Arness & Murad
[2023] FedCFamC1F 750
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arness & Murad [2023] FedCFamC1F 750
File number(s): MLC 1506 of 2020 Judgment of: MCGUIRE J Date of judgment: 1 September 2023 Catchwords: FAMILY LAW – PARENTING – Where respondent father left the Court prior to the taking of evidence – Matter adjourned to allow father opportunity to prosecute his case – No appearance by the father – Undefended hearing Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 69ZW,102NA Cases cited: Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
McCall & Clark (2009) FLC93-405; [2009] FamCAFC 92
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Division: Division 1 First Instance Number of paragraphs: 75 Date of hearing: 21 and 23 August 2023 Place: Melbourne Counsel for the Applicant: Mr Kanarev Solicitor for the Applicant: Bowlen Dunstan and Associates Pty Solicitor for the Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Ms Teicher Solicitor for the Independent Children's Lawyer: Aitken Partners Pty Ltd ORDERS
MLC 1506 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARNESS
Applicant
AND: MR MURAD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
1 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Application for Final Orders filed by the mother on 14 January 2022 proceed to final hearing undefended the father.
2.All extant parenting orders be discharged.
3.The mother have sole parental responsibility for the children X born 2013 and Y born 2017 (“the children”).
4.The children live with the mother.
5.The children spend time and communicate with the father as follows:
(a)On four occasions each year with such time to be allocated evenly throughout the year but such time to be nominated by the mother with not less than 28 days prior notice on each occasion to the father and such time-with to be supervised by E Contact Centre with the father to pay all associated costs (and if possible such time to occur approximate to special occasions such as birthdays and religious holidays) with such time to occur for durations of up to 3 hours on each occasion or such time as can be accommodated by the contact service;
(b)For the purposes of the children spending time with the father as set out above, the mother is to deliver the children to the contact service not later than 15 minutes prior to the commencement of such time and the father is not to attend at the contact service earlier than five minutes before such time and the father is to leave the premises of the contact centre immediately upon the completion of each contact and is not to loiter within 500 metres of the contact centre with the mother to collect the children approximate 15 minutes after the completion of such visit;
(c)Such variations of the above or additional time for the children with the father as may be agreed between the parents from time to time in writing, text message, or email.
6.The father be permitted to send cards and gifts to the children to a Post Office box set up by the mother with the mother to advise the Independent Children’s Lawyer of the Post Office box address who will forward such details to the father with the mother then to keep the father advised of such changes to the postal address.
7.The appointment of the Independent Children’s Lawyer be discharged 56 days from the date of these orders.
8.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arness & Murad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
The mother, Ms Arness is the applicant in parenting proceedings in respect of the parties’ two children namely X born 2013 and Y born 2017.
In her case outline document the mother was seeking orders for sole parental responsibility and with the children to live with her and spend no time with the father. By the time of final submissions, however, the mother was adopting the position of the Independent Children’s Lawyer (“ICL”) who asks for orders inter alia as follows:
(1)The mother have sole parental responsibility for the children;
(2)The children live with mother;
(3)The children spend time and communicate with the father up to four times a year to be supervised by E Contact Centre with the father to pay for all associated costs and such time to occur on special occasions such as birthdays and religious holidays;
(4)The father be permitted to send cards and gifts to the children to a Post Office box set up by the mother with the mother to advise the Independent Children’s Lawyer who will forward the details to the father.
The mother is represented by solicitors and Counsel was appointed pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”).
When the matter was called on for trial at 2:15PM on Monday, 21 August 2023, the father appeared self-represented. The Court file discloses that he too had the benefit of the appointment of legal representation pursuant to section 102NA of the Act but had apparently ceased that relationship. My enquiry of the father disclosed that he was aware of the nature of the section 102NA appointment and that his current self-represented status prohibited him from cross examination of the mother. He appeared content to proceed on this basis.
