Bernard and Bernard

[2010] FamCA 49

FAMILY COURT OF AUSTRALIA

BERNARD & BERNARD [2010] FamCA 49

FAMILY LAW – CHILDREN – Parental responsibility – Mother to have sole parental responsibility for the children
FAMILY LAW – CHILDREN – With whom a child lives and spends time – Parties agree the children should remain living with the mother – The mother proposes the children spend supervised time with the father at a contact centre while the father proposes the children spend unsupervised time with him every weekend and half of all school holidays – Orders made for four of the five subject children to spend supervised time with the father for two hours every forth weekend at a contact centre, while the other child is to spend time with the father subject to the child’s wishes

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Rice v Asplund (1979) FLC 90-725

U v U (2002) 211 CLR 238

APPLICANT: Ms Bernard

RESPONDENT: Mr Bernard

INDEPENDENT CHILDREN’S LAWYER: Ms Wooi

FILE NUMBER: NCC 2769 of 2008

DATE DELIVERED: 1 February 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 9, 10 & 22 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Powe, as agent for Halletts Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sundstrom

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wooi, Krstina Wooi Lawyer

Orders

1. All former orders pertaining to the children, A (born … October 1995), B (born … December 1996), C (born … June 1998), E (born … March 2000), and E (born … August 2003) (“the children”) are discharged.

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

3. The children shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure that the child B spends time and communicates with the father in accordance with the child’s stated wishes.

5. Each of the parties shall take all reasonable steps to ensure that the child A spends time and communicates with the father as follows, or as otherwise agreed:

   (a)Commencing on Saturday 6 February 2010, and for a period of two years thereafter, for two hours every fourth weekend at times nominated by the H Family Support Service, with such time to be spent at and supervised by staff of the Service.

   (b)Upon the expiration of two years, in accordance with the child’s stated wishes.

   (c)By email, in accordance with the child’s stated wishes.

6. Each of the parties shall take all reasonable steps to ensure that the child C spends time and communicates with the father as follows, or as otherwise agreed:

   (a)Commencing on Saturday 6 February 2010, and for a period of two years thereafter, for two hours every fourth weekend at times nominated by the H Family Support Service, with such time to be spent at and supervised by staff of the Service.

   (b)Upon the expiration of two years, in accordance with the child’s stated wishes.

   (c)By email, in accordance with the child’s stated wishes.

7. Each of the parties shall take all reasonable steps to ensure that the child D spends time and communicates with the father as follows, or as otherwise agreed:

   (a)Commencing on Saturday 6 February 2010, and for a period of two years thereafter, for two hours every fourth weekend at times nominated by the H Family Support Service, with such time to be spent at and supervised by staff of the Service.

   (b)Upon the expiration of two years, in accordance with the child’s stated wishes.

   (c)By email, in accordance with the child’s stated wishes.

8. Each of the parties shall take all reasonable steps to ensure that the child E spends time and communicates with the father as follows, or as otherwise agreed:

   (a)Commencing on Saturday 6 February 2010, until the child attains the age of twelve years, for two hours every fourth weekend at times nominated by the H Family Support Service, with such time to be spent at and supervised by staff of the Service.

   (b)After the child attains the age of twelve years, in accordance with the child’s stated wishes.

   (c)By email, in accordance with the child’s stated wishes.

9. For the purpose of implementing Orders 4-8 inclusive, unless otherwise agreed:

   (a)The time spent by the children (or any of them) with the father is conditional upon the willingness of the H Family Support Service to provide its premises and supervision services for use by the children and the father.

   (b)The parties shall pay in equal shares any costs due to the H Family Support Service for use of that Service’s venue and supervisory services.

   (c)The mother shall cause the delivery of the children to, and the collection of the children from, the H Family Support Service at the commencement and conclusion of the time spent by the children (or any of them) with the father.

   (d)If on an occasion that the children (or any of them) are due to spend time with the father that time together cannot be accommodated by reason of closure of the H Family Support Service the time that the children (or any of them) would otherwise have spent with the father shall be made-up at another time as close to the original time as can be arranged.

10. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

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

12. The mother shall notify the father of any medical emergency, illness or injury suffered by any of the children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.

13. The mother shall forthwith authorise the staff of schools attended by the children to provide to the father, at the father’s expense, records and information relating to the children, including but not limited to, copies of school reports, school photographs, and school newsletters.

14. Each party shall forthwith inform the other, and keep each other informed, of their respective current residential address, landline telephone number, mobile telephone number, and email address.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

17. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

18. Any and all outstanding applications are dismissed.

19. By reason of an inconsistency between some of these Orders and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:

    (a)The Registrar of the Local Court of NSW at N

    (b)The Commissioner of the NSW Police Service

    (c)The Director General of the NSW Department of Human Services

Notation

Orders 4, 5, 6, 7, 8, and 14 hereof are inconsistent with paragraph 13 of the Apprehended Violence Order made against the father in favour of the mother and the children by the Local Court of NSW at N on 31 March 2009, in which case Division 11 of Part VII of the Family Law Act applies and those parenting orders prevail to the extent of any inconsistency.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2769 of 2008

MS BERNARD

Applicant

And

MR BERNARD

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that should be made in respect of the five children born to the relationship between the applicant mother and respondent father.

2. The five children are:

   a)A, born in October 1995.

   b)B, born in December 1996.

   c)C, born in June 1998.

   d)D, born in March 2000.

   e)E, born in August 2003.

3. The parties separated some years ago. They made consensual arrangements between themselves for the care of their children, which arrangements prevailed until litigation was later commenced.

4. The parties subsequently secured final parenting orders before the Family Court of Australia at Newcastle on 17 May 2007. Those orders were made with the parties’ consent. 

5. The orders provided for the allocation of equal shared parental responsibility for the children to the parties, and for the children to live with the mother.  Provision was made for the children to spend time with the father from Thursday until the following Monday each alternate week, for periods during school holidays, and on special days.

6. Those orders were implemented by the parties without undue incident until an unpleasant event at the children’s school on 25 September 2008. That afternoon the father arrived at the school to collect the children to enable them to commence spending time with him during a school holiday period.

7. Shortly following that incident the mother instituted proceedings to revise the parenting orders previously made in relation to the children.

8. The mother now seeks an entirely different parenting regime.  She wishes to have sole parental responsibility for the children.  She also wishes for the children to live with her and for the children to spend extremely restricted time with the father, subject to supervision of that time at a contact centre.  The mother’s position has the support of the Independent Children’s Lawyer and the Family Consultant.

9. The father, who is now unrepresented, has vacillated in determining precisely what orders he proposes for the children.  Initially, he simply wished to revert to the final parenting orders made between the parties on 17 May 2007.  More recently, he has proposed a reversal of existing arrangements so that the children live predominately with him instead of the mother.  During the trial however, the father indicated that he now proposed that the children remain living with the mother, but that they spend unsupervised time with him every weekend from Friday afternoon until Monday morning, and also for half of all school holidays.  The father advocates for allocation of equal shared parental responsibility in respect of the children.

10. The parties and the Independent Children’s Lawyer mutually conducted these proceedings on the basis that the rule established by Rice v Asplund (1979) FLC 90-725 should have no application, despite the former consensual final parenting orders made by the Court on 17 May 2007. There is general agreement that the circumstances of the family have changed sufficiently to warrant review of the parenting arrangements. Although the father has eventually settled on a proposal that is similar to the past orders, even he acknowledges that his relationships with the children have changed considerably in the interim.

