Welton and Welton
[2016] FCCA 3509
•4 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WELTON & WELTON | [2016] FCCA 3509 |
| Catchwords: FAMILY LAW – Interim parenting – future care arrangements – child’s best interests – child’s views – where the child is enmeshed within parental conflict – where there is a degree of collusion between the father and the child – where there is significant undermining of the mother’s parental authority – consideration of unacceptable risk. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60CC(2A), 61C, 61DA, 65DAC, 65DAA, 65DAA(5), 69ZX |
| Cases cited: Bennett & Bennett (1991) FLC 92-191 Stevenson & Hughes [1993] FamCA 14 Jones & Dunkel (1959) 101 CLR 298 |
| Applicant: | MS WELTON |
| Respondent: | MR WELTON |
| File Number: | PAC 6035 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 4 April 2016 |
| Date of Last Submission: | 4 April 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 4 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Judge |
| Solicitors for the Respondent: | McPhee Lawyers |
ORDERS
Pending further Order, the parents Ms Welton and Mr Welton shall have equal shared parental responsibility for their children, X born (omitted) 2001 and Y born (omitted) 2003.
Pending further Order, X and Y shall live with their mother.
Pending further Order, X and Y shall spend time and communicate with their father as follows:
(a)For the last two week of the 2016 July school holidays;
(b)For a period during the Christmas/New Year school holiday in each year, as agreed between the parties or failing agreement from 9 January 2017 until 25 January 2017;
(c)By telephone between 6:00PM and 6:30PM each Wednesday and Friday via such telephone number as is advised to the father by the mother and not otherwise.
For the purpose of X and Y spending time with their father, the mother shall deliver the children to or cause the children to travel to the Brisbane airport at the commencement of each period and the father shall return the mother or cause the children to travel to the mother at Sydney airport at the conclusion of each period.
Pending further Order, each of the father and the mother shall be and are hereby restrained from contacting X or Y save in accordance with the Orders above and/or by electronic means provided however, that the other parent is made aware of the communication and its contents and in the case of email that the other parent is copied into the email.
Pending further Order, in the event that the child X should leave the mother’s care, then the father shall not allow or permit the child to be placed into his care or the care of his extended family members (subject to welfare agencies or similar government instrumentalities exercising their powers of placement) and shall immediately upon being contacted by X contact the mother to advise her of that fact and of any information received from X as to her whereabouts.
Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9:00am on 15 July 2016 and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
Each party shall forthwith, do all things, sign all documents and give all consents, authorities and instructions as may be necessary to ensure that each parent is recorded with any school attended by the children as a parent and emergency contact person and so that each parent may obtain directly from that school such reports (whether written or oral) or information as they may desire and so that each parent can attend upon and participate in any events at the school to which parents are invited or encouraged to attend.
Each party shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to allow and permit each parent to be fully advised and consulted with respect to any Psychologist, Counsellor or similar professional upon whom the children have attended and to obtain from them any report that has been provided by them to date and that neither party shall allow, cause or permit X to attend upon any other/additional psychologist or counsellor without the consent of the other first obtained save for the Anchor program.
The father shall forthwith, arrange for the return of X to the mothers care and shall advise the mother of the flight upon which the child is traveling from Brisbane to Sydney so that she might meet the child at the airport.
The matter is adjourned for further mention and directions to 7 September 2016 at 2:30pm.
Grant liberty to the Applicant to restore the proceedings to the list on 24 hours’ notice, in the event that the child is not returned to her care by 6 April 2016.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Welton & Welton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6035 of 2015
| MS WELTON |
Applicant
And
| MR WELTON |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to interim care arrangements for two children:
X born (omitted) 2001, aged 14 years of age; and
Y born (omitted) 2003, aged 12 years of age.
Whilst the proceedings relate to both children, the primary focus of the proceedings today, verging upon exclusivity, has been upon the elder child, X. Poor Y has been left somewhat out of the picture.
There is no controversy that Y will continue to live with her mother where she has lived since these parties separated 10 years ago.
Matters are further complicated by the fact that the parties live in separate States and have done so for a significant period. The father lives in Queensland, the mother in Sydney.
Both parties are in paid employment. The mother works full time. The father works full time. The mother is engaged in what might be viewed as somewhat traditional employment whereby she attends a place of employment relatively proximate to her home each day. The father is engaged as a fly-in fly-out worker and, doing the best as can be done from the material as it stands, works away from home for two weeks out of each three.
The primary issue between these parties relates to the elder child, X, as indicated and whether she will pass into the father’s care to live in Queensland, separate from her sister, or be returned from Queensland, where she is presently staying with her paternal grandmother, and return to the mother’s care or, on the mother’s alternative proposal, pass into the care of a close family friend who would appear to be mutually acceptable to these parties as a person to be trusted.
