Withers & Russell
[2022] FedCFamC1F 372
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Withers & Russell [2022] FedCFamC1F 372
File number: CAC 223 of 2015 Judgment of: GILL J Date of judgment: 26 May 2022 Catchwords: FAMILY LAW – CHILDREN – With whom the children live – Children demonstrating high trauma resulting from involvement in parental conflict – Rice & Asplund threshold met for reconsideration of parenting arrangement due to change in children’s circumstances and risk of their self-harm – Influence of the children’s views – Need to relieve children from pressure of current arrangements – International relocation – Where the mother lives in the USA – Where the children currently live with the father in Australia – Highly conflictual parental relationship – Sole parental responsibility granted to the mother. Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 65DAA, 70M
Cases cited: Jollie & Dysart [2014] FamCAFC 149
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Phillips & Hansford (2019) 60 Fam LR 160
Rice and Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 512 Date of hearing: 22–26 February 2021 & 1–2 March 2021 Place: Canberra Counsel for the Applicant: Mr J Haddock Solicitor for the Applicant: Mazengarb Family Lawyers Solicitor for the First Respondent: Self-represented Litigant Solicitor for the Second Respondent: Self-represented Litigant Solicitor for the Independent Children's Lawyer: Jeanine Lloyd & Associates ORDERS
CAC 223 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RUSSELL
Applicant
AND: MR WITHERS
First Respondent
MS RUSSELL SNR
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
26 MAY 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.Ms Russell (“the mother”) has sole parental responsibility for the children A born in 2009 and B born in 2011 (collectively “the children”).
3.The children live with the mother on and from the last Sunday of the July 2022 school holidays in the Australian Capital Territory (“ACT”).
4.The mother is permitted to permanently relocate the children to City VV in the United States of America (“USA”).
5.The mother shall at all times keep Mr Withers (“the father”) informed, in writing, of the current residential address of the children and shall give the father 14 days’ notice, in writing, of a forthcoming change in that address.
6.Should there be any medical emergency involving the children, including but not limited to, serious illness, accident or hospitalisation, the parent with the care of the children at that time must, as soon as practicable:
(a)contact the other parent; and
(b)provide to the other parent all documentation and information in their control or possession regarding the medical emergency.
7.As soon as practicable each parent shall notify the other parent of the name of any medical practitioner, paediatrician or other specialist who treats the child whilst the child is in that parent’s care and shall authorise the treater to inform the other parent of all matters concerning the relevant child.
8.The mother shall at all times keep the father informed, in writing, of the current school each child attends and shall give the father 14 days’ notice, in writing, of a forthcoming change in the school.
9.The mother shall authorise any school the children may attend to provide to the father copies of reports, newsletters and announcements of school activities or otherwise pertaining to the education of the children and the mother shall authorise the staff members at any school the children may attend to discuss the children’s progress with the father.
10.Neither party be permitted to use a surname for the children other than “Withers”.
11.The children are to spend time with their parents as follows:
(a)With the father from the date of these orders until 2.00 pm on the final Sunday of the July 2022 school holidays (ACT) subject to;
(i)if the mother is in Australia during that period then each second weekend during term time from 3.00 pm Friday until 9.00 am Monday with the mother.
(b)If the father is in the USA:
(i)during school term time with the father on each alternate weekend from after school on a Friday (or 3.00 pm if Friday is a non-school day) to before school on Monday (or 9.00 am if Monday is a non-school day) with the father to pick the children up from school (or if a non-school day; absent any other agreement, the Starbucks closest to the children’s school) and deliver them back to school (or if a non-school day, absent any other agreement, the Starbucks closest to the children’s school);
(ii)during school term time with the father on each alternate Tuesday night in the off week from after school on Tuesday (or 3.00 pm if a non-school day) until before school on a Wednesday (or 9.00 am if Wednesday is a non-school day) with the father to pick the children up and drop them off from and to school (or if a non-school day, absent any other agreement, the Starbucks closest to the children’s school);
(iii)upon the father giving the mother four weeks’ notice in writing for two one week periods during any school term, which weeks are not consecutive school weeks (but not to include either the first week of the first term or the last week of the last term of the American school calendar);
(iv)for the American summer holidays, with the father for the first half of the school holiday period commencing in years ending in an even number and the second half of the school holiday period commencing in years ending in an odd number;
(v)for the American summer holidays, with the mother for the first half of the school holiday period commencing in years ending in an odd number and the second half of the school holiday period commencing in an even number;
(vi)with the father for the whole of the American spring break school holidays provided the father gives the mother two months’ notice of his intention to have the children with him during that school holiday period;
(vii)with the father for the Christmas holidays in each even numbered year;
(viii)with the mother for the Christmas holidays in each odd numbered year; and
(ix)with the father for the whole of the American autumn school holidays in each odd year provided the father gives the mother two months’ notice of his intention to have the children with him during that school holiday period;
(c)With the mother from 9.00 am until 5.00 pm each Mother’s Day and with the father from 9.00 am until 5.00 pm each Australian Father’s Day provided he is in the USA or such time falls during his school holiday time.
(d)On the children’s birthdays each year with the parent with whom the child is living to make the children available to spend time with the other parent for a period of at least three hours at a time to be agreed upon between the parents but failing such agreement from 4.00 pm to 7.00 pm.
12.For the purpose of the preceding orders, in the absence of any written agreement between the parties to the contrary, the following orders apply:
(a)The first half of the American school holidays will commence at the end of classes the last day of school; and
(b)The second half of the American summer school holidays will commence at 5.00 pm at the midpoint of the school holidays and if there are two middle days then changeover is to take place on the first middle day.
13.For the purpose of the preceding orders, if handover does not occur before or after school at the children’s school, it is to occur at a location agreed by the parties in writing and failing agreement at the Starbucks closest to the children’s school.
14.The children are to have a valid passport at all times and the mother and the father are each entitled to and shall sign all documents and do all things necessary to ensure that each child holds a passport at all times with no less than 6 months validity and the mother shall bear the costs of each passport renewal.
15.For the purpose of s 11 Australian Passports Act 2005 (Cth) it is noted the above orders allow:
(a)The children to have an Australian travel document;
(b)The children to travel internationally; and
(c)The children to live with or spend time with a parent who is outside Australia.
16.In the event that the father is not present in the USA, the children are at the election of the father to travel from the USA to the ACT, Australia to spend two periods of time each calendar year with the father for a length of time equivalent to the time the father would if present in the USA otherwise be entitled to spend time with the children during the holidays in the USA pursuant to these orders (which period can be increased by one week by adding one week after Spring break or after the Autumn school holidays) provided that the father gives the mother two months’ written notice of his intention to have the children with him in Australia, including the date of the children’s departure from and the arrival back to the USA.
17.The parties are to consult and attempt to agree in writing in respect of the international travel arrangements to enable the children to spend time with the father in Australia, but failing agreement:
(a)In the event the father gives two months’ written notice as referred to in the preceding order, the father shall indicate to the mother whether or not he intends to escort the children from the USA to Australia, and if he does, the father shall collect and return the children to a place agreed between the parties but failing agreement, BE City International Airport;
(b)If he fails to do so the mother can indicate to the father in writing that she intends to escort the children to and from Australia with drop off and pick up to be agreed between the parties and failing agreement Sydney International Airport; and
(c)If neither party is prepared to escort the children, the children can fly as unaccompanied minors between BE City and Sydney. The mother to deliver and pick up the children from BE City International Airport and the father to deliver and pick up the children from Sydney International Airport.
18.The father will be responsible for purchasing air tickets for the children.
19.Each party shall be equally responsible to meet the costs of the children’s air tickets.
20.The mother within 14 days of the father demonstrating in writing that he has purchased air tickets for the children, is to pay to the father one half of the cost of those tickets.
21.Each party will otherwise be responsible for the cost of their own airfare associated with accompanying the children on international travel and any other costs associated with the travel.
22.In the event the father is unable to pick the children up himself personally at the commencement of the time or redeliver them at the conclusion of the time, the father is to ensure that the mother is advised by way of SMS text message confirmation as to the name of the person facilitating all changeovers on his behalf no later than one hour prior to the commencement and/or conclusion of the time.
23.At least 14 days prior to their departure from the USA, the father is to provide the mother with:
(a)A copy of return tickets for the children;
(b)A copy of the confirmed flight itinerary and proof of payment including return airfares for the children; and
(c)Contact details including mobile and land line contact telephone numbers where the children can be contacted by telephone for the duration of the time they are away from the mother.
24.The children are to have telephone, Skype, FaceTime and/or WhatsApp communication (at the mother’s election) with the mother every Sunday and Wednesday when with their father at a time to be agreed upon between the parties and failing agreement 7.30 am (ACT time) and any other reasonable time the children request to speak to their mother.
25.The children are to have telephone, Skype, FaceTime and/or WhatsApp communication (at the father’s election) with the father every Sunday and Wednesday when with their mother at a time to be agreed upon between the parties and failing agreement 7.30 am (ACT time) and any other reasonable time the children request to speak to their father.
26.Each parent use their best endeavours to ensure that the children communicate by telephone, mobile or video linkup with the other parent at the times provided for in these orders and to do everything to facilitate that communication.
27.Each parent is required to provide to the other parent their mobile numbers so that the children are able to communicate with the other parent.
28.In the event that either parent intends to change their contact telephone number they are to forthwith inform the other of their new telephone number.
29.The mother shall not change the children’s place of residence from either City VV or BE City, California without first obtaining the written consent of the father or further order.
30.Neither parent is to say unkind or uncomplimentary things about the other to or in the presence of the children or one of them, nor cause or allow anybody else to do so.
31.Prior to the children turning 18 years of age, both parents be restrained from discussing these proceedings with or in the presence of the children other than the outcome as provided by these orders.
32.Neither parent is to attempt to contact the children by telephone at times other than those provided for in these orders unless in the event of an emergency.
33.The mother is to generally hold the children’s passports and travel-related documents but is to make the children’s passports and travel related documents available to the father in a timely way to facilitate the children’s international travel in accordance with these orders.
34.In the event that either parent wishes to travel overseas outside of Australia or the USA with a child or the children, each parent must provide the other with at least two months’ notice of the intention to travel, along with copies of return tickets for the child/children at least 14 days prior to the departure and a detailed itinerary providing addresses and phone numbers for accommodation in which the children will be staying at least 14 days prior to departure.
35.The parties are to do all things necessary to cause the registration of these orders in the USA.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
INTRODUCTION
The parties to this matter are the applicant, Ms Russell (“the mother”), the respondent, Mr Withers, (“the father”) and the second respondent, Ms Russell Snr (“the maternal grandmother”). The mother and father married in BF City, California in 2007. Their children are A born in 2009 and B born in 2011, (“the children”). The mother and father divorced in Australia in 2020. The subject of this hearing is the appropriate orders in relation to parenting. The parties fundamentally disagree about the future parenting arrangements for the children.
