Absconding child returned to parent
Carter & Geary  FamCA 90 (8 February 2016)
Absconding child returned to parent:
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/90.html
- On 10 November 2015, this Court made final parenting orders in respect of the only child of the parties. The child was born in 2003 and she is now 12 years of age.
- The litigation between the parties was fixed for final trial of their parenting applications in November 2015. The mother disengaged from the litigation about one month before by failing to comply with procedural orders ensuring her readiness for trial, even though she was then the residential parent. She filed a Notice of Discontinuance on 7 October 2015.
- On the first day of trial in November 2015, the mother’s solicitor informed the court that she would not contest the proceedings and would not require the publication of any reasons for the parenting orders made in her absence. She did so in full knowledge that both the father and Independent Children’s Lawyer were pursuing final orders that would reverse the child’s residence and have her live with the father.
- Final parenting orders were therefore made on 10 November 2015, providing for the child to live with the father and for the father to have sole parental responsibility for her. The orders provided for the child to spend time and communicate with the mother on a graduating basis, following an initial embargo period of three months.
- Significantly, the Court noted the agreement between the father and Independent Children’s Lawyer that the father would engage a therapist to support the child and both parents in the transition of the child’s care arrangements. It is uncontroversial the father did retain the therapist within a week or so of the child moving into his residential care. He and the child participated in the therapy but, despite the father’s requests, the mother has not done so.
- In late January 2016, the child went to the mother’s home and has since refused to return to the father’s home. She professes a willingness to visit the father, but only on condition that he consents to her future residence with the mother. The mother is acquiescent to the child’s position, so the father has been at a standoff with the mother and the child for about the last 10 days.
- Those facts brought about two reactions from the parties. First, the father filed an Application in a Case on 2 February 2016, seeking a recovery order in respect of the child. Secondly, the mother filed a document entitled Amended Initiating Application on 4 February 2016, through which she now wishes to re-contest the final parenting orders made in November 2015.
- However, of more immediate relevance, is the mother’s application to suspend the parenting orders made in November 2015, replace them with new interim orders providing for the child to live with her and spend time with the father, and to vacate the trial fixed for 22 February 2016 to determine the parties’ competing property settlement applications. Although the mother’s application to vacate the property settlement trial was supplementary to her application for amended interim parenting orders, it was made clear in submissions that her application to vacate the upcoming trial was only pressed if her interim parenting application failed.
- I am not satisfied, having regard to the evidence that has been adduced, that the presumption of equal shared parental responsibility should apply. Final orders were made in November 2015 allocating parental responsibility for the child exclusively to the father. I see no reason for any change. It would not be appropriate in the circumstances for the presumption of equal shared parental responsibility to be applied (s 61DA(3)). The parties clearly remain at issue about the final future parenting arrangements for the child, and neither currently proposes that equal shared parental responsibility be allocated for her, either on an interim or final basis.
- I turn therefore to the considerations set out within s 60CC of the Act.
- First, there was no dispute that the child has a meaningful relationship with both parents, from which she does, or is at least liable to, derive benefit
(s 60CC(2)(a)). The father recognises the importance of the mother in the child’s life, as does the mother recognise the importance of the father in the child’s life. The mother’s proposal for change still envisages that the child would spend four nights in each fortnight with the father. It follows that each party regards the other as a sufficiently competent parent to play a significant future role in the child’s life.
- No submission was made by either party about the engagement of s 60CC(2)(b) in these proceedings.
- I therefore move to consider s 60CC(3) of the Act, but very few of the factors prescribed by that provision were engaged by the parties’ submissions.
- The most important of those to the mother is the child’s clear wishes. There is no doubt the child clearly expresses her wish directly to both parents to live with the mother and to spend time with the father. However, those clear wishes need to be seen in context. At 12 years of age, she barely has the maturity to understand the mid to long term implications of her current desire.
