Ample and Kingston

FAMILY COURT OF AUSTRALIA

AMPLE & KINGSTON

[2007] FamCA 1369

FAMILY LAW – CHILDREN – Final parenting orders – Costs

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Rice & Asplund (1979) FLC 90-725
B & B: Family Law Reform Act (1997) FLC 92-755
KB & TC [2005] FamCA 458

APPLICANT:

Mr Ample

RESPONDENT:

Ms Kingston

INDEPENDENT CHILDREN’S LAWYER:

Forster & Associates

FILE NUMBER:

MLF

6959

2003

DATE DELIVERED:

21 August 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

21 August 2007

REPRESENTATION

THE APPLICANT:

No Appearance

COUNSEL FOR THE RESPONDENT:

Mr Guest

SOLICITOR FOR THE RESPONDENT:

Ian Guest & Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms J.P. Spehr

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Forster & Associates

Orders

That pursuant to section 69VA of the Family Law Act 1975 the father be and is hereby declared to be the father of S born … August 2001 and L born … October 2002.
That the mother be and is hereby authorised to apply to the Registrar of Births, Deaths and Marriages to change the birth certificate of the child registered as L born … October 2002, to include the details of the father, Mr Ample, on the child’s birth certificate, notwithstanding that the consent of the father has not been obtained.
That the children S born … August 2001 and L born … October 2002 live with the mother and the mother have sole responsibility for major long term decisions affecting the children.
That the father be entitled to communicate with the children as follows:-
(a)By letters and cards forwarded by the father to the children;
(b)By sending photographs to the children;
(c)By telephone each Saturday at 12 midday when the father shall place a telephone call to the mother’s landline home telephone and the children will be afforded an opportunity to speak with the father privately and for a reasonable time.
That the mother pass onto the children any letters cards or photographs sent be the father or on his behalf to the children and not cause, permit of suffer the disposal or destruction of any such letters, cards and photographs.
That the order for telephone communication provided for in paragraph 4(c) hereof be suspended in the event that following service of a sealed copy of this Order upon the father the father fails to place a telephone call to the children on the prescribed day and time for three (3) consecutive weeks and in the event of a suspension in accordance with this provision, the father then communicate with the children by telephone as may be agreed between himself and the mother.
That the mother and the father each keep the other advised of his or her residential address and contact telephone number and any changes thereto.
That until further order the father is not remove the children or either of them from the state of Tasmania without the prior written consent of the mother or further order of the Court.
That the father his servants or agents shall not remove the children S born … August 2001 and L born … October 2002 from the Commonwealth of Australia without the prior written consent of the mother or further order of the Court and it is requested that all officers of the Australian Federal Police give effect to this order.
That the Australian Federal Police place the name of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further Order of the Court.
That the father pay to the mother the reasonable cost of the attendance of herself, her witness Mr W and her counsel fixed in the sum of $1550.00 such cost to be paid direct to the solicitors for the mother within 30 days of service upon him of a sealed copy of this Order.
That the solicitors for the mother be responsible for effecting personal service of a sealed copy of this Order upon the father and after having done so file evidence with the Court of compliance with this Order.
That I reserve the question of the father’s liability for payment of mother’s other legal costs and expenses associated with these proceedings.
That I reserve liberty to the father to make application within 30 days of service of this Order upon him to vary or set aside or discharge paragraph 1 of this Order.
That the court certifies that it was reasonable for the mother and the independent children’s lawyer to employ an advocate.
That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the independent children’s lawyer.
That the order requesting the appointment of an independent children’s lawyer be discharged.
That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

IT IS NOTED that publication of this judgment under the pseudonym Ample & Kingston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6959 of 2003

MR AMPLE

Applicant

And

MS KINGSTON

Respondent

REASONS FOR JUDGMENT

(ex tempore)

These proceedings concern the children S born in August 2001 ("[S]") and L born in October 2002 ("[L]").
The matter is listed for final determination before me today estimated to take two days. Mr Guest appears as counsel for the mother. The applicant mother attends court together with her witness, Mr W. The independent children's lawyer is represented by Ms Spehr of counsel. The father has failed to appear. He was called prior to 10 am and then at approximately 10:05am at the door of the court and there was no response on either occasion.
I note that a pre-trial conference was convened in this matter on 20 July 2007 by Registrar Mestrovic. On that day the applicant father appeared in person, Mr Guest appeared on behalf of the mother and Mr Hall appeared for the independent children's lawyer. The matter was allocated today as the first day of hearing. Accordingly, I am satisfied that the father has been accorded procedural fairness and has notice of today's hearing date.
It was also ordered at the trial notice listing that 14 days prior to today the parties file and exchange proposed minutes of orders sought. It appears that neither party complied with that order although by facsimile dated 17 August 2007 the mother did provide minutes of orders which she sought which I now mark exhibit “M1”. The father has not provided any minutes of orders which he seeks.
It was also ordered at the pre-trial conference that:
On or before 11 August 2007 the father file and serve a trial document and in the even that the fails to comply with this direction the mother be at liberty to proceed on an undefended basis subject to the trial judge's discretion.
It is in that context that the mother now seeks to proceed with this matter on a final unopposed basis. She is supported by the independent children's lawyer in this respect.
As indicated I am satisfied that the father has notice of these proceedings. I am also satisfied that it is in the best interests of the children with whom the proceedings are concerned that there be some finality. There has been no communication of which I am aware by the father to either the mother, the mother's practitioner or the independent children's lawyer or indeed the court to explain his non-attendance today.
Counsel for the mother has indicated that he has been in contact with solicitors who previously acted for the father, John Snodgrass and Associates, having provided that firm with the minutes of orders sought by the mother as recently as 17 August 2007. The independent children's lawyer advises that yesterday the solicitor who previously had conduct of the matter on behalf of the father at John Snodgrass and Associates had no instructions to appear today and that firm does not act for the father. Indeed, a Notice of Ceasing to Act was filed by John Snodgrass and Associates on 16 May 2006.
I am satisfied that it is appropriate to deal with the matter on an unopposed and final basis today.
The proceedings were instituted by the father by an application filed on 29 August 2005. He does not attend to prosecute that application. However,