11. The theme of the case became evident very quickly. The children are apprehensive about the father. It was necessary to determine why that was so. The father steadfastly considers that the children have been aligned against him by the mother, but the mother denies that allegation and maintains that the children have developed their own attitudes to the father by reason of his behaviour. The resolution of that issue would permit a conclusion about whether the mother fails in her responsibility to promote the children’s relationships with the father, or whether the father poses an unacceptable risk of physical and/or emotional harm to the children.

Proposal and primary evidence of the mother

1. The mother abandons reliance upon both her Application filed on 3 October 2008 and her Amended Application filed on 15 September 2009.

2. In lieu of the orders sought in those documents, the mother presses for orders set out in the Case Outline document prepared for her by her legal representative.

3. In summary, the mother seeks orders to the following effect:

   (1)She have sole parental responsibility for the children;

   (2)The children live with her;

(3)The second child B spends time and communicates with the father only in accordance with the child’s wishes;

(4)Each of the other four children spend time with the father for two hours each calendar month, supervised by the H Family Support Service;

(5)That Order 4 apply in respect of the three children A, C and D for a period of two years, and for the youngest child E until she turns 12 years of age (which is for nearly another six years);

(6)Upon expiration of the two year period referred to in Order 5, the children A, C and E only spend time with the father in accordance with their individual wishes, as would E after she attains 12 years of age;

(7)As with B, the other children communicate with the father in accordance with their wishes;

(8)The mother takes steps to authorise the children’s schools to provide reports, photographs, newsletters, and the like to the father at the father’s expense;  and

(9)The mother keep the father informed of medical events pertaining to the children.

1. The parenting orders freshly sought by the mother largely reflect the recommendations made by the Family Consultant in her Family Report dated 2 November 2009.

2. When the proceedings came before the Court for its second day of trial on 4 September 2009, the trial was listed to continue on 9 December 2009 pursuant to Rule 16.09 of the Family Law Rules. In readiness for the continuation of the trial the parties were ordered to file and serve the affidavit evidence upon which they relied by 16 October 2009.  The mother failed to comply with that order.

3. At the outset of the continued trial on 9 December 2009, the mother sought leave to file in Court, and rely upon in evidence, affidavits sworn by the mother, maternal grandmother, and maternal grandfather, on 1 December 2009.

4. The solicitor appearing for the applicant mother conceded that there was no adequate explanation for the mother’s failure to comply with the Court’s order requiring filing and service of those affidavits on 16 October 2009.  Nor was there any adequate explanation proffered for the six week delay that followed the initial contravention.

5. The question of prejudice occasioned to the father by reason of the mother’s default featured prominently in the exercise of discretion as to whether the mother ought be permitted to rely upon that affidavit evidence.

6. The mother’s solicitor asserted that unsealed copies of the affidavits had been sent some days before to the father for his consideration.  That was of little consequence in the circumstances of this case though because the father was unrepresented and is almost illiterate.  According to the Family Consultant, the father was unable to read and comprehend a story suitable for a child functioning at infant school level.  The father conceded having received correspondence from the mother’s lawyers within the last few days, but was unable to identify what the documents were, let alone what the contents of those documents meant.

7. Had the mother complied with the Court’s orders by filing and serving her affidavit evidence upon the father well over six weeks ago, the father would have had ample opportunity to engage some person to read those documents to him.  He would then have been in some position to respond to the mother’s affidavit evidence during the trial. The father was deprived of that opportunity because of the mother’s failure to comply with the Court orders.

8. The prejudice to the father was patent, and incurable without an adjournment. Any prejudice to the mother was of her own making. For those reasons, leave for the mother to file the affidavits in Court and rely upon them in evidence was refused.

9. In the absence of such affidavits, the mother would have been without evidence in the proceedings, other than her Parenting Questionnaire.[1] The mother therefore sought leave to rely upon an earlier affidavit filed by her in the proceedings on 3 October 2008.  There could be no argument about the father’s knowledge of the contents of that affidavit because he was legally represented at that time and he himself had filed affidavit evidence a month later in November 2008.  The father was not therefore prejudiced by the mother’s reliance upon that affidavit evidence.

   [1] Exhibit M1

10. Leave was granted to the mother to read in evidence her affidavit filed on 3 October 2008.  That was the only affidavit evidence adduced by the mother in the proceedings.

Proposal and primary evidence of the father

1. As was the case with the mother, the father also failed to comply with the procedural orders made by the Court on 4 September 2009.

2. Those orders required him to file an Amended Response by 2 October 2009.  He did not do so.  He has not filed any Response since the original Response filed by him on 18 November 2008.

3. Questions posed to the father at the commencement of the continued trial on 9 December 2009 revealed that he no longer sought the orders set out within that Response. Nor did he seek the orders summarised in his Parenting Questionnaire.[2] The orders now sought by the father have already been set out within the introduction to these reasons.

   [2] Exhibit F1

4. The father also failed to comply with the Court’s order requiring him to file and serve affidavit evidence by 16 October 2009.  The father had prepared no recent affidavit at all.

5. The father sought leave to rely upon his two affidavits formerly filed in the proceedings on 18 November 2008.  Leave was granted for him to do so, consistently with the leave granted to the mother.

6. The father therefore read in evidence, in support of his parenting proposal, the two affidavits filed by him on 18 November 2008.

Proposal and evidence of the independent children’s lawyer

1. The Independent Children’s Lawyer was generally supportive of the position adopted by the mother.

2. No Minute of Order was tendered at any point by the Independent Children’s Lawyer.

3. The Independent Children’s Lawyer adduced evidence from the Family Consultant, Ms T, in the form of:

   a)Her Children and Parents Issues Assessment dated 9 January 2008,[3]

   b)Her Child Dispute Conference Memorandum dated 18 August 2009,[4]

   c)Her Family Report dated 2 November 2009.[5]

   [3] Exhibit ICL2

   [4] Exhibit ICL1

   [5] Exhibit ICL4

4. Some supplementary oral evidence was adduced from the Family Consultant by the Independent Children’s Lawyer, specifically to address her recommendation that the children’s time with the father be even more restricted than that under the prevailing interim orders.

5. The mother did not cross-examine the Family Consultant. She was seeking orders consistent with the recommendations made by the Family Consultant.

6. The father was invited to cross-examine the Family Consultant. He was initially reluctant to do so, even though he said that he understood that the Family Consultant was recommending a parenting regime which was very different from that proposed by him. Ultimately he did ask some questions of the Family Consultant, but they were not directed to the disparity between the Family Consultant’s recommendations and his proposals for the children.

Background history

1. The applicant mother, Ms Bernard, was born in 1972.  At the time of hearing she was aged 37 years.

2. The respondent father, Mr Bernard, was born in 1966.  At the time of hearing he was aged 43 years.

3. The parties were married in 1994 and they separated in or about April 2005.[6] At separation the children went with the mother. Each party remained living within the N township.

   [6] Mother’s Affidavit, par 2

4. Proceedings were later commenced between the parties before the Family Court of Australia at Newcastle.  Those proceedings resulted in the parties settling their dispute, both as to property adjustment orders and parenting orders. Final orders were made by this Court on 17 May 2007. 