Material considered
In dealing with the proceedings today, dealt with in a duty list and only by the Court extending its sitting hours by some hours, I have read the following:
a)The mother’s Initiating Application filed 11 December 2015;
b)The mother’s Application in a Case filed 1 April 2016;
c)The mother’s Notice of Risk filed 11 December 2015;
d)An Affidavit of the mother filed 11 December 2015;
e)A further Affidavit of the mother filed 1 April 2016;
f)A Minute, Exhibit A1, of alternate Orders proposed by the mother and, Exhibit A2, certain documents relating to the school that it is proposed the child would attend in Queensland and the school that the child presently attends;
g)I have also received a Case Outline document from Counsel for the mother.
In the father’s case I have read and considered each of the following documents:
a)A Response filed 10 February 2016;
b)An Affidavit of the father filed 10 February 2016;
c)A Notice of Risk filed by the father 10 February 2016;
d)An Affidavit of the father filed 3 April 2016;
e)A Minute of Orders, Exhibit R1.
In addition, I have also had regard to the interim Terms of Settlement that were executed by the parties and submitted to the Court some time ago for the purpose of Orders being made in Chambers. Those Orders were not made. The Orders would appear to relate to a not dissimilar precipitating event to that preceding these proceedings, that is, the failure of X to return or to be returned from a period of school holiday time with the father. Those Orders were not made due to any concern as to the appropriateness of the care arrangements for the children as proposed, but rather because the Orders included provision for a Police Officer to execute a Recovery Order in perpetuity to ensure the child’s return on each occasion.
The mother’s case is that young X and Y have lived with her all of their lives and certainly for the 10 years or approaching 10 years that these parties have been separated from each other. The mother suggests that both children are intelligent and doing well at school.
An issue with respect to X would appear to have arisen over the last 12 to 18 months in particular, although that is not to suggest the issue might not have arisen at any earlier time. During that period it is suggested that the child has begun to express personally to the father and, in the last 12 months, to the mother, a desire to live with her father. The Court was taken to portions of the mother’s evidence wherein it is conceded that the child has made statements to that effect (at paragraphs 171 and 173) saying to the mother, particularly after altercations between the two siblings and the disciplining of one, both or other, “See that’s why I want to live with dad. You always side with Y,” and, “that’s why I want to live with dad”. Such statements are suggested to be in the context of disputes with respect to the child’s homework.
Clearly, on the evidence of each of these parties, this young woman is engaged with a significant workload at her private school and is often engaged in completing assignments such as on Easter Friday and in the small hours of the morning. On that occasion there were text messages passing between the father and the child at 3:00am when she suggests that she was staying up to complete an assignment.
The mother seeks that the child return to her care. The mother seeks, in addition, that the father be restrained by injunction from contacting the children, and particularly X, by telephone, save once per day or so. That arises from a significant element of this case, namely, text messages which have passed between X and her father and which the mother has been able to access, some of which are annexed to her material. I will deal with those messages shortly.
The father’s case is that X should now pass into his care.
There is no dispute between these parents that X left her mother’s care on or about 26 March 2016, being the Easter weekend or proximate to it. The child and father were in active communication by text in relation to the child leaving the mother’s care, not, it should be observed, to travel to Brisbane and pass into the care of her father, but, nonetheless, to leave the mother’s care for at least the Easter weekend and without notice to the mother that she was doing so nor where she was going. The text messages in that regard, annexure A to the mother’s more recent Affidavit, commence with a message from the father:
Yeah ok! Seems that are planning (sic) something for court to make me look real bad and hurt our case – that’s what we’ll talk about tonight!
It is unclear who it is that is planning something for Court. Presumably, from the balance of the evidence, the mother and the father’s most recent former partner, the mother of a child B born of that union. Ms B, that child’s mother, and Ms Welton have recently commenced communication with each other. It is unclear who the “our” referred to in that sentence is – whether it is the father and other adults, for example, his current partner, or whether it is the father and X. The text messages go on for some little time, at least those which are annexed to this document. It may well be that there are other text messages which may come before or after those which are annexed.
At one point in the text messages the father indicates:
I tried calling you yesterday (you were at work and your mother said you won’t be allowed to call back) and today – no one answered. What’s going on???
The child confirms that she was at work. She was then asked, “What? Today as well???”
And the child responds, “And today idk she probs just didn’t answer bc she a massive b***h”.
There is no attempt by the father at that point to admonish the child for referring to her mother in those terms. The father refers to the fact that it is a long weekend for Easter. The child then comments, “Yes but nooooo more time at this s**hole [referring to her home].
The father replied by text message, “Just go walkies/scootering or visiting. Lol!” I am sure your cuzz’s (as in A ect (sic)) will come get ya from somewhere!!”
Thus, when the child has indicated that she wishes to leave the mother’s home the father actively encourages her to do so. The father suggests she catch a train. The child then responds, “I’ll ask” and the father indicates, amongst other things, “Your mother can’t stop you!!” The child responds:
(1) she will. (2) but not if she doesn’t catch me. (3) I don’t wanna (sic) get (omitted) and co in trouble. (4) you might want to warn them. (5) how am I meant to get to the train?
