Bartels and Scholz (No 2)
[2011] FamCA 331
•16 May 2011
FAMILY COURT OF AUSTRALIA
BARTELS & SCHOLZ (NO 2) [2011] FamCA 331
FAMILY LAW - CHILDREN – final orders – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where the parties have a poor relationship – where it is not in the best interests of the children for the parties to have equal shared parental responsibility – presumption rebutted – orders that the mother have sole parental responsibility.
FAMILY LAW - CHILDREN – final orders – with whom a child spends time – where the mother makes allegations of physical abuse of the children by the father – where the evidence does not support a finding that the father has physically abused the children – best interests – orders that the children live with the mother and that there be a gradual reintroduction of the time they spend with the father.
Family Law Act 1975 (Cth) ss 43, 60B, 60CA, 60CC, 61DA, 65DAA, 60CG, 69ZN & 69ZT
M & M (1988) 166 CLR 69
MRR v GR (2010) 263 ALR 368
Marvel and Marvel (No. 2) (2010) 240 FLR 367
APPLICANT: Mr Bartels
RESPONDENT: Ms Scholz
INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers
FILE NUMBER: ADC 4998 of 2008
DATE DELIVERED: 16 May 2011
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: Dawe J
HEARING DATE: 12-16 April 2010;
28-30 April 2010 and
4 May 2010Trial re-opened
17-21 January 2011;
24-25 January 2011;
27-28 January 2011;
7-9 March 2011REPRESENTATION
COUNSEL FOR THE APPLICANT: N/A
SOLICITOR FOR THE APPLICANT: In Person
COUNSEL FOR THE RESPONDENT: Mr Childs
SOLICITOR FOR THE RESPONDENT: Legal Services Commission of SA
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers Orders
(1)The interim order providing for the father to spend time with the children supervised at the H Contact Centre continue until such time as the Contact Centre is unable to provide that service or 1 July 2011 whichever first occurs.
(2)SAVE AND EXCEPT for paragraph (1) hereof all previous parenting orders in relation to the children V born on … March 2006 and E born on … August 2007 are discharged.
(3)The mother have sole parental responsibility for the children V and E.
(4)The children V and E live with the mother.
(5)Upon conclusion of the supervised time at the Contact Centre or 1 July 2011 (whichever first occurs) the father spend time with the children as may be agreed in writing and failing agreement as follows:
(a)until 6 July 2012 ON CONDITION THAT all such times to be supervised by and in the actual presence of the father’s mother, father’s father or the father’s sister Ms P:
(i) with E from 3.00 pm until 6.00 pm each Thursday afternoon and with V from after school until 6.00 pm each Thursday afternoon;
PROVIDED THAT E is collected from childcare and V is collected from school and both children are returned to the mother at the conclusion of the time spent by the mother collecting the children from the paternal grandparents’ home at Adelaide Suburb 1 and that during school holidays the time spent commence with the mother delivering both children to the father at the father’s parents’ home at 3.00 pm; and
(ii) each Saturday from 10.00 am to 4.00 pm with handover and collection taking place at the father’s parents’ home at Adelaide Suburb 1;
(b)from Friday 6 July 2012 when the requirement for supervision shall cease:
(i) each alternate weekend from the conclusion of school on Friday until 5.00 pm Saturday; and
(ii) each intervening Thursday (once a fortnight) from after school Thursday until 6.00 pm;
PROVIDED THAT V is collected from V’s school and E from E’s school or from Childcare immediately after the collection of V with the mother to collect the children at the conclusion of time spent from the paternal grandparents’ home at Adelaide Suburb 1; and
PROVIDED THAT during the weekend time with the father the children shall sleep at premises at which either the father’s mother, father’s father or father’s sister Ms P are also residing.
(c)from Friday 5 July 2013:
(i) during school term each alternate weekend from after school on Friday to the commencement of school on Monday with the children to be collected from and returned to school; and
(ii) for half of each school holidays at times to be agreed and in default of agreement the mother to have the first half and the father to have the second half;
(6)The orders for the children to spend time with the father are suspended from 5.00 pm on Christmas Eve until 5.00 pm on Boxing Day each year, during which period the children will spend time with the father from 5.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.
(7)The mother shall be permitted to remove the children from the Commonwealth of Australia for a maximum of four (4) weeks each year and during that time the orders for the father spending time with the children are suspended PROVIDED THAT the mother provides the father with not less than four (4) weeks notice in writing of such travel together with full details of all tickets, itinerary, a copy of the children’s return air tickets and the mother’s written undertaking to return with the children to Australia.
(8)If not less than four (4) days prior to the mother’s departure overseas the father provides to the mother full particulars of his Skype address or landline telephone numbers the mother do cause the children to communicate with the father by telephone or Skype at least once every five (5) days whilst the children are outside of Australia.
(9)The Australian Federal Police remove the names of the children V born … March 2006 and E born … August 2007 from the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia.
(10)Both parties enrol and participate in Counselling Organisation 1 with a Counsellor other than Mr M and that each of the parties supply the Counsellor at Counselling Organisation 1 with copies of the Child Protection Service report in these proceedings together with the reports of Dr B and this judgment.
(11)The mother shall authorise and request the principal of any school attended by the children to provide to the father (at the father’s expense) copies of all school reports and school photograph order forms relating to the children.
(12)The mother do notify the father and keep the father informed of all schools, kindergartens and child care centres attended by the children providing such information to the father in writing not less than 7 days after any such change.
(13)Each party shall notify the other of any injury or illness suffered by the children when such injury or illness required hospital treatment or when either child is diagnosed with a serious ongoing medical condition such information to be provided to the other parent as soon as possible.
(14)Each party keep the other party informed of a telephone contact number and postal address.
(15)The father and any supervisor be restrained from using any form of physical discipline on the children.
(16)The mother and father are restrained and injunctions are granted restraining each of them from:
(a)denigrating the other in the presence or hearing of the children;
(b)causing or permitting any other person to denigrate the other party in the presence or hearing of the children.
(17)The father is restrained and an injunction is granted restraining him from denigrating Religion 1 and from causing or permitting anyone else to denigrate Religion 1 in the presence of the children.
(18)The father is restrained and an injunction is granted restraining him from taking the children for assessment treatment or any other attendance upon psychological or health professionals other than Counselling Organisation 1 or to a medical practitioner in the case of an emergency.
(19)The appointment of the Independent Children’s Lawyer is discharged three months from the delivery of judgment or as soon as Counselling Organisation 1 confirms both parents have enrolled and commenced attending at Counselling Organisation 1 whichever last occurs.
IT IS NOTED that publication of this judgment under the pseudonym Bartels & Scholz (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT ADELAIDE FILE NUMBER: ADC 4998 of 2008
Mr Bartels Applicant
And
Ms Scholz Respondent
REASONS FOR JUDGMENT
Introduction
1.The proceedings relate to parenting orders sought by the applicant father Mr Bartels and the respondent mother, Ms Scholz. The orders sought relate to the children of the parties, V born in March 2006 and E born in August 2007.
