BARASH & SACHER

[2018] FCCA 2099

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARASH & SACHER [2018] FCCA 2099

Catchwords:
FAMILY LAW – Children – mother to have sole parental responsibility – children to live with the mother.

Legislation:

Family Law Act1975, ss.4AB, 60CC, 61DA

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MR BARASH

Respondent: MS SACHER

File Number: SYC 2266 of 2013

Judgment of: Judge Boyle

Hearing dates: 9, 10, 11 April 2018

Date of Last Submission: 11 April 2018

Delivered at: Sydney

Delivered on: 20 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Cohen

Solicitors for the Applicant: N/A

Counsel for the Respondent: Ms Reynolds

Solicitors for the Respondent: Harrods & Associates

Counsel for the Independent Children’s Lawyer: Mr Ladopoulos

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. That all previous Orders be discharged.

2. That the mother have sole parental responsibility for the children [X] born 2001 and [Y] born 2004 (“the children”).

3. That the children live with the mother.

4. That the children spend no time with the father.

5. That the father be permitted to send one letter to each of the children following the making of these orders, such letter to be delivered to the Independent Children’s Lawyer at the Campbelltown Legal Aid Office within one calendar month of the date of these Orders and the Independent Children’s Lawyer is then to arrange for the letters to be provided to the children.

6. That the father is otherwise restrained from taking any steps to contact the children.

7. That upon the Independent Children’s Lawyer providing the children with the letter referred to in Order 5 herein, the Order for the appointment of the Independent Children’s Lawyer be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2266 of 2013

MR BARASH

Applicant

And

MS SACHER

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings with respect to two children, [X], now aged 17 years, and [Y], now aged 13 years. The children have resided with their mother since the parties separated on 14 March 2013. The children have not seen their father since February 2014, when supervised time arrangements ceased.

Applications

1. The father seeks orders that time occur two hours each fortnight, with changeovers through third parties. The mother seeks sole parental responsibility, and that the father spend no time with the children. Further, she seeks that the father be prohibited from coming into contact with the children, including attending their school, or sending gifts.

2. The Independent Children’s Lawyer (“ICL”) sought orders that the mother have sole parental responsibility, that the children live with her and spend no time with the father. The ICL further sought that the father be permitted to send a letter to each of the children on one occasion through the ICL and that otherwise the father be restrained from contacting the children.

Documents  

1. The mother and father filed case outline documents. The mother’s case outline identified the documents that she relied upon.

2. The father relied on:

   a)Initiating Application filed 23 July 2013;

   b)Affidavit of Mr Barash filed 9 December 2013 (in part);

   c)Amended Initiating Application filed 13 February 2017;

   d)Affidavit of Mr Barash filed 13 February 2017;

   e)Affidavit of Mr Barash filed 23 February 2018;

   f)Affidavit of Ms N filed 23 February 2018;

   g)Affidavit of Mr R filed 21 March 2018.

3. The mother relied on:

   a)Response filed 29 October 2013;

   b)Amended Response filed 28 February 2017;

   c)Affidavit filed 29 October 2013;

   d)Affidavit filed 28 February 2017;

   e)Affidavit filed 8 March 2018.

4. The Independent Children’s Lawyer relied on:

   a)Child Inclusive Conference Memorandum dated 10 October 2013;

   b)Family Report dated 5 June 2014;

   c)Family Report dated 19 October 2016.

5. In re-examination counsel for the father sought to rely on paragraphs 9, 12, 13, 14, 15, 17, 18, 21, 22, 26, 27 and 31 of his affidavit of 9 December 2013. Although this was highly unusual, leave was granted, and counsel for the mother and ICL were permitted to re-open cross examination on any matters then arising.

6. The following exhibits were tendered:

   a)For the father:

   i)F1- Photographs of the father with the children;

   ii)F2- Handwritten letter from the children to the father;

   iii)F3- Certificate from New Families Unifam Post Separation Parenting Course for the period 18 February 2014 to 1 April 2014;

   iv)F4- Letter from School A dated 17 August 2012;

   v)F5- Photo of the mother holding guns;

   vi)F6- Case note regarding [X] by counsellor at School A;

   vii)F7- NSW Online Mandatory Reporter Guide- Decision Report dated 21 July 2011.

   b)For the mother:

   i)M1- Letter from School A dated 9 July 2012;

   ii)M2- Material produced under subpoena to (omitted);

   iii)M3- Material produced under subpoena to Sydney Children’s Contact Centre;

   iv)M4- Material produced under subpoena to NSW Police;

   v)M5- Material produced under subpoena to Catholic Care;

   vi)M6- Material produced under subpoena to (omitted) Care.

   c)For the ICL:

   i)ICL1- Letters dated 31 March 2017 and email dated 17 September 2014 from the father to the children.

   d)For the Court:

   i)Court 1- Child Inclusive Conference Memorandum dated 10 October 2013; Family Report dated 5 June 2014 and the Family Report dated 19 October 2016.