I note that what he sought was that the two children reside with him and he has responsibility for their day to day care, welfare and development and the mother have contact with the children as agreed between the parties.
The mother's response to that application and final orders she seeks are set out in her response to an application for final orders filed on 31 January 2006. In that document she seeks that the children reside with her and she have sole responsibility for their day to day care, welfare and development and the father's contact with the children be reserved.
Today the mother seeks orders somewhat at variance with her formal response. She seeks orders in the terms of paragraphs 1, 3(a) and (b), and 6 of exhibit “M1”. Essentially that is a declaration that the father is the father of the child L and that all necessary things be done to have him registered as L's father on her birth certificate, that the mother has sole responsibility for major long-term decisions affecting the children and that they reside with her. The mother also seeks that the father spend time and communicate with the children by letters and cards sent by the father to the children and by telephone each Saturday at 12 noon. Otherwise she seeks an order that the father not remove the children from the State of Victoria or the Commonwealth of Australia without the prior consent of the mother or order of the court.
The relief sought in relation to parentage of L is not one contemplated in the mother's response. It was, however, foreshadowed in the affidavit of the mother which was sworn on 13 July 2007, and I am advised by Mr Guest from the bar table, sent to the father at his residential address at T.
In paragraph 17 of that affidavit the mother deposes as follows:
Even though […] (the father) has admitted in his previous affidavits that he is the father of [L] his name does not appear on her birth certificate which therefore affects the amount of Centrelink benefits that I am entitled to receive for her and will also affect any future child support that […] (the father) is liable to pay for her. I therefore seek a declaration that [the father] be declared the father of [L] and he be directed to sign all documents to have his name included on the birth certificate.
I am satisfied that the description in the affidavit would be sufficient notice to the father of the application which the mother now makes for a declaration of paternity. I, however, have no direct evidence of the fact that the father did receive correspondence at his address in T, even if I accept, as I am inclined to do, the statement from the bar table by Mr Guest that it was sent to him. In the circumstances, it seems to me appropriate to make the order but to provide the father with a window of 30 days from service on him of these orders in which to make application to vary or set aside that part of the order.
The independent children's lawyer supports all of the orders sought by the mother but seeks an additional order which would entitle the father to send photographs to the children, presumably of himself or members of his family, and for the mother to permit the children to retain those photographs.
It is fair to say that application has its genesis in a part of the family consultant's report in which she discusses the fact that neither child seemed to be able to recall what the father looked like. At paragraph 30 of the report the family consultant says:
Neither seemed to be able to recall what their father looked like. They said that they used to have a photo but, "mum didn't like it, we didn't want it," and they said their mother had thrown it out.
It is not conceded by the mother that she disposed of the photograph. I note that in paragraph 18 of the family report the family consultant has noted the following:
When asked, [the mother] said there were no photos of [the father] on display in the home, although she still has one photo which she keeps in a drawer.
As I understand it the mother does not oppose the father sending photographs from time to time to the children.
Since the parties filed their applications the Family Law Act 1975 (Cth) (“the Act”) has been significantly amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”), the provisions of which came into operation on 1 July 2006. Certain procedural elements of the amending legislation do not apply to this case as it was commenced before

1 July 2006
. The new law is complex so I will set out the relevant provisions in this judgment.
The applicant relies on the following evidence: her affidavit sworn 13 July 2007, the affidavit of Mr W sworn 13 July 2007. The father swore an affidavit on 5 August 2005. That is the only evidence that I have from him. Even though he is not here to prosecute his application I have nonetheless read the affidavit and note the matters he has deposed to. However, without him attending to prosecute his case or have his evidence tested by way of cross examination it is difficult for me to accord much weight to his evidence.
As part of the court's preparation of this matter for trial a family report was ordered and in due course prepared by Ms D, family consultant. It is dated 28 March 2007 and I receive the report into evidence. The report was conducted in both Tasmania and Victoria on 13 March 2007 interviewed the mother and the two children and briefly, Mr W, in Launceston. On 20 March 2007 she interviewed the father in the Melbourne registry. The father was not observed with the children for the purpose of the report.
The report appears to be a well-reasoned assessment of the parents and the children. It is not challenged by the mother as to its contents or recommendations and neither is it challenged by the independent children's lawyer. In the event that Ms D had been required for cross examination by any party the court had made arrangements for her to give evidence from Tasmania by way of video-link for the entirety of this afternoon and tomorrow, if need be. However, nobody requires her for cross examination.
I will accord the reported observations and opinion of Ms D weight in my determination of the matter.
The mother and her witness, Mr W, attended court but were not required by the independent children's lawyer for cross examination.
Pursuant to an order made on 25 January 2006, Jean Forster was appointed as the independent children’s lawyer for the children S and L within the meaning of Division 10 of Part VII of the Act. As such, her role is to form an independent view, based on available evidence, of what is in S and L’s best interests and then act in these proceedings in what she believes to be the best interests of S and L.[1] She is not a legal representative retained by S and L and she is not bound by any instructions from S and L.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by S and L are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
In assessing the evidence I apply the balance of probabilities as the standard of proof. However, as I have already indicated the mother's evidence in this matter is not under challenge.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to S and L, I must regard S and L best interests as the paramount consideration.
Subject to the best interests of the child being the paramount consideration,

