Watts and Lorreck

[2018] FamCA 13

FAMILY COURT OF AUSTRALIA

WATTS & LORRECK [2018] FamCA 13

FAMILY LAW – CHILDREN – Interim reversal of final orders – Change of residence

Family Law Act 1975 (Cth) ss 60B, 60CC 60CG

APPLICANT: Mr Watts

RESPONDENT: Ms Lorreck

INDEPENDENT CHILDREN’S LAWYER: Mr J Haddock

FILE NUMBER: CAC 23 of 2009

DATE DELIVERED: 16 January 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing but represented on a duty basis by Ms Bryant-Smith, Legal Aid, ACT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

It is ordered:

1. That all previous orders made in relation to X (X), born … 2002 and Y (Y), born … 2007 are discharged.

2. That the father has sole parental responsibility for X and Y.

3. That X and Y will live with the father.

4. That X and Y will spend time with the mother during the Australian Capital Territory (ACT) school holidays as follows:

   (a)The entire end of term one school holidays 2018, commencing on the first full day of the holidays and ending on the last full day of the holidays;

   (b)The entire end of term two school holidays 2018, commencing on the first full day of the holidays and ending on the last full day of the holidays;

   (c)For the balance of the current Christmas school holiday period ending four days before the commencement of term one 2018;

   (d)For the first half of the summer holiday period occurring at the end of 2018, commencing on the first full day of that holiday period and ending on the 21^st day of that school holiday period;

5. X and Y will spend time with the mother during school terms:

   (a)Up to seven consecutive days each month in Canberra provided that the mother:

   (i)Gives the father 14 days written notice of her intention to spend such time;

   (ii)Causes the children to attend the usual school and extra-curricular activities during such time.

6. The father and the mother may communicate with Y and X when they are not in that parents care each Sunday, Tuesday and Thursday between 7:00pm and 7:30pm with the other parent to facilitate that time, including by the provision of audio visual facilities to enable that to take place during those periods, and shall otherwise encourage Y and X to spend that time talking with the other parent.

7. When Y and X are spending time talking with the other parent in accordance with these Orders, the parent with whom they are living is to give Y and X privacy to engage in a conversation with the other parent by not being physically present during that conversation and by taking all reasonable steps to ensure that other persons are not present during the communication with the other parent.

8. For the purposes of the school holiday time:

   (a)The father will book and pay for the return airfares for each of X and Y with Qantas to travel from Canberra to B Town and from B Town to Canberra for the end of term one holidays 2018;

   (b)The mother will book and pay for the return airfare with Qantas for Y and X to travel from Canberra to B Town and from B Town to Canberra for the end of term two holidays 2018;

   (c)The father will book and pay for the return airfare with Qantas for X and Y to travel from Canberra to B Town and from B Town to  Canberra for the summer holidays occurring at the end of 2018;

   (d)The mother will pay (if she chooses to exercise this time in Queensland) and book the return airfares for Y and X to travel from Canberra to B Town and from B Town to Canberra for the balance of the current school holiday period in accordance with the above Orders.

9. The father is required to ensure that the mother is provided with the following information, and to make arrangements for her to be provided with information regarding the welfare of X and Y as follows:

   (a)In the event that either X or Y require medical treatment, the father is to advise the mother by email, at an address nominated by her for that purpose, as soon as is practicable of the nature of and requirement for medical treatment;

   (b)When advising the mother as to medical treatment in relation to the above order, the father is to advise the mother of the name of the practice and the name of the doctor and provide the mother with contact details for the doctor such that she is able to speak with him or her about the treatment;

   (c)On either X or Y receiving medical treatment or consulting with a medical practitioner the father is to immediately authorise and continue to authorise that medical practitioner to speak with the mother in respect of the treatment of X and Y and is to provide that medical professional with a copy of these orders;

   (d)On enrolment of X or Y into a school the father is to immediately notify the mother of the details of the school including contact details and is to provide an authorisation to the school permitting the school to discuss matters concerning X and Y with the mother and is to provide that school with a copy of these orders.

