Walsworth & Ahern
[2024] FedCFamC2F 441
•11 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Walsworth & Ahern [2024] FedCFamC2F 441
File number(s): SYC 9909 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 11 April 2024 Catchwords: FAMILY LAW – PARENTING – Where an application is brought by the stepfather of the subject child who is 11 years of age – Where the biological mother of the child passed away in 2023 in Country C - Where the child has resided in Australia, Country B and Country C –– Where the respondent father asserts the stepfather’s behaviour toward the child presents a cumulative risk that the stepfather is engaging in grooming style behaviour - Where the child has been living with the respondent father in Australia since the death of the biological mother in 2023 – Where the stepfather has spent supervised time with the child in Australia and now seeks orders that he spend time with the child for half of each school holiday period internationally or in Australia and for one weekend each month in Australia – where the child has expressed strong views about spending time with the stepfather – Orders made for the child to spend supervised time with the stepfather on an interim basis. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(3), 65c. Cases cited: Aldridge & Keaton [2009] FamCAFC 229;
Dieter & Dieter [2007] FamCA 608;
Goode & Goode [2006] FamCA 1346;
Line & Line [1996] FamCA 145;
M & M [1988] HCA 68;
Salah & Salah [2016] FamCAFC 100;
SS & AH [2010] FamCAFC 13.
Division: Division 2 Family Law Number of paragraphs: 112 Date of hearing: 22 March 2024 Place: Sydney Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Sarah Bevan Family Lawyers Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Holmes Donnelly & Co Solicitors Independent Children’s Lawyer: Ms Bleier, Steiner Legal Pty Ltd ORDERS
SYC 9909 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WALSWORTH
Applicant
AND: MR AHERN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
11 APRIL 2024
THE COURT ORDERS THAT:
1.The Respondent Father have sole parental responsibility for the child X born in 2013).
2.X shall spend time with the Applicant Stepfather and the Applicant shall use his best endeavours to ensure X’s sister D also attends such time as follows:
(a)upon the Applicant providing the Respondent with at least twenty-eight (28) days’ notice;
(b)on one (1) occasion per calendar month;
(c)on three (3) consecutive days being Friday afternoon, Saturday and Sunday for a period of not less than three (3) hours on each day;
3.For the purposes of X’s time with the Applicant pursuant to order 3 above:
(a)such time shall be supervised;
(b)the cost of the supervision shall be shared equally between the Applicant and the Respondent;
(c)supervision shall be provided by E Contact Centre or such other supervision service as may be agreed between the parties in writing; and
(d)such time shall occur in either City F or City G as agreed between the parties and in default of agreement, in City F, New South Wales.
4.X shall communicate with the Applicant, and the Applicant use his best endeavours to ensure X’s sister D also communicates via video call on two (2) occasions per week as agreed between the parties, and if not agreed, on the following days/times:
(a)Wednesday at 6pm AEST; and
(b)Saturday at 4pm AEST
5.The Applicant MR WALSWORTH born in 1980 his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child, child X born in 2013 from the Commonwealth of Australia.
6.AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing X on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, or until the Court orders its removal.
7.The Respondent Father MR AHERN born in 1978 is permitted to remove the child from the Commonwealth of Australia for the purposes of overseas travel.
8.Within 7 days the Respondent provide to the Applicant a list of all X’s personal possessions in his possession that X seeks to be returned to her care.
9.Within 14 days of the date of the Orders the Applicant return to X by sending to the Respondent’s home by registered post:
(a)All items contained in the list provided for in order 9;
(b)X’s identification and travel documents including but not limited to her Australian Passport, Country B Passport, Country H Passport, Country H ID Card, Country B ID card, Country B Citizenship Certificate, Country H Birth Certificate, Immunisation booklet and any other personal documentation in relation to X in his possession.
10.The parties are to do all acts and things necessary to cause the Immigration and Checkpoints Authority (ICA) of Country B and any related authorities to release X’s Country B passport to the Respondent.
11.The substantive proceedings are listed for directions before a Judicial Registrar at 12:00pm on 17 July 2024.
BY CONSENT THE COURT ORDERS THAT:
12.X live with the Respondent.
13.The Applicant and the Respondent are restrained from denigrating the other or discussing this or other family law proceedings in the presence or hearing of X.
14.The Respondent keep the Applicant informed and updated on matters relating to X’s education.
15.The Respondent keep the Applicant informed and updated on matters relating any significant events relating the X’s health.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These proceedings concern the child X who was born in 2013. X is thus 10 years of age.