There is then some discussion about how the child would do that. The reference to the mother not being able to stop her is consistent with other text messages which are annexed. Now, at page 58 of the mother’s Affidavit is a particularly troubling text message from the father to this young girl. It reads:
I don’t think you really understand how serious all this court stuff and remaining in contact is X – you need to keep in touch with me everyday! You need to be documenting EVERTHING and if your mother stops you find other ways to do so!!!!!!! Okay????
The text messages suggest that there is a clear degree of collusion between the father and this child. She is clearly engaged by the father to keep secrets from her mother, including and to the extent of leaving the home on the Easter weekend, without notice to her mother either that she is doing so or where she is going.
X then contacts her cousin A who is the child of the father’s brother. In discussion with that child, X asks her cousin to go and get permission from her father so that she might come and stay for some time over the weekend. When there is a discussion about whether they should collect her or whether her mother will deliver her, X makes clear that she will catch public transport, something which, on the mother’s evidence, X does not routinely do herself or without the company of others. She indicates that that is because she is running away. A, the cousin, responds, “Just tell your mum you are going outside to the rubbish bin and she won’t be like suspicious that you have a bag then make a run for it”.
The child responds that she might simply leave early in the morning while everyone is still asleep, the balance of evidence making clear that the mother was, at this time, somewhat ill and sleeping longer than might otherwise occur. What ultimately has transpired is that the child has left the mother’s home very early in the morning, the mother hearing the door and getting up to find the child gone and her bedroom empty.
The child has then travelled to the home of her cousin A and A’s father, Mr L, has allowed her to remain. That is not to suggest any criticism of Mr L, purely that it is an agreed fact. The child arriving there on 26 March 2016 is not disclosed, however, to the mother. The mother contacted the Police. Significant public expense was incurred while Police attempted to find this child during which, it is suggested, Mr L was contacted by Police and suggested he did not know what was happening.
Clearly if that is so – and there is no strictly admissible evidence to that effect – that statement by Mr L was deceptive. The father was told of the child’s whereabouts at some point in time, certainly it seems, before the mother.
The Police became involved when the child was presented to the Police Station by Mr L on the evening of 26 March. The mother was then told about an hour later.
It is suggested that the child had told the Police that her mother had physically abused her and, as such, she had been “allowed” by Police to stay in the temporary care of Mr L.
On 29 March 2016, the child was delivered to the mother’s home in company with two Police Officers and Mr L, X suggesting she wanted to collect property. X began to empty out drawers into garbage bags that she had come prepared with but the Police told her, after the mother had commented that it would not be so, that she could not take all of those items. The Department of Family and Community Services was contacted for assistance.
Ultimately, the child left again with Mr L. The mother is clear on her evidence that this was subject to four undertakings or guarantees that the mother required and that the Police obtained from Mr L, including that the child would not leave the State and would remain living with Mr L until 4 April 2016, being today, the date that this matter was due back before this Court to hear and determine any issue that the parties sought fit to raise.
Instead what ultimately occurred that day or the following day is that the child was placed by Mr L on a plane to Brisbane and the child has since been in the care of her paternal grandmother, not the care of her father who was, for the last long weekend, in Melbourne with his current partner and his child B. The father has come to Court today, whether via Brisbane or otherwise. X has remained in Brisbane with her grandmother. Thus, she has not, in effect, gone into the care of the father at any point in time.
The father’s proposal is that X would now come into his care and should attend a local High School proximate to his home, (omitted) High School. The father suggests that he can change his work arrangements so that rather than being away from home for two weeks of each three that he can be home and based in Brisbane. His partner will provide some assistance.
The father’s proposal in accordance with Exhibit R1, is that X would live with him, Y with her mother and that the children would see each other for two periods of five hours each during each school term when the father would travel to Sydney with X on a Saturday. The child X would be delivered to the home of a mutually agreed third party and the mother would then spend time with X, presumably also with her sister, at or by collecting the child from that property.
On the following day, Sunday, it is suggested the mother would deliver the younger child Y and she would spend five hours with the father and presumably her sister. The father’s proposal would see these two children passing from living together full time for all of their lives to spending 10 hours together per school term approximately each 10 weeks together. The father also proposes Orders such that the parties not contact each other personally on weekends or at any other time, it would seem.
This is the dispute between these parents.
The father suggests that the child X has disclosed to a number of people, including his mother and his sister, that she has been ill treated by the mother. He suggests that she had told his mother in mid-2015 of various concerns such as being slapped, kicked in the thigh, kicked in the shin, punched to the arm, slapped on the hand and yelled at. There is no dispute that yelling has occurred within the home nor is there any concern from the Court’s perspective that yelling would occur.
It is suggested on the father’s case that if the child is now required to return that she may self-harm (although, I am not satisfied there is any evidence that would support that concern) or that she may run away and place herself at risk or in harm’s way by doing so, (very much referable to that discussed by the Full Court of the Family Court of Australia in Bennett & Bennett (1991) FLC 92-191.
