Traynor and Lerner (No. 2)
[2018] FamCA 1016
•5 December 2018
FAMILY COURT OF AUSTRALIA
| TRAYNOR & LERNER (NO. 2) | [2018] FamCA 1016 |
| FAMILY LAW – CHILDREN – where the Court hears a third final hearing in five years – where the basis of the mother’s application to discharge existing orders and allow only supervised time is the father’s risk-taking behaviour with nine year old daughter – where father does not file evidence in compliance with trial directions – where mother seeks to proceed “undefended” – where the Court permits cross-examination by father – where the Court finds the child is at risk – consideration of Court resources – final orders made for supervised time. |
| Australian Passports Act 2005 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175; 82 ALJR 951; 258 ALR 14 B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Traynor |
| RESPONDENT: | Mr Lerner |
| INDEPENDENT CHILDREN’S LAWYER: | Kordell Lawyers |
| FILE NUMBER: | MLC | 1250 | of | 2013 |
| DATE DELIVERED: | 5 December 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 27 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Renwick |
| SOLICITOR FOR THE APPLICANT: | BJT Legal |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Radich |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kordell Lawyers |
Orders
All existing parenting orders are discharged.
The mother have sole parental responsibility for all major long-term decisions about the parties’ child X (“the child”) born … 2008.
The child shall live with the mother.
Forthwith, each of the parents of the child enrol at the children’s contact centre nearest to E Town and do all things required of them to enable registration at the centre to commence supervised contact between the child and the father.
Upon the contact service having a supervised placement available to the parties, the child spend such time with her father under supervision as the service can provide.
For the purposes of paragraph (5) of these orders:
(a) The supervision continue for as long as the service can provide it or the parties otherwise agree to an alternative arrangement; and
(b) The service be provided with a copy of paragraphs 110 to 111 of the reasons for judgment published this day to ensure the supervisor has an understanding of the need for supervision.
For the purposes of s 65Y of the Family Law Act 1975 (Cth) and s 11(1) (b) of the Australian Passports Act 2005 (Cth), the child is permitted to travel internationally outside the Commonwealth of Australia.
For the purposes of s 11(5) (a) (ii) of the Australian Passports Act 2005 (Cth) the mother is the only person who has not ceased to have parental responsibility.
For the purposes of s 121 of the Family Law Act 1975 (Cth), the mother is at liberty to provide a copy of these orders to any relevant school principal or health provider.
Subject to the Independent Children’s Lawyer completing the requirements of paragraph 6 (b) of these orders, the order for the appointment of the Independent Children’s Lawyer is discharged.
All extant proceedings are otherwise dismissed.
That pursuant to s. 65DA(2) and s. 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this order.
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 Traynor & Lerner (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 1250 of 2013
| Ms Traynor |
Applicant
And
| Mr Lerner |
Respondent
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Parenting proceedings between Mr Lerner (“the father”) and Ms Traynor (“the mother”) about their daughter X (aged 10) culminated in a one-day hearing on 27 November 2018 which gives rise to the orders now made.
The law relating to parenting
In a parenting application, Part VII of the Family Law Act 1975 (Cth) (“the Act”) mandates the considerations of the Court.
Section 65D of the Act provides that subject to certain considerations to which I shall return later, the Court may make such parenting order as it thinks proper.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. As will be seen below, these parents have had equal shared parental responsibility for five years since the first orders were made, yet their communication is non-existent. That very lack of communication exacerbates the problem of working out what orders (if any) should be made in relation to the child for the future in circumstances where the history says there is little prospect of change.
The presumption in s 61DA of the Act does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. Both parties made allegations of prior conduct which resulted in skirmishes in the local magistrates’ court. Those culminated in each giving undertakings to the other which have now expired. In the present case, neither party relied upon family violence.
Section 61DA(4) of the Act provides that the same presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. Whilst best interest principles have to be examined again below, s 65DAC of the Act provides that if an order for equal shared parental responsibility is made, the exercise of that responsibility involving a major long-term issue is taken to be required to be made jointly. As I have mentioned, the parties had that responsibility by Court order on two previous occasions. Each honoured it in the breach. It is now necessary to revisit that situation.
For reasons which are set out below, it is not in the child’s best interests that her parents have equal shared parental responsibility.
Before any parenting order can be made, the Court must decide what particular order best applies for the future of the child. The Court must regard the best interests of the child as the paramount consideration. To determine best interests, the Court must examine the factors set out in s 60CC of the Act. Those factors are mentioned later in these reasons.
Importantly in the context of this case, there is a significant issue about the physical and psychological risk of harm to the child. There is therefore a clash between the two primary considerations in s 60CC(2) of the Act. The first of those considerations is the benefit to the child of having a meaningful relationship with both parents, and the second relates to the need to protect her from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In 2011, the Parliament inserted s 60CC(2A) of the Act to provide that if there was a clash between those two concepts, the protection of the child had to be given greater weight. That is certainly the case here.
The father’s lack of evidence
Apart from a hearing on 15 October 2018 when Johns J suspended the father’s time with the child[1], the parties have always compromised their positions and agreed to consent orders. This time it is different and the Court was asked to hear the contested parenting dispute which gives rise to these reasons.
[1] [2018] FamCA 875
The father who did not have the benefit of legal representation was the respondent. The mother, the applicant, had legal representation. The Court had some assistance from an Independent Children’s Lawyer.
Notwithstanding five years of litigation and 20 Court hearings, the father who had considerable experience as a result of those hearings, did not file an affidavit or a formal response despite orders of Johns J made on 7 June 2018. Her Honour also ordered the preparation of a Family Report; yet the father did not cooperate.
On 15 October 2018, her Honour, knowing that the father had not complied with her earlier trial directions, extended his filing time and gave him a further three weeks to comply. Again, the father did not comply.
At just after 5.00 am on 27 November 2018, which was the first day of this final hearing, the father sent his 42 page affidavit to the legal practitioners for the mother and the Independent Children’s Lawyer. There were annexures involved.
Upon the Court hearing commencing, the father sought leave to rely upon what he had sent electronically. The mother and the Independent Children’s Lawyer opposed the father’s application for that leave.
The father submitted that he had suffered from anxiety and had experienced panic attacks. He conceded he had no evidence of that. He said he felt it important for the best interests of the child that the Court had his material and took it into account. He gave no plausible explanation otherwise for his non-compliance with orders. As a litigant of five years’ experience, and having been given the indulgence he had, his explanation was unhelpful.
To admit the father’s evidence would almost certainly have necessitated an adjournment. After 18 months of waiting for a determination with the father’s time with the child suspended from October 2018 as a result of his own actions, a further delay was inappropriate.