X has experienced several changes in her resident country in her short life. At the time of her birth X’s parents were living in Country H. X’s parents separated when she was approximately 12 months of age. Subsequent to separation X relocated with the mother to Country B and both her parents later re-partnered. X then lived with the father for a period of time in Country H prior to her parents agreeing to a shared custody arrangement which was formalised by orders made in Country H and mirrored in Country B. X and her mother relocated to live again in Country B and the father remained living in Country H for a period of time before moving to live in Australia. In 2023 X and her mother moved to Country C. The father asserts that this was a temporary arrangement, the stepfather asserts it was a permanent arrangement.
X’s mother sadly passed away in 2023 in Country B from an illness. Mr Walsworth, the applicant in these proceedings and X’s stepfather (“the stepfather”) lives in Country C with X’s maternal half-sister D who is 4 years of age.
Mr Ahern, who is X’s father and the respondent in these proceedings (“the father’), lives with his current partner and X’s paternal half siblings J who is 6 years of age and K who is one year of age in Town L, New South Wales.
Subsequent to the passing of X’s mother, X returned to Australia with her father and has lived with him since this time.
The issues for determination on an interim basis are whether an order should be made for the allocation of parental responsibility, what time X is to spend with the stepfather, whether such time is to be supervised and whether X should be permitted to travel overseas with either of the parties.
COMPETING PROPOSALS
It is conceded that the stepfather is a person concerned with the care, welfare or development of X and is thus entitled to commence proceedings seeking orders as to her parenting arrangements.[1] All parties ask that the court make parenting orders with respect to the time she is to spend with the stepfather.
[1] Section 65C of the Family Law Act 1975 (Cth).
The stepfather’s commencing application sought orders that X live with him in Country C and spend block time with the father during school holidays. Subsequent to the release of the Child Impact Report the stepfather conceded that X should remain living with the father at this time.
The stepfather thus seeks orders in accordance with the Minute of Interim Orders Sought[2] that broadly: -
·X live with the father.
·X spend time with the stepfather internationally or in Australia for the first half of all short end of term school holiday periods and for half of the term 4 school holiday.
·The stepfather is to pay a bond of $10,000 into the trust account of the father's solicitors a week prior to X departing Australia to spend time with him, with such sum to be returned to the stepfather within a week of X's return to Australia.
·X spend time with the stepfather in Region M from 5:00pm on Friday until 6:00pm on Sunday on the second weekend of each month.
·X communicate with the stepfather twice a week and on both hers and the stepfather's birthday each year by way of telephone or video and for the purposes of such communication X be given a private space and the father be restrained from interfering with and/or recording such communications.
[2] Exhibit A.
The father seeks orders in accordance with the Minute of Orders[3] sought that broadly: -
[3] Exhibit K.
·The father have sole parental responsibility for X.
·X live with the father.
·X spend time with the stepfather upon the provision of at least 28 days’ notice on one occasion per calendar month for three consecutive days being Friday afternoon, Saturday and Sunday for a period of not less than three hours on each day supervised by E Contact Centre or such other supervision service as may be agreed between the parties in writing. The cost of the supervision is to be shared equally between the parties and the time is to occur in either City F or City G as agreed between the parties and in default of agreement, in City F, NSW.
·That X communicate with the stepfather and the stepfather used his best endeavours to ensure that X’s sister D also communicates via video call on two occasions per week as agreed and failing agreement each Wednesday at 6:00pm AEST and Saturday at 4:00pm AEST. Such video calls will occur in the presence of either the father or his wife.
·The stepfather and his agents be restrained from removing or attempting to remove X from Australia.
·The father be permitted to remove X from Australia for the purposes of overseas travel.
·Upon receiving a written list within seven days of all personal items in the stepfather's possession that X seeks be returned to her care, the stepfather is to return such possessions to X by way of registered post to the father's home within 14 days together with X’s identification and travel documents.
·The stepfather provide to the father within 14 days all of X’s identification and travel documents and the parties do all things necessary to cause the authorities in Country B to release X’s Country B passport to the father.
·Within seven days the stepfather is to provide to the father an unredacted copy of the mother's last will and testament and particulars of when he anticipates providing X with the mother's requests and the implementation of the portion of the mother's will which relates to X.
·Two notations were sought: - that the applicant is X’s stepfather and that in the exercise of his sole parental responsibility the father is the person solely entitled to hold, apply and renew X’s passport.
