Yuan & Song (No 6)
[2025] FedCFamC2F 50
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yuan & Song (No 6) [2025] FedCFamC2F 50
File number(s): MLC 13323 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 23 January 2025 Catchwords: FAMILY LAW – PARENTING – psychological risk to child of having no relationship with her mother – impact on child of change of residence, change of state and change of school – mental health issues – ADHD – parent’s ability to meet child’s needs – history of moving countries, houses, and schools – child engaged with psychologist and school counsellor – need for stability – child’s best interest met by remaining in father’s primary care – father not likely to comply with orders – father not permitted to take child overseas – watch list order to remain in place. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 65D
Cases cited: Batas & Gaire (No 2) [2024] FedCFamC1F 672
Fox v Percy [2003] HCA 22
Grella & Jamieson [2017] FamCAFC 21
Isles & Nellisen [2022] FedCFamC1A 97
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 98 Date of last submission/s: 18 November 2024 Date of hearing: 14 & 15 November and 18 November 2024 Place: Dandenong & Melbourne via Microsoft Teams Counsel for the Applicant: Ms Evans Solicitor for the Applicant: InTouch Legal Centre Counsel for the Respondent: Mr Jones Solicitor for the Respondent: CG Legal Group Solicitor for the Independent Children's Lawyer: ELR Law Counsel for the Independent Children's Lawyer: Mr Pollock ORDERS
MLC 13323 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS YUAN
Applicant
AND: MR SONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Decision Making
2.The father have sole decision making for the major long-term issues of X born in 2010 (“X”).
3.At least four (4) weeks prior to making any significant decision (or as soon as possible if it is not possible to allow this timeframe) the father shall:
(a)Contact the mother in writing setting out the decision to be made and any other information relevant to that decision along with what he believes is his position in relation to the issue and seek the mother’s views on the subject;
(b)Within two (2) weeks the mother shall respond in writing setting out her views and any other information relevant to those views (or as soon as possible if it is a shorter timeframe).
4.The father shall advise the mother in writing of the decision he has made within three (3) days of making that decision.
Lives with
5.X live with the father.
Spend Time
6.X shall spend time and communicate with her mother at all times as agreed between the parents and at any time X expresses a wish to do so, and failing agreement as follows:
(a)Once each school holiday period for a period of three (3) nights from the first Saturday of the holidays for three (3) consecutive nights:
(i)in Brisbane in 2025; and
(ii)in 2026 and each year thereafter, for the first and third term holidays in Brisbane and the second and fourth term holidays in Melbourne or any other place that the mother chooses.
(b)by electronic communication each Wednesday at 7.00pm, X’s time, with the mother to initiate the call to a phone number nominated by the father, with the father to ensure that the phone is charged and able to accept calls from the mother, with X to be given privacy during those calls;
7.The mother is at liberty to send X cards and gifts at any time but at least on:
(a)X’s birthday;
(b)Christmas;
(c)Easter;
(d)Lunar New Year; and
(e)Mother’s Day.
8.For the purpose of time referred to in Order 6 hereof, the following shall apply:
(a)In 2025 changeover shall take place at the front entrance of Coles at Q Shopping Centre at midday at the commencement of time and at 5.00pm at the conclusion of time; and
(b)Commencing 2026 and each year thereafter, the mother shall pay for the child’s return flights for the second term holidays and the father shall pay for the child’s return flight in the fourth term school holidays; and
(c)when time is taking place in Melbourne, changeover shall take place at Melbourne airport at the commencement of time and at Brisbane airport at the conclusion of time; and
(d)the parents will provide each other with a copy of X’s airline ticket no less than seven (7) days before the intended travel and will ensure that X is at the airport in plenty of time to board the scheduled flight.
Communication
9.The parents will communicate about matters concerning X by a messaging app.
10.These orders authorise the mother to participate in and attend and receive information from any of X’s educational facilities, counsellors and medical practitioners and extra-curricular providers.
Parents Responsibilities
11.Both parents will:
(a)Keep the other informed of their current residential address, email address and mobile contact number and advise the other of any change within 24 hours of any change.
(b)Advise the other within 24 hours or as soon as practicable in the events of an emergency of any major medical issue or illness suffered by X including the name of the treating medical practitioner and advice and medication given.
