Brody and Denton

[2009] FamCA 993

FAMILY COURT OF AUSTRALIA

BRODY & DENTON [2009] FamCA 993

FAMILY LAW – CHILDREN - Parental responsibility - The mother shall have sole parental responsibility for the children in respect of their religious instruction and upbringing and otherwise the mother and father shall have equal shared parental responsibility for the children
FAMILY LAW – CHILDREN - With whom a child lives - Children to live with the mother - If the father lives within 100 kilometres of the residence of the mother, the father is to spend time with the children each alternate weekend, one week during the end of term school holidays and two weeks during the Christmas school holidays - If the father lives more than 100 kilometres away from the residence of the mother, the father is to spend time with the children for one week during the end of term school holidays and two weeks during the Christmas school holidays

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Knight v R (1988) 35 A Crim R 314
Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Brody

RESPONDENT: Ms Denton

INDEPENDENT CHILDREN’S LAWYER: Ms Kim O'Rourke

FILE NUMBER: NCC 1259 of 2008

DATE DELIVERED: 22 October 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 12, 13, 14 & 15 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roger Harper

SOLICITOR FOR THE APPLICANT: MacDonald & MacDonald Solicitors

COUNSEL FOR THE RESPONDENT: Mr Adam Mooney

SOLICITOR FOR THE RESPONDENT: Jennifer Blundell & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kim O'Rourke, Legal Aid NSW

Orders

1. All former parenting orders are discharged.

2. The mother shall have sole parental responsibility for the children, N, born … January 1998, and J, born … June 1999, (“the children”) in respect of their religious instruction and upbringing.

3. Subject to Order 2 hereof, the mother and father shall otherwise have equal shared parental responsibility for the children.

4. The children shall live with the mother.

5. In the event that the father lives within 100 kilometres of the residence of the mother, each of the parties shall take all reasonable steps to ensure that the children spend time and communicate with the father as follows, or as otherwise agreed:

   (a)By telephone at such times as the children request, but not less regularly than each Monday and Thursday night between 7.00 pm and 7.30 pm, and for that purpose the mother shall facilitate the children telephoning the father, and the father shall ensure that he is able to receive the children’s calls at that time.

   (b)During New South Wales public school terms, and subject to Order 9 hereof, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on Friday 30 October 2009.

   (c)During New South Wales gazetted school holidays, except the Christmas school holidays, from 12.00 noon on the first Saturday until 12.00 noon on the second Saturday.

   (d)During the New South Wales gazetted Christmas school holidays, for two weeks commencing from 12.00 noon on the first Saturday and ending at 12.00 noon on the third Saturday in the years when the holidays commence in an odd numbered year, and for two weeks commencing from 12.00 noon on the third last Saturday and ending at 12.00 noon on the last Saturday in the years when the holidays commence in an even numbered year.

6. In the event that the father lives more than 100 kilometres away from the residence of the mother, each of the parties shall take all reasonable steps to ensure that the children spend time and communicate with the father as follows, or as otherwise agreed:

   (a)By telephone at such times as the children request, but not less regularly than each Monday and Thursday night between 7.00 pm and 7.30 pm, and for that purpose the mother shall facilitate the children telephoning the father, and the father shall ensure that he is able to receive the children’s calls at that time.

   (b)During New South Wales gazetted school holidays, except the Christmas school holidays, from 12.00 noon on the first Saturday until 12.00 noon on the second Saturday.

   (c)During the New South Wales gazetted Christmas school holidays, for two weeks commencing from 12.00 noon on the first Saturday and ending at 12.00 noon on the third Saturday in the years when the holidays commence in an odd numbered year, and for two weeks commencing from 12.00 noon on the third last Saturday and ending at 12.00 noon on the last Saturday in the years when the holidays commence in an even numbered year.

7. For the purposes of implementation of Orders 5 and 6 hereof, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, and the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school.

8. In the event that Order 5 hereof applies, then:

   (a)Order 5(d) is suspended from 10.00 am on Christmas Eve until 12.00 noon on Christmas Day in odd numbered years, during which time the children shall spend time with the mother, and

   (b)Order 4 hereof is suspended from 10.00 am on Christmas Eve until 12.00 noon on Christmas Day in even numbered years, during which time the children shall spend time with the father.

9. Unless otherwise agreed between the parties, the children shall not spend time with the father pursuant to Order 5(b) hereof unless the father ensures that the children are able to attend all sporting and other extra-curricular activities for which they are enrolled or registered.

10. The children shall communicate with the mother whilst they are spending time with the father at such times as they request, but not less regularly than each Monday and Thursday between 7.00 pm and 7.30 pm, and for that purpose the father shall facilitate the children telephoning the mother, and the mother shall ensure that she is able to receive the children’s calls at that time.

11. Unless otherwise agreed between the parties, for the purposes of implementing the time spent by the children with the father, the mother and/or one of the children’s siblings shall cause the delivery and the father and/or his wife Mrs Brody shall cause the collection of the children at the commencement of the time to be spent with the father at the playground situated on the eastern side of D Park, and the father and/or Mrs Brody shall cause the delivery and the mother and/or one of the children’s siblings shall cause the collection of the children at the conclusion of the time spent with the father at the same place.

12. Both parties shall keep each other informed of their current residential address and telephone number, and ensure that the children are provided with same.

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

14. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

15. The father is at liberty to attend at any medical appointments or specialist appointments held in relation to the children’s health, or other issues such as behavioural issues that may arise from time to time, including Aspergers Syndrome suffered by N.

16. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural and extra-curricular events in which the children are to participate.

17. The father is at liberty to attend parent/teacher interviews and other student-focussed events held at the schools attended by the children.

18. Both parties shall actively encourage a positive and respectful relationship between the children and the other party at all given opportunities.