5. Insofar as the final parenting orders were concerned, the parties agreed to the following arrangements for the children:

   a)The parties had equal shared parental responsibility for the children (Order 2);

   b)The children live with the mother (Order 3);

   c)The children spend time with the father each alternate Thursday from the conclusion of school until the commencement of school on the following Monday (Order 4.1), for half of school holiday school periods (Order 4.2), and on special days (Orders 4.3, 4.4, 4.5 and 5A).

6. The parties apparently implemented those parenting orders without any noteworthy incident for quite some time.

7. In order to implement the parenting arrangements, changeovers occurred at the children’s school in N.[7]

   [7] Mother’s affidavit, par 9

8. The mother alleges that whilst changeovers were generally difficult, the problems escalated in the latter part of 2008.[8]  She confirmed that to be so when she was cross examined. The mother said that by August 2008 B was refusing to spend time with the father.

   [8] Mother’s affidavit, par 11

9. That is not really contentious because the father conceded that the children had been demonstrating reluctance to spend time with him for some months.[9] In cross examination, the father said that his relationship with B in particular had deteriorated since he had earlier detained B in his exclusive care for a period of about 8 weeks, contrary to the parenting orders.

   [9] Father’s longer affidavit filed 18/11/08, par 9

10. The difficulties came to a head on 25 September 2008, when the father was due to collect the children so that they could spend time with him during the school holidays, which were to commence at the end of that school day.

11. On that afternoon the father attended the S School at N to collect the youngest four children.  The eldest child A, attended a different school, and was to be collected by the father after the father had collected the four youngest children.

12. It is common ground that three of the children, being B, C and D, were resistant to the idea of spending block time with the father during the school holidays.  The resistance of B to spending time with the father had been becoming more strident in the months preceding that incident. The mother reports that B explained his resistance by alleging that the father swore and yelled at him.[10] Whether or not that was in fact the reason, the father concedes that B was becoming resistant to spending time with him.

    [10] Mother’s affidavit, par 15

13. During the incident at the school on 25 September 2008, B was the most vociferous of the children in resisting the father.  B and the father became involved in a physical altercation.  Although the father’s version of the incident is more benign than the mother’s version, even the father admits that he was physically aggressive towards B.  The hostility of the incident drew the attention of several teachers.  The police were summoned.  The father was subsequently charged with having assaulted B, and an interim Apprehended Domestic Violence Order was later issued against the father for the protection of the mother and all five children.

14. After the incident, the father departed the school with only the youngest child E.  He then went to the school attended by A and collected A.  Only A and E spent time with the father during that school holiday period.  The other three children remained with the mother.

15. Almost immediately, the mother moved residence with the children from N to L.  She did so without consulting the father, and alleges that her change of residence was on the advice of police, which happened to vindicate the thoughts she had been entertaining for some time.

16. The township of L is about 90 minutes driving time from N, where the father continued to reside.  It was some months later, in December 2008, that the mother again changed her residence to U.  The driving time between N and U is 105 minutes.  The mother was attracted to the L and U districts because that is the area within which she has support from members of the maternal family.

17. The mother made arrangements to file her Application seeking fresh parenting orders in the N Local Court on 3 October 2008 whilst A and E were still spending time with the father during that school holiday period.

18. The mother’s application came before the N Local Court on 7 October 2008.  On that occasion, the Court made the following order:[11]

    “Orders of Family Court of Australia in Family Court at Newcastle file 380/2006 suspended in so far as they relate to child matters until 21 October 2008 (sic)”.

    [11] Exhibit M2

19. Although it is not disclosed in the evidence, I impute that the N Local Court suspended the existing parenting orders pursuant to s 68R of the Family Law Act (“the Act”), in circumstances where that Court was making an interim Apprehended Violence Order against the father arising out of the incident on 25 September 2008.[12]

    [12] Father’s longer affidavit filed 18/11/08, pars 13-14

20. Following the return of A and E to the care of the mother, none of the children thereafter spent any time with the father because of the suspension of the operative parenting orders imposed by the N Local Court on 7 October 2008.

21. When the matter came back before N Local Court on 21 October 2008, the Court transferred the proceedings to this Court.

22. The father filed his Response on 18 November 2008. 

23. The parties’ dispute came before the Court on 21 January 2009, at which time Judicial Registrar Johnston made orders with the consent of the parties to the following effect:

    1.1Orders 4, 5 and 5A of Order 1 made by the Court on 17 May 2007 be suspended.

    1.2The children spend time with the father as follows:

    1.2.1For at least two hours each alternate weekend on a supervised basis.

    1.2.2For such further periods as agreed between the parties and the Independent Children’s Lawyer.

    1.3The aforesaid times set out in sub-paragraph 1.2.1 be subject to the following:

    1.3.1The parties do all acts and things forthwith to arrange for the time to occur through the H Family Support Service at H until the availability of time at the “Rainbows Centre” at Broadmeadow;

    1.3.2The parties forthwith to do all acts and things to arrange for the time to occur through the Rainbows Centre as soon as possible;

    1.3.3Without limiting the generality of the foregoing, the parties to comply with the directions of, and the policies of, the H Family Support Service and the Rainbows Centre.

    1.4The application of the father for contravention, being Application Contravention filed 18 November 2008, be withdrawn with no order as to costs.

24. Thereafter, the children began spending time with the father in accordance with those orders for two hours each alternate weekend, with such time supervised by the H Family Support Service. 

25. For reasons not explained, the change of supervisor from the Family Support Service at H to the Rainbows Centre at Broadmeadow has never transpired, as was envisaged under the orders.

26. The matter came before the Court for its first day of trial pursuant to Rule 16.08 of the Family Law Rules on 18 August 2009. 

27. At that time the father ventilated his grievance at the restricted amount of time that the children were able to spend with him, and also the fact that the time was supervised.  The father was invited to consider the prospect of involving the paternal grandparents as interim supervisors at their N home. Such a development would have offered several advantages.  It would have avoided the parties and the children having to drive some hours to H every alternate weekend, it would have permitted the children to spend time with the father in a more familiar and relaxed setting, and it would have permitted the children to maintain contact with the paternal grandparents and extended members of the paternal family.

28. The trial was adjourned until 4 September 2009 so as to enable the father to arrange the attendance of the paternal grandparents at Court on that occasion. It was necessary that the Court, the mother, and the Independent Children’s Lawyer be satisfied that the paternal grandparents were willing to act as supervisors at their home and that they understood their supervisory obligations.

29. When the matter came back before the Court on 4 September 2009 the paternal grandparents did not attend.  The father explained that he did not wish for them to be involved in the proceedings.  He alleged that the paternal grandparents were not interested in becoming involved either.  In fact, the father asserted that one or either of the paternal grandparents had threatened to have the mother arrested for trespass if she attended their property with the children. Those circumstances were confirmed by the parties in their subsequent discussions with the Family Consultant.[13] 

    [13] Exhibit ICL4, pars 9-10

30. Further procedural orders were then made to permit continuation of the trial on 9 December 2009 to bring the matter to a conclusion. 

31. The evidence of the parties was taken on Wednesday 9 December 2009, and final submissions were made on Thursday 10 December 2009.

32. Following the conclusion of the hearing on 10 December 2009, the Independent Children’s Lawyer took steps to have the matter re-listed before the Court on 22 December 2009. The purpose of that exercise was to seek leave to re-open the case to adduce further evidence in the form of documents recently furnished to the Independent Children’s Lawyer by the H Family Support Service.

