Webber & Jarrett
[2023] FedCFamC1F 16
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Webber & Jarrett [2023] FedCFamC1F 16
File number: HBC 140 of 2019 Judgment of: MCGUIRE J Date of judgment: 25 January 2023 Catchwords: FAMILY LAW – CHILDREN – Application by mother that the child live with her and that there initially be a four month moratorium on the father spending time with the child – application opposed by the father in circumstances where child has lived with him since separation – relocation – allegations of family violence – child’s views – complex special needs of the child – orders that the child be permitted to relocate intrastate to live with the mother – order that there be a moratorium on the father spending time the child for a period of 16 weeks and thereafter for half of all school holidays and by telephone each Wednesday – order that mother have sole parental responsibility for the child Legislation: Family Law Act 1975 (Cth) ss 60B, 61B and 60CC, Cases cited: Champness & Hanson [2009] FamCAFC 96, (2009) FLC 93–407
Goode & Goode [2006] FamCA 1346, (2006) FLC 93–286
KB & TC [2005] FamCA 458, (2005) FLC 93–224
Morgan & Miles [2007] FamCA 1230, (2007) FLC 93–343
Paskandy v Paskandy [1999] FamCA 1889, (1999) FLC 92–878
U v U (2002) 211 CLR 238, (2002) FLC 93–122
Division: Division 1 First Instance Number of paragraphs: 149 Date of last submissions: 12 January 2022 Date of hearing: 24, 25 and 26 August 2022, 19 September 2022, 24 October 2022 and 25 November 2022 Place: Hobart Counsel for the Applicant: Ms Graves Solicitor for the Applicant: Litigant in Person Counsel for the Respondent: Mr Trezise Solicitor for the Respondent: Dobson Mitchell Allport Counsel for the Respondent: Ms Watson Solicitor for the Respondent: Legal Aid Tasmania ORDERS
HBC 140 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEBBER
Applicant
AND: MR JARRETT
Respondent
order made by:
MCGUIRE J
DATE OF ORDER:
25 january 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
2.The mother have sole parental responsibility for the child Y born 2006 (“X”).
3.X live with the mother, Ms Webber (“the mother”).
4.X not spend time with or communicate with the father, Mr Jarrett (“the father”), for a period of 16 weeks from the date of these orders and thereafter X shall spend time and communicate with the father as follows:
(a)by telephone each Wednesday at 7.00pm with the father to initiate the calls and the mother to permit and assist X to accept such calls;
(b)for one half of each of the Tasmania gazetted term school holiday periods from 4.00pm on the last day of school term until 3.00pm on the Saturday midway through the school holiday period;
(c)on a week about basis during the longer Christmas/summer school holiday period with changeovers to take place on Fridays at 5.30pm and to commence on the first Friday of such holidays in 2023 and each alternate year thereafter and commence on the second Friday in 2024 and each alternate year thereafter; and
(d)Such further variations of the above and further or alternate times as agreed between the parents in writing including, at the mother’s discretion, there being telephone or other communication between X and the father earlier than anticipated at order 4(a) hereof.
5.For the purposes of changeovers the father shall collect X from the mother’s residence at the commencement of his time and the mother shall collect X from the father at the conclusion of his time with X unless otherwise agreed between the parents in writing.
6.As soon as practicable after the making of these orders the Independent Children’s Lawyer meet with X to explain the force and effect of these orders and that the initial transition for X to the care of the mother take place as directed by the Independent Children’s Lawyer.
7.Liberty be granted to the parties and the Independent Children’s Lawyer to apply in respect of the execution of these orders.
8.The appointment of Independent Children’s Lawyer be extended for four (4) calendar months from the date of these orders.
9.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
10.All extant applications, except for costs, be otherwise dismissed.
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 the pseudonym of Webber & Jarrett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATIONS
These are parenting proceedings in respect of “X”. X was born in 2006 and biologically female known as Y (now aged 16 years). The child now identifies as male and chooses the name “X” and will be referred to as such in these Reasons.
The mother, Ms Webber, is supported by the Independent Children’s Lawyer (“the ICL”) in the orders that she seeks for X being that she have sole parental responsibility and that X live with her in City B. The mother and the ICL propose a moratorium of time for X with the father for four months following which X spend holiday time with the father on a week about basis where the father habitually lives in City C some hours’ drive from City B.
The father, Mr Jarrett, proposes that X continue to live with him and that the parents have equal shared parental responsibility. He proposes a continuation of a recent arrangement whereby X spend each second weekend with the mother from Friday afternoon until Sunday at lunchtime and perhaps increasing to block periods during school holidays in the near future.
RELEVANT BACKGROUND FACTS
X is unanimously described as a vulnerable teenager with complex needs and various diagnoses.
The mother lives in rented accommodation in City B. She is in a relationship with a Mr D. She is employed with E Organisation working with families. She is 42 years of age.
The father is 44 years old. He lives in City C. He is habitually unemployed. On the evidence, he is not currently in a relationship.
The parties agree that they commenced a de facto relationship in about 1998 or 1999. The father says they separated in 2010. The mother says that separation was in 2015.
The parties have another child, Ms F, born 2001 and hence now 21 years of age. Ms F is herself now a mother.
The evidence is that the mother is in good or reasonable health. She says that she was previously diagnosed with “significant anxiety” which, on the evidence, appears to have been situational to the relationship between the parties.
The father’s own health is complex and confusing. He says that he was diagnosed in 1988 with a chronic medical condition. I am told that it is a serious disease. The father’s evidence generally was suggestive of a debilitating and perhaps life-threatening disease for which there is no cure and which impacts, at times, seriously on his enjoyment of life.
The father also claims various other medical issues including a diagnoses of post-traumatic stress disorder (“PTSD”) and physical conditions.
