TIMMINS & ZADRIMA

[2020] FamCA 756

FAMILY COURT OF AUSTRALIA

TIMMINS & ZADRIMA [2020] FamCA 756

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the mother has been a sporadic participant in the proceedings – Where the mother appeared at trial and sought an adjournment for a period of six months – Where the mother did not make a reasonable attempt to be ready for trial – Where the child’s best interests were not served by an adjournment – Where granting an adjournment would not allow the determination of the litigation in a timely and affordable way – Where the mother would be unable to meet the father’s costs thrown away by any adjournment – Adjournment refused.

FAMILY LAW – CHILDREN – With whom the child shall live and spend time – Best interests – Where the mother conceded the child’s residence to the father – Where the father sought orders to positively preclude any future interaction between the child and the mother – Where the Independent Children’s Lawyer proposed the child’s time with the mother be limited to only two visits per year – Where the mother sought a reinstatement of earlier orders so the child could spend substantial time and communicate with her – Where the Family Consultant recommended the child continue to live with the father and have no contact or communication with the mother – Consideration of the primary and relevant factors under s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) – Whether the child has a meaningful relationship with the mother from which the child derives benefit – Where the father perceives the promotion of the child’s relationship with the mother is at the cost of the child’s relationship with him – Where the child cannot maintain meaningful engagement with both parents – Where the child has rarely spent time with the mother in the past 18 months, but each occasion has stimulated an adverse reaction in the child – Where the child suffers a developmental disability, which makes her expressed views vulnerable to manipulation – Where the child’s views are given no weight – Where the available evidence reflects poorly upon the mother’s parenting capacity, her attitude to the child and to the responsibilities of parenthood – Where the Independent Children’s Lawyer’s proposal is rejected for lack of solid evidentiary foundation – Ordered the child continue to live with the father – No prescriptive orders requiring the child to spend time or communicate with the mother – Where such time or communication is left to the father as an incident of his sole parental responsibility.

FAMILY LAW – PARENTING – Parenting responsibility – Where the mother conceded parental responsibility for the child to the father – Where the presumption of equal shared parental responsibility is rebutted – Where the child will continue to live with the father – Ordered the father shall have sole parental responsibility for the child.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 97

Family Law Rules 2004 (Cth) rr 1.04, 1.07, 1.08

Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175
Bondelmonte v Bondelmonte (2017) 259 CLR 662
M v M (1988) 166 CLR 69
RCB v Forrest (2012) 247 CLR 304
Timmins & Zadrima [2018] FamCA 100
U v U (2002) 211 CLR 238

APPLICANT: Mr Timmins

RESPONDENT: Ms Zadrima

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1507 of 2012

DATE DELIVERED: 14 September 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 31 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Willoughby

SOLICITOR FOR THE APPLICANT: Peter Hamilton and Associates

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke, Solicitor Advocate

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

Orders

1. All former orders relating to the child B, born … 2008, are discharged.

2. The father shall have sole parental responsibility for the child.

3. The child shall live with the father.

4. The mother is restrained from:

   (a)entering upon or approaching within 100 metres of the father’s residence, the child’s school, or any venue at which the child plays sport or attends extra-curricular activities;

   (b)initiating contact with the child by telephone;

   (c)initiating or responding to contact with or from the child by email, text message or any form of social media; or

   (d)causing or allowing Mr M or any child who lives in her household to initiate or respond to contact with or from the child by email, text message or any form of social media.

5. The father shall notify the mother of any illness or injury suffered by the child warranting emergency treatment by a third party and shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the child.

6. The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.

7. Each party shall forthwith inform the other, and keep the other informed, in writing of their mobile telephone number and email address.

8. Leave is granted to the father to provide to any psychologist or counsellor providing therapy to the child copies of:

   (a)       the Family Report dated 24 February 2020; and

   (b)       these reasons for judgment.

9. Within seven days hereof the father shall cause the child to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to her the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

11. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

12. Costs are reserved for 28 days.

13. Any and all other outstanding applications are dismissed.

Notation

(A)These orders intentionally make no prescriptive provision for the child to spend time or communicate with the mother. If, when or how she is able to do so will be determined by the father in the exercise of his sole parental responsibility for the child.

