TRIGGS & TRIGGS

[2015] FamCA 538

FAMILY COURT OF AUSTRALIA

TRIGGS & TRIGGS [2015] FamCA 538

FAMILY LAW – CHILDREN – Best Interests – Where the applicant, the child’s biological father, underwent hormone therapy to re-assign his gender to female – Where the child is completely estranged from the applicant – Child’s views – Where the child is strongly opposed to any form of interaction with the applicant – Where the evidence does not establish the applicant sexually abused the child or poses an unacceptable risk of harm to the child by sexual abuse – Where the respondent’s inability to solve the child’s school truancy is a limitation upon her parenting capacity – Where both parties experience fragile psychological health – Where the child’s emotional needs are more likely to be met living with the respondent and his siblings – Sibling relationships – Where, on balance, residence with the respondent is more likely to advance the child’s interests – Child to live with the respondent – Where forcing the child to recover his relationship with the applicant may cause even more permanent deterioration of their relationship – Child to spend time with the applicant only in accordance with the child’s expressed wishes – Applicant permitted to correspond periodically with the child

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe both parties engaged in family violence – Where there is no communication between the parties and the only tenable outcome is for one party to have exclusive parental responsibility for the child – Respondent to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B

APPLICANT: Ms A Triggs

RESPONDENT: Ms E Triggs

INDEPENDENT CHILDREN’S LAWYER: Ms Alexander, Legal Aid NSW

FILE NUMBER: NCC 1506 of 2014

DATE DELIVERED: 9 July 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 30 June & 1 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Murray

SOLICITOR FOR THE APPLICANT: Toronto Legal

COUNSEL FOR THE RESPONDENT: Ms Carty

SOLICITOR FOR THE RESPONDENT: Brennan Tipple Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karragiannis

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

Orders

1. All former orders relating to the child B, born … 2000, (“the child”) are discharged.

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

3. The child shall live with the respondent.

4. The parties shall take all reasonable steps to ensure that the child spends time with the applicant in accordance with the child’s expressed wishes.

5. The parties shall take all reasonable steps to ensure that the child is able to communicate with the applicant in the following manner:

   (a)By the applicant being able to send letters, cards, and/or gifts to the child on or about dates proximate to the child’s birthday, the applicant’s birthday, and Christmas Day; and

   (b)By the respondent promptly sending to the applicant:

   (i)Written acknowledgement of receipt of the applicant’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the applicant.

6. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

7. The respondent shall notify the applicant of any medical emergency, illness or injury suffered by the child whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the applicant about the condition and treatment of the child.

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

9. Pursuant to s 68B of the Family Law Act, the applicant is restrained from entering upon or approaching within 100 metres of the school attended by the child, other than when arranged by advance appointment for the purpose of consulting school staff about the child’s academic progress and at times when the child is not present at the school.

10. The respondent shall take all reasonable steps to ensure that the child continues his psychological therapy with counsellors at E Centre, or at such other place nominated by a counsellor of that organisation, for as long as the child’s counsellor/s deem necessary.

11. Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address and mobile telephone number.

12. Within seven days hereof the respondent shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to him the effect of these orders and the reasons for such orders.

13. Leave is granted to the parties to furnish a copy of these orders to the principal of any school attended by the child.

14. Leave is granted to the respondent to furnish to any counsellor providing therapy to the child:

    (a)       A copy of the Family Report dated 15 April 2015;

    (b)       A copy of these orders; and

    (c)       The reasons published by the Court for these orders.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, 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.

16. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

17. Any and all other outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Triggs & Triggs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1506 of 2014

Ms A Triggs

Applicant

And

Ms E Triggs

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the care arrangements for the youngest child of the applicant and respondent, who is now nearly 15 years of age (“the child”).

2. The child has been completely estranged from the applicant for the last two years but, regardless of that impediment, the applicant proposed that the child’s residence be reversed. The respondent instead proposed that the child remain living with her. An ancillary dispute over allocation of parental responsibility for the child also occupied the parties.

