FAMILY COURT OF AUSTRALIA

hopkins & walker	[2012] FamCA 646	

FAMILY LAW – CHILDREN – Male child 17 ½ years – Application by father for interim orders including change of residence – Child expressed strong views to contrary to family report writer – Best interests matters considered – Father’s application for interim orders dismissed – Observation made that if there be no concluded trial before the child turns 18 years on 3 February 2013 the proceedings be dismissed	

Family Law Act 1975 (Cth) s 60CC	

Goode & Goode (2006) FLC 93-286	

APPLICANT:	Mr Hopkins	

RESPONDENT:	Ms Walker	

FILE NUMBER:	TVC	539		of	2011	

DATE DELIVERED:	2 July 2012	

PLACE DELIVERED:	Brisbane	

PLACE HEARD:	Brisbane	

JUDGMENT OF:	O’Reilly J	

HEARING DATE:	2 July 2012	

REPRESENTATION

THE APPLICANT:	In person	

THE RESPONDENT:	In person (by telephone)	

Orders

IT IS ORDERED 
1	The father’s application for interim parenting orders (amended initiating application filed 18 November 2011) is dismissed.
2	The father’s application made orally today to be released from paragraph 2 of his undertaking filed 3 June 2004 is dismissed (the undertaking being a premise of orders made by Warnick J on 29 July 2004).
3	The proceedings be listed for a trial directions hearing before Registrar Brooks at 4:00pm on Wednesday 12 September 2012.
4	If trial proceedings have not been conducted and determined by 3 February 2013 (when the child C turns 18 years) all proceedings concerning him on that date be dismissed. 