There was some preliminary discussion with the father in respect of his affidavit material. My best understanding is that the father attempted to file a trial affidavit on 2 August 2023 but for whatever reason the filing was voided by the Registry most likely because the affidavit was witnessed incorrectly.
In any event, it appears that the affidavit absent the annexures was sealed on 11 August 2023 as an Affidavit of Service and again on 14 August 2023 under its correct title. Importantly, however, the Court file discloses that the father filed material comprising some 670 pages at 6:32PM on the previous Friday before the trial which was rejected by the Registry before eventually being accepted for filing the day of the trial. Enquiries of the mother's Counsel suggested that they had received the material at 11:00AM on Monday 21 August 2023 and that the ICL had not yet received the material.
Whilst the father was initially courteous to the Court, he rapidly became agitated and anxious in respect of my enquiries as to the filing of the some 670 pages of material adjacent to the commencement of the trial. He was insistent in respect of what appeared to be his understanding that he had complied with the filing procedural directions. In any event, Counsel for each of the mother and the ICL informed the Court that they were prepared to commence the trial despite the obvious inconveniences of the receipt of such copious material either on the day of the trial or, in the case of the ICL, not yet completely received. The father was informed that the trial could proceed and the Court spent twenty or more minutes taking the father in detail through the procedure for the trial including a number of invitations to seek assistance from the Court in respect of procedural matters.[1]
[1] Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348.
Despite the father's apparent calmness during the period of the explanation of procedure and when the evidence was about to commence, he again became agitated and insistent in respect of the filing of documents although such was now an irrelevancy. He was vocal in seeking material be photocopied by court staff on his behalf apparently to prove the issue of him filing his affidavit (absent the 670 pages of annexures) in accordance with the Court’s directions. His agitated state was manifest. He stated an intent to leave the Court whereupon he was advised that the matter would then proceed in his absence. He became accusatory of both the legal representatives for the mother and the ICL and to the Court. He proceeded to leave the Court stating that he intended to “have the Chief Justice hear his trial”. He made no application for me to recuse myself. He simply left the Court.
An application by the mother's Counsel followed and was supported by the ICL to proceed undefended the father and in circumstances where the two children have habitually lived with the mother but spent no time with the father since December 2022 despite extant interim orders providing him supervised time with the children. I acceded to the application to proceed undefended and for me to receive submissions referencing the relevant evidence towards the children’s best interests.
After receiving those submissions and given my observations of the father’s anxieties and agitated state, together with the material on the Court file as to historical mental health issues for him, I sought and obtained the consent of Counsel for each of the mother and the ICL to list the matter again at 10:00AM on Wednesday, 23 August 2023, on notice to the father in case his mood had settled and he wished to prosecute his case. To the credit of the mother and the ICL, consent was given to that course. The matter was called again at 10:05AM on 23 August 2023, with there being no appearance by or on behalf of the father. He had been notified by email to his notice of address for service. My associate had also attempted to telephone the father on at least two separate occasions unsuccessfully to advise him of the new listing.
Given the father’s nonappearance, the mother and supported by the ICL, sought that the matter proceed to final determination undefended the father. I acceded to that application and, having already received submissions, reserved my determination so as to allow me to prepare these reasons.
Following the matter being reserved, my associate advised me that at 10:13AM the Court received a medical certificate from the father dated 23 August 2023 and signed by a Dr F. The medical certificate discloses the following:
This is to certify that [Mr Murad] due to his mental health condition is unwell for the period of 21/08/2023 to 25/08/2023 (inclusive). He struggles with confined spaces and he has had an anxiety attack on the 21/08/2023. He is recovering from that.
The certificate was completed on 23 August 2023.
The provision of the medical certificate was not accompanied by an application for an adjournment and where, in fact, the matter had already been dealt with and reserved, I determined to take no affirmative position in respect of the medical certificate noting, in any event, that the father has certain courses available to him wherever orders will be made undefended. The father sets out the orders that he seeks on page 25 of his trial affidavit as follows:
a)I seek to have equal shared responsibility for Children on the basis that I wish to be involved in the children’s lives and can have access to health and education information.
b)I humbly request the orders sought in my Amended Response to Initiating Application.
c)I kindly request Court to make such orders to pay my Court/Legal Costs/Professional Reports Cost etc if [Ms Arness] fails to provide “Written Evidence” of all 75 Points of Claim raised in her Affidavit dated filed on 21 July 2023 but dated 21 July 2022.