Background

1. Both parties are 50 years old. In 1988 the father moved to Australia from (country omitted). The mother was born in the (country omitted), and came to Australia in the late 1990s.

2. On 1999 the mother married Mr A in Australia. The parties commenced a de facto relationship in 2000, according to the father, or 2001, according to the mother.

3. [X] was born on 2001. There is no issue that [X] is the child of the father.

4. The parties married in 2003. [Y] was born on 2004.

5. In 2007 the parties travelled with the children to (country omitted). The mother and children remained in (country omitted) upon the father’s return to Australia, and then spent about eight months in (country omitted). They returned to Australia via (country omitted).

6. The father’s evidence is that following their return he was very involved in the care of the children. He was working in a (employment omitted), leaving home early in the morning and returning late at night. He occasionally came home in the morning to take the children to school and preschool. The children spent time with him at the (employment omitted) after school.

7. The father alleges that the mother had difficulties managing [X]’s behaviour, and was violent towards her. Further, that she did not feed the children adequately, and this formed part of the mother’s dispute with [X]. These allegations are explored later in the judgment.

8. The mother alleges that the father was physically abusive to the children, hitting them on the arms and hand. She also alleges the father was controlling and aggressive towards her.

9. The parties separated in 2009, and the mother and children moved to refuge accommodation. The mother received assistance from (omitted) Care. That service has been involved with both parties at various times. An interim Apprehended Violence Order (“AVO”) was obtained against the father for the protection of the mother by the police. The mother and children returned to live with the father about two and a half weeks after separation, after the father saw the mother and children in Suburb A. The parties attended the Local Court on 27 August 2009, and the AVO was withdrawn and dismissed. Although they resumed living together, they did not reconcile their relationship until later that year.

10. In 2011 the father closed the (employment omitted), and ceased work.

11. In 2012 the children changed from a public school to a private (nationality omitted) college, at the father’s initiative. On 9 July 2012 the school wrote to the parties that:

    …there have been incidents in the past with Mr Barash and staff… [The school] will only consider enrolment of daughters on condition that he does not visit the campus, he have no contact with staff.[1]

    [1] Exhibit M1- Letter from School A dated 9 July 2012.

12. In 2012 the father travelled to (country omitted) for seven weeks, leaving the mother with the sole care of the children.

13. On 14 March 2013 the mother left the home with the children without advising the father, and the parties separated on a final basis. On 4 April 2013 the mother applied for an AVO. On 11 April 2013 interim orders were made, which were extended to include the children.

14. On 29 April 2013 proceedings were commenced by the father in the Federal Circuit Court. An ICL was appointed on the children’s behalf on 14 October 2013. On 16 December 2013 interim orders were made, inter alia, granting the mother sole parental responsibility, that the children live with her, and that time occur at a Contact Centre. Time at the Contact Centre was not successful, in that it occurred on 13 April 2014 and not thereafter. The Contact Centre suspended supervised visits due to the children’s expressed views.

15. The matter has had an extremely unfortunate history in this court where it has been listed for final hearing, and then vacated, on a number of occasions. The following procedural history is an attempt to chart the problems in the matter being listed for hearing. 

16. The first family report was released on 6 June 2014. The matter was listed for final hearing commencing 24 March 2015. The hearing was adjourned on the application of the father.

17. On 4 May 2015, the matter was listed for final hearing on 12 and 13 November 2015. On 27 October 2015 the parties were advised that the trial Judge would not be available to hear the matter on those dates. It was listed into a call over on 11 November 2015, and then adjourned to 4 April 2016, when an updated family report was ordered. 

18. That family report was released on 19 October 2016. On 20 June 2017 the matter was listed for hearing commencing 26 February 2018. It appears that the February 2018 hearing dates were vacated in chambers due to unavailability of counsel. The matter was set down for trial again, on 25, 26 and 27 July 2018. Earlier hearing dates of 18, 19 and 20 December 2017 were then allocated to the matter, however these were also vacated by the Court.