s 60B sets out the aims and principles of Part VII. The section provides the context within which the relevant best interests factors listed in s 60CC are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case. Where there are no countervailing factors or considerations, the s 60B objects and underlying principles may be decisive.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-
(a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The objects may be regarded as the core values of the legislation. Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:-
(a)       children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)      parents should agree about the future parenting of their children; and
(e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.

Determining the child’s best interests

In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in

s 60CC of the Act.

The primary considerations

The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

This is a case where both primary considerations are relevant.

The benefit of a meaningful relationship as a primary consideration

I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the father and S and L by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of S and L parents is going to be beneficial and of advantage to S and L into the future.
The mother does not contend that the father should not have a relationship with the children. In fact, she deposes that the children should have a relationship with and know their father. The difficulty in this case is how a meaningful or other relationship can be achieved. In my view the matter is fairly succinctly described by the family counsellor in the family report when she says, at paragraph 39:
At present the mother's tight financial circumstances and the father's concern about being arrested (if he re-enters Tasmania) appear to have supported their separation and possibly enabled the children and their mother to stay safe.
This is a case where there is some concern expressed by the family consultant as to the preparedness of the mother to re-enter a relationship with the father. Is it not the case that the mother is saying that the children should not have a relationship with their father, in fact, a perceived danger for the children is that the mother may also have a relationship with the father.
It is also obvious from the minutes of orders which were originally sought by the mother and communicated by the facsimile sent on 17 August 2007 that she was contemplating supervised time between the children and the father in Tasmania using services of a contact centre. That is also telling of her acceptance of the fact that a meaningful relationship between the children and the father would be of benefit to the children.
However, as the father does not present to prosecute his application today I will not be making any orders which prescribe the circumstances in which that meaningful relationship may occur on a face to face basis.

Protection from harm – as a primary consideration

The second of the primary considerations mirrors s 60B(b) of the Act and recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
The term, ‘abuse’ is narrowly defined in s 4 of the Act as ‘an assault, including a sexual assault, of the child’[5] or as the involvement of the child in a sexual activity by a person, where the child is used either directly or indirectly as a sexual object and where there is an unequal balance of power between the child and that person.[6].
[5] s 4(a) Family Law Act 1975 (Cth).
[6] s 4(b) Family Law Act 1975 (Cth).
‘Family violence’, however, is given a broader definition as actual or threatened conduct toward another person, their family or their property, which causes reasonable fear or apprehension for their safety and wellbeing.[7] A notation to the definition in the legislation adds that the standard for such reasonable fear or apprehension is that of the reasonable person in those same circumstances. ‘Neglect’ is not defined in the Act.
[7] s 4 Family Law Act 1975 (Cth).
This factor also requires a prospective evaluation. As such, I must assess the future risk of exposure by S and L to physical or psychological harm and formulate orders which protect them from that harm.
Family violence is an overwhelming concern and consideration in this case. The mother's affidavit details assaults on her by the father that are at the most serious end of the spectrum of assaults. That is her affidavit sworn on 13 July 2007 as well as the affidavit which is incorporated into that and sworn on 29 June 2004, which details events which preceded their final separation on 28 June 2004.
The history of the relationship and the serious assaults is set out in the mother's affidavit. Very briefly, the mother and father commenced a relationship at the end of 1999. They separated on the first occasion in February 2001 as a consequence of an assault wherein the mother alleges and I accept that he kicked and punched her to the body on numerous occasions. The police intervened. The father was apparently charged but the mother did not cooperate by giving evidence and the charges were dropped.
There was a further assault in April 2002 when the father allegedly pushed the mother to the ground. She was pregnant with the parties' daughter at the time but the parties reconciled. The mother details further domestic violence in October 2003 and December 2003 by which time the mother had relocated to Tasmania, she says with the assistance of a domestic violence service from Victoria.
The parties reconciled in February 2004 when the father moved into the mother's accommodation in Tasmania. However, by 28 June 2004 there was a serious assault and the mother left. It was then necessary for the mother to obtain a recovery order in relation to the children, which she did. The mother describes the violent incident which occurred on 28 June 2004 as follows:
On 28 June 2004 I asked the [the father] to give me some of my medication at around 4am in the morning as I suffer from anxiety and depression. The [father] ignored me and went back to sleep and woke. The [father] woke up at about 11:30am and said, "You wake me up at 4am for a tablet. Why don't you ask for sex?" He then asked for my bottle of tablets. I then got them and he grabbed me and shoved the tablets down my throat.
I gagged and spat them out. He grabbed my hair, kicked me in the groin and smashed my head on the floor, head-butted me and choked me and then dragged me from the laundry to the bedroom and started yelling that when he wants sex he'll have it. The [father] demands sex up to two to three times every day.
She further says:
As deposed above the [father] has previously seriously assaulted me. He has punched, kicked and dragged me by the hair. I was severely beaten by him on 28 June 2004 and decided I needed to get help and escape whilst the [father] was out. The violence has been ongoing since early 2000. The [father] will attack me over nothing. I don't think that next time

I would get out alive. As deposed above the respondent yells and screams at the children and has hit them before.
The family report writer records at least the oldest child having a personal recollection of violence perpetrated by the father to the mother.
I am satisfied that there has been a high degree of family violence perpetrated by the father to the mother and I am satisfied that the family violence has either affected the children by them being exposed to it or has been directed to the children; at least the older child, who has complained of being hit to the legs.