Apart from the inconvenience to the mother, the family report writer would have been obliged to contemplate the father’s material at considerable inconvenience to her. That course would possibly have required further interview. That was inappropriate having regard to what the family consultant said, which was as follows:
[36][Mr Lerner] did not attend on the day of the scheduled interview and did not respond to telephone messages left by the report writer. He attended for interview the day after the scheduled interviews, indicating that the correspondence he received from the Court listed his appointment for 11/09/2018. He signed the admissibility form and then stated he had nothing further to say and did not wish to answer any questions.
[37]After a period of silence [Mr Lerner] was asked directly why he had attended if he did not wish to participate in the interview. He stated that he had no choice but to attend given there are Court Orders in place for him to do so. He then advised that he found the process “culturally inappropriate” and resented being asked questions about his cultural background and heritage. It is not clear to what [Mr Lerner] was referring and this was not explored with him. He advised he would forward his concerns regarding this process, in writing, by the end of the day.
[38]The interview did not proceed as [Mr Lerner] was unwilling to explore, negotiate or discuss options in relation to parenting arrangements for the child. Instead, his focus was on expressing hostility towards the report writer and his disapproval of the process.
The family consultant then opined:
[76][Mr Lerner’s] presentation at the unscheduled interview was hostile and intimidating. He made a point of attending the interview as per Court Orders, but stated clearly that he had no intention of actively engaging in the assessment and there was nothing about his presentation to suggest he was attending with the child’s needs in mind.
The father’s statement to this Court, which he said he had previously put to Johns J only to have her Honour dismiss it, was that there was a cultural clash with the family consultant. He asserted that cultural clashes of that type would not normally be permitted by the Court. I disagree there was any such clash here at all. To the extent that he felt sensitive about it, he could have raised that by application. Nothing in the Family Consultant’s report indicated his objection other than as shown in paragraph [37] of the report above.
The father’s blunt approach to the family consultant was seen in his confident demeanour in the Court. He took the view that there was nothing wrong with his parenting of the child. His view expressed through cross-examination was that the mother had to change her method of communicating with him. I find he has no insight into the child’s needs (matters about which I make findings below) nor the problems that he causes the mother, having regard to his attitude that he is not only right, but entitled to parent the child as he sees fit.
The inevitability of an adjournment by admitting the affidavit would cause not only an injustice to the mother and the child but also an enormous waste of the Court’s resources. In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175; 82 ALJR 951; 258 ALR 14 cited by the Full Court of this Court in Sexton & Sexton [2012] FamCAFC 218, French CJ said:
In the proper exercise of primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried.
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
Accordingly, the father’s application to rely upon the affidavit had to be rejected.
The mother’s application to proceed undefended
The father was on notice in October 2018 that the mother was pressing to proceed with or without his involvement. An application in a case was filed in October 2018 so he was aware of the risk that he was running by not filing his evidence. Counsel for the mother submitted that the father should be excluded entirely. I rejected that, notwithstanding the recalcitrance of the father in relation to Court orders.
The power to proceed to hear a case on what is often described as an undefended hearing is set out in r 11.02(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) which provides:
If a party does not comply with these Rules, the Regulations or a procedural order, the court may amongst other things:
…
(c) determine the case as if it were undefended
An undefended hearing means literally that the respondent does not participate at all.
In Tate and Tate (2000) FLC 93-047 the Full Court said:
The Family Court of Australia is all too frequently confronted with litigants who fail in their duties of full and frank (and prompt) disclosure of their financial affairs. Where such failure results in a Form 7A being struck out, as here, then that party ought have no further right to be heard without further order of the Court which is a matter for the judge in his or her discretion.
…
The attainment of justice is the over-riding objective in each individual case.
In Brown and Brown [2004] FamCA 1067, O’Ryan J said:
What is very clear from the case law and the provisions of the 2004 Rules is that it is fundamental that the rules of Court and/or procedural orders must be obeyed and the Court should not be reticent about exercising the powers in r 11.02(2) in appropriate cases. In my view, it is not necessary that the circumstances be “exceptional”. No litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court’s processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.
The case law prior to the 2004 Rules was relatively harsh in responding to non-compliance. The new rules have adopted these case law principles as they place great importance on case management and the need to comply with court orders. As such, in my view, the new rules provide severe sanctions for non-compliance.
The father wanted to participate, although he finally acknowledged that he had not only not complied with orders, but had not assisted in respect of the process. He said he had questions about the mother’s evidence which related to and responded to the issues about the child’s risk in his care. I considered it appropriate in the circumstances to allow him cross-examination to enable the Court to have some understanding of whether the facts as to the physical risk to the child asserted by the mother were correct; whether the child’s distress arising from at least one of those incidents had something to do with the nature of her relationship with the father; and finally, whether the father had some proposal to put to the mother in evidence to indicate that his attitude towards cooperative parenting was inconsistent with what the mother was asserting. I warned him that the nature of his cross-examination may very well give an indication of how he was seen by the mother and had historically behaved towards her. Initially, he said he had 80 questions and he certainly put many questions over two hours, but most of them related to two things. First, there was his view that the mother needed to change her communication style towards him (rather than the reverse) and secondly, there was his testing of her about whether her perception of what the child did in the time that she spent with him was something that the child had talked to her about or she even understood. In that sense, his questions were relevant. However, I found the mother responsive, truthful and plainly showing distress at having to persistently deal with the way he ignored her role in the child’s life.
The father wanted to put to the mother a raft of “facts” about what he did with the child and he asked whether she was interested to know. That line of questioning was unhelpful because after five years of enduring his behaviour, it was inappropriate for the mother to be told in the witness box what should have been conveyed to her over those years. The Court room was not the place to begin negotiating some form of cooperative parenting arrangement. It became abundantly clear that the mother saw the father as dominant. That was evident by his question about whether or not she had any concerns about him. She replied by saying that she did and specified that he did not see any risk associated with the child wandering the streets to go to shops and cross main highways along with leaving her in his home by herself. She said that multiple people had told him that he should not do those things, including his own mother, but he ignored them. In a poignant moment, she said that she did not want to receive a telephone call from the child scared of what he would do to her if she did not participate in what he called his “confidence building” exercises.
Significantly, no notice had been given by the father to require the mother’s witnesses to attend so the independent evidence of the mother’s witness Mr D, who found the child in a distressed state on his doorstep, and the important observations of the family consultant in her discussions with the child about what was happening in her father’s household, remained unchallenged.