The mother moved from City C to City B after what she says was separation in 2015 leaving X and Ms F in the care of the father without any arrangements for detailed time between children and mother. The mother says that the relationship was psychologically, emotionally, verbally and physically abusive causing her some situational mental health issues.
Ms F moved from the family unit with the father and X in late 2019. She did not give evidence in these proceedings.
X’s time with the mother has been sporadic at best since 2015 and often with gaps of no time at all until late in these lengthy proceedings when X appears to have been enjoying more consistent fortnightly weekend time with the mother. This was despite there being interim consent orders made by Judge Taglieri in November 2021 providing inter alia for X to live with the father and spend time with the mother each alternative weekend from Thursday until the following Tuesday and for block periods of seven nights during school holidays.
The evidence suggests that the father has received various government supports and National Disability Insurance Scheme (“NDIS”) funding since at least 2017 for X. It is not disputed on the evidence that some of the services afforded X through the father have lapsed due to them not being taken up or inconsistent use.
THE ISSUES
The mother seeks orders that disturb a long-standing status quo for X living with the father in City C such that X would live with her in City B. As such, the issues involving relocation of a child are relevant here.
There is an issue as to the weight to be accorded to X’s own views and preferences as to his living and parenting arrangements where it is clear that he wishes to remain living in City C with his father and hence the ramifications for X (and the parents) should orders be made contrary to those expressed views.
The capacity of each of the parents to attend to X’s many, complex and special needs is very much at the crux of the Court’s determination as to his best interests.
The attitude of each of the parents to the responsibilities of parenthood is at issue where it is alleged that the father has not, does not, and will not encourage and facilitate X’s relationship with the mother should the child continue to live with the father.
There are general issues as to the capacity of each of the parents to attend to X’s needs including adequate and stable accommodation, financial support, and the like.
THE MOTHER’S CASE
The mother says that X should move to live with her in City B with a moratorium on contact with the father for four months followed by time limited to school holidays. She says that she is more attuned to and proactive in engaging with health professionals and others in respect of X’s needs than is the father who has been shown neglecting in this area.
The mother says that she is more objective in understanding X’s needs including to encourage a continuing relationship for X with the father where the evidence suggests that the father has thwarted the child’s relationship with the mother in the past.
The implication of the mother’s argument is that she will provide X with more extensive social outlets including a greater attendance at school.
The mother says that she is stable and healthy in her own life with stable accommodation and employment contrary to the role model presented by the father.
The mother says that she is aware of X’s stated views and preferences but feels able to deal with any negative responses and reactions by X to a move against his wishes where she says those preferences should be viewed in the context of X’s disabilities and the enveloping relationship that the father has established with X.
The mother says that against a background of family violence, conflict, and the father’s attempted alienation of X from her, she should have sole parental responsibility for X and particularly in circumstances where the father has not properly engaged himself or included the mother in X’s various medical issues.
THE FATHER’S CASE
The father says that the parents should have equal shared parental responsibility where X has special medical and psychological needs. He says that X should continue to live with him and proposes a traditional form of time–with for X and the mother.
The father argues that X’s wishes should be given considerable weight given his 16 years and that there is likely to be a severe negative response from X should orders be made contrary to his wishes and given his own focused viewpoints consistent with his diagnoses.
The tenor of the father’s case is that he has addressed any alleged previous deficiencies in his attending to X’s special needs including engaging with therapists, medical practitioners and support workers.
The father says that he can provide consistency for X in school, community supports and activities together with peer group relationships all of which would be disturbed by a move for X to City B to live with the mother.
The father says that his relationship with X is established, strong and dependent where X effectively spent no time with the mother in his formative years between 2015–2018. He says that the relationship between he and X has developed as a close and trusting one with a depth not shared between the mother and X.
Generally the father says that he has an understanding of and has developed skills to deal with the hugely challenging difficulties presented by X in circumstances where the mother is not an experienced parent of a child with such particular needs.
Also generally, the father’s case paints a picture of a complex child with challenging needs who has developed a world of his own in his father’s home and where the father is sensitive to and empathetic of X’s needs such that would be likely to cause severe emotional and psychological issues for the child should his world be upset but where the father can continue to develop X’s potential where it is a given that X’s care will continue well into his adult life.
THE ICL’S CASE
The ICL adopts the position of the mother and the arguments mounted by her.
THE RELEVANT LAW
The orders that I make are parenting orders and I am therefore to have X’s best interests as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”).
Issues of a proposed relocation of a child are among the more difficult that come before these Courts. Many of the considerations that are balanced in arriving at determinations as to the best interests of children in their living arrangements are amplified by reasons of distance and pragmatic or logistical issues impacting on the child’s relationship with each of his or her parents from a relocation. Inevitably, given the geographical considerations, one or other of the parents will assume a far greater role and presence in the child’s life than the other. Conversely, the relationship between the child and the remaining parent becomes less frequent or irregular and suffers the strains of distance, logistics and communication. As a result, of course, it is inevitable that one or other of the parents will be aggrieved by a decision to either allow a child to relocate or to order a child to remain in a location with a parent. Such determinations cause feelings of loss, unhappiness, bitterness and adjustment to personal lives and commitments. It follows that cooperative parenting and communicative relationships between parents are challenged.
The jurisdiction of these Courts is in respect of children. That is, whilst I can allow or prevent the relocation of X, I cannot make an order per se obliging one or other of the parents to live in a specific location where freedom of movement in its general sense is constitutionally recognised. In the case now before me, the father has indicated that should X relocate to City B then he may follow. This is an indication only and not put in any way so as to persuade my determination here.
The Act itself is silent as to the concept of relocation of children. It follows that a relocation is neither prohibited per se nor is there a presumption against it.[1] That is, a proposal by one parent to relocate a child, whether that be intrastate, interstate, or internationally, is just one matter amongst a plethora for the Court’s consideration in arriving at orders which, on balance, represent the best interests of the child. That process was emphasised by the Full Court in Paskandy v Paskandy[2] where the Court stated at [46]:
…There can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ‘permitted’. …
[1] Morgan & Miles [2007] FamCA 1230, (2007) FLC 93–343.