Treatment of the additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. However, where an additional consideration is relevant it may either alone or cumulatively with other considerations outweigh the applicable primary considerations. I therefore propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for S and L the benefit that may flow from having a meaningful relationship with both parents and ensuring that they are protected from harm and exposure to abuse, neglect or family violence.
Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[8]
[8] B & B: Family Law Reform Act (1997) FLC 92-755.
This is a court of private law. As such, when one party chooses not to attend court to prosecute his or her application the court's inquiry into the matter is necessarily curtailed. I propose to curtail significantly my consideration of the additional factors which are relevant to this case.
In relation to the children's views, the children are now aged six and nearly five. Their views are not clearly articulated in the family report or by the mother's affidavit material. Even if they were, the children are of an age where it would be difficult for me to accord much weight to their views. I infer from the discussion in the family report of the children engaging in telephone conversations with the father that they do not have a strong view about not seeing the father. I also accept that they do not have a strong view about seeing him.
I consider the nature of the children's relationship with each of the parents within the context of s 60CC(3)(b) of the Act. The mother is in every respect the primary relationship which the children have. Their next most significant relationship would be with each other. I am not satisfied that L or S in fact has a significant psychological relationship with the father at all. They know that they have a father. They know that occasionally they have spoken to the father by telephone. S says that he has a recollection of his father but it seems to me that the children's knowledge of the father is very much in the abstract.
In the family consultant's report she expresses the following observations and opinions:
[30] [S], 5 years, and [L], 4 years, are both attractive children who appeared to have a close relationship with one another and to be well cared for. They were initially seen together. They said they did not know why they had come to see the family consultant although not long afterwards [S] said “I don’t really want to live with my dad”. They were asked why they do not see their dad and [S] replied “cos Mum doesn’t want us to go there … he bruised my leg … … cos he was bashing mum on the ground … … … cos he’s a nasty dad”. [S] reported that he had seen blood in the bathroom and had called the ambulance or the police. Neither seemed to be able to recall what their father looked like. They said that they used to have a photo but “Mum didn’t like it … we didn’t want it” and they said their mother had thrown it out.
[31]. The children, particularly [L] were overcome with giggles which became uncontrollable laughter when asked about what they call their father (Baba) and about his phone calls. [S] said that he fibs to his father on the phone – ‘I say ‘hello’ and ‘ I really miss you so much’. [L] said that she also talks to him on the phone.
[32]. [S] was then seen on his own. He calmed down after the hilarity he had been sharing with his sister. He said that his father sends him presents for his birthday (usually with a Spiderman theme) but doesn’t have Christmas (as he is a Muslim). He recalled “I went away to the Mainland with Baba and Mum had to get police to get us”. [S] later said “he doesn’t even visit me”.
[33]. It would seem that [S] and [L] have confusing memories and ideas about their father. They probably know that he has been an important person for their mother and still is (as the parents often phone each other), they know of his violence ([S] in particular appears to have his own memories of this) and they know that he loves them over the phone and sends them presents. They also know that he never sees them and they may become very anxious if this became an immediate prospect.
[34]. The children were not observed with their father or his family.
[35]. The children were observed with their mother and [Mr W] who lives with them. Both [the mother] and Mr [W] praised the children, involved themselves in their play and were attentive to them. The children appeared relaxed and comfortable with [L] playing mainly in her mother’s company and [S] with Mr [W]. The mother was observed to touch the children gently and affectionately.
I accept the family consultant's evidence in this respect.
I consider the willingness and ability of each parent to facilitate and encourage the children's relationship with others in the context of s 60CC(3)(c) of the Act. As I have indicated I am satisfied that the mother would facilitate a face-to-face relationship between the father and the children providing appropriate safeguards were in place. In particular, I am satisfied that she would have facilitated a reasonable regime of supervised contact taking place in Tasmania.
In the context of s 60CC(3)(d) of the Act I take into account the effect of changes in the children's circumstances. The orders which I will make which are those sought by the mother and additionally by the independent children's lawyer do not impose any change on the children's current circumstances.
I take into account, pursuant to s 60CC(3)(e), practical difficulties and expense associated with the father spending time with the children on a face-to-face basis. The father, through choice, resides in Melbourne, the mother in Tasmania. The father has advised the family consultant, and she has reported and I accept, that there are outstanding warrants or criminal charges which would have to be faced by the father in the event that he returned to Tasmania. That, for him, is a difficulty because it appears that he does not want to be accountable for those charges.
There is also the obvious difficulty of expense associated with travelling between Melbourne and Tasmania. The expense is not something which seems to bother the father. His proposal is that he would transport the children and the mother to Melbourne on a monthly basis for him to spend time with the children and presumably he would accommodate the family on some commercial basis whilst they are here.
However, as I have indicated, I will not be making any orders which provide for face-to-face time to be spent between the children and the father so the practical difficulties are not significant.
I take into account, pursuant to s 60CC(3)(f) and also s 60CC(3)(i) the capacity of the parents and of other people to provide for the children, including their emotional an intellectual needs. I also take into account the extent to which the parents have fulfilled or failed to fulfil their responsibilities as a parent, including the extent to which each parent has taken or failed to take the opportunity to spend time or communicate with the children and to participate in major long-term decisions concerning the children. This includes the extent to which a parent has fulfilled or failed to fulfil obligations to pay child support or support the children financially. It includes the extent to which each parent has facilitated or failed to facilitate or frustrated the other parent's participation in the long-term welfare of the children. I have particular regard to events which have happened and circumstances which have existed since the parties separated.
Many of the issues relevant to the issue of capacity and preparedness to be involved in the children's lives are discussed in the family consultant's report. In that report she makes the following observations and assessment.
[36]. The father proposes that the children live with him. [The father] appeared to have a very limited understanding of the impact his proposal might have on the children if he were successful. He is for the most part, an unknown or possibly rather frightening person to these children. To live with him would expose them to fear initially and to living with people who they do not know at all. They would grieve for their close relationship with their mother.
[37]. On the basis of this assessment there does not appear to be sufficient evidence of concerns in relation to the parenting of the mother to justify a change of residence. [The mother] has been the children’s primary carer all their lives. She has had serious problems throughout her life with relationships and for significant periods of time, with drugs. She has had considerable difficulty concluding her relationship with [the father] which included some considerable violence acknowledged by them both. It now appears that he has been able to stay away from [the father], and he from her, for over two years. She appears committed to parenting [S] and [L] and to providing them with a stable environment. Although the family consultant has not had the opportunity to check with the children’s school or the Department of Health and Human Services, the children appear to feel secure in their relationship with their mother and in their current circumstances.
[38]. The children are young and have witnessed loud arguments and violence in the relationships between their parents at an age when they would not have been able to make any sense of this. These experiences would have been extremely frightening for them. It is likely that if they were to see their father again, then this could reignite traumatic memories
[39]. A major considerations about the father spending time with the children is the extent to which the mother and father can resist the temptation to re-enter their relationship or to avoid the possibility of coming into conflict with one another. At present, the mother’s tight financial circumstances and the father’s concern about being arrested appear to have supported their separation and possibly enabled the children and their mother to stay safe.
[40]. If the children were to be re-introduced to their father, then it would be highly preferable for such visits to commence in Tasmania where they have a greater sense of security. Supervised contact facilities are available close to where the children live. It is recommended that if the court determined that visits should take place, then suitable supervision and professional support for the children should be put in place so that they can have counselling support beforehand and between visits. Once the father had established a good relationship with the children, and if there were no instances of violence or inappropriate behaviour by the parents, then the visits could be progressed. In order for such visits to commence, the father would need to face up to the consequences of his previous visit to Tasmania by turning himself in to the police and facing the outstanding charges. Frequent visits – for example once per month – would be important if he is seeking to develop a relationship with the children. He would be able to afford more frequent visits if he was paying one adult fare for himself, rather than for [the mother] and both the children to come to Melbourne as he suggested.
[41]. The father is urged to consider this course of action as it is important for the children to have a safe and meaningful relationship with him if possible, and later, with his family as well. The children’s appearance is obviously part Turkish and this is an important aspect of their cultural heritage. It is important for the children to know of their origins and have a sense of their cultural background. The children are vulnerable through not being involved with any extended family at all. Should their mother become unable to care for them for any reason, they would most likely be placed in the care of people they do not know.
[42]. Apart from the sense of increased vulnerability that the children and the mother might feel in travelling to Melbourne for the father to see the children, there would be no-one involved in the supervision of such visits available to work with the children between visits. There is also a possible risk that the mother might decide to resume living there again which would be disruptive to the children’s schooling and friendships and might tempt her to re-enter a relationship with [the father].
I accept the family consultant's evidence in this regard and I accord it weight in coming to my decision.
The mother deposes to a history of drug taking, some criminal behaviour which give reasonable cause for concern about her capacity to parent these children. However, the evidence in relation to the father leaves me with no confidence that the children would be better off with him. As these proceedings are essentially conducted between the mother and the father, questions about the mother's capacities as a parent are not particularly significant when in my view the father is a less safe option.