19. The parties are restrained from insulting or criticising the other party in the presence or hearing of the children, and from exposing the children to third parties insulting or criticising the other party or members of that party’s family.

20. The mother shall ensure that the children attend school every day that they are required to do so, and that they do so on time, unless she procures a medical certificate excusing their attendance.

21. The mother shall ensure that she continues to consult her medical practitioner regularly, and as recommended by that practitioner, and that she complies with all medication regimes prescribed by that practitioner, and follows up all referrals made for her by that practitioner.

22. The mother shall continue her consultations with the Newcastle Family Support Services as recommended by that Service.

23. The parties are restrained from consuming illicit drugs within the period of 24 hours before the children come into their care, and whilst the children are in their care, and from exposing the children to any person affected by illicit drugs, implements used to consume drugs, and illicit drug paraphernalia.

24. Whilst ever the children are in their care, the parties are restrained from consuming alcohol so as to cause their blood/alcohol level to exceed that limit prescribed by the law in New South Wales for the purposes of prohibition from driving a motor vehicle.

25. Within 14 days of the date of these orders the parties shall contact Unifam Counselling and Mediation at Bolton Street, Newcastle, New South Wales to register their enrolment, and thereafter participate in and complete, the “Transitions” and “Keeping in Contact” programs.

26. In the event of a party encountering difficulty in complying with these orders at any time, that party shall:

    (a)Enter into discussion with the other in good faith and with the legitimate intention of resolving the difficulty in the children’s best interests, but failing that,

    (b)Contact a Relationships Centre, Relationships Australia, Centacare, or Unifam to arrange and then participate in mediation in good faith and with the legitimate intention of resolving the difficulty in the children’s best interests, but failing that,

    (c)Obtain independent legal advice and attempt to resolve the difficulty in the children’s bests interests with the assistance of solicitors.

27. 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.

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

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

30. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1259 of 2008

MR BRODY 

Applicant

And

MS DENTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that should be made in respect of two children, N born in January 1998 and J born in June 1999 (“the children”).

2. Those children are the two youngest children of the parties to these proceedings.

3. Since the final separation of the parties, the children have lived predominantly with the mother and spent time with the father.  Those parenting arrangements were implemented by the parties consensually, including by way of final parenting orders agreed between the parties in the Local Court of New South Wales in July 2004.

4. The parenting arrangements broke down in April 2008 when the father declined to return the children to the mother following them spending some time with him during a school holiday period.  The children were recovered by the mother from the father within a period of days, and that incident was the catalyst for the commencement of the current proceedings. 

5. The father filed his Application seeking final parenting orders on 23 April 2008 and the respondent mother filed her Response on 21 May 2008.  Although the proceedings were commenced by the father in the Local Court of New South Wales, the proceedings were transferred to this Court shortly thereafter.

6. The parties, and the Independent Children’s Lawyer who was subsequently appointed by procedural order, mutually conduct these current 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 Local Court of New South Wales in July 2004. Neither party, nor the Independent Children’s Lawyer, has articulated with any precision the material change in circumstances since the making of those orders which would warrant the Court’s further consideration of the family’s circumstances, but the proceedings have reached such an advanced stage without that issue having been agitated that it would be counterproductive for the Court to now consider dismissal of the proceedings of its own volition.

7. The applicant father now moves on his Amended Initiating Application filed on 21 July 2009, and the respondent mother relies upon her Amended Response filed on 24 July 2009.

8. Broadly speaking, the father seeks the allocation of equal shared parental responsibility in respect of the children, that the children live with him, and that the children spend time with the mother, with the amount of such time to be dictated by the distance between the parties’ places of residence.

9. At the commencement of the hearing, the Independent Children’s Lawyer tendered a Minute of Orders proposed by her, which became Exhibit ICL4. The Independent Children’s Lawyer later tendered an amended Minute of Orders, which became Exhibit ICL7. The orders proposed by the Independent Children’s Lawyer are consistent with the residential recommendations made by the Family Consultant in his Family Report dated 1 July 2009.

10. When Exhibits ICL4 and ICL7 were tendered by the Independent Children’s Lawyer, counsel for the respondent mother announced that the mother sought precisely the same orders as proposed by the Independent Children’s Lawyer, in lieu of those proposed by her in her Amended Response.

11. In summary, the orders proposed by the Independent Children’s Lawyer and mother are that parental responsibility for the children should be allocated to the mother solely, that the children live with the mother, and that the children spend time with the father, with the amount of such time to be dictated by the distance between the parties’ places of residence.

12. The father commendably adopted a position that narrowed the dispute by indicating through his counsel that he agreed with Orders 9-26 inclusive proposed by the Independent Children’s Lawyer in accordance with Exhibit ICL7, subject to any necessary textural amendments if the Court ordered that the children live predominantly with him consistently with his proposal.

Documents relied upon

1. In support of his Application, the father read the following affidavits in evidence:

   a)Affidavit of the father sworn on 21 April 2008, originally filed with the Local Court of New South Wales;

   b)Affidavit of the father sworn on 1 May 2008, originally filed with the Local Court of New South Wales;

   c)Affidavit of the stepmother, Mrs Brody, sworn on 21 April 2008, originally filed with the Local Court of New South Wales;

   d)Affidavit of Ms W sworn on 5 May 2008, originally filed with the Local Court of New South Wales;

   e)Affidavit of Mr C filed on 2 June 2008;

   f)Affidavit of Ms T filed on 12 August 2008;

   g)Affidavit of Mr O filed on 20 May 2008; and

   h)Affidavit of Ms S sworn on 2 October 2009, and marked as received by this Court on 6 October 2009.

