Banks & Patel
[2024] FedCFamC1F 64
•15 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Banks & Patel [2024] FedCFamC1F 64
File number PAC 1506 of 2018 Judgment of WILSON J Date of judgment 15 February 2024 Catchwords FAMILY LAW – parenting – sole parental responsibility. Legislation Family Law Act 1975 (Cth) s 60CC, 60CA, 121 Cases cited Eastley & Eastley [2022] FedCFamC1A 101
Galea v Galea (1990) 19 NSWLR 263
Isles v Nelissen (2022) 65 Fam LR 288
Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361
Richter v Richter (2019) 63 Fam LR 102
Division Division 1 First Instance Number of paragraphs 88 Date of last submissions 15 February 2024 Date of hearing 12, 13 and 15 February 2024 Place Parramatta Counsel for the Applicant: Ms A Gibbons Solicitors for the Applicant: Takchi & Associates Counsel for the First Respondent: The first respondent was deceased Solicitors for the First Respondent: The first respondent was deceased Counsel for the Second Respondent: Mr L Finch Solicitors for the Second Respondent: Infinity Law Group Counsel for the Independent Children's Lawyer: Ms D Kaiti Solicitors for the Independent Children's Lawyer: Strive Family Law & Mediations ORDERS
PAC 1506 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR BANKS
Applicant
AND MS B PATEL (DECEASED)
First Respondent
MS C PATEL
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY
WILSON J
DATE OF ORDER
15 FEBRUARY 2024
THE COURT ORDERS THAT –
1.All previous orders are discharged.
2.Ms C Patel (“the second respondent”) has sole parental responsibility for the children X born 2014 and Y born 2016 (“the children”).
3.Within seven days of the making of any long term decision for the children, the second respondent shall advise the applicant in writing either by way of text message or email and for the purposes of this order, the applicant shall, within seven days of the date of these orders, provide to the second respondent his email address.
4.The children shall live with the second respondent.
Spend time with/live with arrangements
5.The children shall live with the second respondent and spend time with the applicant as follows –
(a)in week one, from after school on Friday (or 3:00 pm) to 5:00 pm Sunday, with the applicant to collect the children from school at the conclusion of school (or 3:00 pm) and return them to the second respondent’s residence at the conclusion of time; and
(b)in week two, from after school Wednesday (or 3:00 pm) to before school Thursday (or 9:00 am), with the applicant to collect the children from school at the conclusion of school and return the children to school (or 9:00 am) the following day.
6.If the children express a genuine desire to spend additional time with the father then the second respondent will take those wishes into consideration in facilitating additional time.
School holidays
7.During all school holidays order five shall be suspended and the children shall spend time with the applicant on the first half of all school holidays in each odd numbered year and the second half in each even numbered year and vice versa with the second respondent with the person who the children are to spend time with to collect the children from school at the conclusion of the last day of school (or 3:00 pm) and return the children to the other party as set out in order eight below.
8.For the purposes of order seven above, changeover will occur at 5:00 pm on the day that represents the midpoint and in the event there are an even amount of days, changeover will occur on the day closest to the return to the term one school year.
9.Any provision of time under this order that is inconsistent with this paragraph shall be suspended.
Changeover
10.During school holidays and public holidays, changeover shall occur by the applicant father collecting the children from the second respondent’s residence and returning the children to the second respondent’s residence at the conclusion of his time with the child.
Telephone contact
11.Each night, the children shall have telephone time with the other party when the children are not in their care from 6:00 pm to 7:00 pm.
Restraints
12.Each party is restrained from denigrating the other party or members of his or her family in the presence or hearing of the children and shall be restrained from causing or allowing any third party to denigrate the other party or members of his or her family in the presence or hearing of the children.
13.The parties must encourage and not undermine each child's relationship with the other party.
14.The parties are restrained from discussing these or any other court proceedings with or in the presence or hearing of the children.
15.The parties are hereby restrained from physically punishing or chastising the children.
16.The applicant must refrain from taking photographs of the children's clothing, including the children's underwear when the children are in his care.
17.The applicant is to refrain from cutting either child's hair whilst in his care.
18.The applicant must ensure that –
(a)the children are provided with appropriately sized clothing for her and his age;
(b)the children are provided with appropriate recess and lunch during school with no expired food; and
(c)the children are taken to entertainment areas or centres suitable to his and her age.
Health
19.While the children are living with or spending time with each party, that party must –
(a)notify the other party by telephone or text message as soon as practicable if either child becomes sick, suffers a medical emergency, injury or illness;
(b)in the event that either child is hospitalised or receiving medical attention as a result of a medical emergency, that party must notify the other party as soon as practicable after the first contact with either ambulance, medical practitioner, medical centre, hospital or health care professional and provide his or her name, address and sufficient details to enable both parties to be consulted with respect to and fully advised of any treatment recommended or provided and to visit the child if hospitalised or confined to bed;
(c)advise the other party of any appointments to enable the other party to attend;
(d)consult with the children’s treating health care professional or service; and
(e)provide a copy of any medical documents including but not limited to reports, letters, tests and scans from any and all health care professionals or service in his or her possession.
20.The applicant is at liberty to raise with the second respondent by way of text message or email any concerns he may have with respect to the children in which case the second respondent must, within 14 days of the applicant raising his concerns with the second respondent consider such concern and make any appointment with either child’s general practitioner and advise the applicant of her decision with respect to his concerns.
21.The applicant is restrained from taking the children to medical appointments without the written consent of the second respondent unless it is a medical emergency as outlined in paragraph 19(b) above.
22.Within seven days of the date of these orders, the second respondent must enquire with an audiologist and book the first available appointment for X to have a hearing test.
23.The second respondent must forthwith notify the applicant of the identity of the audiologist and the date the hearing test is to occur as set out in paragraph 22 above and inform the applicant about cost of the audiologist appointment.
24.The applicant must pay the cost of the hearing test as set out in paragraph 22 above and upon the second respondent informing the applicant of the cost, the applicant must forthwith pay that sum.
25.The second respondent must follow all recommendations of the audiologist.
26.These orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats either child to provide information to the other party upon request by the other party, to the extent permitted by law.
Counselling
27.The second respondent must continue to engage the children in counselling including but not limited to grief counselling and the second respondent will do all things and follow all recommendations of the counsellor.
Travel & passports
28.Pursuant to s 65Y of the Family Law Act 1975, each party is at liberty to take the children from Australia for the purposes of international travel.
29.Pursuant to s 11 of the Passports Act 2005 the children are permitted to have an Australian passport or travel-related documents provided the application for that document is made by the second respondent, who may sign any declaration on the application without the applicant’s consent or signature.
30.In regard to travel the following shall apply –
(a)the second respondent will retain the children’s passports and make them available for the purposes of overseas travel; and
(b)the parties are permitted to travel outside of the Commonwealth of Australia with the children but only to countries which are Hague Convention countries provided each gives the other party 30 days written notice (by e-mail or text message) of their intention to travel and that such travel occurs within their time as ordered above or otherwise agreed and provides the other parent (by e-mail or text message) with an itinerary including the destination, flight numbers and times, and an address or addresses where the children can be contacted whilst outside of Australia 30 days prior to the travel.