33. With the consent of all parties, leave was granted to re-open the case and the Independent Children’s Lawyer tendered those documents.[14] The significance of the documents was that the H Family Support Service had recently determined to suspend its services as a venue for, and supervisor of, the time spent by the children with the father. That clearly had serious implications for the implementation of the parenting orders sought by both the Independent Children’s Lawyer and the mother. The reason given for the suspension was that the father’s conduct amounted to an alleged breach of the Service’s policy.

    [14] Exhibit ICL6

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

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

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Best Interests of the Child – Primary Considerations

Section 60CC(2)(a)

1. Each of the five children undoubtedly enjoys a meaningful relationship with the mother.  She has been the primary carer for each of the children from the time of their births.  The maintenance of those relationships will certainly benefit the children and orders need to be made that ensure that state of affairs.

2. The children do not all presently enjoy a meaningful relationship with the father.

3. The child B is completely estranged from the father.  The quality of their relationship was eroding during the course of 2008, but broke down completely following the physical altercation between them at B’s school on 25 September 2008.  The evidence does not suggest that any benefit will accrue to B by the Court making orders that attempt to enforce reconciliation between B and the father.

4. Each of the other children continues to see the father pursuant to the interim parenting orders made in January 2009.  However, even though the pattern of supervised fortnightly interaction for two hours continues, it is tolerably plain from the evidence of the Family Consultant that those children’s relationships with the father are of much less significance to them than their relationships with the mother.

5. It has been recognised that, apart from cases of abusive relationships, children benefit from the development of meaningful relationships with both of their parents (see U v U (2002) 211 CLR 238 at 285-286).

6. In this case there is sufficient evidence to persuade the Court that, because of abusive and neglectful conduct on the part of the father, the children will not benefit from any immediate attempts to cultivate their relationships with the father.

7. However, even though cultivation of those relationships may presently be futile, it will ultimately be beneficial for the children if the relationships that they have with the father can be preserved in at least some rudimentary form so that they are individually able to choose to enrich their relationships with the father when they acquire sufficient emotional maturity to make those decisions for themselves.

Section 60CC(2)(b)

1. Both parties make allegations against one another concerning physical abuse of the children.

2. The father alleges that the mother physically abused the children by pulling their ears as a method of discipline.  It remains unclear as to when the father alleges that the mother acted in that way towards the children.

3. The mother did not expressly admit that she had disciplined the children in that way in the past, but the evidence leads me to a conclusion that she probably did.

4. The Independent Children’s Lawyer tendered an assessment record of the New South Wales Department of Human Services.[15]  The record indicates that on 1 August 2006, H JIRT conducted interviews in relation to an allegation that the child E had been assaulted by the mother’s friend, SL. The child denied any sexual assault when interviewed.[16]  The investigation did not result in any prosecution or other action, but during the course of the interview process the mother apparently admitted to JIRT that she had pulled the children’s ears for punishment.  The records disclose that the mother said that she no longer used that disciplinary method.

   [15] Exhibit ICL3

   [16] Exhibit M5

5. The father alleged to the Family Consultant that the mother had struck one of the children with such force that she ruptured the child’s eardrum.[17]  The father tendered a medical certificate of Dr Q dated 13 January 2009 verifying that the father and A attended his surgery quite some time before, on 3 November 2007, alleging that the mother had hit A on the head. There is no evidence that A was injured.[18] It is unclear whether the father contends that that is the occasion upon which the mother is alleged to have ruptured the eardrum of one of the children.

   [17] Exhibit ICL4, par 47

   [18] Exhibit F3

6. The mother denied that any of the children had had a ruptured eardrum at any time in the past, although she conceded that the child A had had ear infections from time to time.  There is no evidence before the Court that any of the children have suffered physical injury at the hands of the mother.

7. Although the mother did concede when cross-examined that she physically disciplined the children in the past, she said that she no longer disciplined the children in that way.  The mother contended that because the children are now more mature, she is able to reason with them about their behaviour.  Her punishment methods are now not corporal. Her evidence was credible.

8. The father also tendered a series of police records detailing incidents between the parties in 2006.[19] The father did not explain the relevance of those documents and made no further mention of the documents in submissions. The Court is left to simply speculate. Upon inspection, the documents seemingly have no relevance to the parenting issues at hand. If the records are factually correct then they merely tend to prove that the father harassed the mother and her friend SL on occasions some years ago.

   [19] Exhibit F2

9. The mother alleges that the children have suffered physical and psychological harm by reason of being subjected or exposed to violent, abusive, and neglectful behaviour by the father.  The mother is concerned that the children will continue to suffer such harm because the father has no insight into the effects of his attitudes and behaviour.[20]

   [20] Exhibit ICL4, par 30

10. The father’s physical assault of the child B at his school on 25 September 2008 is particularly disturbing.  The father admits that he pushed the child with sufficient force that the child fell to the ground.  The mother alleges that the father then proceeded to push the child’s head into the ground,[21] but that is not admitted by the father.  Even so, the father certainly used brute force to overpower the child, causing the child considerable distress.

    [21] Mother’s affidavit filed 3 October 2008, par 27

11. The incident took place in plain view of the other children C, D and E.  They were also disturbed by what they witnessed occur between the father and their sibling.

12. The incident was sufficiently hostile that it drew the attention of a number of teachers from the school, all of whom deemed it necessary to intervene.

13. The police attended. The police record of the event[22] bears closer resemblance to the mother’s version than that of the father, but that may be because the police simply relied upon what they were told by the mother.

    [22] Exhibit M5

14. The father was charged by police with having assaulted B, and subsequently appeared before N Local Court to answer that charge. The evidence does not disclose whether the father conceded or contested the charge. Either way, he was convicted of the offence and sentenced by way of imposition of a good behaviour bond, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The bond was for a period of 18 months.[23]  Contemporaneously with his conviction, an Apprehended Domestic Violence Orders was made against the father for the protection of the mother and all five children.

    [23] Exhibit M4

1. The incident on 25 September 2008 is not the only episode of aggressive behaviour on the part of the father.

2. The mother alleges that the father has been prone to angry physical outbursts.[24]  All of the children reported to the Family Consultant that the father habitually lashes out with his foot, kicking them in the bottom if they displease him.  The children confirmed that the father kicked them with sufficient force to either make them cry or propel them forwards.[25]

   [24] Exhibit ICL4, par 36

   [25] Exhibit ICL4, pars 36 and 77

3. The father does not deny that he has done so. He only expressly denied that he had kicked the children whilst wearing work boots.

4. Apart from the actual or prospective physical abuse of the children, the mother is concerned by the father’s disparate treatment of them, which may affect the children emotionally.

