ZAU & UONG

[2015] FamCA 47

FAMILY COURT OF AUSTRALIA

ZAU & UONG [2015] FamCA 47

FAMILY LAW – CHILDREN – Where final orders made in 2005 – father has sole parental responsibility and child lives with father – mother seeks equal shared parental responsibility and order that child spend specified time with her – child 17 years old   – where child does not want orders compelling him to see mother – presumption of equal shared parental responsibility rebutted – order that the child spend time with and communicate with the mother in accordance with his wishes.

Family Law Act 1975 (Cth)

APPLICANT: Ms Zau

RESPONDENT: Mr Uong

INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

FILE NUMBER: MLC 3931 of 2012

DATE DELIVERED: 4 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATES:

24 & 25 November 2014

4 February 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

Orders*

IT IS ORDERED THAT

1. All previous parenting orders be discharged.

2. The father have sole parental responsibility for the child R born … 1998 (“the child”).

3. The child live with the father.

4. The child spend time with and communicate with the mother in accordance with his wishes.

5. The mother be and is hereby restrained from attending at the child’s school unless invited by him in writing or by SMS message.

6. The father keep the mother advised by email of the following:

   (a)any medical emergency or significant illness suffered by the child;

   (b)any overseas travel by the child;

   (c)any significant decision in relation to major long term issues with respect to the child;

   (d)any significant issue in relation to the day-to-day care, welfare and development of the child; and

   (e)The child’s ENTER score, the contents of VTAC applications and the course of study (if any) that the child will be pursuing in 2016.

7. The father forthwith authorise the child’s school to:

   (a)forward to the mother copies of the child’s school reports, newsletters, photograph order forms and any other document ordinarily provided to parents;

   (b)provide details to the mother to enable her to access the school portal; and

   (c)forward to the mother details of the child’s subject choices for Year 12 Exam, including CATS and SACS timetables and the results of all such testing.

8. The order for the appointment of the Independent Children’s Lawyer be discharged.

9. The father be at liberty to forward a sealed copy of this order to the Principal of E School.

10. All extant parenting applications be otherwise dismissed and removed from the list of cases awaiting hearing.

AND THE COURT NOTES THAT

Pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.

IT IS CERTIFIED THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Counsel to attend.

*These orders have been amended where highlighted to accord with the orders as pronounced by the Honourable Justice Macmillan on 4 February 2015.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3931 of 2012

Ms Zau

Applicant

And

Mr Uong

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. The circumstances of this case are somewhat unusual in that the child W (“the child”) has recently turned 17 and is a full-time boarder at E School.    Ms K, who prepared a Children and Parents Issues Assessment dated 12 March 2014, describes the child as “a mature and intelligent young man”  who “strongly advocated” that he did not want the Court to make orders compelling him to spend face-to-face time with the mother.

2. It is important in this case not to lose sight of the fact that the child will in less than 12 months be an adult and beyond the jurisdiction of this court.  Thereafter the child, as an adult, will be able to determine what, if any, time he spends with the mother.  In my view, his wishes must be viewed in that context.

BACKGROUND

1. The mother is aged 51 years. She was born in China and, having migrated to Australia in 1991, became an Australian citizen in June 1993. She describes her occupation as being that of housewife/mother.  Although the mother gave evidence that she is now “perfectly well” she does have a history of mental health issues, which have included an involuntary admission to F Hospital in late 2013.  The mother was also an inpatient at G Hospital when the matter was listed for a first day of hearing on 6 May 2014 and on that date I ordered her to file and serve upon the other parties an affidavit by her treating psychiatrist as to her current mental health and prognosis.  Based on an affidavit filed by the mother in June 2014 sworn by her then treating psychiatrist Dr A at G Hospital and a letter tendered by the mother in July 2014 from another psychiatrist at the hospital, Dr H, the mother has a history of Bipolar Affective Disorder which was initially diagnosed in October 2013.  Dr A deposed that the mother’s prognosis is likely to be positive if she continues to adhere to her treatment plan which includes medication and follow-up.  In his letter, Dr H reported that the mother ‘has now recovered significantly … [and h]er thinking and behaviour now appears to be structured and organized’ (sic) although it is planned that she will continue to receive intensive psychiatric case management through the I Psychiatric Service.     

2. The respondent father is aged 61. He was born in Thailand and has lived in Australia since 1981. He is a company executive.

