Astarita and Cotton (No 2)

[2017] FamCA 905

FAMILY COURT OF AUSTRALIA

ASTARITA & COTTON (NO. 2) [2017] FamCA 905

FAMILY LAW – CHILDREN – With whom a child lives – Where the children have meaningful relationships with both parents – Where the mother alleged the children are at risk of harm through physical and sexual abuse by the father – Where the mother failed to comply with orders requiring the children to spend time with the father – Where there are two principal issues: the extent to which the mother was capable of adequately providing for the children’s needs, particularly their emotional needs, and whether the father constituted any risk to the children’s physical and psychological safety – Where the evidence demonstrates the mother was unable to satisfactorily meet the children’s needs and the father posed no material risk of harm to them – Where the mother was found to be unable to facilitate the relationships between the children and the father – Ordered father shall have sole responsibility for the children – Ordered the children shall live with the father and spend time with the mother

Births, Deaths and Marriages Registration Act 1995 (NSW) s 19
Education Act 1990 (NSW)
Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Astarita & Cotton [2013] FamCA 571
Astarita & Cotton [2017] FamCA 87

APPLICANT: Mr Astarita

RESPONDENT: Ms Cotton

INDEPENDENT CHILDREN’S LAWYER: Ms Roberts, Foat Roberts Lawyers

FILE NUMBER: NCC 1651 of 2012

DATE DELIVERED: 10 November 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 23, 24 & 25 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Carty
SOLICITOR FOR THE APPLICANT:	Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Hill

SOLICITOR FOR THE RESPONDENT: CBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Kearney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

1. All former orders relating to the children L and N, each born … 2011, (“the children”) are discharged.

2. The father shall have sole parental responsibility for the children.

3. The children shall live with the father.

4. The parties shall take all reasonable steps to ensure the children spend time with the mother as follows:

   (a)       Until the commencement of the first school term in 2018:

   (i)From the conclusion of school on Friday 24 November 2017 until the commencement of school on Monday 27 November 2017;

   (ii)From the conclusion of school on Friday 8 December 2017 until the commencement of school on Monday 11 December 2017;

   (iii)From 12.00 noon on Friday 22 December 2017 until 5.00 pm on Sunday 24 December 2017; and

   (iv)From 12.00 noon on Friday 12 January 2018 until 12.00 noon on Friday 26 January 2018.

   (b)       From the commencement of the first school term in 2018 and thereafter:

   (i)During school terms, each third weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing on the second Friday of each term;

   (ii)During the Autumn, Winter, and Spring school holidays, from the conclusion of school on the last day of term until 12.00 noon on the second Tuesday thereafter; and

   (iii)During the Summer school holidays:

   (A)When the holidays commence in an even numbered year, from the conclusion of school on the last day of term until 12.00 noon on 7 January; and

   (B)When the holidays commence in an odd numbered year, from 12.00 noon on 7 January until 12.00 noon on the last day before the children are due to return to school in the new term.

5. For the purposes of implementing Orders 3 and 4:

   (a)       The parties shall respectively ensure the children’s:

   (i)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (ii)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (iii)Collection from and return to the police station at Suburb A, NSW.

   (b)The mother is restrained from causing or permitting the children to be taken further than 50 kilometres from their residence when spending time with her pursuant to Orders 4(a)(i), 4(a)(ii), 4(a)(iii), and 4(b)(i).

   (c)The father is restrained from attending the children’s school within 15 minutes of the time at which the mother is due to collect or return the children from or to the school pursuant to these orders.

6. The parties shall take all reasonable steps to ensure the children communicate privately by telephone with whichever parent they are not then staying at 6.00 pm on:

   (a)       Mother’s Day (but only if then living with the father);

   (b)       Father’s Day (but only if then spending time with the mother);

   (c)       The children’s birthday; and

   (d)       Christmas Day;

   which shall be implemented by the parent with whom the children are not then staying telephoning the children on the telephone number provided by the other parent and the parent with whom the children are staying ensuring the children are able to receive the other parent’s calls on that number at that time.

7. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

8. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

9. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate and each party is at liberty to attend those events to the extent ordinarily permitted by the school or other sporting or cultural organisation.

10. The father shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

12. In the event of either party notifying the police or a prescribed child welfare authority that either child has been abused or is the subject of actual or potential abuse, the notifying party shall simultaneously (or as soon as possible thereafter) provide to the person to whom the notification is made a copy of these orders and a copy of these reasons for judgment.

13. Pursuant to s 19 of the Births, Deaths and Marriages Registration Act 1995 (NSW):

    (a)       The father is found to be the biological father of the children;

    (b)The Registrar is ordered to include the father’s paternity of the children as part of the registrable information about them in the Register and to re-issue fresh birth certificates for the children disclosing his paternity; and

    (c)The father shall do all things necessary to facilitate compliance with this Order as an incident of his sole parental responsibility for the children.

14. The mother shall do any and all such things necessary to facilitate the implementation of Order 13 hereof.

15. The parties shall forthwith cause the children to be delivered to the Senior Family Consultant of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Senior Family Consultant (or her delegate), the reasons for such orders.

16. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

17. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

18. Costs are reserved for 28 days.

19. Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Astarita & Cotton (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1651 of 2012

Mr Astarita

Applicant

And

Ms Cotton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is the second time the applicant father and respondent mother have resorted to litigation over their twin girls, now aged six years.

2. Orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) were last made between the parties in respect of the children in August 2013, but they only had ephemeral success. The mother ceased her compliance with those orders in June 2015 and the father instituted these proceedings in July 2015.

3. The parties’ dispute over the children encompassed all aspects of their care and, as the trial unfolded, it became clear the outcome of the proceedings hinged principally on two issues: the extent to which the mother was capable of adequately providing for the children’s needs, particularly their emotional needs, and whether the father constituted any risk to the children’s physical and psychological safety. The evidence demonstrated the mother was unable to satisfactorily meet the children’s needs and the father posed no material risk of harm to them, so it was necessary to restructure their living arrangements.

History

1. The parties’ romantic relationship lasted barely 12 months and ended at about the time of their children’s birth in 2011. After the children were born, the mother would not allow the father to see them, so he commenced proceedings and interim orders were then made in August 2012 providing for the children to regularly spend short amounts of time with him.[1] That litigation was finalised in August 2013. Orders were made for the parties to have equal shared parental responsibility for the children, for them to live with the mother, and for them to spend time with the father under an escalating regime culminating in substantial amounts of time once they commenced school (which occurred in 2017).

   [1]Astarita & Cotton [2013] FamCA 571 at [2]

2. In June 2015, in the midst of the parties’ increasing vexation, the mother ceased compliance with the orders. She refused to allow the children to spend time with the father and so he commenced these proceedings in July 2015. He applied for orders reversing the children’s residence because he perceived the mother was actively undermining their relationships with him. The mother opposed the father’s application and contended her disobedience of the 2013 orders was justified. No interim orders were made by the Federal Circuit Court as the mother resumed compliance with the 2013 orders in August 2015. Although the impasse between the parties was temporarily resolved, there was no abatement of their underlying conflict.

3. The Federal Circuit Court transferred the proceedings to this Court in November 2015 and, once before this Court, the father acknowledged his pending contravention application against the mother should be adjourned so the parties could concentrate their effort on the resolution of their revived dispute over substantive parenting orders. It was unnecessary to consider any interim parenting orders until the mother again ceased to comply with the 2013 orders in August 2016.

4. Upon the mother’s disappearance with the children, pursuant to the father’s application, a Commonwealth information order was made in November 2016.[2] The mother was located and the father’s application for interim parenting orders was determined several weeks later.[3] It transpired the mother had relocated the children’s residence, without notice, from the Central Coast of NSW to a NSW country town several hundred kilometres away.

   [2] Orders made on 11 November 2016

   [3] Orders made on 24 and 25 November 2016

5. The interim parenting orders made in November 2016 did not alter the 2013 orders in so far as they allocated the parties equal shared parental responsibility for the children and provided the children would live with the mother, but the arrangements under which the children would spend time with the father were changed. The orders required the children to spend alternate weekends and one-half of school holidays with the father, for which purpose the mother was obliged to deliver and collect the children to and from a contact centre on the Central Coast of NSW. Those orders were made with the parties’ consent.

6. It took some weeks for the parties to satisfy the contact centre’s supervisory requirements and so the orders were not implemented until about a month afterwards in December 2016.

7. The children spent only one weekend with the father in late December 2016 before the mother concluded the children were at risk of his sexual abuse and so she gave notice she would cease her compliance with the orders made in November 2016. That prompted another interim application by the father, which was heard and determined in February 2017. The November 2016 orders were discharged, but orders were again made for the children to spend time with the father on alternate weekends and for one-half of the school holidays, with the children to instead be exchanged at a Central Coast police station. The mother was prepared to undertake all of the travelling with the children, so long as she could remain living with them at her new residence. Ex tempore reasons were delivered for those orders and there was no appeal.[4] Those orders were implemented until the trial.

   [4]Astarita & Cotton [2017] FamCA 87

Proposals

1. The father abandoned the orders set out in both his Amended Application filed on 5 June 2017 and the minute of orders he tendered at the commencement of trial.[5] Instead, he sought the orders set out in the revised minute of orders he tendered on the last day of trial.[6] He sought sole parental responsibility for the children, for them to live with him, and for them to spend time with the mother on alternate weekends during school terms (sometimes confined to an area in proximity to the children’s residence) and in school holiday periods.

   [5] Exhibit F1

   [6] Exhibit F5

2. The mother abandoned the orders set out in her Response filed on 1 August 2017 and instead sought the orders set out in the minute of orders she tendered.[7] She sought sole parental responsibility for the children, for them to live with her, and for them to spend time with the father in only school holidays. However, in final submissions, she proposed the children could also spend time with the father on weekends during school terms, provided the visits were confined to the township in which she lives with the children.

   [7] Exhibit M1

3. The Independent Children’s Lawyer sought the orders set out in the minute of orders she tendered at the commencement of final submissions.[8] She proposed that the father have sole parental responsibility for the children, that they live with the father, and that they spend time with the mother on three weekends each school term (confined to the area in proximity to the children’s residence with the father), in school holidays, and on other special occasions.

   [8] Exhibit ICL6

Evidence

1. The father relied upon his affidavit filed on 15 September 2017. Despite being granted leave to adduce evidence from the paternal grandmother,[9] he did not do so.