5. Although in cross-examination the father denied having any favourites amongst the children, he admitted to the Family Consultant that he was closer to the youngest child E, whom he described as “Daddy’s girl”.[26]  From records she inspected, the Family Consultant drew the conclusion that the father favours E over the other children and rarely engages with the child D.  The Family Consultant noted that all of the children were able to identify E as the father’s favourite child, and D as the child with whom the father had least interaction.[27]

   [26] Exhibit ICL4, par 43

   [27] Exhibit ICL4, par 50

6. The records of the H Family Support Service were tendered.[28] The Family Consultant, who had perused the records, said that they tended to demonstrate that the father had difficulty engaging the children when they spent time with him at the Service, and that when he did engage with them he had a tendency to focus on one child at a time whilst not acknowledging the other children.[29] That was corroborated by more recent records of the Service.[30]

   [28] Exhibit M3

   [29] Exhibit ICL4, par 50

   [30] Exhibit ICL6

7. On occasions that B attended the supervised visits of the children with the father, the father was observed to ignore B, and even not be aware of an early departure by B.[31]

   [31] Exhibit ICL4, par 51

8. On another occasion, C sat in the cubby house for 45 minutes without any engagement or intervention by the father, who was apparently even unaware of C’s whereabouts.[32]

   [32] Exhibit ICL4, par 51

9. In the observation session before the Family Consultant, the father was observed to make some perfunctory introductory comments to C and A and then spend the entirety of the session engaged with E.[33]  The father completely ignored B and D.  The father’s ignorance of B was so poignant that B was uncomfortable and the Family Consultant permitted B to return to the mother, as she believed the father’s behaviour towards B was punitive and psychologically abusive.[34]

   [33] Exhibit ICL4, par 57

   [34] Exhibit ICL4, pars 57, 58 and 59

10. The Family Consultant was concerned that the father continued to minimise the seriousness of his assault upon B. She considered that the father had no insight into the psychological effects of that assault upon B and the other children who witnessed the event.  The Family Consultant thought that the father’s persistent ignorance of B demonstrated the father’s immaturity in dealing with conflict.[35]  Overall, the Family Consultant assessed that the father had no insight into the inappropriateness of his behaviour and the psychological effects it had upon the children.[36]

    [35] Exhibit ICL4, par 90

    [36] Exhibit ICL4, par 91

11. The Family Consultant ultimately concluded that the children are at risk of physical and psychological harm in the father’s care.[37]  The Family Consultant thought that the father’s inability to appreciate a situation from the children’s perspective, coupled with his inability to experience empathy, created a significant risk to the children of physical and psychological harm.  That risk would be particularly pronounced as the children move into adolescence, when they would be expected to hold different opinions from their parents and push parental boundaries.[38]

    [37] Exhibit ICL4, par 95

    [38] Exhibit ICL4, par 65

12. The Family Consultant’s evidence was not the subject of any challenge in the proceedings. Her opinions seemed thoughtful, reasoned and logical. There is no overt reason to reject her evidence, and I accordingly accept it.

13. For that reason, the only logical conclusion to reach is that the children’s time with the father should continue to be supervised for the foreseeable future. The imposition of supervision is the only measure which can be employed to abate the unacceptable risk of harm posed to the children by the father.

Best interests of the children – additional considerations

Section 60CC(3)(a)

1. A is now 14 years of age.  His emotional maturity does not match his chronological age.  He has been diagnosed with Dyspraxia and demonstrates very limited verbal ability.[39]  He has apparently been assessed as having a moderate degree of intellectual delay and attends a support class at secondary school.[40]  The Family Consultant was unable to ascertain A’s views during their interview.[41]

   [39] Exhibit ICL4, par 70

   [40] Exhibit ICL4, par 70

   [41] Exhibit ICL4, par 73

2. B is now aged 13 years.  He has been assessed as having a mild degree of delay but manages in a mainstream class at secondary school with the support of the Quick Smart program.[42]

   [42] Exhibit ICL4, par 71

3. B was able to state his clear views regarding future parenting arrangements.  He told the Family Consultant that he was hurt by the father and remains angry with him.  B does not trust the father to not assault him again and he has no wish for any relationship with the father, even when he is an adult.[43]

   [43] Exhibit ICL4, par 83

4. The Family Consultant considered that B’s views are developmentally appropriate and understandable in light of his experience with the father.  She considers that the assault of B by the father in full view of his peers and teachers would have caused the child significant humiliation.  The father’s deliberate ignorance of B since the assault has only served to strengthen B’s feelings against the father.[44]

   [44] Exhibit ICL4, par 88

5. C is aged 11 years.  He attends primary school.  D is aged 9 years and she attends the same primary school as C.  E is only 6 years of age and she is in infants school.

6. The Family Consultant interviewed the three youngest children and sought their views.  None of them were particularly enthusiastic about continuing to spend time with the father.  There were times when they did not wish to see the father, or alternatively wanted to leave the sessions with the father early, but none of them raised any strident objections to continuation of sessions with the father.  However, none of them were keen to have the supervision of their time with the father lifted, as they were not able to trust that the father would not hurt them if they displeased him.[45]

   [45] Exhibit ICL4, par 84

7. B is at an age where his views must be respected. His negative views of the father have now been held for a prolonged period and are presently so pervasive that it would be counterproductive to force his interaction with the father against his wishes.

8. A does not have the cognitive ability to state clear views. His occasional reluctance to spending time with the father is not necessarily representative of a generally held authentic view that he should not spend time with the father. Even if it were, I am not persuaded that he has the emotional maturity for that view to carry much weight.

9. The views of the other children are more ambivalent. Their views do not carry much weight because of their young age, but I am aware that the current regime of the time that they spend with the father is apparently close to the limit of their tolerance.

Section 60CC(3)(b)

1. The nature of the children’s relationships with each of their parents has already been addressed under s 60CC(2)(a) of the Act.

2. Although the children’s relationships with the father are presently compromised, that is not seemingly the case in respect of their relationships with the paternal grandparents.  The children reported to the Family Consultant having a close relationship with the paternal grandparents and paternal cousins, with whom they miss spending time.[46]  As mentioned earlier in these reasons, the father declines to facilitate interaction between the children and the paternal grandparents, at least whilst ever supervised time is asserted to be necessary.[47] Nor have the paternal grandparents or other members of the paternal family demonstrated any inclination to maintain their contact with the children.

   [46] Exhibit ICL4, par 9

   [47] Exhibit ICL4, par 10

3. The Family Consultant also identified the maternal grandparents and maternal cousins as significant persons in the children’s lives.[48] Living with the mother is an arrangement that will enhance the relationships between the children and members of the extended maternal family.

   [48] Exhibit ICL4, par 9

Section 60CC(3)(c)

1. The most significant complaint raised in these proceedings by the father is that the mother is unwilling or unable to facilitate and encourage the children’s relationship with him.  The father holds a firm belief that the mother is influencing the children against him and he refuses to accept that the children may have independently formed their own views of him.[49]  The father also believes that the maternal grandfather is complicit in that process of alignment.[50]  The father reported to the Family Consultant that he would not accept the children’s views about their residential arrangements as being genuine if they were not consistent with his own.[51]

   [49] Exhibit ICL4, par 42

   [50] Exhibit ICL4, par 43

   [51] Exhibit ICL4, par 46

2. The Family Consultant was unable to identify any indication that the children’s feelings and views were not their own, and she concluded that the children had formed their views from their own realistic experiences.[52]

   [52] Exhibit ICL4, par 93

3. The issue of the mother’s alleged alienation of the children from the father was explored with her in cross-examination.  She denied that she had encouraged any reluctance on the part of any of the children to spend time with the father.  She also denied that her friend SL had done so, to the best of her knowledge.

4. The father alleged in his affidavit that he had heard A and E in particular say words to the following effect:

   “Mum doesn’t want us to come around near you anymore.  She wants us to stay with her.  [SL] says that we shouldn’t see you and that we should stay with Mum”. [53]

   [53] Father’s longer affidavit filed 18 November 2008, par 9

5. The mother denies that either she or SL has said any such thing to the children.

6. The father also alleges  that the children have said to him words to the effect of:

   “Dad, we don’t have to go with you.  Mum says that we don’t have to go with you”. [54]

   [54] Father’s longer affidavit filed 18 November 2008, par 10

7. The mother denied saying anything like that to the children.

8. The father also alleges that B has said to him words to the effect of:

   “You suck Dad.  You’re no good”.