3. The parties were never married and the nature of their relationship has been a point of ongoing contention between them. The mother asserts that the parties were in a de facto relationship between 1991 and 11 December 2011. The father denies the existence of such a relationship. On 23 April 2013 Cronin J found that there was no evidence to support a finding that there was a de facto relationship between the parties. His Honour’s orders are currently the subject of appeal.

4. Sadly, the child has been at the centre of litigation between his parents since he was five years old.  He was removed from the mother’s care by the father in mid-June 2003.  In June 2005 Brown J made final orders, in the mother’s absence, that the father have sole parental responsibility for the child, that the child live with the father and that he spend time with the mother as agreed by the father and the mother.

5. The child has lived with the father, albeit since 2009, at the father’s expense as a boarder at E School, save and except for the period between 2007 and early 2009 when the child, by agreement between the father and the mother, lived in China with the mother.   

6. I am satisfied on the basis of the evidence before me that the child has done very well academically at E School. He also plays in and is captain of the Sport M team, and is a keen participant in Sport N.  He is going on a school trip to Europe to participate in Sport N for three weeks during the 2014/2015 summer holidays and has previously been on a school trip overseas.  He is both a prefect and house captain in this his final year of school.  The child’s housemaster Mr J said of the child in an email to the father as follows:

   I rate [the child] very highly and look for even better things in the years ahead. He has a very special inner strength and not influence (sic) unduly by what others think. I value that. He is very loyal to me, and as we joked, have shared some interesting times together! I think he will make an excellent House Captain and School Prefect. He comes to [Q Campus] with this weekend to meet the new cohort coming through.

   His academics continue to go from strength to strength. [The child] is one of the hardest working kids in the house.

7. After the child’s return to Australia in 2009 the mother continued to live in China, spending time with the child by agreement with the father either in China or Australia during the Australian school holidays. The mother returned to Australia in late 2011.  Albeit that the mother complains that the father made it difficult for her to spend time with the child upon her return to Australia, she did spend time with the child either by agreement or pursuant to the orders made by Senior Registrar FitzGibbon on 12 December 2012.  The mother has not spent any face-to-face time with the child since 13 September 2013.

8. On that date, the mother travelled to E School to see the child. There was an incident at the school that resulted in the mother being refused permission to visit the child at the school.  Although there is a dispute as to what actually occurred on that date, it is not a matter about which I can make findings based upon the evidence before me or that it is necessary for me to do so for the purposes of the decision I must make. In my view, the relevance of whatever occurred, with respect to the matters I must determine, is the impact of the incident upon the child and how he perceived the mother’s behaviour and the events that day.   It was shortly after the incident at E School that the mother was admitted to F Hospital as an involuntary patient.

9. The child is described by Ms K as being aware of his mother’s “ongoing emotional trauma” and is reported as describing his mother as being “unwell”.  The child reported to Ms K that his mother’s mental illness has “significantly affected his relationship with her over many years.”  He recalls spending holiday time with his mother in the past and claims that “due to her regular emotional outburst[s]” he was unable to spend more than a few days with her at a time. On two of those occasions the child reports unilaterally using public transport to return to his father’s care.

10. At the time of the interviews with Ms K, the child was speaking to the mother by telephone, which he told Ms K he thought was “the right thing to do.”  The child reported to the family consultant that at times he “finds these telephone calls difficult as his mother frequently becomes exceedingly distressed and attempts to keep him on the telephone for hours at a time.” Since his interview with Ms K, the child has only spoken to the mother by telephone on Mother’s Day and has since then not returned her calls or responded to her text messages. The mother gave evidence that she telephones the child most weekends and sends him regular text messages.

HISTORY OF THE PROCEEDINGS

1. The matter was listed for final hearing before me commencing on 24 November 2014. In May 2012, some seven years after final orders were made by Brown J, the mother filed an initiating application commencing proceedings with respect to parenting arrangements and property matters between the parties. Further to that application, the mother filed an amended initiating application on 26 October 2012 seeking:

   1)A declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that the parties were in a de facto relationship;

   2)Such orders for settlement of property as the Court considers just and equitable pursuant to s 90SM of the Family Law Act 1975 (Cth);

   i)That said Shanghai property for both party to use until [the child] is 18 years old transfer to his name (sic);

   ii)In Australia [the child] have the same rights and opportunities, similar to his two half-brothers, According the respondent with his ex-wife  […] settlement made in this Honourable court. In 1999 (sic);

   iii)The settlement of property for the Applicant as the Court considers (sic);

   3)The pursuant to s 90SE of the Family Law Act 1975 (Cth) the respondent pay the applicant maintenance in the sum of $2500 per week, or such other sum that the Court considers proper;

   4)That the child live with the mother and she have sole responsibility for the day to day care, welfare and development of the child; and

   5)That the respondent father and applicant mother have the joint responsibility for the long term care, welfare and development of the child.