(c)Speak respectfully of the other and the other’s family.
12.Neither parent will:
(a)denigrate the other in the presence of X, nor allow a third party to do so in the presence of X;
(b)discuss with X the proceedings, any allegations made in the proceedings or any matter of an adult nature likely to place upon X a loyalty demand, including any aspect of her preference with regards to where she lives, what contact she has with the other parent and what school she attends;
(c)seek and/or allowing X to communicate matters as between each parent on their behalf;
(d)consume alcohol in excess of the legal driving limit in the presence of X, or within twelve (12) hours prior to contact, or from allowing X to remain in the presence of any other person consuming alcohol in the excess of the legal driving limit; or
(e)physically discipline X or permit any other person to do so.
13.The father will:
(a)Ensure that X continues to attend upon Dr N as and when directed by Dr N, or any other person nominated by Dr N;
(b)Ensure that X attends a paediatric review each six (6) months; and
(c)Not permit X to call his partner “mum.”
Dispute Resolution
14.The parties will consult a Family Dispute Resolution Practitioner to assist with the resolution of any dispute that arises in respect of the operation, interpretation, implementation or enforcement of these Orders or in respect of the child’s care or wellbeing and for this purpose the following shall occur:
(a)Within seven (7) days of the dispute arising, the parent raising the dispute will provide the other party with a panel of three (3) nominated Family Dispute Resolution Practitioners, which can include a community family relationship centre; and
(b)Within seven (7) days of being provided with the panel of Family Dispute Resolution Practitioners, the other parent will nominate one practitioner from the panel and where there is a failure to nominate a Family Dispute Resolution Practitioner in writing, the parent raising the dispute will choose a practitioner from the panel.
Airport Watchlist
15.Until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (Cth), MR SONG born in 1959, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X born in 2010 (female) from the Commonwealth of Australia until further order of this Court orders its removal.
16.IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child X on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, until the Court orders its removal.
Procedural Order
17.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This is a parenting matter concerning the parties’ child X born in 2010 (“X”) who is 14 years of age.
Pursuant to final orders made on 14 February 2020, X lives with her father, Mr Song (“the father”).
The final orders provide for X to spend time with her mother, Ms Yuan (“the mother”) however those orders have not been complied with, and X has spent only around 17 - 20 days with the mother since 2020.
The father’s case is that X is reluctant to spend time with the mother, in particular overnight time, as she feels abandoned by the mother, and as a result of family violence caused by the mother.
The mother says the father unilaterally removed X from her life, taking X to live in Country E without advising her of same, and the father has perpetuated the narrative with X that she has been “abandoned” by her mother.
The mother’s case is that the only way she will have a relationship with X is if X comes to live with her and there is a moratorium on time between X and the father for a period of three months.
BRIEF BACKGROUND
The history of this matter was set out in the judgment also handed down this day with respect to the mother’s contravention application, however, to provide context to this judgment, I will also repeat it here.
The parties were both born in Country Z and met there in 2008.
The father has two children from previous relationships, an adult daughter, Ms F and an adult son, Mr G. Ms F has special needs and resides in Melbourne.
The mother has one son from a previous relationship, Mr H aged about 20, who lives with the mother and the maternal grandmother in Melbourne.
The mother is a self-employed beauty therapist.
The father is retired and lives in Brisbane with X and his new wife, Ms J. Ms J’s daughter Ms R lives in Country E and, although, it was suggested she may be moving to Australia there was no evidence as to when this would be happening.
X, at the time of trial is enrolled in and attending year eight (going into year nine in the 2025 school year) at K School, Queensland.
School records show that X has attended the following schools:
(1)S School in Melbourne from early 2016 until late 2018;
(2)T School in Country E from late 2018 until mid-2020;
(3)U School in Suburb V, Queensland, from mid-2020 until late 2020;
(4)AA School in Country E from early 2021 until late 2021;
(5)T School in Country E from early 2022 until mid-2022;
(6)U School in Queensland from mid-2022 until the end of that year; and
(7)K School in Queensland from the start of 2023 for her secondary schooling to date.
Otherwise, much of the parties’ history was in dispute, although it was not for the most part the subject of cross-examination.