The Independent Children’s Lawyer supports the orders as to X's time with the stepfather sought by the father, the orders sought by the stepfather as to the provision of information, non-denigration orders and a restraint on discussing the proceedings and the privacy of X's communications with the stepfather including that such communications not be recorded.
EVIDENCE
In this matter I have read the following documents relied upon by the stepfather: -
·the Initiating Application filed 22 December 2023;
·his affidavit filed 21 March 2024; and
·material tendered during the course of the hearing.
I have read the following documents relied upon by the father: -
·the Response filed 14 January 2024;
·the Case Outline Document filed 21 March 2024;
·his affidavit filed 14 January 2024;
·the affidavit of Ms N filed 20 March 2024;
·the Child Impact Report dated 19 March 2024; and
·material tendered during the course of the hearing.
As Counsel for the father referred to the Last Will and Testament of the Mother dated 2023 during her submissions, I have read same and it has been marked as Exhibit P.
The Independent Children’s Lawyer relied upon:
·the Case Outline filed 21 March 2024; and
·the Child Impact Report dated 19 March 2024.
BACKGROUND
The father was born in 1978. He is currently 46 years of age.
The stepfather was born in 1980. He is currently 43 years of age.
The mother and father commenced cohabitation in 2012. X was born in 2013 in Country H.
In 2014 the mother and the father separated on a final basis. The mother subsequently relocated to Country B with X without the father’s consent at which point family law proceedings were commenced.
In 2014 the mother and the stepfather commenced a relationship.
In the same month the father commenced proceedings in Country H in relation to X’s parenting arrangements.
On 29 January 2016 the father obtained joint custody orders with the mother in relation to the care of X in Country H and Country B.
In 2017 the mother and the stepfather were married.
In mid-2018 agreement was reached between the mother and the father that X would move to Country B and for the parties to have shared care of X. The father spent regular time with X in Country B on weekends and after school as he travelled to Country B regularly for work. The father subsequently spent overnight block time with X in Country C, Australia, and Country B during school holidays.
In 2019 D, being the child of the stepfather and the mother, is born. D is currently five years of age.
In mid-2021 orders were made in Country B providing that:
·The mother and the father have joint custody of X;
·Upon X taking up permanent residence in Country B and living there with the mother, care and control shall be vested in the mother; and
·The father shall enjoy all reasonable rights of access;
·There will be Skype access for the mother and the father;
·That the father shall spend 10 days with X in each short school holiday period and for two weeks in the longest school holiday period; and
·The father shall pay Country B 1,800 per month to the mother.
In 2021 the mother was diagnosed with a terminal illness.
In mid-2021 the father relocated from Country H back to Australia.
Between late 2021 and early 2022 X spent block periods of time with the father and the paternal family in Australia.
In late 2022 the father relocated to Country B to commence new employment.
In late 2022 X spent four weeks with the father and his family in Country B.
In early 2023 the father deposes that the mother communicated with him her wish of moving to Country C in light of her financial constraints and her illness.
In early 2022 the stepfather deposes that himself, mother, and X moved to Country C. The father disputes such date and deposes that the mother and X moved to Country C in early 2023 and that this was expected to be a temporary arrangement.
In 2023 the mother left Country C for Country B to obtain medical treatment and did not return to Country C until 2023.
In 2023 the father moved back to Australia to take up new employment.
In 2023 the mother travelled from Country C to Country O to undertake treatment. X joined the mother in late 2023.
In 2023 the father arrived in Country B.
In 2023 the mother passed away.
In 2023 the father and X attended the High Commission in Country B and obtained an emergency passport for X. The father and X arrived in Australia in 2023. The stepfather asserts that X was unlawfully removed from Country B by her father.
The stepfather’s Initiating Application was filed on 22 December 2023. On this date the matter was listed for an interim hearing and procedural orders were made.
X had no communication with the stepfather and D until a video call in early 2024.
On 24 January 2024 orders were made directing the parties to attend with a Court Child Expert for the purposes of a Child Impact Report. Further orders were made for the stepfather and D to spend time with X on three consecutive days for no less than two hours on each occasion supervised by Q Contact Centre.
On 27 February 2024 the stepfather sought an urgent listing in circumstances where the parties could not agree where X’s time with the stepfather was to occur on 15, 16 and 17 March.
On 1 March 2024 Orders were made by Judge Lioumis (noting there was already agreement for time on 1 to 3 March) that X spend time with the Applicant and D in Region M on 15, 16 and 17 March 2024 with such time to be supervised by P Contact Centre.