2. On 12 November 2012 the father filed an amended response to initiating application in which he sought, inter alia, at paragraph 5, orders in relation to holiday time the parties spend with the child.

3. On 19 December 2012 interim orders were made for the child to spend time with the mother from 4.00 pm on 25 January 2013 until 4.00 pm on 2 February 2013, being a period of time during the long summer holidays, and from 29 March 2013 until 13 April 2013, with the start and conclusion times to be agreed. These orders made by Senior Registrar FitzGibbon were made subject to any other order that might be made by Cronin J.

4. Orders were made by Cronin J on 23 April 2013 in relation to two discrete issues. The first issue was whether the mother and father were in a de facto relationship on and/or after 1 March 2009. The second issue was whether there has been a sufficient change of circumstances since 2005 to warrant re-examining the primary parenting orders which left the father having the main responsibility for the child.

5. His Honour found that there was no evidence to support a conclusion that:

   1)the parties lived together as a couple; nor that

   2)there was a genuine domestic basis; nor that

   3)the parties had lived in a de facto relationship immediately before, on or after 1 March 2009.

6. His Honour did however find that there was a sufficient change of circumstances since 2005 to warrant re-examining the primary parenting order, albeit only in respect of the child’s future time with the mother.

7. The mother has since appealed by way of a Notice of Appeal filed on 17 May 2013 against three of the orders his Honour made on 23 April 2013.

8. In September 2013, some four months after filing the Notice of Appeal, the mother filed two separate applications in a case seeking orders, inter alia, that the child be placed on the Airport Watch List, that the previous parenting orders be dismissed and that the parties share weekend and holiday time with the child.

9. On 31 March 2014 Senior Registrar FitzGibbon dismissed both of the mother’s applications in a case filed 17 September 2013 and 20 September 2013, and made orders that until further order, the child live with the father and spend time and communicate with the mother in accordance with his wishes. A further order was made that for the purposes of the child wishing to spend face-to-face time with his mother that such time take place at E School. It was requested that the school give such assistance as is practicable to facilitate any such time taking place whilst not binding or compelling the school to act and noting that the school may, at its complete discretion, decline to permit any time being spent.  All extant applications for final orders were listed for a first day of hearing before me on 6 May 2014.

10. The matter coming before me on that day and, there being no appearance by the mother, I made orders that all extant applications be listed for mention before me on 17 July 2014, that the mother file and serve upon all other parties an affidavit by her treating psychiatrist as to her current mental health and her prognosis and that she appear or be legally represented at the mention on 17 July 2014. I made a further order that in the event that the mother failed to comply with those orders, that the father have liberty to apply to have the matter listed for hearing on an undefended basis and for the father to cause a sealed copy of the orders made that day to be served upon the mother.

11. On 17 July 2014 the mother appeared in person and the matter was listed for hearing as a three-day matter commencing on 24 November 2014.

12. In anticipation of the hearing on 24 November 2014, the mother on 26 September 2014 filed an application in a case seeking an order for the preparation of a family report pursuant to s 62G of the Family Law Act 1975 (Cth) (‘the Act’), an order that she be permitted to inspect file number … and file number … – both files relating to proceedings in which the father was a party in relation to previous relationships – and finally, an order requesting the intervention of the Department of Human Services. On 27 October 2014 I dismissed the mother’s application in a case.

13. In her amended initiating application filed 29 September 2014 the mother seeks orders that the child continue as a boarder at E School, that the father and mother be jointly responsible for his long-term care and development, that the father and mother share school holidays with the child and that the mother have access to information relating to his education at the school.

14. In her outline of case, the mother sought orders as follows:

    1)That all previous parenting orders (… of 29 June 2005 and 31 March 2014) and injunctions in respect of [the child] born …, 1998 be discharged.

    2)Before any financial orders made by the Full Court of the Family Court of Australia or any financial agreements are made by the parties, the respondent father [be] responsible for [the child’s] all school fees (sic) in [E School] and future studies, and [the child’s] living cost.