3. Two other children are relevant to the litigation, but neither will be the subject of any parenting orders. The respondent’s eldest child (“Mr C”) was born during an earlier relationship, but he lived with the family for most of the parties’ cohabitation and believed the applicant was his biological father until his adolescence. He was born in 1991 and is now an adult. The parties’ eldest child (“Ms D”) lived with the parties during their cohabitation. She was born in 1993 and is also now an adult.

Background

1. To say that the parties and the child have each endured considerable emotional pain would be a momentous under-statement.

2. In July 2010, after 18 years of cohabitation, the respondent arrived home one afternoon to find the house unusually quiet. Mr C and Ms D were seated together in silence and, when the respondent asked them what was wrong, they both pointed to the parties’ bedroom. The respondent entered the bedroom and found the applicant not looking himself. He was seated on the bed, dressed as a woman, and said to the respondent:[1]

   What would you do, I have always felt that I am a woman trapped in a man’s body.

   [1] Applicant’s affidavit, para 12

3. The applicant did not reveal it to the respondent, but he was born with both male and female genitalia. His small vaginal opening was surgically closed after birth. While a male child, he always experienced confusion about his gender, which confusion his parents tried to correct by physical discipline and by his submission to electro-convulsive therapy. He suppressed his urge to identify as female, eventually married the respondent, and had two children with her. In 2009, during surgery to remove some cancerous tissue, a full female reproductive system was found within the applicant’s abdomen.

4. The applicant’s desire and intention to identify as a female was forcefully revealed to the family that day in July 2010. Thereafter, the applicant dressed in female clothing around the house and began hormone therapy to re-assign his gender to female. The applicant also subsequently changed his first name to a female name, which change is now recorded on her birth certificate. The applicant is now a woman.

5. The applicant honestly believes the harsh treatment she endured as a child and the suppression of her true gender identity for decades caused her to suffer emotional and intellectual impairment.[2] However, she was not the only one who suffered. The sudden revelation of her changed identity in 2010 also undoubtedly fractured the emotional stability of the respondent and the child.

   [2] Applicant’s affidavit, paras 20-22

6. The respondent had always believed she was married to a man. On the day she saw her husband dressed as a woman in their bedroom and was informed by the applicant she was really a woman, the respondent walked out of the room speechless and from that moment regarded their marriage as over. Although the applicant deposed the marriage ended in December 2009,[3] I accept it was in July 2010 as the respondent alleged.

   [3] Applicant’s affidavit, para 9

7. The children were similarly astonished by the applicant’s transformation. Mr C described it as “a massive bombshell” and Ms D described being “totally shocked”. Ms D told the Family Consultant that the child screamed when he saw the applicant dressed as a woman on that occasion in 2010.[4] Even the applicant admitted the child seemed shocked.

   [4] Family Report, paras 70, 82

8. The parties separated after that incident, but lived in the same house for about the next 12 months. The respondent vacated the household in June 2011,[5] leaving Ms D and the child in the residential care of the applicant.

   [5] Respondent’s affidavit, para 8

9. Two months later, on the child’s 11^th birthday in 2011, the police were summoned to an incident at the child’s school involving the applicant and the child. The child refused to leave the school with the applicant. Following that incident, the child and Ms D moved to live with the respondent,[6] and they have lived with her ever since.

   [6] Respondent’s affidavit, para 10

10. Within the next week or so, Mr C made allegations to the police of his sexual abuse by the applicant, which resulted in the police issuing an apprehended domestic violence order against the applicant for the protection of Mr C. Some months later, in January 2012, the interim order was converted to a final order of 12 months duration and both Ms D and the child were included within the order as “protected persons”. Relevantly, the order effectively precluded any interaction between the applicant and the child.[7]

    [7] Applicant’s affidavit, para 10, Annexure D

11. The apprehended domestic violence order expired in January 2013, though the child did not apparently begin visiting the applicant until June 2013. Thereafter, the child visited the applicant on about six or eight occasions, approximately fortnightly, but all visits ceased in August 2013, following a telephone call between them on the child’s 13^th birthday. During that telephone call the child accused the applicant of sexually assaulting both him and Mr C and, although the applicant denied any such impropriety to the child directly, the child then severed contact with the applicant.[8]

    [8] Applicant’s affidavit, paras 17, 32; Respondent’s affidavit, paras 21-22

12. The allegations of the applicant’s past sexual abuse of both the child and Mr C were unsubstantiated by the authorities after thorough investigation. The applicant was not, and will not be, charged with any offence arising out of those allegations.