31.For the purpose of facilitating overseas travel in accordance with order 30 above and subject to the father’s compliance with order 30(b), the second respondent will provide the children’s passports to the father three days prior to travel and the father is to return their passports within three days of returning to Australia.
32.If the children’s passports are lost or not returned in accordance with paragraph 31, then the party who was last in possession of the passports shall pay for the costs of replacing the passports.
Other
33.The party with whom the children are living or spending time is to be responsible for day-to-day decisions concerning the care, welfare and development of the children.
34.Each party is hereby authorised to –
(a)obtain from the child's schools all notices, letters, newsletters, school reports, invitations, photographs, orders, forms or otherwise any other document pertaining to the child's school and education;
(b)liaise directly with the children's school, sporting bodies and/or extracurricular organisation to obtain any necessary information about the children's progress and attendance;
(c)attend all events involving the children including school functions and events that allow for parental attendance including parent/teacher interviews, concerts, school assemblies, sports days, canteen duties and social functions that parents are ordinarily invited to; and
(d)obtain copies of any medical documents including but not limited to reports, letters, tests, scans etc. from any and all health care professionals or service.
35.Each party is to keep the other informed of his or her residential addresses and current telephone numbers and advise the other of any changes within 24 hours of any such change.
36.The parties are at liberty to attend any extra-curricular activities or sporting activities in which the children are enrolled.
37.Each party is at liberty to provide a copy of these orders to the children’s schools.
38.The Independent Children Lawyer’s appointment is hereby discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
In late 2021, the children in issue in this litigation,[1] were taken into the care of their mother's sister[2] following the mother's sudden death, since which date a very considerable disagreement has arisen between the children's father[3] and the children's maternal aunt over the proper parenting orders to be made on a final basis.
[1] The boy is presently ten years of age and his sister is presently seven years of age.
[2] She is the second respondent.
[3] He is the applicant.
The father and the maternal aunt has each applied for sole parental responsibility for the children. Presently operative parenting orders are reposed in orders made by a Senior Judicial Registrar of this court on 22 April 2022.
The maternal aunt seeks orders for the children to live with her. She wishes the children's time with the father to be in accordance with a prescribed regime.
As these reasons reveal, I have concluded that orders largely in accordance with the proposals put forward by the maternal aunt represent orders that promote the best interests of the children. The father's proposal for sole parental responsibility is to be rejected.
SOME BACKGROUND
The father is of Country E heritage. The mother was of Country D heritage, although she was born in Australia. The maternal aunt is of Country D heritage having been born in Australia. The mother and father were in a de facto relationship that commenced in 2013. It concluded on 21 July 2016, according to the father, when the mother left the father and the children, not returning thereafter.
In late 2021, the maternal aunt collected the children and thereafter took them into her care. At the time, the mother had formed a relationship with a man not being the father. Since late 2021, the children have lived continuously with the maternal aunt. The father's time with the children has been, in large measure, in accordance with the orders made on 22 April 2022.
While in the care of the maternal aunt, she arranged for the children's schooling to be conducted at a school in which the maternal aunt admitted the father had no say. The maternal aunt and her husband have two children of a similar age to the boy in issue in this case.
It was common ground that the father and the maternal aunt have had almost no contact with one another since late 2021 when the children came into the care of the maternal aunt. The maternal aunt has insisted in this proceeding that at all times since the death of her sister, the maternal aunt has acted protectively towards the children and has actively promoted their best interests. Concurrently, the father presently maintains that he is the children's father, he is best able to care for the children by reason of his status as their father, and that his wish for sole parental responsibility for the children should not be subordinated to the maternal aunt’s.
Several experts provided evidence in this proceeding although only one was called to give viva voce evidence and to be cross-examined. He was Mr F. He was cross-examined about the information on which he relied in making the recommendations set out in his reports and in expressing the various observations he expressed. I found Mr F's evidence most useful in determining the matters that fell for decision.
With certain qualifications, the Independent Children's Lawyer supported the orders propounded by the maternal aunt.
THE EXPERT EVIDENCE
Several reports went into evidence by agreement. They were as follows –
(a)Ms G, 3 October 2018;
(b)Ms H, 25 July 2019;
(c)Ms J, 20 November 2021;
(d)Mr F, 1 November 2018; and
(e)Mr F, 18 May 2023.
Some of the reports were provided for use in this litigation when the mother was alive. Since late 2021, the involvement of the maternal aunt has been of critical importance. That said, very little expert evidence was before me about the issues that I must decide on this application, namely, the contested application for sole parental responsibility and for time.
Mr F's 18 May 2023 report was the most temporally relevant report that addressed the competing issues between the father and the maternal aunt. Mr F recorded that the father was very critical of the maternal aunt and of her parenting. Mr F recorded that the maternal aunt attempted to influence the children in their views of the father. Mr F recorded what he described as a bizarre allegation by the father that the maternal aunt's husband prevented the daughter from using a toilet resulting with the daughter wetting the bed. Mr F recorded the children's views to include –
(a)how they refer to the maternal aunt by the word "mum";
(b)that the father tells the children that the children should live with him and that he says “bad things” about the maternal aunt;
(c)the boy described the maternal aunt as his favourite;
(d)the daughter told Mr F she wanted to live with the maternal aunt and to see the father one day a week; and
(e)Mr F said it was difficult to attribute much weight to the views of the daughter.
Mr F offered various observations in a way that corresponded to several of the subsections of s 60CC(3) of the Family Law Act. For brevity, I have addressed Mr F's comments in my consideration of each of those specific subsections.
Mr F did not make any recommendations about parental responsibility except to say that he took the view that equal shared parental responsibility did not appear to be feasible. He said the least intrusive arrangement was for the children to maintain their current regime for time spent with the father.
Ms K, a psychologist, provided a report to Dr L on 12 September 2023. Dr L is the father's general practitioner. Ms K reported that the father presented with anxiety, loss and grief and that he suffered from depression although the father did not present an immediate risk of suicide.
PARENTAL RESPONSIBILITY
In allocating parental responsibility, the Family Law Act requires me to make an order that is in the best interests of the children. Any consideration of the best interests of the children enlivens a consideration of certain specific provisions of the Family Law Act. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must (and this is a mandatory requirement) regard the best interests of the child as the paramount consideration. Section 60CC provides a mechanism by which a court determines the best interests of a child. Section 60CC(2) provides that two primary considerations fall for examination and s 60CC(3) provides for an array of additional considerations that call for examination. Each consideration, whether primary or additional, must be addressed for being mandatory. In Richter v Richter,[4] I wrote at length about the interrelationship of those legislative provisions and my observations in that decision should be taken as being incorporated into these reasons.
[4] (2019) 63 Fam LR 102.
As s 60CC(2A) provides, the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, has greater weight than the other primary considerations being the benefit of the child having a meaningful relationship with both parents.
Self-evidently, the maternal aunt is not a parent of the children in issue in this litigation. However, she has had the care of the children since late 2021 and has voluntarily assumed a parental role in relation to the children since then. No party took any point in the trial of this proceeding that the reference to ‘parent’ in s 60CC(2) or (3) was not referable to the maternal aunt. In any event, the parenting orders made by the Senior Judicial Registrar on 22 April 2022 are expressed to apply to the maternal aunt.
