Father Refused Sole Parental Responsibility for Absconding with Child on Appeal

In the case of WGOC & GH and Anor [2016] FamCAFC 199 (14 October 2016), the “the father” known as WGOC appealed orders set down by Justice Hogan in May 2015 regarding access to one of his children. The father and “the mother” (GH) had two children. X was born in 1998 and Y was born in 2000. The trial focused on the troubled relationship between the father and Y. Among other problems, Y had not attended school for two years as the father wished to control the choice of school. Y sought to avoid the father and eventually absconded from the father’s house to return to live with the mother.

The father appealed Justice Hogan’s orders that X live with the father and Y live with the mother, with both parents having sole parental responsibility for each respective child. He believed the judge erred in allowing the mother to have sole parental responsibility of Y.

Background

The mother and the father began a relationship in 1991 and were married in 1998. They separated the following year. Both parties remarried to others and had children with their respective spouses. Following separation, X and Y primarily lived with the mother. At trial in 2005, Justice Barry made final parenting orders providing that the children live with the mother and see the father on alternate weekends and for half of the school holidays. Later in 2011, Coates FM found otherwise, providing final parenting orders that the children live with the father who would have sole parental responsibility. The children would be permitted to see the mother on alternate weekends and for half of the school holidays.

The event that led to the proceedings before Justice Hogan was the problematic relationship between Y and the father, and in particular, an incident in which Y ran away from the father’s home to live with the mother. This incident involved police returning Y back to the father, time spent in foster care by Y, and the mother’s own attempts to return Y to the father. During this time, Y was not attending school and had not done so since November 2013.

X continued to live with the father, though the father stopped allowing X to visit the mother having fears that she would manipulate X into returning to stay with her. At issue before Justices May, Strickland and Ryan was, broadly, whether Judge Hogan erred in ordering Y to live with the mother. There were nine grounds of appeal which will be discussed.

Decision

Grounds 1 and 5

The father argued that the Court at first instance failed to consider the best interests of the child and properly apply the relevant provisions. The father relied predominantly on Judge Hogan’s statement that, “there is no suggestion that the children have been subjected to harm from being exposed to family violence, neglect or physical abuse.”

The Full Court found that where behavior was so called, “inconsequential” or “long past” it would not likely cause psychological harm and it would be reasonable to predict that there would be no harm in the future. The father relied upon an isolated incident of family violence to support his case for grounds 1 and 5 in which X but not Y was present. During that incident, the father alleged that the mother assaulted him. The mother insisted that the bruises on the father were as a result of being kicked at by X. Despite their contrary statements, the father was able to obtain a Domestic Violence Order against the mother for this incident.

The father further contended that Y had been subject to abuse. The Full Court considered the father’s evidence that the mother caused Y to suffer “serious psychological harm” due to parental conflict and psychologically abusive behavior.

The Full Court believed that as the mother was provided access to both children on alternate weekends and for half the school holidays under the 2011 consent orders, there was an implicit acknowledgment that she was not a harm to the children from the father.

Finally, the father relied upon explicit social media posts made by the mother as evidence of psychological abuse. The sexualized content of the messages that were visible to her children was part of the father’s case of psychological abuse. The Full Court did not accept that in totality the mother would likely cause harm to Y in the future and dismissed grounds 1 and 5.

Grounds 2, 3 and 4

These grounds related to Just ice Hogan’s argued failure to consider the mother’s extensive history of non-compliance with previous orders, as well as the failure to consider all the father’s evidence while relying heavily on the evidence of the mother.

Their Honour’s spared little time dismissing these grounds of appeal, particularly the first, stating that the trial judge had extensively addressed the mother’s non-compliance and adequately considered it. They found that the trial judge had considered all of the father’s evidence, specifying that the history of parenting arrangements, the mother’s coercion of Y, and the mother’s messages to Y were all understood and taken into consideration by her Honour. Ultimately, the Full Court found that the trial judge had relied on both the evidence of the mother and the father and rejected grounds 2, 3 and 4.

Ground 6

The father insisted that the her Honour erred in failing to make orders that would support a relationship between himself and Y. The Full Court recognised that the decision made at first instance largely turned on the evidence of Y, namely that he had a very negative opinion of his father, that he reported suicidal ideation and that he had thoughts of harming his father. The Full Court noted that the father was to spend holiday periods with Y and further, that Y would engage in counselling with a view to repairing his relationship with his father. The psychologist or counsellor would be appointed by the Independent Children’s Lawyer. The Full Court accepted that Y’s previous counseling engagement had been harmful as the counsellor had taken to the father’s version of events and not adequately considered the difficulties the child was having with the relationship.

Grounds 7 to 9

Under Grounds 7-9, the father asserted that the Independent Children’s Lawyer (ICL) and the Family Report Writer did not comply with their duties. While the father asserted that the ICL did not properly cross-examine the mother, he did not provide enough evidence to suggest why this was the case. The Full Court was not satisfied he brought sufficient evidence to fulfill these grounds and believed that both parties adequately discharged their duties.

Conclusion

In concluding, their Honours, May, Strickland and Ryan found that an impasse had developed between Y and the father. Y would not tolerate living with his father, and his father would not send Y to a different school. The fact that Y had missed two years of schooling was very troubling for their Honours. The Full Court supported the trial judge on all grounds and dismissed the appeal.

As the mother was unrepresented, their Honours did not make an order for costs despite the fact that the application was unsuccessful.

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