The central issue at the hearing was whether the children are currently exhibiting signs of trauma and, if so, their extent, causes and significance. That is, amongst the many allegations and assertions made by the parties, the psychological and emotional wellbeing emerged as the prominent themes. Those themes call for careful examination of why the children are in such a state, their trajectory and, in that context, whatever the causes, what orders will promote their best interests.
In a case in which all parties exhibited serious deficiencies (albeit to differing degrees), it is of utmost importance to note that the paramount concern of the proceedings is not the ultimate vindication of the parties, but the best interests of B and A.
This matter occurs in the context of previous litigation between the parties in relation to the children. By that previous litigation, and following a contested hearing, final parenting orders were made by Watts J on 20 September 2016.
In general terms, the orders of Watts J provided for the father to have sole parental responsibility for the children, subject to conditions, and for the children to live with the father. The mother is usually a resident in the United States of America (“USA”), but when she is present in Australia, the regime provided for in the orders is for her to have alternate weekends from Friday through to Monday and alternative Tuesday evenings. When the mother is in Australia, she is additionally able to nominate two one-week periods each term for the children to spend block time with her. There is also provision for school holidays and special occasions. When the mother is not in Australia, the orders provide for travel to the USA for the children. In addition, the orders provide for the maternal grandmother to have each fourth weekend during term time from a Friday to a Monday with the children.
The dispute between the parties is somewhat layered. The father contends that there should, in accordance with the principles identified in Rice v Asplund,[1] be no disturbance of the Watts J orders, although, if there is a disturbance of those orders, he seeks restrictions to be placed upon the time the children spend with the mother and maternal grandmother. The mother and maternal grandmother seek that the children live with the mother under circumstances where she will live in the USA, and that there be orders for time with the father. The mother also seeks a change in parental responsibility such that it be equally shared.
[1] (1979) FLC 90-725.
The Watts J judgment
In the previous proceedings, Watts J dealt with a myriad of factual contentions advanced by the parties. Without purporting to summarise the judgment in full, his Honour concluded that, despite a then superior relationship between the children and the mother it was necessary to reverse their living arrangements and provide for them to live with the father in order to maintain relationships with both of their parents. His Honour found this outcome would be compromised if the children were to live with the mother.
Resonant with the issues raised in the current trial was Watts J’s further observation that the risks of psychological harm for the children arise from the “totally dysfunctional relationship” between the parents.
As was identified by Watts J, the relationship between the parties is extremely poor. Their regard for each other can only be taken to be at the lowest level and is undoubtedly the source of many of the difficulties encountered by the children.
That is an underlying circumstance that is also a feature of this trial.
A further feature of that trial was that his Honour was unable to accept what the mother alleged without further support for the contentions, and that the credit of both the father and maternal grandmother were “compromised”. He rejected most of the allegations made by the mother in relation to the father, in particular rejecting that he had engaged in systemic coercive controlling family violence. His Honour also rejected allegations of violence against the father in relation to the children, finding that the mother had at various points fabricated, embellished and exaggerated evidence and events.
Those credibility observations point to the exercise of caution in dealing with the evidence of the parties, a caution that was also indicated on the evidence given, for reasons set out below, in this trial even without recourse to his Honour’s comments.
The conduct of the trial
The mother appeared represented by experienced counsel, whilst the father and maternal grandmother, who is an experienced legal practitioner, were unrepresented. The parties relied upon voluminous affidavit material that was replete with inadmissible commentary and submissions. Pragmatically, the parties did not pursue comprehensive objections to the affidavit material. Such a process would have taken a significant amount of the time allocated for the trial.
The maternal grandmother sought an indulgence from the Court to not be present for portions of the trial. She was granted that indulgence on conditions, as per Order 4 dated 4 February 2021.[2]
[2] Order 8 of 4 February 2021; Transcript 22 February 2021, p.47 lines 17–46.
It may be observed that the parties’ cases were not assisted by the manner of presentation of affidavit material. Although affidavits are to contain only admissible material, the parties included within their affidavits copious submissions and argument. The copious presentation of argument and submission within the affidavits constituted a morass, within which the useful, admissible, substantive evidence were hidden. The commentary revealed the palpable mistrust and hostility between the parties.
While the parties’ material contained a vast array of complaints in relation to the other party, only a small portion of these were the subject of any real attention at the trial. Heavy reliance is placed upon the choices of the parties as to what, or what not to pursue more closely in the proceedings, either in their submissions, or in their cross-examination. Accordingly, more attention within this judgment has been given to what the parties’ emphasised amongst the factual contentions, rather than seeking to merely pluck material from the cornucopia of complaints and submissions contained within their material.
Replicating the parties’ approach to affidavit material, when it came to oral evidence, the parties were unable to provide evidence without argument and commentary. Overall, they were chronically unable to directly answer questions put to them in cross-examination, avoiding answering questions, and answering with argument and submission. This pattern of response was pervasive amongst the parties, despite the warnings that each were given at the commencement of their evidence that persistent failure to direct themselves to the questions may lead me to question their credibility and ask myself whether they were in fact avoiding the questions.
The pattern of providing responses leads to the conclusion that each of the parties actively evaded questions to an extent where their evidence, absent adequate support, should be regarded with great caution. This overall observation was reinforced by the inconsistencies in evidence that emerged during the course of the trial, where the parties were forced to backtrack and correct evidence given earlier, or gave evidence that was inherently incredible or inconsistent with documentary evidence, or inconsistent with their own affidavit material.
The manner of the giving of evidence was not only significant to issues of credibility, but was, like the affidavit material, emblematic of the adversarial, mistrusting and hostile relationship between the parties.
Although the parties identified a number of factual matters that they sought resolution of at the commencement of the trial, the trial did not ultimately revolve around these issues.
Both at the commencement of the trial,[3] and prior to the final submissions,[4] it was identified to the parties that the resolution of the dispute as to parenting arrangements was reliant upon “what has happened” to the children and “why has it happened” to them over the years since the litigation before Watts J in 2016. It was an approach directly accepted as appropriate by the mother, the maternal grandmother and the Independent Children’s Lawyer (“the ICL”).[5] Accordingly, it was identified to the parties that the trial would not involve trawling back through what happened prior to the proceedings before Watts J in 2016.[6]
[3] Transcript 22 February 2021, p.1 lines 28–37.
[4] Transcript 1 March 2021, p.704 lines 22–29.
[5] Transcript 22 February 2021, p.19 line 16.
[6] Transcript 22 February 2021, p.42 lines 45–46; p.43 lines 24–26; p.44 lines 29–34.
Of what has occurred since the Watts J judgment, most significant to the resolution of the current dispute, are assertions that the children are saying that they wish to live with the mother, that A has self-harmed and has also stated that she wants to die, and that B has said that he hates his father. Questions arise both as to whether the reports of these matters are accurate and as to their significance. In particular, questions arise as to whether the children are suffering psychological harm, whether their relationships with the father are damaged and harmful, and whether the mother and maternal grandmother are the authors of the children’s reported distress and traumatisation.
In the conduct of the case, the parties concentrated most heavily upon the nature of the relationships that the children have with each party, the benefits that flow from those relationships, the capacity of each of the parties to provide emotional support and, in the case of the father, physical support, and whether the children are at risk of psychological harm from any of the parties. Given the binary nature of the parties’ cases, with the mother living in the USA and the father in Australia, the practical difficulties of spending time with each parent, and the impact of a change in circumstances were also at issue. Ameliorating the practical difficulties to some degree the mother conceded that she has the financial capacity to meet whatever travel arrangements are put in place.
ORDERS SOUGHT
The precise orders sought by the parties are annexed in full in a schedule at the conclusion of this judgment. A brief summary of these orders sought are set out below.
The father’s position was identified at the commencement of the trial. Firstly, he sought that there would be no change to the orders, but that they would remain in accordance with Watts J’s judgment. This position was reliant upon an application of the principles contained in Rice v Asplund,[7] the father contending that there has been no sufficient change in circumstances since the Watts J judgment to justify revisiting it.
[7] (1979) FLC 90-725
As will be seen in this judgment, that contention is rejected. The principles in Rice v Asplund,[8] are a manifestation of the best interests principle. There are issues of great significance including the identification of the children as traumatised, the potential compromise of their relationship with the father, and risk of self–harm, that mean that it is in the best interests of the children that full consideration of the matter is given again based on what has occurred since the Watts J judgment. This is despite the burden caused by such litigation.
[8] (1979) FLC 90-725
Although the father resisted the proceedings on the basis of the principles identified in Rice v Asplund,[9] in the event of reopening he asserted that the best interests of the children required fundamental changes to the orders. The father firstly sought that the mother’s time should be supervised for 12 months. Secondly, he sought a deleting of orders for the maternal grandmother spending any time with the children, but that if she was to spend time with the children that it should be supervised. Thirdly, he sought that the mother should be responsible for the costs of visits to the USA rather than the parties being equally responsible.
[9] (1979) FLC 90-725
The mother seeks orders to vary the final parenting orders put into place by Watts J, such that the children would live with her in the USA and spend time with the father, including time in Australia. The mother additionally seeks a change of the allocation of parental responsibility by Watts J so that the mother and father shall have equal shared parental responsibility for the children.
As will be seen in the judgment, there is no basis on which it could be considered that the parents could together discharge the obligations of cooperation that go with such an order.
The maternal grandmother sought orders that varied depending on whether the children were to live with the mother or father. She supported the mother’s application. If living with the mother she indicated, during final submissions, that she sought no orders for the time that the children might spend with her. If living with the father, she sought time with the children each fourth weekend, on Mother’s Day, and requiring the father to go to her as the first port of call as a babysitter.
MATERIAL RELIED UPON
Applicant Mother
As per the mother’s case outline, she relied upon the following documents:
(a)Her Amended Application for final orders sought filed 20 February 2020;
(b)Her affidavit filed 2 October 2020;
(c)Her affidavit filed 11 November 2020;
(d)Affidavit of Ms UU filed 19 February 2020;
(e)Affidavit of Mr QQ filed 1 October 2020; and
(f)Her Case Outline.
Respondent Father
As per the father’s case outline, and confirmed orally at hearing, [10] he relied upon the following documents:
(a)Response to Final Order sought 6 March 2020;
(b)His affidavit filed 19 January 2021;
(c)His affidavit filed 28 October 2020;
(d)Affidavit of Ms G filed 26 October 2020;
(e)Affidavit of Mr NN filed 27 October 2020; and
(f)Affidavit of Ms BJ filed 27 October 2020.