As best I can establish the mother came to Australia in early 2010 to give birth to X. The father says that in 2011, when X was only about four months old, the mother “abandoned” X, leaving her with the father in Australia and she went to live in Country Z where she married another man and remained until 2015/2016. This is not withstanding that the parties themselves married in 2014 or 2015. The mother makes no mention of this other marriage in her evidence but maintains the parties were in a relationship until 2017, albeit, she also says the father removed X from her care in Country Z in 2015. She says she was not aware the father obtained final parenting orders for X in what was then the Family Court of Australia (“the Family Court”) in 2016. This convoluted and contradictory history was not satisfactorily explored in cross-examination, and, for the most part, I am unable to establish what X’s living arrangements were prior to about 2017.
However, what does not appear to be in dispute is that from 2017 X has been in the primary care of the father.
It is also common ground that in about mid-2018 the father removed X from Australia and took her to live in Country E without consulting the mother and without the mother’s consent.
On 8 February 2019 a recovery order was issued in the Family Court of Australia (as it then was). The father did not however return to Australia with X.
In 2020 the mother agreed to final orders for the father to have sole parental responsibility for X, for X to live with the father and for X to spend time in school holidays with her.
In mid-2022 the father returned with X and his new wife Ms J to live in Brisbane, Australia.
In September 2022 X advised her guidance counsellor that she had been hit by her father.
The mother consequently filed her initiating application for final orders in this court on 24 November 2022.
The Department for Child Safety, Seniors and Disability Services in Queensland (“the Department”) became involved however, they did not interview X for some months by which time X had retracted her allegations.
Various orders have been made in this court providing for X to spend time with her mother. Despite those court orders, X has only spent about 20 days with her mother since 2020.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
·her case outline filed 12 November 2024;
·her amended application for final orders filed 7 May 2024;
·her trial affidavit filed 17 October 2024;
·her notice of child abuse, family violence or risk filed 14 November 2023; and
·the family report by Ms W, the family report writer, (“Ms W”) dated 1 April 2024.
The father replied upon the following documents:
·his further amended response to final orders filed 9 May 2024;
·his trial affidavit filed 7 November 2024;
·his notice of child abuse, family violence or risk filed 24 March 2023; and
·the family report by Ms W dated 1 April 2024;
The Independent Children’s Lawyer relied upon the following documents:
·the family report by Ms W dated 1 April 2024.
In addition, the following exhibits were tendered in this matter:
·M1 – session note between school counsellor, Ms Y (“Ms Y”) and X dated 4 October 2022;
·M2 – session note between Ms Y and X dated 8 February 2023;
·M3 – session note between Ms Y and X dated 9 November 2022;
·M4 – session note between Ms Y and X dated 14 March 2023;
·M5 – session note between Ms Y and X dated 29 March 2023;
·M6 – session note sent by the father to Ms Y dated 19 May 2023;
·M7 – session note between Ms Y and X dated 4 October 2022;
·M8 – Department of Child Safety record dated 19 September 2022;
·M9 – session note between Ms Y and X dated 31 January 2023;
·M10 – session note between Ms Y and X dated 7 November 2022;
·M11 – X’s Country E birth certificate dated 2019;
·M12 – mother’s proposed minute of final orders attached to case outline dated 12 November 2024;
·F1 – father’s proposed minute of final orders attached to case outline dated 13 November 2024;
·ICL1 – session note between Ms Y and X dated 17 April 2023;
·ICL2 – X’s semester 1 2024 school report;
·ICL3 – session note of Dr N (“Dr N”) dated 19 December 2023;
·ICL4 – session note between Ms Y and X dated 12 June 2023;
·ICL5 – session note (counselling intake session) of Dr N, X and the father dated 16 June 2023;
·ICL6 – session note between Ms Y and X re: ADHD dated 5 May 2023;
·ICL7 – enrolment form of U School for X dated 2020;
·ICL8 – enrolment form of K School school for X dated 2023; and
·ICL9 – ICL’s proposed minute of final orders attached to case outline dated 12 November 2024.
THE EVIDENCE
In terms of the evidence, I have taken into account the contents of each of the affidavits filed by the parties however, I have not had regard to the contents of any subpoenaed material, information provided by external agencies or documents in tender bundles, court books or otherwise emailed to the court, which were not separately tendered into evidence as exhibits.