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 Timmins & Zadrima 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 NEWCASTLE

FILE NUMBER: NCC 1507 of 2012

Mr Timmins

Applicant

And

Ms Zadrima

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings between the applicant father and respondent mother under Part VII of the Family Law Act 1975 (Cth) (“the Act”) relate to their only child – a daughter who is now 12 years of age. This represents the fourth attempt to quell their dispute over the child, with litigation first instituted over eight years ago.

2. In this round of litigation, the mother has been a sporadic participant. She appeared at the trial and sought its adjournment, which was refused. The trial proceeded, as it was important to finally end the controversy, and the mother then actively participated even though she did not adduce any evidence.

3. Ultimately, the mother conceded the child’s residence and parental responsibility to the father, so the dispute devolved to the extent of the child’s future contact with the mother. The father wanted no future interaction at all between the child and the mother, the Independent Children’s Lawyer (“the ICL”) wanted it limited to only two visits per year, and the mother wanted earlier orders re-instated so the child could spend substantial time and communicate with her.

4. For the reasons which follow, the child will continue to live with the father and he will have sole parental responsibility for her. No prescriptive orders will require the child to spend time or communicate with the mother, with such decisions left to the father as an incident of his sole parental responsibility. Time will tell whether he exercises his parental responsibility sensibly, enabling the child to navigate the remainder of her minority securely in his care without losing her relationships with the mother and her two half-siblings entirely.

Background

1. The parties met in October 2006 and commenced a de facto relationship in about December 2007, just before the child was born in 2008.

2. The parties finally separated in April 2012.

3. The first proceedings between the parties were commenced by the mother in June 2012, but were discontinued within weeks.

4. The second proceedings between the parties were commenced by the father a few months later in September 2012 and were finalised by consent orders made in February 2013, requiring the child to live with the mother and to spend time with the father. The parties were granted equal shared parental responsibility for the child.

5. The third proceedings between the parties were commenced by the father in July 2015, following the mother relocating with the child to Sydney and thereby frustrating the child’s ability to spend time with the father under the existing orders, made in February 2013. Those proceedings were concluded by Cleary J in February 2018, following a trial over several days (Timmins & Zadrima [2018] FamCA 100). The orders discharged all prior orders, gave the father sole parental responsibility for the child, provided for the child to live with the father, and required the child to spend time with the mother. Unfortunately, those orders only successfully governed the parties for little more than a year.

6. The current proceedings were instituted by the father in April 2019, though for only limited purpose. He sought to only discharge those orders made in February 2018 which prescribe the time the child must spend with the mother, which application was motivated by his perception the mother was manipulating the child during their time together by damaging the child’s relationship with him and bolstering the child’s relationship with her. The father contended it was liable to cause the child psychological harm.

7. The fresh dispute came before me on 9 August 2019, at which time the parties’ respective interim applications were entertained. The father wanted the child to only spend supervised time with the mother, whereas the mother wanted the existing orders enforced. For ex tempore reasons delivered at that time, pending the final trial or some other interim arrangement, orders were made suspending the operation of several orders made in February 2018 and instead providing for the child to spend supervised time with the mother for two hours every third weekend. Otherwise, the orders made in February 2018 were affirmed.

8. Thereafter, the mother’s interest in the proceedings waned.

9. She did not avail herself of the interim orders made in August 2019, so the child did not see her.[1] The mother also failed to attend upon the Registrar for procedural hearings in September 2019[2] and October 2019.[3] At the latter procedural hearing, the Registrar noted the proceedings may be determined on an undefended basis if the mother refused to file documents as ordered or continued to absent herself from the proceedings.[4] The proceedings were listed before me for procedural directions on 6 November 2019, when the mother again failed to attend.[5] The proceedings were therefore listed for undefended hearing a month ahead on 2 December 2019[6] and it was noted the proceedings would then be determined in the mother’s absence unless she took steps in the meantime to re-list the proceedings for further directions.[7]

   [1] Notation D made on 30 October 2019; Family Report, para 34

   [2] Notation A made on 25 September 2019

   [3] Notation C made on 30 October 2019

   [4] Order 4 made on 30 October 2019

   [5] Notation A made on 6 November 2019.