13. The applicant commenced these proceedings nearly a year later in June 2014. The parties’ respective proposals for interim parenting orders were determined on 19 December 2014, when orders were consensually made to ensure the child’s attendance at school, to restrain the applicant’s attendance at the school, and to restrain the parties’ denigration of one another. No orders were made allocating parental responsibility for the child or regulating his care arrangements.

14. As things stand, the applicant, respondent, the child, Ms D, and Mr C have all been diagnosed with depression and anxiety, for which conditions all of them are either medicated and/or counselled.[9] The child has not visited or communicated with the applicant since August 2013.

    [9] Memorandum, pages 2, 3; Family Report, paras 19, 26, 46, 93, 101

The proposals

1. The applicant pressed for the orders set out within her Initiating Application filed on 16 June 2014. In essence, she sought equal shared parental responsibility, for the child to live with her, and for the child to spend time with the respondent on alternate weekends, during school holidays, and on other special occasions.

2. The respondent abandoned the orders proposed within her Response filed on

   
   

   18 September 2014 and instead adopted the orders proposed by the Independent Children’s Lawyer. She proposed one supplementary order, contained within a tendered minute,[10] which required her to consult with and notify the applicant about major decisions related to the child, notwithstanding such decisions were reserved to her as part of her exclusive parental responsibility for the child.

   [10] Exhibit R1

3. The Independent Children’s Lawyer tendered a minute of the orders she proposed,[11] which entailed the respondent having sole parental responsibility for the child, the child living with the respondent, and the child spending time and communicating with the applicant only when he wanted to do so. Proposed orders to that effect were foreshadowed by the Independent Children’s Lawyer in her Case Outline, filed and served in advance of trial.

   [11] Exhibit ICL4

The evidence

1. The applicant relied upon her affidavit filed on 5 June 2015.

2. The respondent relied upon her affidavit filed on 3 June 2015.

3. The parties and Independent Children’s Lawyer all relied upon the two documents prepared by the Family Consultant – the Memorandum dated

   
   

   7 October 2014 and the Family Report dated 15 April 2015.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. 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 with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply 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 equal 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).

5. 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 best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, 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).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. The nature of the child’s relationship with the mother was the subject of very little evidence. The Family Consultant remarked only that she agreed with some clinical notes from May 2013, produced by the NSW Department of Family and Community Services (“the Department”), which suggest the child may experience “ambivalent/disorganised parental attachment”, presumably to both parents.[12] The child’s own clinician noted in July 2014 that the child finds it difficult to separate from the mother,[13] despite being aged nearly 14 years at that time.

   [12] Family Report, para 92

   [13] Family Report, para 99

2. Even if the child’s attachment to the respondent is “ambivalent” or “disorganised”, he at least has a relationship with her. It may not be as important, significant, or valuable as a filial relationship should desirably be, but it is an important relationship in his life nonetheless.

3. By comparison, the child has no relationship at all with the applicant, to whom he is vehemently ill-disposed. He openly disparages the applicant, referring to her as “it” and “freak”, rather than “him” or “her”.[14] No doubt his attitude is terribly hurtful to the applicant, who believes the child is influenced by the respondent to reject her.[15] While that may be the applicant’s honest belief, any undue influence of the child by the respondent and his siblings is not the only plausible explanation for his attitude. He was brutally confronted by the applicant’s gender re-assignment. Understandably, the mother maintained it was a “terrible shock”, which the child found “far too confronting”.[16] The Family Consultant, whose opinion I accept as correct, considered the child’s own significant traumatic reaction to that fact and his past exposure to family violence between the parties is as much the cause of his antipathy towards the applicant as any influence exerted by the respondent or his siblings.[17]

   [14] Family Report, paras 57, 58, 63

   [15] Family Report, para 35

   [16] Family Report, paras 45, 47

   [17] Family Report, paras 62, 65

4. The applicant seemed to believe that if orders were made for the child to live with her, the orders could be readily implemented and, within a short period of time, the child’s antipathy towards her would dissolve and their previously harmonious relationship would be seamlessly restored. Such belief, however, was probably a triumph of hope over reality. The depth of the child’s opposition to any relationship with the applicant would just as easily, and perhaps even more probably, result in the child’s violent repudiation of such orders and the hardening of his resolve to reject the applicant.