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

FILE NUMBER: TVC 539 of 2011

Mr Hawkins	
Applicant

And

Ms Walker	
Respondent

REASONS FOR JUDGMENT
Ex Tempore
1.	These proceedings concern C who will turn 18 years in February 2013, that is, in approximately seven months time.  
2.	There have been lengthy proceedings throughout the Court between C’s father, Mr Hawkins (“the father”), and his mother, Ms Walker (“the mother”), concerning C and his older sister B, now an adult, for over 17 years.  The proceedings, as much as I can glean today, have been bitter and contracted because of allegations by the mother against the father of physical abuse and family violence, and of the father against the mother of a deliberate intention of causing the children to be estranged from him.  
3.	As far as I can glean from Court file No BRF4770/1995, the most recent final orders concerning C were made on 29 July 2004 by Warnick J. The orders which his Honour made expressly were premised upon 2 undertakings by the father dated 3 and 4 June 2004, schedules B and C respectively to his Honour’s orders. 
4.	His Honour’s final orders do not speak of living arrangements for C, but for contact arrangements between C and the father, specifically that subject to availability of the relevant Contact Centres as a changeover venue the father have contact with C at the times specified in those orders and other matters.
5.	In the ensuing years, as it turns out, C, for reasons not presently shown in the material, commenced to live with the father in 2005 and did so until May 2011 when C reported that the father had physically assaulted him and C removed himself to residence with the mother, such being the precursor for these current proceedings which were commenced by the father in the Federal Magistrates Court at Townsville on 6 June 2011.
6.	The matter was listed before Willis FM on 17 August 2011 who transferred the proceedings to this Court, noting that C at that stage would be turning 17 in five months time and, as I have mentioned already, will be turning 18 in approximately seven months time from today.  In this Court, the proceedings came before Bell J on 12 March 2012. His Honour ordered that a family report be prepared concerning C’s wishes and views. Ms E, Registry Family Consultant, prepared such a report dated 2 May 2012.  His Honour had also requested that Legal Aid Queensland make arrangements for the appointment of an independent children’s lawyer for C and listed the matter in the judicial duty list as a short cause at 10.00 am on 19 June 2012.  On that day, I understand, the matter was listed before Forrest J, who apparently had a conflict having previously appeared for one of the parties.  The matter thus was listed in my judicial duty list today for hearing and determination of the father’s application for interim orders.
7.	The result of the request by his Honour for Legal Aid resulted in a letter from Legal Aid Queensland to the Court, addressed to the Registry, dated 23 May 2012, noting his Honour’s request but declining that Legal Aid Queensland would provide funding for an independent children’s lawyer on the basis that according to Ms E’s report, E being already 17 years of age, he had given a very clear preference in relation to his living arrangements. Ms E had recommended in her report, on the basis of her assessment, but subject to any findings by the Court, that “C’s views about not wanting to spend time or communicate with his father are respected”. In those circumstances, the letter continued that the Legal Aid provision of funding test was not met. Legal Aid thus declined to appoint an independent children’s lawyer.
8.	It is in those circumstances that I come today to consider the father’s application for interim parenting orders concerning C, as formulated orally by him during the hearing (and as such are a little different from his amended initiating application, which also had sought a recovery order, expressly abandoned by the father at the hearing today). First, the father seeks an interim order that there be a relocation of C from living with the mother at Town W in South East Queensland to living with him in Town H, located north of Brisbane, or in the alternative that C spend time with him in Town H for part of the school holidays and some specified or able to be arranged weekends during the school terms. The father seeks also an order on the interim basis that he have sole parental responsibility for C, and further that he be released from the undertaking given on 3 June 2004, par 2 only of that undertaking, as follows:
2.	I will not approach:
 (i) 	any teachers of the children or 
(ii) 	treating professionals of the children.
Subject to my ability to write, in appropriate terms, letters seeking clarification or further information arising from reports from such people.
9.	The mother resists the father’s application, and in those circumstances, I heard brief submissions from each as to C’s best interests.  
10.	The Full Court in Goode & Goode (2006) FLC 93-286 at [81] and [82] described the role of a trial judge hearing an application for interim parenting orders.  The two well known paragraphs I need not set out. It is sufficient to observe that the Full Court said that in making interim parenting decision, the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child but that, nonetheless, the legislative pathway set down by Parliament must be followed, as summarised in [82]. 
11.	Touching upon those briefly, I have mentioned already the father’s proposal. The mother’s proposal simply is that C continue to live with her until he turns 18 and that his wishes be respected in terms of not seeing the father in the interim.  The issues in dispute are factual issues as to whether the father did or did not assault C, or otherwise his reasons for returning to live with the mother, and more specifically the relevant section 60CC factors to determine, on the interim basis, C’s best interests.