19. Ultimately the matter was listed for hearing before me in April 2018, when the hearing proceeded. Clearly the delays have added to the stress on the parties and children, and I apologise for the role the Court has played.

Issues

1. The issues for determination are:

   a)whether there was family violence perpetrated by the father against the mother and children;

   b)whether there was family violence perpetrated by the mother against the father and the children;

   c)whether the children are at risk in the care of either parent;

   d)the weight to be given to the children’s wishes about time with the father.

Credit

1. There were difficulties with the reliability of the father’s evidence. An example of this is his evidence about his relationship with Ms N.

2. The father has given different accounts of his relationship with Ms N. The father first referred to his relationship with Ms N in an affidavit sworn 13 February 2017. He said they were in a relationship but not living together.[2] On 23 February 2018 he referred to being in “a long term relationship”, and that they live together, without specifying the length of the relationship. Initially in oral evidence he said they had lived together continuously since about September 2013.

   [2] Father’s Affidavit filed 13 February 2017, paragraph 5.

3. The father advised Ms K on 13 May 2014 that he was not in a relationship with anyone, and was living in a boarding house. At the interviews for the second report in 2016 the father reported he was living in a one bedroom flat in Suburb B, and made no reference to Ms N.

4. In cross-examination the father agreed he may have told Ms K he was not in a relationship in May 2014. He said that he and Ms N were separated at that time, contrary to his earlier evidence.

5. The father was not straightforward in providing information about his relationship with Ms N. In cross-examination he suggested that the mother’s solicitor was aware of the AVO for the protection of Ms N against him, as though that relieved him of any responsibility to refer to it. He denied that he did not refer to the AVO in his affidavit because he did not want the court to know. Counsel for the husband submitted that the father knew he would be cross-examined on the subject, and that it should therefore be accepted he was not trying to conceal matters. I do not accept that. The father gave no evidence in chief about the problems in his relationship with Ms N. It is clearly relevant in considering time arrangements with his children, that allegations about the father’s conduct towards a partner be aired. I find the father attempted to obscure the difficulties in their relationship, particularly as to the involvement of the Police.

6. Ms N gave no evidence in her affidavit, or in chief, of the problems with the father that led to their separation. She did not refer to approaching the Police to obtain an AVO for herself and her son [A]. She attempted to minimise difficulties in the father’s behaviour towards her. Her evidence was not credible.

7. There were also difficulties in the evidence of Mr B, Ms N’s father. His affidavit referred to Mr Barash’s excellent relationship with his grandson. He made no reference to any problems in the household.

8. Mr B did not mention that his daughter and Mr Barash separated for several months, when his daughter and grandson lived at his home. Nor did he refer to the AVO applied for by Police for the protection of his daughter and her son. When asked whether taking an AVO was a serious matter, he said he did not regard it as so, as the system is regularly abused. He denied that his daughter had abused the system. He denied attending court with his daughter, although she said he was there. He said on a number of occasions that he tried to stay out of it, and did not have an opinion about difficulties between Mr Barash and his daughter. Clearly he found himself in a difficult position. This was no doubt compounded because he is a retired (occupation omitted).

9. I do not find the evidence of either Ms N or her father to be reliable. Both sought to gloss over past problems and minimise the father’s past behaviour.

10. The mother reported to (omitted) Care that the father threatened to sexually harm the girls,[3] and that he threatened “under (country omitted) law I can have sex with your daughters”.[4] No reports were made by the mother to the Police relating to a threat of sexual harm. The mother made complaints about the father to the Police in 2009 and 2013, which resulted in the Police making applications for Apprehended Violence Orders on her behalf. The mother agreed she did not raise that complaint with the Children’s Contact Centre either. I do not accept the mother’s evidence that the father made threats of sexual harm about the children.

    [3] Mother’s Affidavit filed 8 March 2018, Annexure C.

    [4] Ibid paragraph 19.

11. Otherwise I generally accept the mother’s evidence, which was consistent with her affidavit and other records tendered. She was challenged about some specific matters, such as her complaint that the father was using a mobile telephone to track her. The records produced by (omitted) Care about conversations with the father, support the mother’s version of events. ^[5]

    [5] Exhibit M6- Material produced under subpoena to (omitted) Care.

Family Reports

1. The parties and children have met with Ms K, the family consultant, on three occasions in 2013, 2014 and 2016. The first occasion was for a Child Inclusive Conference, the other two occasions for family reports.

2. The father is very critical of Ms K. He referred on a number of occasions in his affidavit, and when giving evidence, to his lack of faith in her as an expert. He is of the view that Ms K did not accurately report things said by him, and he doubted the accuracy of her reports of comments by the children.