It seems to me that the family consultant has analysed the parties reasonably accurately, as far as I can tell from having read their own material. I accept and give weight to the following evidence from the family consultant.
[15]. The mother, […], 41 years, is a very slight and attractive woman who presented in a quiet and meek manner and was teary at times during the interview. [The mother] has experienced many difficult challenges in her life. She spoke of not getting on with her own father. Her three adult children were raised by her parents after she developed problems of agoraphobia and drug addiction following the murder of their father. She stated that she became involved with crime and spent time in goal. She does not have a good relationship with any of these adult children now and they are not known to [S] and [L].
[16]. [The mother] entered into a relationship with [the father] in about 2000. He lived in her neighbourhood, was married and living with his wife and three children. They commenced living together at various locations in Victoria. She spoke of several separations when she left due to his violence and found accommodation in women’s shelters. [The mother] described physical assaults – hair pulling and blows to the head, some leading to her having seizures. She said that on another occasion she sustained black eyes and a fractured nose. [The mother] said that the children were present during these assaults. She said that when [the father] had come to [Tasmania] in 2004 and entered her home through the kitchen window, he had threatened her with a knife. He was subsequently remanded in […] Goal for 7 weeks. [The mother] considers that [the father]’s violence towards her is a result of his cultural attitudes towards women. She said that in [the father]’s culture (Turkish) and religion (Muslim), the man is in charge and the woman does as she is told. [The mother] said that she was not prepared to accept his attempts to control and isolate her, and this led to conflict and violence.
[17]. [The mother] spoke of having taken drugs many years ago and being on the methadone program in about 1991. She said that when living with [the father] he used marijuana on a daily basis and also took heroin, speed and morphine. She said that she “indulged with him” and described taking heroin for the first time at 35 years and overdosing, requiring an ambulance. She stated that she was on antidepressants for a long time and came off these in October last year. She now takes valium when needed and stated that she does not drink alcohol. [The mother] said that [Mr W], who shares the house with her, is on a program for his drug related issues.
[18]. [The mother] spoke about her mixed feelings for [the father] which she says continue despite all that has happened. She said “I’m determined not to go back” and “we cannot be together”. She volunteered that she should not have initiated reconciliations on previous occasions, and admitted to sneaking him into women’s shelter accommodation. She stated that the children do not ask her about him because they know she gets upset. When asked, [the mother] said that there are no photos of [the father] on display in the home although she still has one photo which she keeps in a drawer. [The mother] considers that [the father] still has feelings for her, “If I were to pack up tomorrow he would organise accommodation and either maintain a relationship with me and live with his wife, or leave his wife for me”. She described them speaking fairly often on the phone.
[19]. The mother expressed her fear that without parenting orders,