2. In support of her position in the case, the respondent mother read the following affidavits in evidence:

   a)Affidavit of the mother filed on 14 September 2009;

   b)Affidavit of L Brody filed on 14 September 2009;

   c)Affidavit of E Brody filed on 14 September 2009; and

   d)Affidavit of Z Brody filed on 15 September 2009.

3. At the conclusion of the evidence of the mother in her case, the father invited the mother to consider whether she wished to continue her reliance upon the affidavits of the adult children L, E and Z. She did.

4. In the case of the Independent Children’s Lawyer, evidence was adduced from the Family Consultant in the form of the Consultant’s Children and Parenting Issues Assessment dated 5 August 2008 and Family Report dated 1 July 2009.

5. Various documents were also tendered in evidence by the parties and Independent Children’s Lawyer throughout the case.

Relevant history

1. The applicant father was born in 1950.  At the time of hearing, he was aged 59 years.

2. The respondent mother was born in 1961.  At the time of hearing, she was aged 48 years.

3. The parties met in late 1985 when the mother commenced part-time work at the same organisation where the father was employed as the Assistant Coordinator.  At that time, the father was aged 35 years and had three children from two prior marriages.  The mother was then aged 24 years and was pregnant with her first child.

4. The father’s three children from his two former marriages are now all adults.  The youngest of those children, Z, prepared an affidavit in these proceedings which was read in the mother’s case.

5. The child with whom the mother was then pregnant, E, is also now an adult.  Even though he is not the biological child of the father, E was raised by the parties as a child of the relationship.  He also prepared an affidavit in these proceedings, which was read in the mother’s case.

6. The parties were married in 1988.  At that time, E was two years of age.  A few months later the parties moved from the D district to live within a religious community New South Wales.  The family lived there for the next decade or so.  During that time, three children were born to the marriage.  Those children were L, born in July 1990, N, born in January 1998, and J, born in June 1999.

7. L is now an adult.  She too prepared an affidavit in these proceedings, which was read in the mother’s case.

8. Because of L’s majority, these proceedings now only concern the two youngest children, N and J.

9. Shortly following the birth of the youngest child J, the family departed the religious Community and settled in the northern coastal district, where they remained until separation.

10. There is a dispute about the date of final separation of the parties.  The father asserts that final separation occurred in December 2003.  The mother alleges that the relationship ended on 23 December 2001 and that they were subsequently divorced in March 2003.  Although the factual dispute is curious, it is really immaterial to the outcome of these proceedings.

11. Upon separation, the father departed the former matrimonial home.  The mother remained in occupation of that home and the children lived with her.  The parties were mutually content with the arrangements that they made for the time then being spent by the children with the father.

12. The evidence adduced in this Court does not disclose which party subsequently commenced proceedings under the Family Law Act (“the Act”), but proceedings were instigated before the Local Court of New South Wales.  Those proceedings resulted in the Court making final parenting orders, with the consent of the parties, in respect of each of their three biological children. The father asserts that those orders were made in July 2004 and the mother does not demur.  The effect of those orders was as follows:

    a)The three children of the marriage were to live with the mother (Order 1)

    b)Parental responsibility for the children was allocated to the parties jointly (Order 2)

    c)In the event that the parties resided more than 100 kilometres from one another, the children were to spend time with the father on one weekend each month and for half of all school holidays.  The children were also to have regular telephone communication with the father (Order 3.1).

    d)In the event that the parties resided within 100 kilometres of one another, the children were to spend time with the father each alternate weekend and also on the Saturday of intervening weekends, together with half of all school holidays.  The children were also to have frequent telephone communication with the father (Order 3.2)

    e)Each party provided an undertaking that they would not relocate outside the State of New South Wales without the written permission of the other (Order 5).

1. Those orders were implemented by the parties uneventfully.

2. At some point, the mother and children relocated their residence from the northern coast to Newcastle.  The evidence does not permit a finding as to precisely when that move occurred. 

3. The father alleges that the mother’s move to Newcastle occurred about one year after the final parenting orders were made by the Local Court of New South Wales, which on his evidence would date the occurrence of the relocation at about July 2005. 

4. The mother’s evidence is quite different. She said in her affidavit that the father gave his consent to her relocation with the children to Newcastle in May 2004, although she does not say exactly when the relocation itself occurred. She elaborated her position in cross examination by asserting that the move occurred in mid 2004 and that she and the children were already living in Newcastle before the final parenting orders were made between the parties by consent in the Local Court. That could account for why those orders make alternate provision for the time to be spent by the children with the father, depending upon the geographical distance between the parties’ households.

5. Irrespective, the father agrees that the parties still adhered to their consensual arrangements concerning the parenting of the children, which included agreement upon the venue for changeovers being located approximately equidistant between their residences once the mother and children moved to Newcastle. 

6. The father concedes that the frequency of the time spent by the children with him abated a little because of the increased distance between them.

7. The father re-married in May 2006.  The father remains in a matrimonial relationship with his wife Mrs Brody.

8. Following the father’s re-marriage, he and his wife commenced work within their Church. The father established a website advertising their activities in which he described himself as a preacher, as evidenced by Exhibit M2.  Since then, the father and his wife have travelled extensively within New South Wales, Queensland and overseas pursuing their interest in religious activities.

9. At some indistinct point during 2007, the father relocated his predominant residence from the northern coast district of New South Wales to south-east Queensland.  There is no evidence that the mother gave her written permission for the father to move to that destination, in the absence of which permission the father relocated to Queensland in breach of Order 5 made by the Local Court of New South Wales in July 2004.

10. Although the father and his wife lived in south-east Queensland in a home attached to a church where they worked, they apparently continued to travel away with their work extensively.

11. The relocation of the father to Queensland, and his extensive travel, necessarily curtailed the amount of time that the children then spent with him.  The father concedes that from about mid 2007 onwards the children only spent time with him during school holiday periods.