- The evidence of the Family Consultant was to the following effect:
- <li “=””>(a) The case was a “really good example of the parental alienation process” (at  of the Family Report). The Family Consultant considered the mother’s conduct tended to alienate the child from the father. While the child had not yet totally rejected the father at the time of that observation, she was on the way to doing so;
<li “=””>(b) The counsellor to whom the mother had taken the child was apparently “illequipped” to assist the child overcome the alienation process
- (at  of the Family Report);<li “=””>(c) If the child remained living with the mother “the projected outcome for [her] is for a further deterioration in her relationship with her father” (at  of the Family Report);<li “=””>(d) If the child was moved to live with the father “it is highly likely that the parenting arrangement will fail and the matter will be back before the Court in due course” (at  of the Family Report); and<li “=””>(e) The “only option left to explore” was one in which “the child is subjected to a change of residence to that of the father, in combination with support and counselling from a suitably qualified and experienced therapist” (at  of the Family Report).
- The father did engage a “suitably qualified and experienced therapist” very shortly after the child moved to live with him, pursuant to the orders made in November 2015. The first therapy session attended by both the father and the child, occurred on 24 November 2015. The father has since followed the advice of that therapist. In the knowledge the child might abscond from the father, the therapist informed the father:
[The child] must realise that the law and adults must be respected and that a therapeutic process must be included. The best result would be if [the mother] was “on board” with such a therapeutic process. [The child] must realise how complex and serious Court decisions are and that she shouldn’t end up getting the message that she can basically direct the result. This would be potentially very negative for her future relationships and views on how conflicts are resolved.
- As foreseen by the Family Consultant (at  of the Family Report), the new parenting regime did fail. The child absconded from the father and the dispute is back before the Court.
- The mother’s attempt to re-contest the proceedings is seemingly premised on an asserted change of circumstances, namely, that the child has absconded from the father and now unequivocally expresses her clear desire to live with the mother and, since she has the capacity to continue absconding, the Court and the parties should simply submit to her will.
- I do not accept that position to be correct. Such circumstances were not only foreseen but were predicted when the decision was made in November 2015 to reverse the child’s residence. The fulfilment of the prediction of the child’s resistance to the new regime is not a reason to now abandon it.
- The child’s flippancy about the situation is evident from her responses to the father’s requests for her to return. She has said to him, for example:
You are threatening me. You have a choice about recovery orders and there would only be a $1000 fine anyway. My ICL told me this. Goodbye.
I will no longer come over, and since I am in high school now things will now go my way.
- It was contended by the mother that re-structure of the parenting arrangements would accord with what both parents consider to be a regime that best meets the child’s interests. It is common ground the father floated a proposal in December 2015 for the child to live with the mother for longer than she lived with him in fortnightly cycles. However, such a tentative proposal was made and tried on the explicit advice of the child’s therapist. The father told the mother so in an email he sent to her on 16 December 2015. He stressed to the mother this was only an informal trial and it was not intended to sweep away the orders made in November 2015. He also stressed the importance of the mother’s participation in the family therapy.
- Importantly, the father regards the trial arrangement to have failed for two reasons. First, the mother did not participate in the child’s therapy. She did not expressly refuse to do so, but she has not done so. Her failure to participate speaks more loudly than her silence. Secondly, the child has not spent time with the father since absconding to the mother. She refuses to do so until he first consents to her permanent residence with the mother and the mother seemingly supports the child’s position. The father, understandably, does not want to broker an agreement when his hands are tied. It would not then be a genuine agreement; only a result procured by importunity.
- Nothing has occurred that was not foreseen and taken into account when the final parenting orders were made in November 2015. It may be, as the mother contends, that if the child is recovered by the father she will abscond again. That simply brings consideration back to the weight that should be reposed in the child’s views. For reasons already given, her views are influential but not determinative.
- The orders made in November 2015 should prevail. There is no valid basis upon which they should be disturbed, at least on an interim basis. The father’s application for a recovery order will therefore be granted and the mother’s application to vary the existing parenting order on an interim basis will also therefore be dismissed.
- Of course, the dismissal of the mother’s interim proposal is not a dismissal of her final parenting proposal. Absent any future application to the contrary, it will proceed to trial in due course. As it progresses towards final trial, procedural orders will likely be made re-appointing the former Independent Children’s Lawyer and soliciting an updated Family Report.