ASTARITA & COTTON

FAMILY COURT OF AUSTRALIA

ASTARITA & COTTON

[2013] FamCA 571

FAMILY LAW – CHILDREN – best interests – mother and father to have equal shared parental responsibility for the children even though finding of previous family violence rendered the presumption of equal shared parental responsibility inapplicable.

FAMILY LAW – CHILDREN – with whom the children shall live and spend time – children shall live with the mother – children shall spend substantial and significant time with the father, increasing as the children get older – children too young to express their views – desirability of children retaining residence with their half-siblings – orders foster the children’s relationships with both the maternal and paternal extended family – where the father failed his obligation to maintain the children.

FAMILY LAW – PATERNITY – paternity of the children to be disclosed to the NSW Births, Deaths and Marriages registrar – father’s paternity to be included on fresh birth certificates for the children.

Births Deaths and Marriages Registration Act 1995 (NSW) ss 22, 28

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65Y, 65Z, 65AA, 65DA, 65DAA, 65DAC, 65DAE
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) s 4AB

Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
M v B [2001] FamCA 894
MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Astarita

RESPONDENT:

Ms Cotton

INDEPENDENT CHILDREN’S LAWYER:

Mr Grant, Grant & Co

FILE NUMBER:

NCC

1651

2012

DATE DELIVERED:

7 August 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

15, 16 & 17 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Obradovic

SOLICITOR FOR THE APPLICANT:

Tsuzukete Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Friedlander

SOLICITOR FOR THE RESPONDENT:

Catalyst Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fraser

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Grant, Grant & Co

Orders

All former orders relating to the children L and N, both born on … 2011, (“the children”) are discharged.
The mother and father shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The mother and father shall take all reasonable steps to ensure that the children spend time with the father, unless otherwise agreed:
(a)Until the children attain two years of age:
(i)Each alternate weekend from 9.30 am on Saturday until 5.30 pm on Sunday, commencing on the first Saturday after the date of these orders;
(ii)Each Wednesday from 9.30 am until 5.30 pm, commencing on the first Wednesday after these orders; and
(iii)From 1.00 pm until 5.30 pm on the children’s birthday 2013.
(b)Thereafter, until the children commence school:
(i)Each alternate weekend from 9.30 am on Saturday until 5.30 pm on Sunday; and
(ii)Each Tuesday from 9.30 am until 5.30 pm, commencing on the first Tuesday after the children attain two years of age;
(iii)Each Thursday from 9.30 am until 5.30 pm, commencing on the first Thursday after the children attain two years of age; and
(iv)From 1.00 pm until 5.30 pm on the children’s birthday each year.
(c)From the commencement of school by the children:
(i)During school terms:
(A)Each alternate weekend from the conclusion of school or 3.30 pm on Friday (whichever is the later) until the commencement of school or 9.00 am on Monday (whichever is the earlier), commencing on the first Friday of each school term; and
(B)Each Wednesday from the conclusion of school until 7.30 pm.
(ii)During school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year;
(iii)During the Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year; and
(iv)From 5.30 pm until 8.00 pm on the children’s birthday each year.
Order 4 hereof is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years;
(b)From 9.30 am on Good Friday until 5.30 pm on Easter Monday each year, during which period the children will spend time with the mother from 9.30 am on Good Friday until 9.30 am on Easter Sunday, and with the father from 9.30 am on Easter Sunday until 5.30 pm on Easter Monday in even numbered years, with the same arrangements in reverse in odd numbered years; and
(c)From 5.30 pm Saturday on each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend.
For the purposes of implementation of Order 4(c) hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at the commencement of school on the first day of the new school term, and the mid point is the day halfway between those days.
For the purpose of implementing Orders 4 and 5 hereof, the party with whom the children are to live or spend time shall collect the children, unless otherwise agreed:
(a)From day-care, pre-school or school, whenever such time is to commence following the conclusion of day-care, pre-school or school, or
(b)From the other party or his/her nominee at the McDonalds Restaurant … whenever such time is to commence at a time other than the conclusion of day-care, pre-school or school.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.
The parties shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the father’s paternity of the children, and that fresh birth certificates issue for the children disclosing the father’s paternity of the children.
The parties are at liberty to provide a sealed copy of these orders to the Registrar appointed under the Births, Deaths, and Marriages Registration Act 1995 (NSW).
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.
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.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Astarita & Cotton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1651of 2012

Mr Astarita

Applicant

And

Ms Cotton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The subject children in these proceedings are twin girls who are still only 20 months of age.
The applicant father and respondent mother were not married and did not regard themselves as de facto spouses. Their relationship of some 12 months duration finally ended within days of the birth of the children in late 2011. Thereafter the mother precluded the father’s interaction with the children and that situation prevailed until interim parenting orders were made in August 2012, which perpetuated the children’s residence with the mother but provided for the children to spend several hours with the father on three separate occasions each week. The parties successfully implemented those orders and consensually arranged for the children to spend even more time with the father.
Despite such belated but laudable co-operation, the parties began the trial seeking surprisingly divergent final parenting orders. The mother effectively proposed annihilation of the father from the children’s lives and the father proposed a reversal of the children’s residence.
By the conclusion of the trial the mother conceded the children should spend substantial and significant time with the father and the father conceded it could reasonably be concluded the children should remain resident with the mother. Unfortunately, it took a spiteful hearing for the parties to realise as much.
These reasons explain why neither party correctly conceptualised the important issues in the proceedings at a sufficiently early stage and why the children should remain resident with the mother and spend substantial and significant time with the father.