    3)The response to initiating application filed on 30 October 2014 [be] dismissed.

    4)That the child … [board] in the [E School].

    5)That the mother and father be jointly responsible for the long term care, welfare and development of the child until the child completed his education to his best ability (sic).

    6)That the child have the same rights as his half brothers as be settled in the file … (sic).

    7)That the mother and father share the school holidays spend the time with the child (sic). The mother live with the child in [P] St home during the holidays.

    8)The mother can free access to the child school during the weekend, free to access the child’s school report and information in [E School]. The father and mother should encourage the child contact and communication with both parents (sic).

    9)Report the notice of Child Abuse, Family Violence, or Risk of Family Violence to the child welfare authority for allegations of child abuse or risk of child abuse.

    10)That the respondent pay the applicant’s costs of these proceedings and incidental to this application and pain and suffering by the family violence towards the child and applicant mother.

15. The father, in his amended response to initiating application filed 30 October 2014, seeks that the mother’s amended application filed 29 September 2014 be dismissed, that the child live with the father, that the child spend time and communicate with the mother in accordance with his wishes, and that the mother must seek leave of the Court before any further application in relation to the living arrangements for the child or any application for orders pursuant to Part VIIIAB of the Act can be instituted. The father did not pursue this last aspect of his application.

16. On 13 January 2015, having written the judgement but prior to my delivering that judgement, the mother attempted to file an application in a case seeking to re-open her case. That application was not accepted for filing and on 27 January 2015 the mother filed an application in a case seeking a review of the Registrar’s decision. That application was listed for hearing before me on 4 February 2015. Having heard the mother’s application for review I gave leave to the mother to file her application in a case and her affidavits in support of that application. The mother’s substantive application to re-open her case was dismissed.

THE EVIDENCE

1. In her outline of case the mother set out a list of the documents upon which she said she relied which included not only her affidavits sworn and filed pursuant to my orders made 17 July 2014, but numerous other affidavits filed in support of earlier interim applications for parenting orders and the affidavits upon which she relied in support of her application for property settlement.

2. On 17 July 2014 I made orders setting the matter down for final hearing and orders for the preparation of the matter for trial. Those orders included orders that the mother file and serve the affidavits of evidence in chief noting that affidavits relied upon for previous hearings could not be relied upon as evidence in chief. The mother ultimately submitted that she should be permitted to rely upon her affidavit filed 29 September 2014, her affidavit filed 13 November 2014, and paragraphs 40 to 51 and Annexure C of her affidavit sworn 2 April 2013 before Cronin J. Neither the father nor the Independent Children’s Lawyer objected to her doing so and although counsel for the Independent Children’s Lawyer challenged the relevance of some of the evidence relied upon by the mother she ultimately submitted that it was a question of what weight should be given to that evidence.

3. The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act1995 (Cth) provides that in applying the relevant standard of proof the court must take into account:

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject-matter of the proceeding; and

   (c)the gravity of the matters alleged.

4. The mother sought access to files of other proceedings in this Court in which the father had been a party and sought further to rely upon material in relation to the property proceedings in order to demonstrate that he was not a witness of truth and that the child’s wishes were a result of the pressure she says the father had placed upon him.

5. In my view, this was not a case that turned on the credit of either party. It was the insight or lack thereof, particularly on the mother’s part, of the impact of their behaviour and the conflict upon the child which was the real issue in this case and the weight to be afforded to the child’s wishes.

6. The father was clearly frustrated by the ongoing proceedings and what he perceived to be the mother’s inability and unwillingness to consider the child’s wishes. He seemed somewhat long suffering, which may not be all that surprising given the long history of proceedings in this Court in relation to this matter. His evidence was cautious and considered and I accept that he was doing his best to tell the truth and, in particular, to accept that he would not stand in the way of the child spending time with the mother even if it were possible for him to do so.

7. Ms K described the mother as follows:

   [The mother] presented as extremely distressed throughout her interview. She appeared to have limited emotional regulation and was unable to present a linear argument, frequently jumping topics and timeframes. Overall, [the mother] appeared to be preoccupied in managing her own personal issues. These primarily involve the perceived impact [the father’s] decisions and actions have had upon her current financial position. [The mother] also perceives that [the father] (and [E School]) is preventing her from spending time with [the child]. [The mother] did not demonstrate a capacity to explore how her behaviour or the parental conflict may affect [the child] or his emotional wellbeing.