[10] Transcript 22 February 2021, p.14 lines 11–46.
Second Respondent Maternal Grandmother
As per the maternal grandmother’s case outline, she relied upon the following documents:
(a)Her Case Outline filed 20 July 2020;
(b)Affidavit of Mr R filed 30 September 2020; and
(c)Affidavit of Ms Russell Snr filed 6 October 2020.
Independent Children’s Lawyer
As per the ICL’s case outline document, the ICL relied upon the following documents:
(a)Family Report of Ms BD dated 18 June 2020;
(b)Family report of Ms BD dated 16 September 2020;
(c)ICL’s Tender Bundle; and
(d)ICL’s Further Tender Bundle
CHRONOLOGY OF THE KEY INCIDENTS PURSUED BY THE PARTIES AT TRIAL
Although the parties’ cases each pursued wide ranging criticisms of each other, alleging a vast array of personal faults, limitations, flaws and a litany of incidents perpetrated by the other parties, the matters that substantively spoke to the key issues of the best interests of the children were far narrower.
Although the matters dealt with below do not constitute every factual contention raised by the parties, the most significant, and those capable of influencing the final result are set out below.
In order to properly contextualise the key incidents that speak to these issues, it is appropriate to deal with them in chronological order, noting that they are concentrated mostly between the period shortly prior to the commencement of litigation by the mother in October 2016, and the trial of the matter in February and March 2021.
Those matters chiefly concern the expressed views of the children and their significance, the nature of the relationship between the father and the children, whether A is at risk of self-harm and, if so, the causes of that risk, and the capacity of the parents to care for the children. These key factual matters, related as they are to the considerations emphasised by the parties in their cases, present a narrowing of the issues capable of being determinative in this case.
They include allegations that the father has physically harmed the children, or failed to care for them, or exposed them to adverse behaviour. They further include assertions attributed to the children about how they feel about the father and mother, and issues flowing from the behaviour of the children. They include the responses of the various parties to those incidents and the steps taken, or not taken to care for the children. They include issues raised about compliance or non-compliance with the orders of Watts J.
Prior to embarking upon setting out that chronology, it is useful to identify that central among the issues pursued by the parties is the emotional and psychological well-being of the children. The chronology, and the content of the family reports point toward conclusions that the children are traumatised and seriously adversely impacted in their current parenting arrangements. The chronology is of assistance in understanding why this is so, in order to then formulate a result to alleviate the children’s state in the pursuit of orders that will promote their best interests.
Late 2016: Alleged exposure to sexualised conduct and drug use
The maternal grandmother alleges that A reported to her that she had seen the father engage in a sexual liaison with a man in late 2016. A apparently described that she had gone into a toilet and seen the father with his pants down, and with another man on the ground. A apparently gesticulated in a manner that communicated some form of sexual contact. A is reported to have said that the father told her not to say anything or they would hurt her. The maternal grandmother then amended this to that she would get into big trouble, rather than that they would hurt her.[11]
[11] Transcript 21 March 2021, p.406, lines 22–25.
A had also drawn a picture that the maternal grandmother took to be a bong. The maternal grandmother went further to explain that A had told her that it was a bong and described its workings, including where the water and the smoke went.
The maternal grandmother said that she did not raise these instances with the father because it was shortly after the Watts J judgment. At that time, she said, the father was shutting her out by limiting her contact with the children to once a month, and that the children were crying all the time. It is unclear how, if shut out, she was able to assert that the children were crying all the time, or if in fact she had, in addition to the ordered time other forms of contact with the children.
The maternal grandmother also explained that she did not expect that she would be believed. She said that in response to the issues she started to ask the father to not expose the children to certain activities, such as taking them gambling, and when he was having drugs. She further alleged that the father replied that she was seeking to deny him his occasional pleasure. She explained that she raised these requests some months later with the father, but that she also raised it with the school and asked the school not to report it. She claimed that the father was subsequently interviewed about it.
It is inconceivable that the maternal grandmother would have simply let such allegations of exposure to sexual conduct and drug use lie unpursued. Given the allegations are reliant largely on the maternal grandmother’s testimony, and in the context of the caution I have in relation to her credibility, I do not accept, in the face of the father’s denials, that any of these sexual or drug related incidents occurred.
Christmas 2016: Father’s alleged non-compliance with Christmas orders
The mother said that the father failed to comply with orders for her to spend time with the children on Christmas Eve and Christmas Day 2016, a few short months after the delivery of judgment by Watts J.
His Honour’s orders provided that the children were to be with the father for the first half of the term 4, 2016 holiday period, but that from 10.00 am Christmas Eve until 10.00 am Christmas Day they would spend time with the mother if she was in Australia. The father was entitled to obtain evidence from the mother that she would be in Australia for the exercise of such time.
Rather than providing the children on Christmas Eve, the father travelled with the children to BK Town for Christmas in 2016. He denies that the mother complied with the necessary conditions to spend that Christmas time with the children, in particular in not being in Australia for the commencement of the time.
The mother says she was in Australia for the exercise of the time, initially asserting that she arrived at 6.00 am in Sydney on Christmas Eve, before conceding that she could not recall the time of the flight. The children were living in the ACT. Under those circumstances it is highly doubtful that she was present in the relevant sense to spend time with the children at the commencement of the time allocated to her.
The mother accepted that in any event she had half the Christmas holidays with the children.[12]
[12] Transcript 24 February 2021, p.239 line 40.
This incident is indicative of both parents pushing the boundaries of the orders. If the mother were to be marginally late for Christmas time with the children, it is difficult to understand why the father would take steps that would mean that the children would miss Christmas with the mother for even the balance of the ordered time. Similarly, it is far from clear why the mother scheduled her arrival such as to practically impinge on the limited Christmas time with the children, and to require that the father accommodate her arrangements.
The mother asserted that A reported that the father had hit her on her sunburn while in BK Town.[13] She was unable to identify when this occurred, but said that A had apparently said it to multiple other people and thought that it was true.
[13] Affidavit of the mother filed 2 October 2020, paragraph 115.
Mid-2017: Letter written to L Primary School
The maternal grandmother complains that the father sent correspondence about her to L Primary School (“the school”), the children’s school, containing various documents and assertions that he was not entitled to give them, such as court documents.
Exhibit RR7 is the letter from the father to the school of mid-2017. It contains allegations made against the maternal grandmother regarding lying in court, and the father’s concern regarding her attempts to gain custody of the children.
The context of the letter was that the father had discovered that the maternal grandmother was regularly attending the school for reading groups without his agreement, under circumstances where he holds parental responsibility. In those circumstances, the father was expressing his concern to the school regarding her attendances there. Further, he asserts to the school that the maternal grandmother made comments about the children to a mandatory reporter, causing a report to be made to Child and Youth Protection Services ACT (“CYPS”).
This is an example of each party undermining the other, and doing so through involving third parties concerned with the care of the children.
These circumstances and correspondence again emphasise that, although the father and maternal grandmother have acted cooperatively at times, in respect of the children, the peace between them is fragile and their interactions volatile.
2017: Discussions with children about moving to the USA
The mother commenced a relationship with her now current husband, Mr QQ in 2016 and they married in 2020. He described that he met the children in 2017 and during this first meeting they raised their desire to live in the USA with him.[14]
[14] Transcript 24 February 2021, p.312, lines 33–38.
Context around why the children said such things, what the circumstances were that surrounded them, and their level of understanding of the significance of such a change, were not apparent.
Mid-2017: B’s hospital visit
The father took B to hospital in mid-2017 for the treatment of a finger injury sustained whilst in the mother’s care.[15]
[15] Transcript 24 February 2021, p.264 line 19 to p.265 line 9.
The mother complained that:
[In mid] 2017, I received an email from the Respondent saying the children will not be available to speak to me the next day. No explanation was provided. In the email chain the Respondent noted [B] was in hospital but did not provide any details. I was not able to speak to the children. Copies of the emails are annexed marked “[MR-21]”.
This appeared to be both a complaint that the father did not communicate why B went to hospital, and that the father obstructed her communication with the children. Ultimately, the mother conceded that her evidence did not paint the correct picture of the interaction.
The mother explained that the injury, for which B was being treated, was one that had occurred during the July 2017 school holidays in her care. She had also taken B to hospital for the same injury, but ultimately the height of her complaint was that the father did not provide details of his hospital follow up for a day and a half, and did not spell out why the usual time for a call was unavailable.
The mother requested an explanation as to why the usual time was unsuitable and an update on the situation regarding B’s finger. Although the father did not state specifically why the children could not call at the usual time, the reason potentially being inferred from the reference to the hospital visit, he provided the following details about B’s visit to hospital:
I took [B] to the hospital to have his finger looked at as it is still quite bad and has opened up. The Doctor decided it best to let it heal as is, rather than re-stitching so it was re-dressed and he’s on antibiotics for the week. I’ll be taking him back to the Doctor early this week to check again.[16]
[16] Affidavit of the father filed 28 October 2020, Annexure 41, page 834.
The mother conceded that the father emailed the mother indicating the children could not call at the usual time and, importantly, proposed an alternative time. The mother could not call at the alternative time.
The incident is not indicative of interference with the mother’s time, noting B’s treatment in hospital, communication regarding that, and the proposal of an alternate time.
It is not a complaint of substance.
Late 2017: Alleged sexual abuse
Extracts from the records of the local child welfare authority (CYPS) were produced during the proceedings. They recorded that in 2017, concerns were raised in relation to alleged sexual abuse, emotional abuse and neglect. A reportedly asked her grandparents where their tickly bits were, indicating to her grandmother that they were her nipples and said that her dad likes her to suck his tickly bits.[17] The maternal grandmother indicated that she had assumed this was his nipples and asked no more questions, although she was not comfortable with the child’s comments. A record in 2019 reported it as:[18]
[A] mentioned that she went to bed to “cuddle” with the father one night and he got her to suck his nipples. This was two years ago and the father thought it was funny.
[17] Affidavit of the father filed 28 October 2020, Annexure 27, page 693.
[18] Affidavit of the father filed 28 October 2020, Annexure 27, page 593.
No welfare concerns were reported by the school in a general sense or in regards to allegations. The school was concerned that the maternal grandmother is painting father in bad light/amplifying concerns due to wanting more custody of grandchildren. Concerns were raised for children behaviourally and emotionally due to abandonment/attachment concerns when mother left. No evidence was identified to suggest the child is being sexually/emotionally abuse/neglected by father.
Absent further exploration of the issue at trial, and noting its heavy reliance upon the grandmother’s testimony, I do not accept that the father has behaved in a sexualised manner toward A.