   (e)The father is to authorise the school to provide to the mother all school reports and notices regarding Y and X.

10. The mother may contact X and Y at such other times as may be reasonable.

11. In the event that X or Y are provided with telephones, the father is to keep the mother advised as to the relevant number for each of the telephones to enable her to make telephone contact with each of X and Y.

12. The mother’s application in a case filed 5 January 2018 for recovery order is dismissed.

13. I direct the preparation of an updated Family Report in accordance with the following terms of reference to be completed by the end of July 2018 for the purposes of preparation of this matter for final hearing.

Terms of Reference

1. That pursuant to s 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report.

2. That the Family Consultant interview, assess and observe the parents Ms Lorreck and Mr Watts and the children X and Y (“the children”) for the purposes of the Family Consultant preparing a report on matters relating to the children.

3. That the Family Report is to consider in particular:-

   3.1The benefit to the children of having a meaningful relationship with both of the children’s parents;

   3.2The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the children may be exposed to and the impact both in the short term and long term in the event that the children are exposed to abuse, neglect or family violence.

   3.3The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

   3.3.1Either of the children’s parents; or

   3.3.2Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the children have been living;

   including an assessment of the nature of the children’s present and prospective attachments in terms of the orders sought by each of the parties;

   3.4The capacity of:

   3.4.1Each of the children’s parents; and

   3.4.2Any other person (including any grandparent or other relative of the children)

   to provide for the needs of the children, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;

   3.5The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Family Consultant thinks are relevant;

   3.6The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents;

   3.7Whether, as a result of consultations or any testing or anything in the behaviour of each child, their reported comments considered critically in the context in which they were expressed or as they are expressed to the expert may give rise to concerns on the part of the expert that each child may have been or may in the future be at risk of physical or emotional abuse in either household from any person.  In this regard, the expert is not required to make a determination whether such physical or emotional abuse has occurred.  This, however, does not preclude the expert from expressing an opinion about whether or not physical or emotional abuse has occurred, provided that expression of opinion is supported by reasons for such an opinion.

   3.8Whether either or both parents hold a genuine belief that the children are at physical or psychological risk in the care of the other parent

   3.9Any views expressed by any child in relation to issues of residence or time and any factors which the Family Consultant considers are relevant to the weight that ought to be given to those views, including:-

   3.9.1The children’s respective age and maturity;

   3.9.2The degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implication;

   3.9.3The strength and duration of the views;

   3.9.4The extent to which those views are based on a choice that is well thought through and appropriate as distinct from peripheral matters;

   3.9.5The extent to which those views are the result of pressure on the child, or children and thus far how they reflect the child’s own choice;

   3.9.6The likely impact in the children of an order contrary to their views.

   3.10The nature of the relationship between the children and each of their parents;

   3.11The emotional attachment of each of the children with each of their parents;

   3.12The capacity of each parties to provide for the children’s emotional and intellectual needs including each of the parents’ attitudes to and understanding of the children’s relationship with other significant people and their attitudes to the children’s education;

   3.13The likely effect and significance of any different capabilities and approaches to parenting of each of the parties for the interests of the children in each party’s proposal;

   3.14Any other fact or circumstance that in the opinion of the Family Consultant is relevant

   3.15Recommendations as to the appropriate arrangements for the children in light of the above 3.1 to 3.14 above.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 23 of 2009

Mr Watts

Applicant

And

Ms Lorreck

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me by virtue of competing applications made pending an as yet unallocated final hearing.  The matter has a long history of litigation, there already being final orders in place that provide for the children of the relationship, X aged 15 ½ and Y, aged 10 ½ to live with their mother in Queensland. 

2. Those orders permitted the mother to relocate from the Canberra region, where the father and his family still reside. 

3. The competing applications are such that the father seeks to set aside those final orders and instead have X and Y live with him.  He seeks orders in the interim for equal shared parental responsibility.  In contrast the mother seeks a recovery order.  The mother also seeks a suspension of the orders for the father to spend time with X and Y. 

