WGOC & GH

FAMILY COURT OF AUSTRALIA

WGOC & GH

[2015] FamCA 356

FAMILY LAW – CHILDREN – With whom the children live – where the children are both teenagers – where one child consistently absconds from the father’s care – where the other child does not – where the children live with different parents – where the father asserts the mother undermines his relationship with the child – where child’s time to be spent with father subject to his wishes – where time to be spent between the other child and the mother.

FAMILY LAW – ORDERS – CONTRAVENTION – application dismissed

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 61DA, 65D, 65AA, 65DAB

APPLICANT:

WGOC

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

11408

2009

DATE DELIVERED:

15 May 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

7 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITORS FOR THE APPLICANT:

Kelly Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Davies of Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous parenting Orders are discharged.
The child X, born … 1998, live with the father.
The child Y, born … 2000, live with the mother.
The father shall have sole parental responsibility for the major long term issues for the child X, born … 1998, with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
The mother shall have sole parental responsibility for the major long term issues for the child Y, born … 2000, with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
Each parent advise the other in writing of any significant decision made in the exercise of that parent’s sole parental responsibility.
The child X spend time and communicate with the mother at all times as may be agreed between the parties in writing and, failing agreement:
(a)commencing Friday 22 May 2015: each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday;
(b)for one half of all Queensland gazetted school holiday periods in each year, to be the first half of the holidays in even-numbered years and the second half of holidays in odd-numbered years;
(c)on the weekend on which Mother’s Day occurs: from 5.00 pm Friday until 5.00 pm Sunday;
(d)by telephone: at 5.00 pm each Friday afternoon, when he is not otherwise spending time with her, at 5.00 pm on the child’s birthday each year and at all such times as he indicates he wishes to speak to the mother or his brother Y.
In order to facilitate X spending time with the mother in the manner outlined above:
(a)the father, or his representative, will deliver X to Pioneer Park, Town Z by 5.00 pm on Fridays and at the commencement of X’s holiday time with the mother; and
(b)the mother, or her representative, will deliver X to the Suburb A train station at 5.00 pm on Sundays and at the conclusion of X’s holiday time with her.
Subject to his wishes, the child Y spend time and communicate with the father as follows:
(a)commencing Friday 29 May 2015: each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday;
(b)for one half of all Queensland gazetted school holiday periods in each year, to be the second half of the holidays in even-numbered years and the first half of the holidays in odd-numbered years.
(c)on the weekend on which Father’s Day occurs: from 5.00 pm Friday until 5.00 pm Sunday;
(d)by telephone: at 5.00 pm each Friday afternoon, when he is not otherwise spending time with him, at 5.00 pm on the child’s birthday each year and at all such times as the child indicates he wishes to speak to the father or his brother X.
In order to facilitate Y spending time with the father in the manner outlined above:
(a)the mother, or her representative, will deliver Y to the Suburb A train station at 5.00 pm on Fridays and at the commencement of Y’s holiday time with the father; and
(b)the father, or his representative, will deliver Y to Pioneer Park, Town Z at 5.00 pm on Sundays and at the conclusion of Y’s holiday time with him.
The time each child is to spend with the parent with whom that child is not living shall, to the extent that it is practicable, take place so that the children X and Y spend weekends and holidays together.
Each child shall be at liberty to communicate by telephone and/or email at all reasonable times with the parent with whom that child is not living.
The mother shall ensure that Y attends upon a counsellor or psychologist, nominated by the Independent Children’s Lawyer, for the purpose of assisting Y to repair his relationship with his father and:
(a)such counselling shall continue for as long as the therapist considers appropriate; and
(b)each party shall participate in the counselling in a manner deemed appropriate by the therapist.
The parties have liberty to provide a copy of the Reasons for Judgment delivered 15 May 2015 to any counsellor or psychologist engaged in providing the counselling directed by this Order.
The mother and father shall:
(a)keep the other informed at all times of a contact telephone number and an email address at which they can be contacted and advise the other of any change to the same within 48 hours of such change; and
(b)notify the other at least twenty-one (21) days prior to relocating the general location of their residence; and
(c)inform the other as soon as is reasonably practicable of any medical emergency involving the children;
(d)keep each other informed at all times of the names and addresses of any educational facility at which the children attend; and
(e)keep each other informed at all times of the names and addresses of medical practitioners upon whom, or medical practices at which, the children regularly attend.
By this Order, any medical practitioner upon whom each child attends is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner may lawfully provide about the child.
By this Order, any educational facility at which each child attends is hereby authorised to provide to each party, at that party’s request and cost, all information about the child’s education, progress and participation in school or school-related activities.
A Registrar of the Family Court of Australia is appointed pursuant to s106A of the Family Law Act 1975 (Cth) to sign in lieu of the father any document needed to obtain a passport for the child Y.
The Independent Children’s Lawyer is discharged.
All outstanding Applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11408 of 2009

WGOC

Applicant

And

Respondent

REASONS FOR JUDGMENT

The parties’ youngest child Y[1] is now 15 years of age. He has not attended school since November 2013. I consider that this appalling circumstance has arisen as a consequence of his father’s resolute determination not to exercise his sole parental responsibility, accorded to him as a consequence of consent orders made in December 2011, to permit Y to be enrolled at a school located close to his mother’s home.
[1] Born in 2000.
When asked by Mr C, the author of the family report, about why he had not consented to Y attending that school, the father replied:

“Why should I?”[2]

[2] Paragraph 88, Family Report dated 10 October 2014.