   [6] Order 2 made on 6 November 2019

   [7] Notation B made on 6 November 2019

10. On 2 December 2019, the mother appeared by telephone and confirmed her wish to usefully participate in the proceedings. For that reason, an order was made for a Family Report to be prepared and the proceedings were adjourned until March 2020 for further directions, once the Family Report was ready and circulated.[8]

    [8] Orders 1-3 made on 2 December 2019

11. With the father’s consent, the child spent two short unsupervised visits with the mother in January 2020,[9] which was the first time they had seen each other face to face since March 2019.[10] Save for the observation session with the Family Consultant in February 2020,[11] the child has not seen the mother since those visits in January 2020.[12] Even if the mother wanted to see her, the father said, on the advice of the Family Consultant, he would not allow it. The father said in evidence the Family Consultant told him such contact was more damaging than helpful for the child. The father also ceased their telephone communication.[13]

    [9] Father’s affidavit, para 21; Family Report, paras 8, 26

    [10] Father’s affidavit, paras 17-20

    [11] Family Report, paras 177-186

    [12] Father’s affidavit, para 22

    [13] Father’s affidavit, paras 59, 71, 72, 73; Family Report, para 24

12. The family conferred with the Family Consultant in February 2020. At that time, the mother told the Family Consultant she wanted orders for the child to live with her[14] or, as a fall-back position, to spend substantial amounts of time with her.[15] The recommendation of the Family Consultant was antithetical to the mother’s proposals, as she suggested the child should continue to live with the father and have no contact or communication at all with the mother.[16]

    [14] Family Report, paras 43, 44

    [15] Family Report, para 198

    [16] Family Report, paras 199-202, Recommendations 1-4

13. The mother appeared by telephone at the directions hearing on 24 March 2020, at which time orders were made to ensure the readiness of the trial for commencement on 31 August 2020. After that Court event, the mother again seemed to lose interest in the proceedings. In breach of procedural orders, she failed to file any Amended Response[17] and she failed to file any affidavits.[18]

    [17] Order 4 made on 24 March 2020

    [18] Orders 5 and 7 made on 24 March 2020

14. Due to the COVID-19 pandemic, the trial was conducted by audio/visual internet connection. The mother appeared for the commencement of the trial on 31 August 2020 and applied for an adjournment, which was opposed by the father and the ICL.

15. The mother apparently foreshadowed her adjournment application to the ICL in late July 2020, though the father was unaware of it until 3 August 2020. The ICL apparently asked the mother to verify why she had not filed her affidavit evidence as ordered and advised the mother she should re-list the proceedings before the Court to make her adjournment application, but she did neither. She sent an email to the Court on 26 August 2020 (only three business days before the trial commenced) advising of her wish for an adjournment but, due to the lateness of her email, was informed by return email she would need to make the application at the commencement of the trial.

16. As articulated by the mother, there were two reasons for the adjournment application: first, her partner was gravely injured in a workplace accident in mid-May 2020 and she was required to care for him; and secondly, she has the primary care of four other children who live in her household and she could not give these proceedings her undivided attention. When asked how long she would be impaired by those problems, she estimated six months. She eschewed the option of an adjournment for a shorter period of only days or even weeks to overcome those difficulties and so the only available options were to press ahead with the trial (as the father and the ICL wanted) or adjourn it for some six months (as the mother wanted). The adjournment application was refused for the following reasons.

17. First, the mother did not make any reasonable attempt to be ready for the trial, which was set down five months ahead in March 2020. Even though the mother’s partner was injured in May 2020, she did not apparently use the intervening three months before trial to make any alternate plans to conduct it, nor did she make an early application for its adjournment. She did not actually notify the father, the ICL, or the Court of her intention to press the adjournment application, over objection, until three days before the trial started. She could not advance any reasonable explanation for why she had not filed her affidavit evidence. There was a strong inference the adjournment was only sought to cure the mother’s unreadiness, for which she alone was responsible.

18. Secondly, the child’s interests were not served by an adjournment. She is aware of the litigation and is apprehensive about its resolution. An adjournment of a few weeks might have been tolerable, but not one for six months. The child needs some finality. Although not tendered on the adjournment application, some evidence adduced during the trial vindicated the need to determine the proceedings for the child’s benefit. When the child conferred with her counsellor in March 2020, her mood was low and she reported feeling fatigued and “described that thoughts in her head about Mum and Dad and Court feel like a jail [sic]”.[19] The litigation is playing heavily on the child’s mind.