Proposal and primary evidence of the father

The father pressed for the orders set out in his Amended Application filed on 26 February 2013. His proposal entailed the parties having equal shared parental responsibility for the children, the children living with him instead of the mother, and the children spending substantial and significant time with the mother. He also proposed amendment of the children’s surname to adopt both parties’ surnames as a hyphenated surname.
The father tendered a minute of orders,[1] which were only proposed in the alternative to those set out in his Amended Application. However, the father abandoned his application for Orders 28-30 inclusive within that minute. In essence, his fall-back position was for the children to live with the parties for equal time, with such residence to be broken into two and three day increments.
[1] Exhibit F5
The father relied upon his affidavit filed on 17 May 2013 and the affidavit of the paternal grandmother filed on 15 May 2013.

Proposal and primary evidence of the mother

The mother’s proposal was a moving feast. She progressively abandoned the orders set out in her Response filed on 26 September 2012, the orders set out in her lawyer’s Case Outline dated 12 July 2013, and the orders she later proposed during her oral evidence.
Eventually, the mother adopted in almost all respects the orders proposed by the Independent Children’s Lawyer. That proposal provided for her to have sole parental responsibility for the children, for the children to live with her, and for the children to spend substantial and significant time with the father, which time would expand as the children aged.
The mother relied upon her affidavit filed in Court on the first day of trial. She failed to comply with procedural orders requiring her to file evidence in a timely fashion,[2] but commendably, the father and Independent Children’s Lawyer did not object to her reliance on the affidavit.
[2] Orders 6 and 8 made on 15 February 2013

Proposal of the independent children’s lawyer

The Independent Children’s Lawyer did not determine and reveal his proposal until the evidence was closed. He tendered a minute of orders,[3] the nature of which is described above.
[3] Exhibit ICL2
The Independent Children’s Lawyer did not adduce any separate evidence.

Additional evidence

The Court was furnished with a Family Report dated 22 May 2013. The Family Consultant was cross-examined on the contents of that report. Her evidence proved to be reasoned, logical, balanced and was therefore persuasive.

Applicable legal principles

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
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 with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (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 major long-term issues (s 65DAE).
However, 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 best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, 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 the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
These proceedings were commenced on 22 June 2012 and so the amendments to the Act, and in particular to the provisions concerning the definition of “family violence” (s 4AB) and the considerations relevant to findings about the children’s best interests (s 60CC), wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) now apply (see Schedule 1, items 44 and 45).

Best interests of the children – primary considerations

Section 60CC(2)(a)

It was uncontroversial the children enjoy warm and loving relationships with both parties. The parties recognised as much, notwithstanding the multiplicity of their recriminations against one another.
Once the evidence was completed the parties mutually acknowledged, by the nature of the orders they proposed, that the children would benefit from the maintenance and promotion of their meaningful relationships with both parties. That is achieved by ensuring they spend at least substantial and significant time with the non-residential parent.
Importantly, though, the children are primarily attached to the mother as a consequence of their historical care. The children have lived continuously with the mother since their birth. She was their sole carer until September 2012, when they began to spend short periods of time with the father, and since then the mother has remained their primary carer.
In view of the children’s age and stage of development, the Family Consultant regarded their primary psychological attachment to the mother as the pre-eminent factor in the determination of their residence.[4] The father sensibly conceded the force of that evidence during final submissions.
[4] Family Report, para 92
Nevertheless, the children are developing a secondary attachment to the father[5] and the Family Consultant’s observations of the children with the father satisfied her of the existence of strong emotional bonds between them.
[5] Family Report, para 92

Section 60CC(2)(b)

Neither party alleged the children were at risk of harm through exposure or subjection to “abuse”.
Although the parties acknowledged “family violence” had occurred between them in the past, neither alleged the children were at risk of harm through exposure or subjection to family violence in the future. The issue of family violence is therefore only discussed as a consideration pursuant to s 60CC(3)(j) and also as a factor influencing the application of the presumption of equal shared parental responsibility pursuant to s 61DA(2) of the Act.
Considerable evidence was adduced by the father about the mother’s alleged “neglect” of the children. Significantly, it was never expressly submitted that such alleged neglect had the potential to cause either physical or psychological harm to the children. Rather, the evidence was used to differentiate the quality of the parties’ parenting capacity. As a consequence, the evidence is immaterial as a consideration under s 60CC(2)(b) and will be considered as an incident of the mother’s parenting capacity pursuant to s 60CC(3)(f) of the Act.

Best interests of the children – additional considerations

Section 60CC(3)(a)

The children are too young to express any views about their best interests or their parenting arrangements.

Section 60CC(3)(b)

The nature of the children’s relationships with the parties has already been the subject of sufficient comment under s 60CC(2)(a) of the Act.
The children also enjoy close relationships with their half-siblings, the mother’s two elder sons, who form part of the same family unit in the mother’s household. As the Family Consultant unremarkably opined, those are important relationships to foster.[6] That is because such sibling relationships are likely to endure beyond the children’s relationships with the parties.
[6] Family Report, para 93
The father asserted the children’s relationships with their half-siblings would not be deleteriously affected by a reversal of their residence, but that is not so. While reversal of the children’s residence would not destroy the children’s relationships with their half-siblings, it would still necessarily curtail them. Currently, the children regard themselves and their half-siblings as part of the same family unit. That perception would necessarily be fractured if the children move to live with the father and the half-siblings remain resident with the mother.
The mother has, and presumably also the children have, close and loving relationships with members of the maternal family.[7]
[7] Family Report, para 23
The children also presumably have similarly close relationships with members of the paternal family.[8]
[8] Affidavit of paternal grandmother, paras 28-29
The orders will enable the children to satisfactorily foster their relationships with members of the extended maternal and paternal families.