As the court observed in Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65:
The Full Court has said more than once that a judge cannot be expected to rummage through a large volume of documents on the off chance that the facts might emerge.
In determining these proceedings, I have had regard to the evidence to the extent that it was relevant to each parties’ case, although it is not possible to include every aspect of the parties’ evidence in these reasons for judgment. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48:
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Section 140 of the Evidence Act1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
In terms of the parties’ evidence, I have already made observations about the father as a witness in the contravention proceedings. The father continued to be a difficult witness in the substantive proceedings. At times he objected to answering questions and at other times he answered with “no comment.” In final submissions counsel for the father endeavoured to excuse the father’s poor evidence by pointing out that he had been self-represented when he prepared his affidavit material, however, there was no attempt to rectify any defects in that affidavit, which the father accepted as true and correct nor was there any application for leave to adduce further evidence.
In the family report at [35] Ms W described the father as follows:
His style of engagement was domineering and persistent, preferring to repeat selected pieces of information and directing the Family Consultant what she should write down. Despite being given additional forty minutes of time at the end of the assessment to complete outlining his case he stated he was “unhappy,” when the Family consultant indicated it was time to end the interview because the office was preparing to close for the day. He had talked at the Family Consultant denying her permission to speak, repeating information he had provided in his interview earlier in the day. When he asked two questions of the Family Consultant, he held up his hand telling her not to answer because it would take up his time for speaking.
(Emphasis added)
This aptly summarises my observations of the father when giving evidence in this matter. For those reasons, I am of the view that the father’s evidence should be treated with some caution.
However, the mother’s evidence was also difficult to follow at times. For this reason, as expounded in Fox v Percy [2003] HCA 22 at [31], findings will be made:
as far as possible, on the basis of contemporary materials, objectively established facts, and the apparent logic of events.
In regard to X’s views, these were largely put before the court by way of counselling notes from her guidance counsellor, Ms Y, and her psychologist, Dr N. Various records of same were tendered into evidence by the ICL.
When cross-examined on the records, the father stated he did not accept they were accurate records, save for notes which appeared to support his case. In any event, the father’s counsel did not object to the documents being tendered and did not call Dr N so that her records could be challenged.
Accordingly, I accept the notes of Dr N as an accurate record of what was discussed in the counselling sessions.
THE LAW
Pursuant to section 60CA of the Family Law Act 1975 (Cth), (“the Act”) the best interests of a child are the paramount consideration for the court when making a parenting order.
Section 65D of the Act directs the court to make such parenting orders as it thinks proper. The court may therefore use its discretion to determine what is "proper." In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Section 60CC(2) of the Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2). The matters to be considered include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In contemplating the aforesaid matters, the court must consider any history of family violence, abuse, or neglect involving the child or a person caring for the child together with any current family violence order or any such order that previously applied to a child, or a member of the child’s family. Section 60CG of the Act requires a court to ensure that any order made does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
THE ISSUES
The parties have each accused the other of inappropriately physically disciplining X. However, neither of the parties alleges that X remains at physical risk in the other party’s care, and neither proposes orders that she be supervised. The primary concern for the father is that X will suffer psychological harm if she is made to spend time with her mother due to her mother’s abandonment of her and exposing X to family violence. The mother’s primary concern is that the father is not encouraging X to have a relationship with her. This concern was shared by the family report writer Ms W.
Risks to X
As set by Her Honour Kari J in Batas & Gaire (No 2) [2024] FedCFamC1F 672 at [55]:
There are two stages involved in assessing risk and understanding whether any assessed risk is unacceptable:
(a)Firstly, the fact-finding exercise, which may include findings about any allegations that have been made, together with any admissions made; and
(b)Secondly, the predictive exercise which involves the assessment of the evidence and circumstances, including but not limited to any findings/lack of findings/inability to make findings.
Given the state of the evidence, I am unable to determine whether the mother did indeed “abandon” X or whether the father removed X from the mother’s care at an early age.