So far as the children having a meaningful relationship with their father was concerned, it seemed to me that they currently do. They see him regularly. He loves them and they love him. The father takes the view that the children are his children and that he has a superior claim to parental responsibility than does the maternal aunt. As was pointed out to the father during the course of his evidence, the quest in this trial was for orders representing the best interests of the children. I took the view that the father had real trouble understanding that. It seemed to me that the father's dislike of the maternal aunt was so great that his ability to understand what was in the children's best interests was impaired. Conversely, I took the view that the maternal aunt places uppermost the best interests of the children. She gave evidence that the children refer to her as their mother. It must not be overlooked that the father and the children's mother separated in July 2016 and from 2018 the children's time with the father was irregular. The evidence of Mr F, the family consultant, revealed that the children do in fact enjoy a meaningful relationship with the father.
Evidence of the issues canvassed in s 60CC(2)(b) was less pointed. The father and the maternal aunt each gave evidence that neither contacts the other. The father expressed his disapproval that the maternal aunt took the children into her care immediately upon the death of the mother and without contacting the father. To my way of thinking, it was a commendably selfless act for the maternal aunt to take the children into her home in view of the fact that she and her own husband have two children of their own.
At all events, in early 2022 an episode arose when the father arrived at the home of the maternal aunt demanding to see the children. Police were called. Ultimately, the father departed. The father endeavoured to characterise the episode in a benevolent manner suggesting that he was acting in the best interests of the children by seeking their return. The evidence was not sufficiently precise on this issue to reveal whether the children heard any altercation that may have followed as between the father and the maternal aunt.
The father filed a notice of risk dated 11 March 2022. It referred to incidents on 21 November 2020, 1 May 2021 and 19 November 2021 allegedly committed by the mother's then partner, a person called Mr M. The father alleged that the mother and Mr M exposed the children to cigarette smoke, that the mother and Mr M smacked the children and that the mother and Mr M exposed their naked bodies to the children. The father, in his notice of risk, asserted that the children were at risk of being abducted. As against the maternal aunt, the father asserted (albeit generically under the phrase "the mother's sisters") that the children were not properly supervised while in the care of the mother's sisters, that the children had been verbally and physically abused in the care of the mother's sisters and that the father was concerned for the children's emotional and psychological wellbeing in the care of the mother's sisters.
The father's trial affidavit contained no information to support any of the matters asserted in the notice of risk at least insofar as the maternal aunt was concerned.
Further, Mr F's 18 May 2023 report made no mention of any of the issues raised by the father in his notice of risk in relation to the maternal aunt.
The children are progressing well at school. The evidence revealed that they are balanced and well adjusted despite the loss of their mother. It seemed to me that a conclusion was open that since the maternal aunt has been the primary carer for the children following the mother's death, the children have had the enormous benefit of the care, love and devotion given to them by the maternal aunt. I agree with Mr F when he stated in his 18 May 2023 report that since the mother's death the maternal aunt has become the children's maternal substitute whose role has been highly beneficial for the continuity of the care and emotional adjustment of the children. Mr F reported that each child displays closest attachment to the maternal aunt.
In this proceeding, especially at trial, the father persisted in advancing peculiar allegations against the maternal aunt including assertions that in the presence of the children the maternal aunt frequently appeared completely undressed and that she and her husband regularly engaged in intimate behaviour of a sexual nature. The maternal aunt denied those allegations. The father not having been privy to the events described relied entirely on the say-so of the children about the truth of those allegations. The children are very young. The father gave evidence that he unreservedly accepts what the children tell him. To my way of thinking, assuming the children told the father the matters attributed to the maternal aunt (and I do not accept that the events alleged in fact occurred), it reveals a real shortcoming in the father's role as a parent. It reveals he is willing to accept unreservedly anything the children tell him. It also reveals that he does not put to one side the ongoing feud between him and the maternal aunt when advancing the best interests of the children. In view of his evidence on those two matters I examined all other aspects of his evidence very carefully to assess the truth or otherwise of it.
Even recognising that the English language may not be his native tongue, I formed the view that the father was not faithful to his duty to tell the truth, the whole truth and nothing but the truth, as the High Court explained in Kuhl v Zurich Financial Services Australia Limited.[5] Further, as the trial judge, I enjoyed the benefits of seeing and hearing all witnesses, observing them in the witness box, and not only hearing them but assessing their overall credibility as the Court of Appeal of the Supreme Court of New South Wales observed in Galea v Galea.[6] I did not regard the father as a truthful witness. He was determined to advocate for what he regarded as his right to the children by reason of his status as their father. I formed the view that he was careless in his evidence. He told me he was in good health. Only when documents were put to him did he concede that he had been diagnosed with a serious illness. One wonders how he could have omitted such an answer, conceding the matter only when it was put to him in documentary form.
[5] (2011) 243 CLR 361.
[6] (1990) 19 NSWLR 263.
That conclusion stood in stark contrast to the evidence of the maternal aunt. Where appropriate, she answered questions in cross-examination either agreeing or disagreeing with the proposition put. It was put to her by the father's legal representative that the children had been required to sleep for a prolonged period on a mattress on the floor at the home of the maternal aunt. The maternal aunt denied the proposition conceding that for a short time while bunk beds were being installed, the children's usual sleeping arrangements were interrupted, the daughter having expressed a wish for bunk beds to which the maternal aunt agreed with its attendant costs. The tenor of the line of questioning, obviously on the father's instruction, was to suggest that the maternal aunt had provided inadequate bedding or sleeping facilities for the children over a sustained period of time. The maternal aunt denied that entire line of questioning yet the line of questioning was pressed either in an endeavour to denigrate the maternal aunt or to advance a theory that was not maintainable, namely, that the maternal aunt should not have sole responsibility for the children because she is unable to provide basic accommodation needs for the children. I reject such a suggestion.
Such an approach provided considerable insight into the lengths to which the father would go in his conduct of this litigation. It caused me to pause about whether the father is to be accepted at his word when he confidently assured me that he will abide by the orders I make in this case. I am extremely pessimistic that the father will comply with the orders I make.
The maternal aunt was cross-examined about her allegedly inflexible approach to orders requiring the father to return the children at a particular time on a specific day. The father's legal representative put to the maternal aunt that the maternal aunt was inflexible for failing to accommodate the father when he was late returning the children. As it happened, the delay in returning the children was considerable. The maternal aunt was not required to be flexible. She was perfectly entitled to insist on strict compliance with the orders. She did not need to be accommodating to the father. Precisely why it was suggested that the maternal aunt needed to be accommodating went unexplained. The father's basis for not diligently following the orders caused me to doubt his preparedness to comply with the orders I have made after the trial of this proceeding.
To my mind, counsel for the Independent Children’s Lawyer is correct in submitting that the father has his own narratives which he believes and he refuses to accept that his allegations may not be true. In fact, matters go beyond that. The father refuses to concede that many allegations levelled by him against the maternal aunt were so baseless that they should not have been pursued which indicates to me that he is unable to separate reality from fiction. He was an unreliable witness. Where his evidence was at odds with the evidence of the maternal aunt on the same issue, I have preferred the evidence of the maternal aunt.