3. The father gave examples, including that he did not say “if one child misbehaved then … he would hit the child “only on the back of the hand…[but] I would also hit the other child as I am fair”. When this was put to Ms K, she was definite in her evidence that the father had said that. It is an unusual statement, and is not an allegation made by the mother. I accept that it would not appear in her report if it had not been said by the father.

4. The father said that during the 2014 interviews with the children, Ms K directed where they sat and told them not to look at him. This was during a session where the children were observed with him. Ms K denied that she directed the girls to sit facing away from their father, or that she told them not to interact with him. It was suggested to her that the fact that they did not leave the room for about 35 to 40 minutes supports that they were happy in the father’s presence. She did not agree with that suggestion based on her observations set out in the report.

5. When cross-examined by counsel for the father Ms K conceded that the father’s allegation that the mother is a “lazy… neglectful… [and] physically abusive” parent, should have been listed under the heading “Issues identified during assessment” at the beginning of the first report. Under that heading she listed, for example, “Mother’s ongoing concerns for her and the children’s safety should the father have any information about their whereabouts”.[6] Ms K acknowledged that she should have done so, and it was a deficit in the report that she had not. It was suggested by counsel for the father that the report is not objective. Ms K rejected that proposition by reference to the focus of the reports being the children’s feelings and relationships, it being part of her role to consider from the children’s perspective the dynamics of their family. In that context whilst conceding a deficit in the report, she rejected any suggestion of bias. Appropriately she suggested that was a matter for the Court.

   [6] Exhibit Court 1- Family Report by Ms K dated 5 June 2014, page 8, paragraph 11.

6. Ms K detailed in the report in 2014 the allegations made by the father about the mother’s conduct. This included his belief at the time of interview that “as the matter is currently before the court, ‘she is being good’ and the children are not at any risk in her care”.[7] Although the father’s allegations against the mother should properly have been referred to at the beginning of the report as an issue, the substance of the allegations was addressed in the report.

   [7] Ibid page 12, paragraph 20.

7. Ms K completed a Child Inclusive Memorandum on 10 October 2013. Part of the recommendations at that time were:

   the children will benefit from spending time with the father in a contained and safe environment such as a Contact Centre or with a private supervisor.[8]

   By the time of the interviews for the 2014 report the supervised time arrangements had broken down. The Contact Centre was not prepared to participate in the children being required to attend for time.

   [8] Child Inclusive Conference Memorandum dated 10 October 2013, page 4.

8. There is no evidence from the children’s school, the Contact Centre nor the counsellor seen once by [X] which suggests that the children are, or were, frightened of their mother. This is consistent with their presentation at interviews with Ms K in 2013, 2014 and 2016.

1. Ms K referred to the girls as being estranged from their father. Her evidence is that she used that term as distinct from “alienation”, which suggests that it is the conduct of one parent that is problematic. In this instance she regarded it as likely a combination of factors including things said and done by the father, and said and done by the mother, that have caused the estrangement. She viewed them as not being alienated from their father, but having an “estrangement, and over time they have aligned with their mother”. She referred to the children being caught in the middle of parental conflict over years, which has caused them to align with their mother as an emotionally protective strategy. Given their ages she regarded it as less important how they came to this position, than that this is where they are at.

2. Ms K referred to the father’s focus on the past, acknowledging that this was somewhat improved at the time of the second report. It was submitted for the father that because he has spent no time with the children in recent years, his focus is necessarily in the past. This ignores the concern of Ms K that the father’s focus on the past is at least partially concerned with blaming others for the lack of a current relationship with the children.

3. The other issue is that the father was not able to acknowledge anything in his own behaviour that had caused problems in his relationship with the girls. This was the case throughout interviews with Ms K for the various memorandum and reports, and was consistent with his oral evidence.

4. Ms K referred to the girls as being settled, and achieving. In her view they “should be able to pursue their own adolescent goals” having been subject to litigation for five years. Considering the totality of her evidence, I do not accept that Ms K is biased against the father, nor that her evidence is unreliable.

The Law

1. The best interests of the children are paramount in parenting proceedings. The Family Law Act 1975 (Cth) (“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests.[9]

Primary considerations

Section 60CC(2) The primary considerations are:

[9] Goode & Goode [2006] FamCA 1346.