1. Whatever be the actual cause of it, there can be no doubt the child is strongly opposed to any form of interaction with the applicant. He told the Family Consultant he had blocked the applicant from all forms of social media, as he did not want her to know anything about him. He furthermore told the Family Consultant he does not want a relationship with the applicant and would refuse to spend time with her, even if orders were made compelling it.[18] He told his counsellor he would “kill himself” if forced to live with the applicant,[19]  and he told the respondent he would “commit suicide” if he is forced to even see the applicant.[20] 

   [18] Family Report, paras 63-64

   [19] Exhibit ICL2

   [20] Respondent’s affidavit, para 24

2. While the child’s expressed views are a consideration under s 60CC(3)(a) of the Act, the correlation between his views and his deteriorated relationship with the applicant may be conveniently acknowledged at this point.

3. The futility of any orders providing for future interaction between the child and applicant is a strong consideration, given the child is described as a large

   
   

   15 year old adolescent who has the firm inclination and the physical strength to resist implementation of them. The Family Consultant emphatically concluded the child’s affront at the applicant’s gender re-assignment impedes any reparation of their filial relationship,[21] even aside from the allegations of sexual abuse, which need to be separately addressed under s 60CC(2)(b) of the Act.

   [21] Family Report, para 108

Section 60CC(2)(b)

1. Ms D has never made any allegation of her sexual abuse by the applicant.

2. Mr C’s allegation of his sexual abuse by the applicant, which allegation he made in August 2011, was not substantiated upon investigation by the authorities. Mr C was formally interviewed,[22] but the applicant was never charged with any offence. An apprehended domestic violence order was made against the applicant on the strength of Mr C’s complaint, but that order expired in January 2013.

   [22] Respondent’s affidavit, para 23

3. Mr C conferred with the Family Consultant in April 2015. He alleged he was sexually abused by the applicant over a period of years when he was aged 17 to 21 years,[23] but it is unlikely his allegations were truthful for several reasons.

   [23] Family Report, para 75

4. First, it is inherently improbable the applicant was able to force his unwilling involvement in sexual activity, repeatedly, over a period of years, while he was an adult. He was unable to offer the Family Consultant any logical explanation for why the applicant would wait until he was an adult before sexually abusing him, but not take advantage of his vulnerability during childhood.

5. Secondly, Mr C turned 20 in late 2011 and 21 in 2012. Both birthdays post-dated his allegations of the sexual abuse by the applicant, made in August 2011. It is highly improbable any sexual abuse continued for many months, if not years, beyond the time of his formal report of the abuse to the authorities, about which nothing was done.

6. Thirdly, he was still prepared to describe the applicant to the Family Consultant as “a good stepdad” and speak positively about her.[24] It is unlikely he would have done so if the allegations of his sexual abuse by the applicant were true.

   [24] Family Report, para 72

7. Fourthly, the Family Consultant formed the impression he was exaggerating during their interview “in a desperate attempt to keep his family together”.[25] Mr C was not a witness at trial so his demeanour could not be independently assessed, but the Family Consultant was not challenged about the accuracy of her description of Mr C’s presentation.

   [25] Family Report, para 67

8. The child’s allegation of his sexual abuse by the applicant was also unsubstantiated by the authorities, most probably because the evidence about the alleged abuse was wholly unsatisfactory. The formal investigation is now complete and no action will be taken.[26]

   [26] Exhibit ICL3; Family Report, para 89

9. Some weeks after Mr C alleged his own sexual abuse by the applicant in August 2011, a report was made to the Department that the child was similarly sexually abused by the applicant. Apparently, in the context of Mr C’s recent disclosure of sexual abuse, a maternal uncle asked the child “did dad touch you?” to which the child responded “yes”.[27] Why that conversation would have elicited alarm defies logical explanation, because the applicant presumably frequently touched the child on different parts of his body. He would have done so much like any parent when, for example, they played together or he demonstrated affection for the child by hugging him. Nevertheless, the maternal family reacted histrionically to the child’s answer, imputing the child was “touched” sexually, and a report was made to the Department.

