Absconding child appeal dismissed

Absconding child appeal dismissed

WGOC & GH and Anor

Summary: Where the father appeals against final parenting orders according the mother sole parental responsibility of one of the children – Where the child previously lived with the father but absconded and refused to return – Where the father refused to consent to the child attending a new school – Where the child had not attended school for a period for two years as a result – Where the father alleged the trial judge failed to consider the best interests of the child and properly apply the relevant provisions – Where it was found the trial judge appropriately applied the relevant provisions of the Family Law Act 1975 (Cth) – Where the orders were appropriate in the circumstances – Appeal dismissed – Where the appeal has failed and the father and mother are self-represented – No order as to costs.

The Child Y Absconding

24. As previously noted, Y ran away from the father’s home in November 2013. Y has consistently refused to remain in his father’s care since that time, despite a number of interventions such as involvement by the police, placing Y in foster care and Y being returned to the father by the mother. At [27] the trial judge sets out in detail the events of November 2013, and the actions of Y thereafter. It is clear that Y is absolutely determined not to return to his father’s care.
25. The father’s position is that this is a result of the mother’s intervention, and her apparent encouragement of Y to run away (at [28]). The mother in response accepts she did send messages and emails to Y about his time with the father, but denies she encouraged him to run away. The father brought such communication to an end, by changing Y’s password. The mother then created a new account for Y to contact her while he was at school. The trial judge accepted the mother’s evidence, finding this was not an action to undermine the father, but rather it was “a response to [Y’s] request for an opportunity to communicate with her more extensively than was permitted in the father’s household” (at [31]).

Views of the children

26. The trial judge referred to Y’s interview with the Family Report Writer, noting “he wanted nothing to do with his father” and would “not hesitate to [run away] again if the Court forced him to return” (at [40]). This view was supported by evidence given by the mother at the trial, noting Y had plans to run away again if someone came to get him. The Family Report Writer recorded Y had very negative views of his father, describing him as “angry and aggressive all the time” and was never happy at being “sent” to live with his father pursuant to the consent orders made in December 2011 (at [42]).
27. It was noted that Y had expressed suicidal ideation and self-harm (at [50]). Y’s account of living with the father was entirely negative, and it was reported he considered killing or hurting his father. The trial judge rejected any submission made by the father that the mother was complicit in or encouraging of Y’s negative views.
28. Her Honour found:
    43. I accept Mr [C’s] evidence that the fundamental concern is that [Y] is emphatically rejecting of his father. I further accept his evidence to the effect that [Y’s] demonstration of this rejection is not limited to words but has found expression in his history of absconding from his father’s care.
    44. I agree with Mr [C’s] opinion to the effect that, given [Y’s] age and developmental stage, it is difficult to see how this rejection is to be overcome. I further accept his evidence that, if an adolescent such as [Y] runs away from the parent’s home, there is a very real possibility he may end up on the streets and at risk.
29. Her Honour concluded that Y had formed these views on his own, and such views have been strongly held at least since November 2013. Thus, her Honour found that these views should be “accorded considerable weight”..
30. Although, as noted above, the Family Report Writer found the father had a genuine interest in the welfare of Y, he did not make a final recommendation as to the child’s living arrangements.
31. It was recorded that Y missed his brother X, but otherwise had no interest in his other half-siblings. Her Honour found that Y had a close relationship with his mother, and a “significantly fractured relationship with his father”.

Likely effect on the children of any changes in circumstances

32. It was accepted by the trial judge that it was “much more likely than not – and almost inevitable” that Y would run away again if placed in his father’s care. In her interview with the Family Report Writer, the maternal grandmother agreed with this proposition. If Y were ordered to return to his father’s care, it was likely that force would be required to effect this change. The trial judge concluded the she held “grave concerns that attempts to force him to do so will result in him absconding from his mother’s care also” (at [71]).

Parental capacity and attitude

33. It was again noted that one of the father’s central issues was that Y was performing better in school while in his care. In assessing the father’s parental capacity, her Honour noted:
    74. The father’s approach to [Y’s] schooling provides a clear demonstration of his complete unwillingness or inability to yield in any way when circumstances are not as he considers they should be. It undermines completely his professed concern about the impact of an asserted lack of educational opportunities for [Y] if he remains living with his mother.
    75. The father’s comment to Mr [C], when challenged about his decision to refuse to agree to [Y’s] enrolment at a school other than the one he attended before he ran away, provides a clear basis for Mr [C’s] assessment of him as a parent who believes his views are correct. I consider that his determination to continue to refuse to yield to the idea that [Y] attend at a school other than the one he had chosen is a clear demonstration of an inability to separate matters in the child’s best interests from his own determination to impose his will.