(a) Benefit to the children of having a meaningful relationship with both of their parents

1. The children have the benefit of a meaningful relationship with their mother. The mother has been their primary carer throughout their lives, as well as their sole carer for periods when the parties lived apart when overseas, an earlier separation, and following final separation. The children are settled in the mother’s care, and she is “a parent who actively encourages the children in both their academic achievements and their social relationships”.[10]

   [10] Family Report by Ms K dated 19 October 2016, page 12, paragraph 32.

2. The children have not seen their father since April 2014. They do not have a meaningful relationship with him at present.

3. [X] is clear that she does not wish to have a relationship with her father. I do not accept that there would be a benefit to her in requiring her to do so, given her views as set out below. [X] is a bright and competent young adult. It is open for her to explore a relationship with her father if she chooses to do so in the future, on her own terms.

4. [Y] has expressed ambivalence about having a relationship with her father. She has not seen him since she was 9 ½ years old. She is a child achieving well academically and socially. [Y]’s position has been consistent over her three meetings with Ms K since 2013.

5. I accept that [Y] does not want an ongoing relationship with the father. As referred to elsewhere in this judgment, there are complex reasons for the estrangement in their relationship. I find that orders requiring time to occur would not be beneficial for her.

(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Each parent alleges that the other perpetrated family violence during the course of their relationship, and each denies the allegation.

2. The father agreed at the Child Inclusive Conference that on several occasions he had threatened to hit the mother. He said this was in the context of her “bashing” the children, and that his threat was to do the same to her.[11] Apprehended Violence Orders were applied for in 2009, and a Final Order was made for the protection of the mother against the father for 12 months on 12 August 2013.[12]

   [11] Child Inclusive Conference Memorandum dated 10 October 2013, page 1.

   [12] Mother’s Affidavit filed 8 March 2018, Annexure B.

3. The father was cross-examined about family violence in his relationship with Ms N. This is relevant to a consideration of time arrangements for the children, given Ms N is a member of the father’s household.

4. The father sought to minimise arguments that he and Ms N had over finances. He conceded that there was at least one previous separation, when the Police took out an AVO on behalf of Ms N and her son. They resumed living together, when as he put it “she realised that was not the right thing to do and came home” and “she apologised”. This is an example of the father’s inability to reflect on his role in family violence, whether in his relationship with the mother, or his current partner.

5. The police records tendered reveal a complaint made on 19 February 2015, which outlines a history of difficulties in the relationship with Ms N. [13] The complaint refers to July 2014 when he:

   became more controlling. He constantly rang [Ms N] on the phone asking where she was and what she was doing. He controlled her finances and generally behaved like a jealous person.” There was no allegation of physical violence “more mental abuse and control.[14]

   She complained he was intimidating: “raises his voice and stands over [her] until he gets things his own way”.[15] This conduct is family violence as defined in the Act.[16]

   [13] Exhibit M4- Material produced under subpoena by NSW Police.

   [14] Ibid.

   [15] Ibid.

   [16] Family Law Act 1975 (Cth) s4AB(1).

6. Ms N minimised the father’s conduct. For example, when her complaints to the Police were put to her in cross-examination she agreed the father was “somewhat controlling … he was very upset at the time”. When asked about describing him as raising his voice and standing over her, she said “I did but I see it differently now. Now I see it as more like a seven year old having a tantrum”. She did not regard his behaviour as a problem now: “I’ve learnt to deal differently with his behaviour. I respond differently. He’s calmer now.” Her evidence is clear that she has modified her behaviour to manage his conduct, but the father’s behaviour has not changed.

7. On 8 March 2015 a further report was made to the Police. Ms N and her father attended the home to remove her furniture and possessions. The Police were called because a bedroom door was locked and Ms N could not get access. The Police contacted the father to request his attendance.

8. The Police entry refers to the father being argumentative, “quarrelsome and acting childish”. After initially stating that Ms N only had clothes in the room which he could bring out, he conceded the majority of the furniture was hers. Police remained at the home for some time to prevent a breach of the peace.

9. Ms N’s evidence was initially that they separated for about three months, when she and her son lived at her parents. She wrote a letter seeking to revoke the AVO on 24 August 2016. She eventually conceded that she may have written that at the father’s request, and that they may have been separated for a longer period.

10. There are many similarities in the complaints by Ms N and the mother about the father’s conduct. They both refer to aggressive and demeaning behaviour, which caused them to leave the home and seek assistance. The accounts of both women are of family violence perpetrated by the father. The children were exposed to the father’s conduct towards the mother when the parties lived together.