   “You’re a drunk Dad and a druggie.  Mum says so.” [55]

   [55] Father’s longer affidavit filed 18 November 2008, par 16

9. The mother denies that she has said anything of that sort to B.

10. It is quite possible that the father’s evidence is accurate and truthful, in that the children did say words like that to him. It is also quite possible that the children were not being truthful when they told the father that the mother had made derogatory comments about him and encouraged them not to spend time with him.

11. The father said in evidence words to the effect:

    “Children don’t tell stories. They don’t make things up.”

12. Although the father may genuinely believe that, I do not accept as a fact that children always speak truthfully to their parents.

13. The mother was an unsophisticated and convincing witness.  She did not exaggerate or embellish.  She listened carefully to the questions posed to her and gave considered answers.  I accept her evidence.  I believe that she was being truthful when she denied denigrating the father to the children and denied discouraging the children from spending time with the father.

14. Far from actively denigrating the father and discouraging the children from maintaining their relationships with him, the mother alleges that she has acted completely to the contrary.  She exemplified her promotion of the relationships between the children and the father and paternal family in several ways.

15. Firstly, over a protracted period of time the mother has steadfastly adhered to the inconvenient regime of driving the children to H every alternate weekend for them to spend supervised time with the father.  That has been an arduous commitment on her part over a long period of time.  Unless she was committed to maintenance of the relationship between the children and the father, it is unlikely that she would have been able to sustain such an effort.

16. Secondly, independent records verify that the mother has promoted the children’s relationship with the father.  The mother asserted in her evidence that she forces the issue with them and tells them that their father is looking forward to seeing them.  The mother’s evidence is corroborated by the records produced on subpoena by the H Family Support Service.[56]  The records indicate that the mother has been encouraging and supportive of the children’s supervised time with the father and that she has been firm with the children in insisting that they enter the Service on some occasions.[57]  The records show that the mother appropriately chastised B for speaking disrespectfully to the Service staff on one occasion when he was voicing his objection to entering the Service and that the mother caused B to apologise for his rudeness.  The records also show that the mother has firmly insisted upon A entering the Service on occasions when he also objected.[58]  In her cross-examination, the mother said that she sought advice from the Family Consultant, and it was on her advice that she forced A to stay at the Service and spend time with the father.

    [56] Exhibits M3 and ICL6

    [57] Exhibit ICL4, par 26; Exhibit ICL6

    [58] Exhibit ICL4, par 27

17. Thirdly, when the children were due to spend time with the father at the H Family Support Service on an occasion close to the father’s birthday, the mother drove the children to H and assisted them to buy a small gift for them to give to the father for his birthday. Making the effort to do such a thing demonstrates a generosity of spirit on behalf of the mother.

18. Fourthly, the mother confirmed in her evidence that she had telephoned the paternal grandmother earlier this year to facilitate the children having telephone communication with the paternal grandparents. Although the paternal grandmother accused the mother of deliberately orchestrating the violent incident at the children’s school on 25 September 2008 to harm the father, the mother had the selfless capacity to deflect that criticism and ask the paternal grandmother to speak with the children, which she then did.  The mother says that she would be content to let the paternal grandparents speak to the children if they wished to telephone, and to that end she has provided her landline and mobile telephone numbers to the father’s sister-in-law.

19. The only act on the part of the mother which could potentially demonstrate an unwillingness to promote the relationship between the children and the father was implementing her decision to move with the children from N to the U district. She understood that such a move would impede the children spending time with the father. Nevertheless, her motives for the move were not unreasonable. The father had just assaulted B, she and the children were traumatised, she desired the support of members of the maternal family who lived in that district, and she was advised by police that the move was sensible.

20. The Family Consultant regarded the father as a concrete thinker who lacked insight into the children’s experiences of him.[59] It was implicit that she considered the father incapable of acquiring or developing such insight. That opinion was consistent with the father’s oft repeated phrase that the children had been “poisoned” against him.

    [59] Exhibit ICL4, par 20

21. I am not satisfied that the children have been aligned against the father by the mother – either deliberately or inadvertently.  I accept that the mother has demonstrated both a willingness and an ability to facilitate and encourage a close and continuing relationship between the father and all children, other than B.

22. The mother admitted that in about August 2008 she declined to continue forcing B to see the father.  She explains the reasoning for her attitudinal change in respect of B on the basis that she regarded B as having more maturity than the other children, which better equipped him to form and act upon his own views.  Because of the father’s admission about the corrosion of his relationship with B, I am satisfied that the mother’s decision to cease forcing B to act against his wishes does not demonstrate an unwillingness or inability to facilitate and encourage B’s relationship with the father.  Rather, it was merely recognition of the inevitable. It was representative of her understanding that she would compromise her own relationship with B should she continue to force him to do something contrary to his adolescence wishes.

23. Tellingly, the father admitted in his cross-examination that he was indeed “offside” with all of the children at this point in time.  He could offer no plan as to how he could rectify that situation. Although not recognised by the father as an option, the prospect of family counselling loomed large as a possible remedy for the impasse. That prospect was raised with the Family Consultant for her consideration, but she was pessimistic about its utility.

24. The Family Consultant commented that if the father genuinely believes that the children have been “poisoned” against him by the mother then it will be very difficult for him to recover his relationships with the children through family counselling. The father would embark upon any counselling with an expectation that the counsellor would set out to alter the children’s contrived views about him. But the Family Consultant believes that the children’s negativity or ambivalence towards the father has not been coached and is rather a genuine attitude born of their own experiences with the father.  The children would be disturbed if any counsellor attempts to distort their sense of reality just to meet the father’s expectations that their views are disingenuous. Inferentially, the father would also be frustrated by the resistance of the children to change.

Section 60CC(3)(d)

1. The four children other than B continue to spend supervised time with the father for two hours each alternate weekend.

2. The father is proposing an immediate alteration to that arrangement so that all of the children, including B, spend unsupervised time with him every weekend from after school Friday until the commencement of school on Monday morning.

3. Suffice to say, that would be a very significant change of circumstances for the children.  It would entail protracted time away from the mother and substantially extended time with the father.  It would also mean that the children would spend a good proportion of their week with the father in N, away from the maternal family and their peer groups in U.

4. The evidence justifies a conclusion that such a structural change in the parenting arrangements would be deleterious for the children.  B has a fervent wish to spend no time at all with the father.  The assertive manner in which he has expressed his views to the Family Consultant leaves open the inference that B would probably run away from the father.  As an adolescent boy, that would compromise his physical safety.

5. The other four children remain content to see the father, but uniformly, they wish for very much more restricted time with him, subject to supervision of that time.  A change to those arrangements, contrary to the expressed wishes of the children, would probably seriously undermine their confidence and engender considerable anxiety in them. That should be avoided.

Section 60CC(3)(e)

1. The mother and the children now live in U and the father remains living in N.  The contact centre at which the children spend time with the father is situated in H.

