Mother not genuine about relationship
Higgins & Benson  FamCA 161 (14 March 2016)
For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/161.html
- In essence, the factual circumstances deposed to by the mother and supported by her witnesses are these. Much of them are not in dispute. On the occasion of the beginning of the week that the child was to spend with the father in the January period of the 2015/2016 school holidays, the parties made arrangements for the handover of the child to take place at E Shopping Centre located at the eastern end of Suburb F, Region G. They made arrangements for the handover to take place there and on that day the father met the mother with the child, took the possessions that the child had with her that she had packed for the holiday back to the car whilst the child waited with the mother at the father’s request, and after the father returned and he and the child said goodbye to the mother, he took the child to the movies, apparently at a cinema located in that shopping centre.
- The mother left and went off to have coffee with her friend, Mr C, and await the company of another person who was to join them at a Suburb F cafe, not too far from the E Shopping Centre. What happened then is that the father and the child came out of the cinema and were going down the escalator from some part of the shopping centre to the other when the father told the child that the plan was for them to go to have a holiday at H Town, in a motel attached to a caravan park at which they had stayed before.
- It seemed that that did not totally accord with the child’s wishes or hopes. The father said today that there was some mixed reaction from the child on the previous occasion that they had holidays there. He principally attributed that to the fact that he had rented only one room in which there was a bed for him and another for the child. This time, though, he said, conscious of that, and aware of the need to make a different arrangement, he told the child that he had organised for her to have her own room at the motel. Nevertheless, apparently still displeased, the child kicked him in the shin and told him of her displeasure and either walked off quickly or ran off from his presence in the shopping centre. He was unable to keep up with her or keep track of her and she disappeared somewhere in the shopping centre.
- Soon thereafter, unable to locate her, he rang the mother. With some degree of fortune, she was still in the Suburb F area not far from the shopping centre and was able to return to the shopping centre immediately to help try and find the child. The father though, had in the meantime contacted the shopping centre management staff and had had messages put over the loud speak system for the child on at least three occasions in the period of 45 minutes or so that she was missing. It was not an inappropriate or unreasonable thing for him to do. As I understand the evidence, I do not think this is in dispute at all, the mother arrived, she took up with police who were also looking for the child and at some point thereafter the child was brought to her and the police by shopping centre security staff who had located her.
- Apparently, police determined after talking to the child that it was appropriate to return her to her mother’s care and not to her father’s care. The father was somewhat distressed about that in the circumstances and let his distress and unhappiness with that be known to the police officers. However, he later went back and apologised to them. The mother reports, from her side, that the child told her that her father was “mean”. I do not recall there being much more in her affidavit as to what it was that was discussed between the mother and the child about why the child chose to act in the way that she did.
- The mother simply makes a submission that the father effectively did not carry out or meet what she describes as the duty of care required of him in respect of his child and, as such, she says and makes the submission that it is not in the child’s interests to continue to be going to spend time with the father pursuant to the existing orders or indeed pursuant to any that I might make in my judgment reserved from the trial.
- As became evident in discussion between bench and the mother during the course of hearing this Application in a Case, there was no evidence before me, nor did the mother even try to assert during oral submissions to me, that she had ever sat down with the child and had a discussion with her and told her that no matter what happens when she is with her father in circumstances such as this, she should do nothing like run off from his care and put herself in any sort of risk. Nor did she, when I asked, tell me, and nor is there any evidence, that she has actually sat down with the child since and explained to the child that her actions were inappropriate, unreasonable, unsafe and not acceptable and that she should make sure that she never does it again in the future.
- Having heard the trial in this case, although I am still reserved, and having heard submissions from the Independent Children’s Lawyer, I do consider that there is merit in the view that the mother has not taken sufficient steps to ensure that behaviour like this does not occur. I will not go as far as saying that I accept the submissions made by Mr Dooley today that one might think that the whole episode was orchestrated by the mother. There has not been any cross-examination of the parties today, so I am not quite prepared to say today that I agree with such a submission and that I am satisfied that the mother orchestrated the events that happened on that day. However, as I said from the bench, it seems remarkably coincidental that it happened on a day when the mother remained in very close proximity to the shopping centre where the events actually happened for the entire duration of what must have been a couple of hours during which the father and the child watched the entirety of a movie after she was handed into the father’s care.
- In any event, I am, on these interim hearings, still mandated to consider matters having regard to the best interest of the child as being the paramount consideration. The mother asserted not once, not twice, but several times during the course of her relatively short submissions that the circumstances are “totally unacceptable”. To that extent, I agree with her. It is totally unacceptable for a 12 year old child to be running away from her father in circumstances such as this case. To the extent that she is in any way being encouraged by her mother to do so, or to the extent that she is in any way not being discouraged by her mother from doing so, it is totally unacceptable.
- As I said from the bench when I was hearing the mother, having heard the trial in this case and having seen and heard the parties before me on several occasions now, I am quite satisfied that the mother really is not genuine when she says that she wants her daughter to enjoy and have a meaningful relationship with the father. From time to time she lapses into saying things about the father without realising that her words convey to me that there is a deep-seated feeling on her part that she really would rather the father disappear from her life and more particularly the life of her daughter. The damage that outcome would do to her daughter is obviously something beyond the immediate comprehension or understanding of the mother. About that, I can only say it is extremely regrettable and that hopefully one day she will come to realise the error of her ways in that regard.
- In short, I am simply not persuaded by the mother’s evidence or the submission she makes that it is in the child’s best interests to discharge the requirement that she spends time with her father, and I will not do that. I simply dismiss the mother’s application to discharge the existing orders pending the delivery of my final judgment.