From 1 March 2024 to 3 March 2024 X spent time with the stepfather and D supervised by E Contact Centre in City G.
Between 15 March 2024 and 17 March 2024 X spent time with the stepfather supervised by E Contact Centre in City G on Saturday and Sunday. X refused to attend the time scheduled on Friday.
On 21 March 2024 the Child Impact Report was released to the parties.
THE LEGISLATIVE PATHWAY AND INTERIM HEARINGS
In deciding whether to make a particular parenting order the Court is to regard the best interests of X as the paramount consideration.[4] Ordinarily, X’s best interests would be ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC of the Act. The court would be required to weigh the benefit to X of having a meaningful relationship with both of her parents and the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In balancing these considerations, the court would be required to give greater weight to the need to protect X from harm.
[4] Family Law Act 1975 (Cth) s60CA.
MEANINGFUL RELATIONSHIP
An interim hearing is a truncated process where there is little or no testing of the evidence. Thus, the court is to be cautious in making findings on contentious facts and looks to agreed facts and issues not in dispute.[5] Despite the court’s limited ability to make findings in respect of controversial facts in interim proceedings, it is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 said:
[100] … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[5] Salah & Salah [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode [2006] FamCA 1346.
Submissions were made by the stepfather that there is “no legal question” that the applicant stepfather is a parent. Such submission was apparently grounded on the stepfather being married to X’s mother and having lived in X’s household since she was two years of age. Reference was made during the course of the interim hearing as to the mother appointing the stepfather the testamentary guardian of X until X turns twenty-one years of age. It is thus submitted that I should adopt, when determining what is in X’s best interests, the mandatory consideration that it is in X’s best interests to have a meaningful relationship with both her stepfather and father. I reject this submission. The testamentary disposition of the mother is not binding in Australia. The stepfather is not a parent for the purposes of the Family Law Act1975 (Cth).[6]
[6] Aldridge & Keaton [2009] FamCAFC 229.
RISK OF HARM
The risk of harm to X is a central issue in this matter. The father submits that there are several matters that cumulatively give rise to such a level of concern as to the nature of the engagement between X and the stepfather and whether there is a greater cause for concern that the stepfather is engaging in grooming style behaviour, thus placing X at risk of abuse.
The stepfather submits that there are no circumstances giving rise to X being at risk of harm in his care noting that X has lived with him since the age of two and as at late 2023 there had never been a complaint raised that the stepfather was in any way presenting a risk of harm to X or suggested that X’s time with the stepfather should be supervised. This is in circumstances where X spent a lot of time prior to the mother’s passing traveling to Country B and Australia to spend time with the father.
The assessment of risk requires the consideration of two elements - whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event.[7] I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[8] The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances, bearing in mind of course the inherent limitations of an abridged hearing. Where risk is alleged in interim proceedings, a conservative approach is warranted.
[7] Dieter & Dieter [2007] FamCA 608.
[8] M & M [1988] HCA 68.
The [Food] Incident
The father deposes that subsequent to the mother’s passing he became aware of communications sent by the father to X that he considers to be inappropriate and sexual in nature. He has looked at the WhatsApp message history between X and the stepfather.
In late 2023 the following exchanges occurred whilst X was in the care of a third party: -
Stepfather: Send me a photo of your schoolwork
[X]: I haven’t done it yet.
I am eating at [a restaurant]
Stepfather: With who? What are you eating? Is it [food]?
Send me photo
I miiiiiiiiisssssssss [food]
[X]: Yes I am eating [food]
Hahaha
Stepfather: That’s a very naught word
Naughty
[X]: What does [food] mean
Stepfather: […]
Porn is watching other people have sex
[X]: Oh
K
Stepfather: Ask auntie [Ms R] about it
[X]: All ready did
Stepfather: What did she say
[X]: People doing disgusting stuff
So can I have my Christmas present before I go to Australia
The stepfather tendered into evidence a photograph of the sign of the eatery at which X was eating on this occasion. Such sign is: “[…]”.[9] It was submitted that [food] is an expression used in Country C that has a different meaning in English, and [food] is what the restaurant is called. He deposes that his response to X was in line with the policy of himself and X’s mother that they be upfront and honest with the girls as much as possible about sex.
[9] Exhibit F.
The stepfather’s submission does not assist his case. If “[food]” is a Country C term, why did he feel it necessary then to bring to the attention of a ten-year-old girl it’s English meaning? It was unnecessary and inappropriate. Irrespective of whether X meant to type […] or […], there was no necessity at all to make comment about such misspelling. To then choose to use the word porn in its English context and provide an immediate description of it to a ten-year-old girl via a text message is bewildering.