The document referenced being the father's Amended Response sealed 28 January 2022 which sets out the orders he seeks as:
(1)That the parties have equal shared parental responsibility for the children [X] born […] 2013 and [Y] born […] 2017 (the children).
(2)The children live with the wife.
(3)That the Husband be excused from further particularising his parenting orders sought pending the outcome of his psychiatric assessment in this matter.
(4)Such further Orders as this Honourable Court deems appropriate.
BACKGROUND
·1976 – The father was born.
·1984 - The mother was born.
·2009 - The parties met.
·2012 - The parties married and commenced cohabitation.
·2013 - X was born.
·2017 - Y was born.
·2018 - Family Violence notice issued by server.
·2 August 2019 - Parties separated on a final basis.
·Late 2019 - A final intervention order made in favour of the mother.
·12 February 2020 - The mother initiates property proceedings in these courts.
·30 April 2020 - The mother amends her application to include parenting orders.
·31 August 2020 - Interim parenting orders made providing for the children to live with the mother and spend supervised time with the father
·7 December 2020 - Orders made inter alia for the appointment of the ICL.
·3 November 2021 - Orders were made for the father to attend upon Dr G, psychiatrist, in compliance with orders of 7 December 2020.
·22 December 2021 - Further orders and direction are made with respect to the father undertaking a psychiatric assessment.
·16 February 2022 - Orders made by Judge O’Shannessy discharging Orders made on 7 December 2020 with respect to the father’s supervised time with the children. Further orders made that until further order the parties do all things necessary to appoint H Contact Centre at Suburb J to supervise time between the father and the children in each alternate week and for such time not to exceed three hours in duration.
·June 2022 - Father commenced spending supervised time with the children under the supervision of H Contact Centre.
·17 June 2022 - Orders made pursuant to section 102NA of the Act with respect to both the mother and the father who at the time were both self-represented.
·August 2022 - The father attended upon Dr K for assessment with such report disclosing that the father saw supervised visits as “distressing for him because he finds himself recalling the difficult relationship”. He also discloses to shoplifting, accessing pornography, suicidal thoughts, temper tantrums, unclear sense of self, and angrily driving.
·11 August 2022 - Both parties attended on Mr L for an updated Family Report with the father noted as “oppositional and aggressive from the outset of the assessment”. Mr L informed the father the police would be called if he did not leave the building. The father subsequently complied.
·August 2022 - The mother attended upon Dr K for assessment.
·15 September 2022 - Orders were made by Judge O'Shannessy for the parties and the children to attend upon Ms B for preparation of a Family Report.
·3 November 2022 – Ms B’s Family Report prepared.
·November 2022 - Report of H Contact Centre with respect to the father’s interim time with the children.
·5 December 2022 - Orders made discharging previous spend time orders between the father and the children. Orders made that the parties take all necessary steps to enable the children to spend supervised time with the father in each alternate week and for such time not to exceed three hours in duration and the supervisor be a professional supervisor as agreed between the parties and failing agreement as nominated by the Independent Children’s Lawyer. The father be responsible for the costs of professional supervision. The Final Hearing listed on 5 December 2022 vacated and the matter transferred to Division 1 of the Court.
·9 February 2023 – the Judicial Registrar releases a report pursuant to section 69ZW of the Act from the Department of Families, Fairness and Housing.
·17 February 2023 – Procedural orders by the Judicial Registrar listing the matter for final hearing commencing 21 August 2023 with an estimated hearing time of five days.