To the extent that the mother sought that the proceedings be heard on an undefended basis, I observed earlier that there is no definition of what that means. However, the rules of Court cannot be ignored and accordingly, as the issues to which I now turn became abundantly clear from the mother’s evidence and that of the family consultant, I ruled that it was inappropriate for the father to give evidence either by this late-produced affidavit or orally. I did however give him the opportunity to make submissions including the final right of reply to the submissions of counsel.
the issues
There were three issues before the Court. They were:
a)After five years of orders which included equal shared parental responsibility, was there any prospect of cooperative parenting decision-making in the future, and if not, who should have sole parental responsibility?
b)On the basis that the child’s residence was not in dispute, was there an unacceptable risk of physical and psychological harm to her if she spent time with the father without some form of restriction or control?
c)If supervision was required, what should it look like and would it be detrimental to the psychological and emotional health of the child?
For the reasons to which I turn below, the answers to those three questions are:
a)There is no prospect apparent to the Court of a change of style of communication and conflict appears inevitable when the parties meet so there is a need to remove any prospect of confrontation between the parents. It is also necessary to avoid any impasse over decisions about the child’s long-term future. Accordingly, the mother is the appropriate parent to have sole parental responsibility as her focus is on the child’s welfare as well as safety;
b)There is an unacceptable risk of physical and psychological harm to the child because the father lacks insight as to her needs and what is appropriate for a 10 year old child, all of which comes back to his views about parenting responsibility. His views aggravate the risks to the child. Accordingly, restrictions on his time with the child are necessary; and
c)Supervision should be initially at a contact centre, but in circumstances where in the future, there is a prospect that the mother and father can agree on an alternative arrangement (and according to the mother, the father would have to change his attitude) the parties are at liberty to find something less clinical and restrictive than the contact centre. Absent agreement, that arrangement must remain.
Background
To give context to this unusual dispute, it is helpful to look at what the parties have done over five years and why, despite two previous sets of final orders and 20 hearings, there is little apparent prospect of change. It is timely to repeat that this is the third final hearing between these parties.
Proceedings between the parties began in 2013, when both were, as they are now, living in country Victoria. Those proceedings culminated in final orders on 17 July 2013 on which occasion, both parents had legal representation.
The orders were made by consent, that is, the Court was told the parents agreed that they were best for the child. They provided that the parents have equal shared parental responsibility. That is, the parents were to make the long-term parenting decisions about the child together. Various warning signs of a dysfunctional relationship were already present, with interim consent orders being made for the child to attend two different schools at the age of five on a week about basis. The two schools were 160 kilometres apart, but that reflected the towns where the parents then lived. In evidence, the mother said that they negotiated but no agreement could be reached so this was the only compromise that enables the child to start school.
Final orders were made five months after the interim orders and they contained a provision that the child would attend a local E Town primary school.
The 2013 final orders, again drawn by the parties, provided that they had to attend mediation when the child reached grade five to discuss her secondary education. To assist the parenting, each also consented to an order to attend a post-separation child-centred parenting course, but poignantly, at separate times from each other. Those were overt signs of future problems.
These sorts of consensual arrangements do not require close scrutiny by the Court (see s 60CC(5) of the Act). The Court is not obliged to consider the s60CC factors, but may do so. Clearly, the resources of the Courts cannot closely examine every parenting order and it is not the Court’s role to intervene in every aspect of the parenting of a child. However, s 60CA of the Act is a mandatory provision which says that in deciding whether to make a particular order, the Court must regard the best interests of the child as the paramount consideration. The use of the word “paramount” means that there are other possible considerations, but the Court must still look at the proposed orders and decide whether they meet that paramount test. In a busy Court, the consensual assurance of the parents that the test has been met is probably small comfort later when, as here, five years has passed by and the parents are still litigating and the dysfunctional issues that were apparent in 2013, are still apparent.
At some point, the Court has to also consider the public’s resources and the demands of other litigants who have problems which they have endeavoured to sort out unsuccessfully. In this case, no communication has occurred and no agreement has been reached.
The parties were back in Court in 2014 and on 4 August 2015, they again consented to orders for equal shared parental responsibility and for the father to spend time with the child. At that stage, his time was to be on alternate weekends in the first of two weeks and on one overnight in the second week. School holiday orders were also made. Clearly, having regard to what I have just said, the parties again told the Court that these orders were in the best interest of the child.
The 2015 orders had an element of “crystal ball gazing” about them because they predicted when the child would be ready for an increase in her time with her father. Pragmatic as that approach may be from a litigation perspective, common experience tells us that children’s development and capacity to change does not always follow a simple pattern dictated by age. In hindsight, the orders of 2015 look remarkably like they were placating parental desire, rather than focusing on the needs of the child. Proceedings began again 18 months later, leading to the present dilemma.
It is also important to note that Division 4 of Part VII (and s 63B of the Act is a good example) has specific provisions to deal with agreements if the parents are serious about cooperative parenting. Legal advisers have obligations to reflect upon, and draw attention to, the potential for a resolution of problems that way. That outcome has not happened here and with the parties’ inability to agree to even the simple things, there is little prospect of an agreement in the future.
Overregulation of the parenting obligations and responsibilities in this case has failed to solve the problem for the child. When the case began, the mother proposed 21 orders. The sorts of orders that had previously been made were intended by the parties to resolve all issues permanently. Notwithstanding my pessimism as just expressed, there must come a time for parents like these where they have to resolve dilemmas between themselves and reach agreement. Litigation is destructive which is why the Full Court in Rice v Asplund (1979) FLC 90–725 said that the Court should not lightly entertain an application to reverse an earlier custody order, because to do so would be to “invite endless litigation for…change is an ever present factor in human affairs”. Obviously, the lives of children do change and what was conceived as the solution no longer applies but the parties have an obligation to each other, as well as to the community, to sort out those problems as best they can to avoid litigation. In this case, the child has been involved in litigation for over half her life. That is inappropriate.
It is also trite to say that in circumstances where orders of the Court have failed to resolve problems, and negotiation does not resolve issues, the Court has to step in, but that means that the Court should have a careful look at the previous orders to see whether such things as proposing 20 or more orders in vague and general language, is a recipe for general failure. When I raised this with counsel for the mother, she agreed and then proposed a very simple set of orders.
The 2017 proceedings
In April 2017, the parties were back into court with the mother filing a curious affidavit without any application. It was apparently intended to indicate to the Court that it was designed to “update” the Court about ‘‘recent events”. That is not the task of the Court. The Court’s function is to quell controversies. The mother’s complaints were that the child, then aged nine, was found roaming the streets alone at night and the Department of Health and Human Services (“the Department”) at state level became involved.