12.	I turn immediately to those factors and a consideration of those which seem most relevant on this interim application.  Looking at the first of the primary considerations, the benefit to C of having a meaningful relationship with his parents, it appears that presently C has a meaningful relationship with the mother, and a fractured relationship with the father which, according to C’s report to Ms E, C blames upon his allegation of the father having assaulted him. At present thus, unfortunately, there is not a meaningful relationship between C and the father.  However, undoubtedly, the circumstance that C lived with the father between 2005 and May 2011 indicates that they were able to develop a strong father son relationship until that point, so that there is no reason to think that prospectively, whether or not there is an interim order for change, the father son relationship cannot be salvaged and picked up.
13.	Looking at the second of the primary considerations, the need to protect C from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence I should think that his age of nearly 18 – even though he has asserted physical violence from the father as recently as May 2011 – is such that he does not need protection because, as he did on that occasion, based on his allegation, he upped and left and moved to the other parent.
14.	In relation to the additional considerations, C has expressed very strong views to Ms E, the family report writer.  I would refer in particular to pars 11 and 15:  
11. 	[C] described his father’s parenting as “Abusive”. [C] told me that his father was physically abusive and controlling. [C] provided several examples to support his statements. [C] told me that the ‘abuse’ escalated when he started to challenge [the father’s] authority. “I got fed up with him constantly changing everything, hitting me, (and) doing all the chores”. [C] was also angry with his father for his belief that [the father] physically abused his sister, [B], when she lived with them. [C] left his father’s home approximately six months later, after an alleged physical altercation between himself and his father, which he described to me.
…
15.    [C] said that he does not want to have contact or communicate with his father.  He is angry about his father’s parenting.  Although [C] told me that he was not concerned that [the father] would perpetrate future violence or be controlling, [C] is angry about what he perceived his father has done to himself and his sister [B]. [C] further stated that there was nothing [the father] could do differently to appease him.  [C] was unable to predict whether he might wish to re-connect with his father in the future.
15.	The weight that the Court will put on children’s views is well documented in the authorities and I need not set out. It is sufficient to say that C is of an age such that if I am satisfied, even on the interim basis, that the expressed views are his own, then there is the circumstance that they should be given some considerable weight.
16.	The nature of C’s relationship with each of his parents is, I think, for today’s purposes, sufficiently touched upon.  There is not evidence, at the moment, in particular, of his relationship with B, or his half brother, L.
17.	C’s father expressed a concern that the mother does not have the willingness and ability to facilitate and encourage a close and continuing relationship between C and the father.  
18.	I have mentioned already the father’s allegation that the mother has discouraged the children from having a relationship with him and, in fact, at one stage in his submissions, described the mother’s conduct as an “abuse of process manipulating the system” and, indeed, having the skills to manipulate Dr P, consultant psychiatrist, all with the idea and intent of keeping the father from C and keeping the children from having a relationship with the father.
19.	On the other hand, he says that if C should live with him, then he would be able to facilitate C spending time with the mother, which he proposed to be on school holidays, by telephone and on weekends during school term.
20.	If C now were to move from R State High School, in South East Queensland, where he currently is in Year 11, to the Town H State High School, whilst there is no expert evidence of the effect on him of such a change, it cannot be doubted that having regard to his age and circumstances there would be considerable impact upon him, particularly as he has expressed to Ms E that he does not want to live with the father.
21.	Further, although the father expressed concern with C’s current level of educational achievement, and referred to his last report from R State High School as not being satisfactory, in that he had failed Maths and English, the mother pointed to the circumstance that at the K State High School, when C lived with the father, his school reports, in evidence, showed that he also failed Maths and English there.
22.	So, in terms of the likely effect on C of changes in his circumstances, the first matter to consider is a change from living at Town W in South East Queensland to Town H; the second is a change from living with the mother which, according to Ms E’s report, he enjoys, to the father, to whom C, unfortunately, presently has a hostile attitude; and the third, a change of school, where according to Ms E he is settled, involving also a change of peer group and so forth.
23.	Ms E said, par 13: 
13.	[C] told me that he enjoyed living with his mother and step father.  He said that he was settled at his new school and was making new friends.  [C] informed me that whilst there were “Rules”, they were not “harsh or strict” and that housework was shared. [C] also enjoyed being reconnected with extended maternal family members.
24.	It seems to me, in all of the circumstances, that if I made an order for a relocation of C to live with the father in Town H, it may be that such would not be successful at all, having regard to the background of the matter and the fact that once, already, C has, as it were, voted with his feet by leaving the father’s residence to come and live with the mother, and reconnect with the maternal side of the family and might have the propensity to do so again.  He is nearly an adult.