[2] [1999] FamCA 1889, (1999) FLC 92–878.
More generally in determining X’s best interests I am to follow a statutory course of consideration confirmed by the Full Court in Goode & Goode.[3] The starting point in that process is a presumption at s 61DA of the Act that it be in the best interests of a child for the parents to have equal shared parental responsibility for that child. “Parental responsibility” is defined in the Act at s 61B as:
… in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[3] [2006] FamCA 1346, (2006) FLC 93–286.
This responsibility is more commonly manifested in more long-term decision-making aspects of a child’s life in matters such as medical procedures, religion, education and similar. Parental responsibility is to be contrasted against the more mundane decisions that parents habitually make for a child on a day-to-day basis. In this matter where issues of addressing the needs of X are very much to the fore the consideration of parental responsibility is a significant one and where the father proposes an order for equal shared parental responsibility whereas the mother argues for an order that she have sole parental responsibility with X to live primarily with her.
The presumption of equal shared parental responsibility applies unless there are reasonable grounds for the Court to believe that a parent or person who lives with the child has engaged in the abuse of a child or family violence within the broad definition of that concept at s 4 of the Act and where in the matter now before me the mother asserts a history of family violence perpetrated on her by the father in various forms.
Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the Court that it would not be in the child’s best interests for the parents to exercise equal shared parental responsibility. Considerations of historical cooperative parenting and an ability to communicate are relevant here.
If the presumption of equal shared parental responsibility applies and is not rebutted then the Court considers firstly, whether orders that the child live in an equal shared time arrangement between the parents is both in the child’s best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court turns to determine whether the child living in a regime of “substantial and significant time” with each parent is also in the child’s best interests and reasonably practicable.
Where the mother lives in City B and the father, in all likelihood, will continue to live in City C then neither of the considerations above could be seen as “reasonably practicable” and the Court then is left with a determination as to whether X continues to live primarily with the father in City C or moves to live primarily with the mother in City B.
In determining the best interests of a child, the Court is mandated to reference the numerous factors set out at s 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out at s 60B as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(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; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The factors under s 60CC are divided into “primary considerations” at subsection (2) and “additional considerations” at subsection (3). The primary considerations are often in direct conflict and are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Later amendments to the Act at subsection (2A) obligate a court to give “greater weight” to the protective considerations at subsection (b) over those of the meaningful relationship at subsection (a).
Additional considerations include issues such as the child’s views and preferences as to living and parenting arrangements; the capacity of the parents to attend to a child’s needs; logistical considerations such as distance and transport, together with other matters which may be of varying relevance.
In the matter now before me, X’s own preferences are of considerable importance as is the issue of the relative capacity of the parents to attend to X’s particular needs and generally. The changes for X anticipated on the mother’s application are also of relevance and particularly so when seen against his unambiguous stated preferences.
Various superior courts have assisted trial judges in matters involving a proposed relocation of a child within the holistic consideration of the child’s best interests and notably by the High Court in U v U.[4] A later Full Court of the Family Court in KB & TC [5] commented:
72.… U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[4] (2002) 211 CLR 238, (2002) FLC 93–122.
[5] [2005] FamCA 458, (2005) FLC 93-224.
An informal set of principles in matters involving relocation have arisen to assist trial judges and have apparently survived various significant amendments to the Act. In Morgan & Miles (supra) Boland J noted:
80. It follows from my exposition of the legislation, that earlier core principles:
-that the child’s best interests remain the paramount but not sole consideration;
-that a parent wishing to move does not need to demonstrate “compelling” reasons;
-that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
-the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
THE EVIDENCE
The mother
The mother relied on her trial affidavit of 20 July 2022. She deposed to being relationship with Mr D for six years although not necessarily living together in the same home. Mr D did not to provide an affidavit.
The mother presented as unsophisticated but open and frank in her evidence including as to her own historical emotional/mental health issues. Her evidence tended to be child focused and she was able to explain and particularise her own circumstances of employment, accommodation and her current relationship.
The mother was an impressive witness who was able to be objectively responsive in cross‑examination and to make admissions against interest where necessary. Her evidence showed an insight into X’s particular needs and a genuine desire to be involved in his life.
I sensed that the mother was not naive in her understanding of the challenges that almost inevitably will arise by X being placed into her care. My impression was of a mother who genuinely believed that her child’s interests and needs were not currently being addressed and that she was willing and able to take on this role.
The father
The father relied on his affidavits of the 23 June and 4 August 2022.
The father was not a good witness. He was at times expansive and elaborate in his responses in cross-examination whilst deflecting from the question. His attempts to portray himself as an altruistic parent in supporting the relationship between X and the mother were not convincing. As in his interview with the Family Consultant, he attempted to give faint praise to the mother whilst clearly emphasising criticisms of her. His comments in respect of the mother were often patronising and at times demeaning.
The credit of the father generally was compromised by his own evidence where he often volunteered facts not set out in his affidavit and then not capable of further corroboration as, for instance, him volunteering that he has achieved a university degree. Similarly, his affidavit evidence was often misleading, frequently selective and incomplete, and at times blatantly false. For instance, where it is clear that X’s attendance at school has been sadly lacking, the father says at [4] of his affidavit of 4 August 2022:
[X] has been doing well in school this year and all throughout Term 1. [X’s] attendance is almost at 100%. [X’s] absences have been as a result of getting his period, which also has impacted on his gender dysphoria. X is not currently taking any puberty blockers or hormonal treatments.
My observations were of the father having a tendency to deflect blame for his own shortcomings to others or, alternatively, to attribute responsibility to X himself when challenged as to his own capacity and asserted failures in attending to X’s needs.