The father joined issue with the mother by filing a response through lawyers whom he had engaged. Remarkably, his application sought equal shared parental responsibility, but this time, that the child live with him. So lacking in confidence in his own ability to assess what was good for the child, he proposed that the Court work out what time she should have with her mother. One wonders whether the order for equal shared parental responsibility was meant to say anything at all, bearing in mind the legislative pathway in s 65DAA of the Act about the sharing of time being contemplated if an order for equal shared parental responsibility was imposed.
The father, through his lawyers, filed a notice asserting that the child faced a risk of harm in the mother’s care because of her denigration of him, as well as her having been assaulted by her partner in the presence of the child and having made unsubstantiated allegations of sexual assault against him.
The father’s affidavit, contemporaneously filed, dealt with his complaints about the mother, but in respect of the “roaming” of the child along the streets of E Town, the father gave a plausible explanation that he had, by arrangement, been following behind her but had lost sight of her. Having now heard his cross-examination of the mother, I am not convinced that that explanation was adequate. I return to that below.
On 6 June 2017, the new application came before the Senior Registrar with all parties represented. Unsurprisingly, given litigation history, they reached agreement again then asked the Court to make consent orders. Significantly, the child’s time with the father was resumed. It had been unilaterally suspended by the mother although she said she had the imprimatur of the Department.
One order that the parties agreed upon was that until further order, the father, or an adult known to the child, be present at all times that the child was in the father’s care. Another order was that the father had to engage with a professional parenting organisation for “consideration” of age-appropriate boundaries. With respect to the person who drafted those orders, without some indication of why those orders would be successful in resolving the conflict between the parents, they were pointless.
On 29 August 2017, again before the Senior Registrar, further “tinkering” of the orders occurred, but everyone agreed that the case had to proceed to a final hearing because the father had an extant application for change of residence. The mother’s position as filed with the Court, was that the father have limited daytime contact with the child as a result of her concerns about his capacity to care for the child.
On 7 June 2018, Johns J set the case down for trial and made directions for the filing of evidence which included that the father file by 16 August 2018. As I have already indicated, the father failed to comply. Johns J also made an order that a family report be prepared, to be commenced after all of the evidence of the parties had been filed. That was to enable the family consultant to be aware of what each parent was saying about the other, without having to trawl through pages of previous documents that may or may not have been relevant to the issues for determination.
On 15 October 2018, Johns J held a case management hearing to ensure the proper use of the Court resources. Her Honour’s reasons for making orders on that day, which included the suspension of the father’s time were published. Her Honour said:
[5]When the matter was called on at the commencement of the day, the father did not appear. In the circumstances, the matter was stood down to enable inquiries to be made of the father to ascertain whether he intended to participate in the hearing. I directed the mother’s solicitor to forward an email to the father indicating that the matter would be stood down till 2.15pm and that I would likely deal with the application at that time. Messages were conveyed by the father to the Court and ultimately the father appeared at Court shortly after 3.00pm.
[6]The mother’s application is supported by the Independent Children’s Lawyer. The father, upon his attendance at Court, indicated that he opposed the mother’s application. It became clear during the course of discussion that the father had not received the Family Report of [Ms C]. Accordingly, the matter was stood down to enable the father to read and consider that report. As a result, the hearing did not commence before me until approximately 3:45pm.
The interim issue that day focused on the mother’s assertion that the father had been leaving the child unattended. Her Honour said:
[11]The mother’s concern that the father was leaving the child unattended was the catalyst for the commencement of the current proceedings, it being alleged that the father had left the child unattended in a supermarket.
Her Honour noted that the father had filed no evidence, despite the earlier orders. Her Honour helpfully set out the law which should have been a warning to the father as to what he needed to do. Her Honour noted the father’s views about some of the parenting issues that permeated this dispute and she did not agree with his perception. Her Honour said she was obliged to ensure that the child was protected from harm. I agree with her Honour’s remarks. Her Honour then suspended the father’s time save for allowing him some supervised time under the control of the paternal grandmother.
The position of the mother
Notwithstanding paragraph [16] of the reasons of Johns J of 7 June 2018[2], the mother did not file an outline of argument that complied. What was filed wandered through s 60CC headings, one of which referred to the impact of change on the child. It said that mother supported the child continuing to maintain a relationship with the father in a supervised setting. It said that after five years, the mother wanted orders that provided certainty for the child, yet her proposals would largely continue the unresolved issues between the parents.
[2] [2018] FamCA 875
The supervision anticipated by the mother was initially by the grandmother or some other agreed person. It was suggested that the father’s time supervised by the grandmother commence upon the grandmother giving an undertaking to the Independent Children’s Lawyer. That was inappropriate on the basis that it is the Court that needs the undertaking not the Independent Children’s Lawyer. It may be a contempt of the Court if the undertaking is breached. If the undertaking is given to the Independent Children’s Lawyer, a contempt prosecution may be very difficult.
At the hearing, the mother’s position changed after discussion and after I rejected the father’s proposed affidavit. Essentially, the mother and the Independent Children’s Lawyer sought that there be an order for sole parental responsibility in favour of the mother and a repeat of the previous orders that the child live with her. There was no provision in the mother’s proposal for the father to have time with the child, but that was on the very clear assumption that the father needed to get his house in order and put a proposal to her so that she could decide what was in the child’s best interest. Having regard to the five years of litigation and two previous final orders, it was very hard to argue with that concept.
The Independent Children’s Lawyer adopted a different position, seeking that the Court make orders in respect of the father’s time with the child on each alternate Sunday and various special days “upon the paternal grandmother or the paternal grandfather or such other supervisor proposed by the mother providing the mother an undertaking” in terms to which I turn next and which was to be filed with the Court. The logic behind this proposed order was explained as the child having a good relationship with her father but she needed protection because of the behaviour of the father.
The proposed undertaking was in terms that the person would “supervise” the child when with her father and “immediately cease” the time between the child and her father in the event that the supervisor had ‘‘concerns for the child’s emotional or physical safety”. With great respect, that undertaking is so vague as to what the responsibilities of the supervisor would be and how the supervisor would assess the subjective concerns about the child’s “emotional or physical safety” to be unworkable.
The same undertaking indicated that the supervisor would have read a pamphlet provided by Victoria Legal Aid, but that document was not included in the undertaking itself to be given to the Court. More significantly, notwithstanding the amendment of the minute to include a person as supervisor proposed by the mother, there was no evidence from either the paternal grandmother or the paternal grandfather. Quite concerningly, counsel for the independent children’s lawyer conceded that an undertaking had been asked of the paternal grandmother and she had not provided it. It is difficult where the Court has the ultimate responsibility for accepting the undertaking or rejecting it, to make any assessment of what was being suggested. Perhaps as a means of alleviating the concerns of the Court, counsel indicated that having spoken to the Independent Children’s Lawyer, the Court could draw comfort from the fact that she knew the grandmother and had reasonable dealings with her. With respect again, there was no such evidence from the Independent Children’s Lawyer before the Court.