    [19] Exhibit ICL1, page 5

19. Thirdly, the Court has already devoted a disproportionate share of its resources to resolving litigation between the parties over the child. As the Act (s 97(3)) and the Family Law Rules 2004 (Cth) (rr 1.04, 1.07 and 1.08) each provide, litigation before the Court must be heard and determined in a timely way at an affordable cost. The avoidance of undue delay and the efficient use of public resources are considerations which may transcend the interests of the parties to the litigation. Decisions about adjournments are interlocutory issues concerning practice and procedure which warrant speedy resolution, particularly in cases involving children (Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 at 189-190, 211-215, 217, 223 and 227).

20. Lastly, the father was funding his legal representation privately, without any grant of legal aid. The mother apparently informed his lawyers she could not meet any of his costs thrown away by any adjournment. The father could ill afford to waste money through no fault of his own.

21. Once the adjournment was refused, the mother did what she said she could not: she participated in the trial. She listened to the ICL’s cross-examination of the father, she cross-examined the father for approximately 45 minutes, she listened to the Family Consultant’s cross-examination by both the ICL and the father, she cross-examined the Family Consultant briefly, she listened to the submissions of the ICL and the father, and she made her own final submissions. It must have been awkward for her, juggling responsibilities for her partner and the children in her care, but she did it. Her internet connection was less than optimal, but she was able to make her points clear enough.

Proposals

1. The father moved on his “Amended Amended Initiating Application [sic]” filed on 16 April 2020. He sought sole parental responsibility for the child, for the child to continue living with him, orders positively precluding any contact or communication between the child and the mother, and injunctions restraining the mother’s conduct in various respects. His application was largely in accordance with the recommendations made by the Family Consultant.

2. The ICL only deviated from the father’s proposal in respect of the child’s future interaction with the mother. Instead of the mother’s elimination from the child’s life, as the father proposed, the ICL instead proposed that the child spend time with the mother for a few hours on two occasions each year, which he described as “identity” contact. The ICL’s proposal was contained within a Minute of Orders he tendered.[20]

   [20] Exhibit ICL2

3. The mother did not reveal her proposal until her final submissions when, in answer to a specific question, she said she wanted the orders made by Cleary J in February 2018 restored. That would mean the child spending time with her, occasionally in school terms and during school holidays, and their regular communication by telephone.

Evidence

1. The father relied upon his affidavit filed on 17 July 2020, the annexures to which were separately tendered.[21] He did not file any affidavit by the paternal grandmother, as he had asked and was allowed.[22] The father was cross-examined by both the ICL and the mother.

   [21] Exhibit F1

   [22] Order 6(b) made on 24 March 2020

2. The mother did not file any affidavit evidence and neither the father nor the ICL sought to cross-examine her.

3. The father and the ICL both relied upon the Family Report dated 24 February 2020 and some tendered counselling notes in respect of the child.[23]

   [23] Exhibit ICL1

4. The Family Consultant was cross-examined briefly by the ICL and both parties.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests

Primary considerations – s 60CC(2)

1. The child’s residence with the father is inevitable so it serves little purpose discussing the nature of the child’s relationship with the father and the benefit she derives from it but, for completeness, their relationship is meaningful and the child derives benefit from the stability he affords her. The Family Consultant observed their warm and comfortable relationship.[24]

   [24] Family Report, paras 175, 176

2. There can be no doubt about the child’s perception of the importance of her relationship with the mother. The father knows the child loves the mother and misses her very much.[25] From the father’s perspective, the salient controversy is over the benefit the child actually derives from her relationship with the mother. He considers the promotion of the child’s relationship with the mother comes at the concomitant cost of spoiling the child’s relationship with him. The Family Consultant agrees with the father’s assessment of the situation, opining:

   195.There are clear indicators that the mother has shared information with [the child] and this has had clear ramifications in that this information supports and engenders [the child’s] negative viewpoint of the father. Given that the mother denied such sharing of information, it is thought that the mother will continue to expose [the child] to inappropriate or adult information, which in turn, places [the child] in a place of considerable conflict caught between two conflicting views and experiences of her parents….the Family Consultant is very concerned that if [the child] continues to be exposed to the mother’s lack of boundaries across a number of different areas of parenting, her mental health will deteriorate.