8. This accords with my assessment of the mother’s evidence.

9. The mother also challenged the credit of Ms K, suggesting that she had not accurately reported the factual background of the matter. Ultimately it is for the court to determine questions of fact and not Ms K. The mother also submitted that Ms K’s evidence was unreliable because she had changed her evidence not once but twice. This related to Ms K’s evidence about the sequence of the interviews with the father and the mother and the child and her evidence that the father was shocked when she told him that the child had contacted F Hospital and discussed his mother’s diagnosis with her treating mental health professionals.

10. Ms K gave evidence that she spoke to the father first, the mother second, and then spoke to the child.  Although she spoke to the father briefly, at which time she told him that the child had contacted F Hospital, when she returned the child to the father’s care she did not conduct a further interview of or formal feedback session with him. She did however have a feedback session with the mother following her session with the child, and after the father and the child had left. Although Ms K had some difficulty remembering the exact order in which she conducted the interviews, I am satisfied that the mother’s perception that Ms K had changed her story arose not because of any attempt on Ms K’s part to mislead the Court but because of a misunderstanding about the fact that although Ms K did not have a feedback session with the father she did speak to him briefly at which time she told him that the child had contacted F Hospital.

11. Ultimately, it was Ms K’s observations of the father, the mother and the child and in particular her discussions with the child which were central to this case. I found her evidence both perceptive and persuasive.

LEGAL PRINCIPLES

1. The objects underlying the provisions of Part VII of the Act relating to children are set out in s 60B(1) of the Act as follows:

   The objects of this Part are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. The principles underlying those objects are outlined in s 60B(2). They are that unless it would be contrary to the best interests of a child:

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child’s or children’s best interests the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s 60CC(4A)).

4. The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.

5. I will first consider the primary considerations under s 60CC(2).

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

6. Whilst is it trite to say that most children will benefit from having a meaningful relationship with both of their parents I am satisfied that the child W, despite having maintained some contact with the mother until about May 2014, does not and has not for some time and at least since the incident at E School had a meaningful relationship, in any real sense, with the mother.  I am also not satisfied that there is any real benefit to orders requiring the child to spend time with the mother or that he could have a meaningful relationship with the mother in circumstances where he has unequivocally said that he does not want orders requiring him to see her. That does not mean that the child will not and cannot choose to contact the mother of his own volition.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

7. Although in this case the mother makes allegations of family violence, those allegations are historical and have no real relevance to the issues in this case. In any event, there is not sufficient evidence to satisfy me on the balance of probabilities that the mother has been subjected to family violence or, as she suggests, that the child has been physically harmed by the father. At an earlier hearing of the matter before me the mother conceded that there was no risk of harm to the child based upon the present arrangements for his care.

8. The mother also alleges that the child has been psychologically abused by the father, in particular, as a result of him putting pressure on the child not to contact her. The evidence does not support her assertions. To the contrary, the child spends most weekends at school and there is no reason why if he wanted to contact the mother that he could not do so or that the father could do anything to prevent him from doing so. It is clear from the evidence that the child did so, albeit he may not have done so regularly, until May 2014. The evidence, rather than supporting a finding that the father has in any way psychologically abused the child, leads me to conclude that he has been supportive of the child and his relationship with the mother, not in any way discouraging or inhibiting that relationship.

9. I must now consider the additional considerations.

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)     each of the child’s parents; and

   (ii)    other persons (including any grandparent or other relative of the child);

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

10. I am satisfied that the child is a mature and intelligent young man who has formed his own independent views and that his views, which are critical to the decision the Court must make in this case, should be respected.  The child told Ms K, and I accept, that he receives support from teachers and a school psychologist when he requires assistance with respect to his relationship with his mother.

11. Ms K’s description of the child as a mature and intelligent young man is consistent with his housemaster Mr J’s description in his email to the father, to which I have already referred in paragraph 8 of these reasons. As I have already found, there is no evidence to support the mother’s assertion that the father has put pressure on the child not to maintain his relationship with her and it is clear from Ms K’s evidence that the child has maintained contact with his mother independently of his father. Whilst the father was not aware that the child had done so, it was his case that the child should be left to make his own decisions about contacting the mother, his primary concern being that the child not be exposed to the conflict between himself and the mother and that the child be able to focus on his studies.