I appreciate that these observations may not necessarily be directly on the issue of what is in the best interests of the child, but the Court’s resources must be used carefully and in parenting cases where the Court is obliged to hear final orders applications for the third time and where there have been over 20 hearings, consideration needs to be given to how a permanent solution can be obtained, having regard to the fact that that was the intention of the orders in the first place.
The father’s cross-examination of the mother
The mother confirmed that her concern was about the child being alone, not only by cycling, but also being at a park. Those issues were not entirely apparent from her evidence. However, the dialogue between the father and the mother in cross-examination soon exposed the dilemma. The father’s view was that the child had to learn confidence in herself and he considered her bike riding and attendance at a park without his presence enabled that confidence to build. He asked the mother whether she was aware that the child wanted these arrangements and that he had gone over the routes with the child before undertaking any such task. The mother said that she knew nothing of those arrangements and obviously, the objective evidence indicates that his plan was not successful. That can be seen from the evidence of Mr D.
Mr D, the foster parent, said that on the evening of 1 April 2017, the child attended at his home and he saw her to be distressed. He did not know who she was. He said she was on a bike without lights and it was nearly dark. He went to her and asked if she was okay and ironically, the child asked if his house was a “neighbourhood watch house”. He said the child was upset and distressed and had told him that her father had made her ride “around the city” and she was scared and did not want to go back to her father.
This evidence was not challenged by the father, but significantly, it was not just a case of having the child riding her bicycle. It was the fear of the child in circumstances where she did not succeed in doing what her father wanted that was of concern.
Mr D went on to say that he immediately rang the mother with the number provided by the child who was then collected.
The father’s cross examination of the mother ignored the evidence of Mr D as to the state in which the child was at the time Mr D intervened. It was nearly dark and there were no lights on her bicycle. She was lost. Concerningly however, the father asked the mother whether there was anything wrong with the child riding to a park to meet her a friend of the same age. He asked the mother whether she was aware that the child had done the sorts of things like riding a bicycle route “a dozen times” and the mother indicated that she was not aware. He asked the mother whether she was aware that the child “planned” these routes herself and again she was unaware.
I find in the circumstances the father has no insight into the dangers recognised by the mother of her daughter not only wandering around the streets of E Town but also wandering to a park in circumstances where he is not there to supervise. The father asked the mother at what time she considered the child would be able to do that and the mother was unable to say a precise age. I consider the mother’s views to be sound.
Another of the mother’s complaints related to the problems of the child not attending regular training (and competition) in ballet dancing. It seems this has been an issue since 2015. The father put to the mother in cross-examination whether she would prioritise ballet over what he described as “learning her culture from her tribal elders”. The “tribal elders” referred to in that question were then identified as his own parents who live apart. The mother said that she was not aware of any specific cultural learning or training undertaken by either of the parents other than occasionally, the child was taught certain words in their language and was able to repeat them.
From the mother’s perspective, learning about her cultural heritage had never been an issue when the parties were together. It may be, in fairness to the father, that the child was very young at that stage, so that learning process would be limited. However, the father asked the mother whether the child told her about the things that she was undertaking when in his care. The mother’s response was that she would be very surprised if the child would withhold anything and indeed, did tell her things but the issue of cultural heritage had not been raised.
Cultural heritage for all children is important, but as I observed to the father, unless the Court is told of these matters and some very clear indication of its importance is known, there is little the Court can do about it. In this case, the absence of material from the father made that task very difficult. The mother was not averse to the idea of the child learning about her cultural roots but was of the view that as they had not been highlighted, ballet was important as it was something that the child enjoyed. It is clear however the father resisted taking the child to the ballet and the prejudice to her was that she missed competitions and doing the things that she enjoyed. Again, drawing inferences from the questions asked by the father and the answers given by the mother, much of this cultural education was being undertaken by the grandparents rather than by the father.
Counsel for the Independent Children’s Lawyer cross-examined the mother about the nature of her relationship with the paternal grandparents. She said that she had had “not much involvement” with the paternal grandfather. She had seen him a few weeks before. She previously had a good relationship with the paternal grandmother but was not so sure at the moment. She had nothing unpleasant to say about the paternal grandmother and considered that any association involving the child would be workable. The concerning issue is that there was no evidence from the paternal grandmother and most importantly, no written document as requested by the Independent Children’s Lawyer to confirm her desire to be involved in supervising the child’s time with her father.
To the extent that it might be said that the father’s lack of legal representation contributed to this problem of calling evidence from the paternal grandparents, I would reject that. In a pre-trial hearing only weeks before this trial began, the paternal grandfather filed an application of his own, seeking a specific period of weekend time with the child to coincide with his birthday. No order was necessary on that day and his application was ultimately struck out when the parties reached agreement that the paternal grandfather could come to E Town from F Town by train and spend time with the child. The mother’s evidence was that that had occurred and had been successful. In addition, the paternal grandfather was sitting in the Court throughout the proceedings. No further application had been made by him for orders to involve himself in the child’s life.
There were other issues of concern to the mother. One such issue was that the child had been required by her father to work in a shop. The child had told her mother that her father was not supervising that time.
In what was described as ‘‘trust exercises”, the mother complained that the child told her in 2016 that her father wanted her to undertake some exercises at the age of eight, which included travelling alone as I have earlier described. In other words, the episode in April 2017 about which Mr D gave evidence, had been going on for quite some time prior to that. The child was then only eight years of age.
In March 2017, the child told her mother that she had been left alone whilst her father went to the supermarket. It was in the evening and it had happened a number of times. She said to the mother that she did not want to be alone and had begged to be allowed to go with her father but he had refused because she was nine years of age and needed to learn to “trust herself”.
Throughout 2017, when the child did spend time with the father, it required him to take her to school. In 2017, the child had been late or absent on 12 of the 13 days that she was in a father’s care. No explanation was forthcoming.
As a form of discipline, presumably something to do with religious education, the father required the child to recite psalms and when she had failed to satisfy him, he made her get out of the car and walk to wherever he was going. That form of discipline or teaching is inappropriate for a child of the child’s age. The father’s obvious defence of his method of parenting was palpable in the Court room and he saw no difficulty with what he was doing.
Another incident of concern was that the child had gone (on the date to which Mr D referred) to the supermarket to purchase fresh chicken. It seems that she was then required to chop up this fresh chicken to feed the dog and the child did not like it. The difficulty seemed to be that the child could not discuss the issue with her father who would not tolerate dissent.