   [25] Father’s affidavit, para 70; Family Report, para 84

3. The father has the insight to understand the consequences of his proposal to effectively eliminate the mother from the child’s life. It is not a decision he has taken lightly and he regrets its necessity.[26]

   [26] Family Report, para 100

4. While the provisions of the Act evince an aspiration to ensure that children derive benefit from both parents’ meaningful involvement in their lives (s 60B(1)(a)), since it is usually an advantage for children to develop good relationships with each parent (see U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76), every case is different and must be treated on its own merits. Not every case fits the preferred template of cooperative family relationships after parents separate. On the available evidence, this is not a case in which the child can happily maintain meaningful engagement with both parents.

5. Much earlier in the litigation, there was an undercurrent of implication in the evidence that the mother was exposed to the risk of family violence committed by the father (s 60CG(1)(b)) and the child needed protection from the harm she would suffer by exposure to such family violence (s 60CC(2)(b)). At indistinct times in the past, the police were called by the mother to intercede in allegedly violent conflicts between her and the father. An allegation she once made against the father of sexual assault was rejected as being false[27] and, although several family violence orders were provisionally issued by the police for her protection, none was ever finalised in her favour.[28] Self-evidently, whatever may be the truth behind the parties’ past conflict, there will be no prospect of the child being exposed to family violence between them if the mother no longer has a significant role to play in the child’s life. Nor then would the mother be exposed to any risk of family violence committed by the father.

   [27] Family Report, para 55

   [28] Family Report, paras 53-54

Additional considerations – s 60CC(3)

1. The child is 12 years of age, though she lacks commensurate emotional maturity because she has a developmental disability, which makes her expressed views vulnerable to manipulation.[29] The mother conceded to the Family Consultant that the child is “easily influenced”.[30]

   [29] Family Report, paras 133, 188; Father’s affidavit, para 7

   [30] Family Report, para 72

2. The child told the Family Consultant, firmly, she no longer wanted to live with the father and wanted to live with the mother instead. She said she would not miss the father at all and never wanted to live with him.[31] The Family Consultant doubted the authenticity of the child’s expressed views, about which she said as follows:

   190.The presentation of [the child] was a concern to the Family Consultant. [The child] does not have a current relationship with the Family Consultant and yet on our first meeting, she wasted no time making a statement as to her wishes. This is unusual, with most adolescents getting to know the Family Consultant a little better before stating their viewpoint and most adolescents making their viewpoints known at the end of the interview, after significant rapport building. [The child] presented with a very strong viewpoint regarding her desire to live with her mother. However, her view of her parents appeared extremely polarised with [the child] not able to express a negative view of the mother and not able to express a positive view of the father. This view also extended to the paternal grandparents and the maternal extended family members. This strong polarised view and inability to recollect positive or negative memories of a parent, appears consistent with a very strong aligned view of the mother. In interview, there were numerous examples of consistencies between information provided by the mother and information provided by [the child] and it is thought that the [mother has exposed [the child] to negative information about the father and the paternal grandparents. It is thought that this information would have been shared with [the child] during her recent two blocks of time with the mother in January 2020.

   191.In support that [the child] is aligned to the view of the mother, the observation between the father and [the child] was extremely inconsistent with her strongly negative statements in interview. Observation revealed a close and happy relationship between the father and [the child]…

   [31] Family Report, para 134

3. The Act requires any views expressed by children to be considered, but the weight attributable to such views is another matter entirely (s 60CC(3)(a)). It is well known that children’s views are liable to be influenced, which reality tempers children’s expressed views (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]-[41]; RCB v Forrest (2012) 247 CLR 304 at [52]). The mother’s exploitation of the child’s vulnerability by influencing her expressed views was an especially important feature of the evidence in this case.