Section 60CC(3)(c)

There was no dispute about the father seizing every opportunity to spend time with the children. He and the mother agreed upon the children spending more time with him than was provided by the interim orders made in August 2012.
The father was also keen, to the extent the mother would allow him, to participate in decisions about major long-term issues in the children’s lives.

Section 60CC(3)(ca)

The father failed to fulfil his obligation to maintain the children.
The mother deposed she has an exemption from the Child Support Agency from seeking child support payments from the father on account of her allegations of family violence against him, and further, the father does not pay any child support to her voluntarily.[9] The cross-examination of both parties only served to corroborate that assertion.
[9] Mother’s affidavit, para 110
The father’s evidence on the issue was most unsatisfactory. He conceded he paid no child support to the mother, but thereafter he obfuscated. He firstly explained he did not pay child support because his paternity details had been omitted from the children’s birth certificates, but then contended he was prepared to pay child support notwithstanding. The father then said he had offered to pay child support to the mother, subject to her provision to him of receipts for the payments, but she had declined his offer. Finally, he conceded he had completed a parenting questionnaire explaining how he regarded his purchases of cigarettes and alcohol for the mother as child support payments.
The mother alleged the father had not given her money, but had rather offered to loan her money. Her assertion of having previously repaid money to the father implied she had, at least occasionally, accepted his loans. As would be obvious, occasional loans of money to the mother is an altogether different situation from the payment of regular child support in order to ensure the children are properly maintained.
The father’s attitude was opprobrious in light of the disparity between parties’ respective financial circumstances. His criticism of the mother for her inability to financially provide for the children’s needs was amazingly audacious given his capacity to pay child support and his wilful decision not to, other than on conditions that suited him.
The mother is impoverished. She deposed to inordinate difficulty in meeting household expenses for herself, her two sons, and the children. She struggles to maintain a roadworthy car and rents a home from the maternal grandmother. She receives no child support payments from the father of her sons and is in arrears with their school fees at their former school, which she is repaying incrementally.
The father’s financial circumstances, whilst not clearly exposed, seem quite comfortable. He is self-employed and works as frequently as he desires. The mother’s assertion that his income includes “cash in hand” was not contradicted by the father. He is also the owner of two residential properties, the net value of which is unknown, but one of which generates rental income for him.[10] The father said in cross-examination that one of his properties is unencumbered.
[10] Mother’s affidavit, paras 111, 114-115
It is difficult to resist the inference that the father’s decision not to favour the mother with child support payments was deliberately tactical. Irrespective, his failure to regularly pay child support is a serious flaw in his attitude.

Section 60CC(3)(d)

The orders will have no adverse effect upon the children. The orders require gradual expansion of the time they spend with the father, which the Family Consultant opined was in their best interests. The children will cope with the reduced period of time they spend in the mother’s care and enjoy the extra time they spend with the father.

Section 60CC(3)(e)

There will be no practical difficulty or expense involved in implementation of the orders. The parties’ households are both on the Central Coast of NSW situated only about five kilometres apart.[11] The paternal grandmother also lives close by,[12] as do some of the mother’s friends.
[11] Family Report, para 8
[12] Mother’s affidavit, para 116
Both parties have registered cars and hold drivers licences, so they have flexible capacity for travel.
The father is self-employed and can arrange his work commitments to suit his commitments to the children. The mother is not currently employed, but wishes to return to the workforce on a part-time basis. She will likely be able to do so at hours that accommodate her primary care for the children.[13]
[13] Mother’s affidavit, para 120

Section 60CC(3)(f)