Consistent with leaving the child at home while he went to the supermarket, the father had also taken the child to his work, where he left her in a room to occupy herself whilst he fulfilled his obligations. Lest there be any doubt about the Court’s concern here, many parents have to work and find ways of occupying their children while they do so. However, the father works in licensed premises, with many people presumably coming and going. To leave the child in those circumstances is inappropriate, particularly when he could have called upon the mother to take the child back or alternatively, approached his own mother. The absence of the paternal grandmother’s evidence in this case is quite concerning. That is so, where the mother said that the paternal grandmother had warned him about leaving the child alone but he had ignored her suggestions. The absence of the paternal grandmother in those circumstances gives rise to an inference she would not support the father’s arguments.
It is important to observe, having regard to what I have earlier said about the duration of this litigation, problems have been ongoing throughout 2018. Insofar as the issue of communication between the parents gives some insight into the future, the father’s questions were directed to how the mother could change. However, in February 2018, the mother sent a text message to the father about the importance of the child attending a ballet lesson and his response was:
I will not be consenting to a unilateral decision to prioritise ballet.
If this activity was moved to a Wednesday and the relevant assurance entered into regarding attendance then the child could use the freeded (sic) time of a Thursday for ballet.
The reference to the Thursday is important because that is the day that the child was spending time at the shop in his absence.
In February 2018 also, the mother described the child as very unsettled. At one point, the child broke down and said that the father had tape recorded her about her living arrangements and told her that if she did not get the right answers, he would tell her she was lying. According to the mother, the child told her that the father intended to use the recordings in Court. Absent some evidence of denial by the father, and there was none, that approach to parenting can only be seen as irresponsible.
In April 2018, the child met with the Independent Children’s Lawyer, but she spoke to the mother afterwards and told her that her father had said to be very careful about what she had said to the Independent Children’s Lawyer because “she will use what you say against you”. Unashamedly, this unchallenged evidence indicates that the father is embroiling the child in the legal dispute. It was the mother’s evidence that this sort of involvement in the conflict has been going on since the proceedings began.
The mother also said that in April 2018, the child told her that the father flicked her with his hand on her forehead if she got frustrated with something. It was not suggested by counsel for the mother or counsel for the Independent Children’s Lawyer that that was some form of inappropriate disciplining or assault in the criminal law sense, but it is disconcerting that the child had to raise those issues with the mother.
In June 2018, the mother’s cousin saw the child walking along the G Street by herself. Unprotected and being put into a position where her father desired her to learn “confidence” is irresponsible parenting having regard to the child’s age. The evidence of the mother’s cousin was not disputed.
The family report
I have already mentioned the family consultant, Ms C. As earlier indicated, the father attended for interview a day late. He claimed that the correspondence he received from the Court listed his appointment for that day. The mother’s evidence however, was that at the hearing on 7 June 2018 when Johns J made the order for the attendance of the parties upon a family consultant, she said the father told her outside of the Court that he did not intend to attend. In reality, whether there was a mistake, and I have no indication one way or the other, the father’s lack of cooperation with the family consultant was quite concerning. Insofar as he asserted that there was a cultural issue, there are too many other examples to which I have just referred about his approach to how things should be done to decide what is best for the child.
The family consultant obviously did not have the opportunity to test some of the propositions put by the mother, or indeed have the opportunity to reality-test the statements of the child, not only because of the absence of the father but also the lack of an affidavit by him. Ms C said:
[22][The child] continues to be caught in the midst of the parents’ entrenched conflict and hostility, impacting on her emotional and psychological wellbeing. If this continues, there is a likelihood of long-term adverse consequences for her emotional and psychological wellbeing.
[23][Mr Lerner’s] desire to foster and enhance [the child’s] confidence, independence and self-reliance can be viewed as positive in principle, however, he continues to have unrealistic expectations of appropriate activities for a child of [the child’s] age, developmental stage and temperament. His actions, including having the child undertake ‘trust exercises’, and what appears to be punitive consequences for not meeting his expectations, for example, [the child] not reciting psalms correctly resulting in her being made to exit the car and walk, without knowing where she was and when/if she might catch up with her father, potentially places her at risk of physical harm. However, from her own narrative, these experiences undoubtedly cause her great distress and anxiety. Such actions could be considered as emotional abuse, particularly for a child who is known to be prone to anxiety.
[24]Whilst not being able to attend her ballet classes, an activity about which she is passionate, as well as not being able to participate in a range of extracurricular team sports, cannot be considered a risk to [the child’s] physical safety, the potential for this to pose a risk to her emotional and psychological wellbeing must be considered. Participation in such activities provide children with opportunities for social connection, opportunities to achieve their goals and thereby enhance their self-esteem, as well as opportunities to learn and experience the important dynamics inherent in being part of a team. [Mr Lerner’s] refusal to facilitate [the child] participating in these activities robs her of these opportunities. [The child] is now at an age where she is beginning to recognise the discrepancies in each of her parent’s active support and encouragement for pursuing her interests.
In respect of her interaction with the father, I have already indicated his blunt response. I do not accept that was appropriate bearing in mind Ms C’s expertise and obligation to assess and evaluate the nature of the relationship between the adults and the child. If he was suggesting bias, he could have dealt with that by cross-examination.
When the family consultant interviewed the child, she opined the following:
[44][The child] is in Grade Five. Her mother advised she is achieving well within the academic standards expected at this level and she enjoys positive relationships with her teachers and her peers. Her mother described her as being kind, caring and compassionate. There are no concerns about her behaviour at home or at school. Subpoenaed documents from [H School] contain [the child’s] school reports to Year Three. These reports confirm [the child’s] consistent standard of academic achievement, and both her behaviour and her effort in class, are consistently ranked as ‘excellent’. [The child] enjoys arts and crafts, she is passionate about dancing, including ballet and she loves to sing.
[45]When asked why she thought she was meeting with the report writer on this occasion, [the child] said: “I’m coming to Court, because of course I want to be able to spend time with dad, and, to see how things have been going since the last time [at Court].” When invited to comment on ‘how things are going’, [the child] indicated some things “are heaps better”, listing arriving to school on time most Fridays , and no longer being left at home alone, as areas that have improved.
The child repeated the details outlined in the mother’s evidence to the family consultant. The family consultant said:
[59]When asked directly whether [the child] wanted anything to change or remain the same, with regard to the current parenting arrangements, the child indicated she was “happy with how it is now, except for being scared when dad makes me get out of the car and walk when I don’t know where I am”. the child also expressed a clear and impassioned plea to be able to attend ballet classes each and every week.
…
[61]Given [the child] has reportedly disclosed to her mother that on occasion, her father has flicked her on her forehead if she has displeased him in some way, [the child] was asked directly about physical punishment, by either parent. [The child] shook her head, indicating that this does not occur.