4. The father gave evidence of how the child made comments to him and others in March 2019 which strongly implied the mother’s emotional manipulation of the child against him. After returning from a visit with the mother the child told the father she no longer liked him and revealed critical comments made about him by the mother.[32] The father’s evidence is strongly corroborated by the content of treatment notes made in March 2019 by the child’s physiotherapist[33] and by the contents of a letter written in April 2019 by the child’s social worker.[34]

   [32] Father’s affidavit, paras 37-50

   [33] Exhibit F1, page 45

   [34] Exhibit F1, page 48

5. In July 2019, the mother drove to the venue where the child attended after-school care, provided the child with a photograph of the members of the maternal household and told the child she was “fighting for [her] at court”.[35] The incident was of sufficient significance that the staff of the centre compiled an incident report.[36]

   [35] Father’s affidavit, paras 60-61; Family Report, paras 23, 73

   [36] Exhibit F1, pages 49-53

6. After seeing the mother in January 2020, the child spoke openly about the litigation and renewed her expressed wish to live with the mother.[37]

   [37] Father’s affidavit, para 71

7. Since around February 2020, the child has told the father that the mother’s partner is “going to slit [the father’s] throat”.[38]

   [38] Father’s affidavit, para 75

8. In June 2020, after the child had not seen or spoken to the mother for several months, she told the father she previously acted towards him in a hostile way because the mother instructed her to do so, for which behaviour she apologised.[39]

   [39] Father’s affidavit, para 78

9. The father deposed that, since the child has stopped spending time and communicating with the mother, she has settled in his care. She is no longer hostile towards him and has ceased expressing a desire to live with the mother.[40]

   [40] Father’s affidavit, para 80

10. The father was not challenged about the accuracy of any of that evidence and it carries probative weight, despite any perception of his partiality, because it tallies with the Family Consultant’s observations and opinions. The child’s expressed preference to live with the mother is therefore given no weight (s 60CC(3)(a)). Not even the mother contended the child’s views should be determinative or even influential because, contrary to the evidence of the child’s expressed desire to live with her, she acceded to the child’s continuing residence with the father.

11. The Family Consultant considered the pressure exerted upon the child by the mother to reject the father was the “central issue” of the proceedings.[41] The Family Consultant found the mother lacked any real understanding about the reason for the litigious conflict and was unwilling to accept any responsibility for it.[42] That opinion was revealed to be accurate by the mother’s presentation at trial, as she vehemently rejected any criticism of her parenting capacity and disavowed any suggestion that her conduct was liable to impair the child’s relationship with the father. In fact, the mother professed her belief to the Family Consultant that the child was manipulated by the father in past proceedings.[43]

    [41] Family Report, paras 45, 48

    [42] Family Report, paras 62, 194

    [43] Family Report, paras 66, 75

12. The father expressed his concern to the Family Consultant that, if the mother remains engaged in the child’s life, she will eventually convince the child to abscond to live with her in Sydney.[44] The Family Consultant was alive to the same risk, explaining how the child has an idealised view of the mother and expresses an unnaturally strong rejection of the father, which is incongruent with her obvious contentment in his company.[45] The child was keen for the Family Consultant to confirm with the mother the views she had expressed in conference with the Family Consultant,[46] suggesting the child was anxious for the mother to know she had demonstrated allegiance to the mother. Inferentially, the child feels under considerable pressure to choose sides and align herself with the mother rather than the father.

    [44] Family Report, para 101

    [45] Family Report, paras 136, 139, 198

    [46] Family Report, para 150

13. The child told the Family Consultant the mother discussed the litigation with her[47] and, during the child’s meeting with the mother and other members of her household, the Family Consultant observed how the child was asked questions which appeared to be insincere and rehearsed, designed to advance the mother’s cause. The Family Consultant regarded the mother’s conduct to be exploitative and considered she was actually “causing ongoing harm” to the child.[48]

    [47] Family Report, para 145

    [48] Family Report, para 192, 194

14. Apart from the mother’s manipulation of the child, her attitude towards the child has been inconsistent for quite a while.[49] While the father acted to terminate the child’s visits with the mother from the end of March 2019,[50] when interim orders were made in August 2019 for the child to resume spending time with her under supervised conditions, the mother declined to participate. She informed the father she would not participate[51] and she told the Family Consultant she could not afford the supervised time despite a contribution from the father and did not think the orders were fair on her two youngest children,[52] failing to grasp how the child might have perceived her voluntary absence as disinterest. Such evidence reflects poorly upon the mother’s parenting capacity, her attitude to the child, and her attitude to the responsibilities of parenthood (ss 60CC(3)(f) and 60CC(3)(i)).