RELEVANT LAW
The Act at Part VII provides the legislative framework for parenting matters before these courts. Section 60CA states that the best interests of the children are to be the paramount consideration for the Court. In determining those best interests, the Court is to reference the parties’ proposals, including any of the ICL, and the probative evidence before the Court to the numerous mandatory considerations set out at section 60CC(2) and (3) of the Act against the background and context of the Objects and Principles of section 60B of the Act which provides as follows:
1.The objects of this Part are to ensure that the best interests of 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.
2.The principles underlying these objects are that (except when it is or would be contrary to a 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).
Where section 61DA of the Act offers a presumption that it be in the children's best interests for the parents to equally share parental responsibility for the children, there follows a statutory and intellectual course of consideration for the Court in determining orders which attend to those interests. ‘Parental responsibility’ is defined at 61B of the Act as “the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Such parental responsibility normally manifests in the making of long-term and important decisions for children involving issues such as education, religion, medical procedure and the like as opposed to the more mundane day-to-day decisions that parents habitually make for the children.
Importantly, however, the presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence or abuse of a child, or another child habitually a member of the family unit. In this matter the mother asserts family violence and argues that the presumption does not apply. In any event, the presumption is rebuttable on evidence that an order for equal shared parental responsibility will not be in the best interests of the children.
EVIDENCE
Mother
The mother's affidavit of 21 July 2023, after setting out the background of the parties, references family violence at [10] and following. She alleges a long history of family violence. She says that there is currently a final intervention order in place made by a state Magistrates Court in early 2023 listing herself and the children as protected persons. That order was obtained in respect of an incident from 2018. The current order is an extension of a previous intervention order.
At [13] the mother alleges that the father has breached the intervention order on numerous occasions and has been charged with breaches.
The mother’s affidavit particularises in detail asserted incidents of family violence during the relationship where she was the victim. She alleges family violence of physical, coercive, and emotional types.
At [34] the mother says that she has been the primary carer of the children including taking them to and from school, attending parent teacher interviews, and arranging documents and appointments.
The mother says at [36] that the children are in good health but have suffered through witnessing family violence perpetrated by the father with particular impact on X.
The mother details limited time that the children have spent with the father since separation, including him not taking up time with the children provided by interim orders noting that there has been no time for the father with the children since December 2022.
The mother at [65] asserts family violence of a financial type noting the parties entered into consent orders in September 2022 for property settlement but where she is obliged to bring Enforcement proceedings with such listed for September this year and where she says she is still owed the sum of $82,485 by the father plus interest and costs.
At [67] the mother deposes to the father leaving a laptop computer at the home where she has viewed files containing material of the nature of “incest/underage/animal pornography videos and photos”. The mother says that she has involved Victoria Police who responded to her in 2023 that the material was not deemed “child abuse material”.
Family Report – Ms B
The Family Report of Ms B is dated 3 November 2022 and prepared after interviews on 17 and 21 October 2022. Ms B states that she had the advantage of the copious court file together with the previous report of Mr L and an affidavit of Dr K filed 22 August 2022.
Ms B’s recommendations are as follows:
133.The issue of parental responsibility for the children as determined by the Court.
134.[X] and [Y] live primarily with their mother.
135.Consideration is given to maintaining the children’s current parenting arrangements until confirmation has been received from the DFFH that any ongoing investigations have been completed.
136.Upon the above confirmation being completed, that this assessment is completed.
Ms B interviewed both parties. The mother gave a history consistent with her affidavit material. The father in his interview proposed orders for equal shared parental responsibility of the children, the children to live with the mother, and to spend time with the father on each alternate weekend from the conclusion of school Friday until the commencement of school on Monday with additional time during school holidays and special days together with weekly telephone calls. The father reported that he lives in Town N and that he was currently unemployed “due to his mental health suffering because of the parent’s separation and these prolonged Court proceedings”. Notably, the mother disputed the father’s unemployed status and references a recent child support assessment indicating him to be earning a significant wage.
Ms B experienced the father engaging openly during his interview “although his narrative was somewhat confused with multiple tangents”. She described the father as ‘hyper-focused’.