12. It is common ground that the relationship between the parties was becoming more fractious with the passage of time. The mother dates the commencement of the deterioration in their relationship at around mid 2006. Before then the parties had been quite communicative with one another. The mother and children had been invited to attend, and did attend, the ceremony to mark the father’s marriage to Mrs Brody. The father and Mrs Brody had also been entertained in the mother’s household in Newcastle. When the father attended the mother’s home on one such occasion in about mid 2006 she perceives that the father made offensive remarks to her and the children, which changed her attitude towards him.

13. The mother’s domestic situation had by then become troubled and continued to worsen thereafter. She began consulting the Family Support Service in 2004 and was diagnosed with depression in about April 2005, which was treated with prescribed medication. She had completed a business management course in early 2005 and opened a business in about August 2005. The business was later flooded in January 2007, resulting in the loss of her source of income. She fell into debt with her residential and commercial landlords and was ultimately evicted from both premises. The family predicament was compounded by the mother’s episodic depression. Even though only a juvenile, L departed the mother’s household to live with her boyfriend, and later returned. The mother and children finally moved into a refuge in late February 2008.

14. The father was informed by the mother’s disaffected landlords of worrying circumstances about the standard of the mother’s domestic and commercial premises in Newcastle. He was also informed by a mutual friend, Mr O, that the mother’s household was in a dishevelled state. The father became aware that the mother was evicted and had moved into a refuge with the children.

15. In the context of those prevailing circumstances, the parties sought to negotiate the time that would be spent by the children with the father in the Easter holidays of 2008, given that the father’s unilateral decision to move to Queensland impeded the parties’ compliance with the consent orders made in July 2004.

16. The parties agreed that the two youngest children would spend the first half of the Easter school holidays in April 2008 with the father.  The parties negotiated that position with the assistance of mediation at the Newcastle Community Justice Centre, which occurred on 10 April 2008.  That mediation resulted in a written memorandum, signed by the parties, which relevantly provided as follows:

    1.[The mother] and [the father] agreed that [the father] will pick up the two boys, [N] and [J], at McDonalds, [Newcastle], at 10:00 am on 11 April 2008 and return them on Saturday, 19 April 2008, to the same place at 12:00 midday.

    2.[The father] and [the mother] agree that they will not speak to [N] and [J] about any possible challenges to the court orders currently in place.

17. The mother conveyed the two children to the father in accordance with that agreement.  However, the father concedes that he did not return the children to the mother pursuant to their agreement.

18. The father asserts that he and his wife jointly decided to retain the children. That was because of their concerns about the continuing welfare of the children if they were to remain predominately within the care of the mother.

19. Following the father’s refusal to return the children to the mother, the mother travelled from Newcastle to the north coast of New South Wales searching for the children.  She was assisted in that endeavour by the father’s adult child Z, and her own adult children, E and L.

20. The mother was able to locate the whereabouts of the children in the northern coast area several days later on 23 April 2008.  The children were staying at a rural property, but were not being supervised by either the father or his wife at the time of the mother’s arrival.  The mother recovered the children and returned to Newcastle with them.

21. The mother and children returned to the refuge, where they had been staying temporarily. The mother was allocated public housing at a suburban area of Newcastle, on 12 May 2008. She and the children have remained living there ever since. The children have been enrolled at the local public school and participate in extra-curricular activities within that local community. The mother has since opened another small business in that community.

22. The mother says that her relationship with the father completely broke down as a consequence of the father’s decision to detain the children in April 2008. She now declines to communicate with him.

23. The father’s detention of the children in April 2008 was a strategically planned move. On 10 April 2008 he had agreed in writing at a mediation to return the children to the mother on 19 April 2008. By 21 April 2008 he and his wife had already been to solicitors to affirm their affidavits and sign the father’s Application for Final Orders, which Application was filed some days later on 23 April 2008, being the very day that the mother retrieved the children from him.

24. The father’s Application was first returnable before the Local Court on 29 April 2008 and was adjourned to 6 May 2008. On that date the matter was transferred to this Court.

25. The case came before Judicial Registrar Johnston in this Court on 3 June 2008, at which time procedural orders were made and the parties recorded some notations as to how the children would spend time and communicate with the father in the interim. Those arrangements were meant to prevail until the hearing of the father’s then pending application for interim parenting orders to vary the orders previously made in July 2004.

26. The father’s application for interim parenting orders was eventually heard and determined by Judicial Registrar Loughnan on 20 August 2008. The father’s application was dismissed, the effect of which was to preserve the final parenting orders made consensually between the parties in July 2004, although the Court referred in its orders to those orders having been made in April 2004.

27. In April 2009, following a holiday visit by the children with the father, the father and his wife travelled overseas for a month. Upon their return to Australia in May 2009 they relocated from Queensland to K in New South Wales. They currently remain living in the K district, which means that the residences of the parties are separated by a drive of about an hour in duration.

28. Since late July or early August 2009 the children have been spending time with the father on weekends and during school holiday periods in accordance with the terms of the prevailing parenting orders made in July 2004.

29. The parties’ competing proposals for alternate final parenting orders came on for final hearing before this Court on Monday 12 October 2009.  

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 Children – Primary Considerations

Section 60CC(2)(a)

1. The children have lived permanently with the mother since the time of their respective births.  They are closely bonded to her.  The relationships that they each enjoy with the mother are important, significant and valuable to them.  It is undoubtedly beneficial for the children that those relationships be preserved.  Preservation of those relationships would be best ensured by a parenting regime that permits the children to spend significant periods of their time with the mother.

2. It is common ground that the children have spent much less time with the father in the years since the parties’ separation. Nevertheless, I find on the evidence that the children each enjoy a warm and loving relationship with the father. 