4. Y and X were due to be returned to her, pursuant to the final orders, following spending school holiday time with the father on 26 December 2017.  The father has retained them and they are in his care as at the time of the interim hearing of this matter, although following the conclusion of the hearing they spent time with the mother in Canberra pending the delivery of judgment. 

Material relied upon

1. The father relied upon his affidavit filed 18 December 2017 and was permitted to rely upon paragraphs 19, and 21 through 27 of his affidavit filed 8 January 2018 by way of response to the mother’s affidavit. 

2. The mother relied upon her affidavit filed 5 January 2018 along with paragraphs 96 through 98 of her affidavit previously filed on 9 August 2016 (in relation to family violence issues canvassed in the Family Report). 

3. In addition, the Family Report prepared 5 January 2018 entered into evidence and became exhibit C1.  This Family Report had been prepared in the context of preparing the matter for final trial. 

Interim proceedings

1. Given the nature of these proceedings, being interim and without the capacity to properly test the competing contentions contained in the evidence, care and circumspection is necessary in terms of resolution of disputed facts.  However, there is an obligation upon the Court to resolve to the extent necessary, and possible, the issues which are required to be resolved to make an order in the best interests of the children. 

Parental responsibility

1. At present there is an order in place for sole parental responsibility, allocated to the mother.  Whatever the disposition of these interim proceedings, that is whether orders are made for X and Y to continue to live with their mother or alternately to live with their father, an order for equal shared parental responsibility would be contrary to their best interests.  It is blatantly clear that no cooperation is available between the mother and father.  They are unable to communicate, each complaining as to the high level of obstruction that the other poses.  They have no capacity to comply with the obligations that would attach to an order for equal shared parental responsibility.  Such an order would result in deep conflict between the parties should there need to be a decision made in relation to long-term issues for either X or Y.  Alternatively, such a situation may well result in a unilateral decision being taken by one of the parties (as suggested by the father’s with-holding of the boys on this occasion) with the likelihood of litigation in respect of such a decision flowing.  Accordingly, an order for equal shared parental responsibility is against the interests of Y and X and an order for sole parental responsibility should be made, vested in whoever it is that they will live with in the interim.

Section 60CC factors

1. Prominent amongst the s 60CC factors in this case are the nature of and benefits of relationships between X and Y and the members of the two households, particularly their mother and father, risks related to family violence, the views of X and Y, the effects of a change in circumstances along with practical difficulties occasioned by both the difficulties between the parents and the distance between Queensland and Canberra.  The balance of the s 60CC factors, to the extent that they may be relevant, are essentially subsumed into these.  In considering these matters, the primary of the objects that are engaged at s 60B(1) are:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;…

Family violence considerations

1. Section 60CC(2)(b) sets out the need to protect children from physical or psychological harm from being subjected to, or exposed to, family violence as being the primary consideration.  Section 60CG provides that a court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence. 

2. Family violence considerations are raised in this matter in relation to the interactions between the mother and X and Y.  The primary, although not the sole, source of evidence in relation to family violence came from matters contained in the Family Report.  At [104] X alleged that had been bruised and bitten by the mother, that he had taken photographs and sent them to the father.  This was denied by the mother.  No such photographs were produced and nor was any corroboration produced from X’s school which, the Independent Children’s Lawyer noted, may have been anticipated should X have had bite marks and bruises. 

3. At [107] Y complained that the mother had covered his mouth when he yelled.  Paragraph 103 contained complaints of hitting, as did [102], which alleged that the mother would yell, lie and hit every single day.  Paragraph 57 contains an allegation by Ms Watts that she observed a “big black mark” on X which X said had come from a spoon.  X has also complained that the mother has sat on him causing scratching to his chest. 

4. Further the mother says that X has assaulted her, causing her to seek assistance from the police. 

5. It may be observed that there are uncertainties as to the occurrence of each of these events of physical handling of the children.  Some are disputed by the mother.  The more serious matters lack any of the corroboration that may have been expected under the circumstances.  A number of the complaints appear at face value to likely be the subject of exaggeration, such as the claim of daily lies and hitting on the part of the mother, particularly given differing accounts regarding the alleged frequency of hitting. 