The Text Message of Late 2023
In late 2023 X sent a text message to the stepfather stating:
I don’t want to sleep with you.
The stepfather responded:
Floof you
The father deposes that he asked X about this message after reading it and she told him that she sent this message to the stepfather when she was at “Auntie Ms S’s” place in Country B as the stepfather used to go and sleep in her bed until the mother told him to stop doing that.
This is denied by the stepfather who deposes that he did not sleep in the same bed as X; she sleeps in her own bed in Country C.
There is no reason proffered by the stepfather as to what X may have meant then in this text, nor the nature of his response. I am left wondering then why X would send such a message and why the stepfather does not deny the implied assertion contained therein in reply but merely responds, “floof you”. Again, this text exchange is bewildering.
The Colouring Book
Late 2023 the stepfather had a colouring book; “[…]: A Funny Colouring Book” delivered to X at the father’s home. The Contents Page has various scenarios listed including: “When your cat stares at the corner and freaks you the fuck out.”[10] It has images of cats playing and doing naughty things.
[10] Exhibit F.
The stepfather does not concede that this was an inappropriate gift. He deposes that he sent this colouring book to X for Christmas; he could not see what was inside, but he thought it was something that X would find funny as she has a particular fondness for cats and making jokes “about cats.”[11]
[11] Affidavit of Mr Walsworth, paragraph 72q.
Whilst I accept that if such a book was purchased online it may not have shown the contents, the title page clearly states that it is a colouring book for adults. Neither the language nor the content appears to be appropriate for a ten-year-old girl. That the stepfather does not recognise its inappropriateness is concerning.
Supervised Time to Date
In the report recording X’s supervised time with the stepfather on 1 March 2024 which took place between 4pm and 7pm, the supervisor records:
[Mr Walsworth] asked [X] if she would like a bath. [X] did not respond. I observed [Mr Walsworth] to mention it again. [Mr Walsworth] said the girls could have a bath if they wanted to or if they did not want one now, they could have one later. I observed [X] to say, “I’m not having a bath.” I observed [X] to be firm in her response and short with her response. I observed [Mr Walsworth] to continue to tidy up.[12]
[12] Exhibit C, page 2.
The stepfather provides no explanation as to why he felt it was necessary that X have a bath during the course of a three hour visit with him of an afternoon in and around his hotel room. There is no evidence that X had become dirty during the time, nor that she had taken her pyjamas to change into.
THE ADDITIONAL CONSIDERATIONS
I now turn briefly to the section 60CC (3) considerations as are relevant.
X presented a clear and firm view that she wishes to remain living with the father, her stepmother and two younger siblings in Australia. She reported to the Court Child Expert her view that it was her mother’s wish that when she died, she would live with the father in Australia and that X explored this option when she spent school holidays with the father in 2023 as she knew her mother’s illness was terminal.
X presented with a negative and somewhat conflictual view about the stepfather. She is reported as stating that: “he’s not the type of person I want to live with.”[13] She told the Court Child Expert that if she had the choice, she would not spend any time with the stepfather. She described their time as “ok”, and the stepfather could be “fun.” She told the Court Child Expert that she did not want to spend time with the stepfather over the weekend and would have preferred to stay at time but acknowledged that she had a positive time.[14] She struggled to identify any positive traits of the stepfather and referred to him as “untrustworthy,” that he “betrayed” the mother, describing a “big fight” between the mother and the stepfather when the stepfather took money from a specific account to pay for the mother’s medical bills. X reported that her mother did not trust the stepfather which is why she does not. “She indicated that her mother shared her personal views about Mr Walsworth with her, which seems to have influenced her own views about him and she suggested she is wary of him.”[15]
[13] Child Impact Report, paragraph 13.
[14] Ibid, paragraph 10.
[15] Ibid, paragraph 12.
X indicated to the Court Child Expert that she would like to continue spending time with D either in Country B or Australia but that she does not miss living with her.
The Court Child Expert opined that significant weight can be placed on X’s views considering her age, current living arrangements and the recent circumstances in her life.
X reported to the supervisor at the commencement of the first supervised session with the stepfather and D on 1 March 2024 that she was nervous and felt sick “in the belly” and stated twice that she was not going to speak to the stepfather “until he gives my things back.” [16] During the visit she was observed to be comfortable and happy in her interactions with the stepfather; allowing him to place his arm around her and placing her arms around him also. The supervisor recorded that she observed X to display warmth and small amounts of affection to the stepfather at certain times throughout the visit but she became distant and firm when she did not want to engage saying “no” in a short tone to having a bath and having photographs taken of her.