The Family Consultant was not challenged about her following opinion, which I accept as correct:[14]
Overall it is the view of the Family Consultant that both parents have deficits which have impacted on their ability to parent and co-parent.
[14] Family Report, para 104
Although both parties have experienced difficulties which have impinged their parenting capacity, they both sought to emphasise the other’s shortcomings and minimise their own.
Both parties experienced deteriorated emotional health in the past, but neither now seems significantly afflicted by that form of ill health.
The father’s emotional stability has been disturbed several times in recent years. He became distressed and overdosed on medication when he separated from a former partner in 2008,[15] and again suffered depression and suicidal ideation when the mother ended their relationship and initially severed his relationships with the children in November 2011. His depression, anxiety and adjustment disorder were attributed to separation from the children.[16] The father confirmed in cross examination that he last received psychological counselling and was last medicated at about Easter 2012.[17]
[15] Family Report, paras 47, 101; Exhibit M2
[16] Family Report, paras 100; Exhibit M2
[17] Family Report, para 47
Some 12 months ago the mother sought out counselling to address the trauma she suffered through childhood abuse,[18] which counselling she continues to receive.[19] Despite her counselling, the mother still presented to the Family Consultant as anxious,[20] as she did during the trial, but that presentation was ambiguous. It is unknown whether the mother’s anxiety is pervasive or merely attributable to her worry about the outcome of the proceedings. Even if it was characteristic of her usual behaviour, the evidence fell short of establishing that such anxiety impedes her parenting capacity. The Family Consultant said nothing more than that such a condition “may” mean she would encounter difficulty parenting four children on a full-time basis.[21] The best evidence is that her emotional health is currently stable.[22]
[18] Family Report, para 21
[19] Mother’s affidavit, para 121
[20] Family Report, para 40
[21] Family Report, para 40
[22] Family Report, para 103
The father complained about the physical state of the mother’s former home, describing it as a “pigsty”.[23] He could not have been too concerned about it because the mother told him to “fuck off” if he did not like it, but he not only chose to stay but also to propose marriage to her so they could live together permanently.[24] The father also complained about the frequency with which the children suffered rashes or insect bites or were unkempt, which he occasionally photographed as pictorial evidence.[25] Perhaps the father’s standard of physical care for the children is higher than the mother’s standard, but that of itself is not determinative. It is a consideration of relatively minor importance in the overall circumstances.
[23] Father’s affidavit, para 32
[24] Father’s affidavit, paras 35-37, 53
[25] Father’s affidavit, paras 207, 212, 220, 251; Family Report, para 60
The father’s criticisms of the mother were logically of limited effect for obvious reasons. Even on the father’s proposal, he expected the children to spend substantial and significant unsupervised time with the mother. He seemed not to appreciate the paradox of campaigning against her competence as a parent on the one hand, and on the other, conceding the necessity and appropriateness of the children being cared for her frequently for prolonged periods. When confronted with that anomaly his unconvincing answer was there was less risk of harm to the children if they only spent some, instead of most, of their time in her care.
Of more concern was the reliable evidence of the mother’s long-term failure to ensure her sons attended school regularly. In December 2011, shortly following the children’s birth, the boys’ school principal reported to the NSW Department of Family and Community Services that their school attendance was poor and they were not always adequately fed and clothed.[26] Against that background, the Family Consultant was concerned about the mother’s attendance at her interview without sufficient food for the children.[27]
[26] Family Report, para 39, 53; Exhibit F4
[27] Family Report, paras 40, 88, 106
The mother satisfactorily explained the absence of sufficient food for the children on the day of her interview with the Family Consultant,[28] but her long-standing failure to ensure her sons’ regular school attendance remains unresolved. Over several years the boys have been absent from school for literally dozens of days each school term. Their attendance record was acknowledged to be about 75 per cent, which is simply incapable of acceptable explanation. It could only possibly be due to the mother’s inability to control the boys or her disinterest in their education and socialisation, and either explanation is an indictment of her.
[28] Mother’s affidavit, paras 113-116
Naturally, this litigation concerns the best interests of the children, not the best interests of the mother’s older sons. However, her parenting performance with the boys is liable to reflect upon her parenting performance with the children. The mother’s attitude to the importance of the children’s education and socialisation is a lingering concern.

Section 60CC(3)(g)

The only aspect of the parties’ maturity, sex, lifestyle, or background that was the subject of evidence and argument was the parties’ illicit drug use.
On the basis of their historical observations, each alleged the other still used illicit drugs, which impaired their capacity to care for the children and placed them at risk. However, the mutual allegations proved histrionic and unfounded.
Both parties admitted to past use of cannabis,[29] so their criticism of the other for doing so was somewhat hypocritical.
[29] Mother’s affidavit, para 74; Father’s affidavit, para 30; Family Report, paras 26, 35, 48
An interim order was made requiring the parties to participate in random urinalysis drug testing.[30] Both parties complied. The mother provided negative test results in September 2012 and July 2013,[31] and the father provided satisfactorily negative test results in July 2012 and September 2012.[32]
[30] Order 9 made on 31 August 2012
[31] Mother’s affidavit, Annexures D and G
[32] Exhibits F1 and F2
Those test results corroborated the parties’ oral evidence. The mother said she had been abstinent from illicit drugs from the early stages of her pregnancy with the children and the father said he had been abstinent from the time of their birth in late 2011.
In the face of such uncontradicted evidence it was puzzling why each maintained their allegations against the other of continuing illicit drug use. It was mischievous, perhaps even vexatious, of both of them to do so. The Family Consultant was perfectly correct to observe that the parties’ mutual allegations were unsubstantiated.[33] The father’s suggestion of the mother having a drug “addiction” was plainly inflammatory,[34] as was the mother’s hyperbole that the father used drugs “all day every day”.[35]
[33] Family Report, para 95
[34] Father’s affidavit, para 246
[35] Family Report, para 35
No aspect of the evidence permits a finding on the balance of probabilities that either party continues to use illicit drugs.

Sections 60CC(3)(h), (6)

Neither party nor the children are indigenous Australian.

Section 60CC(3)(i)

Both parties undoubtedly want the best for the children, but their thoughts have been pre-occupied by their criticisms of one another. Each seems as responsible as the other for their petty squabbles.
One aspect of the father’s evidence warrants mention because it calls into question the overall quality of his attitude to the responsibility of parenthood. During his cross examination the father maintained the children would experience no adverse effects through reversal of their residence. He disagreed the children would be detrimentally affected by being wrenched from the mother’s care to live with him. In fact, he said “it would disrupt the mother more than the children”. Self-evidently, such an attitude reveals an alarming lack of insight into the importance of the children’s psychological attachments.
Although the father’s counsel admirably conceded during final submissions the force of the Family Consultant’s opinion about the significance of the children’s primary attachment to the mother, such concession did not cure the impairment in the father’s attitude about the implications of the children’s attachment relationships.
The father was aggrieved by the mother thwarting his interaction with the children following their birth, but he knows she was at least partly motivated to do so by directions to that effect she received from caseworkers of the NSW Department of Family and Community Services. She was threatened with removal of the children from her care if she allowed their interaction with the father.[36] In such circumstances the Court should be slow to infer any impairment to the mother’s realisation of the importance of the children’s relationships with the father. In any event, it took many months for the father to commence these proceedings to remedy that situation, so he was prepared to acquiesce to the circumstances for some time.
[36] Mother’s affidavit, para 58; Father’s affidavit, para 111; Family Report, paras 30, 37