Strangely, where such matters might impact negatively on his parenting capacity, the father was keen to emphasise his own physical and psychological issues including a diagnosis of PTSD and a self-harm incident in 2010 but adduced no medical evidence to show that these issues had been addressed.
I gleaned a sense of entitlement and empowerment in the father personally in respect of the mother and also in relation to his parenting of X all of which was not supported by the evidence where his attempts of justification of asserted neglect in X’s care were unsatisfactory and not persuasive.
Ms G – the Family Consultant
Ms G is an experienced Family Consultant who prepared a comprehensive Family Report dated 19 April 2021. She had also conducted a Child Inclusive Conference and a subsequent report on 23 May 2019.
Ms G refers to X as “Y” throughout her reports and her recommendations appear at [103]–[106] as follows:
[103]It is recommended that this report is released to the Independent Children's Lawyer for consideration about options for release of the report to the other parties that might help to mitigate the impact on [X] of his father having knowledge about the report content.
[104]It is recommended the Court consider ordering a change of primary care to [X] living with his mother.
[105]It is recommended that the Court consider the possibility of [X] having no or limited communication with the father for at least four months.
[106]Ongoing it is recommended that [X’s] time with his father is limited to school holiday periods of no longer than one week at any one time and that phone and electronic communication is limited to once each week at a specified time.
Ms G offers her evaluation supporting her recommendations. At [92] Ms G considers that the physical and/or mental difficulties suffered by each of these parents may have impacted on their own behaviour and interpretation of the other parent’s behaviour. She notes a distinct lack of communication between the parents post separation and, in particular, that the father’s response to the mother seeking increased time with X “appears to have been uncommunicative and obstructive”. Ms G suggests accordingly that the father could be seen as being abusive in a controlling manner.
At [93] Ms G concludes that the information suggested a high level of concern about X’s circumstances in the care of the father. She suggested the independent evidence does not support the father’s report that he had “consistently supported [X] to attend school and specialist appointments”. She finds no supporting evidence for the father’s contention that the mother had been “menacing or obstructive”.
In respect of X’s preferences and views Ms G opines at [94]:
[The father] either lacks understanding about [X’s] cognitive [issues] or he is self-serving in suggesting that [X’s] views should be given significant weight congruent with his chronological age. [X] is not likely to have the capacity to understand the benefits of having experiences separate from his father and his home, albeit he finds them stressful. [X] did not demonstrate a good capacity for independent thought. His report seemed to be largely rehearsed to reflect the views of his father. Like many children, and possibly elevated on account of his disabilities, [X] would rather not become involved in activities that he finds challenging.
At [95] Ms G suggests that X, seems to have had few experiences outside of his father’s home and that her observations suggested that the father “showed no capacity to engage or play with [X] to help him feel at ease”. Ms G further opined that the father might be motivated to encourage X’s dependence on him.
At [96] Ms G suggests that the father has not been able or willing to engage with professionals necessary for X’s complex needs. Consistent with my observations of the father’s evidence in court, Ms G suggests:
… However there is also a cluster of information to suggest that [the father] knowingly misrepresents the truth to excuse or shift the blame to [the mother] for his neglectful behaviours. These longstanding patterns of attitudes and behaviours suggest it is unlikely that even if [the father] were to acknowledge fault, that he may not sufficiently alter or maintain such satisfactory parenting behaviours.
At [97] Ms G observes the mother to have made significant mental health gains since her separation from the father and impressed in having a good understanding of X’s needs and was willing to engage appropriate professional services. Ms G observed the mother to demonstrate excellent skills of parenting empathy and an ability to interact with X. Significantly, Ms G observed X to be “more relaxed and cheerful with his mother compared to when he was seen with his father”.
At [99] Ms G acknowledges that any transfer of primary care for X to the mother would be highly stressful for the child and particularly if, as suspected, the father would not be objectively facilitating of that change and even be motivated to influence X’s negative reaction. Hence, Ms G recommends a moratorium of time for X with the father after a change of primary care to the mother.
The mother was interviewed for the preparation of the Report and gave a history consistent with her affidavit material which appears to be objective, factual and child focused.
Ms G also interviewed the father by telephone where he did not have camera/Microsoft Teams access. Consistent with my observations of the father, he appears to have given an impression of altruism but keen to cover that with criticism of the mother. At [55] Ms G reports:
…[The father] spoke in a soft, compassionate tone of voice. [The father] commenced his interview by saying “I am fine with [X] and [the mother] spending time together”. He believes the spend time with problems are about “[the mother] being stubborn”.
Further at [56] the father is reported as having a proposal to “work on a gradual build-up of time for [X] with his mother” but then saying it is problematic because “[the mother] is rigid OCD, trying to control a set rate”.
Significantly, and also at [56] the father is reported as follows:
He implored “if I keep pushing [X] it will be child abuse, I don’t know what to do”. Asked about positive benefits for [X] in spending time with his mother, the father said he is “working against parental alienation” and encouraging [X] to “form her own opinion” about [the mother’s] “emotional manipulation”.
At [57] the father reports that a “big list of professionals” are involved with X. He further reported that X did not want his mother to have access to the information from the professionals as the father believed that the mother “didn’t agree [X] had [various conditions] and she has been slow to accept that [X] is transgender” with “valuable therapeutic time taken up “re-educating” the mother about [X’s] disabilities…”. The evidence in court suggests to the contrary that it has been the father who has failed to appropriately or consistently engage with professionals necessary for X’s needs.