The terms of the operative order, made by consent in December 2011, provide that Y and his brother live primarily with their father and spend time on alternate weekends and during half of the school holidays with their mother. This parenting regime was generally put into effect from December 2011 until at least mid-2013.
Y ran away from his father’s home in early November 2013, about one month before the end of his school term.
Despite:
a)the involvement of the police on a number of occasions; and
b)the involvement of the Department of Communities, Child Safety and Disability Services and being placed into foster care for a period in January 2014; and
c)being returned to the father by the mother pursuant to the terms of an order made on 9 May 2014,
Y has consistently absconded and refused to remain in his father’s care.
He told Mr C, the author of the family report – prepared after interviews in September 2014 – that “every part of my being hates there”.
The parties’ oldest child, 16 ½ year old X,[3] continues to live with the father in accordance with the terms of the December 2011 Order. Despite that order affording to him the opportunity to spend alternate weekend and holiday time with his mother, this has not occurred since Y ran away. The cessation of X’s interaction with his mother occurred as a consequence of the father’s decision not to facilitate X’s time with his mother. The father’s rationale for ceasing X’s opportunity to spend time with the mother is that he was concerned X – who has Down’s Syndrome – might be manipulated by the mother and fail to return to his primary care. He had no confidence the mother would act to return X to his care at the conclusion of his time with her.
[3] Born in 1998.
The reality for the brothers, therefore, is that neither has seen the other since November 2013. There has been no email or telephone communication between Y and the father since then. This lack of communication has occurred in circumstances where, I accept, the mother provided the father with Y’s email address and mobile telephone number and extended invitations to other members of the paternal family to remain in contact with Y.
Whilst previously expressing a desire that both children return to live primarily with her – as they had before the December 2011 Order was made – the mother proposes that X continue to live primarily with the father. She also proposes a continuation of the order which accords the father sole parental responsibility for major long term issues relating to X. The latter proposal reflects her acceptance of this as the only realistic order, given the parties’ clearly demonstrated long-standing inability to co-parent the children. The mother suggests that orders which provide X with an opportunity to spend time with her on alternate weekends (from after school Friday until before school Monday with changeovers at school) and during school holiday periods are orders which are in his best interests.
The mother also relevantly proposes[4] that Y ought not be forced to spend time with the father against his will. She seeks to restrain the father from coming within 200m of Y, her daughter B and her and that she have liberty to obtain a passport for Y.
[4] Annexure P, mother's affidavit filed 4 April 2014.
The father proposes that Y return to live primarily with him. He acknowledges that implementation of this proposal may require – to use his term – “perseverance”. Given Y’s previous actions, this is, I think, an understatement.
The father advances that Y’s interaction with the mother be restricted for not less than six months and that Y attend counselling with a psychologist to assist him to improve his (Y’s) relationship with him (the father). The restriction and control of Y’s interaction with the mother is highly likely to isolate him in his father’s home. It is highly unlikely this will improve his relationship with his father or his step-mother.
It is clear that, in the household occupied by the father, his wife, their three children and X, it is Y who will be required to modify his behaviour, attitude and approach and that, from the father’s perspective, there is nothing in his household’s approach to parenting Y that requires reconsideration or rectification. So much is easily concluded from a consideration of a combination of the father’s wife’s attitude (as conveyed to Mr C) and the father’s oral evidence that, apart from acting sooner to cease Y’s opportunity to communicate with his mother whilst at school and providing more external mentoring support for him, there is nothing else he would have done differently to deal with the precursors to, and events surrounding, Y’s actions in removing himself from his care - or since then.
The father proposes that the psychologist upon whom Y attend is the person he previously saw when he previously resisted spending time with his father. The father told Mr C this therapist told Y then that his opposition to spending time with the father was without merit. [5]
[5] Paragraph 70, Family Report dated 10 October 2014.
The account provided by both the father and Y of the events surrounding this appointment (after which the father carried Y over his shoulder through a public space, screaming) compels a conclusion that it is highly unlikely Y would regard this person as either neutral or someone with whom he could develop rapport and/or in whom he could trust.
That the father nominated this therapist demonstrates further the extent of his incapacity to see things from a perspective other than his own.
The father indicated that, if the Court is not persuaded his proposal is in Y’s best interests, orders should be made requiring him to live with his maternal grandmother. She has not sought to intervene in these proceedings. She is not a party to them. She was not called by the father as a witness in his case. She did, however, participate in the Family Report interviews. I accept Mr C’s recounting of her participation and his conclusions about her proposed involvement in the current situation. I also accept her recounting to Mr C that she had not really been contacted by the father in relation to his idea that Y live with her.
That the father persisted with his proposal that Y simply be sent – like a chattel – to live with his maternal grandmother, despite Mr C’s unchallenged evidence about such an idea and the fact that the relationship between the mother and the maternal grandmother has broken down, provides further insight into his likely overall approach to dealing with parenting situations in which his views and Y’s conflict. It also clearly demonstrates his underlying view of the mother’s parenting capacities.
A significant aspect of the father’s case that it is in Y’s best interests to return to live primarily with him is the expressed concern that, if he remains living with his mother, Y will not achieve at the scholastic levels previously attained whilst in his care. His view is that if Y remains in the mother’s care, he will become a “dope smoking, high school dropout with limited opportunities.”[6]
[6] Paragraph 73, Family Report dated 10 October 2014.
This expressed concern makes the father’s determination to refuse to permit Y to be enrolled at a school whilst living with the mother both hypocritical and even more incomprehensible.
Such attitude and his resolute determination, since early 2014, to refuse to permit Y to attend at any school other than one facilitated by him compels my rejection of both Mr C’s assessment of him - as a parent who has a genuine interest in the welfare of his children - and the submissions made by Counsel for the Independent Children’s Lawyer to the effect that the father is very interested in Y’s welfare.
I consider that no parent for whom their child’s best interests and/or welfare remains a primary and overriding focus could act as the father has in withholding from Y the opportunity to continue to obtain an education. That he gave no consideration to investigating whether the school at which Y was enrolled in 2013 would be prepared to provide him with the means to continue his attendance remotely whilst in his mother’s care is unfathomable. That the father himself has benefited from significant educational opportunities only magnifies the appalling nature of his behaviour.
A further appreciation of the father’s approach to the issue of Y’s non-attendance at school from 2014 onwards is obtained by referring to his response when asked by Counsel for the Independent Children’s Lawyer why Y had not been at school since December 2013: he said that he was enrolled at Suburb E, his household had made it clear he should be returned to them, the mother failed to return him and so Y did not go to school. His position was clearly articulated: Y’s non-attendance at school was not as a result of anything that he did. I do not accept the submission made by Counsel on his behalf that it was not the fault of the father that Y was not at school.
I accept the evidence given by Mr C about Y’s interaction with him, the comments he made and the sentiments and views he expressed. The father’s mismanagement of and attitude toward Y’s attendance at school whilst not living with him provides a stark insight into his likely parenting of Y whilst in his primary care. It certainly provides clear corroboration for the mother’s evidence to the effect that, in so far as the father’s parenting is concerned, it is either “his way or the highway.”
The existing parenting arrangement for the children – whose parents’ relationship ended in 1999 – occurs against a background of them having lived primarily with each of their parents at different times during their lives - namely:
a)until trial in about July 2005: they lived primarily with the mother and spent time with the father; and then
b)on 1 July 2005: Barry J made final parenting orders[7] which provided that the children live with the mother, (who was accorded sole parental responsibility for major long term issues relating to them), and spend time with the father on alternate weekends and for half of the school holiday periods; and then
c)from 1 July 2005 until about December 2011: they lived primarily with the mother and spent time with the father; and then
d)on 8 December 2011: Coates FM (as His Honour then was) made, by consent, final parenting orders which accorded the father sole parental responsibility for major long term issues relating to the children, provided that the children live with him and spend time with the mother on alternate weekends and for half of the school holiday periods; and then
e)from 8 December 2011 until 7 November 2013: they lived primarily with the father and spent time with the mother; and then
f)from 7 November 2013 until the present: Y has lived with the mother[8] and spent no significant time with the father and X has remained living with the father and spent no time with the mother other than during the Family Report interview process.
[7] After hearing a trial which occupied 11 days.
[8] Save for the attempt to return Y to the father after the recovery order made on 9 May 2014.
As I have already said, the abrupt change to the children’s living arrangements on 7 November 2013 arose when Y ran away from his father’s home and household.
A consideration of previous Orders and the evidence before the Court establishes that:
a)on 7 November 2013: Y absconded from the father’s home by catching a train to Town Z;
b)on Friday, 8 November 2013: the mother emailed the school and Ms HDS (the father’s wife) to advise that Y was with her and would return to school the next day;
c)on 9 November 2013: Ms HDS emailed the mother with a request that Y be returned to his father’s care – the mother replied that she was keeping him in her care until Monday, 11 November 2013;
d)on 17 November 2013: Ms HDS emailed the mother to repeat the request that Y be returned to his father’s care;
e)on 19 November 2013: the mother emailed the father’s household to say she would not be returning Y - she also asked whether X would attend to spend time with her on the weekend;
f)on 10 January 2014: the mother took Y to hospital - the Department contacted the father and Y was placed into temporary foster care with foster carers;
g)on 25 January 2014: Y ran away from the foster carers; he sent his mother a number of emails in which he said, in summary, that he was with someone he trusted, had to get out of there (presumably referring to the foster carers’ home), could not go back to Brisbane, would have killed the father or himself, needed someone to believe him and for him to have a voice before he went back;
h)on 25 January 2014: Y returned to his mother’s care;
i)on 31 January 2014: the father was told that Y had returned to the mother’s care;
j)on 3 February 2014: the mother attempted to enrol Y at M High School – the enrolment was not accepted because, when the school contacted the father, he told them about the December 2011 Order which conferred sole parental responsibility on him and that Y was enrolled at another school;
k)on 7 April 2014: Judge Coates ordered that Y attend an appointment with a Family Consultant at the Court complex on 28 April 2014 and that the Family Consultant provide advice to the Court by providing an oral report at 2.00pm that day; the Order also contained a Notation that the s 11F report was ordered in relation to Y because there were allegations that he no longer wished to reside with his father;
l)on 28 April 2014: Y participated in interview with the Family Consultant, Judge Coates received oral evidence from the Family Consultant and reserved his decision;
m)on 5 May 2014: Judge Coates made an order in chambers directing the mother to produce Y for an appointment with a Family Consultant at 10.00am on 9 May 2014;
n)on 9 May 2014: Y attended the appointment with the Family Consultant, Judge Coates ordered that he be returned to the father’s care and he was – he absconded later that day;
o)on 14 May 2014: the mother returned Y to the Suburb A train station[9] – he absconded, was located by police and subsequently collected from them by the father and he ran away again; after being located by police a second time, Y was again collected by the father from the police;
p)on 16 May 2014: Y absconded from the father’s home, was subsequently located by police and taken to a police station – he then absconded from the police station; and
q)on 17 May 2014: police told the father that Y was at the mother’s home.
[9] Seemingly pursuant to the terms of the Order made on 9 May 2014.