[16] Exhibit C page 2.
The supervisor recorded that the second visit on 2 March 2024 was overall positive with X displaying signs of affection when the stepfather read to her a letter from her mother.
X was reluctant to attend the third supervised visit on 3 March 2024, stating that she only wanted to see D to say goodbye and then leave. She told the supervisor that she did not want to go but she was scared that the stepfather would get angry if she didn’t stay and yell at her. Despite this X is recorded as displaying a positive and comfortable nature during the visit requesting to stay longer several times. X was observed to oscillate between behaving affectionately and becoming shorter and dismissive in her responses to the stepfather but was comfortable in his presence.
X refused to attend the supervised visit on 15 March 2024 with the stepfather, D not being present in Australia on this occasion. X was reported by the father to be very upset that the stepfather had not brought the items from Country C that she requested he bring.
X attended the supervised visit on 16 March 2024 with the supervisor reporting that overall the visit was challenging with X displaying strong signs of not wanting to attend. The stepfather is recorded as handling the situation appropriately, respecting X’s space and making a continuous effort to communicate with X effectively. The visit was very short.
X attended the supervised visit on 17 March 2024. This was a far more positive experience with X engaging happily with the stepfather and displaying moments of warmth and affection but still at other times moving away from the stepfather if he came close to her.
X is not observed as physically greeting the stepfather at the commencement of each visit.
Whilst X reported to the Court Child Expert that she and D were mostly looked after by a nanny whilst the stepfather worked, it does not appear to be contested that the stepfather has been, as between the parties, if not X’s primary carer, then at least a significant carer for X since the mother’s diagnosis and subsequent treatment. The Court Child Expert opined that X’s reported wish to not spend any time with the stepfather is an unusual response in these circumstances.
It is unclear to the author what other factors may have contributed to [X]’s poor view of [Mr Walsworth]. However, it is possible that she may hold some feelings of guilt about her desire to live with her father, she may feel conflicted between the two parties, or it could raise questions about her relationship with [Mr Walsworth] or the nature of [Mr Walsworth]’s caregiving.[17]
[17] Ibid, paragraph 26.
X reported at the commencement of the first visit that she was excited to see D. X was observed during the supervised sessions with the stepfather to have a warm and close interactions with D. This was displayed through kisses and hugs and always being close throughout the visit. The Court Child Expert opined that if X were to remain in the current care-giving arrangement, her relationship with D may suffer. She further opined that an ongoing relationship between X and D may require some planning by both parties, but it seems possible that they could spend some time together with maternal family in Country B if the parties can collaborate to make such an arrangement occur.
The stepfather submits that the father’s actions in removing X from the stepfather’s care has completely severed X from her family in Country C.
The Court Child Expert opined that despite living away from her father in various countries for most of her childhood it appears that X and the father have spent significant time together and “have developed a positive and warm relationship.”[18] Given the circumstances it is unsurprising that X would be drawn to her father.
[18] Child Impact Report, paragraph 31.
X identified to the Court Child Expert that she likes each of her paternal siblings.
X reported to the Court Child Expert she has extensive family in Country B, and she was happy at the time of her interview as her maternal grandmother was visiting and staying with her; her father and grandmother have a positive relationship.
The parties dispute the extent to which the father has spent time with X subsequent to her parent’s separation and the financial support provided by him. In circumstances where it is not contested that X will live with the father on an interim basis, these issues are more appropriately considered and determined at a final hearing.
Whilst the stepfather makes complaint as to the father removing X from Country B so quickly after her mother’s passing thereby denying X the opportunity to attend her funeral and other grieving processes, this is a more appropriate consideration for a final hearing if it is contested as to where X will live on a final basis. I understand the stepfather’s submission however that in doing so, and by way of the relief the father seeks from the court, the father has failed to recognise the importance of the stepfather and her family in Country C to X and the likely impact of X being separated from D in Country C.
The father has arranged X to see a counsellor. It does not appear to be disputed that the father is able to appropriately care for X at this difficult time in her life and provide her with the support mechanisms that she requires.
I accept the stepfather’s submissions that the supervised contact reports suggest that the stepfather is capable of understanding X and managing his way through the complexity of emotions she displayed throughout her time with him. I accept that the reports record that the stepfather was at all times patient with X and respected her space. The frustration he expressed to the supervisor at X’s refusal to spend time with the stepfather on 15 March 2024 is understandable.