However, based on the evidence I am able to make the following findings:
·The father took X to Country E in 2018 without notifying the mother and without the mother’s consent;
·The father did not return to Australia when a recovery order was issued for X and the Family Court (as it then was) was informed shortly thereafter that he did not intend to return to Australia;
·The father had X adopted by his new partner, Ms J, when they were living in Country E without the mother’s knowledge;
·X is permitted by the father to call Ms J “mum” and the mother “…”;
·The father did not include any details of the mother on school enrolment forms, in one case putting another ex-wife as a second contact in lieu of the mother;
·When the father moved back to Australia in 2022, he moved to live in Queensland rather than Melbourne, Victoria where the mother lives and where he had previously lived with X;
·X has only spent about 20 days with her mother since 2020 despite the father consenting to at least two sets of orders for more time;
·The father has continued to reinforce in X’s mind that X was abandoned by her mother and that she was exposed to family violence by the mother;
·The father was either unable or unwilling to encourage X to spend time with the mother;
·The father was of the view the only way to get X to spend time with her mother was by force; and
·The father was unable to think of anything positive to say about the mother when asked a direct question under cross-examination.
In terms of the long-term impact on X, Ms W gave the following evidence under cross-examination:
I think one of my big concerns for her [X] in dad’s care is that she would not be able to have a relationship with her mother, and I think that is a sadness in her now and I think based on my experience working with [the father] … in out of home care and then into their adulthood, that is an issue that comes back to impact and haunt people, is not having a relationship with one or other of their parents in that, and in my report, I put that a child is told that a parent does not want them, has abandoned them, has rejected them, is just soul destroying for a person.
…
So, [X] already has a lot of vulnerabilities in terms of her thinking and connection to continue to her life with the belief that her own mother does not actually want her. I think it is going to have a major detriment on her life. I think it is extremely disappointing that her father is not able or willing to facilitate a relationship of [X] and her mother so she could have the best of both worlds. So, I think she is going to come into more difficulties as an adolescent and young person, and probably when she starts relationships of her own, intimate relationships of her own, not having – having that belief in the back of her mind that she is being rejected, that not that it is difficult to see mum, but its more than that and its painted to her that her mother doesn’t want her, has abandoned her, and I think dad uses that kind of language and it is extremely detrimental to a person’s self-identity. So, that is the concern that I have with [X] remaining with [the father].
…
I am fully aware that the alternate is untested, but I think what is tested at the moment, is that there are certainly some good sides to dad, and certainly for [X] there are some parts of the relationship that are very positive, and she appears to be very excited about her relationship with [Ms R] and [Ms R] coming to live with them. She seemed to have a good relationship with her stepmother, but does that mean she is not allowed to have a relationship with her mother and also be led to believe that her mother doesn’t want her and doesn’t think their relationship is important from [X]’s perspective? That is a huge price for a child to bare.
(Emphasis added)
In her report, Ms W stated at [51]:
His [the father’s] repeated comments that the mother abandoned [X] must be an ongoing source of pain and emptiness, (“hollowness,” as [X] has reported), for her which the father does not appear to understand.
(Emphasis added)
Ms W gave evidence in a forthright and credible manner and her evidence was largely unshaken during cross-examination. I therefore have no reason to question the veracity of her professional opinion.
Given the father’s lack of insight into his own attitudes and behaviour, it is likely that he will continue to lead X to believe that her mother has abandoned her, and that X will continue to resist spending time with the mother. She is therefore at unacceptable risk of psychological harm if she remains in the father’s care.
However pursuant to the Full Court in Isles & Nellisen [2022] FedCFamC1A 97, I must also determine whether this risk can be ameliorated.
The father has now been found guilty of four contraventions of orders. If the father continues to contravene orders he faces significant penalties, including at the upper end, imprisonment. This should serve as an incentive for the father to now comply with court orders.
However, if I am wrong, until the father can demonstrate he is able to comply with court orders he is unlikely to be permitted to take X back to Country E. I expect this will prove a greater motivator for the father, given the father’s strong connection to Country E, and I therefore find in such circumstances that the risk to X is an acceptable one.
I will now turn to the other factors under section 60CC of the Act to the extent that they have influenced my decision, however, just because I do not specifically mention a matter does not mean I have not considered it.
X’s views
The father’s case, as already outlined, is that X does not want to spend time with her mother because she was abandoned and due to family violence. He repeatedly said this is his evidence and to others such as Ms W.