As indicated, this matter is dealt with in a busy duty list. It is now 5:30pm. I do not propose to canvass the evidence in any greater detail. That which has been identified as the material relied upon has been read and considered, in full. I will refer to specific aspects of it in addressing the legislative pathway to which I now turn.
The Court is reminded, by section 60CA of the Family Law Act 1975 that in all that is done the child’s best interests are the paramount consideration.
I must then turn to the objects and principles in section 60B of the Act and which I incorporate herein.
Objects of Part and principles underlying it
(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 objects and principles do not form part of the substantive law, but do guide the implementation and interpretation of the substantive provisions. They give guidance and direction to the Court as to that which should be achieved in any Orders that are made. Accordingly, they warrant some attention.
The Court is required to ensure that the best interests of children are met by ensuring that they have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child, and that children are protected from physical or psychological harm caused through exposure to abuse, neglect, or family violence.
Certainly, the issue of suggested abuse of the child is raised, although curiously only with respect to X, not her younger sibling. It is not curious in the sense of occasioning disbelief, purely an observation regarding the evidence. In relation to that suggested risk, the Court cannot determine whether the child has in fact been subjected to abuse of any nature. However there are, as is submitted by Counsel for the mother, various aspects of the evidence which cause some difficulty with that suggestion.
On 6 October 2015, it is suggested that the child sent a lengthy text message to her mother, (see paragraph 147 of the mother’s Affidavit, 1 April 2016), wherein she asserts that the things that have been done to her are “Maybe not physically, but definitely mentally” abusive. The child would appear, at that point, to decry any physicality of suggested abuse towards her, although it is not dispositive of the issue. That text message is certainly sent to the mother well after the period when the father suggests that his mother and sister were told certain things by this child.
The context of the child leaving the mother’s care is also curious. The text messages at Exhibit A suggest that the child wished to be away from home for some period of time. Certainly, the father did not hatch that plan for the child, but nor did he seek, in any fashion, to disabuse his child of the advisability of the plan. Indeed he responds, when she suggests she might leave the mother’s home (inferentially, without notice to the mother, and without permission), “Just go walkies/ scootering or visiting.”
The father is quite clear that this child need not tell the mother what she is doing. He, most assuredly, did not tell the mother. A parent who expresses to this Court such concern that the child might run away might be expected to have put personal feelings and antipathy towards the mother aside and to have let her know, to give her a heads up, that this might actually be happening. However, that did not happen. All that occurred was that the child was encouraged to contact her cousin, paternal, to make arrangements and to leave without telling the mother, and the suggestion, “Your mother can’t stop you.”
The text messages demonstrate a significant undermining of the mother’s parental authority. The mother also annexes material going back to 2009 which suggests that such comments, such undermining, such active failure to support, as might have been the subject of discussion by Fogarty and Nygh JJ in Stevenson & Hughes [1993] FamCA 14, has been going on for some few years. Now, it is directed only at X, it would seem. Why Y is not the subject of such attention, or the father’s desire to maintain daily communication, is unclear.
But certainly that is something very much made clear by this child, who at one point in time has sent her father a screenshot of her reminders on her telephone to demonstrate, in response to the father’s insistence that she must contact him daily, that she has a reminder set on a daily repeat, “TEXT DAD”. That is suggestive not so much that the child needs to be reminded to contact her father, but that she is conscious that it is a duty, an obligation, upon her shoulders – her 14 year old shoulders.
That which is suggested as the child’s abuse is also problematic as regards the rules of evidence. While section 69ZX(1) of the Act permit the admission of evidence which would otherwise be excluded through a strict application of certain portions of the Evidence Act 1995, such as Part 3.2 dealing with hearsay, the weight to be attached to that evidence is to be determined by the Court, see subsection (2). The determination of weight must be undertaken by reference to the very rules of evidence which are otherwise excluded.
In any event, there are rules of evidence which continue to apply, and which are unaffected by section 69ZX of the Act, (including sections 135 and 136 of the Evidence Act 1995, giving the power to exclude or limit the use of evidence), as well as common law principles such as those established by Jones & Dunkel (1959) 101 CLR 298. Whilst I accept that the mother’s most recent Affidavit has come on with very little notice to the father, not only as it was filed one working day prior to this determination, but as the father was in Melbourne all of last weekend, and had no real opportunity to confer properly with his attorneys, he has had some significant notice of the suggested concerns raised by the child with his family, and yet that material has not been placed before the Court by the father.
There are certainly a number of sources of information which will be pursued. Indeed, they are likely to become rich veins of information in these proceedings. The Police, the Department, the school, the school counsellor, the psychologist with whom the child has attended on at least two occasions. That material is not here today, and it is appropriately submitted by Counsel for the father that there is much that the Court does not know.