   [27] Exhibit ICL1

10. However, the report made to the Department was quite different and bore no correlation at all with what the child told the maternal uncle. It was reported the child had “engaged in oral sex with [the applicant]”,[28] which allegation replicated the allegation formerly made by Mr C. That allegation was false, because the mother later admitted to staff of the Department that the child had “[made] no disclosure regarding being the victim of oral sexual abuse”.[29]

    [28] Exhibit ICL1; Family Report, para 95

    [29] Exhibit ICL1

11. Arrangements were made for the child to be formally interviewed by Departmental staff, but he was unwilling to participate. A second interview was arranged several weeks later, during which the child “had some difficulty in demonstrating competency in relation to truth and lies [sic]”. Importantly, he made no disclosure of any sexual abuse, even when prompted in the interview with a “body chart”. Staff of the Department contacted the child’s counsellor and confirmed the child had not made any disclosure of sexual abuse to the counsellor either. The Department did not even bother to contact the applicant about the allegation, there being no evidence at all to substantiate it.[30]

    [30] Exhibit ICL1

12. Two years later, in August 2013, when the child accused the applicant over the telephone of sexually assaulting both him and Mr C, he was undoubtedly referring to the previous allegations in 2011. The child did not see or speak with the applicant from August 2011 until they resumed visits in June 2013, and there was no suggestion the applicant sexually abused the child on the few occasions they spent time together between June 2013 and the fateful telephone call in August 2013.

13. The evidence falls far short of proving that the applicant sexually abused Mr C or the child. Nor is the evidence anywhere near strong enough to permit a finding that the applicant poses an unacceptable risk of harm to the child through his subjection or exposure to sexual abuse. The respondent and Independent Children’s Lawyer must both have realised that was so, since neither asked a single question of the applicant about the allegations during her cross-examination and neither mentioned the issue during final submissions. The applicant’s resolute denial of any sexual impropriety with the children remained unchallenged.[31]

    [31] Memorandum, page 2; Family Report, paras 24, 31

14. The parties both made allegations against the other about the past commission of family violence,[32] but it was pointless in the circumstances of this case for such contradictory evidence to be traversed in cross-examination. It was clear both parties had, at least to some extent, treated the other disrespectfully in a hostile and aggressive way in the presence of the child, so it did not matter who was most at fault. Neither relied upon the evidence to curtail the child’s future interaction with the other. The applicant considered the child should regularly spend time with the respondent and, conversely, the respondent considered the child should spend as much time with the applicant as the child wanted.

    [32] Applicant’s affidavit, para 52; Respondent’s affidavit, para 16; Family Report, paras 29, 43

Best interests of child – additional considerations

1. The nature of the child’s expressed views has already been discussed. It need only be additionally stated that, having regard to the child’s age, his views should be accorded considerable weight.

2. Otherwise, the only evidence of particular relevance to s 60CC(3) of the Act addressed by the parties and the Independent Children’s Lawyer was that which allowed inferences to be drawn about the parties’ respective parenting capacity.

3. It may be acknowledged at this point that neither party alleged the other was incapable of meeting the child’s physical needs. They are both capable of feeding, clothing, and housing the child.

4. The dispute, relevantly, narrowed to the parties’ respective capacity to meet the child’s intellectual and emotional needs.

5. The respondent has proven incapable of properly catering to the child’s intellectual needs. The child has been in her exclusive residential care since August 2011 and since that time his school attendance has been appalling. During cross-examination, the respondent admitted the child’s following truancy:

   (a)In 2013, 107 days absent and 42 days of late attendance;

   (b)In 2014, 142 days absent and 27 days of late attendance; and

   (c)So far in 2015, 42 days absent, with 21 explained by illness.

6. If those figures are not sufficiently startling, the following context will be instructive. Throughout 2014, when the child was notionally enrolled in Year 8 at secondary school, he only attended school on about 10 days in the whole year.[33] In the first half of 2015, while enrolled in Year 9 at secondary school, he has been absent for more than eight weeks out of a total of 20 weeks.