[the father] “could still grab them”. She expressed some concern that

[the father] might not obey any court orders. However she also looked forward to orders for the children to live with her and that “he can maybe see the kids here (i.e. in Tasmania)”. Orders for phone contact were discussed and she commented that “she didn’t know whether he would make the commitment”. She stated that she encourages the children to speak to their father on the phone and that he sends them gifts. However she maintained that the children are not interested in talking with their father on the phone. [The mother] stated that she has told the children that their father loves them. She expressed concern about the older child’s fear of his father and the fact that the younger child is too little to remember her father.
[20]. [The mother] spoke of the children’s personalities and interests. She said that [S] was not speaking when they first moved to [Tasmania] and that the domestic violence worker involved said that this was due to what he had been through (referring to witnessing the assaults on his mother by his father). Speech therapy was organized and he now speaks clearly and is progressing well at school. She said that the children get on well together.
[21]. Mr [W] was interviewed briefly. He appeared restless with a high level of motor activity. He stated that he is on the methadone program and is working with his doctor to lower his doses so that he can come off the medication and obtain work. He praised [the mother]’s parenting, expressed his happiness in sharing a house with her and the children, and spoke of the involvement of himself and his parents with the children. He mentioned that [S] had not had any speech when he first met him and also had a fear of men other than himself.
[22]. The father, […] 39 years, is a slim somewhat intense man with “[…]” in a cold tattoo written on one hand. He presented as concerned for the welfare of his children, [S] and [L]. He was emotional and teary at times as he expressed his wish to be a part of their lives. [The father] especially commented on how important his daughter is for him as he has no other daughters. [The father] says that he has rebuilt his relationship with his wife and their three sons in Melbourne and would never jeopardize this again. He stated that he loves the children, that his circumstances are more stable and materially advantaged than the mother’s, and that he has an extended family for them to be involved with. He stated that he has set up a transport business and works 4-6 hours per day. He says that he has been addicted to drugs but has overcome this problem.
[23]. Neither [the father]’s wife, […], nor his older children were interviewed. Hence their attitudes to the father’s application and to his second family are not known, other than what [the father] relayed. Nor is there information available from them about him as a father in their family.
[24]. [The father] expressed concern that [S] and [L] are not adequately supervised, and that [the mother] was often drug-affected during their relationship, which he said had compromised her ability to care for the children. He believes that the children are brought into the company of undesirable people by the mother. [The father] said that [the mother] contacts him to ask for money. He stated that he sent clothing and presents for the children and some money. When asked, [the father] agreed that he owed $2,500 in child support and has not yet filled out the papers for child support in relation to [L]. He said that he is concerned that the mother would spend the money on drugs.
[25]. [The father] acknowledged that the children would have witnessed arguments and some violence but claimed that they would have seen their mother be violent to him as well as vice versa. He said that the last argument in [Victoria] was the worst, “She smashed a window and wopped me across the head with a curtain rod. I grabbed her and threw her on the floor. She got a black eye – I hit her with the palm of my hand.