25.	There was no particular evidence as to practical difficulty and expense of C spending time with and communicating with the other parent in relation to living arrangements and so forth.  It needs to be said, however, that presently, with C living with the mother in South East Queensland and not wishing to and thus not spending time with the father, this aspect of the matter seems somewhat academic.
26.	If I were to order that C relocate to Town H to live with the father there would, of course, be travelling distance, that is if C stayed there, as to which the father proposed that the mother would need to contribute to air fares for C to spend time with her down here, Town H being a considerable distance from South East Queensland.
27.	C’s maturity, sex, lifestyle and background was not the subject of specific evidence or submissions beyond which I have mentioned already.
28.	The matter of the attitude to C and to the responsibilities of parenthood demonstrated by each of C’s parents I think also has been sufficiently canvassed.
29.	In relation to family violence, the mother expressed concern as to C’s report to her of physical violence by the father, documented in the affidavit material, the assault being alleged to have occurred in May 2011 and prompting C thus to leave the father to live with the mother.
30.	The father, however, denies that there was any such incident of assault, and submitted that on all of the evidence there is no history of violence, and that the matters complained about by C, and earlier B, do not constitute abuse or violence, in his view.
31.	There does not seem to be evidence of any family violence orders presently in place.
32.	Considering all of the matters, and balancing all factors, it seems to me that C’s best interests would be met by not making any interim parenting orders concerning him, and by leaving the situation as it is, with C living with the mother, thus giving expression to his own wishes that he do so.
33.	It seems to me, in essence, that if I should order, on the interim basis, that C relocate to Town H to live with the father, there would be many uprooting factors which I have already mentioned, in particular in relation to his schooling and presently settled environment, which he enjoys.
34.	I have considered very carefully that the father expressed concern as to C’s education.  However, today, in the course of the hearing, I allowed the mother to give the father some further details as to that, which I will not take into account as evidence, but I thought it was an appropriate opportunity for that to be given by way of information to the father.
35.	Now, there is no indication that any aspect of C’s life, including indeed his education, would be improved by a move at this stage.
36.	To that I would add that the case is one in which I think proper weight should be given to the expression of C’s wishes and views which, in all of the circumstances, I will accord, having regard to the strength of their expression to Ms E.
37.	I am thus persuaded, by Ms E’s family report, in particular her evaluation and assessment from discussions with C, that in C’s best interests I ought not make any interim orders, including any interim orders for C to spend time with the father in Town H, in particular having regard to the latter part of par 15 of Ms E’s report, which I already have set out.
38.	C is of sufficient age, well and truly, to contact the father, if he wishes to, to spend part or all of his school holidays with the father, if he wishes to, and to visit the father in Town H during school terms or on weekends, if he wishes to.
39.	Thus, my not making any order certainly does not have the effect that such cannot or should not occur.  It leaves open to C to do so, if he wishes.
40.	In relation to the matter of parental responsibility, the Family Law Act 1975 (Cth) provides that, even an absent an order, parents have parental responsibility for children.  I have not gone back into the history of the case far enough to know whether there is an existing final order relating to parental responsibility. I am satisfied however, based upon all of the matters canvassed, that it would not be in C’s best interests for their to be an interim order that the father have sole parental responsibility for him.
41.	In relation to the father’s application for release of par 2 of the undertaking 3 June 2004, usually undertakings, by their nature, are voluntarily given, as opposed to injunctions which are Court sanctions imposed upon people. Thus, usually, voluntary undertakings can, on notice to the Court, be retracted.
42.	However, if the Court accepts a voluntary undertaking, and on the premise of that undertaking makes orders, then the undertaking, whilst given voluntarily, is of different effect, such that if the undertaking be withdrawn, or not abided, then all orders predicated upon the undertaking cease to have effect.
43.	It is possible, however, for a person who has given a voluntary undertaking to seek to be released by the Court from it.  That is what the father seeks today in relation to par 2 of the undertaking given on 3 June 2004.
44.	I have carefully considered whether I should do that on this interim basis and I have concluded that it would not be in C’s best interests that I do so particularly because the undertaking already allows the father to communicate with C’s school teachers and any treating professional persons concerning C, in writing, to ask anything he wants to ask about any reports from such people, this aspect of the undertaking being linked with final order 5 of Warnick J’s orders made on 29 July 2004:
5.	That the mother authorise the children’s school or school’s to furnish the father (at his expense) with copies of school reports and any reports or written recommendations received by her from any person seeing the children at or through the school for medical or behavioural reasons. 
45.	In all of the circumstances, I will dismiss all interim relief sought by the father.  
46.	I will list the matter for the next available trial directions hearing before the Registrar, which is 12 September 2012 at 4.00 pm , and I will order further that if no trial proceedings have been conducted and determined by 3 February 2013, the father’s amended initiating application on that date be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 2 July 2012.

Associate:  

Date:  8 August 2012