However, on the father’s case X was too young to remember being “abandoned” per se and it is unclear what X actually recalls about the alleged incidents of violence. Ms W writes in the family report at [22]:
[X] talked about an incident that had occurred with [Ms Yuan], [the mother, Ms Yuan] where, “[the mother] attacked someone with a [weapon].” She said police were called and she did not really understand what had happened. According to the father, he was the victim of the mother’s attack.
(Error as per original and emphasis added)
Furthermore, it appears that in October 2022, well after any such incidents, X was happy to spend time with the mother. X’s guidance counsellor, Ms Y records on 4 October 2022 the following:
[X] said she really enjoyed seeing her birth mother on the holidays (2nd time meeting her) and that she felt really happy with her birth mother because she was less snappy than her dad and step mum.
[X] said she hadn't been thinking of [self-harm] thoughts over the holidays because her birth mum was making her feel happy.
(Emphasis added)
However, at around this time X disclosed that her father had struck her which led to the mother filing her application for X to live with her. Counselling notes after that time indicate that X felt responsible for the court proceedings and was worried about the possibility of having to move to Melbourne and change schools. They also show that X was feeling pressured to choose between her parents.
Counselling notes from 14 March 2023 record the following:
Mum has asked that [X] visit her but dad has said no as [X] is in the middle of assessments. [X] agrees and doesn't want to go to Melbourne
[X] said dad has not been physical with her recently. They haven't fought much. Dad has tried to make [X] feel guilty by saying she will break up the family if she goes to be with mum.
(Emphasis added)
In the family report at [51], Ms W reports:
There is little evidence that either parent has been willing or able to protect [X] from the parent conflict.
In keeping with this, the mother agreed under cross-examination that she has said things to X which might influence her views about her father. The mother said words to the effect of “I try not to but may be occasionally I might make a few comments.”
In the counselling notes of 17 April 2023, X is reported as follows:
[X] said she had to spend a week in Melbourne with mum as it was court ordered. She said she hated it and felt like mum was trying to get information out of her to use against dad in the court case. Even her friends would spend time with [X] and ask about her emotions and how she is feeling about things. She felt they were spying for mum. Mum also bad mouthed dad and she is not meant to talk about dad or the court case to her. [X] told mum that if she is made to live with mum in Melb their relationship won't do well. [X] said she hit mum on the head she was so frustrated with her.
(Errors as per original and emphasis added)
In the family report at [26] Ms W stated:
It is likely that [X] gives differing views due to the pressure she feels regarding the parent conflict and current proceedings.
Under cross-examination Ms W’s evidence regarding X was “I don’t think she even knows her own mind.”
In light of this evidence, it is not possible in my view to ascertain to what extent X’s views are influenced by the ongoing conflict between her parents and her perception that she must choose between them. Accordingly, it is difficult to place any significant weight on what X has to say in this matter.
X’s needs
X was reported to have anxiety and behavioural issues as well language difficulties from a young age which impacted her social and academic progress at school. She was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) by a paediatrician when she was between the ages of six and seven and commenced on medication. The father’s evidence is that he ceased providing X this medication when the father was residing in Country E with X.
It does not appear that the father informed X’s current school of her diagnosis or any other mental health concerns when X commenced there in year seven, in 2023. Nor is there any mention of her diagnosis on her enrolment form for her former school, U School, when she commenced there in year four in 2020.
In addition, Ms W observed in the family report at [10]:
Recommendations were made for ongoing and regular psychological intervention utilising a play-based model and continued engagement in speech therapy, with regular paediatric reviews. It does not appear that this occurred, possibly because the parents separated and in 2018 the father began a relationship with his current partner and moved to [Country E] with [X] in [mid] 2018. Further, the father stated that school staff in [Country E] reported no problems with [X] and he assumed that she had, “grown out of ADHD.” He stated on their advice, he ceased [X]’s […] medication. Collateral information indicates that whilst [X]’s school reports were positive there was concerns regarding problems of inattention and elevated and unusual behaviours, such as yelling at teachers and [problem behaviours].