The stepfather submits that X needs to maintain her connection to Country C and that a process of staged and sensitive introduction of her back to Country C is in her best interests.
The father disputes the importance of X’s connection to Country C and asserts that the overseas jurisdiction she is most connected to is Country B in circumstances where X lived in Country C for less than a year, was born in Country H and spent the majority of her life in Country B. X is reported as telling the Court Child Expert that she did not like living in Country C and described it as dirty.[19] She further stated that she wanted to see D in either Country B or Australia.
[19] Child Impact Report, paragraph 13.
It is clear that the tyranny of distance is a factor in the regularity of time that X spends with the stepfather.
The Court Child Expert opined that she holds great concerns about X remaining the subject of ongoing litigation especially in the context of the many significant changes she has experienced to date and the recent loss of her mother.[20]
[20] Child Impact Report, paragraph 35.
DETERMINATION
By way of his Minute of Order the father seeks an order for sole parental responsibility and a notation that in the exercise of such responsibility that he is the person solely entitled to hold, apply and renew X’s passport. Whilst the father is the sole surviving parent, it is submitted that an order for sole parental responsibility in the father’s favour may assist him in negotiating for the release of X’s passport and engaging with services on X’s behalf in Australia without having to provide other documentation such as a death certificate.
There has been significant dispute between the parties as to their respective legal status as regards X and the retention by the stepfather of X’s passport. In the circumstances there does not appear to be any negative aspects to the father having a clear order of this court that he has sole parental responsibility, and I will make such an order.
I am not able to make any determination at an interim stage based on the current evidence as to the reasons for X’s expressed views and behaviour. X understandably is having to process and grieve the loss of her mother. Having regard to X’s age however, I do place weight on her expressed views at this time and her interactions with the stepfather as recorded in the supervision reports. I accept that X’s time, even on a supervised basis, has been problematic and it appears to be only with the encouragement and support of the supervisor that X saw the stepfather again after 15 March 2024.
The Independent Children’s Lawyer submits that whilst the allegations made by the father may not amount to X being at an unacceptable risk of harm in the stepfather’s care such that supervision is required, supervision is sought by the Independent Children’s Lawyer so as to rebuild X’s relationship with the stepfather. Supervised time means that it is more likely to occur and provides a safe and comfortable environment for X.
I accept that, balancing all of the above considerations and acting conservatively it is not in X’s best interests at this time for her face-to-face time with the stepfather to be unsupervised. This arises from a combination of the concerns I have as to the stepfather’s interactions with X and her reactions and exhibited behaviours in the time she has spent with him subsequent to her return to Australia. Supervision will ensure that the stepfather’s interactions with X are appropriate and within accepted boundaries. It will provide X with the continued scaffolding she appears to require at this juncture to spend with the stepfather. I accept the submission of the Independent Children’s Lawyer that, having regard to the events that have transpired with X’s interactions with the stepfather that to expect X to fly overseas and spend time with the stepfather without any support person is unrealistic. To place X in that situation does not appear to be in her best interests at this time.
Thus, it is an accumulation of factors that lead to my interim determination that at this time, it is in X’s best interests that her time with the stepfather occur on a supervised basis in Australia only. These are:
·My concerns on a cumulative basis as to the nature of the interactions between the stepfather and X which are inappropriate and cause for concern.
·X’s clear and expressed wish that she does not wish to spend time with the stepfather.
·The observed interactions between X and the stepfather subsequent to X’s return to Australia. It appears that on occasion X’s time with the stepfather only proceeded as a result of the supervisor’s assistance and support.
Both parties agree that X should communicate with the stepfather twice each week. The stepfather seeks that such calls be private and that the father be restrained from recording such communications whilst the father seeks that such calls occur in the presence of himself or his wife. The Independent Children’s Lawyer proposes that such calls be private.
Whilst I am satisfied that an accumulation of the incidents recorded above and X’s apparent need for the security of a supervisor is required to assist her in spending time with the stepfather pending a final hearing, I am not satisfied the father has evidenced a risk to X such that her video calls with the stepfather should be supervised. X has been reported as being quite firm with the stepfather in her dealings with him and her communication of her needs and wants. I am satisfied that she will be able to continue this in the future. It is in X’s best interest that she be able to talk to the stepfather and her sister in private. Recording of such interactions may send a troubling message to X and thus the father will be restrained from recording such interactions.