Proceedings and hearings
2.The father commenced proceedings by Initiating Application filed in the Federal Magistrates Court of Australia on 17 December 2008. He sought urgent interim orders and by way of final orders that the children be placed on the Airport Watch List and not allowed to leave Australia indefinitely without his permission. He also sought final orders that the children V and E live with him.
3.On 19 January 2009 the mother filed a Response to the Initiating Application. The mother sought final orders that she have sole parental responsibility for V and E, that the children live with her, the children “spend time with the father at such times and under such conditions as ordered by this Court” and certain injunctions against the father.
4.On 6 February 2009, Federal Magistrate Kelly made certain interim orders, including the appointment of an Independent Children’s Lawyer for the children and an order transferring the proceedings to the Family Court of Australia with a request that the matter be considered for management under the Magellan protocol.
5.On 2 March 2009 the father filed an Amended Initiating Application which added to the orders sought, “If the Court decides against point 4” “that I and my parents are able to see the children on a regular basis with the durations and conditions decided by the Court.”
6.Thereafter, interim orders and directions were made including a direction that a Family Consultant provide a report relevant to the care, welfare and development of V and E.
7.The matter was listed for trial for five days commencing 12 April 2010. A further updated Family Report from Dr B was requested.
8.Notwithstanding the father’s failure to appear at certain directions hearings, the matter remained in the trial list for the five days commencing Monday 12 April 2010. A direction was made that it was appropriate for the mother to present her case first.
9.The trial commenced on 12 April 2010.
10.The father was unrepresented. The mother was represented by Mr Childs of Counsel and the Independent Children’s Lawyer by Ms Cocks of Counsel. The trial did not conclude in the estimated five days and continued part-heard on 28, 29 and 30 April 2010 with final addresses on 4 May 2010.
11.Judgment was reserved. Pending delivery of the judgment certain orders were made continuing the existing interim orders and certain injunctions. It was also ordered that the mother have leave to take the children V and E to Europe to visit her parents provided the children were not absent from Australia longer than the period between 10 July 2010 and 9 August 2010 and on certain other conditions including:
“5.The mother has leave to take the children from Australia to Europe for the purposes of visiting her parents in [European Country 1] provided the children are not absent from Australia longer than the period between the 10 July and 9 August 2010 and provided further that the mother provide to the father full detailed itinerary and contact details for herself and the children during that period and on the basis that the mother will make arrangements to speak to the father at least once a week by telephone or Skype provided on condition that the father provide the mother with the landline telephone number or Skype details at least 14 days before the mother and children depart Australia.
6.The Airport Watch List Order made on 6 February 2009 in relation to the children leaving Australia is suspended for the period between 10 July 2010 and the 9 August 2010.
7.The time the children spend with the father during the period the children are overseas is suspended”
12.Before judgment was delivered the mother filed further proceedings. By application filed on 13 July 2010 the mother sought orders:
“1.That this matter be listed as a matter of urgency.
2.That paragraph 1(a), (b) and (c) of the Orders made on the 4th of May 2010 by the Honourable Justice Dawe be suspended pending investigations by the South Australian Police Department in conjunction with Families SA and the Child Protection Services at [Hospital 1].
3.…”
13.The affidavit filed with the application on 13 July 2010 made serious allegations in relation to the welfare and safety of the children whilst spending time with the father.
14.It was also apparent from the proceedings that the mother had decided not to avail herself of the option to travel to Europe.
15.The father did not appear at the hearing on 21 July 2010. On that day orders were made:
“1. I adjourn this matter to 22 September 2010 at 9.15 am before me for mention.
2. The Department for Families and Communities – Families SA be requested to prepare a report as to the allegations specifically raised in the affidavits of the mother and her solicitors filed in the Court on 13 July 2010 and 19 July 2010 (documents 45 and 46 on the Court file) be filed at this Court by 4.00 pm on 10 September 2010 UPON NOTING that in the event that Families SA intend to rely / refer to any report prepared by Child Protection Services (“CPS”) that they do also at that time provide a copy of such CPS Report and that a copy of the report(s) be provided forthwith to each of the parties and the Independent Children’s Lawyer.
3. During the period of the adjournment all orders relating to the father spending time with the children are suspended.
4. During the period of the adjournment the mother is restrained and an injunction is granted restraining her from discussing any allegations with or in the presence or hearing of the children.
5. Any response or answering affidavit of the father to be filed and served upon the mother’s solicitors and the Independent Children’s Lawyer by 10 September 2010.
6. I give liberty to the father to apply to re-list the matter at an earlier date before me subject to my availability and subject to him giving the mother’s solicitors and the Independent Children’s Lawyer 7 day’s notice of the listing.
7. The Court will forward a copy of the orders to the father to his last known address.”
16.Further investigations concerning the allegations took place. The matter came before the Court on the 22 September 2010, 26 October 2010 and 1 December 2010 on interim issues and directions to prepare for further hearing.
17.The father was represented by Ms Milen from 15 September 2010 until her discharge on the first day of the re-opening of the trial on 17 January 2011 when leave was given for her to withdraw.
18.The matter was listed for further evidence for 9 days in January 2011 (17 January to 28 January 2011). Notwithstanding the extended time the trial did not conclude. Further dates were necessary.
19.The matter resumed on 7, 8 and 9 March 2011. Judgment was reserved on 9 March 2011.
20.Following the conclusion of the first part of the trial in May 2010 the parties filed substantial further affidavit material in relation to events which had occurred since the evidence concluded in May 2010.
Orders sought
21.At the commencement of the trial the mother sought orders that she have sole parental responsibility for V and E and that the children live with her. She also sought orders permitting her to travel overseas with the children on certain conditions, that the father be restrained from “abusing, denigrating, threatening or harassing the mother and the children or allowing anyone else to do so, attending at the mother’s home or place of employment or study, attending at or within 200 metres of the childcare centre except on Thursday when he collects the children, attending at the school of the child [K] born […] April 1998, removing the said children from the mother’s care”. She further sought an order that “without any admission by the mother, all parties and any supervisor be restrained from using any form of physical discipline on the children. She proposed “that unless otherwise agreed between the parties, the father spend time with the children each Thursday from 2 pm until 5 pm and each Saturday from 10 am until 2 pm, with such time to be supervised by either the father’s mother or his sister”.
22.At the conclusion of the first part of the trial the mother sought orders that the time spent on Thursday commence at 3.15 pm or the conclusion of school on Thursday and continue until 6.15 pm. She proposed that the time spent on Saturday be for no more than three or four hours and that both children attend at the same times.
23.At the conclusion of the resumed trial Counsel for the mother submitted that the mother’s evidence was that she would initially have preferred if the father did not spend time with the children but recognised that it was likely that the father would be given an opportunity to spend time with the children. If that were the case the mother sought orders that provided that any time spent take place at a children’s contact service with appropriate independent and trained supervisors supervising the father’s time with the children. The mother also conceded that if the father had completed appropriate courses in relation to his parenting role and after the children had spent some time properly supervised at a contact centre, then the mother would abide by orders providing for the father to have regular supervised time on the Thursday afternoons and each Saturday provided that time was supervised by either the father’s mother or his sister.