3. The mother acknowledges that the children love the father, but she harbours a belief that the children have in recent months become reluctant to spend much time with him. She attributes that reluctance to the children’s distaste of the father’s fervent religious views, and the strident manner in which he seeks to impose those views upon them and others. The Family Consultant accepted that that may be one of the factors which explains the children’s reluctance to spend much time with the father, but he also considered that the children’s exposure to conflict between the parties was a contributory factor.

4. Although the children may have professed reluctance about spending time with the father to both the mother and Family Consultant, those expressed sentiments are incongruent with the observations of Mr O who has had occasion to witness the children with the father and his wife. He saw the children interact lovingly with the father. The mother accepts him as a reliable witness, and so do I.

5. The Family Consultant remarked that the children enjoy a positive relationship with the father’s wife Mrs Brody. The mother did not seek to make that a contentious issue. I accept that it is correct.

6. I conclude that the children’s relationship with the father is meaningful and orders should be made which permit that situation to continue.  No party submits to the contrary, although the mother and Independent Children’s Lawyer submit that orders need to be crafted so as to guard against the risk of emotional harm posed to the children by the religiously-committed behaviour of the father.

Section 60CC(2)(b)

1. Both parties have raised the issue of the exposure of the children to physical or psychological harm by reason of some form or other of parental conduct or neglect.

2. The mother has adduced extensive evidence concerning the physical abuse inflicted by the father upon her, upon the parties’ children, and upon children outside their family.

3. Whilst the family lived at the religious Community, the father worked within the community at the community school. The leadership of the community implemented a discipline policy for the children of the families living within the community who attended the community school.  The father was appointed by the leadership group to administer physical punishments to children at the school.  The father concedes that the policy of physical discipline was strict.  It entailed caning the children with an implement described as “poly pipe”, which was described as a length of plastic conduit.  By reference to the evidence given by numerous witnesses, the behavioural infractions of the children warranting physical punishment by that method were not particularly serious.  They included simple disobedience and failure to follow instructions.

4. The father was not reticent in explaining his views about physical discipline.  He acknowledged that children could be distressed by physical discipline.  Indeed, he expected that as an outcome. He said that without distress and pain the lesson of correction would not be learned.  He regarded it as proper to strike a child, even with an implement, as a legitimate form of correction.  He readily adopted the excerpt from the Bible “Spare the rod, spoil the child”.  The father did not think that a disciplined child would bear a grudge if the strict discipline was administered properly.

5. The father called Ms S as a witness in his case.  She was a former student at the community school.  She remembered being hit on numerous occasions by the father with poly pipe as a form of discipline.  The misbehaviour she described as justifying that discipline was merely answering back or failing to do as she had been instructed. 

6. Each of the adult children called as witnesses in the mother’s case gave evidence about the physical discipline administered to them by the father. Their evidence chiefly dealt with punishment inflicted by the father within the family household rather than at the community school.

7. E Brody described being belted across the buttocks with a strap repeatedly on occasions when he was disciplined.  He described the experiences as very frightening.  In cross-examination he denied exaggerating his evidence in that regard.

8. L Brody also gave evidence asserting that she was belted by the father with a strap as a form of punishment on numerous occasions during her youth.  She too denied that she was exaggerating her allegations in that regard when cross-examined. She assertively said that she had been hit by the father with a belt many times, and on one occasion with the buckle of a belt.  She said that as a consequence of such beltings she was left with red welts on her buttocks and thighs.  The memory of those events has remained with her.

9. Z Brody also gave evidence.  She alleged that the father would hit her with a leather strap on the bare buttocks with sufficient force that bruises and marks would be caused.  She also alleges that she saw the father administer similar punishment to her siblings.  She alleges that such discipline was administered for misbehaviour that she regarded as trivial, such as refusing to sing when asked, or not praying out loud when instructed to do so.  She too denied in cross-examination that she was exaggerating her evidence in that regard.

10. The evidence of the adult children was not just confined to historical incidents prior to separation of the parties. They also spoke of post-separation incidents.

11. L contends that some years ago she observed bruises on J’s left arm and back on an occasion when he and N were returned to the mother’s household after some time away with the father.  L questioned J about the cause of the bruising and J began to cry.  She then quizzed N who told her words to the effect of “Daddy got really angry with him and he told us not to tell you”, the inference being that the bruises resulted from physical discipline administered by the father.  L says that about three days later when she saw the father she confronted him about the bruising she had observed on J’s body.  Without attributing to the father the words that he actually used to her in reply, L summarises the father’s response to her as her being told to mind her own business and that the incident was “not that big of a deal”.  L was not challenged about that evidence in cross-examination, and I accept its accuracy.

12. E and L also give evidence in their affidavits about an incident involving the father some years ago, which was witnessed by the children.  The mother was not at home.  E and L were at home alone.  The father returned the children to the household. The father and E became embroiled in an argument. L intervened in the argument in defence of E.  The adult children and the father exchanged unpleasant words in a hostile context.  The father raised his hand as if to hit L but then desisted when goaded by L to go ahead and hit her.  The incident was witnessed by the children, who were distressed and crying.  L called the mother and the police were then summoned. 

1. A complaint and summons for an Apprehended Violence Order was issued by police, requiring the father’s attendance at Local Court to answer the summons on 27 April 2004.  Shortly thereafter, on 4 May 2004, a Final Apprehended Violence Order was made in the Local Court against the father for the protection of the mother, E, L, N and J for a period of two years. The father did not make any admissions about his alleged conduct, but consented to the making of the AVO in any event. Although the father may disavow the allegations of the adult children, I accept their evidence.

2. Each of the adult children was a credible witness. They were earnest and frank. They considered carefully the questions that were posed to them and answered in a measured way with an even temperament.