6. Further uncertainty is as to whether the bulk of the matters alleged fall within a concept of reasonable chastisement.  The Independent Children’s Lawyer noted that much of the conduct appeared to fall within such a category (or potentially fall within such a category) and although it may be perceived to be extreme, it was in answer to extreme circumstances.  He noted that X’s behaviour has transitioned from defiance and rudeness to the mother, to criminal behaviour (shoplifting) to direct violence to the mother.

7. It may be tentatively concluded on an interim basis that there is some risk of family violence within the mother’s household.  The magnitude of that risk however falls at the low end of the spectrum and is to be balanced with other matters in determining what is required by the best interest of the children. 

Nature of and benefits of relationship

1. It appears uncontentious that the boys both have a positive relationship with their father and with the members of his household, including with his wife Ms Watts.  They were reported to refer to Ms Watts as “mum” in the Family Report.  X, in particular, describes that part of the family in positive terms, as a loving family, and describes the actions of his father in providing discipline as fair. 

2. In contrast there are significant issues between the mother and X and, to a lesser extent between the mother and Y. 

3. The difficulties between the mother and X occur in a context of X engaging in problematic behaviours.  He has been suspended twice from school in 2017, for a period of five days and a period of three days.  She has had issues with him engaging in shoplifting and has had to deal with significant denigration from him.  A number of these matters are set out at [72] and following of the Family Report.  The mother notes that X has referred to her as “a bitch” and has called her “psycho”.  These are matters, naturally, that the mother finds upsetting.  When he is with the father, he refers to the mother by her Christian name which again is upsetting.  She has recently experienced an incident where, when she touched X (he had tucked matches into his waistband and there was an ongoing issue in relation to his use of matches) he called “rape”.  Paragraph 74 of the Family Report notes that X placed a recording device, a camera, in the mother’s bedroom (it appears to try and find out what she had done with the Internet connection).  He has assaulted the mother. 

1. At the same time, whilst displaying resistance to the mother in the family report observation, X was observed to have common interests with the mother and “when the topic was of interest to him, he dropped his guard and engaged unreservedly.”

Views

1. A further understanding of the nature of the relationship can be obtained from understanding the views expressed by each of the boys.  Each of them expresses concerns about the mother’s shouting or hitting.  Each of them accuses the mother of lying.  Both express a strong preference that they live in the father’s household.  At its most extreme, X expresses that he wants to spend almost no time with his mother. 

2. The issues surrounding the views are set out in some detail by the Family Report Writer at [169] and [170].  The key aspect identified by X was his focus on being with family (the father’s family) and the fairer parent (the father).  The Family Report Writer’s opinion was that X is “very immature for his age”.  In her view he does not understand the repercussions of his behaviour.  Y presents as “somewhat mature for his age”.  However, again the Family Report Writer thought that Y was “yet to develop the cognitive maturity that would enable him to fully evaluate the benefits and shortcomings of living with a particular parent”.

3. At its extremity it can be seen in annexure 6 of the father’s affidavit of 8 January 2018 where, in response to the mother contacting a potential employer in the Australian Capital Territory (the ACT) for X, X expressed himself as “I’m no longer your son”.  This matter not only highlights the difficulties between X and his mother, but highlights the genuine question as to the degree to which the father is the source of those difficulties.  The particular circumstances here are that the father retained both of the boys in contravention of orders that provide that they would spend the second half of the school holidays with the mother.  The orders also provided that the mother has sole parental responsibility and that the boys will live with her.  Despite those orders, the father had assisted X in applying for employment in the ACT.  The mother’s intervention, to prevent the employment taking place, has the consequence of the adverse communication between X and the mother, where he says “I’m no longer your son”.  There is a strong argument to say that the father was the architect of this discord.