Section 60CC(3)(j)

The occurrence of family violence was a feature of the parties’ relationship, notwithstanding factual discrepancy about the nature of the violent episodes between them and their argument about its potency.
The parties’ evidence was irreconcilable, but the following facts are established on the balance of probabilities.
In July 2011 the parties were travelling together in a car. They argued and the mother was fearful for her safety. When the father stopped the car the mother quickly alighted from the car and ran away, even though they were in a rural area and it was dark, wet and cold. She sought help from the unknown occupiers of a nearby homestead and the police were summoned. It was that incident which led to a family violence order being made against the father for the mother’s protection.[37]
[37] Mother’s affidavit, paras 45-52; Father’s affidavit, paras 74-86; Family Report, para 56
The parties had many heated arguments which caused their relationship to wax and wane.
During one of those arguments in about October 2011 the father hosed the mother with water through an open window of her house whilst he was standing outside and then, as the argument escalated, threw the mother’s mobile telephone causing it to break.[38] The father admitted he did so.[39] It was that incident which led to the father’s conviction for contravention of the family violence order.
[38] Family Report, paras 29, 96
[39] Father’s affidavit, paras 88-98; Family Report, para 96
The father admitted in cross-examination he was “upset” at the time, that he was “not thinking clearly”, and that it was a “silly impulse” and a “brain snap”. Of all the explanations that may be available for such behaviour, they are the most benign.
Regrettably, it is characteristic of the overbearing manner in which the father treated the mother. The mother complained to the father directly that she felt he was “always trying to control [her]”,[40] so he must have known how she felt. He nevertheless rejected the suggestion in cross-examination that he had been “controlling” of the mother, but the evidence demands such an inference. Numerous examples may be cited to illustrate the point.
[40] Father’s affidavit, para 186
When the parties formed their relationship in November 2010 they each perused the other’s Facebook internet page and deleted their respective former partners as friends. However, unlike the mother, the father was not content with merely the deletion of the mother’s former boyfriends from her Facebook page. He corresponded with at least one former boyfriend, interrogating him about why he was still a friend of the mother and whether he still wanted to “fuck” her.[41] The father admitted in cross-examination that he had been “silly” to do so, but it was worse than silly. It was quarrelsome and provocative. The father was warning off the mother’s former boyfriend, thereby indicating to both her and him that the mother could not maintain and enjoy relationships of her choosing without his consent.
[41] Mother’s affidavit, para 78
The mother confided her childhood abuse to the father, in response to which he remonstrated with the maternal family about their lack of support for her. The father did so without the mother’s approval, causing her considerable embarrassment.[42] The father was unrepentant he had taken matters into his own hands. He perceived he was justified since he did it for her benefit.
[42] Family Report, para 21
During the mother’s pregnancy, the father formed the view that the mother was contemplating an abortion. He was so alarmed he told the mother’s two pubescent sons of his fear, apparently in the hope they would speak with the mother and dissuade her.[43] In cross-examination the father explained he did so because he was “stressed”, but the Family Consultant characterised the father’s involvement of the two boys as accomplices in that way as “despicable”, with which I am inclined to agree.
[43] Mother’s affidavit, paras 19-20
The father conceded he secretly removed the registration plates from the mother’s car during her pregnancy, just as she suspected.[44] He sought to justify his action by explaining the car was unregistered and the mother was driving it whilst pregnant, implying he did not want the pregnancy compromised by the mother being involved in a collision, but his motive was fatuous. The state of registration of the car could hardly have had a material bearing upon the probability of the mother being involved in a traffic collision. Even if it did, the father could have easily rectified the situation by paying for its registration. Covert removal of the registration plates from the car only served to make life more difficult for the mother by depriving her of a transport option, even though it may have been unlawful for her to drive an unregistered car.
[44] Mother’s affidavit, para 55
After the children were born, the father conceded he told the mother he did not want the children to be minded by the maternal grandmother, and furthermore, that he was only prepared to permit the mother to use him, the paternal grandmother or professional day-carers to care for the children in her absence, just as the mother alleged.[45] The father seemed to regard such belligerent direction by him of the mother as a legitimate exercise of his parental responsibility. His mistaken assumption of such authority is indicative of his desire to control the mother’s decisions about the children.
[45] Mother’s affidavit, para 108
The mother’s concerns about the father’s intrusions were valid since he acted that way in relation to others as well. In March 2012 the father telephoned the maternal grandmother’s workplace to inform her employer that, in his opinion, she was unfit to hold her position.[46] Understandably the maternal grandmother was angered by his interference and called the police, who then spoke with the father. He admitted the police could well have formed the view that he was argumentative with them. He seemingly had no regret about his unwarranted intervention in the life of the maternal grandmother.
[46] Mother’s affidavit, para 63