February 2018 to September 2018: Hiatus in mother’s time with the children
The mother spent no face-to-face time with the children over the period of February to September 2018, as the mother was required, prior to doing so, to enter into a bond. There were significant delays in the mother entering into the required bond.
The mother maintained electronic communication with the children during this period. The father asserted that there was no impact upon the children occasioned by this hiatus.
Late 2018: Father hitting A and B in the face
Prior to dealing with this issue, it should be noted that the mother conceded that it could not be established that the father has hit the children. The mother however sets out a text message exchange between herself and A of late 2018, in her affidavit filed 2 October 2020 (at [118]):
[A] at 7:30pm: Mummy help us daddy is hitting [B] and me
Me: Why is he hitting you?
Are you alone?
[A]: Daddy
Yes
Me: Where is he hitting you?
Are you ok?
[A]: No he is hitting us at the face
Me: Where is he now?
[A]: At home
Me: Where at home?
[A]: In my room
Me: Where is daddy?
[A] at 7:34pm: In the kitchen
Me at 7:34pm: Tell me why he started hitting you and [B]?
Can you call me?
Are you there baby?
Me at 7:44pm: [A]?
The concession by the mother was aptly made.
It should not be concluded on the basis of the above exchange that the father has engaged in an assault of the children, rather than, for example, an instance of play. However, this leaves open the issue of why such things were being said to the mother by A. This question remains unanswered.
Early 2019: Affectionate video message from A
In order to combat the mother’s assertions as to a fraught relationship between the father and A, the father produced a video message, sent by A to him, whilst she was in the mother’s care in the USA in early 2019. In the video, A said that it was hard for her without the father, but that she was having a lot of fun. The mother accepted that the video depicted both warmth and safety which A felt with the father. She accepted this interaction was sweet and affectionate on A’s part.[19]
[19] Transcript 24 February 2021, p.252 line 31 to p.253 line 19.
Complaints made by the children
A number of issues were raised regarding the father’s care of the children. The timing of these issues is not sufficiently identified to permit them to be anchored within the overall chronology.
The mother recites a series of statements and complaints that she alleges have been made by the children in relation to the father. The mother said that the children said that they did not wish to return to live with the father because he hit them, hurt them, did not look after them, feed them or provide them with clothes and shoes. The mother was unable to recall whether she raised the children’s complaints with the father.[20] The children, she said, complained that they were frequently left alone by him. The mother also said that the children expressed their upset that they had told people that they did not want to live with the father, but they had been ignored and had no one to whom they could talk.
[20] Transcript 23 February 2021, p.118 lines 32–39.
In particular, the mother records a number of comments in which the children identify issues with their care, or where she identifies, without comment from the children, issues concerning their care. The mother sets out a series of comments and observations at [121] of her affidavit filed 2 October 2020. They include the following:
I am concerned that the children have been neglected by the Respondent on various occasions. Some examples of this are:
a. The children have sent me videos at least on two occasions of the Respondent’s empty fridge at his residence.
b. On other occasions when the children are in the care of the Respondent, [A] has consistently complained that she is hungry and there is no food in the house for them to eat. [A] has called me at least two to three times crying on the phone complaining that she is hungry.
c. [A] informed me that she was very hungry and were home alone as the Respondent had gone out cycling.
d. [A] has informed on multiple occasions while crying that she wants to see a doctor, however the Respondent has denied her of this.
e. The children have expressed on a number of occasions of wanting to speak to me. However, the children have informed me that the Respondent has denied their request.
f. [A] sleeping at a pub on the couch (the video was recorded by [B]). I am concerned that this behaviour has not ceased.
g. The children attending the pub with the Respondent regularly while he is drinking with his friends. On a particular occasion, I recall [A] informing me that she was unwell and was sent home from school. However, [A] was taken by the Respondent to his office and then to the pub so that he could spend time and rink alcohol with his friends. [A] explained that she was so unwell that she fell asleep on the floor of the pub.
h. Conversation between the Respondent and the children where the Respondent cautions [B] to stay away from [A] because “she has nits”.
i. [A] compilation of images [A] which shows [A] watching horror movies. [A] has informed me that those movies frighten her. The videos are collectively annexed and marked with the letters “[MR-33]”.
The mother included in her material a reference to A videoing the refrigerator to show the mother that there was no food inside it. She denied encouraging this, asserting the video had been sent to her unsolicited.[21] She also asserted that A was hungry and distressed that the refrigerator was empty.
[21] Transcript 22 February 2021, p.100 lines 25–29.
The mother said that the father did not buy appropriate clothes. She asserted that she did not see it at a level that warranted discussion, but that she observed the children felt uncomfortable by it.[22] If it did not warrant discussion with the father, it is intriguing that it formed part of the case against him. The mother described that B told her that the father had bought him a jacket because of Court.[23] She complained that the jacket purchased was oversized, such that it would not provide sufficient warmth.
[22] Transcript 22 February 2021, p.103 lines 19–23.
[23] Transcript 22 February 2021, p.102 lines 4–5.
The mother also reported holes in the inner sole of one of the children’s shoes. She explained that she was not focusing on that issue, but recorded it to give an account of what the children were saying.[24] The mother ultimately accepted that it is possible that the children were making these complaints to her in an attempt to get her to pay attention to them.[25] She did not, however, think they were making things up to get her attention as they could call her at any time, and she spoke to them regularly about everything.[26]
[24] Transcript 22 February 2021, p.104 lines 37–43.
[25] Transcript 22 February 2021, p.106 lines 5–6.
[26] Transcript 22 February 2021, p.106 lines 15–23.
The mother was asked about the significance of this. She thought that the children were “crying out to be heard” and were lacking a forum where they could talk to anyone. Her view was that they had always said they wanted to live with her, and if they were inventing their complaints, it must be their own way of dealing with that.
It was noteworthy that in recording the negative assertions made by the children about the father, the mother recorded no context, setting out neither how the conversation arose, nor her response to the assertions made by the children. There is not the slightest hint of the mother supporting the relationship with the father or responding proportionately to the children about the complaints. Rather, they are harvested for the purposes of litigation.
These asserted deficiencies on the part of the father, were not matters of great significance to the resolution of the dispute. For example, an empty refrigerator is not indicative of neglect, nor is a child asleep on the couch at a pub a form of abuse.[27] A complaint of hunger is not demonstrative of a failure to nourish. To the extent that they could potentially be seen as sub optimal examples of parenting, that is as high as criticism could be put. Even then, they demonstrate an overly pernickety attitude to parenting standards.
[27] Transcript 23 February 2021, p.118 lines 12–45.
What they demonstrate is that the children see the mother as a willing recipient of complaints about the father. This points to a troubling dynamic wherein the children appear to be providing video evidence to the mother critical of the father, without the mother making at all clear how she responded to such overtures, or how she encouraged or discouraged the complaints.
Consistent with other aspects of the case, these matters do not support the idea that the mother is genuinely supportive of the relationship with the father, rather being suggestive of an at least passive undermining of the relationship.
The manner of communication of the children to the mother, including their provision of video evidence of adverse contentions regarding the father, both speak to their involvement in the prosecution of the mother’s case and to the absence of matters of great import with which to criticise the father.[28]
[28] Transcript 23 February 2021, p.118 lines 12–45.
It may also be observed that the manner of complaints described by the mother sits poorly with the idea that the father does not allow the children privacy in their communication with the mother, or that he is overly restrictive in relation to such communication.
A number of the mother’s complaints as to the care provided by the father, align with incidents described by the maternal grandmother as “standard of care” issues. The maternal grandmother itemised these issues during her submissions. They fall into three broad categories and require examination beyond the aspects raised by the mother above.
The first category relates to the father’s alleged failure to promptly respond to the children’s health needs. In particular, the mother and maternal grandmother report untreated head lice as a repeated issue. There were also concerns raised regarding an untreated penis infection, urinary tract infection (“UTI”) and failure to provide dental care for four years. The father accepted that he had not obtained dental care for the children but denied delaying medical care for the infected penis or for the UTI. There were also a number of concerns raised by the maternal grandmother about the sizing and condition of the children’s clothes and shoes.
Secondly, it was suggested that the father does not adequately supervise the children. The maternal grandmother raised several examples of this, including the children being out late whilst the father played tennis or had dinner at a club, and being left at school unattended.
Thirdly, and somewhat related to the second category, there were suggestions that the father exposed the children to inappropriate material whilst in his care. For instance, it was alleged that the children were exposed to excessive drinking at clubs and that they were allowed to watch violent and horror movies. The father conceded that he had watched horror movies with A, also noting that A had subsequently complained of nightmares.
The maternal grandmother produced shoes to the Court with holes in them that, she asserted, were what the father had B wear to school. The father in response asserted that he had bought new shoes for the children. He denied the claim made by the maternal grandmother that she had purchased all shoes from 2016 to 2020, save for a pair purchased by the mother.
I do not accept that, aside from the delay regarding dental treatment, and the exposure to horror movies, that these complaints have any substance. Even accepting that the children were regularly out playing sport, or went to a club with the father, I do not accept that this constitutes some form of inadequate parenting. A parent being late to collect the children from school, while undesirable, does not here rise to a level of neglect. Similarly I do not consider that the clothing issues rise to a level of significance. Rather the raising of the issues is indicative of the level of scrutiny and criticism that the father is subjected to by the mother and the maternal grandmother.
Mid-2019
In mid-2019, the mother received a message from B saying that “Daddy hit me with an iPad.”[29] Again, this should be seen in the light of the proper concession by the mother that it is not established that the father has hit the children.
[29] Affidavit of the mother filed 2 October 2020, paragraph 114.
It should also be noted that B’s capacity to communicate in such a manner with the mother is not consistent with the father constantly interfering with the communication with the mother. It is however consistent with B perceiving the mother to be a willing ear for any complaints regarding the father. Even accepting that B said such a thing, it does not lead to the conclusion that some sort of abusive event took place wherein the father used an iPad as a weapon.
I do not accept that the father struck B with an iPad.
Late 2019
In late 2019, the mother was involved in a call with the children whilst they were in the car with the father during a school commute, that she recites in the following terms in her affidavit filed 2 October 2020 (at [16]):
Since in or around October 2019, the children started expressing their wish to live with me openly in the presence of the Respondent. Their comments were as follows:
a. In late October 2019 (either Wednesday 23 or 30 October 2019), the Respondent was driving [A] and [B] to school and I was having my telephone time with the children. I was speaking with [A] and said to her words to the effect of “What will you be doing at school today?” And [A] responded to me “Mum what age can I choose where I want to live?” the Respondent immediately ended the call saying “You kids have to go now”. The line disconnected. I attempted to call back but the Respondent would not answer the phone.