   [9] Order 6(a) made on 26 May 2017

2. The mother relied upon:

   (a)Her affidavit filed on 1 October 2017; and

   (b)The affidavit of the maternal grandmother filed on 11 October 2017.

3. The parties and Independent Children’s Lawyer also relied upon the following documents prepared by the Family Consultant:

   (a)The Memorandum dated 27 May 2016;

   (b)The first Family Report dated 24 January 2017; and

   (c)The second Family Report dated 21 April 2017.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. The parties litigated these proceedings accepting the children enjoy meaningful relationships with both of them, from which they do and desirably should continue to derive benefit.

2. Nonetheless, the mother perceived the children’s physical and emotional safety was compromised while in the father’s care and, as a consideration in the determination of the orders that most aptly reflect their best interests, the asserted risk to their safety took precedence over their retention of meaningful relationships with him (s 60CC(2A)). Consequently, the evidence upon which the mother relied to prove the alleged risk of harm posed by the father assumed prominence in the proceedings and is considered under s 60CC(2)(b).

1. For his part, the father denied he posed any risk of harm to the children at all. He contended the children were liable to lose their valuable relationships with him because the mother undermined them, due to the shortcomings of her parenting capacity, which evidence is considered under s 60CC(3) of the Act.

Section 60CC(2)(b)

1. As it transpired, the mother believes the father sexually abused the children and tried to suffocate one of them. She honestly believes they are at risk of psychological harm due to the father’s sexual abuse and also at risk of physical harm, perhaps even death, by his physical abuse.

2. Importantly, the mother’s genuine beliefs are entirely reliant upon reports made to her by the two children at various times over the last year or so. She reported their disclosures to the authorities for investigation, but the children did not apparently repeat their disclosures to the authorities.

3. Despite the absence of such corroboration, the mother tenaciously adhered to her beliefs. No other inference is reasonably available, given her evidence in cross-examination to the effect of:

   My daughters don’t lie.

   My daughters wouldn’t make up lies.

   I can only act on the information given to me by them [the children].

   I have to believe my daughter…I wanted her to have her voice.

   There is absolutely no doubt she told me fact.

   Yes. I think he [the father] is a risk to the children.

   I would prefer supervision [of the children with the father].

4. The mother’s insistence on acceptance of the literal truth of every statement made to her about the father by such young children was puzzling, particularly since she was impelled to admit that children are not always truthful, especially when they are trapped in the middle of intense parental conflict, as these children undoubtedly are. Of course, regardless of how earnestly the mother believes in the risks of harm posed by the father, the actual existence of the risks depends upon the objective evaluation of available evidence.

   Sexual abuse

5. The mother conceded she stopped the children from spending time with the father in both August 2016 and December 2016, in breach of existing orders, following revelations to her by one or both children. Despite the importance of the issue and the need to produce the best evidence about it, she adduced surprisingly little evidence about those events and the manner in which she responded to them.

6. She deposed that, in August 2016, one child placed a finger “in” her bum over her clothing and, when questioned about it, both children reported the father made the first child do it to him. She therefore terminated the children’s contact with the father and reported the disclosure to the authorities.[10] However, her cross-examination about that incident revealed:

   (a)Her evidence was inconsistent because she originally reported she was touched by the child “near” her bottom, not “in” her bottom as she deposed, which inconsistency was significant because the touch of a parent’s buttocks by a young child need not be sexually orientated, particularly when it occurs over clothing;

   (b)There was no rational basis upon which she could discern whether the child intentionally touched her bottom in a sexualised way, even though that is obviously how she perceived it at the time; and

   (c)Her report to the authorities was investigated, the children made no meaningful disclosures to the authorities, and her suspicion of the father’s sexual abuse of the children was not substantiated.

   [10] Mother’s affidavit, paras 88-92

7. The evidence adduced by the mother at trial about the incident in December 2016, which again caused her to terminate the children’s visits with the father, was also scant.[11] Unfortunately, her evidence about that incident was no better than the unsatisfactory evidence she adduced about it at the interim hearing in February 2017. Ex tempore reasons were then given for why the state of the evidence was found to be unsatisfactory,[12] but she made no real attempt to improve the quality of the evidence at trial – perhaps because it was incapable of improvement. In any event, by reference to both the facts evident from the interlocutory judgment and the evidence adduced at trial, it was revealed:

   (a)Her evidence was inconsistent about whether the disclosures were then made by only one or by both children;

   (b)The surrounding circumstances under which the children made the disclosures to her remain unknown, other than that she volunteered in cross-examination the disclosures were made when she was engaging them in a discussion about “going to big school” and “privates”;

   (c)One child did once accidentally touch the father’s penis when they were in the shower and so he stopped showering with them;[13] and

   (d)Her report to the authorities was investigated, the children made no meaningful disclosures to the authorities, and her suspicion of the father’s sexual abuse of the children was not substantiated.

   [11] Mother’s affidavit, paras 146-147

   [12]Astarita & Cotton [2017] FamCA 87 at [18]-[26]

   [13] Second Family Report, para 41

8. The evidence fell well short of proving, on the balance of probabilities, that the father sexually abused either child at any time. The evidence also fell well short of demonstrating that the children are at unacceptable risk of harm by their subjection to the father’s sexual abuse. Indeed, the mother’s counsel inferentially, if not expressly, conceded that to be so.