   [33] Family Report, para 44

7. An interim order was made in December 2014, with the parties’ consent, for the respondent to “ensure” the child attended school.[34] The mother’s contravention of that order remains pronounced. Even though she has managed to improve the child’s school attendance during 2015, the level of his truancy remains utterly unsatisfactory. The respondent asserted she did all she could possibly do to overcome the problem. Regrettably, her best has not been good enough. The Family Consultant observed in cross-examination the respondent’s conduct amounted to “educational neglect”, with which opinion I am inclined to agree.

   [34] Order 1.1 made on 19 December 2014

8. Even though the child may have resisted his attendance at school because he was bullied, parents have an obligation to exercise their parental responsibility in a way that overcomes such problems. School attendance is an important component of any child’s life. Not only does it ensure academic progress and qualify the child for transition to employment or tertiary education, just as importantly, it assists a child to socialise and acquire the skill necessary to cope with the slings and arrows of life and inter-personal relationships.

9. There is no evidence about the child’s school attendance record prior to June 2011, while he lived with both parties, or in the period between June and August 2011, while he lived with only the applicant, but it is difficult to imagine the applicant would do any worse than the respondent in ensuring the child’s attendance at school.

10. In all probability, the applicant has superior capacity to cater to the child’s intellectual needs. Nevertheless, the countervailing consideration is that the child’s emotional needs are more likely to be met living with the mother, Ms D, and Mr C.

11. Despite the applicant’s contention to the contrary, the respondent’s psychological health was not a significant feature of the evidence. The applicant’s proposal for the child to still spend substantial and significant time with the respondent betrayed the weakness of her assertion about the respondent’s emotional instability. Unfortunately, both parties experience impingement of their psychological health, so that of itself does not influence the outcome of the proceedings.

12. The applicant admitted to 3,000 past episodes of self-harm – such is the extent of the psychological trauma from which she has suffered in the past. She still receives a disability pension by reason of her deteriorated mental health. She was diagnosed for depression, for which she is still medicated, and Borderline Personality Disorder, for which she is currently receiving dialectic behavioural therapy. She last attempted suicide in October 2013, when she hung herself, and was last admitted to a psychiatric facility with suicidal ideation in

    
    

    April 2014.

13. The respondent admitted she has suffered from depression for the last 22 years. She has been medicated and counselled intermittently in the past. She admitted being the subject of a current “mental health plan”, formulated by her general practitioner in February 2015. She last inflicted injury upon herself by cutting her arm “a couple of months ago”. She presented to her general practitioner as recently as March 2015 with the child and her boyfriend, one of whom told the doctor they were worried the respondent would self-harm or commit suicide.

14. It may be the respondent’s psychological instability has been evident more recently, but the applicant’s own troubles are not so historic as to avert concern about her. Within the last year or so, they both suffered serious sequelae arising from long-term psychological ill-health.

15. For the applicant, in particular, the struggle to suppress her urge to reveal her true identity as a female dominated her life. After making the decision in 2010 to cease such suppression and then publicly identify as female, the struggle continues for acceptance of her new identity. Perhaps understandably, she is preoccupied with her emotional stability following the conscious decision to identify as female, but her concentration on that aspect of her life has taken precedence over her appreciation of the emotional needs of the child.

16. The applicant cannot genuinely appreciate the degree of shock she induced in the child, who remains confused by the transition he witnessed his father make. The applicant did not seem to appreciate the significance of how she is no longer a male role model for the child, as fathers traditionally are. At best, she is now another maternal influence, which role has always been fulfilled for the child by the respondent. The applicant cannot genuinely appreciate the gravity of the embarrassment felt by the child coping with the enormity of that change, which overlays the other emotional problems which confront him.

17. Ms D articulated the nub of the problem best, when she simply said to the Family Consultant:[35]

    It all went wrong after dad changed.