The ICL questioned the mother about this conversation. She accepted that it was an inappropriate conversation but did not think it was reasonable for the father to terminate the call. She accepted that A was aware that this was a “fairly hot topic” between the parents and accepted that A was being provocative.[30] The mother said that despite discouraging A from raising it, A continued to raise it.
[30] Transcript 24 February 2021, p.277 line 8.
At around the same time the mother reports B saying to the father “I hate you. I hate you”.[31] She could apparently hear these interactions whilst on a call to the children. She alleges that she sought to dissuade B from this behaviour but was unsuccessful.
[31] Transcript 24 February 2021, p.277 lines 40–45.
One issue pursued by the mother was that B was afraid of the father, or at least expressing fear of the father. A second is of undue interference with communication by the father.
This example does not indicate that B is afraid of the father, nor that the father is unduly interfering with the communication with the mother. The liberty with which the children raised the issues with the mother in the presence of the father is not suggestive of interference by the father. Rather, the conversation is suggestive that the children perceive the mother as a willing ear or recipient for such attacks on the father, and that the raising of such in the presence of the father is something that they need not fear. The termination of the call has not been demonstrated to be unreasonable in the circumstances of A’s provocative raising of the issue during the school commute.
Late 2019
The mother alleges that since the orders of Watts J, the children have made various comments asserting their desire to live with the mother. The mother says that since late 2019, the children have been expressing, in the father’s presence, their desire to live with the mother.
In particular, the mother states that during her telephone time with the children through late 2019, A continued this line of questioning with her.[32]
[32] Affidavit of the mother filed 2 October 2020, paragraph 16b.
b. During my subsequent telephone time with the children through [late] 2019 [A] continued this line of questioning with me. I heard [A] say to the Respondent “Dad when can I go and live with Mum?” I heard the Respondent say to [A] “That’s not happening”.
c. Soon after [A] began expressing her wish to live with me while in the presence of the Respondent and I, [B] began verbalizing his wishes in the presence of the Respondent saying, “I hate you, I hate you, I hate you, I want to live with Mum.” When [B] says this, I have also heard the Respondent say to [B] “Stop it [B] that is enough”.
d. [B] regularly makes comments to me and others that he hates his father.
e.[In] around [late] 2019, the children spent time with my parents and the children telephone me very upset. They said to me words to the effect of:
[A] to me:Daddy told [B] that if he said he hated him one more time that he was not allowed to go to America and see you.
Me to [B]: You can’t say that to your Father
[B] to me: No I do hate him, he hurts me. He’s mean to me. He laughs at me when I get hurt. I am going to stop saying it until I leave and then I am just going to tell him that I hate him.
Me to [B]: [B] I don’t want you saying that about your Father at any time and we will talk more when I see you.[33]
[33] Affidavit of the mother filed 2 October 2020, paragraph 16.
Beyond the immediate two responses set out above, particulars of the mother’s actual responses remain opaque, as for example it is not clear what the mother said in relation to the exchange when she saw B, as she said that she would.
As observed above, this is not suggestive of fear of the father, but highly suggestive that the children regard the mother as a willing hearer of such comments.
Late 2019 - affectionate messages from A to the father
Such exchanges with the mother should not be seen to be the complete picture of interactions between A and the father. For example, messages were exchanged between A and the father in late 2019, where A messaged to the father that she loved him. The mother said that the messaging was “like a general discussion, fairly unemotive.”[34] She accepted, however, that within the conversation the “I love you” was not unemotive.
[34] Transcript 23 February 2021, p.181 lines 46–47.
It should be observed that this communication between A and the father was proximate to the knife incident discussed below.
Late 2019 - The face cutting incident
The maternal grandmother says at [23] of her affidavit filed 6 October 2020, that in late 2019, A started to favour the colour black, listen to music with the repeated line “I wanna die” and to express morbid attitudes. She says that A made comments that she wanted to end her life, saying things such as “I want to kill myself” and “I can’t do anything I want.” She further asserts that when A was asked about “her internet usage and the death music” that she was listening to she denied it.
It is quite unclear from this description by the maternal grandmother exactly what was observed, and over what period of time, or even when it commenced. Presumably, the maternal grandmother must be talking about instances occurring whilst A was in her care, however they remain opaque, as does the issue of what steps she took to raise such with either the mother or father.
The description is however linked with the maternal grandmother’s further description that A “did, however, pick up a knife in our kitchen and put it to her face at the end of last year but she did not cut herself. That terrified both of us.”[35] That is presumably the maternal grandmother and her partner (husband), Mr R. The maternal grandmother’s affidavit does not identify precisely when this occurred.
[35] Affidavit of the maternal grandmother filed 6 October 2020, paragraph 23.
However, the children were staying at the maternal grandmother’s home for nearly a week in late 2019, which gives the date range for when the incident could have taken place.
Under cross-examination, the maternal grandmother said that incident occurred as A and the maternal grandmother were in the kitchen preparing dinner and chatting. She accepted that A’s act was incongruous with what was going on prior to it. She orally described that A said “I want to kill myself,” and “I can’t do anything I want”, and “I want to die.”[36] The assertions that A had made such accompanying comments were not contained in her affidavit description.
[36] Transcript 25 February 2021, p.370 lines 15–31.
In her affidavit she described that A did not cut herself, describing in her oral evidence that she left a mere pressure mark.
The maternal grandmother alleges that she spoke to the father, sent him text messages and reported the incident to the mother and to CYPS.
The maternal grandmother further alleged that when she telephoned the father (either on that day or the next day) to tell him about the incident he was already aware of A having done the same thing at his home. She asserted this to be the case on the basis that B told her (at the time of the incident in her kitchen) that A had put a knife to her face.[37] Again, such a conversation with B did not appear in her trial affidavit. The maternal grandmother further alleged that the father also reported to her that an incident had previously happened at his home and that A had cut herself at his home, but that it was not a serious or deep cut. This allegation was also not contained in her affidavit either. The maternal grandmother was unable to explain why this was also not contained in her affidavit.[38]
[37] Transcript 25 February 2021, p.379 lines 33–42.
[38] Transcript 25 February 2021, p.384 lines 36–38.
Mr R, the maternal grandmother’s partner, said that he could not recall if he had witnessed the incident directly, and described walking into the room just after it had happened. He also described that B said that this had happened before, asserting that A had, on a previous occasion cut her forehead.[39]
[39] Transcript 25 February 2021, p.423 line 19.
In relation to the incident in the maternal grandmother’s kitchen the mother, who was in the USA at the time, alleges that in late 2019, whilst the children were in the care of the maternal grandmother, A cut her face with a knife from the kitchen.[40] The maternal grandmother however denies having told the mother that A had cut herself. The mother’s claim in her affidavit filed 2 October 2020 at [26], that the maternal grandmother had described that A had cut herself changed in her oral evidence to say that the maternal grandmother described a small scrape rather than a cut.[41] This was also inconsistent with the maternal grandmother’s description.
[40] Affidavit of the mother filed 2 October 2020, paragraph 24.
[41] Transcript 23 February 2021, p.164 lines 25–26.
While the mother said that she spoke to the maternal grandmother immediately, she subsequently accepted that the maternal grandmother had not told her about the incident on the day of the incident, but that there was some delay.[42] The mother asserted that the maternal grandmother told her that A had said that it was because she did not want to go back into the father’s care.[43]
[42] Transcript 23 February 2021, p.168 lines 15–19.
[43] Transcript 24 February 2021, p.283 lines 1–2.
The mother said that the maternal grandmother expressed that she was very concerned that the father would use the incident against the maternal grandmother and stop her seeing A.
The inconsistencies in the maternal grandmother’s account, coupled with this expressed concern points to the need for additional caution in accepting the grandmother’s accounts as accurate.
As the mother was present in the USA at this time, she was reliant upon what she was told by others. She described becoming aware of the incident in the following manner in the mother’s affidavit filed 2 October 2020 (at [24]):
[In late] 2019, the Respondent telephoned me and informed me that A had self-harmed by cutting her face three times using a knife from my Mother’s kitchen when she was in the care of my parents. I then had a conversation with the Respondent to the effect of:
Me to the Respondent: What is going on? This is very worrying? What did she say to you about why she did it?
Respondent to me: She said that she did it as she didn’t want to live with me. I think your Mother is speaking badly of me to [A] and [B] and this was the reason she did it.
Me to the Respondent: Have the children been in counselling since living with you.
Respondent to me: No.
Me to the Respondent: The children are both very unhappy. I don’t think you can ignore the underlying issues with such a serious incident. Both children are expressing their wish to live with me. The children are now of an age where they could choose where they want to live.
The Respondent: They are not.
Me to the Respondent: The children have requested to live with me and they say they do not want to live with you. They are getting to the age now where the Family Court would allow them to choose which parent they would prefer to live with.
The Respondent to me: That is not the case.
Me to the Respondent: Can you please speak to a lawyer and verify it because the Family Court will take into consideration where the children prefer to live.
The Respondent to me: They just want to live with you because you are the fun parent and just holiday with them, I have to take them to school etc.
I then heard [B] in the background yelling “No it is because we hate you and don't want to live with you” and “I want you to be the fun parent and us to live with mum everyday”. When [B] quietened down, I then said to the Respondent “please consider the impact this is having on them and consider their welfare.”
The Respondent informed me that he planned to seek medical attention for [A] and that he would inform me as soon as he arranged for care and let me know the care plan. However, I did not receive any information from him in relation to this.
As observed by the ICL, the mother’s purported response to being allegedly told that A had three cuts to her face was not to query the seriousness of the injury, or demand that A be taken to hospital, but was to raise the prospect of court proceedings. The mother, on her account, immediately used the issue to prosecute her case with the father that the children should live with her.
The father, however, denies the terms of the conversation attributed to him by the mother. He said that he did not speak to the mother about the incident for some days and that the delay was because he was trying to figure out what was happening.
The father recalled a conversation with A who explained that she cut herself because both parents were fighting and had separated. She did not know anyone else in her peer group whose parents had separated when their children were so young.[44]
[44] Affidavit of the father filed 28 October 2020, paragraph 24a–24b.
As to his becoming aware of the incident he described that:
I noticed in [late] 2019 that [A] had a very small mark on her forehead after returning from time with her maternal grandmother at their [property]. I was not concerned by it at first and thought it must have been something that happened at school or [Ms Russell Snr’s property].[45]
I just happened to ask [A] what had happened, and she said that she had cut herself but said she wouldn’t tell me why. I spent time with [A] trying to understand what had happened and had her speak to my Mum. [A] informed us that she did it as her Mum and I were fighting. [A] also said to me a few days later that she did it because we are separated and no-one else had their parents separate when they were so young.[46]
[45] Affidavit of the father filed 28 October 2020, paragraph 24a.
[46] Affidavit of the father filed 28 October 2020, paragraph 24b.