The father contends the current set of circumstances has arisen because the mother encouraged Y to leave his primary care and has continued to facilitate him remaining in her care, contrary to the terms of the December 2011 Order. [10] He relies on the contents of messaging between Y and the mother, whilst Y was at school, as providing the basis for his assertion that the mother acted to undermine his parenting of Y and to encourage the child to run away.
[10] Family Report at [16].
The mother accepts she engaged in messaging with Y during his school lunch break but denies that she encouraged him to run away from the father’s home. She says she simply responded to his requests to communicate and, on occasion, attempted to engage with him in a light-hearted and ironic manner.
I accept the mother’s evidence to the effect that it was Y who initially sought to communicate with her whilst at school. I also accept the father’s evidence to the effect that, once he learned of this communication, he acted to bring it to a halt: I accept he accessed the account, changed Y’s password and told the child this.
I further accept that the mother subsequently acted to ensure that Y had an account via which he could communicate with her whilst at school. This was clearly done without the father’s knowledge. On balance, I am not persuaded that this amounted to an effort on her part to undermine his parenting of Y. Rather, I consider it a response to Y’s request for an opportunity to communicate with her more extensively than was permitted in the father’s household where, I am confident in concluding, his opportunity to do so using a computer was significantly restricted and/or monitored.
I do not accept the father’s assertion that the messages between Y and his mother were daily, secret, poisoned messages. A perusal of the contents of those which passed between Y and the mother from about July 2013 until about October 2013 reveals mostly supportive and encouraging comments from her to him. She clearly expressed to him her appreciation of him as a person and her delight in his existence. She exposed him to her view of the world as a place within which the expression of positive affirmations and beliefs can be used to influence behaviours and decisions and where each person, including children, has the power within themselves to make decisions.
On one occasion, she failed to admonish Y for expressing resentment about the manner in which his father chose to deal with him losing a bag (namely, by requiring that he write out 50 lines). Whilst it could certainly be concluded that she exposed Y to her critical view of this approach, clearly let him know that she did not agree with it and enjoined with him in expressing derisive opinions about the efficacy of this as a punishment technique, I am not persuaded that such exchange is likely to have contributed in any significant way to Y’s ultimate decision to abscond from his father’s household.
A perusal of the communication from the mother’s ex-partner to Y which contains the phrase “insignificant little bum holes” does not necessarily lead to the conclusion that that person was referring to the father and his wife. If he was, such reference is immature. Of course, this person is no longer in a relationship with the mother.
It cannot be forgotten that both of these children have had the opportunity to live primarily with each of their parents. It cannot be forgotten that Y had the opportunity to experience his father’s primary parenting of him from the end of 2011 until November 2013. It is, I think, more likely than not that his own experiences of this parenting influenced him to act in the manner that he did, rather than any direct influence from his mother.
It seems to me to be entirely plausible that, for Y, his mother’s way of interpreting and interacting with the world appears more supportive and encouraging than his father’s more rigid, controlling and directive approach.