12. The child reported to Ms K, and I accept, that he found the telephone calls to his mother “difficult as his mother frequently becomes exceedingly distressed and attempts to keep him on the phone for hours at a time”.  Although the mother disputes that she attempts to keep the child on the phone for hours at a time I am satisfied that more likely than not it is the mother who places emotional pressure upon the child and not the father.

13. The father’s love and affection for, and pride in, the child was obvious from his evidence. I am satisfied that he has a good relationship with the child.

14. I have no doubt that the mother equally loves the child however it is clear from her evidence and the evidence of Ms K, which I accept, that the mother cannot separate her needs, and in particular what she perceives to be the financial injustices she has suffered at the hands of the father, from the child’s needs.

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

15. Although the mother asserts that the father has not facilitated her relationship with the child, there are many examples in this case which would lead me to conclude that is not the case. Notwithstanding the final orders made by Brown J on 29 June 2005 that the child live with the father and spend time with the mother as agreed between the father and the mother, the child lived with the mother in China between 2007 and 2009. It is conceded by the mother that, prior to her return to live in Australia in late 2011, the father facilitated the child spending time with the mother during his school holidays in China, Australia and, on one occasion, in Thailand.

16. The mother complained that upon her return to Australia in late 2011 the father did not facilitate the child spending time with her, however, in his reasons for judgment delivered on 19 December 2012 Senior Registrar FitzGibbon said as follows:

    11. Counsel submits that it is not the case at all [that the father has made it difficult for the mother to see the child]. In fact, with respect to these holidays, he had asked her for any proposals. To that end, I refer to his affidavit, filed on 17 December, and paragraph 6, 7, 8, 9, and 10 which relate specifically to his overtures and correspondence, commencing on 18 September 2012 and sent on instructions, informing the mother that if she wished, and/or intended to have or wanted to spend any time at the end of Term 4, 2012 and he set out details about his availability, and requested a response from her by no later than 1 October.

    12. On 4 November, a further email was sent to the mother, because she had not responded and in it informed her that he had made plans for [the child’s] holidays.

    13. On 5 November, the mother responded to that email, indicating for the first time she wished to spend time from 15 December 2012 to 14 January 2013.

17. When this was put to the mother, her complaint was that the father had required three months’ notice, which he had not previously done. I do not accept that it was unreasonable for the father to require the mother to give him notice of the time she wished to spend with the child. The fact that the father required notice does not suggest that he was not facilitating the child spending time with the mother.

18. Even when the father sought and obtained an interim intervention order against the mother on 18 July 2013 listing both the father and the child as protected persons, the mother was not prevented from contacting the child.  To that end, the order contained a notation that the father gave his consent to the child spending time with and seeing the mother, with such contact being conditional upon the child’s agreement. A further notation was made that the mother be permitted to contact the child directly via his mobile phone. The same notations were contained in the final intervention order made on 13 September 2013, although that order was later withdrawn by the father. The interim intervention order was made following both a specific incident at the father’s home where it was alleged by the father that the mother refused to leave the premises until police attended and that the mother repeatedly harassed the father at his workplace.  

19. Having heard the father’s evidence I am satisfied that not only did he facilitate the child spending time with the mother but that, notwithstanding his own frustration with the mother and the ongoing conflict between them, he did not and would not oppose and in fact would support the child spending time with the mother if he wished to do so.

    (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)     either of his or her parents; or

    (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

20. The child is 17 years of age and in effect lives independently of both of his parents, albeit he is supported by the father and spends time with him at times when he is not at school or on school holiday excursions.

21. The child presently has no contact either face-to-face or otherwise with the mother.  I am satisfied, acceding to the father’s application and the submissions made by the Independent Children’s Lawyer, that no orders should be made requiring the child to spend time with the mother even on a very limited basis, as proposed by the mother. Such orders would, if anything, be likely to have a positive effect upon the child, leaving him free to pursue his studies during this crucial year without having to deal with either his mother’s emotional turmoil or the ongoing conflict between the father and the mother to which he is exposed.  The child will be free to contact his mother if he wishes to do so.

22. However I am satisfied on the other hand that orders requiring the child to spend time with the mother even on a very limited basis including, as the mother ultimately submitted, her having permission to visit the child at school could have a significant negative impact upon the child at this crucial time in his life, undermining the security and stability he has found in the school environment and disrupting him during this very important time of his schooling. 