Finally therefore, the family consultant opined:
[67]The father’s continuing pattern of behaviour is concerning. He appears not to be able to consider any point of view that does not accord with his own and inherently believes that his actions are justified and will result in the child becoming more self-reliant. He demonstrates limited understanding of what is appropriate for a child of [the child’s] age, stage of development and her temperament.
[68]In principle, [Mr Lerner’s] intent is sound, however, his parenting style impresses as being rigid, and does not allow the child to grow and develop at her own pace, within the normative parameters of her age and developmental stage. His expectations of [the child] are inconsistent with her age and developmental stage. Not only do his actions pose a risk to [the child’s] physical safety, her emotional and psychological wellbeing have been adversely impacted.
…
[75]Whilst [Mr Lerner] has indicated that he is committed to being an active parent in [the child’s] life, including seeking to ensure that she is prepared to deal with the challenges that she might encounter in her adult life, he displays significant disregard for [the child’s] current developmental needs and continues to engage in behaviour that causes her emotional and psychological harm, in pursuit of his own goals, including his parenting style. He appears to have little understanding about the impact on [the child]. [Mr Lerner] has to date, demonstrated little capacity or willingness to actively support [the child] in pursuit of her own interests and goals, for example, consistent attendance at ballet classes, a source of great enjoyment for her for the past five years, which suggests that he is not willing to prioritise her needs and wishes, over his own.
…
[77][Mr Lerner’s] presentation is of a man with very firmly held views and beliefs, and a sense of entitlement, with the right to parent his child as he sees fit. It appears to be unlikely that he will engage with or derive any benefit from any services that might provide parenting education and an enhanced understanding of child development.
There is no basis for me to find anything other than those observations are well-founded in the evidence. I accept those opinions.
the parties final positions
The father’s position was that the Court should simply remove the suspensions made by Johns J and return his time as had been previously agreed between the parties in the final orders. He went further however and suggested that if a public holiday on either the Monday or the Friday before his weekend occurred, his time should be extended. He did vaguely acknowledge that if there was to be any supervision, it should be for a short period of time to enable him to demonstrate behavioural change. I am doubtful that any such change would be observed in circumstances where no evidence was provided. If he can show change, the mother has agreed to change her stance,
The father submitted that the Court should keep in place the order for equal shared parental responsibility but his whole cross-examination was about the fact that there was no communication about any decisions, let alone major long-term ones, in respect of the child.
Having made my position clear about a reluctance to have his mother or father as the potential supervisor, I asked the father whether he would agree to a contact Centre. He responded that he could never be a father to the child at that environment because he had done it before and knew what it was about. At one point, he indicated that it might be better if he just walked away from the child’s life.
I make abundantly clear that the absence of any evidence from the father makes it very difficult for the Court to assess any proposals and have them tested. As I observed, orders of the Court are subjectively designed to guide the parents’ decision-making, and time with the child, for her future. However, the parties are always at liberty to depart from those orders and themselves decide what is best for their daughter. The very provision to which I have referred earlier about a parenting agreement is an opportunity for the parties to put into writing what their agreement for the future should be.
In this case however, the motivation to change to a cooperative parenting relationship has to come from the father. I accept the mother has now reached the point where she has run out of ideas as to how to deal with the father and his approach to such things as the ballet, the “trust exercises” and the child being alone in a park. These are clear indications that the philosophical and ideological views of these parents are miles apart. In my view, having heard the mother’s evidence, there is no reason why I should not accept that she is the responsible parent and that her views should be accepted.
An unacceptable risk?
The starting point of assessing risk to a child is to contemplate the precise nature of the orders sought by a party. If implemented, would those create a risk for the child and if so, could it objectively be said that the risk is unacceptable bearing in mind best interests’ principles?
The test of “unacceptable risk” was set out in M v M [1988] HCA 68; 166 CLR 69, at [25], where the High Court (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ) described the exercise as striving to achieve a balance between “the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. Their Honour’s observed that the test is “best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” To the extent that the parliament needed to say so, s 60CC(2A) of the Act solved that balancing dilemma if it was a dilemma at all. Undoubtedly however, this test requires the Court to assess future possibilities.
In Malec v J C Hutton Pty Ltd[1990] HCA 20; (1990) 169 CLR 638, the majority in the High Court said of possibilities:
[7]…The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.
The Court need not positively find the problem against which protection is necessary is a probability but rather a possibility. There has to be an identification of the risks and an assessment of their magnitude (see Deiter & Deiter[2011] FamCAFC 82). I have already made findings about a variety of incidents which have occurred but the unusual feature here is the father’s position not only in the orders he seeks but also his cross-examination of the mother make clear that he has no intention of changing his views about parenting.
In The Marriage of N and S (1995) 19 Fam LR 837; [1996] FLC 92-655, Fogarty J said (at 82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
I have considered the consistent pattern of problems all of which led to the inescapable conclusion that the risks relate not only to the child’s physical but also psychological health.
The extra-curial writings of the Honourable John Fogarty AM (see ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249) and those of B. Mahendra, an English psychiatrist and a barrister (see ‘Psychiatric Risk Assessment in Child and Family Law’ (2008) 38 Family Law 569) indicate that the relevant assessment requires answers to the following questions:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
I agree that those are the appropriate questions to ask.
I find the possible outcome for the child is harmful if the father’s parenting ideas are not curtailed and controlled. In this case, the possibility can be seen as more probable than not. The risks for the longer term are great as there is no indication of any change in the father’s views about how to parent the child. Absent a controlled and restricted environment of formal supervision, the risk of physical and psychological harm to the child is high. The only way I can see that the child can have that risk ameliorated is for the father’s time to be supervised at a contact centre. If the parties agree there is no further need for that, they can make whatever arrangements they consider appropriate.
The contact centre should be aware that the orders are designed to prevent:
a)The father removing the child to places around E Town where he can engage in what he calls “trust” exercises. The reasons above indicate the prevalent risks;
b)The father says things to the child and requires her to undertake tasks which are disturbing the child because she fears his reactions if she does not do what he wishes or she gets it wrong. Thus any conversation about trust exercises and cultural obligations taking priority over her interests such as ballet should not take place.
c)The father from denigrating her mother.
To the extent that the person in charge of the supervision considers it of benefit to the child, the Court’s view is that cultural issues may be discussed including through the attendances of the paternal grandmother and grandfather but the supervisor needs to be conscious of (b) above. The Court clearly understands the clinical nature of the environment in which supervision occurs and thus, variations can be considered to make that environment more comfortable for the child but again, the issues in (a) to (c) above must be kept in mind.