I know I shouldn’t have”.
[26]. He had difficulty seeing that the children might experience significant difficulties if the court granted what he sought (that the children live with him), given that their primary and possibly only attachment figure is their mother. He focussed on the advantages of his family situation as opposed to the mother’s. However he did express pessimism that the orders he seeks will be granted, and commented that he has been set up to “look like the bad guy” and that “the system” is against him.
[27]. In relation to spending time with the children in Tasmania, [the father] is not prepared to return to Tasmania as he would face possible arrest on outstanding charges relating to motor vehicle theft and breach of Family Violence Order. He stated that he would not be dealt with fairly, and that [the mother] would complain about him to the Police again.
[28]. When asked about the possibility of the children coming to Melbourne for supervised re-introduction time with him, [the father] stated that he would pay all the costs for the children and their mother to travel to Melbourne and stay in a motel. He considered that he could afford this approximately once every 3 months. He would agree to supervised “time with” at a contact service if this meant that he could see them. He stated that he would abide by seeing the children in a supervised context of he had to, but added “she won’t”.
[29]. [The father] says that he speaks to the children on the phone about once per month. [L] apparently does not want to speak on the phone and [S] has very little to say although [the father] reported that [S] says “How are you Daddy?” and “I love you Daddy”. Given the disrupted nature of the children’s relationship with their father, the length of time since the children have seen him, the conflict and violence of his last visit to Tasmania, and their ages, telephone contact will not lead to the development of a relationship between the children and their father even if it occurs regularly.
In the context of s 60CC(3)(g) of the Act I consider the maturity, sex, lifestyle and background of the children and their parents. S is in prep and L is in kindergarten at M Primary School. S started kindergarten in 2006 and now attends on a full‑time basis. L, who is not yet five, goes on Mondays and Thursdays. The mother's evidence is the children are progressing well.
The mother has sourced and obtained treatment and assessment for S's speech difficulties. The mother is of Anglo-Saxon background. The father is Turkish Muslim background. Ideally, the children would benefit from a rich involvement in their father's Turkish Muslim heritage. However, where they will not be seeing their father, pursuant to these orders, it is difficult for me to take that into account. I can only say that if it was a matter of importance to the father he would likely be here to take part in the proceedings today, but he is not.
I have already discussed the significance of family violence in this case. I am advised by counsel for the mother and I accept that there is no family violence order in force which I need to take into account when formulating the orders that I will make on a final basis.
Pursuant to s 60CC(3)(l) I consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[9]

[9] s 60CC(3)(l) Family Law Act (Cth)

Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation.
This is a final hearing of which the father has notice. It will represent a conclusion of matters which are in issue between the parties. The father will be permitted, in accordance with principles set out in cases such as Rice & Asplund (1979) FLC 90-725 and KB & TC [2005] FamCA 458 to institute further proceedings if he can satisfy the court that there has been a significant change in circumstances.
I do not propose to nor intend to limit what may be changed circumstances which would entitle the father to re-litigate. However, I make a number of observations. The mother has run these proceedings to a final hearing. Had it been the father's intention not to participate in the proceedings the proceedings could have been concluded much more cheaply and quickly than they have been.
The mother and her witness have travelled to Melbourne for the hearing. The costs of them doing so is some $800. The solicitor who has had conduct of this matter throughout, Mr Guest, appears as counsel today and over and above his professional fees he has incurred travel and accommodation expenses of approximately $750. I asked Mr Guest to estimate what his professional fees and disbursements have otherwise been in this matter and I was advised that it is difficult to say because at the moment his client is without an active grant of legal assistance.
It follows that it is not possible to quantify the costs because the scale at which costs can be charged would vary from state to state and indeed from matters in respect of which legal assistance is granted to matters in respect of which there is no grant of assistance. He estimates, however, broadly that his professional costs and disbursements would not be less than $6000. If his client is successful in obtaining a retrospective grant of assistance from Victoria Legal Aid then that would erode a significant amount of any entitlement the mother would have for funding in the future. That is a consideration that I expect will be taken into account in the event that the father chooses to re-litigate.
There are also more substantive issues. The mother originally sought orders which contemplated an assessment by a psychologist of the family and the father. It seems to me that this is the sort of case where the mother would be well justified in calling for a psychological assessment of the father prior to him being given permission to re-litigate matters which he could have litigated today and not only an assessment but a prognosis or course of treatment which it is recommended that he follow. In the event that there is any recommended treatment I am confident that the court would want to see that he is committed to it, undertaken it and completed it prior to approaching the court.
The independent children's lawyer has as her focus the significant family violence perpetrated by the father on the mother. She says that an effective prerequisite to the father being able to re-open this litigation would be his commitment, participation and completion of an anger management course. That is a fairly broad description of some form of behavioural modification that the father would have to undertake. Given the mother's allegations of violence, which I assess as being serious violence perpetrated by the father on her, I can only speculate that any anger management course would have to be very detailed and probably of significant duration.
I am empowered to and do take into account pursuant to s 60CC(3)(m), any other factors, circumstances which I consider is relevant. It is a practical matter but it is of concern to me and understandably to the mother. The mother and the children have resided in Tasmania now since 2003. The father has for some time resided in Tasmania but he now chooses to reside in Melbourne and indeed, he does not want to go back to Tasmania in any hurry. Any further proceedings in this matter would, I trust, be instituted by the father or the mother in Tasmania in a registry situated reasonably close to the mother's residence. She is not in receipt of any significant child support from the father. Indeed, the father does not appear to have a liability in respect of the youngest child of the relationship.
But for the fact that the father does not have notice of any application to the effect that any future proceedings be instituted in Tasmania rather than in Victoria I would have no hesitation in making the order. However, I am not satisfied that he does have notice of the application so I will not. I will leave it for the next court before which this matter comes for determination to consider which is the appropriate forum. My dismissal of the mother’s application in this regard does not prevent her instituting any further proceedings in Tasmania.