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

23. This is not an issue in this case.

    (f)the capacity of:

    (i)    each of the child’s parents; and

    (ii)   any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs:

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

24. Once again this is a somewhat unusual case in that it would appear that to a large degree the child’s physical, intellectual and, to some extent, his emotional needs are met by E School. However, that is all made possible by the father who has met the cost of the child’s education at E School with no contribution from the mother. However, having heard the father’s evidence about the child and his relationship with the child, having read the email sent by the father to the child’s housemaster and his reply to the father, and being cognisant of both the child’s academic and personal achievements at E School, I am satisfied that the father has provided not only financially for the child but for his needs generally.

1. I do not have the same confidence in the mother’s capacity to provide for either the child’s physical, emotional or intellectual needs. The mother’s proposals were totally unrealistic and seemed to stem primarily from her inability to accept the outcome of or to come to terms with the financial aspects of this case. The most striking example was her proposal that when the child spends time with her during school holidays that they would stay at the father’s home. This of course is the property which she claims was her home and in relation to which she sought orders pursuant to ss 90SL, 90SM and Part VIIIAA of the Act.

2. Although the mother gave evidence that she would abide by the child’s wishes and that if he said that he did not want to see her she would not force him to do so, she still refused to acknowledge or accept the legitimacy of the child’s wishes as told to Ms K.  The mother also said that if the Court made orders that the child spend time with her and the child did not wish to abide by such orders, that he could obtain an intervention order to prevent her from contacting him.

3. I have also had regard to the fact that the mother proceeded with her application for orders for her time with the child in the face of the wishes the child expressed to Ms K and that it was part of her case that there should be a family report prepared in anticipation of that hearing, which would have further exposed the child, in my view unnecessarily, to the conflict between the father and the mother. The mother’s evidence did not instil in me any confidence that she possessed any real understanding of the child’s emotional needs or, even if she did possess such understanding, that she had any real capacity to provide for those needs.

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

4. This is not relevant in this case.

   (j) any family violence involving the child or a member of the child’s family;

5. I have already addressed the issue of family violence. The allegations made by the mother are historical and I am not satisfied on the balance of probabilities on the basis of the evidence before me that either the mother or the child have been exposed to family violence as asserted by the mother.

   (k) any family violence order that applies to the child or a member of the child’s family, if:

   (i)     the order is a final order; or

   (ii)   the making of the order was contested by a person;

6. There are no current family violence orders.

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

7. There is no doubt in this case that it would be preferable for the child for the Court to make orders that will avoid the possibility of future proceedings.

8. The difficulty with making orders requiring the child to spend time with the mother against his wishes, as the father submitted, is the likelihood of there being further proceedings in the event that the child does not spend time with the mother as ordered. Further, as the father submitted, responsibility for making the child spend time with the mother would fall upon the father notwithstanding that he arguably, in circumstances where the child does not live with him on a day-to-day basis, may have little or no control over the child’s day-to-day activities.

9. Whilst it is still possible that the mother may issue further proceedings seeking parenting orders, I am hopeful that she will consider the child’s wishes and reflect upon his need for stability, certainty and an end to these proceedings during this important year of study before doing so.

   (m)any other fact or circumstance that the court thinks is relevant.

10. There are no other matters that require consideration.

11. I must also consider s 60CC(4).

    Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

    (a)has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)to spend time with the child; and

    (iii)to communicate with the child; and

    (b)has facilitated, or failed to facilitate, the other parent:

    (i)participating in making decisions about major long-term issues in relation to the child; and

    (ii)spending time with the child; and

    (iii)communicating with the child; and

    (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

12. This case is somewhat unusual in that the father has had sole parental responsibility for the child since 2005 and, on that basis, has had responsibility for making decisions about the major long-term issues affecting the child.  Apart from the mother’s assertions that the father has interfered with her relationship with the child and that the father might remove the child from E School as punishment for him wanting to see the mother, assertions which I do not accept, there is no evidence to support her assertions.

13. Although there may have been occasions when the father could have made more effort to provide information to the mother relating to the child’s welfare, I accept that any communication between the father and the mother is likely to be very difficult. As such, I am satisfied that any failure on the father’s part to communicate with the mother is a consequence of the breakdown in their communication and a reaction to the pressures of the ongoing litigation, rather than a deliberate attempt by the father to exclude the mother from the child’s life.

14. In any event, the father has accepted the Independent Children’s Lawyer’s proposal with respect to the mother being advised of medical emergencies, overseas travel, any major long-term or day–to-day issues with respect to the child’s welfare, his ENTER score and his proposed course of study. The Independent Children’s Lawyer also proposed that the father authorise E School to provide the mother with copies of the child’s school report and to provide her with the necessary details to access the school portal.