9. Although the mother’s maintenance throughout the trial of a proposal for the children to spend unsupervised time with the father suggested she did not genuinely believe the children are at risk of sexual abuse by him, her sworn evidence was contradictory. In fact, the parenting proposal she instructed her lawyers to pursue and her sworn evidence of risk were irreconcilable.

   Physical abuse

10. The mother admitted in cross-examination that within only a month of the trial, on 27 September 2017, she took one child to the local hospital emergency department for physical examination and she summoned the police to investigate her allegation that the father attempted to suffocate the child. Curiously, tendered records imply the child did not actually make the disclosure until they were already at the hospital to investigate the child’s unrelated illness,[14] though that apparent inconsistency was not explored in cross-examination.

    [14] Exhibit ICL5

11. Although the evidence about what the child said remains imprecise, records compiled independently of the mother reveal the child reported she awoke the night before at the father’s home “with a pillow on her face and she couldn’t breathe”.[15] The mother imputed the child meant the pillow was either deliberately placed or held over her face by the father, from which she concluded the father had tried to suffocate her.

    [15] Exhibit ICL5, page 6

12. Several alternate hypotheses about the incident can be easily rejected. If, as the mother believed, the father put the pillow over the child’s face, the incident could not be passed off as a silly game because the child was asleep and not awake to participate in it. Nor could it have been a misguided attempt by the father to discipline the child, if she was asleep and unaware she was being disciplined. The mother reasoned the father deliberately tried to smother the child, but she was unwilling to contemplate the illogicality of that conclusion even though the father could have easily overpowered the child’s resistance when she woke and accomplished his murderous objective had he wanted. It necessarily follows, therefore, the father either swiftly abandoned his intention to murder the child when she woke or there is another entirely innocent explanation – for example, the mother jumped to a ridiculous conclusion when the child reported nothing more sinister than waking with a start. The latter explanation is consistent with the version of the facts evident from independent records. The child told the authorities she woke up with the pillow over her face and could not breathe, at which point the father repeatedly hit her on the back. She did not attribute fault to the father and she “could not give any further details” about the incident.[16] It is entirely plausible the child did wake with a start, perhaps in distress, and the father comforted her by patting her back repeatedly. Significantly, the police did not regard the allegation as worthy of any further investigation.

    [16] Exhibit ICL5, page 6

13. Notwithstanding the recency of the incident and the mother’s expressed belief in the father’s willingness to kill or harm the children, she said nothing of it in her affidavit, which she swore only several days afterwards. Intriguingly, she advanced no satisfactory explanation for the omission. The father said in evidence-in-chief he could not remember any recent incident of that kind and, significantly, he was not challenged about it in cross-examination.

14. The evidence fails to demonstrate the father tried to physically harm the child on that occasion, and furthermore, fails to demonstrate the children are at unacceptable risk of physical harm (let alone death) by subjection to the father’s abuse.

15. The incident does, however, prove the mother’s complete loss of faith in the father as a parent. One parent’s opinion of another parent cannot sink any lower than adherence to an honest belief the other parent is both willing and able to murder their children. It only serves to exemplify how, if the children live with the mother, she would be faced with the constant dilemma of trying to reconcile her fear for the children’s safety and her support of their relationships with the father by ensuring they spend unsupervised time with him, which issue is yet to be addressed.

    Family violence

16. The mother deposed discursively that the father continued to be “abusive” after the orders were made in the first bout of litigation in 2013 and she still felt intimidated by him.[17] While the mother does appear quite apprehensive about the father, it became unnecessary to make any factual findings about her contested allegations of family violence because they ceased to be influential in the outcome of the proceedings.

    [17] Mother’s affidavit, paras 84, 114

17. First, it was uncontroversial that, regardless of the history between the parties, the children should live primarily with one of them and spend substantial amounts of unsupervised time with the other.

18. Secondly, the parties now live a long way apart and will have nothing to do with one another, other than when the children are exchanged between them, so the children’s future exposure to any family violence between them is unlikely.

19. Thirdly, the prospect of family violence is even further reduced by minimising the need for the parties’ physical attendance at the children’s exchanges and, when that is still necessary, ensuring the venue is safe. The exchanges should therefore occur at the children’s school whenever possible. When that is not possible, such as during school holidays, the mother’s counsel said her apprehension would be satisfactorily ameliorated by the changeovers occurring at a police station. That has been the case since the last interim orders were made in February 2017 and no party reported any problems since.

20. Significantly, the mother’s counsel abstained from challenging the father in cross-examination about the disputed allegations of his commission of family violence, even when put on notice it would be obligatory for him to do so if the allegations were pursued as an influential consideration in the litigation. Eventually, the mother’s counsel did not submit for any findings to be made about the father’s past commission of family violence.

21. Nevertheless, for the sake of completeness, it is obvious the parties’ relationship was occasionally fractious. Police concluded in December 2015 the father had harassed the mother,[18] and conversely, the mother occasionally behaved in a manner which amounted to family violence in the broadest sense of that concept (s 4AB). For example, she apparently behaved irrationally and aggressively when the father took one of the children to hospital for treatment in September 2014,[19] at which time she admitted in cross-examination she was intoxicated, upset, frustrated, and tearful.