In respect of the weight to be given to X’s wishes, at 16 years of age, Ms G reports the following at [60]:
[The father] places a lot of weight on [X’s] views. He emphasises [X’s condition and needs] but he does not seem to identify that [X] also has [other issues]. His affidavit dated 26 April 2019 notes [X’s] various developmental delays and that in [early] 2017 [X] was diagnosed as having [various conditions]. However he also notes at paragraph 69 that [X’s condition] “doesn’t affect her intelligence or her ability to understand what’s going on around her. She’s on par with her peers in terms of her development. Her wishes should therefore not be diminished because of her condition”. Attached to the same affidavit are the results of a WISC 9 (cognitive) assessment that [X] has a full-scale IQ of […] (private psychologist dated 22 March 2017). The Education Department documents note a different full intellection/skill School Psychologist assessment dated 23.8.2017 where it is noted that [X’s] Full Scale IQ is in the Extremely Low range: the same or better than only […] same-aged children.
In respect of X’s apparent breakdown of a relationship with Ms F, the father reports “[X] and [Ms F] had some kind of argument”.[6]
[6] At [63] of the Family Report dated 19 April 2021.
In circumstances where the father argues to remain the primary carer of X, he reports his own health issues to Ms G at [68] as follows:
[The father] spoke about his past and current progressive health problems. He reported that at aged 10 he was diagnosed to have [a chronic medical condition]. [The father] reported his life expectancy at age 12 years was estimated to be about 21 years. [The father] reported the medication to treat symptoms of this disease causes [a further medical condition]. He reported [this condition] resulted in […] necessitating the use of [an aid]. He notes in his affidavit dated 29 April 2019 that his [medical condition has] caused […] problems. [The father] notes that in 2010 he was diagnosed with Post Traumatic Stress Disorder (PTSD) and anxiety as a result of [the mother’s] alleged erratic behaviour, her manipulation and verbal abuse. He noted that he suffers from panic attacks. [The father] reported in 2015 he had a [medical episode]. Asked about [another] condition (that he spoke about during the Child Inclusive Assessment), [the father] reported that this is a [medical issue] that effects his ability to know how much time has passed and remember dates and events. [The father] reported that he has alarms to help remind him of events.
Ms G had the benefit of the Child Safety Services material at court under subpoena. She reports at [74] a file note of 20 May 2020 noting a concern in respect of the father as follows:
… is clever and able to manipulate things, speaks for [X] all the time. Way of controlling her… He is a user of the children, lives in another world. Claims he is too sick to do things. Had all these things wrong with him which isn’t true, tries to get crowdfunding. (redacted) has financially supported the girls for years, no longer in a position to help financially. …
Further, Ms G at [76] references documents obtained from M Services being an NDIS provider and notes as follows from a progress report dated 19 July 2020:
There are significant barriers regarding the implementation of the plan. [X’s] parents are separated; [X] resides with her father. Barriers in implementing the plan include [X’s] father not responding; [X’s] father has significant health concerns of his own; [X] is too young to engage on her own; the school has reported to [X’s] mother that [X] is not attending school. [X’s] mother has also been unable to make contact with [X] and [the father]. In an attempt to overcome barriers I have engaged in repeated attempts to make telephone contact; I have made repeated attempts to make email contact; [X’s] previous support coordinator has also made attempts to contact [the father]; I have maintained engagement with [X’s] mother … regularly.
Significantly, these matters of the non-communication between the father and the NDIS provider were put to the father in cross-examination where his explanations asserting non‑receipt of such communications were unsatisfactory and, after hearing such cross‑examination, I believe to have been untrue.
At [78] Ms G suggested that the father was reluctant to present X for interview for the Family Report on the basis of X’s own asserted reluctance. X was, however, seen with both parents and alone with the Family Consultant.
At [80] Ms G’s reports X providing information in a manner typical of a younger child and that X’s responses “seemed rehearsed in much of his information that he could only minimally expand upon”.
X reported that his father leaves it up to him as to whether he sees his mother but generally X showed a reluctance to spend time or any substantial time with the mother.
At [84] X advised that he wants to live with his father
X was observed with the father as sitting “rigidly next to him”.[7] X was uncommunicative and avoiding of eye contact where the father was not seen to be proactive in encouraging X to play, relax or to answer questions from the Family Consultant. At [87] Ms G describes the session as “stilted and downcast”.
[7] Ibid at [86].
X was also observed with the mother and Ms G describes his disposition as “brightened and his lovely smile was first and often observed when he was seen with his mother”.[8] Ms G reports X becoming verbally communicative during the session with his mother and with the mother following X’s lead in becoming involved in playroom activities with communication between mother and child. Ms G describes the mother as demonstrating a good capacity to engage with X and reports at [91] as follows:
The session between [X] and his mother was observed to become joyful and relaxed. There was no affection observed. The family consultant invited [X] to give his mother a hug goodbye but she declined to do so. [The mother] smiled at [X] stating her enjoyment of their time together and she made no reference of his lack of physical affection. [X] seemed relieved to be returned to his father with the knowledge that they would be going home to relax. With [X] not present, [the mother] said [X] usually gives her a goodbye hug.
[8] Ibid at [88].
Mr H
Mr H is an occupational therapist. He did not provide an affidavit but came to court under subpoena. He provided an assessment dated the 16 March 2021 taken as an exhibit.[9] Mr H first met X and the father in early 2021. He describes X then as a 16 year old adolescent living with several conditions with X not speaking during the first interview but with responses coming only from the father.
[9] ICL 3.
Mr H understood X’s aim being to improve hand function and coordination. Various simple day-to-day activities were observed by Mr H.
Mr H describes X’s home circumstances as thus:
[X] and her father have lived apart from the broader community for the last two years. She has bunkered down in her [Suburb J] home.
[X] has contacted the trans community and is exploring her options. Whether this exploration leads to a permeant (sic) change is unknown and is a matter for [X].
[X’s behaviour] is a concern and is a barrier to effective communication.
[X] expressed a clear interest in [various activities]. Any of these interests can be used as a medium of high-quality social engagement and skill development.