In view of the new definition of “family violence” now applicable in these proceedings (s 4AB(1)), repeated episodes of behaviour like that described above which caused the mother to be fearful or controlled are liable to constitute family violence. The mother often remarked during her cross-examination how she felt intimidated by the father, which was also the flavour of the evidence within her affidavit.[47] It is unnecessary to make any finding as to whether such episodes individually amounted to family violence for several reasons. Firstly, findings about the occurrence of other family violence have already been made, secondly, it is unlikely that any further family violence will occur between the parties, and lastly, such controlling behaviour is a reflection upon the father’s parental attitude whether or not it actually amounts to family violence.
[47] Mother’s affidavit, paras 16-23, 28-41
While the mother’s wariness of the father is reasonable in light of her past experiences with him, I do not accept that she remains overtly fearful of the father. Her recent conduct is plainly inconsistent with the existence of any fear.
From time to time the mother voluntarily stayed overnight at the father’s home whilst the children also stayed overnight.[48] Although there is a disparity in the parties’ evidence about how frequently it occurred, there is no doubt that on at least one of those occasions the mother willingly had sexual relations with the father. It is unnecessary to decide whether it occurred only once, as the mother said, or many times, as the father said.
[48] Mother’s affidavit, para 101; Family Report, paras 19, 41
The mother denied to the Family Consultant that she had engaged in sexual intercourse with the father at all,[49] but she conceded in cross-examination her denial was false. She lamely tried to explain the falsehood as forgetfulness, but I reject that explanation in the face of the inconsistent admission in her affidavit that she did not know why she gave the Family Consultant false information.[50] If she truly did forget, which is difficult to accept at face value in any event, she would certainly have offered that explanation in her affidavit. Her failure to do so and her provision of an inconsistent explanation lead inexorably to the conclusion that her evidence on that issue is unreliable.
[49] Family Report, para 33
[50] Mother’s affidavit, paras 103-104
Most likely the mother falsely denied her sexual relationship with the father because she understood how that fact contradicted her asserted fear of him. It is inconceivable the mother would willingly have engaged the father in intercourse at his home if she feared him. The mother was impelled to frankly concede in cross examination she felt safe enough to stay overnight alone at the father’s home.
The mother also conceded she made no allegation of abusive or threatening behaviour against the father following the interim parenting orders being made in August 2012. Having regard to the amount and frequency of their interaction since then, the prospect of further family violence occurring between them seems quite remote. Certainly, no express submission was made that there was a continuing risk of family violence

Section 60CC(3)(k)

The mother formerly obtained a family violence order against the father for her protection. The order was granted in September 2011 but it expired in September 2012.[51]
[51] Family Report, para 5
The terms of the orders are unknown, but it is common ground the father was convicted for contravention of the order during its currency.[52] The father’s willingness to act as he pleases and disregard the family violence order is concerning, as the Family Consultant quite properly observed.[53]
[52] Family Report, para 5; Father’s affidavit, para 88; Family Report, para 46
[53] Family Report, para 98
The mother conceded the police declined to seek an extension of the order on her behalf. She therefore unsuccessfully sought an extension of it herself.[54]
[54] Mother’s affidavit, para 52

Section 60CC(3)(l)

It was not contended that the orders proposed by the parties and Independent Children’s Lawyer were any more or less likely to result in the institution of further proceedings in relation to the children.

Section 60CC(3)(m)

No other aspect of the evidence was contended to be influential in the outcome of the proceedings.