The father at trial denied that A had in fact cut herself. Ultimately, he accepted that at the time of the incident he described it as a cut, even though he later modified his view and description of it.
The mother also claims that she had a conversation with A later that day (in late 2019), in the following terms (at [25]):[47]
Me to [A]:What is happening darling? Can you tell me about how you are feeling?
[A] to me:I am just so upset that no one is listening to me, my life is so disturbing I just want to live with you, and no one is listening to what I want. I would prefer to end it than to continue. I hate it here so much and I need you.
Me to [A]:I am always here, and I am listening to you. You are about to come over and spend the whole school holidays with me. Please promise me that you will not do anything.
[47] Affidavit of the mother filed 2 October 2020, paragraph 25.
The mother said that she did not notice three cuts on A when she spoke to her that day.
There is a direct conflict between the father’s and mother’s account of the conversation between them. Accepting the mother’s account indicates both a serious issue of self-cutting and the father’s acknowledgement of A’s expressed desire not to live with him. Accepting the father’s account raises the spectre of the fabrication of evidence by the mother on the issue of A’s self-harm and expressions regarding the father.
There are strong reasons in this instance to accept the father’s account and reject the mother’s account on this issue and to consider it as a fabrication. The first is the inherent unlikelihood that the father would inform the mother that A did not want to live with him, in a context where such an outcome is fiercely at issue between them. A second aspect of doubt about the mother’s account arises from her claim that the father told her that A had made three cuts to her face, an assertion of far greater gravity than any injury incurred by A. While it should be accepted that in Annexure 18 of the father’s affidavit filed 19 January 2021, as at late 2019 the father had referred in his diary to “cut”, and that A had said that she had done it herself because of separation and being unhappy, it may be accepted that there was in fact no actual cut on any account, and that subsequent to making the entry, the father had changed his description. There was certainly no reason to suppose that he would tell the mother that there were three cuts.
A further serious deficit in her account emerges in her claim that the father told her in late 2019 that the incident had occurred that day at the maternal grandmother’s home.
This last claimed admission by the father is not consistent with when the children had been at the maternal grandmother’s home. When the mother was made aware of the incident, a week had passed since they were at the maternal grandmother’s home. This can be seen from both the father’s and maternal grandmother’s evidence. The maternal grandmother in cross-examination indicated that it occurred during a weekend. The children were not in the maternal grandmother’s care on the day when the mother reported becoming aware of the incident. It is highly improbable that the father would have said that the injury occurred that day at the grandmother’s home.
Although the mother sought to explain that her account was explicable on the basis of the difference in time zones between herself in BE City and the father in the ACT, this explanation did not sit with the mother’s description in her affidavit.
I do not accept the mother’s account of the conversation with the father, and additionally regard it as a fabrication. It is difficult to conceive it as anything other than an attempt to weaponise the cutting incident against the father in these proceedings by attributing to him the concession that A did it as she does not want to live with him. I am also unable to accept the mother’s account of her discussion with A.
None of this is to deny that an incident took place with a knife while in the maternal grandmother’s care, nor that the consideration of such is important to the resolution of the case.
Late 2019 - IMessage with a knife
The mother described that in late 2019, A sent the mother an iMessage with a photo showing A holding a knife to her face, placing pressure on her skin, with text “So I am going to kart myself.”[48] The images were produced in her affidavit. A further messaged the mother another image with the knife on the bed next to her shirt, and that “[B] broke my lolly pop” and “He took it off me and threw it on the ground.” The mother attributes a special significance to the lolly pop for A as a memento of the mother. She says that A would take the lollipop with her wherever she went.
[48] Exhibit M1 ERR-04.
The mother says that she then had a telephone conversation with A, during which A said that she wished to live with the mother and not the father, and “I am going to do it. I just want to die.” She also described A saying to her that she wanted to live with the mother and did not want to live with the father. She described A as being hysterical, uncontrollable and crying.[49]
[49] Transcript 23 February 2021, p.189 lines 17–18.
The mother provided A with reassurance based on the fact that they would soon be spending time together.
The mother did not take the image to be indicating anger with the mother, nor did she perceive A’s conversations with her as manipulative. The mother says that she told A that she would speak with the father, but A did not want that to occur and went quiet.
While the father accepts that there was an image sent, and that the lollipop was broken by B, he observed that although A was upset and that he heard her talking with the mother, shortly after the breaking of the lollipop, she was playing and appeared unaffected.[50] He accepted that A had sent the images and text produced by the mother.
[50] Affidavit of the father filed 28 October 2020, paragraph 319.
The mother alleges that she and the father discussed the matter by telephone shortly afterwards. She asserts that the children were nearby, and that the father did not want to move away from them. This reluctance was confirmed by the evidence of Mr QQ.[51] When the mother asked what the father had done following the face cutting, he asserted that he had removed all the knives from her reach and contacted a psychologist, but had not yet taken A.
[51] Transcript 24 February 2021, p.327 lines 2–9.
A telephone call by the maternal grandmother, contacting CYPS to report concern regarding A’s self-harm and scarring on the face with knife, was recorded in the CYPS report dated 16 December 2019:
Received p/c from MGM. She stated she was ringing because she was concerned about [A] because she has been saying things like she wants to end her life. She said she first said this around 2 weeks ago and then on Monday scarred herself on the face with a knife. Father didn’t notice it until Tuesday. MGM said she plays a song about dyeing and has uncontrolled access to the internet. MGM said she raised concerns with the school around how they were treating [B] poorly.
If this constitutes an accurately recorded report of what the maternal grandmother said it sits poorly with her description to the Court. It involves a description of scarring inconsistent with her report of the incident at the property or with the lollipop incident, along with implied criticism of the father for failing to notice such.
At Annexure 27 of the father’s affidavit filed 28 October 2020, CYPS records contain a report made to them on 17 December 2019. The reporter is not identified. The claims there made to CYPS are amplified versions of what has been put before the Court in these proceedings, and are not reflective of the cases put by either the maternal grandmother or the mother.
There are other matters that point away from changing the arrangements for the children, such that they live with the mother in the USA.
While one matter that potentially points away from ordering such a change is that the children would also be separated from the maternal grandmother, this is not a matter to which significant weight should be accorded. If the children are to remain in Australia, there is a strong issue as to the extent to which time with the maternal grandmother should be the subject of orders, given the nature of the relationship and the terrible attitudes between the maternal grandmother and the father. If the children are to live in the USA, the maternal grandmother seeks no orders.
If the children move to the USA, there is some significance in the disruption of relationships in the broader paternal family. A move to the USA would see less scope for the children interacting with that part of the family and the potential, if the mother was non-compliant, to reduce it even further.
More significant are the matters that undermine the giving of weight to the children’s views, and which indicate that the mother is in fact a harmful influence upon the children.
The mother’s immersion of the children in the dispute, and her choice to prioritise the weaponisation of their trauma over caring for them, are steps that heighten the emotional and psychological risk to the children, and undermine the idea that the mother has the capacity to emotionally care for traumatised children.
To the extent that the father’s care of the children has been at times flawed and suboptimal, the mother’s conduct has been positively harmful.
This presents a difficult balance to weigh to determine the best interests of the children. Should they remain in the care of the father with whom they have expressed dissatisfaction, and which would conflict with strongly expressed views, in circumstances where they are currently traumatised? Should they remain in such a circumstance where the father has demonstrated limitations in his capacity, but where in his care they have maintained a strong relationship with the mother? Or should they move into the care of the mother who has undermined their relationship with the father and weaponised their trauma, and who is likely to further undermine or end the relationship with the father?
In the end, it is consideration of the current trajectory of the children that points to the appropriate resolution. In the care of the father, the children have expressed strengthening and fixed views as to their desire to live with the mother. In the context of those views their actions have increased in severity, as seen in B’s response to the father in the Family Report interviews, and as seen in A’s expressions as to self-harm, and her repeated expressions as to wanting to live with the mother. Even if these are the product of the mother’s deleterious parenting, they indicate a trajectory that appears likely to become worse and more entrenched while the arrangements remain as they are.
Whilst the father sought that there be restrictions imposed by supervision and limitation of the time with the mother, the Family Report writer expressed concern that this would adversely impact the children, adding to their insecurity and in the frustration of their expressed desires. Under those circumstances, there is no significant amelioration of the current pressures upon the children by a mere amendment of the time and contact they have with the mother. Even though a reduction in time would limit the opportunity for the mother’s influence, it appears that it would take more than a mere reduction to end that influence. It is difficult to further conceive of how the father’s proposal in respect of supervision is at all workable, or how it would be directed to alleviate the mother’s influence upon the children. It appears that the removal of the mother’s influence would require the removal of the mother, a step that in itself would be harmful to the children in their currently vulnerable state.
This leaves the position that the children’s current circumstances are the foundation for a worsening trajectory, in respect of their experience of trauma, their well-being, their relationship with the father, and in a risk of self-harm for A.
While it may be accepted that their views are tainted and influenced by the mother, and that they may not comprehend the separation from their father, or the realities of living in the USA, failing to accede to those views risks a worsening of their current presentation, and of their relationship with the father.
Whilst removal of the mother from the equation would remove the negative influence that she presents, it would be a terrible blow to the children that may also see the further undermining of their relationship with the father and a heightening of their current trauma. It also marks a step that no-one suggested should be made.
Each of these risks would be ameliorated by acceding to the mother’s application.
However, such an outcome bears multiple risks to the children. It risks the continuation of the father’s relationship with the children, both because to the influence that can be seen to date in the mother’s interactions with the children, and in the practical risk that she will not comply with orders for the children to spend time with the father.
That assessment is in the context that the relationship is being undermined in the current circumstances in any event.
The further risk is that posed by the mother’s significant parenting deficits. The mother’s influence is a significant contributor to the children’s current trauma, due to her exposure of, and use of the children in the conflict.
These risks are, however, outweighed by the need to alleviate the current state of the children and the attendant risks, including the risks of self-harm, and risks associated with imposing a result that conflicts with their deeply held views. Even if a major cause of this is the mother’s weaponising of the circumstances, an outcome that releases this pressure from the children appears to be the one most likely to both ease the trauma, accord with their views, and release the pressure on their relationship with the father. Such an outcome is one that generally accedes to the mother’s application.
Although this may be seen as causing the children to live with the person primarily responsible for the fire that engulfs their current circumstances, in this case, it is the consideration of the circumstances from the children’s perspective and the need to remove the children from that fire, and the consequences that accompany it becoming worse, that are critical to the determination of the dispute.
A further difficult issue emerges as to the allocation of parental responsibility. The mother proposes an equal sharing of parental responsibility. This is utterly unworkable. It cannot be thought that the parents would be capable of discharging the obligations that accompany such an order, or that causing them to jointly agree on the long term issues for the children would result in anything other than conflict, potential further proceedings, and the spilling of such conflict onto the children.