    [49] Father’s affidavit, paras 23-33

    [50] Father’s affidavit, para 18

    [51] Family Report, para 34

    [52] Family Report, para 64; Father’s affidavit, para 20

15. Currently, the child lives with the father in Newcastle and the mother lives with her partner, their two children, and her partner’s two children in Sydney.[53] Given the mother’s professed difficult financial circumstances,[54] there would be some practical difficulty and expense involved in keeping the child meaningfully engaged with the mother, even if the mother maintained consistent interest in the child (s 60CC(3)(e)).

    [53] Family Report, paras 3, 4, 10, 12

    [54] Family Report, paras 10, 64

16. No other aspects of the evidence were suggested to usefully engage the provisions of s 60CC(3) of the Act.

Conclusions and orders

1. In February 2018, Cleary J made an order for the father to have sole parental responsibility for the child. At this hearing, the mother eventually submitted the regime imposed by Cleary J’s orders should be restored, which must mean she accepts the order allocating sole parental responsibility to the father. The evidence in these proceedings shows, as Cleary J found, the presumption of equal shared parental responsibility is rebutted under s 61DA(4) of the Act.

2. The child shall continue to live with the father and he shall have sole parental responsibility for her. Those propositions were not ultimately contested.

3. The salient issue was whether and, if so how, the child will engage with the mother in the future.

4. The mother proposed restoration of the expansive contact allowed by the orders previously made in February 2018, including unsupervised visits and regular telephone communication. Her proposal is rejected. It flatly contradicts the opinions and recommendations of the Family Consultant, which are largely accepted as being correct. Besides, those orders have not worked since March 2019. True it is the father decided to terminate compliance with them, but the evidence adduced at trial demonstrated that his decision was justifiable. As an interim measure, orders were made in August 2019 for the child to spend supervised time with the mother, but it was the mother’s decision to disregard those orders and sever the child’s contact with her. On the available evidence, there is no conceivable way the mother’s proposal could be successfully restored. Another breakdown of the arrangement would be almost inevitable.

5. The ICL proposed that the child spend time with the mother for only a few hours, twice per year. The idea was that the complete elimination of the mother from the child’s life was liable to cause the child psychological harm and deprive her of the opportunity to develop lasting relationships with her two younger half-siblings who live with the mother. The ICL submitted that such limited personal interaction would enable the child to retain her meaningful relationship with the mother and, even allowing for the prospect of the mother still undermining the child’s relationship with the father, such limited opportunity would not realistically compromise the security of the child’s residence with him.

6. While the ICL’s proposal and the submissions made in support of it are ostensibly logical, they are rejected for lack of solid evidentiary foundation. The proposal is borne of hope rather than expectation.

1. The Family Consultant conceded in cross-examination that the severance of the child’s relationship with the mother might cause the child to blame herself for her loss of the mother and cause her to feel guilty about it, or might cause the child to blame the father for her loss of the mother and be angry with him about it, or might cause the child to feel as though the mother no longer loves her, but those concessions of possibilities were not embraced by the Family Consultant as probabilities. The flavour of the Family Consultant’s evidence was her belief the child would retain her meaningful relationship with the mother, even though it may lie dormant for the next few years. She considered the mother was unlikely to change her behaviour and, even if only allowed a few short visits with the child each year, would still be pre-occupied with emphasising to the child the superiority of their relationship over the relationship enjoyed by the child with the father. The Family Consultant felt that even few and short visits with the mother were liable to intensify the child’s blame of the father for the mother’s marginalisation in her life.

2. Overall, the Family Consultant did not deviate from the recommendations expressed in the Family Report, which were for the child to have no contact of any sort with the mother, notwithstanding the risk the child would rail against such an outcome.[55] I accept the evidence of the Family Consultant.

   [55] Family Report, paras 200, 201

3. The child has only rarely spent time with the mother over the last 18 months, but on each occasion it has stimulated an adverse reaction in the child.