2. Although the parties contemplated use of the Rainbows Contact Centre in Newcastle when they made interim parenting orders in January 2009, neither party has advocated use of that venue for final orders. That is probably by reason of impracticability. The driving time between the children’s residence in U and the Rainbows Contact Centre would be several hours. The driving time between the children’s residence in U and the H Family Support Service would be considerably less. If the parties are unwilling to use the Rainbows Contact Centre, it is not for the Court to force that venue upon them against their mutual wish.

3. If the children’s time with the father is to remain supervised, the only practical alternatives are for that time to continue being spent at the H Family Support Service, or alternatively, for the time to be supervised by the paternal grandparents at their home in N.

4. The paternal grandparents are apparently unwilling to be involved in that way, and the father has stated that he has no interest in pursuing that option.

5. The H Family Support Service therefore remains the only viable supervisory alternative. However, as evidenced by the documents tendered when the matter was re-listed by the Independent Children’s Lawyer[60], that Service is currently unwilling to afford its premises and supervisory services for use by the father and children. Obviously that presents a practical impediment to the children spending time with the father.

   [60] Exhibit ICL6

6. The present unwillingness of the H Family Support Service to facilitate the children spending time with the father is apparently only temporary. The Service will review its position once the father has committed to compliance with its policy. The power of rectification lies in the hands of the father.

7. The father indicated to the Court that he was prepared to do whatever was necessary to persuade the Service to re-instate its services for him and the children. I accept that the father is genuine. However, it could be some time before he is able to persuade the Service to re-instate its services, and in the meantime the children will be deprived of their time with the father. The father confirmed that he was aware that the children would not be able to spend time with him if he was unable to satisfy the demands of the Service.

8. Assuming that the Service does eventually re-instate its services, it will still cause considerable inconvenience and expense to both parties to continue travelling to H in order to facilitate the children spending supervised time with the father, particularly if the visits are frequent.

9. The parents have demonstrated a financial capacity to maintain their adherence to the interim fortnightly cycle that the children spend time with the father at H. Neither party has suggested that their financial circumstances preclude that regime continuing.

10. The Family Consultant regarded continuation of a fortnightly regime into the future as being untenable.  She thought that the children would soon develop an aversion to a commitment to spend supervised time with the father with that degree of frequency.  The Family Consultant considered that the regime should be less frequent for practical purposes.

11. I accept that the children and the parties would encounter difficulty sustaining a regime of supervised interaction at H over a prolonged period at fortnightly intervals.

12. There is another practical complication in the children communicating with the father, constituted by the inconsistent terms of the Apprehended Violence Order which remains in existence. The parenting orders need to take account of that.

Section 60CC(3)(f)

1. The mother has the capacity to provide for all needs of the children, including their physical, emotional, and intellectual needs.

2. The father may have the capacity to provide for the children’s physical needs, in the nature of food, clothing, and shelter, but his capacity to cater to the children’s emotional and intellectual needs is severely impaired.

3. The Family Consultant assessed the father as being unable to read and comprehend a story which was suitable for a child functioning at infant school level.[61]  His level of literacy was such that he would be unable to assist the children with their academic work at any higher educational level than infant school.  The children’s intellectual needs are more demanding than that.

   [61] Exhibit ICL4, par 21

4. The father’s concrete thinking and lack of insight repeatedly referred to by the Family Consultant deprives the father of an ability to provide for the children’s emotional needs. His shortcomings in that regard have already been addressed.

Section 60CC(3)(g)

1. There is nothing about the sex, lifestyle or background of the children and the parents which is influential in the evaluation process. 

2. The two eldest children, A and B, both demonstrate unsophisticated intellectual ability.  They will need some sensitive support and encouragement to move through adolescence into early adulthood.  The father lacks the emotional maturity to lend them any significant assistance in that transition.  The mother is better equipped for that task.

Section 60CC(3)(h)

1. Neither the children nor the parents identify as Indigenous Australian.

Section 60CC(3)(i)

1. The mother has a proper attitude to the children and to the responsibilities of parenthood.

2. I am satisfied on the evidence that the father indeed loves his children, but that he displays an inferior attitude to the children and to the responsibilities of parenthood. That conclusion can be simply exemplified.

3. The father has been travelling to H every alternate weekend for quite some time to permit the children to spend supervised time with him.  He has never once taken anything to the children other than food.  He has given none of the children any presents for their birthdays or Christmas.  The father alleged that he had occasionally taken some birthday cards to H, but said that he forgot the cards, leaving them in the car.  As a consequence, the cards were not given by him to any of the children.  Nor has he ever sent any gift, letter or card to any of the children by post.

4. The father seemed not to appreciate the significance of a parent not recognising a child’s birthday or Christmas by simple gift or card.

5. The father openly admitted his opinion that it was a parental right to see a child.  He regarded it as a right, rather than a privilege, for a parent to have children with them.  He was unable to appreciate that the privilege of a parent to interact with a child depends on the parent’s capacity to demonstrate an appropriate attitude to a child and the responsibilities of parenthood.

Section 60CC(3)(j)

1. The issue of family violence has been addressed under s 60CC(2)(b) of the Act. There is nothing to add.

Section 60CC(3)(k)

1. There is a family violence order in existence – it is an Apprehended Domestic Violence Order made against the father in favour of the mother and five children by the N Local Court on 31 March 2009.[62]

   [62] Exhibit ICL5

2. The Order is in force for a period of two years, and will therefore expire on 30 March 2011.

3. The terms of the Apprehended Violence Order are as follows:

   1.(a)       The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected persons or a person with whom the protected persons have a domestic relationship.

   (b)The defendant must not engage in any other conduct that intimidates the protected persons or a person with whom the protected persons have a domestic relationship.

   (c)The defendant must not stalk the protected persons or a person with whom the protected persons have a domestic relationship.

   12.The defendant must not knowingly enter premises at which the protected persons may from time to time reside or work.

   13.The defendant must not approach or contact the protected persons by any means whatsoever, except through the defendant’s legal representative or except for engaging in mediation or counselling in respect of family matters.

4. The “defendant” is of course the father.

5. The “protected persons” are the mother and each of the five children.

6. Paragraph 13 of the family violence order is inconsistent with both the existing interim parenting orders and the final parenting orders proposed by the parties. 

7. The inconsistency arises from the preclusion of the father from approaching or contacting the mother and any of the children, other than for the purpose of participating in mediation or counselling.  The order literally prohibits the children from spending time or communicating with the father.

8. The terms of the family violence order are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the family violence order and explain how those parenting orders will operate, as required by ss 68P(2)(a),(b) of the Act.

9. The children and the parents are all privy to the family violence order and these proceedings. The following explanation is given to the parties pursuant to the Court’s obligations under ss 68P(2)(c),(d) of the Act:

   a)The parenting orders are inconsistent with paragraph 13 of the family violence order because they potentially require the mother and father to contact and approach one another, and for the children and father to approach and contact one another.

   b)It is necessary to make parenting orders which are inconsistent with paragraph 13 of the family violence order in order to promote the children’s best interests.

   c)Aside from B, the children’s best interests are promoted by them spending time, and communicating, with the father. That will be aided by the mother and father having contact with one another, if necessary, to ensure that occurs.

   d)The parenting orders set out how the children are to spend time, and communicate with, the father.

   e)The parenting orders do not require breach of paragraphs 1(a), 1(b), 1(c), or 12 of the family violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence order may be consistently obeyed.

   f)Contravention of the family violence order will be dealt with by prosecution in the Local Court of NSW.

   g)Contravention of the parenting orders will be dealt with under the terms of the Act.