11. During the interviews for the last family report the mother was adamant that the children should not receive gifts of any electronic equipment from the father, as he may use it to track their whereabouts. Notes tendered from (omitted) Care, the organisation which assisted the mother and children when the parties separated in 2013, provide support for the mother’s concerns. Notes of that service refer to telephone contact from the father:

    he wants the girls back and he knows that they are on our premises because ‘he installs a tracking device somewhere and he knows were [sic] they are’. Ms Sacher left intentionally two mobile phones in our offices.[17]

    [17] Exhibit M6 - Material produced under subpoena to (omitted) Care.

12. The father complains that the mother neglected the children by maintaining their home poorly, such that it was filthy. He referred to stepping in to cook for [X] after returning home from work, because [X] complained about the food prepared by her mother.

13. Ms N described attending at the home of the parties one to two weeks after the mother and children left. She said it was filthy, smelt of dog urine, was infested with cockroaches, and full of rubbish. She assisted the father remove 12 garbage bags of rubbish. She regarded the home as uninhabitable. Surprisingly, she blamed the mother for the condition of the home. The father was living there before, and after, the mother and children left. There is no evidence that he took steps to clean the home before the arrival of Ms N. On the available evidence I do not accept that the children are at risk of neglect by the mother.

14. From August 2009 to March 2013 the mother was assisted by (omitted) Care’s domestic violence program. In 2011 she was considering separating from the father as she described “the control has increased and she has to account for her whereabouts all the time”. At a meeting on 19 July 2011 she advised that she had decided to stay with the father “for the sake of the children”. She talked about [X] “when there is an issue between her parents she gets sick and will do anything to keep them together. … [the mother] feels that she is living with 2 controlling people. She said [X] [sic] (aged 10) calls her names, spits on her and at times is violent.”[18] The mother described her difficulties parenting [X], particularly imposing boundaries, because she was not supported by the father. She referred to him blaming her when there was a problem with [X].

    [18] Exhibit F7 - NSW Online Mandatory Reporter Guide - Decision Report dated 21 July 2011.

15. Counsel for the father suggested that the mother made complaints about the father’s conduct to the Police, the contact centre and other organisations because she was concerned he would complain about her care of the children, and that she hit the children. Essentially, that she was getting in first to diminish any complaint made by him. I do not accept that proposition on the evidence.

Additional considerations

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. [X] was clear when seeing Ms K for the reports in 2014 and 2016, that she did not want to spend any time with her father, nor for him to have information about her school or home life. She is of an age where she can make that determination for herself.

2. [Y]’s views are not expressed as clearly as her sister’s. She is ambivalent about having a relationship with her father. This has been consistent through 2014 and 2016, as observed by Ms K.

3. [Y] expressed a concern that if the father had information about her schooling he might turn up at school, and rejected the idea of ongoing orders for time. She referred to wishing to “ ‘see’ her father ‘at least once as he is my dad’ ”. [Y] was almost 12, and in her last year of primary school, when she saw Ms K in 2016. She was described at that time as “confident and articulate”. She is by all accounts bright, and a good student. There is no evidence that suggests that she is other than as mature as her chronological age of 13 ½ years.

4. These are both intelligent and mature children. Their views should be given weight in decisions about time arrangements with their father. Court ordered time arrangements are not something either want.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

And

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. I accept that the children each have close and loving relationships with their mother. Both children were observed by the family consultant to be articulate and confident, having been raised solely by the mother for at least the past four years.

2. The mother spoke to (omitted) Care about difficulties in managing [X]’s behaviour in 2011, as referred to previously. Prior to separation in 2013 [X] was referred to Ms A, the school counsellor. In a letter to Mr R dated 12 February 2013 she outlined the problems for [X]. She was enquiring whether Mr R had further information about the family, before she spoke to the mother.

3. Ms A refers to [X] describing her parents arguing constantly, and that she was very upset by it. Both parents told her they are probably getting divorced, which was also upsetting her. She said her mother gets angry with her when she tries to talk about the situation. Her teacher reported [X] was worried that her mother would live in (country omitted) and her father in (country omitted).[19]

   [19] Exhibit F6 - Case note regarding [X] by counsellor at School A.

4. I do not accept that these matters support the contention that [X] was frightened of her mother, or unable to speak up about matters of concern to her. [X] was the older of two children, trying to manage the difficult situation of her parents’ ongoing conflict. There is no evidence that her relationship with her mother is currently causing any problems for her.