(Emphasis added)
It was further observed by Ms W at [11]:
In [mid] 2023 [X] was referred by teaching staff for assessment in relation to difficulties with attention, concentration, distract ability, and impulsivity. Assessments were conducted by the school […]. Results of [one assessment] reported, “[X] has significant concerns at home for depressed mood and anxious thoughts, and at school for peer interactions. She was additionally rated in a slightly elevated range by teachers or father in the areas of hyperactivity, emotional dysregulation, impulsivity, and schoolwork”. Results of [another] assessment stated, “[X]’s behaviours at home and at school were observed to be very different with none of the nine subscales reaching clinical significance at home, while four of the nine scales reached a significant level of concern in the school setting only.” These included peer interactions, impulse control, self-monitoring, emotional control, and beginning tasks. Conclusions of the assessments recommended that [X] would benefit from further assessment by a paediatrician in relation to ADHD. It is understood following this report she was recommenced on medication […]. Five years after initial diagnosis [X] was engaged in appropriate treatment including therapeutic counselling and medication. It is suggested that she undertake regular six-monthly paediatric reviews
(Emphasis added)
Ms W concludes at [45]:
The father has justified taking no action in relation to [X]’s diagnosis with suggestions that whilst in [Country E] there were no concerns for her presentation, however there is contradicting information regarding this. Recommendations by psychologists and other professional therapists do not appear to have been implemented, therefore it should not be surprising that [X] has experienced a decline in her mental health. Professional flags regarding the importance for stability have been followed by several periods of relocation between Australia and [Country E] causing disruption to learning and opportunities for [X] to develop and maintain social peer networks. Information from her current school indicates [X] does not have any solid friendships and her description of siblings and peers as ‘acquaintances’ is a demonstration of her sense of social isolation and disconnection to family and community. These multifactor, in addition to being drawn into parent conflict is fertile ground for the emergence of serious mental health problems including suicide. Reports that [X] has been physically chastised for reaching out to trusted adults for support is alarming. The central issue of [X]’s mental health has been eclipsed whilst the focus from the parents has been the outcome of one Child Protection investigation. Between 2017 and 2023 [X] had at least three psychological assessments confirming a diagnosis of ADHD, however she only recommenced medication after [mid] 2023.
(Emphasis added)
As X’s primary carer and sole decision maker, it is apparent that the father has failed to follow the recommendations of professionals with regard to X’s ADHD, and, that in Ms W’s opinion, this, along with the ongoing conflict, has led to a decline in X’s mental health. Although the father has followed up more recent concerns by engaging Dr N, this is very much too little too late. However, neither parent seems to have taken seriously X’s mental health issues despite X suffering from depression and anxiety and reporting suicidal ideation and self-harm.
At [47] of the family report Ms W states:
During interview neither parent identified or raised their concerns about [X]’s mental health or support she may need at school because of ADHD, preferring to focus on cross allegations of violence.
(Emphasis added)
Ms W gave oral evidence that the foundation of X’s mental health problems was based in having “two parents who do not like each other and are pulling her in opposite directions.”
The counselling notes of 12 June 2023 confirm the father’s ambivalence about X’s mental health issues although suggest there may be some improvement as follows:
Depressed and anxious: [X] flippantly said that she has depression and anxiety. GC asked who told her this. [X] said she did. GC asked if she had mentioned this to dad — [X] said yes and before he just ignored it but since GC spoke to him [the father] he is listening now. [X] said feeling depressed and anxious is just part of life.
(Emphasis added)
In regard to the mother, Ms W reports at [50]:
Many of her actions indicate she lacks understanding of [X]’s feelings and needs. Consideration should be given as to how she may respond, if at all, if [X]’s mental health decompensated under her [the mother’s] care.
(Emphasis added)
Although the mother has completed a parenting course – which Ms W agreed was a “step in the right direction” it is unclear what insight she has gained into X’s particular mental health issues, if any. Furthermore, the mother’s ability to manage X’s behaviours, especially if she does not want to spend time with her, is untested. This is only likely to become difficult as X progresses through her teenage years and any language difficulties between mother and daughter are only likely to exacerbate these issues.
I note Ms W at [66] of the family report stated as follows:
If [X] were living with the mother she may ‘test’ the mother’s commitment to her through challenging and non-complaint behaviour which the mother may not have the capacity to recognise and deal with.