    [35] Family Report, para 83

18. The child’s prospects of coping with such a profound change in his life were very remote if even Ms D reacted so badly. The applicant does not really even appear to understand the depth of the child’s own problems. The child suffers from mild intellectual disability,[36] and has been counselled over a host of psychological complications since September 2012 at a specialised child psychological unit called “E Centre”, where he was diagnosed with “severe mood lability”, “social anxiety”, “chronic low mood and self esteem”, “suicide and self harm ideation”, as well as other less significant problems.[37]

    [36] Family Report, para 109

    [37] Respondent’s affidavit, Annexure A

19. The applicant’s lack of insight into the severity of the child’s predicament was eloquently revealed by her solution to the foreseen problem of the child’s fervent resistance to residence with her. She thought it would be perfectly appropriate, if necessary, to have the child physically restrained and dragooned to her home. She fancifully imagined that, upon the child’s deposit at her home, he would soon abandon his resistance and happily accept the change of residence and his separation from the respondent and his siblings. Suffice to say, nobody but the applicant imagined the change could be so easily achieved.

20. Even though the respondent has greater capacity to understand and meet the child’s emotional needs, her capacity in that regard remains impinged to some extent. She cannot really bring herself to positively promote the child’s relationship with the applicant. She admitted that the most she ever said to the child in the past about his relationship with the applicant was that she would not prevent him from spending time with the applicant if he wanted to do so, which of course fell well short of active encouragement of that relationship. The child would likely have perceived her ambivalence and imputed the respondent regarded his relationship with the applicant to be unimportant. The applicant said the child even admitted to her that he was too afraid of the respondent’s reaction to enable their visits to continue.

21. The respondent reluctantly, but finally, conceded in cross-examination that the child might perceive her aversion to the applicant and react accordingly. There is no doubt she is repulsed by the applicant. She cannot genuinely accept the applicant’s transition from male to female, because of how that reflects upon her own sexuality. Nor can she forgive the applicant for the alleged sexual abuse of both the child and Mr C, which she still honestly believes occurred. She said as much to the Family Consultant[38] and in cross-examination.

    [38] Family Report, para 49

22. Aside from her revulsion of the applicant, the respondent’s own limitations impede her parenting capacity. The Family Consultant reported that a clinician from the Department reported she presented as an “overwhelmed” parent who was “ambivalent towards her parental role”, which made her “struggle to meet the emotional needs of her children”.[39]

    [39] Family Report, para 91

23. One significant benefit the respondent’s household offers to the child, which the applicant’s household does not, is the solidarity and support he receives from his siblings Ms D and Mr C. They are now both adults and the supervisory role they play in the child’s life should not be under-estimated.

24. There is room for some very cautious optimism about the child’s future if he remains resident with the respondent. He has made some pleasing progress at E Centre, his school attendance has improved during 2015, he now has support from both a counsellor and a teacher’s aide at the school, he now attends a youth group on Friday nights and a church group on Sundays, through which he has acquired some new friends, and his siblings remain a stabilising influence.

25. By comparison, reversal of the child’s residence would be a leap into the unknown. Such a change might be helpful to the child, as the applicant advocated, but the weight of evidence tended to suggest it would be a foolhardy experiment, likely to fail because the child’s ardent opposition to the change is already well known. Apart from some six to eight visits over a few months in mid-2013, the child has not seen or spoken with the applicant since moving to live with the respondent in August 2011.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply in respect of the child. There are reasonable grounds to believe that both parties engaged in family violence, to which the child was exposed (s 61DA(2)(b)).[40]

   [40] Family Report, para 62

2. Equal shared parental responsibility may still be allocated to the parties nonetheless, but that result should not follow unless it would clearly reflect the child’s best interests, which it evidently would not. The parties’ are incapable of communication of the quality necessary to permit the civil consultation and compromise which such an order would require (s 65DAC). The applicant conceded she has not communicated with the respondent at all since their relationship ended.[41] Their co-operation as parents ended when the respondent left the former matrimonial home in June 2011. The respondent does not believe she can share parental responsibility for the child with the applicant.

   [41] Applicant’s affidavit, para 15

1. The only tenable outcome is for one party to have exclusive parental responsibility for the child, consistently with the Family Consultant’s advice,[42] which responsibility should vest in the residential parent. That should be the respondent. The child’s residence with the respondent is, on balance, more likely to advance his interests than his residence with the applicant.