    [18] Exhibit ICL2

    [19] Exhibits F3, F4

Children’s best interests – additional considerations

1. The father contended the mother’s capacity to provide for the children’s emotional and intellectual needs was impaired (s 60CC(3)(f)) and that her attitude to the responsibilities of parenthood was defective (s 60CC(3)(i)). The submission was amply established by the mother’s repeated failure to comply with numerous court orders, her unwillingness to genuinely support the children’s relationships with the father, and her failure to ensure the children’s regular and timely attendance at school.

2. The mother’s repeated failure to comply with orders can be catalogued by the following summary:

   (a)Final orders were made in August 2013 requiring the children to spend regular amounts of unsupervised time with the father,[20] but:

   [20] Order 4 made on 7 August 2013

   (i)In June 2015 she disobeyed the orders by terminating the children’s visits to the father. She informed the father by text message her decision was due to his aggressive and disrespectful behaviour.[21] She knew she was acting in breach of Court orders, because she admitted it.[22] In cross-examination she said she acted in response to the father’s “out of control” behaviour, by which she meant his alleged surreptitious entry into her home, which he denied.[23] She was asleep at the time and the disarray within her home could feasibly have been caused by the unsupervised children, as the father contended they reported to him they did, or perhaps another intruder was responsible, since the mother experienced that sort of intrusion on at least one other occasion.[24] The provisional apprehended violence order then made against the father by police at her request lapsed shortly afterwards and the State court dismissed the pending application for an apprehended violence order against the father. The mother resumed compliance with the 2013 orders, but only after the father commenced these proceedings seeking orders reversing the children’s residence.

   [21] Father’s affidavit, paras 113-114

   [22] Father’s affidavit, para 116

   [23] Father’s affidavit, paras 122-126, 130-131, 284

   [24] Mother’s affidavit, para 131; Memorandum, paras 30-31

   (ii)In August 2016 she disobeyed the orders by terminating the children’s visits to the father due to her first allegation of him sexually abusing them. She later consented to fresh orders in November 2016 restoring the children’s visits with the father, but only following him filing an interim application to reverse the children’s residence.

   (b)A final order was made in August 2013 granting the parties equal shared parental responsibility for the children,[25] but the mother disobeyed that order by failing to consult the father about:

   (i)The ophthalmological advice and treatment she sought for one child’s impaired vision (at least after March 2015);

   (ii)Her secretive relocation with the children from the NSW Central Coast to rural NSW, in or about October or November 2016, while she was also in breach of the orders requiring the children to spend time with the father (which residential move made restoration of the children’s visits to the father under the 2013 orders even more difficult, if not impossible); 

   (iii)The speech therapy she arranged for one child at her new school once she moved to rural NSW; and

   (iv)The psychological counselling she arranged for the children once she moved to rural NSW. 

   (c)A final order was made in August 2013 requiring the parties to keep one another informed of their contact details.[26] The mother breached that order when she moved to an undisclosed address in rural NSW and changed her telephone number. Even though she considered that action was necessary to relieve her anxiety, as the father contended, he was entitled to know where the children were living.[27]

   (d)Final orders were made in August 2013 requiring the parties to ensure the father’s paternity of the children was formally recorded by the NSW Registrar of Births, Deaths and Marriages.[28] The mother rebuffed the father’s requests to assist in the registration of his paternity. She was confronted with his multiple text messages to her on the subject[29] and was unable to deny her breach of the order. Her recalcitrance means now, more than four years later, the NSW Register has still not been amended, which precluded the father from adding the children to his Medicare card.[30]

   (e)Interim orders were made in November 2016,[31] with the mother’s consent, requiring the children to spend regular amounts of unsupervised time with the father. Even though she undertook to faithfully comply with the orders,[32] she terminated the children’s visits with the father in December 2016 due to her second allegation of his sexual abuse of them. The mother’s assertion she had “not done anything wrong” since the orders were made in November 2016 was not correct.[33] Although she said she thought she was being “protective” and “doing the right thing” by terminating the children’s interaction with the father when she made the allegations of sexual abuse, she acted unilaterally and did not move the Court for any variation of the existing orders on the basis of the evidence upon which she purported to act. It was the father’s interim application which brought the proceedings back before the Court. Contrary to what she told the Family Consultant,[34] she adduced no evidence at all of her instruction by the child welfare authority to act as she did. It is unlikely she would have been so instructed, since none of her allegations of the father’s abuse of the children were ever substantiated.

   [25] Order 2 made on 7 August 2013

   [26] Order 11 made on 7 August 2013

   [27] Father’s affidavit, para 262

   [28] Orders 9-10 made on 7 August 2013

   [29] Father’s affidavit, paras 74-80, pages 126, 128, 132, 133, 149, 202, 204

   [30] First Family Report, para 30

   [31] Order 2 made on 25 November 2016

   [32] Notation B made on 25 November 2016

   [33] Mother’s affidavit, para 135

   [34] Second Family Report, para 39

3. Against that background of non-compliance, if the children continue to live with the mother, one could have little confidence she would faithfully comply with orders requiring them to regularly spend substantial amounts of unsupervised time in the father’s care. The mother’s counsel argued her compliance with the interim orders since February 2017 was enough proof of her future compliance with orders, but objectively, that was far too little proof. That argument entirely ignored the mother’s very recent allegation that the father tried to suffocate one of the children. In all probability, had the mother not been under continuing scrutiny in these pending proceedings with the trial imminent, she would have again acted wilfully on that allegation to terminate the children’s relationships with the father.