3. The mother gave evidence about some violent interaction with the father during their past.  She alleges that on numerous occasions the father acted towards her with physical hostility.  Such incidents involved not only the infliction of physical violence by the father, but also intimidatory behaviour by him.  She was corroborated by E, who alleges in his affidavit having witnessed the father assault the mother on occasions.

4. The physical abuse perpetrated by the father upon the mother allegedly included her being choked and punched.  The mother alleges that on one occasion at least she received a black eye by reason of being punched in the face. I accept the mother’s evidence about that. The father conceded that he did remember one incident of violence between them, although he was not asked to elaborate.

5. The evidence about the standards of the father with respect to physical discipline only goes so far. The mother also believes in the physical correction of children in instances of gross misbehaviour, but she regards a smack to the buttocks to be the limit.  She does not agree with the use of implements.  The mother remains concerned about the prospect of the father applying physical discipline to the children in the future at a level which she regards as unreasonably severe. On the evidence adduced, her apprehension is justified, particularly since the father conceded having struck J on the buttocks with a drum stick by way of discipline in recent months.

6. The mother is also concerned by the prospect of the children being exposed to emotional harm by reason of the father demanding their adherence to his strictly religious moral code, and their embarrassment about their unwilling involvement in the father’s constant preaching to others. I am satisfied that the children are somewhat disturbed by such behaviour on the part of the father, but I am not satisfied that they are exposed to the risk of emotional harm by reason of it. It could however cause degradation of their relationship with him, which would be contrary to their interests.

7. For his part, the father is particularly critical of the standard of the mother’s housekeeping. He considers that her deficient housekeeping amounts to neglect of the children’s needs for proper physical care.  It is implicit that the father believes that the children are exposed to the risk of either physical or psychological harm as a consequence of that neglect.

8. From observations made on occasions when they have seen the interior of her premises in the past, the father and his wife describe the premises of the mother to have been in a state of dishevelment.

9. Evidence of that ilk is also given by Mr C, Ms T, and Mr O.  Each of those witnesses had the opportunity to visit the residential and commercial premises of the mother in Newcastle in recent years, and each uniformly assert that the premises were in an unkempt state.

10. The mother has conceded that her house and shop have at times in the past been in various states of untidiness.  She advances numerous reasons for that.  On one occasion, her shop was flooded and contents from the shop had to be moved into her residential premises for safekeeping, which had the effect of cluttering those premises.  It is also common ground that the mother has suffered from periodic episodes of depression, which has impaired her ability to attend to housework with the diligence that she would otherwise have desired.  Notwithstanding, the mother rejects any suggestion that her premises were in the state of gross dilapidation alleged by Mr C and Ms T.

11. There is little doubt that the mother has suffered from bouts of clinical depression in the past. The fact was confirmed by her general practitioner in a letter dated 12 August 2008 annexed to the mother’s affidavit, and by records produced pursuant to subpoena by the Newcastle Family Support Service, tendered as Exhibit ICL3.

12. Both Mr C and Ms T were former landlords of the mother, both of whom have been involved in subsequent litigation with the mother. In the case of at least Mr C, he remains a creditor of the mother. Although Ms T asserted no personal connection with Mr C, she conceded that she had accompanied Mr C when he attended upon the mother to try and extract overdue money from her.

13. Mr C alleged that the mother had too many people residing within the residential premises she rented from him in Newcastle, which overcrowding contributed to its dishevelled state. It transpired, however, that Mr C expressly agreed to that number of people living in the rented premises. The written lease, tendered as Exhibit M4, demonstrated that agreement was reached that 6 people inhabit the 4 bedroom house.

14. The mother remarked that Ms T only had one opportunity to observe her household, and that was several years ago on the last day of her tenancy when the cleanup was in progress.  Ms T admitted that. Mr C did have two or three visits to the mother’s household, but his opportunities for accurate observation were also limited.  Although he saw mattresses on the floor of the children’s bedroom on his last visit, the mother explains that by then the beds had already been dismantled and removed from the premises at the time of their eviction.  The mother did admit that her house may well have been cluttered at the time of the visit she experienced from Mr O, but she denies that the household was dirty. 

15. The evidence of the mother is corroborated by her daughter L. Her evidence was also at least partially corroborated by photographs comprising Exhibit M6, which were photographs of the shop rented by the mother from Mr C, taken by her at the commencement of the tenancy. Mr C denied that they were photographs of his shop, but I accept the evidence of the mother that they were. They show that the shop was in a relatively poor state of repair at the time of the commencement of the mother’s tenancy, such that the dilapidation of the shop was not entirely the result of the mother’s failure to keep it in proper condition.

16. Assessing conflicting evidence about an issue such as the cleanliness of a household is fraught with the issue of disparate opinion borne of different standards of expectation. I was left with the impression that Mr C and Ms T tended to exaggerate their evidence about the state of disrepair of the mother’s premises, and that the mother probably trivialised. 

17. The evidence leads me to conclude that the state of cleanliness and good order of the mother’s household has been unsatisfactory at times in the past, but that such instances are not sufficiently severe or sustained to warrant a conclusion that the children have been physically neglected within her household. A finding that the children were exposed to either physical or psychological harm, as a consequence of any such neglect, is even further removed. Even if that were the case in the past, there is no evidence that the situation persists, and so it could not cogently be argued that there is a real risk in the future.

Best interests of the children – additional considerations

Section 60CC (3)(a)

1. At the time of hearing, N was aged 11 years and 9 months and J was aged 10 years and 4 months.

2. N was previously diagnosed with Aspergers Syndrome.  He is uniformly described as a serious child who thinks deeply.  The experience of the Family Consultant was that N had a desire to ensure that he was clearly expressed and interpreted accurately.