24.Initially the father sought orders that both children live with him and that the mother spend time with the children for limited periods similar to the interim orders made for him to spend time with the children. During the trial this changed and from time to time the father suggested that the mother could have more time with the children including a proposal that the children live with him Monday to Friday and with the mother on the weekends.
25.The father sought orders which allowed him to make decisions concerning the children’s education, medical treatment and any lengthy trips with the mother. If the children were not to live with him then the father sought “maximum amount of time” with the children.
26.At the second part of the trial the father continued to seek orders which would provide for the children to live with him and for him to have parental responsibility for decisions concerning their welfare. The proposal that the children live with him was on the basis that he lived with the children at his parents’ home.
27.At the commencement of the trial the Independent Children’s Lawyer did not propose any specific orders. At final submissions after the first part of the trial Counsel for the Independent Children’s Lawyer submitted that the mother should have sole parental responsibility, the children should live with the mother and spend supervised time with the father in accordance with the existing interim orders or in a similar pattern. It was suggested however that Thursday time spent should be from after school or child care until 6.00 pm and on the Saturday visits that E spend time with the father from 10.00 am until 2.00 pm, but V remain with the father from 10.00 am until 6.00 pm.
28.Counsel for the Independent Children’s Lawyer also proposed that both parties enrol in Counselling Organisation 1 to obtain specific Counselling in relation to their parenting roles with the expert reports being released to those persons providing assistance to the parents. Counsel for the Independent Children’s Lawyer proposed certain injunctions.
29.On an interim basis Counsel for the Independent Children’s Lawyer proposed that the interim orders providing for the children to spend time with the father on Thursdays and Saturdays continue, save and except that V’s time be extended until 6.00 pm on Saturdays and that when V attended school the time spent on Thursdays commence from the end of school until 6.00 pm rather than the 2.00 pm until 5.00 pm arrangements.
30.These orders were sought on an interim basis with the Independent Children’s Lawyer submitting that there be no further proceedings in relation to the father spending time with the children for a period of 12 months. It was proposed that after the expiration of the 12 month period if the parents could not agree on final orders for the children to spend time with the father, then the matter should be returned to Court.
31.At the conclusion of the second part of the trial Counsel for the Independent Children’s Lawyer sought similar orders.
Witnesses
32.The mother relied upon her oral evidence and affidavits. The mother gave evidence with the assistance of a European Country 1 language interpreter.
33.Witness 1 and Witness 2, team coordinators at the O Children’s Services (which the children had attended) gave evidence.
34.When the second part of the trial resumed in January 2011 the mother gave further evidence.
35.The Court also heard the oral evidence of Witness 3, the Manager and owner of Child Care Centre 1 where the children have attended since July 2010.
36.The mother also relied upon the evidence of Witness 4, the Director of Child Care Centre 1 and Witness 5 and Witness 6, both child care workers. Their evidence concerned the events of July 2010.
37.The father gave oral evidence.
38.By consent the father’s mother’s evidence was interposed during the cross-examination of the father. The father’s mother, Ms Bartels gave evidence about her observations of the father with the children.
39.The father also relied upon the affidavit and oral evidence of his sister Ms P who gave evidence about her observation of the children with the father.
40.By consent the affidavit of the father’s neighbour, Witness 7 was received in evidence without the neighbour being called.
41.In the first part of the trial the Family Consultant, Dr B, who prepared two reports was called by the Court. She was cross-examined by all Counsel and the father in person.
42.The report of Dr W, Paediatrician from Hospital 1 which related to the physical examination of V on 15 March 2008, was annexed to the affidavit of the Independent Children’s Lawyer (Document 19). This was received in evidence. It was not necessary for Dr W to be cross-examined on her report.
43.After the issue of a subpoena to SA Police, the father was recalled and cross-examined by Counsel for the mother and Independent Children’s Lawyer about the bail conditions which at one time applied to the father whilst he was awaiting hearing on charges concerning assaulting V (Exhibit 2).
44.In the second part of the trial the father gave further evidence in relation to the more recent allegations made by the mother. He also relied upon further evidence from his mother and sister Ms P. The father called evidence from his brother Mr J and his father. He also relied upon the evidence of his brother Mr J’s girlfriend Witness 8.
45.In the second part of the trial the Independent Children’s Lawyer relied upon the evidence of Witness 9 (who prepared the Child Protection Services Assessment Report in relation to V dated 30 November 2010) and the evidence of police officer H (who prepared the Police Incident Report and notes concerning the interview of the mother and V on 24 June 2010).
Issues
46.In the first part of the trial the mother raised concerns about the father’s capacity to provide appropriate and safe care for the children based upon allegations of his physical and emotional abuse of the mother, physical abuse of V, his inappropriate behaviour (including providing children food from rubbish bins and keeping guns and ammunition in the house). She also raised concerns about the safety of the father’s Adelaide Suburb 2 property having unfenced front yard near areas of risk to the children.
47.The Notice of Child Abuse or Family Violence filed by the mother in February 2009 said:
“Part E – About the alleged abuse
1.The mother alleges that the father has behaved in an aggressive and abusive manner with the child [V] in that he has physically struck the child with a belt leaving a mark on his back area which required medical treatment. The mother has referred her concerns to SAPOL, Child Protection Unit and Families SA and an investigation was undertaken by those services.
2.The mother alleges that the father has pushed the child [V] to the ground in an aggressive and forceful manner which scared the child.
3.The mother alleges that the father has fed the child food scraps from a commercial waste container at [a supermarket] and that she has witnessed the child eating a banana from the wate (sic) bin and that the father has forced all 3 children to eat bread from the said container.
4.The mother alleges that the father has struck the child [V] across the face with an open hand which caused the child pain, discomfort and fear.
5.The mother alleges that the father has struck the child [V] with a metal coat hanger across his legs leaving marks.
6.The mother alleges that the child has stated that the father has beat him.
Part F – About the alleged risk of abuse
1.This matter was investigated and assessed by the Child Protection Service, Families SA and the SA Police Department. The mother was advised to prohibit contact and the mother then travelled to [European Country 1] with the children – therefore reducing the risk of harm. The mother is now resident in Adelaide.
2.Based on the child [V’s] disclosures, and the abuse the mother has witnessed occur, the mother is concerned that the children are at risk of emotional trauma and physical abuse by his father, if the children spend time with the father.
3.The child [V] has thrived since no contact with the father and there is a substantial risk to his health and wellbeing if he spends time with his father.
Part G – About the alleged family violence
1.The mother alleges that the father has verbally and physically abused her in the presence of the children.
2.The mother is currently residing with the children in a safe house provided by Domestic Violence Services due to the fear that the mother has about the father.
3.The mother alleges that the father physically and verbally abused the child [V] in the presence of the other child [E] and her older sibling (a non child to these proceedings). That older child [K] also has fears for her siblings safety and her mother’s safety.