4. While the mother may genuinely feel she must act to protect the children, on each occasion it has occurred, her belief was not vindicated. On the contrary, the evidence tended to demonstrate her impulsivity and propensity to think the worst of the father at every available opportunity. Her willingness and tendency to ignore Court orders when it suits her is only enhanced by her distrust of him and her fervent belief he is dishonest and capable of sexually and physically abusing the children. She feels the children are in “real danger” in his care.[35] She cannot shake that belief, which haunts most decisions she makes about the children. The Family Consultant feared the mother was pre-disposed to always look for sinister explanations for benign events in the children’s lives. Most probably, her predicament will endure for the foreseeable future, which conclusion is borne out by the mother’s comments to the Family Consultant, whom she told the current orders are not in the children’s best interests and to whom she implied she was only inclined to comply with orders that were, in her opinion, more “child focussed”.[36]

   [35] Mother’s affidavit, para 113

   [36] Second Family Report, para 49

1. The mother tends to interpret all things concerning the father adversely. She deposed the children were “afraid of their father” and were “displaying high levels of anxiety”.[37] While the honesty of her opinions may be accepted, they are not objectively probative of the facts she asserted. The Family Consultant found no evidence the children were fearful of the father. Rather, they were only acutely anxious about their exposure to the parties’ rank conflict, for which both parties deserve censure. It reflects equally poorly on their parenting capacity. In the last bout of litigation between them, the parties were both found to have impaired parenting capacities, but they each sought to emphasise the other’s shortcomings and minimise their own.[38] As the Independent Children’s Lawyer observed in this litigation, nothing has changed.

   [37] Mother’s affidavit, paras 88, 96

   [38]Astarita & Cotton [2017] FamCA 87 at [53]-[54]

2. Whether or not the parties are cognisant of it, they each continued to involve the children in the conflict and there were numerous stark examples of it. They both made video recordings of the children to try and create evidence for forensic advantage in these proceedings. Although the Family Consultant only referred to the father having done so,[39] the mother admitted video recording the father and children in both her affidavit[40] and during her cross-examination. The Family Consultant was surely correct to observe the parties prioritised their own needs above the children’s needs when they did so.[41]

   [39] First Family Report, paras 43-44

   [40] Mother’s affidavit, paras 126-127

   [41] Second Family Report, para 27

3. The children reported their perception to the Family Consultant last year that the parties were “mean to each other”, which led the Family Consultant to conclude the children were aware of the parties’ mutual dislike and were traumatised by the parental conflict. That was no surprise to the parties because they each said in cross-examination the children had referred to the other parent as “mean” in their presence. The mother even conceded the parties had been “at war” since before the children’s birth. The Family Consultant warned that, if there was no change in the level of conflict, the children would be emotionally damaged, about which she tried to educate the parties.[42] Unfortunately, the parties were impervious to the education. Nothing changed.

   [42] Memorandum, paras 22, 23, 37, 41, 48

4. The parties both admitted engaging the children in conversations about the other party and their future. The father said in cross-examination he asked the children only a month ago about with whom they wished to live. The mother said in cross-examination she finds it “very difficult to explain to the girls the father’s behaviour”, which implied his behaviour was a topic of discussion between them in her home. The children’s comments to the Family Consultant betrayed their knowledge of information which was critical of the father and which only the mother could possibly have imparted to them.[43] In each case, the parties’ behaviour demonstrated a distinct lack of insight into the children’s emotional needs and applied pressure on them to forge an allegiance with one parent in preference to the other. Although the mother eventually conceded the conflict between the parties was mutual and the children have been badly affected by it, she maintained she could not have tried any harder to avoid it. She must not see any scope for improvement then.

   [43] Second Family Report, paras 59, 61

5. When the Family Consultant reviewed the family this year, one child again volunteered the father was “mean”, to which the other child responded by refuting the allegation and repeatedly hitting her head, causing the first child to retract her allegation of the father’s meanness.[44] The Family Consultant explained in cross-examination that the child who beat herself was so distressed she was unable to verbalise the depth of her despair. The Family Consultant openly considered the need to eliminate one parent from the children’s lives altogether as the “last resort” option to reprieve the children from continuing exposure to conflict.[45] In cross-examination she explained the children were unable to reconcile, on the one hand, their lived experience of loving relationships with each parent and, on the other hand, their awareness of the parties’ mutual animosity. Although the children appear primed by the mother to dislike their visits with the father, their oppositional behaviour dissolves quickly in his company.[46] Even though the children love each parent and wish to express their love freely, they do not feel free to do so for fear of offending the other parent. That tension causes anxiety which, if unchecked, is liable to cause their lasting psychological damage. For those reasons, quite apart from the children’s young age and immaturity, no heed is paid to their views about wanting to remain with the mother in rural NSW.[47] Their views are likely to be only reflections of the mother’s desire.