Providing [X] with a clinical psychologist will be essential to allow [X] to understand her inner world and move beyond her erected barriers.
[X] is a young woman trapped in a dysfunctional world; there is an urgent need to gently reach out to [X] and provide her with an alternative to her confined world. This will not be easy, and it is likely to take several plan circles to facilitate effective change in [X’s] life.
…
Clinical psychology inputs are needed to assist [X] in understanding her brain and finding a way to allow [X] to step out of her world into the broader community.
It is recommended that a six-month plan be offered to [X], with 6 hours of a mixture of mentorship and direct support. It may be better to position these supports at the end of [X’s] school day. The explicitly targeted of these supports to build [X’s] capacity and resilience.
Exploring [X’s] cognitive and motor processing will be essential to understand better who this young person is and how best to minimise the impact of their [condition].
From the narrow scope of my assessment, it appears that [X] is approaching a crossroad in her life. If left unchecked, [X] runs the risk of being permanently isolated from the border (sic) community.
Ms K
Ms K is an occupational therapist. She provided an affidavit filed 16 August 2022. She was engaged by the father to provide occupational therapy to X. The relationship is ongoing with there having been eleven (11) sessions scheduled and seven (7) sessions being attended at the time of the affidavit.
Ms K’s affidavit annexes communications and conversations between the father and staff cancelling various appointments for X.
Ms K concludes in respect of X as follows:
Despite barriers, in the right environment and with the right support, [X] has the capacity to live a full and meaningful life, fulfilling meaningful roles and participating in the community.[10]
[10] At page 32 of Ms K’s affidavit.
In cross-examination Ms K volunteered that she thought the father to be always encouraging of X.
Ms K informed the Court that she is in a personal and business relationship with Ms L who also provided assistance for X as a support worker. The evidence suggests that both have provided some encouragement and/or assistance for X’s engagement with the LGBTQIA+ community.
Like Mr H, Ms K recommended psychological intervention for X.
Perhaps an indication of X’s physical, psychological and social levels is given by Ms K’s stated goal for X to be “able to tie his shoelaces”.[11]
[11] Ibid at page 19.
Ms L
Ms L provided an affidavit filed 17 August 2022. She is a support worker but also a business partner of the occupational therapist, Ms K. She was engaged by the father as a support worker for X from late 2021. Her affidavit references her assistance for X’s engagement with the LGBTQIA+ community.
Ms L describes her role on Wednesday afternoons as taking X to movies, cafes and also taking X to a family planning clinic for gynaecological advice . She later expanded that role to facilitate changeovers from early 2022 for X from the father to the mother and still later in taking X to school.
Whilst Ms L is complimentary of the father in encouraging X to attend school she says at [29] thus:
My understanding from interactions with [the father] and [X] is that [X] spends the majority of his time in his house and does not leave the house other than in our sessions, school or occupational therapy session.
Ms L attended court for cross-examination on 25 October 2022 and informed the Court that she understood X to have then recently engaged with a psychologist about one month previously.
THE SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to X of having a meaningful relationship with both of his parents
This is a primary consideration but not one which is determinative of the living and parenting arrangements for X.[12]
[12] Champness & Hanson [2009] FamCAFC 96, (2009) FLC 93-407.
The adjective “meaningful” and the term “benefit” each reference a qualitative consideration for X’s relationship with each of his parents. That is, the task for this Court is of a qualitative nature rather than simply quantitatively dividing up X’s time. Further, the consideration is a prospective one in the sense of there needing to be a benefit for X into the future but obviously based on an assessment of past and current facts.
The evidence makes it clear that X has an attached and dependent relationship with the father. Whether there is an appropriate hierarchy within that relationship is an issue with concerns as to whether or not the father encourages and facilitates a proper integration for X into the community even given his physical, emotional and social challenges.
X’s relationship with his mother has been fractured. Again, a question for the Court is as to what, if any, influence the father has had in this respect?
The Family Report interviews and observations are instructive as to the relationships for X with each of his parents and as set out above.
An issue for the Court is whether or not the father is able or willing to facilitate and encourage X’s relationship with the mother should X remain in the father’s primary care. The same question applies to the mother should X move to live with the mother.
A further issue for the Court is the impact on X should his obviously dependant relationship with his father be disturbed or suspended?
Section 60CC(2)(b) the need to protect X from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
An important issue raised in this matter is in respect of the father’s asserted neglect in engaging X, who has complex needs, with appropriate professionals including psychologists and in respect of X’s other issues.
The mother raises historical issues as to family violence which were not agitated to any great extent in the evidence before me but where the mother says that coercive and controlling family violence upon her by the father has caused or contributed to periods with no direct contact between she and X.
Section 60CC(3)(a) any views expressed by X and any other factors such as his maturity and level of understanding that the court thinks relevant to the weight which would be given to his views
X is 16 years of age. He does, however, suffer cognitive issues perhaps compounded by various other physical and emotional conditions.
The father’s evidence, and as repeated to the Family Consultant, suggests a view by him of attributing significant weight to X’s preferred wishes stated to be to remain living primarily with the father.
The Family Consultant, Ms G, suggests that caution should be taken in placing too much weight on X’s stated preferences given his cognitive issues and the nature of his relationship with the father. The Court must, of course, also consider the ramifications for X and others should the Court make orders inconsistent with X’s stated preferences.
Section 60CC(3)(b) the nature of the relationship of X with each of his parents and other persons
Undoubtedly the relationship for X and his father is an important one for the child. There is little evidence of relationships for X outside of that with his father save and except perhaps with Ms L.
The observations of Ms G of X with each of his parents caused some concern in respect of the father and X’s non-communicative and rigid demeanour but as opposed to the observations of X with the mother which, strangely given there has been sporadic contact, appeared easier, more open, and perhaps more pleasurable for X.