Part H – About the alleged risk of family violence
1.The mother alleges that the father has stated to the maternal grandfather that it is his right to beat his children and that no one will stop him from doing so.
2.The father denies any said violence perpetrated against the children or the mother.”
48.At the second part of the trial the mother alleged that the father:
(i)had harmed the children by hitting both children;
(ii)pulled V’s hair;
(iii)bruised her forehead;
(iv) that E had suffered an injury to her lip in the father’s care and that the supervisors had failed to properly supervise his time with the children in accordance with the orders.
49.The father alleged that the mother did not love the children and that she was not capable of providing proper arrangements or care for the children.
50.At the second part of the trial the father alleged that the mother had manipulated the children causing them to make false statements and that her behaviour was abusing the children emotionally and psychologically.
The Law
51.Section 43 of the Family Law Act 1975 (Cth) (“the Act”) sets out the principles to be applied:
Principles to be applied by courts
(1)The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a)the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c) the need to protect the rights of children and to promote their welfare;
(ca)the need to ensure safety from family violence; and
(d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
…
(Emphasis added)
52.Section 4 of the Act defines abuse as follows:
“… in relation to a child, means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or any other person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.”
53.Section 4 also contains the definition of “family violence”:
“ means conduct, whether actual or threatened, by a person towards or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”
54.Part VII of the Act refers to children’s issues. The objects of the part and the principles underlying it are set out in section 60B.
Section 60B
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views: and
(ii) to develop a positive appreciation of that culture.
55.Section 60CA provides:
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
56.Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interest. The primary considerations are:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
57.Section 60CC(3) provides:
Section 60CC(3)
(3) Additional considerations are:
(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;
(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);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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 or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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 child;
(m)any other fact or circumstance that the court thinks is relevant.
58.Section 61DA provides:
Section 61DA
(1)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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
59.Section 65DAA provides;
Section 65DAA
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic)
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
60.Section 60CG provides:
Section 60CG
Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
61.Section 69ZN provides:
Principles for conducting child-related proceedings
Application of the principles
(1)The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned against family violence, child abuse and child neglect; and
(b)the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
62.Paragraph section 69ZT of the Act provides:
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a)a rule of common law; or
(b)a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
63.In M & M (1988) 166 CLR 69 the High Court of Australia discussed cases dealing with allegations of sexual abuse. Although this matter relates to allegations of physical abuse the High Court’s judgment is of assistance.
64.Paragraph 21 to 25 of the judgment:
“21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
65.The decision of the High Court of Australia in MRR v GR (2010) 263 ALR 368 specifically dealt with section 65DAA as follows:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
14.His Honour treated the answer to the firstmentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour "did not expressly address the issue of whether an equal time arrangement would be 'reasonably practicable’”. However, the Court observed, his Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child's best interests. But those matters could be relevant only to the question posed by par (a) of s 65DAA(1), not the question in par (b), which required consideration of other, different matters.
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
16.Had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order. From the time that she returned to Mount Isa to the date of the hearing the mother had been required to live in a caravan park, and live there with the child on alternate weeks. Apart from the facilities being limited, it could not be said that such an environment is usually ideal for a child. The availability of alternative accommodation did not seem likely. Rental accommodation is scarce in Mount Isa and the waiting lists for it long. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in "rough" areas.
66.The Full Court of the Family Court of Australia discussed the complex provisions of the Act and the decision of MRR v GR (Supra) at paragraph 81 of Marvel and Marvel (No 2) (2010) 240 FLR 367:
“81.The High Court recently published reasons for judgment in MRR v GR (2010) 263 ALR 368. While this was a so called “relocation” case in which final parenting orders were sought, it is important to bear in mind what the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) said about s 65DAA if the Court has or will make an order that the child’s parents have equal shared parental responsibility (our emphasis).”
67.At paragraphs 87, 88 and 92 the Full Court said:
“87.The legislative pathway to be considered since the amendments in 2006 is convoluted. It has been aptly described by Warnick J in Zabini & Zabini [2010] FamCA 10 as “a dilemma of labyrinthine complexity”. It seems to us unlikely that the legislature intended when narrow or discrete issues arise in parenting matters, such as variation of a parenting order to provide a slight increase or reduction in time spent by a child, or change in delivery and collection arrangements, that it would be necessary to have regard to s 61DA and as a consequence the triggering (or as asserted in this case the possible triggering) of the application of s 65DAA in such applications.
88.Counsel for the ICL raised with us the fact that no order for equal shared parental responsibility was made or sought. In effect, she submitted it was arguable that the presumption contained in s 61DA did not mandate the court, if it found the presumption applied, making an order that the parties have equal shared parental responsibility. Thus the argument advanced was that if no order for equal shared parental responsibility has been made, or is to be made, even though the presumption applies, then the application of s 65DAA is not triggered. In other words, counsel argued that if s 61DA(1) mandated the making of an order for equal shared parental responsibility then the section would have included the following additional words “and make an order to that effect”
…
92.We are conscious that we should give a purposive interpretation to the legislation (see DC Pearce and RS Geddes, Statutory Interpretation in Australia (6th ed, 2006) [2.5]). The interpretation of the legislation suggested by counsel for the ICL is available on the plain reading of s 61DA. It could however lead to a court effectively by-passing the requirements of s 65DAA. Regardless of whether one or both parties sought equal or substantial or significant time orders, if a court found the presumption applied, but no parenting order for equal shared parental responsibility was made, the application of s 65DAA would not be triggered, and the only requirement would be to make a parenting order which was in the best interests of the child having regard to matters in s 60CC.”
Background
68.The father was born in European Country 2 in 1974 and is now aged 37. The mother was born in European Country 1 in 1981 and is now aged 30.
69.The mother has a child K who was born April 1998 and is now aged 13. K has resided with the mother most of her life and continues to reside with the mother in Australia. K’s father resides in European Country 1. The mother says that K and her father continue to have a good relationship and remain in contact with each other.
70.The parties met in European Country 1 in May 2005. They have resided together from time to time, but also spent significant time apart.
71.The first child of the parties V was born in European Country 1 in March 2006. In late 2006 the mother, father and V travelled to Australia where they lived with the paternal grandparents in suburban Adelaide. K remained living with her maternal grandparents in European Country 1, but came to join the mother in Australia in September 2007.
72.The second child of the parties’ relationship E was born on 13 August 2007 in Australia.
73.On 14 March 2008 the father hit V with a belt across his lower back. There was a dispute about the background to the incident at which the mother was present. The mother telephoned the police who arrived and arrested the father.
74.The father was charged in relation to the assault upon V. Documents produced by the South Australian Police during the trial suggest that the father was released on bail conditions which were:
“1.I will not leave the state;
2(a)I will reside at [… P Street, Adelaide Suburb 2], SA […];
2(b)I will forfeit to the Crown the sum of $500 if I fail to comply with a term or condition of this bail agreement;
2(c)except for the purposes of being present during the collection of property with police present, I will not harass, interfere with or approach [V] or [Ms Scholz]”.