Conclusions and orders

The findings about the past occurrence of family violence necessarily means the presumption of equal shared parental responsibility does not apply to the parties (s 61DA(2)). That conclusion accords with the submissions of the mother and Independent Children’s Lawyer and also the admission made by the father.
Of course, equal shared parental responsibility for the children may still be allocated to the parties, but that determination is informed by the evidence bearing upon the children’s best interests.
The mother and Independent Children’s Lawyer both submitted for the allocation of sole parental responsibility to the mother. They enjoyed the support of the Family Consultant’s recommendation.[55] Instead, the father proposed that the parties have equal shared parental responsibility for the children.
[55] Family Report, paras 108, 112-113
The only explanation offered to warrant the allocation of sole parental responsibility was the mother’s unwillingness to communicate with the father. She expressed it in terms of an “inability” to communicate with the father,[56] but in truth it was nothing more than a reticence. The evidence demonstrated the ability of the parties to regularly confer over issues of relevance to the children.
[56] Family Report, para 42
From the moment the interim parenting orders were made in August 2012 the parties frequently changed arrangements to suit themselves. They agreed upon the children spending extra time with the father, including overnight, and also upon different venues where they would exchange the children, including the mother’s residence. The mother correctly said in cross-examination she had been “very flexible”, for which she of course deserves credit.
But there were occasions on which the mother did not demonstrate such flexibility, such as when she did not discuss with the father her decision to enrol the children at day-care. That, however, does not prove her inability to confer with the father – just her unwillingness to do so when it suits her.
The mother said in cross examination she would do her best to communicate with the father, and further, there had been tangible co-operation between them over the children, particularly in recent times. She agreed with the proposition there was a “chance” they could communicate effectively into the future.
The Family Consultant said it was “fantastic” if communication between the parties was improving. In those circumstances she was at least inferentially prepared to relax her view about allocation of sole parental responsibility for the children to the mother and countenance the prospect of the parties having equal shared parental responsibility.
The evidence warrants a conclusion that the best interests of the children require the allocation of equal shared parental responsibility for them. They are likely to be benefitted by both parties having an equal measure of control over matters of significance to them. The allocation of sole parental responsibility to one parent risks the marginalisation of the other parent in the children’s lives because, as the children mature, there is a risk they would impute, without proper reason, that the parent with sole parental responsibility for them is more important. There is ordinarily good reason for both parents to occupy roles of importance in children’s lives and the nature of the evidence adduced in these proceedings did not demonstrate the case to be one in which the father should be precluded from exercising such a role.
The allocation of equal shared parental responsibility means the Court must alternatively consider the children living for equal time with the parties or living primarily with one party and spending substantial and significant time with the other (s 65DAA).
The option of “equal time” may be shortly dismissed. Although arguably reasonably practicable, it was not in the children’s best interests.
Neither the mother nor Independent Children’s Lawyer desired that outcome, nor was it recommended by the Family Consultant. Although the father sought an equal time arrangement if his primary application for residence was unsuccessful,[57] he sensibly acknowledged his proposal was contrary to the Family Consultant’s recommendation, whose evidence I accept as correct. The Family Consultant steadfastly refused to admit that equal time was a beneficial arrangement for the children, either presently or at any time in the reasonably foreseeable future. She only conceded it was “quite possibl[e] from the age of seven”, which as the terminology literally suggested, was pitched as a possibility rather than a probability. The concession was understandably not therefore adopted by the father as a basis for an order that the parties and the children move to an equal time residential regime when the children attain seven years of age. The evidence was too arbitrary to properly underpin any order restructuring the children’s living arrangements more than five years hence.
[57] Exhibit F5, Order 4
Although the parties have the capacity to communicate and negotiate when necessary over issues of long-term importance to the children, an altogether different and higher level of co-operation is required to support an “equal time” residential regime, particularly for children as young as these. The parties do not yet possess the capacity for that higher level co-operation. They still both professed distrust and lack of confidence in the other. Neither was prepared to speak positively of the other, either in their affidavits or during cross examination.
As the mother, Independent Children’s Lawyer and Family Consultant all recognised, the children’s best interests required an outcome under which they live with one party and spend substantial and significant time with the other. Such an outcome was also reasonably practicable to implement in view of the parties’ residential proximity.
Although the father argued doggedly for the children to live with him for at least equal time, the weight of the evidence was against his proposal. The mother’s desire for the children to remain living with her was supported by the submission of the Independent Children’s Lawyer and the evidence of the Family Consultant.
No doubt some aspects of the mother’s parenting capacity were found wanting, but she seems capable of and committed to improvement of her parenting performance in the face of the chastening criticism to which she was subjected during these proceedings. While the father demonstrated his capacity to meet the physical and emotional needs of the children, he has only done so for short periods over less than the past year, after the interim parenting orders were made. He is still unproven over protracted periods.
The factor of most influence is the children’s primary attachment to the mother by reason of her sole, and more recently predominant, care for them. During cross examination the Family Consultant refused to depart from her opinion that:[58]
The impact of the father’s proposal on the children will be that the children will be removed from the mother who is their primary carer, which would have a detrimental impact on their development due to their attachment to the mother being disrupted.
[58] Family Report, para 92
Importantly, the Family Consultant’s opinion was proffered in the knowledge of the father’s complaints about the mother’s impaired parenting capacity. But no aspect of the evidence demonstrated the Family Consultant’s adherence to her opinion was misguided or erroneous. I accept it as accurate, as eventually did the father.
The other factor of significant influential weight is the promotion of the children’s sibling relationships. During cross examination the Family Consultant endorsed her comments in the Family Report, observing it was “very important” that:[59]
The subject children have close relationships with their older half-siblings and this relationship is an important relationship that should be fostered.
[59] Family Report, para 93
The father correctly submitted the children could maintain their relationships with their siblings if they lived with him, but there is a qualitative difference between “maintaining” those relationships and “promoting” them. The relationships can only be effectively fostered if the children form part of the same family unit as their half-siblings.
Orders are consequently made for the children to live with the mother.
Attention must therefore turn to the nature of the regime under which the children spend time with the father.
There was consensus for the children to spend substantial and significant time with the father. The difference was in the detail.
The Family Consultant acknowledged that the proposals put to her in cross examination by the parties and Independent Children’s Lawyer were all broadly consistent with the children’s best interests. The children are still quite young, so I accept the Family Consultant’s advice that the “substantial and significant time” the children spend with the father should be consistent with their “developmental needs”.[60]
[60] Family Report, paras 111, 113
The Family Consultant initially recommended that the children should spend time with the father for one overnight period per week and extra time during holidays and on special occasions.[61] In cross examination she added that the regime could feasibly expand after the children attain two years of age, but the parties should “get some stability happening first”.
[61] Family Report, paras 116, 118
The Family Consultant said in cross examination, unremarkably, there was no need for school holiday time with the father until the children were actually attending school. The commencement of school was another milestone in the children’s lives at which the parenting regime could logically expand to include two consecutive overnights on alternate weekends and portions of school holiday periods.
The mother and Independent Children’s Lawyer ultimately proposed the children should generally spend each alternate weekend and one full day each week with the father, which regime would be expanded upon the child’s commencement of school.[62] That proposal was adopted by the Family Consultant in cross examination, but as the father correctly observed, the Family Consultant also agreed in cross examination that the children could spend two full days each week with the father, subject to the parties being sufficiently flexible, or two full days in each alternate week.
[62] Exhibit ICL2, Orders 3-5
All of those alternative options involving alternate weekends and midweek days meet the definition of “substantial and significant time” (s 65DAA(3)).
The father did not expressly revise his alternate proposal for the children to live with him for equal time, but it was implicit from his submissions he desired that the children nevertheless spend more time with him than proposed by the mother and Independent Children’s Lawyer.
The parties’ proposals for the children to equitably share their time with the parties on special occasions were broadly similar.[63]
[63] Exhibit ICL2, Orders 6-7
I am satisfied that the children should immediately spend alternate weekends (involving one overnight) and one full day each week with the father, as proposed by the mother and Independent Children’s Lawyer. Upon the children’s attainment of two years of age, several months hence, the regime is expanded by enabling the children to spend two full days each week with the father. When the children begin school, they will spend time with the father on extended alternate weekends, during the school week, and for parts of each school holidays. That program is consistent with the Family Consultant’s evidence.
Provision has also been made in the orders regulating the children’s parenting arrangements on special occasions, but such arrangements are not as fastidious as the parties and Independent Children’s Lawyer proposed. The paucity of evidence and absence of submissions did not permit such an intricate analysis of the various proposals. The parties may depart from the orders if they agree otherwise.
The Family Consultant recommended that the parties exchange the children at a contact centre,[64] but the parties instead proposed they should exchange the children at other venues near to their homes. The mother and Independent Children’s Lawyer suggested the McDonald’s Restaurant,[65] but the father advocated for the police station,[66] consistently with the interim orders. I accept it would be safer if the parties continue to use a public venue so that their behaviour is on public display, thereby minimising the prospect of acrimony, but the formality of the police station or a contact centre is unnecessary to achieve that end. A busy restaurant will suffice. The parties can agree otherwise if they desire, just as they have frequently done in the past.
[64] Family Report, para 114
[65] Exhibit ICL2, Order 8
[66] Exhibit F5, Order 4.5
No orders are made for the children to communicate with the parties by telephone. The Family Consultant recommended against such communication for the moment.[67] The father sought such orders to apply several years hence,[68] but that is a matter best left to the parties’ exercise of equal shared parental responsibility rather than make an order now which was not the subject of any evidence or argument.
[67] Family Report, para 119
[68] Exhibit F5, Orders 8-9
The father proposed a raft of other orders apparently designed to enhance or implement the parties’ exercise of equal shared parental responsibility for the children.[69] No such orders are made because they are entirely otiose in the face of an order providing for equal shared parental responsibility. As earlier explained, the Act dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the children (s 65DAC) and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
[69] Amended Application, Orders 16-24; Exhibit F5, Orders 10-18
The orders sought by the father specifically addressing the children’s travel, both inside and outside the State of NSW,[70] are also unnecessary. Firstly, the Act expressly deals with the parties’ obligations concerning the removal of the children from Australia (see ss 65Y and 65Z), rendering injunctive orders superfluous. Secondly, the removal of the children from NSW to another State or Territory of Australia was not the subject of any evidence at all. There was no suggestion by either party, express or implied, that either party would abduct the child to another part of the country so as to avoid detection. Thirdly, there is nothing exceptional about the children being taken on holiday within NSW. Lastly, any future intention to permanently relocate the children’s residence would be a matter upon which both parties would need to consult in the exercise of their equal shared parental responsibility. The mother abandoned her formerly expressed intention to relocate the children’s residence to Bathurst and re-affirmed her commitment to remain living on the Central Coast.[71]
[70] Amended Application, Orders 27-31; Exhibit F5, Orders 22-27
[71] Mother’s affidavit, para 122
The father proposed an order that the children’s surnames be changed in order that their surname is a hyphenated amalgam of the parties’ respective surnames.[72]
[72] Amended Application, Order 3; Exhibit F5, Order 3
Any decision about the name by which a child should be known is dictated by the child’s best interests. There is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) 4 Fam LR 462). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive, and there are many other conceivable considerations (see Flanagan v Handcock (2001) FLC 93-074 at [19]-[38]; M v B [2001] FamCA 894 at [35]-[37]; Marriage of Mahony & McKenzie (1993) 16 Fam LR 803).