No submissions were made against such calls also occurring on both X’s and the stepfather’s birthday and I am unable to see any detriment in X speaking to the stepfather on these special occasions and it will be ordered. I do not make an order as it was not sought but I hope that the parties would be able to arrange between themselves for X to also speak to D on D’s birthday. It is clear that X’s relationship with D is important to her.
Both parties wish to be able to travel with X overseas. The Independent Children’s Lawyer supports the father’s application but opposes the stepfather’s application on this issue.
The issue of overseas travel requires me to assess the degree of risk, if any, of X not being returned to Australia by the father and a consideration of the appropriateness of requiring any security for X’s return.[21] I am required to consider: -
·the existence or otherwise of continuing ties between the departing parent and Australia;
·the existence and strength of possible motives not to return;
·the existence and strength of possible motives to remain in the other nominated country;
·whether the country of travel is a signatory to the Hague Convention; and
·other section 60CC considerations as are relevant.
[21] see Line & Line (1997) FLC 92-729.
In light of my determination that X’s time with the stepfather on an interim basis be supervised I do not need to determine whether the stepfather should be permitted to travel overseas with X. Even if I was so required to do so, I am not satisfied that to allow X to travel overseas with the stepfather at this time is in her best interest and reject the stepfather’s submission that “If X can travel with the respondent she can travel with the applicant.” The issue of overseas travel is not one that should be approached by way of some form of automatic parity. The parties seek competing live with orders on a final basis. The stepfather lives in Country C and does not appear to have any ties to Australia. Country C is not a signatory to the Hague Convention. I accept the father’s submission that absent evidence as to the stepfather’s financial circumstances I am unable to assess whether the requirement to pay a $10,000 bond prior to X departing the jurisdiction with the stepfather provides a sufficient incentive for him to return X to Australia.
The remaining question is whether the father should be permitted to do so. The father deposes that he wishes to take X overseas with the primary location being Country B where X is most connected to her mother and where her maternal family live. It is submitted that whilst the father has lived in different locations he is connected to Australia and Australia remains his home. I am satisfied that X has strong overseas familial connections and that it is in her best interests that she be afforded the opportunity to travel overseas with the father when he feels it is appropriate for her to do so. To facilitate this, orders will be made for the stepfather to provide to the father X’s identification and travel documents including her Country B passport.
The father seeks orders that the stepfather provide to X by registered post to the father’s home address and within 14 days all X’s personal possessions which are to be recorded in a list provided to the stepfather within 7 days. No submissions were made by the stepfather in relation to this issue. It appears that such items are of great significance to X in circumstances where she made a comment to the supervisor about “wanting her things.” It is clearly in X’s best interests that her personal items are returned to her in the manner proposed by the father, and I so order.
The stepfather seeks further ancillary orders as to each of the parties being restrained from denigrating the other party or discussing these proceedings, for the father to keep the stepfather informed as to X’s education and significant events relating to her health and for the parties to keep each other advised as to any changes in address and contact details. These orders are consented to by both the father and the Independent Children's Lawyer.
I am satisfied that such proposed orders are in X's best interests as it is appropriate that the parties both be aware as to X’s care and development. It is uncontested that it is in X's best interests that she should not be subjected to hearing either party denigrate the other nor a discussion of these proceedings. I will thus make the orders as consented to by all parties.
Counsel for the father was unable to advise the court of the head of power relied upon to ground the order sought that the stepfather provide to the father an unredacted copy of the mother's Last Will and Testament and particulars of when he anticipates providing X with the mother's requests and the implementation of the portion of the mother's will relating to X, save that it was submitted that such an order could be made pursuant to the stepfather’s obligation to provide a full and frank disclosure. I am not satisfied this court has power to make the order as sought and refuse same.
CONCLUSION
I am mindful that the stepfather will no doubt be disappointed by the orders made by me today. I remind the parties again that the way in which an interim hearing is conducted is vastly different to a final hearing. Decisions have been made today within a limited time and framework of an interim hearing. Because of those limitations I must act conservatively. The Judge hearing this matter on a final basis does not take my reasoning into account when determining this matter on a final basis. This is a temporary order only until a full hearing can be conducted with the appropriate testing of the evidence.
Noting the likely significant detrimental impact these proceedings will have on X who has suffered major upheavals and loss in her short life I hope that the stepfather and father can reflect further on the contents of the Child Impact Report and start contemplating how they can both move forward and make arrangements between themselves for X’s care arrangements in the future without the need for further litigation.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 11 April 2024
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