The father volunteers that the household of he and X operates in a “democratic” fashion which I interpret to be that the father is not assertive in respect of X even in relation to issues in his best interests per se such as a relationship with his mother and attendance on therapists and professionals and attendance at school. In this sense, the evidence suggests that X’s life is very much limited to his home, often darkened from the outside world, with inconsistent attendance at school and little peer group exposure.
Section 60CC(3)(c) and (ca) the extent to which each of X’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in respect of X; to spend time with X; to communicate with X and to maintain X
Superficially the father has taken responsibility for the care of X after separation from the mother and when the mother moved to City B. The mother does, however, give a plausible explanation namely that she was the victim of coercion and control by the father and where there was relatively little encouragement of her ongoing relationship with X.
The father has been substantially responsible for the financial support of X but does so through government benefits, various government grants and support agencies.
Section 60CC(3)(d) the likely effect of any changes in X’s circumstances, including the likely effect on him of any separation from either of his parents or any other child, or other person, with whom he has been living
It is likely that X is highly dependent upon his father. His outside influences are minimal. His father allows a high degree of decision-making for X in circumstances where it might be expected that the parent would be more assertive given X’s many and complex needs and his cognitive issue. Nevertheless, undoubtedly X has become familiar with and perhaps reliant upon this role model provided by his father. Again, his cognitive issue together with other physical and psychological needs suggests that a separation now for X from his father will have some immediate impact and probable negative responses from X and hence the proposal of the ICL for a period of some length allowing him to assimilate into a new home, parenting role model, and external influences such as a change of school.
Section 60CC(3)(e) the practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
The father lives in City C and the mother lives in City B. The travel time is several hours and a significant distance. The father is relatively impecunious. For the current interim arrangements it is the mother who undertakes all of the responsibilities of travel and my observations of the father and an assessment of his evidence suggest that he would be unlikely, unable, and perhaps unwilling to assist in transiting X between the parent’s homes in the future with any high frequency.
Section 60CC(3)(f) the capacity of each of X’s parents and any other person to provide for the needs of X, including emotional and intellectual needs
This factor is very much at the crux of the Court’s consideration and determination. The mother and the ICL assert that the father is culpable in neglecting X’s many and complex needs. They say that he is not engaged either at all, or at least consistently, with the therapists recommended by Ms K and Mr H, his occupational therapists. The father’s explanation, for instance, for not earlier engaging a psychologist was simply unsatisfactory. His evidence in respect of missed communications with other support workers was, in my assessment, untrue.
The father’s own evidence suggests that his accommodation is, at best, not stable given legal action by his landlord.
The father’s own evidence, much volunteered to this Court for reasons that the escape me, emphasise his various ailments and conditions all of which must lead to a conclusion that his ability to attend to X’s needs is compromised. His case was not supported by any medical evidence in respect of his current medical conditions.
Despite some complimentary evidence from Ms K and Ms L as to the father’s encouragement of X’s attendance at school, exposure to the wider world, and a relationship with his mother, the evidence as a whole causes some doubt as to the optimism of these two witnesses and the insight in this father of his child’s need for external exposure and a relationship with his mother.
The capacity of the mother to care for X is, as suggested by the father’s counsel, something of an unknown. For reasons which may be plausible, the fact remains that she delegated the care of X (and Ms F) to the father upon separation. Her relationship with X since has been sporadic and short term only. X is a 16 year old child with serious and complex needs. Whilst there is much criticism of the father’s attendance to these needs, the fact remains that until now he has been delegated the care for X and the mother’s capacity, skills, insight and endurance remain an unknown.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of the parents, and of any other characteristics of X that the court thinks are relevant
X suffers a low IQ and intellectual impairment. He has a disability. He suffers from physical ailments. There are unresolved issues as to his gender identity and whether or not this might lead to a more complex diagnosis of gender dysphoria. All of these matters will weigh heavily on X’s primary carer and in circumstances where the suspicious, non-communicative, and non-cooperative relationship between the parents themselves will compound the discharge of these responsibilities.
Section 60CC(3)(h) if X is an Aboriginal or a Torres Strait Islander child
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to X, and to the responsibilities of parenthood, demonstrated by each of X’s parents
The father argues that the mother delegated responsibility of X’s care to him and that he has acted to the best of his abilities in attending to X’s needs effectively without assistance from the mother.
The mother asserts that the father does not discharge his responsibility to care for X in that he is neglectful of his medical, psychological, physical, educational, and social needs. Further, the mother says that the father actively discourages X’s relationship with her.
Section 60CC(3)(J) and (k) matters of family violence and family violence orders involving X or members of X’s family
These matters have been dealt with above.
Section 60CC(3)(l) whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to X
In making any “final” parenting orders a Court should expect parents to move forward armed with the orders and Reasons of the Court to parent their child or children cooperatively and objectively in the child’s best interests. Nevertheless, parenting orders can only be “final” subject to change or further litigation if there be material changes in the circumstances of either parent or the child.
Each parent’s proposals to this Court realistically leave open the prospects of further litigation for X although, of course, such should be avoided if at all possible. If X is to remain in the care of the father then evidence given and adduced in this matter suggests that the father himself needs to take a more proactive and parental-assertive role in the parenting of this child who is dependent upon a responsible adult and parent role-model for his day-to-day life. X requires many and professional interventions. The father has arguably been inconsistent at best, and perhaps neglectful, in his attendance to X’s needs. Should X remain with the father and the father fail to address these issues there is a strong likelihood of further application to this Court or, given X’s age, intervention from other state social authorities.
Conversely, however, the placement of X into the primary care of the mother with a change of locality, primary parent, role model, school, peer group relationships, therapists, and social networks all present challenges to both X and the mother’s role as a primary parent with some possibility of a return to these Courts.