Parental responsibility

Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[10] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[11] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[10] s 61B Family Law Act 1975 (Cth).
[11] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[12] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[13] and to ‘make a genuine effort to come to a joint decision about that issue’.[14] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[12] s 65DAC(2) Family Law Act 1975 (Cth).
[13] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[14] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[15] or abuse of the child or another child who is a member of the parent’s family;[16]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[17] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[18]
[15] s 61DA(2)(b) Family Law Act 1975 (Cth).
[16] s 61DA(2)(a) Family Law Act 1975 (Cth).
[17] s 61DA(3) Family Law Act 1975 (Cth).
[18] s 61DA(4) Family Law Act 1975 (Cth).
In this case I am comfortably satisfied that there has been family violence to a degree that it is wholly inappropriate for the father to share parental responsibility for the children. I would also be satisfied in the context of

s 61DA(4) that on the evidence it is not in the children's best interests for the mother to be required to consult with and endeavour to reach decisions with the father about the children. One of the main factors in this regard is that the father has failed or neglected to attend this hearing to seek orders. It does not bode well for his preparedness to have discussions with the mother. I consider that it would be an inappropriate burden on the mother, and through her indirectly on the children, for the mother to be required to discuss matters with the father.

By virtue of having now determined that it is not in the children's best interests for the mother and father to have equal shared parental responsibility it is not necessary for me to consider whether I should make an order providing for the children to spend equal or substantial or significant time with the father. In any event, the father is in Melbourne, the mother is in Tasmania. It is clear that any significant or substantial period of time would simply not be reasonably practicable within the meaning of s 65DAA(5) of the Act.

Costs

The mother makes application that the father pay her costs of and incidental to these proceedings. Section 117 of the Act provides that each party to proceedings under this Act shall bear his or her own costs unless I am satisfied that there are circumstances which justify a departure. In this case the mother contends that there are circumstances which justify an order for costs being made in her favour.
I turn to the matters set out in s 117(2A) of the Act insofar as they are relevant. The mother is a person of limited financial means. She appears to be wholly reliant on government means-tested pensions or benefits. She is not receiving benefits which should be payable in relation to the youngest child by the father and it would appear, on my reading of her material, she is receiving something less than the family allowance or family payment that she would otherwise get.
I have no direct evidence of the father's financial circumstances. There is reference in the family report to the father having told the family consultant that he is prepared to assume the financial cost of transporting the children and the mother to Melbourne on a monthly basis so he could spend time with the children, presumably he would be also going to accommodate them. What is said to a family consultant is not evidence in a case but the state of the evidence, such as it is, leaves me to conclude that the mother certainly cannot afford these proceedings. I take into account whether either party or any of the parties is in receipt of assistance by way of Legal Aid. The mother at the moment is not. However, it appears that she should be. The independent children's lawyer will be fully funded by Victoria Legal Aid.
It seems to me that when the Act was drawn in the 1980s consideration of a party being in receipt of legal assistance usually led to no order for costs being made if they were. However, now it is abundantly clear that legal aid commissions in Australia have very limited resources and that if orders can be made which replenish those resources somewhat that is to the benefit of the community as a whole.
I take into account the conduct of the parties in relation to the proceedings including pleadings, particulars, discovery and the like. The father has not done much in these proceedings. The difficulty is that he did not put anyone on notice that they did not have to do much either. He was required to provide a minute of the order that he sought be made, he failed to do so. He was required to provide a trial document and he has failed to do so.
The matter has been able to be dealt with on a final basis today but it has taken half a day of hearing to do so and I do not know that it would have been all that much different had he attended. This is a factor which in my view favours an order for some part of the mother's costs being paid by the father.
I take into account whether the proceedings were necessitated by a failure of a party to the proceedings to comply with previous orders of the court. As

I understand the matter this is not a relevant consideration. In June 2005 the mother brought proceedings for a recovery order for the children but she did not have a previous order. Certainly a significant factor is that the father has been wholly unsuccessful in these proceedings or, put another way, the mother has obtained orders which she sought. This is also a factor which favours orders being made in the mother's favour.
I am not aware of any offer in writing which is relevant in this case although it is clear from the minute of order which was sent to the father's practitioners that the mother was certainly prepared to countenance the sort of orders that

I have made. The difficulty is that there is nothing which indicates to me the father received those orders sought. Likewise though, he did receive the mother's affidavit and it was sworn on 13 July 2007 from which it is clear the nature of the orders that she seeks. Upon having received that, which I accept was sent to him by prepaid post on 13 July 2007, he would have known how the mother was offering to conclude these proceedings.
I have considered the above factors. In my view it is appropriate to preserve by reserving the mother's legal costs and expenses associated with the proceedings, apart from those which she has been required to meet in order to get to Melbourne for this trial. I am advised by Mr Guest that the mother and her friend, Mr W, have spent some $800 to be here today inclusive of airfares and accommodation and that the travel and expenses of Mr Guest are a further $750.
In all the circumstances I am satisfied that the father should at least pay those expenses now because they are expenses directly attributable to the trial being conducted in Melbourne. Those expenses could have been avoided had the father said that he would consent to orders contemplated by the mother. At that point the mother could have made application, which I am confident would have been granted if it was made to me, to participate in the proceedings via video-link from Tasmania. I will therefore order that the father pay on account of the mother's costs $1550 within 30 days and that the balance of her costs and disbursements and his responsibility for paying those remain reserved.

Generally

For the foregoing reasons I make the orders which are sought by the mother and complemented by those orders which are sought by the independent children's lawyer.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date: 23 November 2007

[2007] FamCA 1369

21 August 2007

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Costs

Remedies

Procedural Fairness

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