   [42] Family Report, paras 111, 113

2. I decline to make the proposed order that would condition the allocation of parental responsibility to the respondent, requiring her to consult with the applicant over matters related to “the long term welfare” of the child, other than in cases of “genuine emergency”, and to subsequently notify her of any decisions she unilaterally makes.[43] Although I accept the proposed order was well-intentioned, it may do more harm than good. It would invite further dispute about what decisions relate to the child’s long term welfare that are not genuinely emergent. Alternate orders require the respondent to notify the applicant about the child’s medical and academic progress.

   [43] Exhibit R1

3. That leaves for consideration the manner in which, if at all, orders should make provision for the child to spend time and communicate with the applicant. The respondent and Independent Children’s Lawyer both pressed for an order that only required the child to spend time with the applicant consistently with his expressed desire, which was consistent with the Family Consultant’s recommendation.[44] The applicant did not directly engage that argument because she argued only for the child’s residence, but inferentially, if she was unsuccessful with her primary proposal then her alternate proposal was for orders compelling the child to spend time with her on a regular basis.

   [44] Family Report, paras 112, 114

4. The Family Consultant considered it would be counter-productive to try and force the child to recover his relationship with the applicant because, more than likely, that would galvanise his resistance and perhaps cause even more permanent deterioration of the relationship between them. The Family Consultant expressed that view in both the Family Report[45] and in cross-examination.

   [45] Family Report, paras 34, 107

5. Presently, although the relationship between the child and applicant is dormant, the child may choose to try and recover the relationship when he is an adult. If the applicant’s belief in the respondent’s influence of the child to reject her is factually correct then, when the child is older and sufficiently mature to free himself of the respondent’s influence, he may seek to restore his relationship with the applicant. If he does not, then the applicant may need to content herself with the knowledge that the child’s rejection of her was a product of his own experiences.

6. The Family Consultant said in cross-examination that “positive, meaningful involvement of the [respondent]” was a necessary ingredient for any regime of interaction between the child and applicant to succeed. The respondent’s evidence in cross-examination proved she is probably not currently capable of such involvement of that quality. Ironically, the reasons advanced by the applicant for reversal of the child’s residence, which ultimately proved to be unpersuasive for that purpose, worked to stymy her alternate proposal for orders compelling the respondent to ensure the child would regularly spend time with her.

7. The evidence warrants an order that only requires the parties to ensure the child spends time with the applicant when the child so desires.

8. The respondent and Independent Children’s Lawyer also proposed that an order in such terms should extend to regulate the manner in which the child communicates with the applicant, but I do not accept that proposal. Instead, an order is made which permits the applicant to correspond periodically, but not too frequently, with the child. Such correspondence would ensure the child is aware the applicant has not abandoned him and still retains her interest in him, which may help preserve a link between them that enables their relationship to be more easily recovered in later years. The orders require the respondent to acknowledge receipt of the applicant’s correspondence so it cannot be hidden from the child and thereby lead him to the erroneous belief no such correspondence was ever written by the applicant.

9. The orders require the respondent to ensure the child’s continuing therapy with E Centre. That was the Family Consultant’s recommendation,[46] with which the respondent and Independent Children’s Lawyer both agreed.[47]

   [46] Family Report, para 115

   [47] Exhibit ICL4, Orders 9-10

10. The applicant wanted to be able to attend the child’s school to discuss his academic progress with school staff, even if excluded from the exercise of parental responsibility for him. The respondent and Independent Children’s Lawyer did not oppose the applicant doing so, provided it occurred at times when the child was not at school. An order to that effect is made.

11. The remaining orders could not be the subject of reasonable opposition.

12. I decline to make the proposed order compelling the respondent to ensure the child attends school.[48] The earlier interim order to that effect did not work and enough has already been said about that problem.

    [48] Exhibit ICL4, Order 5

13. An order is made requiring the respondent to present the child to the Independent Children’s Lawyer for an explanation to be provided to him about the orders made and the reasons for the orders. An independent explanation will hopefully avoid the child’s receipt of any distorted or sanitised explanation from the respondent. If the Independent Children’s Lawyer desires assistance from the Family Consultant to undertake that task she will need to make independent arrangements with the director of Child Dispute Services.

14. Such orders are made in the child’s best interests.

I certify that the preceding ninety two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 July 2015.

Associate:

Date:  9 July 2015