Principles

In these proceedings, being proceedings for a parenting order (s 64B of the Family Law Act 1975 (Cth) (the Act)) in relation to each child, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper.[11] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[12] In deciding whether to make a parenting order, I must regard each child’s best interests as the paramount consideration.[13]
[11]        s 65D of the Act.
[12]        s 60B of the Act.
[13]         Family Law Act 1975 (Cth) ss60CA, 65AA.
There is no suggestion other than that the children will benefit from the opportunity to have a meaningful relationship with both of their parents. Even if there were, I would not accept such a proposition. I accept the mother’s evidence about the positive qualities and attributes possessed by the father. I also accept that the mother has qualities that mean interaction with her is likely to benefit both children – regard need only be had to the maternal grandmother’s assessment of her as a parent, absent the influence of her previous partner, as conveyed to Mr C.
There is no suggestion that the children have been subjected to harm from being exposed to family violence, neglect or physical abuse.

The child Y’s views about the parenting arrangements and the weight to be accorded to these

When Y spoke with Mr C on 29 September 2014, he volunteered that he wanted nothing to do with his father. He said he had run away eight times and would not hesitate to do so again if the Court forced him to return to his father’s home.
I accept the mother’s evidence to the effect that, when she left home to attend the trial, Y told her that if anyone came to get him, he had it all organised, had a plan, would not return to the father’s home and intended to run away to somewhere or someone he would not disclose. Thus, Y’s current attitude does not appear to have changed from that expressed to Mr C in September 2014.
Y outlined to Mr C that he found his father to be angry and aggressive all the time, that he had bad memories of being yelled at and was fearful and scared of his father. He denied being coached in these views. He said he was not happy when he was “sent” to live with his father when the consent Orders were made in December 2011. He told Mr C he was not ever going back again.
I accept Mr C’s evidence that the fundamental concern is that Y is emphatically rejecting of his father. I further accept his evidence to the effect that Y’s demonstration of this rejection is not limited to words but has found expression in his history of absconding from his father’s care.
I agree with Mr C’s opinion to the effect that, given Y’s age and developmental stage, it is difficult to see how this rejection is to be overcome. I further accept his evidence that, if an adolescent such as Y runs away from the parent’s home, there is a very real possibility he may end up on the streets and at risk.
Y told Mr C he was not agreeable to going to counselling with his father, saying his father needed it and not him: he expressed his view that his father would never change. He said he was not interested in communicating with his father unless his father changed.
Y expressed a desire to go to M High School because he had friends there. He clearly knew his attendance at that school had not occurred because his father had sole parental responsibility and had not agreed to him attending there. He explained he was home-schooled in a sense - he had been trying his best to learn by himself.
I do not accept that there was a significant difference in the account provided by Y to Mr C and the mother’s evidence about her efforts in 2015 to engage a tutor to assist Y in engaging in the education system. Each was clearly referring to a different period of time.
I do not accept the father’s contention that the mother and Y joined to fabricate the contents of the letter written by Y whilst in foster care. I note Y told Mr C the words and sentiments in this document were his. Given that the contents of the document and the sentiments expressed by Y to Mr C contain significant similarities, I think it more likely than not that the letter contains an account of matters seen from his perspective at the time it was written.
Additionally, I do not accept the father’s assertion that the mother and Y ‘cooked up’ the email Y sent to her when he absconded from his foster carers ‘to create evidence to suit arrangements.’
Y told Mr C that he had once thought about suicide but this was some time ago, shortly, he thought, after he ran away. This account was corroborated by the mother during cross-examination. He said he considered cutting himself but had not followed through with this behaviour.
In essence, Y told Mr C that his experience of living with his father caused him to conclude, from his perspective:
a)his father had been inappropriately angry and aggressive;
b)he was the child who was blamed for conflict between the other children;
c)he had difficulty concentrating on his schoolwork;
d)he was not allowed to bring items or possessions from his mother’s home to his father’s home;
e)his bag had been searched on a daily basis and he had been afforded no privacy; and
f)he had been physically force-fed on an occasion.
He also complained that, in his father’s household, he was referred to by a derivative of his middle name, which he hated. Disturbingly, he also reported that he once considered killing his father and went into his room when he was asleep and stood over him with a knife.[14]
[14] Paragraph 22, Family Report dated 10 October 2014.
A certain rationale for Y’s current attitude toward the father is aptly demonstrated by a consideration of the father’s response to Y’s allegations. Rather than accepting that, from the child’s perspective, some of the household’s management of the interactions amongst the five children living there could have left Y with the views he expressed, the father was at pains to point out that there was no basis upon which Y could reasonably have arrived at such conclusions.
The father’s apparent inability to appreciate that children sometimes do not act “reasonably” or see things “reasonably” and his further inability to place himself in Y’s position and attempt to see things through his eyes – even if the view is not reasonable or logical or rational – provides support for the accuracy of Y’s comment to Mr C that the father will never change. The father’s evidence suggests that such change or the acceptance of validity in a view other than his is something which may be, simply, beyond him.
Whilst the father confidently asserted it was not possible Y could have perceived the things he expressed in the letter from his (the child’s) perspective, a comparison of the contents of the same and the father’s answers during cross-examination about the issues contained within it leaves me with far less certainty. For example, Y’s complaint that the father ‘makes me wear clothes that he want because he want me to look like him’ has a certain resonance when considered with the father’s evidence that he had told Y that, if he was picking him up, he liked him to be well dressed and not barefoot and that they had provided him with ‘decent’ clothes and expected them to be worn home.
The letter, which I accept was written by Y whilst in foster care in January 2014, contains a description of him going into his father’s bedroom at night with a knife and standing over his father. He writes of thinking ‘kill him, end it’ but ‘just before’ he stabbed him, thought it was not right and put the knife away and went to bed.
The father said he or his wife would have heard Y if he had entered their room at night and so he did not place much credence on this recounting –he thought it was a concoction. Even assuming this to be the case, it is concerning Y wrote it.
Whilst it is, I think, impossible to be completely certain that any child has expressed that child’s ‘true state of mind’, the reality here is that Y has had the experience of being parented by his father in his father’s household. Whilst he may have been influenced in some way by living with his mother, it is highly likely his own experience has found expression in his comments to Mr C.
I accept that Y holds his expressed views strongly and has done so since at least November 2013. I also consider it more likely than not that these views are based on his own experiences of being primarily parented by the father and in his household from December 2011 onward. Given his age and the basis on which I have accepted they have been formed, such views need to be accorded considerable weight.