The Court, however, can only proceed to determine this matter based on that which is known, the evidence that is presently available. On that evidence, and by reference to the various authorities dealing with unacceptable risk, (and in that regard I have had regard to the relevant portion of Deacon & Castle [2013] FCCA 691 setting out those authorities addressing that issue), I am not satisfied that this child has been, or could be, the subject of a finding of abuse at this interim hearing. The evidence is too unsatisfactory and too uncertain.
That does not mean that abuse as alleged is not a possibility. However the child herself, in the text message sent by her to her mother, would appear to disavow the very physicality of suggested abuse that the father refers to. I must also view it in the context of the enmeshment of this child in discussion about such issues. The text messages already referred to, for example, which make very clear how acutely aware this child is of these proceedings, and the father’s position.
There is also, within the body of the mother’s Affidavit, further suggestion as to some degree of pressure placed upon this child, at paragraph 90 for example. Conversation is referred to where both parties are present at the same time, together with a friend, the father’s girlfriend Ms K, and X. At that point in time, the father turns to X and says to her, “tell your mother how she has physically abused you.” X then responds, “you slap me, you kick me, you hit me.”
The partner then chimes in, “and X don’t forget she pulls your hair – remember.” A friend Ms M is then the appropriate, responsible adult in the conversation, who says to all, “listen, this is not appropriate.” There is then discussion at other points wherein this child is told clearly what is going on with proceedings, and what is going on between the parents. The mother is constantly denigrated – the father tells X that her mother is lying and that her mother is lying to her about phone calls and the like and that such behaviour is exactly what would be expected.
The mother is castigated for the child cooking her own meals from time to time, although clearly from the text messages with her father she has lacked some degree of tuition in the preparation of meals. At paragraph 83(g), the mother gives evidence that in August 2014, X was speaking with her father about a fight that X and her mother had had at shops over the purchase of an item and that the child was told, “fine make your own dinner.” There was then a text conversation between the father and X about that.
Further conversations along similar lines continue. The child is told in that conversation, “Now’s the time to say what you need to say!!”, no doubt, a reference to the child’s suggested strong desire to live with her father. She is told, “OK then you prob [probably] need to ask for the school counsellor as well so you can talk about the mental and physical abuse side”. The child responds, “I don’t even know where/who the school counsellor is”. There was then further discussion.
These are not things that the child seeks out. These are things that she is told she needs. They are kept alive in her mind. They are constantly put to her. I do not suggest that the evidence would permit a finding at this point, and nor do I suggest that one need be made, that the allegations are manufactured. I do not discount them. There may be something to them. However, the tenor of the totality of text messages, their frequency, their intensity and their continuous repetition to the child that she wishes to live with the father, that he is fighting her fight and obtaining what she wants and that she needs to step up to the plate and join in that battle causes me some real concern as to any weight I can place upon such allegations at this point.
I will and must return to those issues as part of the primary considerations.
The Court must ensure that Orders are made that will ensure that children receive adequate and proper parenting. The text communication with this child set out in the page after page of annexures to the mother’s material, communications between the father and the child, are inappropriate. It is not only inadequate and improper parenting, it is, as submitted, verging upon abusive.
This child, to be put in the position that she is, where she is told by text message that she does not understand how important “this court stuff” is and that she must remain in daily contact with her father, must document everything and if her mother attempts to stop her, to find other ways to do so, is far from productive or appropriate, responsible parenting. It is an active campaign in which the child is engaged as an ally against the mother and with a common purpose developed between the child and the father. It is no surprise, perhaps, that by the time the matter has reached this point, that this 14 year old child is now suggested to be expressing such strength of views. I will deal with views and wishes shortly.
The principles underlying the objects provides certain rights for these children. They are not absolute. They are subject to the Court being satisfied that their practice and enlivenment is not contrary to their best interests. That aside, children have a right to know and be cared for by both of their parents and to spend time and communicate on a regular basis with both of their parents. Notwithstanding the suggested difficulties or criticisms of the mother, she, at least, has made that occur.
The mother has perhaps been ignorant of or powerless to stop the daily communication by text, but she has taken steps towards that. She has, for example, at different points, removed the child’s phone and iPad from her. The mother describes that this is so that X will focus upon her schoolwork and not be distracted by such things. The father describes it in more negative terms. Indeed, he goes so far, in his Notice of Risk, as describing it as family violence on the basis that they have been removed from her which results in her being unable to contact her father except at times agreed by the mother. An alternate view of it might well be authoritative parenting rather than family violence or abuse, particularly when the content of several of the text messages, particularly those recited above, are themselves abusive.
Parents should share duties and responsibilities. That is a right trampled underfoot by these parents and particularly, the father. It is difficult to think of a more extreme example of parents failing to share duties and responsibilities than to actively conspire with the child, if not to generate the idea to at least then join in with her, encourage her and provide support to her to leave the mother’s home without notice to the mother and without telling her mother where she is going. That could not be described as parents sharing duties and responsibilities or agreeing about future parenting, the very rights that these children have created for them by the Act.