Section 60CC(3)(l)

1. There is agreement that the children continue to live with the mother.  The residual dispute is over the time that will be spent by the children with the father, and whether that time ought be supervised. 

2. Maintenance of the existing parenting regime, which permits the children to spend infrequent supervised time with the father into the future, carries with it some risk of further litigation.  That may result from either an appeal by the father if he is disaffected with the orders imposed by the Court, or further litigation brought by the father if the regime breaks down through increased reluctance on the part of the mother or children to adhere to that arrangement over the mid to long term.

3. However, the greater threat of further litigation is posed by making orders which substantially varies the existing arrangement and requires the children to spend much more time with the father without any supervision.

Section 60CC(3)(m)

1. The Family Consultant was called to give oral evidence to elaborate her reasons behind the recommendation that the children spend even less supervised time with the father than has been the case since the interim orders were made on 21 January 2009.  Presently the children see the father on a fortnightly basis.  The Family Consultant recommended that it only be on a monthly basis.

2. Although the father has steadfastly attended the fortnightly appointments with the children, the Family Consultant considered that the father himself was struggling to maintain the fortnightly cycle. The father has on some occasions been noticeably weary.  On one occasion he was seen to be yawning constantly and had to be asked by the contact centre staff not to answer his mobile telephone and have a conversation with the caller during his supervised session with the children.[63]

   [63] Exhibit ICL4, par 55

3. The father has occasionally asked to terminate the sessions early. The Family Consultant reports that the father has experienced difficulty in engaging all of the children in one session.  He has in the past required active encouragement from the contact centre staff to interact with all of the children.

4. The Family Consultant confirmed that the children have also struggled. A has objected to attending some of the sessions, and has occasionally requested an early departure.  C too has asked to leave the sessions early. 

5. The Family Consultant considered that contact centres can become boring for children, particularly as they mature.  She considered that if the children were compelled to see the father in that supervised setting on a fortnightly basis over a prolonged period then they may become resentful of the obligation, which may then impinge even more upon their relationship with the father.

6. The issue of communication between the children and the father was raised with the Family Consultant.  Because of the father’s perceived lack of insight, the Family Consultant was not supportive of the children maintaining telephone communication with the father.  She feared that in those circumstances there would be nothing to stop the father impressing his views upon the children that they had been intentionally aligned against him by the mother, which would be unsettling for the children.

7. The Family Consultant also considered that the father had an immature attitude to the resolution of conflict between himself and the children, evidenced by his ignorance of B in particular on some occasions.  She perceived that the children may also be disturbed if the father attempted to resolve any of the tension that exists between them during telephone conversations.

8. In the opinion of the Family Consultant, the only relatively safe manner of communication between the father and the children was by way of email, because the messages between them could then be monitored. Although the father has difficulty with language, I infer that he will be able to garner assistance to write emails to the children and read emails received from them.

Parental responsibility

1. The mother sought the allocation of sole parental responsibility for the children to her, even though she told the Family Consultant that parental responsibility for serious medical issues relating to the children should be shared.[64]

   [64] Exhibit ICL4, par 32

2. The mother advocated that parental responsibility for the children should be allocated to her solely for a number of reasons, namely:

   a)The existence of family violence, which means that the presumption of equal shared parental responsibility does not apply,

   b)The fact that she and the father are simply unable to communicate sensibly about the children,[65] largely because of the father’s staunch belief that the children have been aligned against him by her, and

   c)Examples of situations where the father has not sought to exercise parental responsibility, or not shouldered that responsibility when available to him.

   [65] Exhibit ICL4, par 32

3. In light of the father’s admissions about the occurrence of past physical violence involving the children, a finding of family violence is inevitable. As a result, the presumption of equal shared parental responsibility does not apply. The next question posited is what form of parental responsibility will best serve the children’s interests?

4. It is uncontentious that the parties have real difficulty communicating with one another. Obviously that compromises the parties’ ability to discuss issues of major long-term importance to the children.

5. The father agreed that he had worked hard over long hours to support the family whilst the family was together, and that the mother had taken most responsibility for the children, particularly relating to their schooling and health care. Since separation, that parenting model seems to have been maintained.

6. There was an occasion after separation when the father was due to take A from N to a hospital in Sydney for a medical appointment. He did not do so because the father was ill on that day. He alleges that he telephoned the mother and advised her of that. The father did not make an alternative appointment for A. He just let the matter lie. I infer from his evidence that he does not know whether the mother then made alternate arrangements for A to be medically consulted. Those circumstances betray a very lax attitude by the father towards an issue of importance to one of the children, which suggests a broader sense of disinterest on his part.

7. The Family Consultant recommended an allocation of parental responsibility consistent with the wishes of the mother.  She was of the view that the parents should not have equal shared parental responsibility. That was because of the poor relationship between the parents, the restrictive terms of the current Apprehended Domestic Violence Order, and also because the father has not historically involved himself in decisions of significance in the children’s lives.[66]

   [66] Exhibit ICL4, par 96

8. For those reasons I am ultimately persuaded that parental responsibility for the children should be allocated solely to the mother.

Living and Communication Arrangements

1. Since equal shared parental responsibility is not allocated to the parties, the Court is not obliged to consider the children spending equal time in each household, or substantial and significant time in the non-residential household.

2. Neither of those residential outcomes would meet the best interests of the children, nor be practicable. The parties and the Independent Children’s Lawyer recognise that. No such orders are sought.

3. The children shall live with the mother. That is uncontroversial.

4. B’s best interests require that he not be forced to spend time or communicate with the father against his vehement wishes. I accept the submissions of the mother and Independent Children’s Lawyer about that issue, and reject the father’s proposal that B fall into line with the other children.

5. Each of the other four children should spend time and communicate with the father. That is also uncontroversial, although the dispute remains as to the limitations upon how and when that time is to be spent.

6. I have already concluded that the children’s time with the father should remain subject to supervision in order to abate the unacceptable risk of abuse that the Court has found that the father poses to the children.

7. Since the only plausible supervisory person or entity is the H Family Support Service, the children’s supervised time with the father must take place there. Necessarily, the orders proposed by the father for the manner in which the children should spend time with him must be rejected.

8. The father and children are encountering difficulty sustaining a period of two continuous hours of supervised time together each fortnight. Consequently, the visits cannot be greater than two consecutive hours in duration, and cannot be more frequent than fortnightly.

9. The reasons for the Family Consultant’s recommendation that the regime be reduced in frequency from fortnightly to monthly have already been outlined in these reasons. I accept the evidence of the Family Consultant and am therefore persuaded that the time spent by the children with the father should be restricted in that way.

10. There is a prospect that the children’s time with the father will be temporarily, or perhaps even permanently, thwarted by the refusal of the H Family Support Service to offer its services to the children and the father. That development is beyond the control of the Court. The parties and the Independent Children’s Lawyer have mutually conducted the case on the basis that that Service is the only viable supervisory alternative. Although the Court is alarmed at such a possibility, the Court is unable to impose orders permitting supervision of the children’s time with the father by other persons or agencies without any evidential basis.

1. I am also persuaded by the Family Consultant’s evidence as to the reasons why the children should only be able to communicate with the father by email rather than by telephone.

2. For those reasons, the orders made are those which reflect the best interests of the children.

I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  1 February 2010