The child Y’s relationships with his parents, siblings and others in each parent’s household

The father has remarried to Ms HDS. They have three children:
a)Q, born in 2002: currently 13 years of age; and
b)D, born in 2005: currently 10 years of age; and
c)F, born in 2011: currently nearly three years and eight months of age.
Y told Mr C he missed his brother X but had no particular interest in seeing his half siblings Q and D. Such attitude may be a reflection of their differences in age and, in relation to Q in particular, a reflection of the fact that he and Y apparently have very different interests.
The mother’s evidence was to the effect that Y loves his father but hates not being able to reason with him and that his father is not able to ‘bend’ – a reference to his inability to yield to the views of others. Clearly, Y has acted to implement his reaction to his father’s inability to compromise.
Until recently, the mother had been in a relationship with Mr H. She has a daughter, B, currently about 11 years of age. Since November 2013, the mother, B and Y have lived in accommodation at Town V. The child B has been diagnosed with autism spectrum disorder and is currently home-schooled by the mother. No submissions were made to suggest that Y has anything other than an appropriate sibling relationship with B.
I accept that Y has a close and well established relationship with his mother and a significantly fractured relationship with his father.

Likely effect on the children of any changes in their circumstances

The mother’s evidence was that an order requiring Y to return to live with the father would place him at high risk. She noted that he had previously got into a stranger’s home and car, had previously been barefoot on the highway and had absconded from police.
Given:
a)Y’s previous behaviours in acting to remove himself from his father’s household on multiple occasions; and
b)his views as expressed to Mr C; and
c)that the father does not propose to turn his home into some sort of secure facility to prevent Y from running away again,
I think it much more likely than not –and almost inevitable – that Y will abscond again if returned to his father’s care.
So much was recognised by Ms HDS when she told Mr C that Y would run away again if returned to his father’s care. In a similar fashion, the maternal grandmother told Mr C that Y could not return to live in his father’s household because he was so unhappy there.
Additionally, it is highly likely, given his age and demonstrated opposition to living with his father and in the father’s household, that any attempt to return Y to his father’s household would have to be attended by force: this, of itself, is a matter highly unlikely to improve the relationship between the father and Y and highly likely to further cement in the child his current, clearly expressed, adverse views of the father.
I do not join with the father in the view that ‘it is just a matter of perseverance’ – especially when such perseverance is almost inevitably likely to involve the use of force or coercion toward Y, a matter accepted by the father’s acknowledgment that the police would return Y to his home each time he absconded.
The father said he did not believe it was likely Y would run away somewhere if returned to him because, in effect, with the benefit of two years’ maturity, ‘he ([Y]) can see the benefits of the arrangements made for him’. I do not join in this belief. That the father is so confident in predicting Y’s appreciation of the arrangements that will have been forced upon him contrary to his expressed wishes in the absence of any substantial interaction of communication with him since mid November 2013 is a further demonstration of the father’s inability to countenance a perspective other than his own.
I am left with little doubt that Y will continue to refuse to live with the father. I hold grave concerns that attempts to force him to do so will result in him absconding from his mother’s care also. He is, by now, clearly aware of the potential difficulties for her if, contrary to Orders, he returned to her care. I have no hesitation in concluding that it is more likely than not that he would simply remove himself from his mother’s care and supervision also.

Parental capacity and attitude, involvement in the children’s lives, participation in decision-making about major long term issues relating to them, fulfilment of obligations to support them, attitude to them and the responsibilities of parenthood and attitude to the children having a relationship with the other parent