Curiously, no evidence was available to evaluate in the context of those principles. The parties did not mention the children’s proposed name change in their affidavits and neither party was asked a single question about the issue during their cross-examination. Nor was the Family Consultant asked about it. Nor was the issue raised at all in final submissions. In the absence of the parties’ overt consent, the Court should not be expected to make orders about which the parties have joined issue and for which there is no evidentiary foundation. Consequently, the order is not made.
An interim order was previously made requiring the parties to immediately take all reasonable steps to ensure the details of the father’s paternity of the children were included on the NSW Births, Deaths and Marriages Register and to arrange for the issue of fresh birth certificates including those details.[73] That order was made because the mother deliberately omitted details about the children’s paternity when registering their births, for which she had no satisfactory explanation.
[73] Order 19 made on 15 February 2013
Regrettably, despite the elapse of nearly six months, neither party has implemented the order. The father sat on his hands expecting the mother would arrange the alteration and the mother has done nothing. Consequently, a final order is now made requiring the parties to act. So as to eradicate any misunderstanding, the obligation falls upon both of them. The Court has power to make an order to that effect binding either the Registrar or the parties to whom parental responsibility for the children is allocated (see ss 22(3), 28(2), 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW)).
The remaining orders, precluding the parties’ exposure of the children to denigration and requiring the parties to keep one another informed of their contact details, could not be the subject of any sensible opposition.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 7 August 2013.

Associate:

Date: 7 August 2013

[2013] FamCA 571

7 August 2013

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Family Law

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