75.The documents indicate the father signed the form on 14 March 2008. The documents were put to the father in the witness box. The father said he did not remember these conditions and thought the only condition was that he not harass the mother.
76.The father was charged with aggravated assault of V.
77.The charges against the father were later withdrawn. The date of dismissal of the charges and therefore cessation of the bail conditions is not clear from the evidence.
78.At the time of the assault upon V the mother and father and children were living at Adelaide Suburb 2 in premises registered in the name of the father’s brother.
79.The mother and V were taken to Hospital 1 where V was examined. The report of the paediatrician, Dr W (which is described as Statement of Witness) indicates that V was taken to the hospital Emergency Department on 14 March 2008. He was seen by a Paediatric Registrar. V was admitted to the Paediatric Unit overnight. On the next day (15 March 2008) Dr W interviewed the mother and examined V. The summary by Dr W includes:
“[V] aged 2 years presented post allegations of physical assault by his father [Mr Bartels]. He presented with a 12cm linear area of erythema to his buttocks, which although less obvious than when examined on 14.3.08, is adequately explained by the alleged mechanism of injury and indicative of a recent injury to the area. …”
80.On 15 March 2008 V was discharged from hospital into the care of his mother. Temporary accommodation had been arranged for the mother and the children.
81.The parties have not lived together as a family since March 2008.
82.In April 2008 the mother and children travelled to European Country 1 where they lived with the maternal grandparents.
83.In November 2008 the mother and children returned from European Country 1 to Australia. Thereafter, until early December 2008, the mother and children lived at the paternal grandparents’ home at Adelaide Suburb 1. The mother claims that the father was present at the airport when she arrived and removed V from her care. She also complains that the father was often present at the paternal grandparents’ home, notwithstanding that she did not want him to be there.
84.The mother alleges that during the period of time she spent in European Country 1 with the children, V’s development improved, apart from the time when she had concerns about his behaviour during the period that his father was regularly telephoning the children.
85.On her return to Australia the mother alleges that V’s behaviour and development deteriorated.
86.On 8 December 2008 the mother left the paternal grandparents home and thereafter lived in several places with the assistance of the welfare authorities. The mother asked that her address and that of the children not be disclosed to the father, however the father was aware of the children’s attendance at the O Childcare Centre and Kindergarten and subsequently the Childcare Centre 1.
87.Shortly after the mother left the paternal grandparents’ home the father commenced proceedings in the Federal Magistrates Court. The proceedings continued in the Federal Magistrates Court with various interim orders made. The Independent Children’s Lawyer was appointed in February 2009 and the matter transferred to the Family Court of Australia.
88.Following upon orders of the Court the Family Consultant, Dr B conducted interviews and observed interactions for the purposes of preparing her report. The first report of the Family Consultant is dated 17 June 2009.
89.The recommendations in this first report were as follows:
“Recommendations
·That the father completes an appropriate positive parenting course which includes information on child development such as ‘[Parenting Course 1]’.
·That the father spends time with his children in the supervision of his parents until such time that he has completed an appropriate parenting course and re-established his relationship with both children. Once this has occurred the children should spend regular unsupervised time with their father moving to overnight visits when the children are comfortable in his care.
·That the paternal grandparents are supported to spend regular time with their grandchildren.”
90.The matter was listed for mention before His Honour Justice Burr on 6 July 2009. The father did not attend and was not represented. The matter was adjourned to 23 July 2009 when again there was no appearance by the father. The matter was again adjourned to 17 August 2009 when interim orders were made as follows:
“1.During the period of the adjournment the children spend time with the father under the supervision of either of the father’s parents or his sister at the following times:
a) Thursday from 1.00 pm to 4.00 pm;
b) Saturdays from 10.00 am to 1.00 pm;
2.The father collect the children on Thursdays from their Child Care Centre at 1.00 pm and the mother collect them from the paternal grandparents’ home at 4.00 pm.
3,On Saturdays the mother is to deliver the children to the paternal grandparents at 10.00 am and collect them from the paternal grandparents’ home at 1.00 pm.
4.The father is restrained and an injunction is granted restraining him from attending at the Child Care Centre or being within two hundred [200] metres at any other time SAVE AND EXCEPT on Thursdays when the father is to collect the children from the Child Care Centre,
5.All parties including the mother, father and any supervisor of the children are restrained and an injunction is granted restraining them from using any form of physical discipline of the children.
6.The father’s time spent with the children is conditional upon that time spent being at all times supervised by one of the paternal grandparents or the father’s sister (who have filed affidavits in these proceedings).
7.This matter is listed to a 1st Day Magellan Trial on the 19 October 2009 at 11.30 am before the Honourable Justice Dawe.
8.The mother and father file and serve Parenting Questionnaires including specific detailed final orders that they are seeking by the 5 October 2009.
9.IT IS DIRECTED the father file and serve by the 16 October 2009 a short report confirming his attendance at the Parenting Course which he is about to commence.
10.The Court requests Family Consultant, [Dr B], attend on the 1st Day of Magellan Trial if she is available.
11.The applicant father pay the hearing fee within twenty-eight [28] days unless a waiver of the fee is obtained beforehand and in the event that the hearing fee is not waived or paid by the said date the case be listed before the Docket Registrar.”
91.On 19 October 2009 the orders were made for preparation of the matter for trial on 12 April 2010 for five days. The orders included that the Family Consultant prepare an updated Family Assessment report. Orders providing that the children spend time with the father on Thursdays and Saturdays, Christmas Eve and Boxing Day were also made. The injunctions in the order of 17 September 2009 were continued.
92.The Family Consultant conducted interviews and observations with the parents and children on 2 February 2010 and with the paternal grandmother on 11 February 2010. Her second report is dated 26 February 2010. The report deals at length with the avoidance reaction by E to her father and the need for the parties to have therapy to assist them in dealing with the children’s behaviour. The report of 26 February 2010 concluded with recommendations:
“Recommendations
63. It is recommended that:
(a)the children’s time with their father remains the same as the current interim order;
(b)therapeutic assistance be obtained for both children through [Counselling Organisation 1] with the involvement of both parents were (sic) appropriate.”
93.As previously indicated the first part of the trial commenced on 12 April 2010 and continued until 4 May 2010 when interim orders were made and judgment was reserved.
94.The interim orders were:
“The current existing interim orders will continue pending delivery of judgment being:
1.The children spend time with the father under the supervision of either the father’s parents or his sister at the following times:
(a)on Thursday from 2.00 pm to 5.00 pm;
(b)on Saturdays from 10.00 am to 2.00 pm.
2.The father to collect the children on Thursdays from their Child Care Centre and the mother to collect them from the paternal grandparents home at the conclusion of the time spent SAVE AND EXCEPT if the Child Care Centre is closed on the Thursday then the mother is to deliver the children to the father’s parents’ home at the commencement of the time spent.
3.On Saturdays the mother is to deliver and collect the children from the paternal grandparent’s home.