At [79] the father is reported as missing several court dates “due to poor mental health [and] due to the stress of these ongoing proceedings”. The father provided the Family Reporter with a letter from his psychiatrist apparently corroborating the impact on him of the protracted court proceedings.
Mr Murad was noted as completing some behaviour therapy programs and engaging in counselling with reports from psychiatrists corroborating Dr K’s conclusion that the father “suffers from an adjustment disorder”. Mr Murad reported, however, that he is regularly engaged with his mental health professionals whilst emphasising his mental health struggles.
At [83] Mr Murad is reported as enjoying his supervised visits with the children and claiming that the issues were “‘all about the mother, not about the children’”.
At [94] Mr Murad denies family violence. At [95] appears the following:
95.[Mr Murad] claimed that the incident where he slapped [X] across the face was at the instigation of [Ms Arness] telling [X] to hit him, and he responded "instinctively" and regretfully. During his interview, [Mr Murad] reiterated that it was “instinct” and that he had “no control” which caused him to slap [X] across the face upon her striking him, notwithstanding her young age at the time, while reporting that he “regretted it.” Further, [Mr Murad] claimed that [Ms Arness] had encouraged and instructed [X] to strike him, providing evidence to the Court to support this claim.
At [98] the father accuses the previous Family Consultant, Mr L, as being “‘very biased’” against him.
Ms B interviewed X who was then nine years of age. She saw X as presenting as a serious child but one who readily engaged in the interview and one who had recall of both positive and negative family memories.
X had recall of the family violence in the family referencing verbal arguments but not physical altercations. She did not feel unsafe in the care of either parent.
At [109] X is reported as enjoying spending time with her father but feeling that the time each alternate weekend was “enough time with her father” and advocated for the arrangement to remain unchanged.
Ms B also interviewed Y then aged five who impressed as a bubbly and sanguine young girl but with no memory of her parents’ relationship prior to separation. She too expressed satisfaction with the current time spent with the father.
The children were also observed with each parent. The mother was noted as coming prepared for the interview process with a variety of activities for the children with open and casual conversation between the mother and the children.
At [119] the children were observed as being excited to spend time with their father and greeted him warmly. Mr Murad was noted as appearing to be anxious during the session.
Ms B concludes at [120] that:
120.[Mr Murad] was clearly disappointed that he had missed out on celebrating [Y’s] birthday, and he had brought her presents to this observation session. While the children thoroughly enjoyed blowing up balloons for [Y’s] birthday, the writer felt it was curious that [Mr Murad] bought [Y] an expensive luxury […] women’s jewellery box (while claiming he did not have an income), which is not age-appropriate for [Y] and was quickly discarded by her. [Mr Murad] also provided the children with a large box of items inclusive of chocolate-coated fruits, which the children enjoyed, but also many cartons of plant-based milk, which were out of date. Overall, the writer found [Mr Murad’s] behaviour towards the children at times bizarre and ‘out of touch’ with the children's emotional state.
Dr K
Dr K is a psychiatrist. He provided an affidavit to the ICL affirmed 22 August 2022 annexing an assessment of each parent. In respect of the father at page 13 and under the heading “Mental State Examination” Dr K observes:
[Mr Murad] presented casually dressed, a shy, anxious man, he was cooperative throughout the interview with good eye contact. No psychomotor abnormalities were noted. He spoke spontaneously, his speech was coherent with normal rate, volume, tone and rhythm. His affect was largely euthymic, reactive and well communicated he did become tearful at the end of the interview recalling the losses associated with his family, his children and his career. His thought stream was normal with no overt formal thought disorder evident nor was there any suggestion that he was responding to internal stimuli.
Dr K offers a diagnosis for the father of social and generalised anxiety disorder together with disordered personality traits.