Parental responsibility
I have already dealt with the statutory presumption in s 61DA of the Act. I find that s 61DA(4) of the Act applies here, because there is no prospect of communication between the parents about major long-term parenting issues. The absence of communication puts the child at risk where her education and health will be important as she enters her teenage years.
The father sought equal shared parental responsibility as the previous orders had dictated. Those orders have failed; I find there is no prospect of the parties being able to meet the requirements of s 65DA of the Act. The mother has fulfilled the major responsibilities for the child and is the person upon whom the child most relies. She should have sole responsibility.
For the benefit of the father, he should understand that the responsibilities about which these orders are to revolve concern major questions. The first issue is the list of things known as major long-term issues whilst the other is everything that comes with being a parent. My focus is on the major long-term issues.
“Major long-term issues” is defined in s 4 of the Act:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
An issue which was raised by the mother concerns having a passport for the child. It has not been suggested that there is any flight risk issue here. The issue of a passport in Australia is governed by the Australian Passports Act 2005 (Cth) (“the Australian Passports Act”). Section 11 of the Australian Passports Act provides that the Minister must not issue a passport to a child unless each person who has parental responsibility for the child consents or (amongst a number of things) an order of a Court permits the child to travel internationally. The Australian Passports Act also now provides a definition of parental responsibility which recognises the loss of that responsibility by Court order. I intend to make that order here, but I also see no reason why the child should not have the right to travel internationally as the father filed no material to suggest the mother was a flight risk.
The best interests principles
I turn then to the best interests principles.
The father maintains he is entitled to parent as he sees fit, particularly in relation to passing on his cultural background, but what if that clashes with safety? The answer lies in s 60CC(2A) of the Act. Although that provision relates to a different issue, the Parliament has made clear that the obligation on the Court is to give greater weight to the protection of the child over other issues. That makes sense, because without that protection, culture may not be enjoyed. Additionally, s 60B of the Act refers to the Parliament’s intention by its reference to the objects of Part VII in the Act as including the protection of children from physical or psychological harm. Therefore, whilst the interests of the child are not the only consideration, that is, the parents’ wishes must be considered, her protection prevails over father’s desire to pass on his culture.
I have already largely dealt with the primary considerations. The reasons above outline my reasoning. Insofar as s 60CC(2)(a) and (b) of the Act, the child knows and loves both of her parents. Ms C said:
[69][The child] loves her father and wants a relationship with him, clearly stating she wishes to continue to spend regular time with him. However, [the child] continues to struggle and accept her father’s motives to prepare her for adulthood and whilst she tries to recognise the benefits to her inherent in her father’s motives, she struggles to reconcile this with the feelings of apprehension, fear and abandonment that such experiences engender in her.
The observation of the family consultant is that there is a meaningful relationship between the child and her father but the function of the Court is to look at what benefit the child receives from that relationship. The latter part of Ms C’s observation indicates that the child recognises there is benefit for her, but struggles to accept it because of the behaviour of her father. There is clearly benefit for the child in enjoying the relationship she has with her mother and at [43] of the expert’s report, she described the child is presenting as a “polite, friendly and articulate child”. She was described as achieving well within the academic standards expected at grade five and there were positive relationships with her teachers and her peers. The mother described the child to Ms C as being kind, caring and compassionate. The child’s relationship with her mother was unchallenged by the father and those observations are therefore indicative that the child does benefit from the close relationship she has with her mother. It is important not to put that relationship at risk.
The risk to an unconstrained time with her father has been set out earlier. It includes being left at home alone and creating fear in the child’s mind. It includes fulfilling her father’s demands, even though she finds some of his tasks abhorrent. It includes participating in “trust exercises” but not knowing more than that they are designed to “prepare” her for future life in circumstances where she acknowledges the fear of being alone or where there could be strangers. It includes the psychological consequence of thinking that if she did not do what her father wanted, her mother would be blamed and her father would be angry which could lead to the child doing what her father wanted just to protect her mother.
Ms C was concerned about the confrontation between the parents, predominantly because the child is exposed to the conflict. Ms C thought the child would find those traumatic and that was evident by the fact that the child remembered them. In respect of two such incidents, the police attended in one and in the second in May 2017 which occurred at the child’s school, she was concerned that her mother had been injured. The child deserves better than that.
It was the unchallenged evidence of Ms C that the father’s actions posed a risk to the child’s physical safety and her emotional and psychological well-being had been adversely impacted. I accept that opinion.
To the extent that any of the s 60CC(3) factors are relevant, the following are findings.
For the purposes of s 60CC(3)(a), (b), (c) of the Act, I find that the child clearly wants a relationship with her father and is conflicted by her fears of being hurt, as well as doing the wrong thing by him. Her views must be outweighed by the obligation of the Court to protect her from harm. Her relationship with the father is as I have earlier described it but it is important to protect her relationship with her mother first as the primary person in her life. There are clearly relationships to be considered with her grandparents, but as no evidence was presented, I can give them no weight. Whilst I accept that the father has intended to be a participant of significance in the child’s life, his lack of understanding or concern about the impacts on the child in what he does, leads to the inevitable conclusion that there is a risk of harm to the child which must be stopped.
For the purposes of s 60CC(3) (d), (f) of the Act, I find even if the father considers the contact centre constraining of his freedom to do what he wishes and enjoy his time with the child, he can at least continue to do things that she finds enjoyable. The onus will be upon him then to show to the mother that there is a better way and he can put proposals to her to move away from the contact centre. Counsel for the mother indicated that her client was attracted to that idea, I have no reason to doubt the mother is sincere in wanting the father to have a significant part in the child’s life and her protective attitude is responsible. There will undoubtedly be confusion in the child’s mind as to why this change should occur, but the parents have an obligation to explain that on the basis that it will overcome all of the child’s problems as earlier mentioned.
In relation to the capacity of the parents to meet the emotional and intellectual needs of the child, I am satisfied that the mother poses no risk to the child, but I otherwise rely on the earlier observations about my concerns about the father. His capacity is lacking, not only for those reasons, but also the complete absence of evidence as to how he raises the child.
For the purposes of s 60CC(3)(e) of the Act, I consider there will be problems associated with the contact centre, because I have no indication as to how quickly that can commence, but I am satisfied that the mother is a responsible parent who would not malevolently deprive the child of the enjoyment she does have with her father. To that extent, I repeat that it is a matter for the parents to work out some alternative that does not exacerbate the risks to which I have earlier referred. To the extent that the orders are restrictive, both parents are at liberty to alter them by agreement. Absent agreement, the orders prevail.
Other issues in the statutory considerations are not relevant here.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 December 2018.
Acting Associate:
Date: 5 December 2018
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