An order for sole parental responsibility is a parenting order within the meaning of s 64B(2)(c) of the Family Law Act. A parenting order may be made in favour of a parent or some other person, relevantly here, the maternal aunt, as s 64C provides.
An order for the allocation of parental responsibility, being a parenting order, is premised on the mandatory consideration that any such order must be in the best interests of the child, as has already been observed.
I have already addressed the primary considerations of s 60CC(2)(a) and (b). There remains the consideration of the 14 additional considerations enumerated in s 60CC(3).
But before turning to them it is necessary to make a few observations about the Independent Childrens Lawyer’s contentions concerning the father posing an unacceptable risk to the children. In essence, the Independent Children’s Lawyer contended that by the father making false allegations I should be concerned that he presents an unacceptable risk of occasioning psychological harm to the children. The Independent Children’s Lawyer relied on authority[7] for the proposition that all relevant evidence must be considered to determine whether the risk of possible future harm is unacceptable. A five member court in Isles v Nelissen[8] held that in respect of future activities, the court (me in this case) engages in a predictive exercise invoking the foresight of possible harm. Accordingly, a distinction is drawn between proof of historical facts and the prediction of future possibilities.
[7] Eastley & Eastley [2022] FedCFamC1A 101.
[8] (2022) 65 Fam LR 288
I have concluded that the maternal aunt poses no risk of harm let alone an unacceptable risk of harm to the children.
The maternal aunt gave evidence that she is willing to entrust the children to their father for half of the school holidays. Implicit in her evidence on that issue, as indeed in her third amended application on the issue of the father's time with the children, is the acknowledgment that the maternal aunt takes the view that the father does not present an unacceptable risk to the children. Having heard how protectively the maternal aunt behaves towards the children, it would be most peculiar that she countenanced such time for the children with their father if she seriously entertained safety concerns for the children.
The father sought an order that he, not the maternal aunt, have sole parental responsibility for the children. He presently enjoys a meaningful relationship with the children for the purposes of s 60CC(2)(a). In my view the Independent Children’s Lawyer put the matter properly in contending that the father has an unshakable belief in the truth of the allegations he makes about the maternal aunt especially in relation to her allegedly presenting herself unclothed in front of the children or engaging in conjugal activities, each of which I found to be baseless assertions.
Section 60CC(3)(a) provides that I must consider any views expressed by the children along with any factors the court thinks relevant to the weight to be given to those expressed views. Each child has expressed the wish to live with the maternal aunt. The family consultant cautioned about attaching weight to the daughter's view as she seemed confused about parenting issues and several of her statements revealed third party influence. The family consultant recommended that the children continue to live with the maternal aunt.
Section 60CC(3)(b) requires attention to be directed to the nature of the child's relationship with each parent (relevantly here, the father) and other persons (relevantly here, the maternal aunt and the children's extended family). The family consultant, Mr F, reported that both children enjoy their interactions with both the father and the maternal aunt. Mr F reported that the least intrusive option for the children is to maintain the time they currently spend with the father.
Section 60CC(3)(c) calls for an examination into the extent to which the parties have taken or failed to take the opportunity to participate in decision making about major long term issues concerning the children, to spend time with the children and to communicate with the children. The evidence was scant in relation to the father's involvement on those three issues in the period between 2018 when he separated from the mother and the mother's death. Since the maternal aunt took over the care of the children the father has had very little involvement (if any) in decision making on long term issues. He has spent time with the children in accordance with orders made by the Senior Registrar since the date of those orders in April 2022.
The maternal aunt has been intimately involved in decision making about long term issues concerning the children. She arranged for the children to be enrolled in their current school. The father was not involved in that process. The maternal aunt has spent time with the children on a daily basis when the children were not in the father's care and the maternal aunt has communicated with the children as if the children were her own. I was enormously impressed by the maternal aunt's devotion to these children. Her conduct towards them has been emblematic of care, concern and devotion. The same cannot be said of the father.
Maintenance of the children was not put in issue. That said, the maternal aunt and her husband have assumed all financial responsibilities in respect of the children since late 2021. The father is in receipt of a weekly sum following an industrial accident some years ago. Section 60CC(3)(ca) of the Family Law Act called for those matters to be addressed.
Section 60CC(3)(d) required an examination of the likely effect of any changes in the children's circumstances of any separation from either parent or any other person with whom the child has been living. The import of this section is on the margins because the orders I have made provide for the children to remain living with the maternal aunt.
Section 60CC(3)(d) raised no relevant matter. That section required me to consider the practical difficulty and expense of a child spending time with and communicating with, relevantly here, the father or the maternal aunt. The orders made will ensure a continuation of the arrangements by which the children have spent time with their father since April 2022.
Section 60CC(3)(f) requires me to address the capacity of the father and of the maternal aunt to provide for the needs of the children, including the emotional and intellectual needs of the children. Taking the father first, he has worked as a labourer. No details were given of his schooling. He seems to be able to provide for the needs of the children at this phase of the children’s tender years. That said, he was critical of the maternal aunt for failing to take his son for a hearing test. The father has suspected hearing issues with his son for a long time but he has taken no effective step to investigate the matter or treat it, if a problem exists at all. The father has been less than diligent in pursuing medical appointments for the children. I accept that at this stage of their lives the children regard their time with the father as being fun. As they grow and mature, the father will need to provide for their emotional and intellectual needs beyond providing a fun time. Conversely, the maternal aunt and her husband currently provide for the emotional and intellectual needs of the children along with those of their own children. They hold responsible jobs. They are diligent in their discharge of their parental obligations. In my view, a solid state of assuredness should be attributed by me to the maternal aunt and her husband in providing for the needs including the emotional and intellectual needs of the children. The same cannot be said of the father.
No evidence was adduced about the matters relevant to the inquiry mandated by s 60CC(3)(g).
The children are not aboriginal so s 60CC(3)(h) was not relevant.
Section 60CC(3)(i) called for an examination of the father's and the maternal aunt's attitude to the children and to the responsibilities of parenthood. Turning first to the maternal aunt, she has been exemplary in her attitude towards the children and in her attitude to the responsibilities of parenthood. It must be acknowledged that the maternal aunt and her husband have two children of their own so they are experienced parents. The maternal aunt is especially diligent in the discharge of her responsibilities as a parent.
The father has the children in his care with regular frequency. He seems to take the view that it is his right as the children's father to exercise control and influence over the children. He exerted a role in the children's lives when he commenced this proceeding but it must not be forgotten that upon the untimely passing of the children's mother, it was her sister who took control of the situation thereby providing the children with care, support, a home, a regular life and later schooling for her choosing.
The father first exhibited behaviour consistent with his exerting control over the children a few months after the death of the mother. The exchange was not cordial. Police were called. The father demanded the return of the children. The maternal aunt refused. It was she who acted protectively towards the children. The father was purporting to exercise dominion and control over the children. I do not accept that his attitude to the responsibilities of parenthood was child focused. It seemed to me that he was attempting to stymie the maternal aunt's involvement with the children, contending that he was their father and that the children's best interests were served if he cared for the children. That was a fallacious approach.
