November 2020.

Associate: 

Date:  27 November 2020