5. [X] was observed by Ms K to be loyal to her mother, and protective of her. She and her mother are working through [X]’s desire for greater independence, and her mother’s acknowledged over protectiveness. These are the types of negotiations engaged in by parents and adolescents. Ms K noted their “positive relationship with each other which is marked by the exploration of issues when they have different views”.[20]

   [20] Family Report by Ms K dated 19 October 2016, page 12, paragraph 32.

6. [Y] appears to have a close and trusting relationship with her mother. When discussing high school during the family report interviews she referred to having several choices “she and her mother are still discussing which high school she would attend and added, “Mum will decide soon”.[21]

   [21] Ibid, page 10, paragraph 25.

7. [X] did not wish to spend any time with her father. She struggled emotionally when talking about her father, and the prospect of seeing him, with the family consultant. She says this is because of her “memories of past conflict in the family and the father’s treatment of her”. She is concerned about being manipulated by him, particularly through his having information about her. [X] was 12 years old when her parents separated. Her recollection and experience of her father is different from her sister, who was much younger at the time. She has been exposed to arguments between her parents, which she found upsetting. Her teacher was aware of her problems at that time, and referred her to the school counsellor.[22]

   [22] Exhibit F6- Case note regarding [X] by counsellor at School A.

8. [Y] is described by the consultant as “being likely to have ambivalent feelings about contact with her father.” When asked in 2016 what she would do if orders were made for time indicated “I would refuse to be with him.” She later expressed an interest in seeing her father “at least once as he is my Dad”.[23] She was ambivalent about having a relationship with her father at the time of the first report. [Y] shared her sister’s concern that the father should not have information about her, as it could lead to him attending at her school.

   [23] Family Report by Ms K dated 19 October 2016, page 11, paragraph 27.

9. The mother is opposed to any arrangements for the children to spend time with the father. It may be that the children have absorbed some of their mother’s concerns about the father, which has caused them to become aligned with her in those views, as previously discussed with respect to Ms K’s reports.

10. Supervised time was attempted through Contact Centre on 16 March 2014. The visit did not proceed. The records refer to both children saying “I don’t want to see dad, I’m scared of him, he yells and hits us”. The supervisor did not press the children to spend time with the father.[24]

    [24] Exhibit M2 - Material produced under subpoena to Contact Centre.

11. Time was then attempted through Sydney Children’s Contact Centre. On 29 March 2014 the children attended an orientation to prepare them for the first supervised visit. At the conclusion of the worker’s notes she recorded this:

    [X] seems resistant to seeing her father, at times she presented as down and sad. [Y] presents as reluctant but not resistant to the idea, however she presents an [sic] anxious, she spoke continuously, she interrupted [X]’s and my conversations several times, she might be trying to protect her sister.[25]

    [25] Exhibit M3 - Material produced under subpoena to Sydney Children’s Contact Centre.

12. Time occurred at the Centre on 13 April 2014. It was not without difficulty. Prior to the commencement of the visit, the supervisor had problems in getting the father to follow directions, such as not speaking negatively about the mother. There were issues with cash and gift cards being given to the girls by the father, as that was not allowed at the Centre.  

13. The girls played on the Wii with the worker during the visit. [Y] appeared to manage the visit reasonably, answering her father’s questions about the game. [X], however, did not appear to the supervisor to relax during the visit. Time ceased early as [X] was upset and told the supervisor she wanted to go home.

14. The girls’ reactions during this visit are similar to their positions with Ms K through both reports. The supervisors’ dealings with the father are similar to those recorded by Ms K, particularly in her first report. He was blaming and critical of the mother, and referred to his good relationship with the children when they were young, rather than being able to discuss current difficulties for the children.

15. In considering whether an order should be made for the father to spend time in accordance with the wishes of the children, there is a risk that the father may seek to put pressure on the children through third parties. There have been orders with respect to gifts and cards being provided by the father through the ICL. Notwithstanding orders, the father has sought to do so through members of the (nationality omitted) community. This suggests the necessity for orders to be explicit to prevent the potential for pressure on the children.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

1. The mother has been the parent making all decisions about the children, and their sole care.

2. The father has not had the opportunity to participate in these matters since 2014.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child

1. The father has not paid child support for the children, who have been solely supported by their mother. This was not raised as an issue in this matter.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;

1. The children will remain living with their mother as a consequence of these Orders. They have not spent time with their father for four years. The Orders will not cause a change in circumstances for the children.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. The practical difficulty in ordering time arrangements contrary to the views of teenage children is apparent. It would be impractical to make orders sought by the father in circumstances where there is no evidence that the children would comply, given previous attempts at the two contact centres. I accept that Mr R has put himself forward to assist with the best of intentions. However, Orders for time would raise the spectre of further litigation, which has been ongoing for the past five years.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs.