3. The Family Consultant contacted N’s school teacher and ascertained that N’s literacy is impaired by his condition of Aspergers Syndrome.  He is a good reader and a confident speaker, but his writing is poor and he is extremely slow to complete academic work.  He enjoys mathematics and is very strong with visual-spatial logic.

4. The Family Consultant found that N expressed his views very confidently and very clearly.  The Family Consultant thought that significant weight should be attributed to the stated views of N, but that some caution is needed because N is likely to be feeling that he needs to be seen to support one parent over the other.

5. J has both behavioural problems and learning difficulties.  In recent years he has consulted a school counsellor and a paediatrician, and received speech therapy.

6. The Family Consultant also established contact with N’s classroom teacher and learned that J is progressing well academically.  His reading is apparently fine, but he is a slow worker.  He is apparently not working to his potential, although he demonstrated improvement in the last academic term through his participation in an intensive literacy program.  J apparently socialises well with his peers at school.

7. The Family Consultant opined that, like N, significant weight should be attributed to J’s stated views, but that some caution is needed as J also perceived the need to support one parent over the other.

8. N was extremely clear and resolute in the views that he stated to the Family Consultant.  He definitely wished to live with his mother and definitely did not wish to live with his father.  N was also able to speak freely about the times that he had spent with his father in recent years and was generally positive and enthusiastic about those experiences.  He was acutely aware of the deteriorating relationship between his parents.  N was less than clear about the circumstances in which he wished to spend time with his father, although it could be discerned by the Family Consultant that he did wish to continue spending some time with the father.  It was clear that N wished to continue communicating with the father by telephone.

9. J was also adamant that he did not want to live with his father.  He explained to the Family Consultant that he liked going with his father for a few days, but not for a week at a time.  J also stated to the Family Consultant that he liked talking with his father on the telephone. 

10. The clear implication arising from the views expressed by the children is that they wish to retain a regime of interaction with their parents which largely replicates existing circumstances. They wish to continue living with the mother.  They wish to spend time with the father on a reasonably frequent basis so long as the duration of their visits is not unduly long, and they wish to continue communicating with their father by telephone.

11. The father confronts a logical difficulty in dismissing the expressed views of at least N. The father’s wife expressly asserts that N is very open and honest. She did not think that he would say something just to please the parent with whom he was staying. The father did not expressly say as much, but given that he and his wife regarded their position in the matter as being mutually consistent, he cannot disavow her evidence.

12. The children are not yet of an age where their wishes carry overwhelming weight.  I do, however, repose considerable weight in the expressed views of the children, mindful though that both children probably wish to be seen as supporting the mother’s position.  Both children are obviously aware of the conflict that has enveloped their parents.  Any reluctance the children have expressed to spending time with the father is resultant, at least in part, to their exposure to that conflict.  I accept that the children love their father and wish to continue seeing him. However, I accept that they wish to continue living predominately with the mother.

13. The Family Consultant holds the opinion that the views of the children were genuine, reasonably based, and developmentally appropriate. I accept the evidence of the Family Consultant.

Section 60CC(3)(b)

1. For reasons already discussed, there is really no dispute that the children enjoy a warm and loving relationship with the father and his wife.

2. Equally, it is uncontentious that the children enjoy warm and loving relationships with the mother and each of their siblings.  The children’s older sister L lives in the same household with her own child.  They are very close to her.

3. The children’s elder half-sibling, E, does not live in the mother’s household, but E sees the mother and the children on a weekly basis.  He spends time with the children reading to them.  Plainly, there is a very good relationship between them.

4. The children also see the father’s adult daughter, Z, from time to time.  Z is not the biological child of the mother, but she still retains more frequent contact with the mother than she does with her own father.  That fact suggests that Z finds succour in the mother’s household, which involves her to some degree in the lives of the children.

5. Presently, neither L nor E has any contact with the father.  Z apparently has some contact with her father, but it is rather infrequent. Self-evidently, if the children resided in the household of the father, the frequency of their contact with L, E and Z would be seriously curtailed because of the deliberate lack of interaction between those adult children and the father. 

6. Although I accept the submission of the father that the mother would work to retain her relationship with the children, their relationships with each of the mother, L, E and Z would inevitably suffer by their removal from the household where they have lived uninterrupted for so long. I place considerable weight on this factor.

Section 60CC(3)(c)

1. The evidence given by the mother demonstrates that she remains quite embittered towards the father.  She holds to the view that the father abandoned her and the children at the time of separation to pursue interests of his own with little regard for them.  Despite those strongly held feelings, the mother has continued to facilitate and encourage the relationship between the children and the father. I reject the father’s submission that she has not done so.

2. For some years following separation there were no parenting orders in existence.  The parties were able to reach a consensual arrangement for the children to spend time with the father.  The parenting orders that were subsequently made in July 2004 were made consensually.  Thereafter, the orders were implemented by the parties uneventfully. The parents communicated amiably within the mother’s home at changeovers.  They even had meals together.  When the father met and married his present wife, the mother and the children were invited to the wedding ceremony.  Even when the father and his wife moved to Queensland, making implementation of the existing parenting orders difficult, the parties were able to negotiate the times at which the children would see the father and the manner in which those visits would be implemented.

3. Although the mother acknowledges that the communication between the parties began to deteriorate in late 2006, the parties were still able to parent the children cooperatively.  It was not until the father refused to return the children to the mother following a visit with him in April 2008 that their communication completely broke down.  However, even since then, the mother has generally adhered to the parenting arrangements in existence and ensured that the children spend time with the father and continue to communicate with him by telephone.

4. That the mother has been able to do so, in the face of her personal rancour with the father, speaks volumes about her commitment to the retention of the relationship between the children and the father.  That is especially the case when it is considered that the adult children of the family are staunchly opposed to having any relationship of their own with the father.