Section 60CC(3)(j) required me to consider family violence. The father asserted in his notice of risk that the mother's sisters had engaged in a form of family violence. In my view, none was proved against the maternal aunt. Neither the maternal aunt nor the Independent Children’s Lawyer pressed this provision.
The same comments apply in relation to s 60CC(3)(k).
Section 60CC(3)(l) requires an examination of whether it would be preferable to make the order that would be least likely to lead to the institution of further litigation in relation to the children. In the trial of this proceeding, both parties confidently assured me that the father and the maternal aunt will comply with any order I make. I have my reservations about that insofar as the father is concerned. He has already exhibited an approach towards a flexible compliance with orders previously made. Even though I am minded to make the orders sought by the maternal aunt, I have no faith that the father will comply with the orders I make.
Section 60CC(3)(m) invites consideration of any other matter the court thinks relevant. The maternal aunt told me she would like to travel with the children to Country D. That country is not a party to the Hague Convention. I told the maternal aunt I shall not make an order authorising her to travel to Country D. She said she understands and said she did not press that issue.
TIME
The father sought orders for the maternal aunt to have no time with the children. That application was absurd. I reject it. In my view, the maternal aunt's application for the children to live with her is in the children's best interests.
The regime for time for the children to have with the father, as proposed by the maternal aunt, is likewise in the best interests of the children. Upon making an order that deviates from an order for equal shared parental responsibility, no presumption exists that each party is to have equal time with the children. An order in respect of time is a parenting order. A parenting order must be grounded in the best interests of the children. I shall not repeat the above examination of s 60CC(1), (2) and (3), suffice to say that the time with the children proposed by Mr F is a continuation of the time presently operative pursuant to the April 2022 orders. There is considerable merit in that proposal. I make orders in accordance with it.
ORDERS PROPOSED BY THE MATERNAL AUNT
Case law on parenting issues requires me to consider competing proposals advanced by the protagonists. The proposals advanced by the maternal aunt were tolerably straightforward. They were as follows –
Sole Parental Responsibility
1.That the Second Respondent, [Ms C Patel] (hereon ‘the Second Respondent’ or ‘Maternal Aunt’) born […] 1983 have sole parental responsibility for the children, [X] born […] 2014 and [Y] born […] 2016 (hereon ‘the children’).
Spend time with/Live with arrangements
2.That the children shall live with the Second Respondent and spend time with the Applicant Father, [Mr Banks] (hereon ‘the Applicant Father’) as follows:
2.1Week 1: From after school on Friday to 5:00pm on Sunday, with the father to collect the children from school and drop them to the Second Respondent’s residence at the conclusion of time.
2.2Week 2: From after school Wednesday to before school Thursday, with the father to collect and drop off the children to school.
3. That if the children express a genuine desire to spend additional time with the father, then the Second Respondent will take those wishes into consideration in facilitating additional time.
School Holidays
4. That during all school holidays, Order 2 shall be suspended, and the children shall spend time with the Father on the first half of all school holidays.
5. That any provision of time under this order that is inconsistent with this paragraph shall be suspended.
Changeover
6. That during school holidays and public holidays, changeover shall occur by the Applicant Father collecting the children from the Second Respondent’s residence and returning the children to the Second Respondent’s residence at the conclusion of his time with the child.
Telephone contact
7. The children shall have telephone time with the other party when the children are not in their care from 6:00pm to 7:00pm each night.
Restraints
8. That the Applicant Father be restrained from denigrating the First Respondent, [Ms B Patel], the Second Respondent and/or members of their family in the presence or hearing of the children and shall be restrained from causing or allowing any third party to denigrate the Respondents’ and/or members of their family in the presence or hearing of the children.
9. That the parties encourage and not undermine each child’s relationship with the other party.
10. That the parties be restrained from discussing these current proceedings in the presence or hearing of the children.
11. That the parties shall be restrained from using corporal punishment towards the children.
12. Without admissions, the father refrain from taking photographs of the children’s clothing, including the children’s underwear, when the children are in his care.
13. The father is to refrain from cutting either child’s hair whilst in his care.
14.That the father must ensure that:
14.1The children are provided with appropriately sized clothing for their age group.
14.2The children are provided with appropriate recess and lunch during school with no expired food.
14.3 The children are taken to entertainment areas/centres suitable to their age group only.
15.Pursuant to s68B of the Act, the Father is restrained from removing the children from any school in which the children are enrolled.
Health
16.That whilst the children are living with or spending time with each party, that party shall:
16.1Notify the other party via telephone call or text message as soon as practicable should any of the children become sick, suffer a medical emergency, injury or illness whilst in their care.
16.2 In the event that either child is hospitalised or receiving medical attention as a result of a medical emergency, the party shall notify the other party as soon as practicable after the first contact with either ambulance, medical practitioner, medical centre, hospital or health care professional and provide their name, address and sufficient details to enable both parties to be consulted with respect to and fully advised of a treatment recommended or provided and to visit the child if hospitalized or confined to bed.
16.3 Advise the other party of any appointments for the purpose of each party attending.
16.4Consult with the childrens treating health care professional or service.
16.5 Provide a copy of any medical documents including but not limited to reports, letters, tests, scans etc. from any and all health care professionals or service in their possession.
17. The Applicant Father shall not take the children to medical appointments without the consent of the Second Respondent, unless it is a medical emergency as outlined in Order 15.2.
18. That within 28 days from the date of these Orders, the Second Respondent shall organise for the children to attend grief and loss counselling and shall provide progress reports to the Father.
19. These Orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats either child to provide information to the other party upon request by the other party, to the extent permitted by law.
Other
20. The party with whom the child is living/spending time with:
20.1 Is to be responsible for day-to-day decisions concerning the care, welfare and development of the child.
20.2Is to inform the other party of all social, school, sporting, religious, cultural and educations activities/functions in which the child are involved and/or attending.
21.That each party is hereby authorised to:
21.1Obtain from the child’s school/s all notices, letters, newsletters, school reports, invitations, photographs, orders forms or otherwise any other document pertaining to the child’s school and education.
21.2Liaise directly with the children’s school, sporting bodies and/or extra‑curricular organisation to obtain any necessary information about the children’s progress and attendance.
21.3Attend all events involving child including school functions and events that allow for parental attendance including but not limited to parent/teacher interviews, concerts, school assemblies, sports days, canteen duties and social functions.
21.4Obtain copies of any medical documents including but not limited to reports, letters, tests, scans etc. from any and all health care professionals or service.
22. These Orders are authority for the childrens school, extracurricular organisations, sporting bodies and/or other organisations to release such information and/or documents as requested by the other party to the extent permitted by law.
23. That each party is to keep the other informed of their residential addresses and current telephone numbers and advise the other of any changes within 24 hours of such change.
24. The father shall ensure that a child car seat is installed/fitted in his motor vehicle for the child [Y]. If the father does not have an installed/fitted car seat, then time with the father pursuant to these Orders shall be suspended and resumed once his motor vehicle is installed/fitted with a child car seat.