(Original emphasis)

34. As to the mother, the trial judge found that she was supportive of Y returning to school and would enrol him if orders permitted her to do so. While the Family Report Writer found there was “some ambivalence in the mother’s appreciation of her role with [Y]” her Honour concluded that the mother’s method of communicating “was in stark contrast” to the father. The trial judge found the mother facilitated counselling sessions with Y to assist with his absconding. It was also found the mother attempted to persuade Y to return to the father, and told Y initially that she could not take him into her care as it was in breach of the orders.
35. While some criticisms were made of the mother, it was ultimately concluded that such criticisms did not persuade the trial judge to force Y to resume living with his father.

Further proceedings

36. The trial judge noted that the parents had been unable to co-parent in any meaningful way (at [87]) and found that they should be “freed from the obligation to seek the views of the other” because it adds little benefit to the children and would ultimately result in further litigation.

Parental dynamics and responsibility

37. The Family Report Writer found, and it was accepted by the trial judge, that the parents had little or no communication. Her Honour noted that this strained dynamic was evident again in the father’s proposal that Y lives with the maternal grandmother, even though the maternal grandmother and mother have almost no relationship.
38. Neither parent sought an order for equal shared parental responsibility. The ICL also opposed such an order. Her Honour noted the presumption in s 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) and that it must be applied unless the court is satisfied of the matters in s 61DA(2). Ultimately, the trial judge found that the presumption was rebutted:

94. Given the findings outlined above, conclusions other than that:

a) there is absolutely no prospect at all that these parents are likely to be able to communicate and co-operate sufficiently to make decisions jointly about major long terms issues relating to the children; and

b) these parents are incapable of negotiating matters about long term issues relating to the children and incapable of making decisions about such issues jointly; and

c) the relationship between these parents is such that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them,

would be perverse.

Opinion of the Family Report Writer

39. The trial judge accepted the opinion of the Family Report Writer that X’s best interests would be met by living with the father, and spending time with the mother and Y.
40. Her Honour then concluded that Y’s views should be accorded great weight, as he had the experience of living with his father already and it was not a positive one for him. Y had consistently expressed his intention to run away again if he was ordered to live with the father. It was accepted that Y would be happier living with the mother and was able to enrol into school. Her Honour was “easily persuaded” that it would be in Y’s best interests to remain living with the mother.
41. The trial judge considered counselling would be appropriate for Y, and with the mother’s support to facilitate a more neutral counsellor than the one proposed by the father, it was deemed to be in Y’s best interests to make an order for counselling.

Contravention

42. The contravention application filed by the father on 5 February 2014 was dismissed. The father alleged a number of actions by the mother contravened the December 2011 consent orders, including that she had failed to return Y once he ran away, that she withheld the child and that she did not encourage the child to spend time with the father. The mother accepted that she had contravened the orders, however the trial judge found the mother had a reasonable excuse.
43. The mother’s evidence about her attempts to return Y were accepted by her Honour:
    124. In so far as the period from 7 November 2013 until 10 January 2014 – when she took [Y] to the [M] Hospital and contacted the Department – is concerned, I accept the mother’s evidence that [Y] would not return to live with the father and that she was concerned, if she forced him to do so, he would run away from her also. I further accept that she attempted to persuade him to resume contact with the father and that she provided the father with an email address by which he could contact [Y]. I accept she encouraged [Y] to contact a telephone counselling service and that her attempts to obtain supportive therapy for him via a mental health plan were stymied because of the existence of the order according the father sole parental responsibility for [Y]. I accept that she convinced him to go to the [M] Hospital by telling him that she could not continue to fail to comply with the order and that he should speak with someone from the Department.
    125. I accept she told [Y] he needed to speak to his father and that [Y] told her he could not and did not want to. I also accept she facilitated [Y] speaking with his paternal grandmother, a person with whom he liked to speak. I also accept the mother’s assessment that attempts to ‘make’ [Y] have a relationship with his father has not and will not work into the future.
44. The trial judge found that the mother had a reasonable excuse for contravening the orders, as Y refused to return to his father’s care. It is noteworthy that the mother’s evidence about her attempts to return Y to the father were not challenged by the father (at [129] of the Reasons). The trial judge further found that the mother appropriately permitted Y to remain in her care because “she believed on reasonable grounds that her actions were necessary to protect his health and safety”.
45. The contravention application was therefore dismissed. The father’s application for costs of the proceedings was also dismissed, with her Honour finding the circumstances were not ones justifying a departure from s 117(1) of the Act.

CONCLUSION AND COSTS

89. For the reasons discussed, it is clear that the appeal must fail, there being no error demonstrated.
90. At the conclusion of the hearing of the appeal, the parties were asked for submissions in relation to costs. The father sought a costs certificate in the event the appeal succeeds and a re-hearing is ordered. The ICL made no submission on the issue of costs.
91. The mother represented herself. In these circumstances, although the appeal has been unsuccessful, it is appropriate that there be no order for costs.