4. These matters throw light upon not only the views expressed by each of the boys, but also as to the current nature of the relationship with the mother.  Unfortunately, there is at present a fractured relationship between the mother and X, although it is not possible to understand fully the reasons for that fracturing.  Potential involvement by the father of the children in the dispute may play a significant role.  For example, the father, although he denies it, was reported by X as having suggested that X contact the court, providing X with the contact details to enable him to do so.

5. What is contentious between the parties is as to whether or not the fracturing is as a result of interference by the father, or the result of the nature of the relationship between the mother and each of the children.  It may be that both factors are at play.

Change of circumstances / practical difficulties

1. The distance between the parties presents practical difficulties whatever arrangements are made.  If the boys are living in Queensland with the mother, there are difficulties in transporting them to and from Canberra to see the father and the rest of his family.  Likewise if they are living in Canberra there are difficulties in transporting them to Queensland.  One of the aspects of difference between these parties is that the mother has complied with orders to cause Y and X to travel to Canberra to see their father.  While in her care the relationship with the father has remained strong.  However, now on a number of occasions, the father has withheld X and Y rather than return them to the mother, resulting in Court action.  This presents as a significant practical difficulty. 

2. Further, a change in the living arrangements for X and Y would mean not only a new household, but new schools in Canberra. 

3. Of significance, the Independent Children’s Lawyer observed that one of the effects of a change in circumstances such as is proposed by the father, is that it operates in practical effect as a final order.  While this is not technically true, it may be seen that the practical effects of an interim order for such a change in residence are likely to have a significant impact on the final disposition of matters.  What was of concern in relation to this aspect to the Independent Children’s Lawyer, and likewise to the Court, are the ramifications that such a change might have for the relationship with the mother.  The Independent Children’s Lawyer noted that the father’s relationship with the children will survive the children returning to Queensland although it is questionable what may happen to the relationship with the mother should they remain in the Canberra region.

Discussion

1. It may be observed that there are strong matters pointing in different directions in relation the resolution of this matter.  In noting those matters, it is important again to acknowledge that there is significant uncertainty in relation to these matters, given the interim nature these proceedings.  While often it may be thought that the view of a 15 ½ year old would be determinative on its own, the degree of immaturity attached to that view means that is not so in this case.  However, it is still a matter to be accorded some weight.  What is pivotal is what accompanies that view, and that is the fracturing of the relationship between the mother and, in particular X.  While there are difficulties in the relationship with Y, as expressed in the views that he has told the Family Consultant of, they are not so grave.  However, in X’s case, the fracturing of the relationship is serious and carries with it a significant risk of a descent into family violence, either on the part of X towards the mother or the mother towards X.  This also carries with it the risk of Y being exposed to family violence,  This also means that, even if X and Y were to return to Queensland with the mother, there are significant questions as to how that might benefit her relationship with each of them.  It is notable that neither parent sought or raised the issue that orders be made separating X and Y. 

2. On balance, the fracturing of the relationship with X, when coupled with the view expressed by X and Y and the risk of exposure to family violence is pivotal and means that orders will be made for Y and X to remain in the ACT with their father.

3. This is the case despite the risks that flow to the relationship with the mother should the boys be living with the father.

4. However, despite some equivocation on the part of the father as to whether or not X should be subject to orders which require him to visit his mother, there can be no confidence that, absent an obligation imposed by orders that the father will encourage X to spend time with the mother.  Orders will accordingly be made to provide for both X and Y to spend portions of their school holiday periods with the mother.   Further, orders will be made that, pending the final hearing of the matter, the boys will spend the bulk of their school holiday periods with the mother. Orders will also be made to support regular electronic communication with the mother.

5. In terms of providing funding for the travel between Canberra and Queensland, in the absence of the parties providing any further evidence about this matter, orders will be made that reflect the current allocation of expense as provided for by the decision of the Honourable Justice Finn on 31 January 2013.

6. Orders will also be made for an updated Family Report in order to prepare this matter for final hearing later this year.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 January 2018.

Associate: 

Date:  16 January 2018