1. When [X] was about six years, and [Y] four years, they spent time in (countries omitted) in the sole care of the mother. The dates are not clear on the evidence, however it was for a period of about 10 months. Previously [X], when an infant, travelled with her mother overseas. There was no particular issue raised by the father about the mother’s capacity to care for the children in their infancy.

2. Until 2011 the father worked fulltime in a (employer omitted), where work commenced early in the morning until late at night. He refers to problems in the children’s relationship with their mother, particularly [X], and that the mother failed to provide adequate food, and a hygienic home for the children. Notwithstanding the criticisms made by the father, he travelled to (country omitted) in 2012, leaving the children in their mother’s sole care. His family remained in (country omitted). I accept that he has obligations as a son to aging and unwell parents, however there is no evidence he did anything to safeguard his children in his absence. I do not accept that the mother was incapable of providing for the children, as maintained by the father.

3. The mother was cross examined about previously owning a gun. She gave evidence that she was a member of (omitted) Pistol Club, and held a license for a gun. Her evidence is she surrendered the gun to Police when [X] was two or three years old. The father also alluded to the mother having some connections through her first husband with criminal elements. There is no evidence that the mother has any firearms offences, or is convicted of any criminal offences. There is no evidence that she currently owns a gun.

4. The mother has demonstrated the capacity to care for the children. They are achieving academically and socially, and are by all accounts delightful children.

5. The father has not had the opportunity to demonstrate the capacity to meet the children’s needs for the past four years. Prior to that he did not have the responsibility for care of the children, absent their mother, for any lengthy period.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

1. [X] is a mature 17 year old. She appears to be doing well in her education, and socially.

2. [Y] is a mature 13 ½ year old. She is looking forward to tertiary education.

3. The children have been raised in the religion and culture of the (religion omitted) faith.

Section 60CC(3)(j) any family violence involving the children or a member of the child’s family.

1. There are significant allegations of family violence made during the course of the parties’ relationship.

2. The mother alleges that the father hit the children on their hands and arms when they lived together. I have referred previously to evidence that the father has threatened the mother, tracked her through her mobile telephone, and intimidated her.

3. Counsel for the father put to the mother that she has hit [X], slapped her, dug her nails into her, and shaken her.[26] The father alleges that [X] was slapped by the mother which caused her head to hit the wall.[27] The mother denies having physically abused the children.

   [26] Father’s Affidavit filed 9 December 2013, page 3, paragraph 12.

   [27] Ibid, paragraphs 12-14.

4. There is no evidence that supports violence by the mother towards the children, as alleged by the father. It is not supported by observations of the children’s relationship with their mother made by the Contact Centre, and Ms K.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

1. There is no current Apprehended Violence Order in this matter. Earlier AVOs have been referred to previously in this judgment.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children

1. There has been ongoing litigation with respect to these children since August 2013. For [X], that is since she was 12 years old, and for [Y] since she was eight years old. The children should be able to focus on matters such as [X] completing her Higher School Certificate, without the stress of further litigation.

2. They are both of an age and stage of maturity where time with their father would not, and should not, occur contrary to their wishes. The father gave evidence that he is on Facebook. The mother has not permitted the children to participate in social media to date. [X] is 17 years and will soon be an adult. Both parties are connected to the (nationality omitted) community in Sydney. These are children capable of seeking out the father if they wish to do so.

3. Any positive order for time as sought by the father, or communication, has the potential to give rise to further litigation by way of contravention applications. This would be adverse to their interests.

Parental Responsibility

1. The mother seeks an order for sole parental responsibility. This is supported by the Independent Children’s Lawyer. The father seeks no order in relation to parental responsibility.

2. The Act requires that:

   When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[28]

   [28] Family Law Act 1975 (Cth) section 61DA(1).

3. The mother has been exercising sole parental responsibility for the children. There has been no communication between the parties for at least four years. In light of these factors, I do not have any confidence that the parties could co-operate on any order for shared parental responsibility. I am satisfied that it would not be in the best interest of the children for there to be orders for equal shared parental responsibility.[29]

   [29] Family Law Act 1975 (Cth) section 61DA(4).

Conclusion

1. The children need an end to litigation. They are mature children, doing well at school. It is not in their interests for Orders to be made requiring time arrangements with their father.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date: 20 August 2018