4.Until further order the father is restrained from taking the children [V] and [E] to any social worker, medical practitioner, psychologist or other specialist without the written consent of the Independent Children’s Lawyer first having been obtained, SAVE AND EXCEPT that the father is permitted to take either of the children to a general medical practitioner or other medical practitioner in the case of the children requiring emergency treatment.
It is further ordered:
5.The mother has leave to take the children from Australia to Europe for the purposes of visiting her parents in [Country 1] provided the children are not absent from Australia longer than the period between the 10 July and 9 August 2010 and provided further that the mother provide to the father full detailed itinerary and contact details for herself and the children during that period and on the basis that the mother will make arrangements to speak to the father at least once a week by telephone or Skype provided on condition that the father provide the mother with the landline telephone number or Skype details at least 14 days before the mother and children depart Australia.
6.The Airport Watch List Order made on 6 February 2009 in relation to the children leaving Australia is suspended for the period between 10 July 2010 and the 9 August 2010.
7.The time the children spend with the father during the period the children are overseas is suspended.”
95.Following the application brought on behalf of the mother filed on 13 July 2010 there were further interim hearings and directions. The hearing of evidence was re-opened and the trial resumed in January 2011 and concluded in March 2011.
96.In her affidavit filed on 19 July 2010 the mother alleged:
“4.The children and in particular [V] has been reporting to me that his father has hit him and become very angry with him at times. For about three or four occasions before the 24th June 2010 [V] and [E] have been increasingly upset after returning from their father because he had become angry with them. They indicated that he had been hitting [V] about the head and choking him. [V] told me about this but also [E] was showing me by her actions what her father had done to [V]. [E] told me that [V] had cried a lot when his father had done this to him. I was becoming very worried about the children’s safety in the father’s care.
5.On the visit of the 24th June 2010, when [V] was returned to my care, he was particularly upset. There were slightly red marks on his neck and he described to me how his father had hit him about the head, punching and choking him. [E] also described this to me and was upset about this for her brother.
6.I asked the children if their grandmother was there and what she did. [V] told me that when his father has hit him his grandmother has intervened by yelling in a very high pitched voice at his father. He says that when his grandmother does this his father stops hitting him.
7.[V] and [E] told me that their father would be very apologetic to them after these things had happened and would say that it would not happen again. However the behaviour did continue in visits after this.
8.I took the children into the [Adelaide Suburb 3] Police Station as I was concerned by these reports.
9.The police officer there checked both the children and spoke with [V] and with myself in an interview situation. The police officer made a report and gave me a card which indicated the report number to be 10/W03470.
10.I did not have the benefit of an Interpreter. The police officer wrote up the statement and I signed it. The police officer then gave me certain advice which I was unclear about.”
97.Her affidavit said that she had not made the children available to spend time with the father since 9 July 2010.
98.The affidavit also refers to a telephone conversation between the mother and the paternal grandmother on Wednesday 14 July 2010 when for the first time the mother was informed that the father had travelled to European Country 2.
99.In the affidavit of the mother filed on 11 October 2010 she refers to the children being upset, and in particular V being angry and rebellious and demonstrating his upset behaviour by hitting and kicking and on occasions being aggressive to his sister.
100.In that affidavit the mother said:
“20.I note the report of Families SA dated 13th September 2010 and concerns raised in relation to [E] on page 2 of that report. When I had collected [E] from her father on the Saturday, her lip was bleeding. When I attended at the grandparent’s home to collect the children, [E] and [V] were at the door and no adults were immediately obvious. The grandfather appeared at the door as I was putting the children into the car. I asked him about her lip and he said he didn’t know what had happened.
21.The children had very upset behaviour that day. [V] was concerned to tell me that his father had pulled his hair, shaken him, hit him and had been yelling at him. [E] did say about her father hitting [V]. She also appeared to have a temperature that day and the next day.
22.On the Monday she seemed a little better in her health but her lip was not good. I had used ointment to keep it clean.
23.I was unable to get an appointment about [E’s] lip, with the doctor, until Tuesday. At the childcare they were suspicious about her lip. When I took [E] to [Dr C] at [Medical Centre 1] she thought that the lip could be the result of a viral illness but then she said she would have expected that there would have been other sore places as well as the lip. She suggested that I try antibiotics if it was not better within a couple of days, because if it was viral, other signs would be showing by then. If it was not viral, not to use the antibiotic and it would get better.”
101.The father in his answering affidavit filed on 25 October 2010 said, inter alia, that he left Australia on 4 July 2010 and did not arrive back from European Country 2 until 2 September 2010. He denied the allegations that he had hit the children, had hit V or had choked him. He denied that there were any red marks on V’s neck on 24 June 2010.
102.In paragraph 8 of that affidavit the father said:
“8.The mother has apparently made allegations to the Child Protection Service that I also pulled [V’s] hair hard. I say that I did not pull [V’s] hair at all on the 24th June 2010. I do say that on an earlier visit [V] pulled my hair hard. I told [V] that he should not pull hair so hard because it hurts. I then gently tugged [V’s] hair and said words to the effect, “that you must do it softly like this”. Since then [V] often pulls my hair gently and I will pull his hair back also gently. It has become a kind of game. I was interviewed about this at CPS and I told CPS that the only hair tugging which had occurred was in this game. I definitely recall that we did not do this on the 24th June 2010.”
103.In relation to the allegations that he had hit V he said in paragraph 9:
“9.The only thing which occurred out of the ordinary on the 24th June 2010 was that towards the end of the visit [E] pointed her finger at me and told me in an angry tone that “you hit [V] in the head”. I was totally shocked because the comment came out of the blue and seemed to be out of context with what had been occurring during the period. Certainly I had not hit [V] in the head and I have never hit him in the head. I do not use physical discipline in respect of the children at all, instead preferring to discuss things with them and explaining why they should act or not act in a particular way. I did comment to [V] words to the effect, “Daddy doesn’t hit you in the head, does he?”. [V] was fairly uninterested in the conversation but did say “yes” in a disinterested manner. After a short while [E] settled down and the children behaved after that as if nothing had happened.”
104.The father denied that there was any injury to E’s lip on 3 July 2010 and denied that there had ever been a large bruise on E’s forehead.
105.The father’s family (his mother, father, brother, sister and brother’s girlfriend) filed affidavits supporting the father’s case.
Discussion of evidence
(a) Allegations of father’s violence towards the mother and children106.The mother alleges in her affidavit of evidence-in-chief that:
“Since [V] was the age of 13 months old the father has hit [V] across the face with an open palm. This abuse has continued and increased since that time.” (Paragraph 20 of document 38).
107.The affidavit continues:
“22.The father told me that he didn’t see anything wrong with it (hitting [V] or children in general).
…
25.The father has often threatened me that I have no rights in relation to the children and that he will ‘beat the children and that he will do it to all the children’. He told me that ‘all children will be punished and that beating is normal’.
205.The evidence indicates that on occasions the father has become quite emotional in the presence of the children. He has allowed them to see him break down and has been sobbing in their presence.
206.The evidence of Dr B indicated that it was likely that E was quite distressed in the company of the father because she missed her mother.