It is entirely inappropriate, to the extent that there is risk to the child leaving the home at 6:00am unaccompanied to walk through a bush track or some form of walking track to reach public transport more quickly and make her way to the paternal family members awaiting her arrival, to expose this child to far more risk than anything that is really alleged of the mother in this case.
The objects and principles cause some concern as to those events over the last week and support the mother’s case.
I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies and, if it does apply, determine whether it is rebutted.
The father seeks by his Response, an Order for equal shared parental responsibility. The mother seeks the same Order by her Application. On that basis, it would seem that the parties submit to such an Order, even though they would both appear, particularly the father as regards that which has occurred within the text messages, to be completely ignorant of the meaning of that phrase.
If an Order for equal shared parental responsibility is made, then the obligations created by section 65DAC of the Act come into effect. Section 65DAC of the Act provides that if an Order for equal shared parental responsibility is in place that parents must consult with each other in relation to decisions to be made about issues and make a genuine effort to come to a joint decision about the issue.
Encouraging the child to keep secrets, telling her that her mother cannot stop her doing what she, or perhaps more germanely, he wants her to do, and if she attempts to, that other means are to be found, is anything but reflective of an understanding of the nature of such an Order. On that basis, I would have some real concern as to whether an Order for equal shared parental responsibility should be made. It would seem that an Order for joint and several parental responsibility, pursuant to section 61C of the Act, might be more appropriate.
However, equal shared parental responsibility is the Order that both parties seek. By reference to U & U [2002] FLC 93-112, I have not raised with the parties or their Counsel any alternate position and, accordingly, that is the Order that I will ultimately make on an interim basis, although clearly at final hearing it will be more challenging to maintain that position.
As an Order for equal shared parental responsibility will be made, section 65DAA of the Act then compels me to consider equal and substantial and significant time before considering any other time arrangement. I propose to consider all time arrangements at large by reference to section 60CC of the Act incorporating therein section 65DAA(5) of the Act.
I must commence with the primary considerations, being:
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm through exposure to abuse, neglect or family violence.
The latter is prioritised over the former by section 60CC(2A) of the Act.
There is, from the above discussion of evidence, some concern as to at least psychological harm to this child from both parents. The child is suggested to have told several people that the mother has engaged in physical assault upon her. That is, of course, denied and the child’s text message to the mother would appear to be at odds with that assertion. Certainly, the text messages, particularly those recited above, would suggest the potential for psychological harm to this child.
Whether they fall comfortably within the section 4 and 4AB definitions in the Act of abuse and family violence, the text messages are certainly in at least, from a lay perspective, abusive. The primary considerations thus are not aided by such a consideration of risk. There is risk on either side.
To the extent that it is suggested that the child may self-harm, I am not satisfied there is any evidence that would support that contention. Certainly, the child may run away and that may expose the child to risk. The child has demonstrated a propensity for running away. Indeed, that is a propensity the father has, unwittingly or otherwise, encouraged through his text messages prior to Easter, suggesting to the child that she be deceptive and collusive. That will not assist this child in the long run.
I am thus left with the benefit to the child of having a meaningful relationship with both parents. The father’s proposals could not support a meaningful relationship between this child and the mother. Indeed, the father’s evidence is that the child does not presently have a meaningful relationship with the mother. That is inherently inferred from his case. He suggests that the child’s relationship with the mother is broken down, that she wishes to be away from her and that she does not wish, at this point in time, to even have contact with her mother. At least that is what the paternal grandmother has said to the mother when she has phoned her at that home and attempted to speak with her.
That is perhaps a prediction for the future. That is where that relationship will go if things are left as they are. This is not the first time that the child has not returned from Queensland, although no active attempt has been made or pressed on this occasion. The last two periods of school holidays, October and the Christmas school holidays in 2015, the child did not return.
As is submitted by Counsel for the mother, on each of those prior occasions the child was adamant that she would not return and yet she did. It is impossible to understand what has influenced this child’s mind on this occasion, although the frequency, rapidity and content of the text messaging between paternal family members and the child may well have contributed. It may well be that having made her bed, as it were, this child now feels that she must lie in it. It would be too embarrassing to now do an about-face and return home.
That is also to assume that there is any degree of support provided to her, that anyone has even suggested that she might or should. Certainly, the father indicates in his evidence that, upon being told that the child was at his mother’s home, that he spoke to the child and suggested she return. He says at paragraph 16, “I told her she needs to go back to Sydney until I can get this matter sorted through this Court. She absolutely refused”.
The father will have the opportunity, perhaps, to speak with her and seek to exercise some greater degree of influence. Clearly, his text messages suggest some degree of influence. The father suggests he is concerned that if she is forced to return to Sydney that she will run away again. I am certainly conscious that if the level of collusive, secretive communication between the child and the father continues that is probable. Accordingly, the Order that the mother seeks restricting communication is somewhat irresistible. It will be made.