Dr K opines that the treatment provided to Mr Murad by his own psychiatrist adequately addresses the diagnostic issues. The mother's mental state is noted as follows:
[Ms Arness] presented casually dressed, she was cooperative throughout the interview with good eye contact. No psychomotor abnormalities were noted. She spoke spontaneously, her speech was coherent with normal rate, volume, tone and rhythm. Her affect was euthymic, reactive and well communicated and her thought stream normal with no overt formal thought disorder evident during the interview nor was there any suggestion that she was responding to internal stimuli.
Dr K provides a diagnosis for the mother of “Mixed Anxiety Disorder with features of Social and Generalised Anxiety – mild” as well as “[disordered] Personality traits.”
There was a Child Inclusive Conference - Memorandum prepared by Mr L in 2020. Given the Family Report of Ms B, I determined not to read Mr L's memorandum in detail. The contents of the memorandum are, however, summarised in Ms B’s Family Report.
Suffice to say that there was a clash between the father and Mr L resulting in the further and updated Family Report being authored by Ms B.
SECTION 60CC FACTORS
Section 60CC(2)(a) - the benefit to the children of having a meaningful relationship with both of the children's parents
This is a primary consideration although not of itself determinative of the children’s best interest.[2]
[2] Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
The evidence makes it clear that the children’s primary source of support and dependency is their mother if only by reason of limited contact with their father.
It is well established that the consideration here is both "qualitative'' and "prospective" in its focus although current and past relationships of the children are relevant.[3]
[3] McCall & Clark (2009) FLC93-405; [2009] FamCAFC 92
Despite the limited evidence and contact between the children and their father, the evidence of the Family Report indicate, at least, a passive enjoyment by the children of a relationship with their father. Nevertheless, the orders sought by the mother and supported by the ICL would give, at best, only ‘recognition’ contact for the children with their father on four occasions per year. The question remains whether such contact is conducive of forming a meaningful relationship?
Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence
Amendments to the Act now evident at section 60CC(2A) mandate that the Court is to give “greater weight” to this consideration in the balancing process with section 60CC(2)(a)
Despite some optimism in respect of the father, such as he completing some appropriate courses and from Dr K, the fact remains that the evidence tends towards a history of family violence perpetrated by the father on the mother of various types evidenced by state court intervention orders. There is also concern to the admission by the father in the Family Report of at least one episode of physical violence perpetrated by him on one of the children. In the broadest sense, the father’s admitted mental health issues including those of anxiety and agitation cause concern in respect of his propensity to act violently and spontaneously. These concerns have not been abated by the fact that the father did not remain in court to be cross-examined on such issues. Suffice to say that the mother maintains her assertions of the father's violent demeanour and of the impact on her and the children.
Section 60CC(3)(a) - any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views
These children are still young and are perhaps not of an age where they can maturely rationalise their own views and preferences as to the relationships with their parents. They do not, however, appear to have acted negatively or with any hesitation in the observations made by Ms B for the Family Report.
Evidence from the bar table suggests that the children of late have expressed a more assertive view negative to having a relationship with their father. I place little weight, however, on this in an evidentiary sense and prefer on the balance of probabilities that the children have been inquisitive and open to having a relationship with their father.
Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and any other persons (including any grandparent or other relative of the child)
The children are still young and have had no direct contact with their father since December 2022. Contact prior to that time has been supervised. Their memory retention of their father figure in their lives must be tested accordingly. To the contrary, the children appear to have a successful and happy relationship with their mother who is the dominant and prominent parent in their lives.
Section60CC(3)(c) - the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children; to spend time with the children; to communicate with the children the children
The father's time with the children has been hamstrung by interim orders essentially making such time limited by supervision.
It is to be assumed, therefore, that the mother has assumed a more dominant role in the decision‑making responsibilities for the children.
Section 60CC(3)(d) - the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of the parents or any other child or other person
The proposals of the mother and the ICL do not offer any significant changes in the children’s circumstances or in their relationship with their father.
Section 60CC(3)(e) - the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis
This consideration is not relevant.