   [44] Second Family Report, para 60

   [45] First Family Report, paras 22, 59; Second Family Report, para 118

   [46] Second Family Report, paras 82-84

   [47] Second Family Report, paras 54, 59, 63

6. The Family Consultant’s opinion about the children being torn between the parties was independently corroborated by the psychologist to whom the children were taken by the mother in 2016. She also considered the children’s stress, anxiety and aggression was probably attributable to their exposure to the high conflict between the parties.[48]

   [48] First Family Report, para 45, Annexure C

7. One other aspect of the mother’s parenting capacity is relevant. She is unable to consistently ensure the children’s attendance at school in a timely way. The problem was not confined to 2017, by reason of the children’s alternate weekend travel between the parties’ distant homes, as the Family Consultant seemed to erroneously assume.[49] Years ago, the mother had trouble getting her older sons to school on time consistently.[50] She has not overcome the problem with the children, who started school this year. Even before they started school, on occasions when the father collected the children from the mother’s home, he found them unsupervised in the house with the mother asleep in bed.[51] Now they have commenced school, the children report the same problem,[52] even though the mother conceded in cross-examination she lives only three kilometres from the children’s school and classes do not begin until 9.00 am. The problem is so pronounced that, only last month, the school principal required the mother to give written undertakings under the Education Act 1990 (NSW) to ensure the children attend school each day unless their absence is explained by medical certificates, in default of which the department intends taking action against the mother in the Children’s Court of NSW to obtain “compulsory schooling orders”.[53]

   [49] Second Family Report, para 30

   [50]Astarita & Cotton [2017] FamCA 87 at [60]-[61]

   [51] Father’s affidavit, paras 96-108

   [52] Father’s affidavit, para 256

   [53] Mother’s affidavit, paras 53-54, Annexure H

8. The father intends enrolling the children at a public school close to his home on the Central Coast if orders are made for the children to live with him. They previously completed an orientation program at that school before their relocation with the mother and are familiar with it. The father said he has ascertained there are places available for them at the school. It is likely he will do better than the mother ensuring the children’s diligent attendance at school, which is important for both their academic development and peer socialisation.

9. Otherwise, there was little to differentiate the parties’ capacity to meet the children’s physical needs. They are both capable of feeding, clothing, and accommodating the children. Although they both work, their employment commitments are flexible and they each have the practical support of family members who live relatively close to them. The children have warm relationships with the members of both the maternal and paternal families.[54]

   [54] First Family Report, para 17; Second Family Report, paras 15, 63

10. Although the evidence touched upon other considerations prescribed by s 60CC(3) of the Act, it was not contended they were relevant to the outcome of the proceedings.

Conclusions and orders

1. For the reasons given earlier, there are reasonable grounds to believe some family violence occurred between the parties, in which event the presumption of equal shared parental responsibility does not apply (s 61DA(2)). But even if it did apply, the presumption would surely be rebutted by the evidence which demonstrated the children’s best interests would not be advanced by such an order. The parties are too highly conflicted to share parental responsibility for the children in the manner the law requires (s 65DAC).

2. The Family Consultant recommended that the primary carer of the children should have exclusive parental responsibility for them,[55] which reflected the parties’ mutual view at that time.[56] The parties’ evidence-in-chief was to much the same effect. The mother deposed she “can no longer communicate” with the father[57] and he deposed he was only prepared to communicate with the mother via email, unless there was a genuine emergency.[58] The parties and the Independent Children’s Lawyer all sensibly proposed that the residential parent should have sole parental responsibility for the children and, although the mother proposed the parties should have equal shared parental responsibility if the children live with the father instead of her, the proposition was inexplicably inconsistent with the argument she made for why she should have sole parental responsibility for the children if they live with her.

   [55] First Family Report, paras 64-65; Second Family Report, para 117

   [56] Second Family Report, paras 33, 45-47

   [57] Mother’s affidavit, para 10

   [58] Father’s affidavit, para 406

3. The removal of the children from the mother’s primary care would undoubtedly be an emotional wrench for them because they are primarily attached to her and have never lived away from her.[59] However, while recognition of that fact as an influential consideration is one thing, according it determinative status is quite another. Even taking that factor into account, the Family Consultant’s overall recommendation was expressed thus:[60]

   If the Court finds that the mother is unable to facilitate a relationship between the children and the father [as is found], then in the absence of unacceptable harm in the father’s home [as is found] they should live with him…

   [59] First Family Report, para 61; Second Family Report, para 112

   [60] Second Family Report, para 122

4. The Family Consultant adhered to that recommendation in cross-examination when alerted to important pieces of evidence elicited from the parties during their cross-examination. She said it was “very important” for the children to have meaningful relationships with “both” parents so, given the evidence proves the children probably would not be able to sustain healthy relationships with the father into the future if they live with the mother, the better option is for them to live with the father, since he poses no tangible risks of harm to them. The Family Consultant went on to say she was confident the father could support the children emotionally. As the Independent Children’s Lawyer submitted, orders for the children to live with the father have an element of experimentation, but that option carries less risk of the children’s emotional harm than leaving them in the mother’s primary care. The children’s emotional disturbance upon their removal from the mother’s primary care is likely to be short-term because they will still see each other frequently, whereas the emotional damage they sustain from the probable loss of their relationships with the father if they remain living with the mother is likely to be permanent and pervasive. That is an issue of primary importance (s 60CC(2)(a)).