As the mother will have the care of the children in the USA it is appropriate that she have the primary responsibility for making long term decisions for the children, with notice requirements being imposed upon her in addition to the other restrictions that she proposes, by virtue of her impaired parenting capacity and impaired ability to prioritise the children’s needs. It will also be necessary to require that she advise of the children’s address to facilitate ensuring compliance with the orders that they spend time with the father, and aiding his capacity to enforce orders. As is evident from the judgment above, the mother has failed to establish that the father has engaged in family violence, or that her provision of the children’s address places her at risk, despite her protestations about the father.
CONCLUSION
It is necessary then to formulate orders to give effect to a change in the primary residence of the children, and to facilitate the ongoing relationship with the father. This is not a matter that received significant attention at the trial.
The orders proposed by the mother, at least in respect of the arrangements for time spent, generally mirror those imposed by Watts J in 2016. Although there has been some confusion as to the operation of those orders, that confusion was ironed out prior to the final hearing. Aside from that, despite the tailored complexity of those orders, confusion about their operation, or inadequacy in their operation was not identified. The mirrored proposed orders provide for arrangements, whether the parents are both resident in the USA or the father remains in Australia. While the father’s capacity to move to the USA was explored briefly, I do not conclude that there is a likelihood that he will relocate, or that it is reasonably practicable for him to do so. At the same time, such an option did not appear to be ruled out. In the event that he moves to be proximate to the children, then the arrangements for time in the USA are appropriate, mirroring the arrangements that Watts J put in place for when the mother was in Australia.
The orders provide that while the father is in Australia, in the same manner that the mother’s time with the children has been calculated, his will be based on two periods of time in Australia for the children based on the amount of time that they would spend during holidays in the USA if he was in the USA.
Some variation in the operation of the orders in respect of Christmas Day have been made that simplify the arrangements appropriately.
Although the mother proposed an order for equally shared parental responsibility, the high conflict nature of this case does not support such an order. Rather the mother should have sole parental responsibility as the parent in whose primary care the children will be living. While Watts J’s orders dealt with a myriad of parental responsibility issues, those issues were not identified as current in the trial before me and so are not to be incorporated into the orders. Rather, the mother will be required to ensure that the father is appraised of medical and school issues and has full access to the information relevant to the children medically and educationally. This will be necessary to facilitate the father’s understanding of the children’s status and challenges, as he spends time with them in accordance with these orders.
Although the provision of the mother’s address has been a contentious matter between the parties, an order will be made requiring the father to be advised of the address. As I am not satisfied that the father has behaved in a coercive or controlling manner to the mother, I do not perceive an impediment to the giving of the address. Further, the father having the current address for the children is an important ingredient in him being able to act promptly, should there be a default in respect of the orders by the mother, rather than having to work around a deficit in that information.
Orders will be made requiring the mother to maintain the children’s passports, and meet the expense of such. There is no question as to her capacity to do so. At the same time, the orders will authorise and direct both parties to maintain the passports, meaning that default in this respect on the part of the mother will not be allowed to defeat the travel arrangements for the children.
As with the Watts J orders, orders for the sharing of the expense of the children’s travel will be made, there being no indication that there is an inadequacy in those arrangements that have persisted to date.
The orders that the mother has sought regarding the children not being spoken to regarding this judgment are appropriate until they reach their majority.
Although, at one stage in the trial the prospect of the lodging of a bond by the mother was raised, this was not the subject of sufficient evidence or attention to permit such an order to be made.
As proposed by the mother, it is appropriate that these orders be registered in the USA to enhance the prospects of their enforcement.
A consequence of ordering that the children live with the mother in the USA is that the maternal grandmother does not pursue any orders in respect of the children.
While it is highly desirable that the form of orders be such as to minimise the prospects of further litigation, I am not able to discern a particular set of orders that will have such an effect, save as to note that given the lack of criticism of Watts J’s orders, the adoption of orders similar to those may have such an effect.
I certify that the preceding five hundred and twelve (512) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 26 May 2022
Orders sought by the Applicant Mother in her affidavit filed 28 October 2020
1.That all previous parenting orders be discharged.
2.The Mother and the Father shall have equal shared parental responsibility for the children A born in 2009 (‘A’) and B born in 2011 (‘B’) (collectively ‘the children’).
3.That the Mother be permitted to permanently relocate the children to City VV in the United States of America.
4.That the children live with the Mother.
5.Should there be any medical emergency, involving the children, including but not limited to serious illness, accident or hospitalisation, the parent with the care of the children at that time must:
(a)Immediately contact the other parent;
(b)As soon as practicable, provide to the other parent all documentation and information in their control or possession regarding the medical emergency;
(c)Notify the other parent of the name of any medical practitioner, paediatrician or other specialist who treats the child whilst the child is in that parent’s care.
6.That the Mother be permitted to enrol the children in the CD School in City VV.
7.The Mother shall authorize any school the children may attend to provide to the Father copies of reports, newsletters and announcements of school activities or otherwise pertaining to the education of the children and the Mother shall authorise the staff members at any school the children may attend to discuss the children’s progress with the Father.
8.That neither party be permitted to use a surname for the children other than ‘Withers’.
9.The children are to spend time with their parents as follows:
(a)If the Father is in the United States of America:
(i)with the Father on each alternate weekend from after school on a Friday (or 3pm if Friday is a non-school day) to before school on Monday (or 9am if Monday is a non-school day) with the Father to pick the children up from school (or if a non-school day; absent any other agreement, the Starbucks closest to the children’s school) and deliver them back to school (or if a non-school day, absent any other agreement, the Starbucks closest to the children’s school);
(ii)with the Father on each alternate Tuesday night in the off week from after school on Tuesday (or 3pm if a non-school day) until before school on a Wednesday (or 9am if Wednesday is a non-school day) with the Father to pick the children up and drop them off from and to school (or if a non-school day, absent any other agreement, the Starbucks closest to the children’s school);
(iii)upon the Father giving the Mother 4 weeks notice in writing for two one week periods during any school term, which weeks are not consecutive school weeks (but not to include last week of the first or last term of the American school calendar);
(b)For the American summer holidays, with the Father for the first half of all school holiday periods commencing in years ending in an even number and the second half of all school holiday periods commencing in years ending in an odd number;
(c)For the American summer holidays, with the Mother for the first half of all school holiday periods commencing in years ending in an odd number and the second half of all school holiday periods commencing in an even number;
(d)With the Father for the whole of the American Spring break school holidays provided the Father gives the Mother 2 months notice of his intention to have the children with him during that school holiday period;
(e)With the Father for the Christmas holidays in each even numbered year;
(f)With the Mother for the Christmas holidays in each odd numbered year;
(g)With the Father for the whole of the American Autumn school holidays in each odd year provided the Father gives the Mother 2 months notice of his intention to have the children with him during that school holiday period;
(h)With the Mother from 9am until 5pm each Mother’s Day and with the Father from 9am until 5pm each Australian Father’s Day provided he is in the United States of America or such time falls during his school holiday time;
(i)On the children’s birthdays each year with the parent with whom the child is living to make the children available to spend time with the other parent for a period of at least three hours at a time to be agreed upon between the parents but failing such agreement from 4pm to 7pm and the Father’s time shall take place in the United States of America unless such time falls during his school holiday times.
10.For the purpose of the preceding orders, in the absence of any written agreement between the parties to the contrary, the following orders apply:
(a)The first half of the American school holidays will commence at the end of classes the last day of school;
(b)The second half of the American summer school holidays will commence at 5pm at the midpoint of the school holidays and if there are two middle days then changeover is to take place on the first middle day;
11.For the purpose of the preceding orders, if handover does not occur before or after school at the children’s school, it is to occur at a location agreed by the parties in writing and failing agreement at the Starbucks closest to the children’s school.
12.For the purpose of s 11 Australian Passports Act 2005 (Cth)
(a)It is noted the above orders allow:
(i)The children to travel internationally;
(ii)The children to live with both their parents when those parents are outside Australia;
(b)The children are to have a valid passport at all times and the Mother and the Father shall sign all documents and do all things necessary to ensure that each child holds a passport at all times with no less than 6 months validity and the Mother and the Father shall share the costs of each passport renewal equally.
13.From the date of these Orders, the children are permitted to travel from the United States of America to the ACT, Australia to spend two periods of time each calendar year with the Father for a length of time equivalent to the time the Father would otherwise be entitled to spend time with the children during the holidays in the United States of America pursuant to these orders (which period can be increased by one week after Spring break or the Autumn school holidays) provided that the Father gives the Mother two months written notice of his intention to have the children with him in Australia including the date of the children’s departure from the arrival back to the United States of America.
14.The parties are to consult and attempt to agree in writing in respect of the international travel arrangements to enable the children to spend time with the Father in Australia, but failing agreement:
(a)In the event the Father gives two months written notice as referred to in the preceding order, the Father shall indicate to the Mother whether or not he intends to escort the children from the United States of America to Australia, and if he does, the Father shall collect and return the children to a place agreed between the parties but failing agreement, BE City International Airport;
(b)If he fails to do so the Mother can indicate to the Father in writing that she intends to escort the children to and From Australia with drop off and pick up to be agreed between the parties and failing agreement Sydney International Airport;
(c)If neither party is prepared to escort the children, the children can fly as unaccompanied minors between BE City and Sydney. The Mother to deliver and pick up the children from BE City International Airport and the Father to deliver and pick up the children from Sydney International Airport;
(d)The Father will be responsible for purchasing air tickets for the children. Each party shall be equally responsible to meet the costs of the children’s air tickets. The Mother within 14 days of the Father demonstrating in writing that he has purchased air tickets for the children, is to pay to the Father one half of the cost of those tickets. Each party will otherwise be responsible for the cost of their own airfare associated with accompanying the children on international travel and any other costs associated with the travel;
(e)In the event the Father is unable to pick the children up himself personally at the commencement of the time or redeliver them at the conclusion of the time, the Father is to ensure that the Mother is advised by way of SMS text message confirmation as to the name of the person facilitating all changeovers on his behalf no later than one hour prior to the commencement and/or conclusion of the time.
15.At least 14 days prior to their departure from the United States of America, the Father is to provide the Mother with:
(a)A copy of return tickets for the children;
(b)A copy of the confirmed flight itinerary and proof of payment including return airfares for the children;
(c)Contact details including mobile and land line contact telephone numbers where the children can be contacted by telephone for the duration of the time they are away from the Mother.