207.During cross-examination by the father Dr B indicated that her opinion was that it was the father’s inability to focus on the children’s best interests, rather than him focussing on his need for control, which was a factor.
208.During this cross-examination by the father the Family Consultant, Dr B, emphasised that E’s reaction to her father was a very concerning factor.
209.Because of the recent events and particularly the allegations which were made in June and July 2010, the father has not spent time with V and E since early July 2010. Taking into account the children’s ages this is a significant period of time.
Application of the law
210.Section 61DA requires the Court to apply the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
211.In this matter the father has admitted hitting V with a belt. The evidence of this incident is enough to establish the evidence to rebut the presumption. There is however further evidence of the inability of the parents to communicate on any reasonable level and the clear evidence of lack of trust between the parents which is sufficient to establish the ground that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
212.The Court therefore does not propose to make an order providing for equal shared parental responsibility. Therefore the provisions of section 65DAA do not directly apply. The Court will still have regard to the principles of the Act which encourage the parents spending substantial and significant time with the children where that is reasonably practical taking into account the paramount consideration is the best interests of the children.
213.Section 60CC sets out matters which the Court must consider when determining the children’s best interest. The primary considerations are:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
214.The evidence of Dr B was that if the attachment between the children and the mother was compromised there would be negative long term consequences particularly for E.
215.Dr B recommended therapy to improve the relationship between the father and E. She acknowledged that it is only likely to be successful if the father was to acknowledge his part in E’s behaviour. The evidence of the father does not make this acknowledgement by the father likely.
216.The father acknowledged that he had hit V with a belt but the father denied that this behaviour was abusive. The father said that he would not in future physically discipline the children. The father’s evidence in relation to this incident did not fully acknowledge his responsibility. He attempted to minimise the events and his culpability.
217.The father denied any other violence towards the children. He denied causing any injury to either child.
218.He did admit to pulling V’s hair. The evidence he gave about the number of occasions that this occurred was contradictory. The father said that when he had pulled V’s hair this would have occurred when one of the supervisors were present. None of the supervisors recalled seeing this happened. Both the father and the paternal grandmother gave evidence about the father play-fighting with V and using either play swords or sticks. The evidence indicates that E was likely to have observed this behaviour.
219.The father gave evidence that it was possible that during his play-fighting with V he may have touched V’s throat.
220.The father and his witnesses denied any knowledge or any activity or behaviour which could have caused a bruise on E’s head or a cut to E’s lip.
221.The evidence of the Child Protection worker and the Police Officer did not support a finding that the father abused V or E by deliberately harming them.
222.The evidence of the Childcare Worker in relation to E’s cut lip supports the mother’s allegation that the cut to the lip occurred whilst E was spending time with the father. However taking into account E’s age, the language difficulties and some inconsistencies in the mother’s evidence, it is not possible to make a finding on the balance of probabilities that E’s injury to her lip was caused by a deliberate assault by the father.
223.The evidence of the father and the persons who were meant to be supervising the children establishes clearly that they did not supervise the father’s time with the children to the extent that they were present and able to see what was happening at all times. The father, his parents and sister all admitted that there were times when the father was either upstairs or outside on the veranda when the possible supervisor could not observe the father with the children.
224.I accept the evidence of the mother that E and V have told the mother that the father has hit them.
225.The father and his mother also gave evidence about E raising the topic of the father hitting V on 24 June 2010. The evidence of Witness 8, who was also present, is to be preferred to that of the father and his mother.
226.The mother’s actions in calling the police and seeking help in March 2008 and June/July 2010 were appropriate, particularly bearing in mind her isolation in the Australian community and her limited use of the English language in 2008.
227.I accept the evidence of the mother that the children told her that the father had hit them, that the children had said things to her which led her to believe that the father had held V by the throat and that the mother was concerned about the injury to E’s lip.
228.The evidence of the father, and in particular the evidence of the paternal grandmother and the father’s sister, do not support a finding that the father abused the children in late June early July 2010. There is a possibility that the children’s statements to the mother were brought about by the father’s rough play with the children, the father’s lack of awareness of the inappropriate level of rough play with the children at their ages, the children’s inability at their age to complain to the father in circumstances where however they were able to express their concern to the mother. This conclusion is supported by the evidence of the Child Protection Worker, Witness 9.
229.The evidence does not support a finding that the mother has deliberately manipulated the children or coached the children into making complaints about the father.
230.The evidence of Dr B supports the finding that the meaningful relationship with both parents will best be promoted if the children continue to live with the mother. The father’s evidence was that he did not place any value upon the relationship between the mother and the children. He asserted that the mother did not love the children and that she did not provide appropriate care for the children.
231.The evidence of Dr B also raises concerns about the psychological risk to E if she is required to spend extended time with the father, thus removing her from the security of the relationship with her mother. The relationship between the children themselves needs to be taken into account when considering any proposal for V to spend longer time with his father than E.
Additional considerations
(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;
232.V was born in March 2006 and is therefore now aged five. E was born in August 2007 and is now aged three. The children’s half-sister K was born in April 1998 and is now aged thirteen (K’s relationship with the children and her views about the father may also have some impact upon the younger children).
233.Due to the ages of V and E it is not appropriate to place emphasis upon their expressed views.
234.The evidence of the parents, the father’s family and the Family Consultant indicate that V enjoys his time with his father.
235.The evidence also suggests that after an initial period E overcomes her hesitancy and interacts with the father.
236.The evidence of the mother about the children’s reactions to the father is consistent with that of the childcare workers and Dr B.
(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);
237.The evidence indicates that prior to July 2010 V had a secure relationship with both his father and his mother. There may be several factors which explain V’s reluctance to bring his time with the father to an end from time to time. The father did not react well to separation from the children on past occasions. He has on at least two occasions cried in front of the children.
238.The evidence of the mother, supported by the evidence of Dr B, indicates the children have a primary attachment to the mother. E, in particular, is significantly dependent upon the ongoing relationship with her mother for her emotional and psychological wellbeing.
239.The evidence of Dr B indicates that in her observations it was clear that E did not seek any comfort from the father notwithstanding that she had been seeing him regularly. The evidence was that her behaviour was “strikingly avoidant” in relation to the father.
240.K has a strong ongoing relationship with both of the children. The evidence indicates that it would be in their best interests to maintain this relationship with their half-sister.
241.The history of the time spent by the children with the paternal grandmother and her evidence also indicates that prior to July 2010 the children enjoyed a good relationship with the paternal grandmother and to a lesser extent with their father’s sister, their paternal aunt.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
242.The mother’s reluctance to increase the time the children spend with the father was adequately explained by the allegations made by the children about the father, the behaviour of V and E’s resistant behaviour. This is also supported by the evidence of the Family Consultant.
243.Bearing in mind the history of the relationship between the mother and father and the behaviour of the father towards the children and in particular V in the past, the mother had an appropriate attitude towards facilitating and encouraging the relationship between the children and the father.