Section 60CC(3)(f) - the capacity of each of the children's parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs
On the evidence before me, the mother’s capacity to care for the children is demonstrated and unimpeached. The capacity for the father is an unknown on the evidence given that more recently his time with the children has been limited to short periods of supervised time but, for reasons which escape me, not taken up at all since December 2022. Issues of his propensity for family violence and his mental health concerns impact on his capacity to attend to the children's physical and emotional needs.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents and any other characteristics of the children that the Court thinks are relevant
The father's background is Country P and it is clear that it is he who would be best armed and able to attend to the children learning and understanding their cultural background.
Section 60CC(3)(h) - If the children are Aboriginal children or Torres Strait Islander children
This consideration is not relevant.
Section 60CC(3)(i) - the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
It is the allegations of family violence, evidenced by intervention orders, that most impeach the father’s attitude to the responsibilities of parenting. There are indications, however, from the Family Report, that he is a keen parent and one who wishes to be involved in the children’s upbringing.
Section 60CC(3)(j) and (k) - any family violence involving the children or a member of the children's family and any family violence orders that apply or have applied
These matters have been dealt with above.
Section 60CC(3)(l) - whether it would be preferable to make the order which would be least likely to lead to the institution of further proceedings in relation to the children
It is important for the father to understand that parenting orders can only be ‘final’ in the sense that there be no material or significant change to the circumstances of either parent of the children. If the issues that now trouble the Court including but not limited to the father's commitment to spending time with the children; his mental health issues; and the children's views change in the future then there will always be the opportunity to have these matters brought back to court. It should be understood, however, as a matter of policy, repeated litigation of parenting matters is not seen as being in the children’s best interests.
FINDINGS AND CONCLUSIONS
I am able to find on the evidence that the children are settled, stable and happy in their home and in their relationship with the mother. The evidence is that they are achieving and adjusted personally and socially.
There remains ongoing concerns as to the stability of the father’s mental health and its manifestations perhaps at times of stress or agitation as evidenced in the courtroom before me. I am mindful, however, that the husband has established relationships with his health professionals and it is hoped that he can demonstrate compliance with medication and stability in his emotional and psychiatric health.
Due to the husband’s choice not to participate in these proceedings then the Court has no real understanding of why the father has not taken up the opportunity to spend time with the children, albeit supervised, since December 2022. Given the children’s ages, any lengthy gaps in direct contact between children and a parent is likely to damage any established relationships.
As far as the Court can determine, the father’s application included an order that he delegate primary care of the children to the mother consistent with the status quo. As such, the evidence as to the mother appears to be that he concedes generally her capacity to care for the children which is consistent with the evidence before the Court.
Although I have had evidence from the bar table as to some recent reluctance in the children to continue a relationship with their father, the evidence of the Family Report suggests that the children were comfortable in their father’s presence and the orders proposed by the ICL, and now agreed by the mother, would accommodate the children maintaining a form of relationship with the father albeit extremely limited but where continuing concerns as to the father’s mental health and commitment to a relationship with the children remain unaddressed.
In all the circumstances I will make an order that the mother have sole parental responsibility for the children. Firstly, the father has not seen fit to remain for the conduct of this trial which, of course, is a matter of such serious impact on the children that it references directly the obligations of parental responsibility. Secondly, I am satisfied that there has been a history of family violence in this matter such that the presumption of equal shared parental responsibility does not apply. I am also satisfied that the relationship between the parents is essentially a non‑communicative and non-cooperative one such that it would not be in the children’s best interests to exercise equal shared parental responsibility. The children will live with the mother and it follows that she should have sole parental responsibility for them.
I am of the view that the orders sought by the ICL and the mother accommodate the best interests of the children and I will order accordingly.
Finally, and during the short period of this judgment being reserved, it came to my attention that the father filed, as he indicated when leaving the Court, an Application in a Proceeding that the Chief Justice hear his trial. I repeat that no application was made by the father that I recuse myself. As such, it is proper that the father’s Application in a Proceeding be dismissed with the handing of these orders and reasons.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 1 September 2023
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