Communication will not necessarily be monitored and supervised by the mother, but it will be in the open and transparent, not at 3:00am by text message to the child, particularly messages of the nature of the text messages recited above.
The children’s relationship with their father is also difficult to gauge at this point in time. On its face, this girl enjoys a meaningful relationship with her father. Upon further exploration, the evidence not being yet complete, it may be that some further concern is raised in that regard.
The father’s relationship with Y is barely mentioned in the father’s Affidavit. One can assume that it is not considered by him to be as close or meaningful as that with the elder child. In any event, there is clearly, if the child remains in Brisbane, a real risk that whatever meaning the relationship between this girl and her mother has will be diminished and eroded. If she returns to Sydney, 10 years of practice demonstrates that the child’s meaningful relationship with her father will continue.
Perhaps it just needs to be made clear to this child that her views, her voice, is not the determining factor in the case. As Parkinson and Cashmore have described, “Children have a voice, not a choice”. That is even assuming that the child’s voice is found to be genuine.
The benefit to the child of a meaningful relationship with both parents lends some little support to the mother’s position. The need for protection does not assist the determination one way or another. The risk is at least equal.
I turn now to the additional considerations and will address each briefly.
Views expressed by the child
Certainly, as is submitted, appropriately so in the father’s case, the mother concedes that for 12 months the child has been saying that she wishes to live with her father. It is, however, within a context.
Paragraphs 171 and 173 do not suggest that the child simply sprouts the statement. It suggests that it arises in the context of arguments, disputes with her sister and, particularly, when there are disputes between the mother about the child’s homework or other chores that she does not wish to be engaged with.
That is unsurprising in light of the complete and active lack of support that this mother receives from the father in the parenting of this child within her household per the text messages. I am conscious of authorities, such as Harrison & Woollard (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43.
The weight to be attached to a child’s views is not determined by reference to their age. It is not mentioned in the Act. It is determined by reference to their maturity and level of understanding. It is determined within the context of that which surrounds their views and their expression of them. I am not satisfied that, in this case, they can or should be dispositive.
This child cannot be authoritatively said to know her own mind. She does not operate free from any influence, although I do not seek to find any degree of influence of specific nature. It is purely that the father is clear to this child that she is part of “this Court stuff”, that it is important for her to play her role and it is important for her to document and repeat what occurs. Her views certainly suggest that she wishes to stay where she is. It is one of the many factors to be taken into account in determining her best interests.
Nature of the child’s relationship with each parent and other persons, including grandparents and other relatives
Y is somewhat left out of this discussion, however, she also, no doubt, has a view. These siblings do not appear, on any evidence presented to this Court, to have a bad relationship with each other. Indeed, other than squabbles, which might be expected between siblings only two years apart and now both in the early years of High School, they appear to have quite a close relationship. They have always lived together and one can at least infer that their relationship might have developed some real meaning.
They have been separated from their father for 10 years since they moved back to Sydney with their mother in 2006. Thus, for these children, their reality has been living in a family unit comprising their mother and each other.
These children also have an excellent relationship with a broad array of maternal and paternal family members, most of whom are in Sydney, although not all. Clearly, the paternal grandmother is in Brisbane, as is the father and his partner. There is no evidence of the children’s relationship with the father’s partner. She is a relatively recent addition to their lives.
The nature of the children’s relationships with a broad range of extended family and social capital, their peers and school and the like, would support the mother’s position. These children would then be reunited and both children would return to the school in which they have been settled for some time and with a sibling group with whom they are well familiar.
The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spend time or communicate with the child
Neither parent can be criticised for this.
Prior to the June 2012 amendments, however, the Court was also required to consider the negative, alternate proposition, the extent to which each parent had interfered in the capacity of the other to participate in decision making, spend time or communicate with the child. The father’s criticisms in that regard are largely expressed to X, rather than the Court with the mother accused of being a liar, deliberately and actively keeping them apart.
All of that is information that may well have played some role in this child’s formation of any view or action thereupon. It is also continued at present. The broader paternal family has not assisted this child in communicating with the mother or her sibling. Mr L, not the paternal grandmother. That again lends some support to the mother’s position.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
The mother is critical of the father’s child support record, complaining he is $800 in arrears. It is not a significant issue in this case.
Likely effect of any change in the child’s circumstances, including separation from either parent or any other child or person with whom they are living or have been living
This child has never lived with her father. She is not living with him now. She is living with her paternal grandmother. Prior to that she spent some days with her uncle, Mr L. Prior to that she spent 10 years living with her mother and her sister.
The separation of this child from her mother, her sister and her entire social capital developed in Sydney, a different State to that in which it is now proposed she lives, is a significant support for the mother’s position. As it is impossible to differentiate on the present evidence whether the child is in greater need of protection in one household or the other, in light of the allegations that are raised, that is a very significant issue.
Practical difficulty and expense
I incorporate herein section 65DAA(5) of the Act:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live in different states, a long way apart.