FINDINGS AND CONCLUSIONS
I am easily able to find on the evidence that X at 16 years of age is a child with a low IQ, cognitive issues, physical conditions, social and psychological/emotional issues and is therefore highly dependent, now and into the future, on adult assistance and engagement with a number of professionals, therapists and support workers.
I find that the father has been X’s primary and sole carer now for a number of years and that X has developed a dependent relationship upon his father.
I find that the relationship between the parents is a poor one evidenced by mistrust, non‑communication, and no parental cooperation.
On the evidence before me, with particular reference to statements made by the father to the ICL and the responses given by the father in court in cross-examination, I am comfortably satisfied that the father has not promoted a relationship between X and the mother and pays, “lip-service” only to any future intentions to facilitate and encourage such a relationship for X should the child remain in his care.
Whilst I am satisfied that the mother did delegate care of X to the father upon the parents separation and her move to City B, I am persuaded on the balance of probabilities that she moved for reasons of historical family violence, particularly in the forms of coercion and control, and that she herself suffered anxiety and emotional/psychological issues at the time which contributed, at least, to her lack of commitment to continuing a relationship with X. I am satisfied, however, that the mother’s conditions were circumstantial and situational, and where she has established stable accommodation, a relationship, and employment, I am satisfied that she has moved on from these conditions and that her mental and emotional health is relatively stable.
I am unable to conclude on the balance of probabilities that the father has the physical and psychological health to solely care for his child’s complex intellectual, emotional and physical needs. I am bound to accept the unchallenged evidence of the father himself as to his many and varied physical and psychological diagnoses and, without more current medical evidence to the contrary, and unlike my observations of the mother, I cannot be confident that the father has the ability to now attend positively to those onerous obligations for X.
On the evidence, I am satisfied on the balance of probabilities that the father has been inconsistent and at times neglectful in obtaining necessary and recommended therapy, professional assistance, and support for X’s complex needs. The father’s responses and attempted justifications in cross-examination were unconvincing and unsatisfactory.
Generally in respect of issues of credit between these parents I prefer the evidence of the mother where there is dispute. As mentioned in these Reasons, the father on occasions volunteered evidence and asserted facts that were not corroborated and where his affidavit evidence was often selective and hence misleading. I found the mother to be more of an open and honest witness than was the father and where she was more objective and child focused than was the father who showed a propensity to unduly criticise the mother.
I accept on the evidence that any transition for X, given his conditions, will present a significant challenge for both X and for the parent assuming care for him. There are likely to be negative responses from X to that parent which will challenge the skills of that parent and where, in respect of the mother, her skills and endurance remain unknown. Nevertheless, this is just one factor to consider in weighing the positives and negatives for X of either remaining in the care of the father or moving to the primary care of the mother.
I accept that X has articulated a preference and wish to remain living primarily with his father. However, consistent with the views of the Family Consultant, I place little, if any, weight on X’s views given his cognitive issues, his familiarity only with his father’s home, and the probable influence, directly or indirectly, on X by the father and again as noted in the observations of the Family Consultant, Ms G.
I am satisfied, on the evidence of the observations of the Family Consultant, that there is a form of comfortable relationship between the mother and X although where it remains that X’s primary source of dependence is and has been his father.
On the evidence, I am satisfied that the mother is more likely to facilitate and encourage an ongoing relationship for X with the father should X live in her primary care than would the father in facilitating a relationship with the mother should X remain with him.
This is a complex and unusual factual platform in determining the best interests of the child where that child is 16 years of age and has articulated a preference to retain a status quo of some long-standing. Again, the Court is mindful of the likely responses from X should there be a change of primary parent and home for X given his diagnoses, his preferences, his dependency upon his father, and some established social outlets such as his introduction to the LGBTIQ+ community. Nevertheless, the Court has serious concerns as to deficiencies in the father’s capacity to attend to X’s needs. The evidence suggests that he has been neglectful whether by deliberate action or simple inability on his part to discharge the responsibilities of care for X in circumstances where the child’s needs are paramount. The evidence suggests that X has failed to develop to his potential socially and perhaps academically given his father’s neglect. The father was unable to give any satisfactory or persuasive responses to his failure to prudently or consistently engage with therapists, psychologists, and support workers in respect of X. Indeed, where he has delegated much of his responsibility to those support workers, such as Ms L, his own inadequacies have perhaps been emphasised and highlighted.
The thrust of the evidence is that X needs consistent and various supports to enable him to develop whatever his potential may be. That same evidence suggests that the father has been either unwilling or unable to attend to these needs. On balance, therefore, and always mindful of the ramifications of change, I am of the view that X’s best interests are served by moving to live with his mother in City B.
Given the highly dependent nature of X’s relationship with his father, including perhaps some mutual dependency, I accept the submissions of counsel for the mother and the ICL, consistent with the recommendation of the Family Consultant, that there should be a moratorium on direct contact between the father and X for a period of four months so as to give both X and the mother every opportunity to each assimilate into these new relationships for each of them. Thereafter I will order that there be time for X with the father in school holidays as argued by the ICL where the father has shown no ability to contribute, actually or financially, to more frequent travel between homes and where, in any event, my observations of the father suggest that his attitude is unchanging in respect of both the mother and X’s relationship with the mother and hence where he is unlikely to be positive in respect of those matters to the child. Although, he has limited means and resources, I am of the view that the father should share the cost and effort of transiting X, if necessary by utilising public transport and noting that the mother is unlikely to receive child support over the statutory minimum. There will be provision for telephone communications but also with a moratorium, subject to the mother’s discretion, where influence by the father or X must be avoided.
Given my reasons above the, and without emphasis on the mother’s assertions of family violence, I am of the view that the presumption of equal shared parental responsibility at s 61DA of the Act is rebutted as not being the best interests of X where there remains a non-communicative and non-cooperative relationship between these two parents.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 25 January 2023
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