15. I have otherwise dealt with these issues in some detail in my consideration of the other matters I am required to consider.

PARENTAL RESPONSIBILITY

1. As Cronin J in his reasons for judgment delivered on 23 April 2013 observed, s 61DA provides that when making a parenting order, such as the spend time orders sought by the mother, the Court must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility.  Although I do not propose to accede to the mother’s application for orders that the child be required to spend time with her, the orders proposed by the Independent Children’s Lawyer and adopted by the father - that the child live with the father and spend time with and communicate with the mother in accordance with his wishes - are parenting orders. Therefore the presumption of equal shared parental responsibility arises notwithstanding the father has had sole parental responsibility for the child since 2005.

CONCLUSION

1. The statutory presumption is that it is in the best interests of a child for his or her parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA). This presumption is rebuttable if the Court is satisfied that equal shared parental responsibility is not in the child’s best interests.

2. Although the mother in this case makes allegations of both family violence and the emotional abuse of the child by the father, I am not satisfied on the balance of probabilities on the basis of the evidence before me that either has occurred. However, I am satisfied that it is not in the child’s best interests for his parents to have equal shared parental responsibility for him. There are a number of factors which lead me to this conclusion.

3. The father in this case has had sole responsibility for the child since 2005. All of the evidence suggests, and I am satisfied, that he has acted in the child’s best interests. That of course would not preclude the Court now determining that the parental responsibility for the child should be shared. However, in this case, there are two issues that stand out. Firstly, there is what I have found to be the mother’s lack of insight into, and capacity to provide for, the child’s needs, particularly his emotional needs. The second issue is what I perceive, in the circumstances of this case, to be the impracticability of the father and the mother having to communicate in relation to decisions affecting the child’s welfare.

4. In less than a year the child will be an adult and able to make his own decisions. Even if decisions are ones that must be made by an adult, one would expect a child of this child’s age to have at least some view of, if not input into, decisions that affect his welfare. I am satisfied that not only would the father and mother have difficulty communicating as would be necessary if they were required to make major long-term decisions with respect to the child, such difficulty being demonstrated by the mother’s refusal to accept the child’s wishes, but that the child is also likely to have difficulty communicating his views to the mother.  In all of the circumstances I am satisfied that it is not in the child’s best interests for the father and the mother to have equal shared parental responsibility. I propose to order that the father have sole parental responsibility for the child.

5. As the presumption for equal shared parental responsibility does not apply, the Court is not required to consider firstly whether it is in the child’s best interests and reasonably practicable to spend equal time with each of the parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable to spend “substantial and significant time” with each of the parents (s 65DAA(2)). 

6. Having considered both the principal and additional considerations and the matters in s 60CC(4) I am satisfied, save for one issue, that the orders proposed by the Independent Children’s Lawyer and adopted by the father are in the child’s best interests. Paragraph 5 of the Independent Children’s Lawyers minute of proposed orders provides that the mother be restrained from attending at the child’s school unless invited in writing by the child and/or by the father.  The difficulty with this proposal it that it requires the father to consent to the child spending time with the mother, which is not consistent with either the proposal of the father or the Independent Children’s Lawyer that time spent with the mother should be in accordance with the child’s wishes.   

7. The mother’s proposal changed during the running of the case and it was somewhat difficult to understand the details of that proposal. In her final address, the mother submitted that the child spend time with her for half of each school holidays.  Although she did refer to the child’s “free wishes”, the mother also proposed that she be permitted to visit the child at school for two hours once a month during the weekend, either at school or in Town S, and that she be permitted to attend special events at the school.  Leaving aside the question of whether the school would permit the mother to visit the child on its premises, I am not satisfied that the mother’s proposals are in the child’s best interests and I agree with the father’s submission that to ignore the child’s wishes and to force him to see the mother, particularly at school, would be likely to have a very negative effect upon the child. The child, as I have found, is a mature and intelligent 17-year-old. In all of the circumstances and given the history of the child’s relationship with his mother, I am satisfied that his wishes are soundly based and that I should respect those wishes.

8. In all of the circumstances I propose to make orders in terms of the minute of proposed orders prepared by the Independent Children’s Lawyer save and except, as previously referred to, paragraph 5 of that minute with respect to the father.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 4 February 2015.

Associate: 

Date:  4 February 2015