25.That the parties be at liberty to attend any extra-curricular activities or sporting activities which the children are enrolled in.
26.That the Second Respondent is permitted to provide a copy of these Orders to the childrens school, out of school care facilities, extracurricular organisations, sporting bodies, medical and health care practitioners and any other Government authority or organisation as may be necessary.
Resolving Disputes
27. The process used for resolving disputes about the interpretation, implementation or enforcement of these Orders is as follows:
27.1 The parties shall do all things and sign all things necessary to attend and participate counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney General; or
27.2 The parties shall do all things and sign all things necessary to attend and participate in a family dispute resolution with a person authorised under section 10G of the Family Law Act 1975.
Travel & Passports
28. That pursuant to Section 65Y of the Family Law Act 1975, each party can remove the children, [X] born […] 2014 and [Y] born […] 2016 from Australia for the purposes of international travel.
29. That pursuant to Section 11 of the Passports Act 2005, the children, [X] born […] 2014 and [Y] born […] 2016 be permitted to have an Australian passport or travel-related document provided the application for that document is made by the Second Respondent, [Ms C Patel] who may sign any declaration on the application in the form approved by the relevant Minister and for that purpose, the consent and signature of the father is dispensed with.
30. In regard to travel, the following shall apply:
30.1That the Second Respondent retain the children’s passports and make them available for the purposes of overseas travel.
30.2 That the parties be permitted to travel outside of the Commonwealth of Australia with the children provided they give the other party 30 days written notice (via e-mail or text message) of their intention to travel and that such travel occurs within their time as ordered above or otherwise agreed and provides the other parent (via e-mail or text message) with an itinerary including the destination, flight numbers and times, and an address or addresses where the children can be contacted whilst outside of Australia 30 days prior to the travel.
31. That for the purpose of facilitating overseas travel in accordance with Order 30 above and subject to the father’s compliance with Order 30.2, the Second Respondent will provide the children’s passports to the father three (3) days prior to travel and the father is to return their passports within three (3) days of returning to Australia.
32. That the parties be permitted to travel intestate with the children provided they give the other party 7 days written notice (via e-mail or text message) of their intention to travel and that such travel occurs within their time as ordered above or otherwise agreed and provides the other parent (via e-mail or text message) with an itinerary including the destination, method of travel and possible stops, flight numbers and times, and an address or addresses where the children can be contacted whilst outside of Australia 7 days prior to the travel.
33. If the childrens passports are lost and/or not returned in accordance with Order 31, then the party who was last in possession of the passports shall pay for the total costs of replacing the passports.
34. That the father shall engage with a clinical psychologist to assist him in understanding the nature of unremarkable sexualised behaviours in children and to assist the father in understanding the importance of the maternal aunt and the extended maternal aunt’s family’s role in the childrens lives.
35. That the father shall inform the maternal aunt of the name of the clinical psychologist he is attending within 21 days of the date of this Order and the maternal aunt has leave to provide a copy of this Order and the family report of [Mr F] to the father’s clinical psychologist.
36. That the maternal aunt is permitted to contact the clinical psychologist for confirmation of engagement.
37. That upon the completion of six sessions with the clinical psychologist, that the father shall provide to the maternal aunt, a reporting letter from the clinical psychologist outlining the father’s engagement and whether his complying with any recommendations including whether or not treatment should continue.
ORDERS PROPOSED BY THE FATHER
The father's proposals were not well defined at the commencement of this trial. After the close of the evidence, he produced a minute which was in the following terms –
1.All previous parenting orders in relation to the children [X] born […] 2014 and [Y] born […] 2016 (the children) be discharged.
Live with/spend time arrangements with
2.The children live with the father and spend time with the second respondent as follows:
a.For a period of 4 weeks from the date of these orders
i.From after school Tuesday to before school Friday. With the Second Respondent to pick up and deliver the children at their school. If this time falls during a school holiday period then the father to deliver and pick up from the closest McDonalds as nominated by the second respondent.
3.Each party to keep each other informed of their residential address and current phone numbers.
4.The second respondent be at liberty to receive all notices and reports and attend all school functions and celebrations that parents ordinarily attend. That the father ensure that the School are provided with a copy of these orders and these orders are authority for the school, sporting bodies and or other organizations to release such information as requested by the second respondent to the extent permitted by law.
5.The second respondent be at liberty to make telephone contact with the children by agreement and if there is no agreement then each Tuesday and Thursday between 6 and 7 pm and at any other time requested by the children.
6.The father undertakes to make the children available to spend social time with maternal family members as requested by the children and or the second respondent.
7.The father to maintain the current school arrangements unless otherwise advised by a specialist educator where special support, not available at their current school, is advised for either child.
Restraints
8.Without admissions each party are restrained from discussing these proceedings with the children.
9.The parties refrain from or permitting any other person denigrating each other or members of each other’s respective families.
10.The parties refrain from recording or photographing the children outside social norms and to record happy memories.
11.The parties are restrained or permitting other persons from questioning the children about their experience with the other party or their families.
Doing the best I could to comprehend his proposal, he advocated for the children to live with him and for the maternal aunt to have no time with the children. In my view, that proposal was not child focused. If ordered, it would have the effect of removing the children altogether from the life of the maternal aunt. Such an order was antithetical to the best interests of the children. I decline to make it.
ORDERS PROPOSED BY THE ICL
The Independent Childrens Lawyer’s proposal in final form was expansive. It was as follows –
1.That all previous orders be discharged.
2.That [Ms C Patel] (“the Second Respondent”) have Sole Parental responsibility for the children [X] born […] 2024 and [Y] born […] 2016 (“the children”).
3.That within 7 days of the making of any long term decision for the children, the Second Respondent shall advise the Applicant in writing either by way of text message or email and for the purposes of this order, the Applicant shall, within 7 days of the date of these orders, provide to the Second Respondent his email address.
4.The children shall live with the Second Respondent.
Spend time with/Live with arrangements
5.That the children shall live with the Second Respondent and spend time with Applicant as follows:
(a)Week 1: From after school on Friday (or 3pm) to 5pm Sunday, with the Applicant to collect the children from school at the conclusion of school (or 3pm) and return them to the Second Respondent’s residence at the conclusion of time.
(b)Week 2: From after school Wednesday (or 3pm) to before school Thursday (or 9am), with the Applicant to collect the children from school at the conclusion of school and return the children to school (or 9am) the following day.
School Holidays
6.That during all school holidays, Order 5 shall be suspended, and the children shall spend time with the Applicant on the first half of all school holidays in each odd numbered year and the second half in each even numbered year and vice versa with the Applicant with the person who the children are to spend time with to collect the children from school at the conclusion of the last day of school (or 3pm) and return the children to the other party as set out in order 7 below.
7.For the purposes of order 6 above, changeover will occur at 5pm on the day that represents the midpoint and in the event there are an even amount of days, changeover will occur on the day closest to the return to the term 1 school year.
8.That any provision of time under this order that is inconsistent with this paragraph shall be suspended.
Telephone contact
9.The children shall have telephone time with the other party when the children are not in their care each day from 6pm to 7pm.