16.The children are to have telephone, Skype, FaceTime and/or WhatsApp communication (at the Mother’s election) with the Mother every Sunday and Wednesday when with their Father at a time to be agreed upon between the parties and failing agreement 7:30am (ACT time) and any other reasonable time the children request to speak to their Mother;
17.The children are to have telephone, Skype, FaceTime and/or WhatsApp communication at the Father’s election) with the Father every Sunday and Wednesday when with their Mother at a time to be agreed upon between the parties and failing agreement 4:00pm (USA time) and any other reasonable time the children request to speak to their Father;
18.Each parent use their best endeavours to ensure that the children communicate by telephone, mobile or video linkup with the other parent at the times provided for in these orders and to do everything to facilitate that communication.
19.Each parent is required to provide to the other parent their mobile numbers so that the children are able to communicate with the other parent.
20.The Mother shall not change the children’s place of residence from either Mr NN or BE City, California without first obtaining the written consent of the Father or further order.
21.In the event that the Mother intends to change her place of residence within either the Mr NN or BE City, California area she is to provide the Father with 14 days with notice of her intention to do so setting out the proposed address before doing so.
22.In the event that either parent intends to change their contact telephone number they are to forthwith inform the other of their new telephone number.
23.Neither parent is to say unkind or uncomplimentary things about the other to or in the presence of the children or one of them, nor cause or allow anybody else to do so.
24.Both parents be restrained from discussing these proceedings with or in the presence of the children other than the outcome as provided by these orders.
25.Neither parent is to attempt to contact the children by telephone at times other than those provided for in these orders unless in the event of an emergency.
26.In the event that either parent wishes to travel out of either City VV or BE City region when the children are with them for three nights or more, they must provide the other parent with:
(a)Written notice of the travel before the travel occurs;
(b)A contact telephone number;
27.The Mother is to hold the children’s passports and travel-related documents. The Mother is to make the children’s passports and travel related documents available to the Father in a timely way to facilitate the children’s international travel in accordance with these orders.
28.In the event that either parent wishes to travel overseas with a child of the children, each parent must provide the other with at least two months’ notice of the intention to travel, along with copies of return tickets for the child/children at least 14 days prior to the departure and a detailed itinerary providing addresses and phone numbers for accommodation in which the children will be staying at least 14 days prior to departure.
29.That in the event the Mother intends to change the place of residence within the United States of America outside of BE City or City VV, she is to provide to the Father 14 days prior to doing so notice of her intention to do so and setting out the proposed address.
30.The parties are to do all things necessary to cause the registration of these orders in the United States of America.
Interim or procedural orders sought
31.That the Mother and the Father shall have equal parental responsibility for the children A born in 2009 (‘A’) and B born in 2011 (‘B’) (collectively ‘the children’) and Order 3 and Order 5 of the Orders dated 20 September 2016 (‘the 2016 Orders’) shall be suspended until further order.
32.That in exercising the equal shared parental responsibility, the Mother and the Father shall:
(a)Except in the case of an emergency, either parent shall give the other parent at least 14 days written notice of their intention to make any decision about a major long term issue in relation to either of the children setting out what they intend to do and the reason they intend to make the decision;
(b)That parent shall not implement the expressed intention until the expiration of a period of 14 days;
(c)Within that 14 period, if the other parent disagrees with the other parent’s intention, that parent may give the other parent their view about the intended decision in writing;
(d)For a further period of 14 days the parties are to consult in writing about any such decision about a major long term issue as proposed by that parent with which the other parent disagrees and make a genuine effort to come to a joint decision about that issue.
33.That Orders 13.1 and 13.2 be suspended and the children spend equal time with the Mother and Father with changeover to take place before school each Tuesday.
34.The Mother shall be at liberty to escort the children on their international travel between the USA and Australia at her own cost and otherwise the children shall be permitted to travel as unaccompanied minors and in those circumstances the Mother shall deliver and pick up the children to BE City International Airport and the Father shall deliver and pick up the children from Sydney International Airport.
35.The children are to have telephone, Skype FaceTime and/or WhatsApp communication (at the Mother’s election) with the Mother every Sunday and Wednesday when with their Father at a time to be agreed upon between the parties and failing agreement 7:30am (ACT time) and any other reasonable time the children request to speak to their Mother.
36.The children are to have telephone, Skype FaceTime and/or WhatsApp communication (at the Father’s election) with the Father every Sunday and Wednesday when with their Mother at a time to be agreed upon between the parties and failing agreement 7:30am (ACT time) and any other reasonable time the children request to speak to their Father.
37.Each parent use their best endeavours to ensure that the children communicate by telephone, mobile or video linkup with the other parent at the times provided for in these orders and to do everything to facilitate that communication.
38.Each parent is required to provide to the other parent their mobile numbers.
39.That Order 7 of the 2016 Orders be suspended until further order.
40.That the Mother be permitted to take the children for reportable therapy with a child psychologist with such appointment to be made by the Mother providing the Father with a panel of three proposed child psychologists and the Father to select one nominated child psychologist within seven (7) days of the Mother providing that panel to him.
41.That the Mother be permitted to take B to the Podiatrist and proceed with all recommended treatments as she considers appropriate and the Mother shall inform the Father of the results and treatment of that consultation within three (3) days of it taking place.
42.That the Mother be permitted to take A and B to the dentist for a general check up and for consultation in relation to B’s tooth decay and that she be permitted to proceed with all recommended treatments as she considers appropriate and the Mother shall inform the Father of the results and treatment of that consultation within three (3) days of it taking place.
43.That the Mother be permitted to take A and B to a General Practitioner from time to time in relation to their day-to-day medical matters.
44.That there be a Family Report prepared in this matter with a request made to Child Dispute Services for such report to be prepared during the time that the Father is exercising his time in Australia during the American Spring break or the first half of the American summer school holidays.
45.That pursuant to Section 68L(2) of the Family Law Act 1975 (Cth) there be an appointment of an Independent Children’s Lawyer to independently represent A born in 2009 (‘A’) and B born in 2011 (‘B’).
46.That the children’s names A born in 2009 (‘A’) and B born in 2011 (‘B’) be removed from the Family law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia until further order and Order 378 of the 2016 orders be suspended.
47.That the hearing of the Mother's application for final orders be expedited.
48.That the parties and the children shall attend a Child Inclusive Conference on the first available date to be appointed by the Court.
49.
Further directions as the Court deems fit.
Orders sought by the Respondent Father in his affidavit filed 28 October 2020
1.I am the Respondent Father seeking dismissal of the Application for change in the Parenting Orders by the Applicant Mother under the Rice & Asplund Rule. If unsuccessful on the Rice & Asplund threshold test, I seek alternate parenting orders to those requested by the Applicant in relation to the children of my relationship with Ms Russell (“Ms Russell”).
2.The alternate parenting Orders that I am seeking are based on the current Orders of Justice Watts, but with the following changes:
(a)Deletion of Order 23
(b)Adjustment of Order 13.6 so that the Mother has the children for two, one week periods, which are not consecutive school weeks, or include consecutive weekends such that she does not have the children for more than 7 consecutive days
(c)Adjustment of Order 29 and 30 to include the Mother, such that she is also required to provide the Father with her address by deleting the words “from either the Australian Capital Territory or Gundaroo area” from both Orders
(d)Supervised or reduced access for Ms Russell with the children A or B for a twelve-month period
(e)Supervised access only for Ms Russell Snr with the children A or B for a twelve-month period
(f)Ms Russell and Ms Russell Snr are prohibited from instituting further proceedings in relation to A or B under the Family Law Act 1975 in a court having jurisdiction under that Act and that the Court make any other order the Court considers appropriate in relation to Ms Russell and Ms Russell Snr
(g)Ms Russell and Ms Russell Snr are prohibited from instituting further proceedings in relation to A or B in any Australian or international jurisdictions.
3.
I am also seeking that Ms Russell pay the outstanding costs from previous cases as awarded and requested in the case of $US64,984.90 to the Australian Attorney General’s Department, which remains outstanding since June 2015 (See Annexure 1 for the Order Granting Motion for Attorney Fees and Costs from the US District Court of Colorado).
Orders sought by the Second Respondent Maternal Grandmother in her case outline filed 20 July 2020
1.That the children reside with the mother overseas, the Court make Orders that the children spend time with the Second Respondent, Ms Russell Snr and her husband Mr R in Australia for 3 days in the school holidays in each holiday in which the children reside in Australia except the Christmas holidays and for one week in the Christmas holidays.
2.That the Court make Orders that the children spend time with the children in the United States for one week in each calendar year if the grandparents travel overseas to the place where the children reside.
Further and in the alternative
3.That if the children reside with the father in Australia, the Court make Orders that the children spent time with the Second Respondent, Ms Russell Snr and her husband Mr R each fourth weekend during school term from after school Friday to before school Monday or Tuesday if the weekend is a long weekend and for one night each week from after school until before school the next day.
4.That the children spend time with the Second Respondent, Ms Russell Snr and her husband Mr R on Mother’s Day in each year if the mother is not in Australia.
5.That if the children reside with the father in Australia, the father first approach the grandparents, Ms Russell Snr and her husband Mr R to care for the children before obtaining a babysitter, when the children are sick or the father is attending to his interests.
Orders sought by the ICL in their case outline filed 19 July 2020
1.The ICL’s position at this stage is that it is in the children’s interests that the matter proceeds to final hearing. The children have now been interviewed for an updated Family Report, and the ICL has spoken with them- there appears to be little advantage then to them of the matter being dismissed on the basis of the principle in Rice and Asplund except that the matter is then determined without further continuation of the proceedings. It is the ICL’s view at this stage, and subject to the evidence, that there is a sufficient basis for concern in the evidence for a revisiting of the current arrangements to be in the children’s best interests.
2.At this stage, the ICL does not have a firm position as to the order to be sought at a final hearing if the matter does not settle but is inclined towards supporting a relocation of the children to live with their mother in the USA provided that it is found that the Mother can be relied upon to comply with court orders requiring her to facilitate the children spending time with the Father and to support the children’s relationship with him. It may be that the Court considers it appropriate to have orders which would impose strict sanctions if the Mother is in default as an incentive for the Mother’s compliance. The major concerns of the ICL are set out below.
3.In terms of an interim order, there are significant questions given the current COVID-19 crisis about how the children’s travel to the USA would be facilitated, the safety of the children in travelling to the USA and in living there, and the restrictions and limitations on their lives if they were to return. The ICL is tentatively of the view that, even if the Court was otherwise inclined to order the children live in the USA, the Court would not order that that occurs until the current crisis has resolved or at least significantly abated. Further, subject to the evidence, the case for the children to relocate is not so strong that it would be in their best interests to relocate them on an interim basis.
4.The ICL would seek interim orders in relation to A’s mental health treatment and monitoring.
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