The father is not readily available. He is a fly-in fly-out worker and away from home for two weeks out of each three weeks. The arrangements that these parties have had have been largely focused on school holidays for most of these children’s lives.
The parties have no capacity to implement an arrangement for equal or substantial and significant time. However, the mother’s capacity to support the children’s relationship with their father is proven on the mother’s record. She has facilitated these children having a relationship with both parents, even when it has been onerous, including that which she has now discovered as the daily and plentiful text communication between the father and this young girl and the undermining nature of that communication.
The father has not demonstrated his capacity, or that of his broader extended family, to facilitate any time or communication between X and her mother or her sibling.
The parents’ current and future capacity to communicate and resolve difficulties would appear fundamentally flawed. Indeed, in those circumstances, it is extraordinary that they both seek an Order for equal shared parental responsibility but that is what they seek.
The impact on the child of change, I am satisfied, is fundamentally disadvantageous. If the Court had clear evidence that suggested that the child was being removed from an abusive environment, which evidence the Court does not have, that might be different. In this case, all that is available is the child’s clear settled care in the mother’s home and the absence of complaint by any external Agency as to that care. The child has apparently, and in most respects, thrived in that care, maintaining relationships with both parents and both extended families until termination of that arrangement through the events of the last week.
That is not to suggest that past settled arrangements are dispositive of issues. The Full Court of the Family Court of Australia dealt a death blow to that portion of authorities such as Cowling [1998] FamCA 19, Griffiths (1981) FLC 91-064, Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239 by Goode & Goode (2006) FLC 93-286 and then Marvel [2010] FamCAFC 101. However, past care arrangements are not written off as irrelevant. Their importance is acknowledged in those very authorities. They are capable of demonstrating a proven arrangement for the child.
It is certainly suggested that the child has begun and, in the last 12 to 18 months, actively expressing a desire to live with the father but it is not a desire that is free from all influence. It is not that the child has made an active determination of her own without some degree of inferential, if not direct, support and encouragement, if only through the child becoming a co-conspirator with the father in disliking and disparaging the mother. The culture of secrecy to which I have already referred would not have aided or assisted the closeness of the relationship or the child’s placement.
Capacity of each parent to provide for the child’s emotional and intellectual needs
The concerns that each party raises suggests a deficiency. However, there is nothing to mathematise the distinction between them, thus it does not assist a great deal. Certainly, the secretiveness of the text messages between the father and the child cause me some real disquiet as to the capacity of the father to demonstrate insight into the child’s emotional needs.
For a child in 2009, then seven years younger, thus seven years of age, to be involved in the communications annexed to the mother’s material was entirely inappropriate. If it has continued in that way over seven years, it is indeed, as is submitted by Counsel for the mother, a campaign upon and involving this child and the child’s movement to the father’s care.
Maturity, sex, lifestyle and background of the child
This young woman is described as intelligent. No one has described her as mature. Indeed, I would have some concern about that in light of some of her text messages and that which the parties have placed in their evidence.
Young Y does not rate a mention in that regard but she would appear to be equally intelligent.
Aboriginality
Aboriginality is not raised by the parties as an issue.
Attitude
The attitude to the child and responsibilities of parenthood is already commented on above.
Family violence and family violence orders
Family violence is not raised as a significant issue in this case, (although it is a profound and significant issue when raised).
There are no family violence Orders between these parties, nor any family violence Order or any application for one at any time in relation to X. One would think, if complaints of the nature that are raised regarding X – that she is struck to the face, punched, kicked with steel cap boots and the like – that some complaint might have been made, if not by the child to independent third parties, certainly by the father and the members of his family to whom she is suggested to have repeated these statements.
However, reports to Police and Child Welfare Agencies have not occurred and there are no family violence Orders.
Whether it is preferable to make an order that will least likely lead to the institution of future proceedings
This matter will continue. However I am satisfied, this being the third occasion in as many sets of school holidays that the child has been withheld from the mother, that the best means of avoiding future difficulties is the Order that is sought by the mother that communication be limited to specific, transparent and open means rather than allowing or permitting communication at will. That is difficult to monitor and, in all probability, impossible to terminate.
The children have access to electronic means of communication in every aspect of their life. However, an Order binding the father binds him, not the child. Accordingly, I propose to make a modification to the Orders sought to restrain the father from contacting X by text or email, save with the mother’s knowledge. Thus, if there is to be an email between the father and the child, a copy can go to the mother. I have no difficulty with that Order being mutual so that the mother has to do the same.
At least in that regard, each party will know what is being said to the child and the child will know that each parent knows it.
For those reasons, however, I am satisfied the child should return. The father has been clear that he does not wish the child to be subject to a Recovery Order, nor does the Court. However, there will be a limited opportunity for the child’s return voluntarily if the father can persuade the child. No doubt, he has been successful in that regard in the past.
If the child is not persuaded to return, then it will be necessary for the proceedings to be relisted. It may be, at that point, that a Recovery Order might issue.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 29 January 2018
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