Restraints
10.That each party be restrained from denigrating the other party and/or members of their family in the presence or hearing of the children and shall be restrained from causing or allowing any third party to denigrate the other party and/or members of their family in the presence or hearing of the children.
11.That the parties encourage and not undermine each child's relationship with the other party.
12.That the parties be restrained from discussing these or any other Court proceedings with or in the presence or hearing of the children.
13.That the parties shall be restrained from physically punishing or chastising the children.
14.The Applicant refrain from taking photographs of the children's clothing, including the children's underwear, when the children are in his care.
15.The Father is restrained from reading, showing, providing or discussing to and with the children any diary entries made by him.
16.The Applicant is to refrain from cutting either child's hair whilst in his care.
17.That the Applicant must ensure that:
(a)The children are provided with appropriately sized clothing for their age group.
(b)The children are provided with appropriate recess and lunch during school with no expired food.
(c)The children are taken to entertainment areas/centres suitable to their age group only.
Health
18.That whilst the children are living with or spending time with each party, that party shall:
(a)Notify the other party via telephone call or text message as soon as practicable should any of the children become sick, suffer a medical emergency, injury or illness whilst in their care.
(b)In the event that either child is hospitalised or receiving medical attention as a result of a medical emergency, the party shall notify the other party as soon as practicable after the first contact with either ambulance, medical practitioner. medical centre, hospital or health care professional and provide their name. address and sufficient details to enable both parties to be consulted with respect to and fully advised of a treatment recommended or provided and to visit the child if hospitalized or confined to bed.
(c)Advise the other party of any appointments for the purpose of each party attending.
(d) Consult with the children’s treating health care professional or service.
(e)Provide a copy of any medical documents including but not limited to reports, letters, tests, scans etc. from any and all health care professionals or service in their possession.
19.That the Applicant be at liberty raise with the Second Respondent by way of text message or email, any concerns he may hold with respect to the children’s and the Second Respondent shall, within 14 days of the Applicant raising his concerns with the Second Respondent, consider and make any appointment with the children’s General Practitioner and advise the Applicant of her decision with respect to his concerns.
20.The Applicant is restrained from taking the children to medical appointments without the written consent of the Second Respondent, unless it is a medical emergency as outlined in order 16(b) above.
21.That within 7 days of the date of these orders, the Second Respondent make enquiries with an audiologist and make the first available appointment for [X] to have a hearing test.
22.That the Second Respondent forthwith notify the Applicant of the identity of the audiologist and the date the hearing test is to occur as set out in order 21 above and advise the Applicant as to the cost of the audiologist appointment.
23.That the Applicant be responsible for the cost of the hearing test as set out in order 21 above and upon the Second Respondent advising the Applicant of the cost, the Applicant will forthwith attend to payment.
24.That the Second Respondent shall follow all recommendations of the audiologist.
25.These Orders are authority for any medical practitioner, dentist, counsellor or other health professional who treats either child to provide information to the other party upon request by the other party, to the extent permitted by law.
Counselling
26.That the Second Respondent continue to engage the children in counselling including but not limited to grief counselling and the Second Respondent will do all things and follow all recommendations of the counsellor.
Travel and Passports
27.That pursuant to Section 65Y of the Family Law Act 1975, each party can remove the children [X] born […] 2014 and [Y] born […] 2016 from Australia for the purposes of international travel.
28.That pursuant to Section 11 of the Passports Act 2005, the children, [X] born […] 2014 and [Y] born […] 2016 be permitted to have an Australian passport or travel-related document provided the application for that document is made by the Second Respondent, [Ms C Patel] who may sign any declaration on the application in the form approved by the relevant Minister and for that purpose, the consent and signature of the father is dispensed with.
29.In regard to travel, the following protocol shall apply:
(a)That the Second Respondent retain the children’s passports and make them available for the purposes of overseas travel.
(b)That the Second Respondent will do all acts necessary to keep the children’s passports up to date.
(c)That the parties be permitted to travel outside of the Commonwealth of Australia to Hague Convention countries with the children provided they give the other party 30 days written notice (via e-mail or text message) of their intention to travel and that such travel occurs within their time as ordered above or otherwise agreed and provides the other parent with an itinerary including the destination, flight numbers and times, and an address or addresses where the children can be contacted whilst outside of Australia 30 days prior to the travel.
30.That for the purpose of facilitating overseas travel in accordance with Order 28 above and subject to the Applicant’s compliance with Order 28(c), the Second Respondent will provide the children’s passports to the Applicant three (3) days prior to travel and the Applicant is to return their passports within three (3) days of returning to Australia.
Other
31.The party with whom the children are living/spending time with:
(a)Is to be responsible for day-to-day decisions concerning the care, welfare and development of the children.
32.That each party is hereby authorised to
(a)Obtain from the child's school/s all notices, letters, newsletters, school reports, invitations, photographs, orders, forms or otherwise any other document pertaining to the child's school and education.
(b)Liaise directly with the children's school, sporting bodies and/or extracurricular organisation to obtain any necessary information about the children's progress and attendance.
(c)Attend all events involving the children including school functions and events that allow for parental attendance including to parent/teacher interviews, concerts, school assemblies, sports days, canteen duties and social functions that parents are ordinarily invited to.
(d)Obtain copies of any medical documents including but not limited to reports, letters, tests, scans etc. from any and all health care professionals or service.
33.That each party is to keep the other informed of their residential addresses and current telephone numbers and advise the other of any changes within 24 hours of such change.
34.That the parties be at liberty to attend any extra-curricular activities or sporting activities which the children are enrolled in.
35.That each party be at liberty to provide a copy of these Orders to the children’s schools.
In giving his viva voce evidence, Mr F was asked about the psychological impact on the children if the father actually did as he said he would do, namely, that the father would not facilitate time between the children and the maternal aunt if the children lived with the father. Mr F said any conduct along those lines by the father would adversely impact upon the children at a psychological level. To my mind, that evidence was very significant. It emboldened me in the orders I make for the maternal aunt to have sole parental responsibility, for the children to live with her and for the father to have time with the children in accordance with the regime proposed by the ICL and the maternal aunt.
After the close of evidence and during the final address on behalf of the father, counsel for the father sought to tender a document dated 8 December 2019 from a general practitioner concerning hearing testing. Counsel for the father submitted that an appointment was made for the boy to be examined in relation to his hearing, a matter the father said was important. The father contended that the mother, when she was alive, cancelled the appointment. Counsel for the father submitted that the maternal aunt was unlikely to ensure that the boy would be taken by the maternal aunt to any hearing test.
Several things must be said of the letter dated 8 December 2019. First, it is over four years old. Second, the business of the addressee of the letter was not put in evidence. Third, the father somehow imputed to the maternal aunt any failure to take the boy to an audiologist. The letter dated 8 December 2019 was written prior to the mother's death. The maternal aunt became involved in late 2021, two years after the letter's date. I am unable to see how the maternal aunt is to be criticised for failing to take the boy to a hearing specialist. I reject the father's characterisation of the evidence of the 8 December 2019 letter. It does not support the father's application for an order for sole parental responsibility nor does it bear upon the father's application for the children to live with him.