Consideration of the competing proposals takes place in circumstances where there are no allegations that either parent struggles with mental health issues, alcohol or illicit substance use or abuse.
Y’s 2013 school report establishes that he was achieving well whilst attending E College that year. As mentioned earlier, the father’s concern is that Y will not achieve at these scholastic levels if he remains in his mother’s care. He does not believe the children were encouraged to perform well at school whenever they were in the mother’s care. Of course, his refusal to permit Y to attend school whilst in the mother’s care deprived her of the opportunity to encourage him to perform there in any manner.
The father’s approach to Y’s schooling provides a clear demonstration of his complete unwillingness or inability to yield in any way when circumstances are not as he considers they should be. It undermines completely his professed concern about the impact of an asserted lack of educational opportunities for Y if he remains living with his mother.
The father’s comment to Mr C, when challenged about his decision to refuse to agree to Y’s enrolment at a school other than the one he attended before he ran away, provides a clear basis for Mr C’s assessment of him as a parent who believes his views are correct.[15] I consider that his determination to continue to refuse to yield to the idea that Y attend at a school other than the one he had chosen is a clear demonstration of an inability to separate matters in the child’s best interests from his own determination to impose his will.
[15] Paragraph 36, Family Report dated 10 October 2014.
I accept the mother’s evidence to the effect that she attempted to enrol Y in home-schooling and or distance education but was unable to do so because of the absence of the father’s consent. I also accept her evidence that, in the event Y remains living with her and she is enabled to enrol him at school, he will attend. On the basis of Mr C’s evidence, he clearly wishes to.
Mr C expressed the opinion there was, perhaps, some ambivalence in the mother’s appreciation of her role with Y.[16] Regard to the contents of her communications with Y and her Facebook entries reveals a person whose approach to life is to send out positive thoughts to the universe. She clearly believes in the power of positive affirmations and the idea that people are responsible for creating their own world. Seen against this background and in this context, her messages to Y are consistent with the view that he should take control of matters involving him. It is not difficult to envisage that the mother’s method of communicating with and encouraging Y was in stark contrast to the father’s more rigid approach and, I suspect, critical evaluation of him.
[16] Paragraph 54, Family Report dated 10 October 2014.

The father’s method of dealing with his discovery that Y was communicating with his mother via social messaging at school can best be described as authoritarian. As noted above, he obtained access to the account and then changed the password so that Y could no longer use it. Whilst I have accepted that the mother later created a replacement account which enabled Y to continue to communicate with her during his lunch breaks, I am not persuaded her actions in responding to Y’s contact with her were anything other than the actions of a caring parent responding to a child’s request for contact.
It is clear that the father is supported by his wife in his view that the mother has undermined his parenting of Y. She supported the father’s decision not to send X to spend time with the mother on the basis that he is easily manipulated and would be unlikely to return to his father’s care if he spent time with the mother.
Ms HDS clearly expressed her view to Mr C that Y had exaggerated his complaints about the behaviour of the father and her household toward him. She expressed her opinion that he did not like rules or discipline, had no commitment to activities and did not look up to anyone.[17] She also expressed the view that X was better away from Y’s “negative” influence.[18]
[17]         Paragraph 110, Family Report dated 10 October 2014.
[18]         Paragraph 111, Family Report dated 10 October 2014.
She told Mr C she wanted Y home at some point and clearly expressed her opinion that he should not return to her home until he had significant counselling and associated changes in his behaviour and attitude.[19] The father said he differed from his wife in this view.
[19] Paragraph 112, Family Report dated 10 October 2014.
It is into this household, where such strong views are held about him, that the father expects Y to return with relative ease.
I accept the mother’s evidence to the effect that she facilitated Y’s interaction with a counsellor in the period from November 2013 until Christmas 2013 in order to assist him to deal with the situation which, from his perspective, caused him to abscond from the father’s household. I further accept her evidence to the effect that Y reached a point where he determined that the problem lay not with him but, rather, in the nature of the relationship between his parents.
I further accept the submissions made by Counsel for Independent Children’s Lawyer in relation to the mother’s attempts to engage Y and persuade him to return to the father’s household after November 2013. I accept she initially told the person to whose house he had absconded that she could not take him into her care. Y was subsequently taken to the police from whom he ran. I further accept she subsequently took him to hospital and agreed for him to be taken into foster care. As detailed elsewhere, I accept that she complied with the terms of Orders made by Judge Coates in April and May 2014 by conveying Y to an interview with a Family Consultant and returning him into the father’s care: on both occasions, he subsequently absconded.
It is clear the mother failed to return the matter to Court in 2014 to seek to redress the impasse about Y’s non-attendance at school. Criticism certainly arises out of this inaction and, in another case, such passivity may compel a conclusion that she is not the person best able to discharge parental responsibility for Y. Here, however, I accept her evidence to the effect that she could not bring herself to engage in further litigation with the father: her assertions are, in a sense, corroborated by her actions - she has not, after all, commenced contravention proceedings against him in relation to X’s non-attendance on her.
Whilst there is, I think, validity in the father’s criticisms of the mother’s laissez-faire approach to the management of her Facebook account, this aspect of her approach to parenting is not, of itself, sufficient to persuade me that it is in Y’s best interests to be forced to return to live with his father.

Whether it is preferable to make the order least likely to lead to the institution of further proceedings in relation to the children

The history of this matter, the parties’ inability to co-parent in any meaningful way and the existence of such different parenting styles and attitudes that the description “polar opposites” is apposite, makes any order which requires parental interaction and communication something highly likely to lead to the institution of further proceedings in relation to the children.
These parents should be freed from the obligation to seek the views of the other about matters relating to the children: not only because such orders add little benefit to the children, but also because they will almost inevitably provide a fertile field for future conflict and proceedings.

Parental dynamics

I accept Mr C’s assessment that there is virtually no communication, cooperation or collaboration between the parents and that there is a poor prognosis for any significant change to this existing situation.[20]
[20] Paragraph 24, Family Report dated 10 October 2014.
Should it be necessary to identify further the extent of the antipathy between the parents – even now – regard need only be had to the fact that the father’s alternate proposal is that Y be sent to live with his maternal grandmother: a person with whom the mother does not currently have an ongoing relationship and a person with whom he has had relatively limited interaction.
That he was joined in this proposal by his wife and that he maintained it at trial demonstrates an absence of reflection about the likely impact on Y of being removed from everything known and, possibly, sent to Melbourne to live with his maternal grandmother.