244.The subsequent allegations of the children in late June 2010 and early July 2010 supported the concerns of the mother and do not indicate an inappropriate attitude towards the relationship between the children and the father.
245.The father however maintains that the mother does not love the children. He proposed that the mother have only limited time with the children. Initially, this was based upon his attitude that this was all that he “was getting”.
246.This attitude of the father ameliorated during the trial. He then proposed that the children live with him Monday to Friday and with the mother on the weekends.
247.The attitude of the father towards the mother’s relationship with the children does not promote a finding that he would encourage a close and continuing relationship between the children and the mother if the children were to reside with him.
(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 or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
248.The evidence before the Court and in particular that of the childcare workers and the expert Dr B, indicates that there will be significant difficulty for E if she were to be removed from the care of her mother. The children’s removal from the care of the mother would have a significant detrimental effect upon their future development. It is also significant that removal from the care of the mother would reduce the time they spend with K and is likely to affect their relationship with her.
249.Save and except for supervised time at the Contact Centre the children have not spent time with their father since July 2010.
(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;
250.This is not a significant factor in this case.
(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; and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
251.The Court does not accept the allegations of the father that the mother does not provide appropriate care for the children. The mother has provided appropriate care for the children. The fact that the mother has taken the children to live at different addresses since the separation in March 2008 is explained by the mother’s circumstances and does not indicate any neglect or harm to the children.
252.The father and his parents propose that if the children were to live with him, or indeed were to spend any time with him, they would do so at the home of his parents. The father would have the support of his parents and other family members if the children were to reside with or spend time with him.
253.Both his parents are employed.
254.The father spends time working at a cultural organisation as a volunteer director and is self-employed. He does not however provide other than minimal child support for the children. His attitude was that he did not trust the mother to spend the money on the children and that because of her decision to leave him, he was not willing to provide her with any money. His attitude was one of lack of trust of the mother and punishment of the mother rather than giving priority to the needs of the children.
255.The time that the mother spent either working or studying English when the children were placed in childcare, does not indicate neglect or failure to care for the children. The mother’s response to concerns about V’s weight was appropriate. The children receive a benefit from attending at childcare where they are exposed to social activities with other children and assisted in developing their English language skills.
256.The father’s involvement of Mr M and Ms TT appeared to be focussed on providing opinions which would contradict the Family Consultant’s opinion. The father however failed to provide convincing detail of the information he supplied to those persons. In particular he did not give them information about hitting V with a belt. Taking into account all of the evidence before the Court, the limited information provided to them and the failure to obtain any input from the mother or Independent Children’s Lawyer means that little weight can be given to the opinions expressed by Mr M and Ms TT.
(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;
257.The young age of the children is a factor which has already been considered. The mother’s background and culture supports the mother’s desire to be able to holiday with the children and visit her elderly parents.
258.The characteristics of V and E have also been considered in the context of their relationships with each of the parents.
(h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
259.Not relevant to the proceedings.
(j)any family violence involving the child or a member of the child's family;
260.The father denied the allegations of violence to the mother other than conceding he may have pushed her on the occasion when he hit V with a belt. He denied the other allegations of the mother.
261.The father admitted hitting V with a belt in 2008. He had limited understanding of the significance of this action. The evidence did not establish any further abuse by the father upon the children to the necessary standard of proof. The evidence did establish however that the father had a limited understanding or appreciation of the consequences of his play-fighting, hair pulling and other rough play upon the children, particularly considering their young age.
(k)any family violence order that applies to the child or a member of the child's family; if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
262.There is currently no family violence order. The original bail order was discharged when the charges against the father were withdrawn.
(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 child;
263.Proceedings about the children have been before the Courts since December 2008.
264.The children are now aged five and three. It is usually in the best interests of children for an order to be made which would bring about a situation where further proceedings were neither necessary nor encouraged.
265.The recommendations of the Family Consultant at the first part of the trial were that the children’s time with the father remain limited and that therapeutic assistance be obtained for both children with the involvement of both parents “where appropriate”. The success of the therapy was acknowledged by Dr B to be somewhat dependent upon the father’s acknowledgement of his role in E’s difficulties. The father’s evidence however was that he considered the mother to be solely responsible for this behaviour.
266.Following the allegations in June/July 2010 the mother became even more concerned about the father’s abuse or lack of care of the children. Her confidence in the role of the supervisors was reduced. The father and the supervisors themselves admitted that the father was not observed by a supervisor on several occasions when he spent time with the children, but neither the father nor the supervisors acknowledged any depth of responsibility or concern about this behaviour. The father maintained a strong attitude that the mother was deliberately manipulating the children and therefore harming them psychologically and emotionally. The prospects of successful therapy which might be dependent upon the co-operative attitude of the parents is limited.
267.Subparagraph (4) states:
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
268.The mother has made decisions about the children (such as schooling for the children and kindergarten) without consulting the father. The mother’s failure to communicate with the father needs to be seen in context of the mother’s expressed fear of the father and his controlling attitude towards her and the children.
269.The father did not inform the mother of his involvement of Ms TT and Mr M in the assessment of E.
270.I do not accept the evidence of the father that he made appropriate arrangements anticipating he would be able to communicate with the children whilst he was overseas in European Country 2 from early July to early September 2010. The father has also failed to communicate with the children by sending them Christmas presents in 2010. His explanation appeared to be related to his own needs rather than those of the children. He explains his limited financial support of the children by referring to his poor opinion of the mother.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
271.These factors have been taken into account in the discussions above.
Conclusions
272.The combination of the numerous factors directed towards the best interests of the children support a conclusion that both V and E should hereafter reside with the mother who should have sole parental responsibility for the children.
273.Notwithstanding the attitude of the father which could be described as domineering and controlling, it is to be hoped that an amelioration of this attitude after judgment will enable the children to benefit from the positive aspects of their relationship with the father and his extended family.
274.The Court concludes that it would be in the best interests of the children for the meaningful relationship between the father and the children to be promoted by a gradual introduction of the time they spend with their father. The mother’s attitude and therefore the children’s attitude is likely to be more positive if the supervision by the paternal grandparents and the father’s sister can be maintained for an introductory period.
275.The Court understands the basis of the submissions by Counsel for the Independent Children’s Lawyer about temporary orders providing for the matter to return to Court after the parents have participated in parenting programmes. The benefits of this proposal are outweighed by the detriment to the family of ongoing participation in litigation.
276.An end to litigation with specific final orders being made is likely to promote the best interests of the children.
277.The Independent Children’s Lawyer proposed certain ancillary orders which allow the father to obtain necessary information and prevented both parties from denigrating the other. Such ancillary orders were not opposed by the mother and father and were sensible, practical orders in the children’s best interests.
278.The proposal that both parties attend Counselling Organisation 1 to obtain specific professional assistance in their ongoing care of the children is also likely to be of assistance to the parties.
279.It is in the best interests of the children that final orders be made now setting in place a graduated increase in the time the father spends with the children.
280.For the above reasons the Court considers the following orders to be in the best interests of the children.
I certify that the preceding two hundred and eighty (280) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 16 May 2011
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Costs
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