In final address, counsel for the father invited me to draw an adverse inference against the maternal aunt by reason of the failure of her husband to give evidence in this case. On behalf of the father it was put that had the maternal aunt's husband given evidence, he could have been cross-examined about the allegations that the maternal aunt and her husband engaged in sexual activity in the presence of the children. It must be recalled that the maternal aunt denied that she had with her husband engaged in the asserted behaviour in the presence of the children. One wonders why, in the face of that denial, another witness was necessary to deny again the proposition. I am not willing to conclude that I should infer, adversely to the maternal aunt, that her husband would not have given evidence in her favour. To my way of thinking, the father's evidence was unreliable for reasons already given. I am not willing to accept his evidence that the maternal aunt and her husband engaged in sexual conduct in the presence of the children when the father did no more than say that he based his evidence in reliance upon what one of his children may have said to him and in circumstances where the maternal aunt directly denied the proposition.
It must also be recognised that the father's proposals for the children to live with him involves a change in the children's residence. At present the children are settled with the maternal aunt, they are performing well at school and they are stable in the maternal aunt's home. The father wishes to uproot them. No valid basis has been given for such a change. I am of the view that the father is not seeking a change of residence order in the best interests of the children. Instead, he seeks such an order as part of the ongoing enmity between the father and the maternal aunt.
In final address, counsel for the father argued that I should not conclude that the father's health prognosis was poor despite the fact that he has a serious illness. I agree. I cannot predict the life expectancy of the father. No evidence of a medical nature was given in this proceeding. In those circumstances, it would be wrong for me to make any conclusions based on the father's life expectancy.
Counsel for the maternal aunt submitted that the father gave evidence to the effect that the father will not promote communication between the children and the maternal aunt if the children live with the father. Mr Finch submitted that if such an outcome were to occur and the children's contact with the maternal aunt ceased while in the father's care, that would orchestrate an unacceptable risk of psychological harm to the children. That was because, so he submitted, the father would deny the children the opportunity of having contact and an ongoing relationship with the maternal aunt, the children's putative mother. I agree. There was a great deal of merit to the point. Mr F was of a similar view.
Counsel for the ICL submitted that the father stated he intends to write a book to articulate his experiences through which he has been put in this litigation. The ICL submitted that a restraint was necessary in that regard.
It is now necessary to turn to the orders that each party urged in this case. That exercise is a little complicated because the orders urged were different in many respects. It is desirable that I explain my reasoning for the orders that I now recite.
The ICL sought an order that all previous orders should be discharged. I agree. That order should be made to make clear that the orders that I now pronounce will have effect unless superseded until the children turn 18 years of age.
The maternal aunt should have sole parental responsibility for the children. I make an order in terms of her paragraph one and the ICL’s paragraph two. I dismiss the father's application for sole parental responsibility.
The ICL sought an order requiring the maternal aunt to notify the father of all long term decisions within a prescribed period. That seems to promote the likelihood of the father learning of the maternal aunt's decisions. It is prudent to include such an order. I make an order in terms of the ICL’s proposal.
In my view, the children should live with the maternal aunt. An order for the children to live with the father must be refused. I make an order in terms of paragraph four of the ICL’s proposal, itself consistent with the maternal aunt's own proposal.
The children should spend time with the father. The version of the spend-time arrangements recorded in the ICL’s proposal were easy to follow. I make orders in accordance with the ICL’s proposal. In large measure, it is mimicked by the maternal aunt's proposal.
I refuse to make an order proposed by the father in paragraph two of his proposal.
The maternal aunt embedded in her proposal the recognition that the children may wish to have additional time with the father. The ICL’s proposal was silent on that matter. It seemed to me that the proposal that appeared in the maternal aunt's proposal at was appropriate, as it enhanced the best interests of the children. I make an order to that effect as stated in the maternal aunt's proposal.
The maternal aunt advanced a proposal in respect of holidays, recorded in her proposal. The ICL’s proposal in respect of holiday time was a little more nuanced than its counterpart in the maternal aunt's proposal. The father made a vague proposal in relation to holiday time. I make an order in accordance with the ICL’s proposal concerning holiday time.
The maternal aunt proposed changeovers to take place in a particular manner. I make an order in accordance with the changeover regime proposed by the maternal aunt.
So far as telephone contact was concerned, the Independent Children’s Lawyer prescribed a more restrictive regime than did the maternal aunt. It seemed to me that contact should be encouraged rather than restricted. I therefore favour the proposal for telephone contact to be as proposed by the maternal aunt.
Restraints were proposed by the maternal aunt and by the Independent Children’s Lawyer. Whilst some appear to be a duplication of others, the restraints differ in some respects as proposed by the Independent Children’s Lawyer when compared against the proposal of the Independent Children’s Lawyer. The proposal in respect of restraints commences at paragraph 11 of the ICL’s proposal. It is easier to work from that. I make an order in accordance with paragraph 10, 11, 12, 13, 14, 16, 17 of the Independent Childrens Lawyer’s proposal. In paragraph 15 the Independent Children’s Lawyer proposed that the father be restrained from reading, showing, providing or discussing to or with the children any diary entries made by him. Quite properly, counsel for the father contended that an order in such broad terms should not be made. The diary entries are those referred to in the father's trial affidavit and the restraint should be constrained to those, but not beyond. Those entries are self-serving, subjective, interpretative recitals of a variety of things, some of which might be factually accurate while others are not. No cross-examination was directed to them but a simple reading of them reveals that they have the capacity to be inflammatory. If the father is in truth proposing to convert the information in those diary entries into some book or other publication for public dissemination he should be very careful about doing that, having regard to the prohibition in s 121 of the Family Law Act.
Paragraph 18 of the Independent Children’s Lawyer’s proposal largely corresponds with its counterpart in the maternal aunt's proposal. I prefer the version in the Independent Childrens Lawyer’s proposal. An order in terms of paragraph 20 seems to me to be in the best interests of the children.
Paragraph 21 of the Independent Children’s Lawyer’s proposal reflects the father's concern about the boy suffering from the impairment to his hearing. Paragraph 21 of the Independent Children’s Lawyer’s proposal represents an active promotion of an investigation about the boy's alleged hearing impairment. Self-evidently, it is in the best interests of the child to make an order in those terms and I make the order in paragraph 21 as well as the order proposed in paragraph 22. Paragraph 19 of the ICL’s proposal is an enabling provision that seems to promote the best interests of the children. Paragraph 23 addresses costs associated with the audiology test and should be made as should paragraphs 24 and 25. Both the maternal aunt and the ICL propounded an order in the form of paragraph 26. It seems to me that an order in those terms is appropriate.
The order for travel, as recorded in paragraphs 27 to 30 of the Independent Childrens Lawyer’s proposal, did not take in the provisions of the maternal aunt's proposal. In those circumstances, I make orders in accordance with the maternal aunt's proposed orders.
Paragraphs 31, 32, 33, 34 and 35 are non-controversial. In accordance with the Independent Childrens Lawyer’s list an order should be made in those terms, which I now make.
Finally, I make an order for the discharge of the Independent Children’s Lawyer.
Paragraph 32 of the maternal aunt's proposal has as its eighth word the word "intestate". That word should read "interstate".
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 15 February 2024
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