Parental responsibility

Neither party seeks an order for equal shared parental responsibility. Each seeks an order for sole parental responsibility. The Independent Children’s Lawyer opposes the making of an order for equal shared parental responsibility.
The presumption that it is the children’s best interests that their parents have equal shared parental responsibility for them must be applied unless the Court is satisfied of the matters prescribed in s 61DA(2) of the Act. However, if the presumption applies, it may be rebutted by evidence that satisfies the Court it will not be in the children’s best interests for their parents to have equal shared parental responsibility for them.
Given the findings outlined above, conclusions other than that:
a)there is absolutely no prospect at all that these parents are likely to be able to communicate and co-operate sufficiently to make decisions jointly about major long terms issues relating to the children; and
b)these parents are incapable of negotiating matters about long term issues relating to the children and incapable of making decisions about such issues jointly; and
c)the relationship between these parents is such that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them,
would be perverse.
Any doubt about the validity of such conclusions is easily dispelled having regard to the history of parental interaction, the fact of previous contested proceedings, the manner in which the parents regard each other and the absence of trust or respect that the father demonstrates for the mother. Additionally, regard may be had to the terms of the December 2011 Order – a clear demonstration by both parents of their shared recognition of their mutual inability to co-operate in joint decision-making about major long term issues relating to the children - and the fact that, in the current proceedings, each seeks an order for sole parental responsibility.

What orders are in the children’s best interests?

With whom should the children live?

I accept Mr C’s evidence that X’s best interests will be met by continuing to live with the father and spending time with the mother and his brother Y.
I accept Mr C’s evidence to the effect that Y’s comments he will run away if he is forced to return to live with the father have to be seen in the context of his previous behaviours: namely, given that he has previously absconded from the father’s care on no less than three occasions, there is a clear possibility he will do so again if required to return to live with the father.
I further accept that there is some evidence that Y demonstrated resistance to his father’s care from at least 2010. Given this, the contention that his mother was entirely responsible for inveigling him to abscond from the father’s care, must be treated with some circumspection. Y has had the experience of living in his father’s household. I accept that it is from his perception of this that he speaks. His views should, I think, be accorded far greater weight because of this than if he had never had such experience.
It is clear that, if Y returns to live primarily with them, the father and his wife are not going to make their home like a “secure facility” to neutralise the risk of him absconding again. Thus, it is much more probable than not that he will abscond again and, I think, absent himself to places undisclosed.
I accept Mr C’s evidence that, from his comments to him, Y will be happier if he continues to live with the mother. Mr C says his potential for achievement might not compare to that which might be achieved if he returned to live with the father. Time will tell but he will be able to go to school. Additionally, achievement itself takes many forms, only one of which is academic success – a matter so ably demonstrated by X’s photographic achievements.
Mr C opines that it is conceivable Y has chosen the mother out of the ashes of conflict – that is, it has simply become too hard to maintain relationships across all of the family.[21] Additionally, he posits that it may be that Y resonates more with his mother than his father or might have chosen the “softest” option.
[21] Paragraph 165, Family Report dated 10 October 2014.
Whilst all of these are possibilities, the stark reality is that, for whatever reason, it is certain Y will oppose any return to his father’s care.
Having taken into account:
a)Y’s expressed views; and
b)his current attitude to his father; and
c)the fact that attempting to force him to return to live in his father’s household is highly likely to result in him absconding again and possibly placing himself in situations of risk; and
d)Mr C’s evidence that he will be happier if he continues to live with his mother; and
e)that the opportunity for Y and X to spend time together can be facilitated by orders which provide X with the opportunity to spend time in his mother’s household; and
f)Y’s expressed ambivalence about the benefit to him of an opportunity to spend time with some of his half siblings; and
g)the attitude to Y expressed by Ms HDS to Mr C and the likely negative impact on him of exposure to the same in that household,
I am easily persuaded that it is in Y’s best interests to remain living primarily with his mother.

How should orders relating to parental responsibility be framed?

I consider that an order which accords to the mother sole parental responsibility for major long term issues relating to Y - without the requirement to ask the father to provide input into the same and to take his responses into account - is an order which is in Y’s best interests. In that way, the significant risk of impact on the child of a highly likely impasse between his parents about decisions relating to major long term issues about him will be avoided, the significant possibility of future conflict between the parents arising out of any necessity to attempt to reach such decisions jointly will be eliminated and there will be no prospect that likely disagreement between the parents will frustrate the decision-making process.
But for the highly likely possibility of future litigation arising out of failure to comply with prescriptive input–seeking orders, it may have been in Y’s best interests for the father to be afforded an opportunity to provide input into decisions about major long term issues relating to him. However, this is simply not the case here.

What time should each child spend with the parent with whom that child is not living?

The father accepted it was important that X and Y spend time together. Somewhat incredibly – but certainly consistently with his obvious attitude that there could be no order other than one which would seek to force Y to return to live with him - he had not turned his mind to how their time together should occur if Y remained living with his mother.
He assumed there should be a return to the terms of the December 2011 Order. Whilst he expressed a concern that there would need to be “safeguards” in place to ensure X would return to him after time with his mother, he did not know what form these could take since he had not turned his mind to this.
I gained no assistance from his legal representatives about this issue and no submissions were made by any party in relation to it.
Given the distance between the parents’ respective households, weekend and holiday time between each child and the parent with whom he is not primarily living is the only practicable possibility.
I accept that the terms of the order proposed by the Independent Children’s Lawyer for Y’s opportunity to spend time in the father’s household is something that is in his best interests. Hopefully, the assurance that he will continue to live primarily with the mother will provide Y with a new base from which he can start to rebuild his relationship with his father.
The mother proposed that X spend time with her each alternate weekend from after school Friday until school Monday. Whilst this has the obvious advantage of eliminating the need for any interaction between the parties, I am conscious of the logistic difficulties which may well attend a return to school on Monday mornings – especially in circumstances where the mother’s household will comprise two other children. I also note that, whilst the December 2011 Order provided for Friday to Monday morning time, changeovers were ordered to occur on Sunday afternoon.
Whilst no submissions were specifically made by Counsel for the father in relation to the mother’s proposal, I am not persuaded that a return to school each alternate Monday morning is something that is likely to be beneficial for X. Rather, I conclude that time from 5.00 pm Friday until 5.00 pm Sunday is an order which will best meet the necessity of balancing appropriate time with the mother and Y with the impost of travel.
Changeover should occur in the manner previously agreed between the parties as reflected in the previous consent Order.