5. The evidence did not warrant the mother’s elimination from the children’s lives, which the Family Consultant contemplated as a last resort,[61] because there is a much greater likelihood of the father supporting the children’s relationships with the mother than of her supporting their relationships with him.

   [61] First Family Report, paras 22, 59; Second Family Report, para 118

6. On the question of the time to be spent by the children with the mother, various permutations were mooted. The mother will remain living where she currently lives in rural NSW, regardless of with whom the children live. She was asked to contemplate the prospect of the children living with the father, in which event she did not entertain the notion of her relocation back to the Central Coast, even though her boyfriend still lives there. She heard the Family Consultant strongly recommend the children should not be conveyed between the Central Coast and the rural township where she lives on weekends during school terms, because the arduous journey for them was not justified for such relatively short visits. She did not take issue with that recommendation. Accordingly, the questions posed to her canvassed the frequency with which she was willing to travel to the Central Coast to see the children on weekends in school terms. She asserted she would travel each alternate weekend, but it is difficult to accept she will be willing to travel that frequently indefinitely. She told the Family Consultant she might be willing to take the children to the Central Coast one weekend per month to see the father,[62] but she even resiled from that admission at one point during her cross-examination. Her belated commitment to travel on alternate weekends when she realised her residential status was under threat was more desperation than considered thought. The children would be disappointed and might infer their abandonment by the mother, to their consequent emotional detriment, if they expect to see her every alternate weekend and she fails to adhere to that commitment.

   [62] Second Family Report, para 18

7. The Independent Children’s Lawyer instead proposed the mother travel to the Central Coast on three weekends each school term for visits with the children, which was a wise compromise. It is still frequent enough, but not so frequent to be too onerous and to dissuade the mother from regular commitment to the orders. She said she could stay with her boyfriend or other friends, who still live on the Central Coast, when she visits the children so their physical confinement to that area on those weekends is not unduly oppressive. The restraint will prevent her from taking the children back to her home town on those weekends, contrary to her admissions about the arduousness of the trip.

8. Aside from those weekend visits in school terms, the children will spend about ten consecutive days with the mother in the Autumn, Winter, and Spring school holidays, as the father proposed. They will be the first ten days of the holidays so the orders are as prescriptive as possible. From next year, the Summer school holidays are halved and rotated between the parties to reduce the number of changeovers, as the Family Consultant recommended the reduction.

9. In the meantime, the orders prescribe the dates and times of the children’s weekend and school holiday visits with the mother over the next few months while their residence with the father is consolidated.

10. The father said in cross-examination the children’s changeovers at venues other than police stations had been “massive failures”, the accuracy of which evidence passed unchallenged. The parties need to be kept apart. That will be ensured by the changeovers occurring at the children’s school whenever possible, which suited both parties, but otherwise at a local police station, which the mother wanted.

11. When the mother collects or returns the children from or to school, to avoid confrontation between the parties, the father is restrained from being at the school at or about those times.

12. Otherwise, changeovers will occur at the Suburb A police station. The police station closest to the father is chosen for several reasons: he will be the children’s primary carer; it was the mother’s decision to move away from the area, which made the changeovers so much more difficult, so she can bear the brunt of the difficulty; while ever she chooses to live so far from the father her weekend visits with the children during school terms will be confined to an area within reasonable proximity of the father’s residence so the changeovers should also be close to his home; and choosing a venue equidistant between the parties’ distant homes is fraught with the prospect of the parties failing to meet at or near the stipulated time because of traffic and mechanical failure.

13. It may not be to the children’s advantage for them to eventually realise their parents can only abstain from physical or verbal confrontation by exchanging them at a police station, but if that is what is required to quell any prospect of family violence it is the only viable option.

14. The father was open to telephone communication between the children and the mother,[63] which was eventually recommended by the Family Consultant after she initially advised against it.[64] That evidence was not the subject of either cross-examination or submission. The orders provide for restricted telephone communication.

    [63] Father’s affidavit, para 405

    [64] First Family Report, para 69; Second Family Report, para 125

15. An order is made pursuant to the Births Deaths and Marriages Registration Act 1995 (NSW) so the father’s paternity of the children can finally be registered by the NSW Registrar and fresh birth certificates may be issued for the children reflecting their proper parental status. The State legislation envisages paternity findings and registration orders being made by a Commonwealth court.

16. An order is made for the children to be presented to the Senior Family Consultant of Child Dispute Services so she (or her delegate) may explain the orders and reasons to them in a manner commensurate with their maturity, as the Independent Children’s Lawyer sensibly proposed.

17. In accordance with the Independent Children’s Lawyer’s proposal, an order requires copies of these orders and reasons to be provided to the police and child welfare authority in the event of any further allegations of the children’s abuse being made to either of those authorities for investigation. That will ensure any fresh investigation is carried out in a proper historical context.

18. Otherwise, the orders are self-explanatory and could not be the subject of rational dispute.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 10 November 2017.

Associate: 

Date:  10 November 2017