4. When the child spent time with the mother in March 2019, she returned to the father being grossly critical of him and she told her physiotherapist she “felt like dying”.[56]

   [56] Exhibit F1, page 45

5. When the mother arrived unannounced at the child’s after-school care centre to see her in July 2019, the child told the centre staff she did not want to be alive and she wanted to kill herself.[57] I accept the Family Consultant’s oral evidence that the child probably has not genuinely experienced suicidal ideation, but rather such dramatic statements are how the child articulates her distress. Still, it highlights how the child is emotionally unsettled by her contact with the mother.

   [57] Family Report, para 23; Exhibit F1, page 51

6. After the child spent time with the mother in January 2020 and then saw her again during the session with the Family Consultant in February 2020, the child told her psychologist she was fatigued, pre-occupied with thoughts about her parents and the litigation, and the absence of the mother from her life felt like the mother had died.[58]

   [58] Exhibit ICL1, page 5

7. Evidently, the child struggles to control her emotions after seeing the mother, even when only infrequently. That problem is compounded by the child’s relative emotional immaturity, making her vulnerable to manipulation by the mother,[59] even if the mother’s conduct has that effect inadvertently rather than deliberately. I accept the Family Consultant’s evidence about the mother’s lack of insight into that dynamic and the improbability of any change by her.[60] More likely than not, even if the child only spends time with the mother infrequently, the mother will not be able to resist trying to impress upon the child the unfairness of the situation and how much better off the child would be living, or at least spending much more time, with her and her family. The inevitable consequence of that would be the destabilisation of the child’s residence with the father. The ICL’s contrary submission is rejected.

   [59] Family Report, para 133

   [60] Family Report, para 194

8. I accept as accurate the father’s evidence that the child has settled in his care over the last six months whilst not spending time or communicating with the mother. Such progress would be put at risk by adoption of the ICL’s proposal. For the child, the renewed agony of fleeting and infrequent interaction with the mother would probably be worse than the fading agony of no contact at all.

9. However, the father’s proposal is not accepted merely by eliminating the competing proposals made by the mother and the ICL. The father proposed the imposition of numerous declarations and injunctions to positively restrain any form of contact between the child and the mother,[61] which I am not satisfied are necessary or reasonable.

   [61] Amended Amended Initiating Application filed on 16 April 2020, proposed Orders 4-9

10. The father is invested with sole parental responsibility for the child, which responsibility he can exercise, if and how he sees fit, by allowing some modified form of contact between the child and the mother as the child matures. The father then bears the burden of deciding if, when and how the child may explore her relationship with the mother in the future in ways which are commensurate with the child’s burgeoning emotional maturity. If he exercises that responsibility wisely, the child is likely to benefit in the long run. Permanent restrictive injunctions which preclude any form of interaction between the child and the mother for the remainder of her minority is too onerous a solution. Even though the father could later choose to disregard and not enforce such injunctions, their mere existence creates an impression which could impede the child’s future recovery of her relationship with the mother.

11. It is only necessary to restrain the mother from subverting the father’s decisions by approaching the child without his knowledge and consent – either in person at home, at school or at other venues, or by corresponding with her electronically, including by the use of social media. The injunctions should be broad enough to thwart the mother directly and also indirectly through the use of her partner or the children living in her household as conduits.

12. If the child initiates contact with the mother by telephone, the mother should not be expected to terminate the telephone call, as the child would then be crushed by feeling the mother had no interest in her and was deliberately shutting her out of her life. The injunctions should not and do not go so far as that.

13. Supplementary orders enable the mother to obtain school photographs of the child and information about her scholastic progress and emergency medical treatment.

14. The father is ordered to present the child to the Family Consultant for an explanation of the orders and, if deemed appropriate by the Family Consultant, the reasons for them. The Family Consultant said it would be a good idea so the explanation to the child is balanced, it absolves the father of the difficult task, and it lessens the chance the child will be angry with him for thwarting her relationship with the mother.

15. The child is eligible for NDIS funding, which is used to furnish her with various services,[62] including counselling. An order is made allowing the Family Report and these reasons for judgment to be given to the child’s counsellor as, armed with such information, the counsellor may be able to help the child adjust to and accept the regime imposed by the orders.

    [62] Father’s affidavit, para 7

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 14 September 2020.

Associate: 

Date:  14 September 2020