Counselling

I accept Mr C’s evidence to the effect that, whilst counselling may help to restore the relationship between Y and his father, the benefits of the same could so easily be eroded if the father consistently took an authoritative position with, and approach to, Y between sessions of counselling.
Given the father’s approach to the issue of Y’s possible enrolment at M High School and his complete dismissal of the validity of Y’s complaints when seen from the child’s perspective, it seems highly likely to me that his approach to Y may well be consistently authoritative. I think as much can be concluded from the fact that the father selected the psychologist he nominated as a person appropriate to provide counselling to Y because, previously, that person apparently told Y to “behave” and go home with his father.
However, accepting the mother’s evidence that:
a)she will do all she can to support Y in his attempts to bridge the current chasm in his relationship with his father; and
b)they need professional help and need to do something different to assist in improving the relationship between Y and his father; and
c)that Y and his father are like ‘two opposing forces at each other’,
I consider that an order for counselling as proposed by the Independent Children’s Lawyer is appropriate and in Y’s best interests.
I record that such engagement need not continue if the therapist engaged in the process at the recommendation of the Independent Children’s Lawyer determines that, for whatever reason, its continuation is futile. Counselling is intended to provide Y with a forum in which he can look to continuing his relationship with his father - in whatever form and by whatever means this continuation ultimately manifests itself.

A Passport for the child Y

Y told Mr C his mother wanted to take him overseas but his father would not allow this – a matter which appeared to be another source of unhappiness and/or resentment towards his father.
No submissions were made by Counsel for the father in opposition to an order permitting the mother to obtain a passport for Y without the father’s consent.
Given that an inability to obtain a passport may well be a further matter solidifying – in Y’s mind – the existing difficulties between Y and the father, it seems to me to be beneficial to permit the mother to do all things necessary to obtain the same. In order to prevent any further impasse and to eliminate the necessity of any further return to Court, a Registrar of the Court will be empowered to sign any documents necessary to facilitate Y obtaining a passport.

Contravention Application filed 5 February 2014

The application was originally listed for hearing before Judge Coates in the Federal Circuit Court on 7 April 2014. On 9 May 2014, he transferred the proceedings to this Court. The absence of Reasons for this decision means that its basis is unknown.
The father alleges that the mother contravened the December 2011 Order in the following manner:
a)on 8 November 2013, she failed to return Y to him after that child ran away; and
b)thereafter, she withheld Y from returning to live with him pursuant to the terms of the operative Order; and
c)thereafter, she did not encourage Y to spend time with him or facilitate the same.
The mother accepted that she had contravened the Order. However, I am not persuaded that the father has established contravention as pleaded.
In so far as the period from 7 November 2013 until 10 January 2014 – when she took Y to the M Hospital and contacted the Department - is concerned, I accept the mother’s evidence that Y would not return to live with the father and that she was concerned, if she forced him to do so, he would run away from her also. I further accept that she attempted to persuade him to resume contact with the father and that she provided the father with an email address by which he could contact Y. I accept she encouraged Y to contact a telephone counselling service and that her attempts to obtain supportive therapy for him via a mental health plan were stymied because of the existence of the order according the father sole parental responsibility for Y. I accept that she convinced him to go to the M Hospital by telling him that she could not continue to fail to comply with the order and that he should speak with someone from the Department.
I accept she told Y he needed to speak to his father and that Y told her he could not and did not want to. I also accept she facilitated Y speaking with his paternal grandmother, a person with whom he liked to speak. I also accept the mother’s assessment that attempts to ‘make’ Y have a relationship with his father have not and will not work into the future.
On this basis, I am not persuaded the mother did not make a reasonable attempt to comply with the December 2011 Order from 7 November 2013 until 10 January 2014. If I am wrong in arriving at this conclusion, then I am satisfied that she had a reasonable excuse for contravening the Order, given Y’s steadfast refusal to return to his father’s care.

I do not accept that the mother withheld Y from returning to live with the father. Rather, as I have outlined above, I am persuaded that Y simply did not want to return to live with the father or in his household. The mother’s response to his implementation of his view is easily distinguishable from cases where parents do nothing to encourage a child to spend time with a parent.
I accept that Y was returned to the father in accordance with the Order made on 9 May 2014. I accept the mother’s evidence that she told Y of her obligations pursuant to this Order and that she told him she could go to prison if he did not return to the father. In fact, he did return to the father’s care that day and ran away again. After he was returned by the mother on 14 May 2014, he again ran away.
The mother was not challenged about her evidence that on each of these occasions she left Y and drove away toward her home. She did not, for example, loiter in the city to make herself available to him.
I consider, therefore, that she did not intentionally fail to comply with the December 2011 Order or the May 2014 Order from 9 May 2014 onwards. I am not persuaded that she made no reasonable attempt to comply with the December 2011 Order or the May 2014 Order from 9 May 2014 onwards. Further, I am not persuaded that she did not encourage Y to spend time with the father – in fact, she drove him to Brisbane twice in May 2014 and twice he ran away when placed into the father’s care.
In the event I am wrong in arriving at these conclusions, I accept that the mother permitted Y to continue to live with her after he ran away from his father’s care because she was concerned he would either suffer harm or be at significant risk of suffering harm if she refused to permit him to stay with her. I am satisfied she believed on reasonable grounds that her actions were necessary to protect his health and safety and that the period during which, because of any contravention, Y did not see his father was no longer than necessary to protect his health and safety. Therefore, I am persuaded that the mother had a reasonable excuse for failing to return Y to the father.
For these reasons, the Application for Contravention is dismissed.

Costs

The father sought an order that the mother pay his costs associated with the proceedings. In the circumstances as I have found them to be, I am not satisfied that the circumstances justify the making of an order[22] departing from the statutory starting point that each party bear their own costs in proceedings under the Act.[23]
[22] s 117(2) of the Act.
[23] s 117(1) of the Act.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 May 2015.

Associate:

Date: 15 May 2015

[2015] FamCA 356

15 May 2015

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Family Law

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