In terms of the practical ability to meet X’s needs, I accept the mother has made changes both to her accommodation and her work in order to facilitate X living with her, in the event that such an order were made. Those matters are not of great concern to me in this case.
However, questions remain about both parents ability to prioritise X’s ADHD and mental health issues and to place these above their own concerns. This is particularly concerning given the evidence of Ms W that X’s “coping mechanisms” are lower given her neurodiversity.
Family violence
Each of the parties make serious allegations of family violence against the other. It appears the police intervened following an incident between the parents and took out a safety notice on behalf of the father, and that the mother may have had to leave the country as a result, although, these matters were not clarified either in cross-examination or final submissions.
Furthermore, although X alleged the father had assaulted her and continued to report historical violence to her counsellor, this was also not the subject of any cross-examination or submissions. I am therefore unable to make any findings in this regard.
Parental responsibility
None of the parties proposed that the court should make an order for joint parental responsibility for decision making. However, such an order would clearly not be in X’s best interests as her parents do not talk, text, or even email each other directly. Any communication appears to go through the father’s partner, Ms J.
I agree with the report writer, Ms W where she concludes at [81] of the family report that:
There is no indication that the parents can communicate with each other around [X]’s needs and best interests.
The parties agree that sole parental responsibility for decision making should be allocated to X’s primary carer, although, the ICL proposes more extensive orders about communication of such decisions. I shall return to that shortly.
DETERMINATION
Live with and spend time
When Ms W was asked what her ultimate recommendation was, she said she was unsure “there are costs both ways.” I agree with that statement.
If X remains with her father, there is always a risk she will continue to believe she was abandoned by her mother and resist spending time with her. I am mindful of the evidence of the report writer Ms W and in particular the family report at [66]:
If [X] has been exposed to claims that she was abandoned by the mother, she would have internalised this a fundamental rejection of her value and right to exist, creating feelings of sadness, isolation and loneliness, low self-esteem, and feelings of insignificance. The sense of emptiness created in a child by a belief that they have been abandoned or rejected by a parent cannot be understated and can create lifelong mental health problems.
(Emphasis added)
On the other hand, it is unclear if the mother would be able to meet X’s needs. Furthermore, such a move would require X to leave a home where she appears to have finally settled and a school she has attended now for nearly two years. In this regard she seems to be developing some friends, has a 94 per cent attendance rate and her school reports are positive. In addition, she has an ongoing relationship with her guidance counsellor, in whom she has been able to confide.
There is also the question of how X would get to Melbourne. The mother conceded in her evidence she may have difficulty getting X to Melbourne and if the Australian Federal Police have to use force to remove X from Queensland, this does not set up a positive foundation for the fledgling mother/daughter relationship to develop. In addition, if X is forced to go against her wishes, her views may become further entrenched extinguishing any hope of an ongoing relationship with her mother in future.
This is a difficult case where there are risks for X either way. However taking all of these matters into consideration, I have determined it is not in X’s best interests to live with the mother in Melbourne. It is however vital that X spends regular time with her mother so she can form her own views about her mother, independent of the father’s narrative.
Given the distance and financial situation of both parties, this is likely to be limited to holidays. In that regard, I propose to make the time orders proposed by the ICL which takes both distance into consideration and X’s current reluctance to see her mother.
Overseas travel
As already indicated, I do not propose to make orders permitting the father to travel out of Australia with X at this stage.
The father’s own counsel made it clear he has no ties to Australia “other than the welfare system,” has no ability to provide security, and he has previously taken X to live in Country E which is not a Hague Convention country without consulting or even notifying the mother.
Furthermore, the father appears to have a cavalier attitude towards court orders, consenting to orders, which it seems, he had no intention to comply with, and, which he has now been proven to have contravened on four occasions.
In the event the father demonstrates he is able to comply with these orders, including sending X to spend time with her mother, then his prospects of being permitted to travel are likely to be substantially improved. However, until that time, the father will be restrained from taking X out of the Commonwealth of Australia and a watchlist will issue.
Otherwise, I propose to make the remaining orders as sought by the ICL. Neither the mother nor father made any submissions in regard to same, despite having had a weekend to consider them. Accordingly, I assume they are not opposed.
For all of the aforementioned reasons I make the orders as set out at the commencement of this judgment.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 23 January 2025
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