5. The mother denies openly denigrating the father, and asserts that the children are entitled to their “bubble of innocence”. The adult children too deny overt criticism of the father in the presence of the children. L maintains that she re-assures the children about the time that they spend with the father and never tries to change their point of view. I accept that they are generally well-intentioned about that, but the mother is sufficiently sensible to realise that the children may infer negativity about the father in the demeanour of her and the adult children. That she has the insight to appreciate that risk is in itself a guard against its occurrence.

6. The father submits that there is a danger that, with the passage of time, the relationships of the children with him will disintegrate, as did his relationships with the adult children. He correctly submits that the mother is alive to that risk. I accept his submission that the risk exists, but I am not satisfied that the risk is so pronounced that it ought be addressed by wrenching the children from the mother’s residence and placing them in the residence of the father.

7. The historical interaction of the parties, in conjunction with their mutual commitment to participation in the counselling proposed for the family by the Independent Children’s Lawyer, satisfies me that the risk identified by the father is satisfactorily marginalised.

8. I find that the father is also willing and able to facilitate a continuing relationship between the children and the mother, at least while the children remain living predominantly with the mother. The Family Consultant said that he thought that the father would do so.

9. I remain disturbed about the circumstances in which the father refused to return the children to the mother following the holiday visit in April 2008.  I accept that the father may have genuinely held concerns about the standard of living then being endured by the children in the mother’s household.  However, given that the parties’ circumstances were then governed by final parenting orders made in July 2004, the father’s dissatisfaction with the children’s circumstances ought properly have been addressed by him by filing an Application with the Court seeking varied orders in an orderly way.  Instead, he employed a self-help remedy.  I am drawn to the conclusion that he perpetrated a deception upon the mother by reaching a written agreement with her at mediation on 10 April 2008 to return the children to her on 19 April 2008, when he either then had no such intention, or changed his mind so quickly that his failure to tell the mother of his change of mind was deceitful. 

10. The father’s strategic plan entailed obtaining advice from a solicitor about filing an Application seeking varied parenting orders, and making that event coincide with his deliberate retention of the children.  He secreted the children at a secluded rural location and it was only by good fortune that the mother was able to locate their whereabouts.

11. The circumstances of that event leave me with a sense of disquiet about the father’s commitment to a continuing relationship between the children and the mother, should the children live predominantly in his household.

Section 60CC(3)(d)

1. If orders are made in accordance with those proposed by the father, shifting the residence of the children from the mother to the father, there would be substantial short-term disruption for the children. The father concedes that to be so.

2. The father’s case is that the mid to long term interests of the children are better served by the children living with him, which justifies the short-term disruption and distress for the children. I do not accept the father’s submission.

3. If the children remain living with the mother, the evidence leads me to find on the balance of probabilities that they will continue to enjoy healthy relationships with the mother, father, and adult children. Those healthy relationships have endured already for many years since separation under the current parenting arrangements.

1. If the children are moved to the residence of the father, the evidence leads me to find on the balance of probabilities that the quality of the relationships between the children and the adult children will inevitably be impaired. That outcome ought be avoided.

2. There is also a risk that the relationship between the children and the mother would suffer by reason of residential separation from her, despite probable efforts by the mother to avoid impairment of the relationship. The Family Consultant said that separation of the children from their primary carer would bring adverse repercussions for them.

3. The children have never lived in a household without the mother in all their lives. They have never lived with the father alone for any more than a few weeks at a time, and then only infrequently. Immersion of the children in new residential circumstances at K would entail a change of schools, different extra-curricular activities at different organisations, and new friendship groups. The separation of the children from the mother would likely be felt by them acutely, and not just ephemerally.  

Section 60CC(3)(e)

1. On 12 May 2009, the mother was granted a tenancy by the New South Wales Department of Housing over residential premises situated in a suburb of Newcastle, New South Wales.  Her residential security is now assured.

2. In recent years, the father and his wife have travelled extensively throughout New South Wales and Queensland.  They were resident in south-east Queensland from 2007 until May 2009, at which time they moved to K, which is a regional town located about one hours drive from Newcastle.

3. The evidence of the father and his wife is that they have now reached a decision to live in the K district permanently.  There is some room for circumspection about that, given the terms of a letter written to the mother by the father on 9 June 2009.  In that letter the father informed the mother that he had “decided to stay in the Newcastle area at least up to the next school holidays”, and further, that he would like to see the children on weekends until he and his wife “leave the area”. The conclusion is inescapable that, at the time that letter was written only months ago, it was the intention of the father to depart the K area within the near future.

4. The evidence of the father’s wife was that their intention to live permanently in K was formed after the time at which that letter was written to the mother.

5. Although the father and his wife continue to live in a vehicle parked in the yard at a residential property in K inhabited by another family, the father asserts that a rental property has been offered to him in the K area, which will become available to him in either December 2009 or January 2010.

6. Assuming that the father and his wife do remain living permanently in K, there will be no practical difficulty or expense incurred in the children spending time in the households of the parties.  Both parties have access to a motor vehicle to implement changeovers.  The changeovers are currently implemented by the father collecting the children from and returning the children to a location in the suburb in which the mother lives. 

7. The mother has indicated that she is prepared to do more of the travelling and either meet the father at a point equidistant between the two households, or alternatively, share the travelling between their respective households with their households being the changeover points.

8. I remain uncertain about the permanency of the father’s residence in the K district. I do not conclude that the father and his wife are being untruthful about their present intention to remain resident in K, but I remain unconvinced that they will stay. Such is the recency of their decision to remain in K, and such is their commitment to their religious work, that they may wish to return to their roving ways. If the children are to live with the father, that eventuality would create a real difficulty because the father would then be torn between commitment to his life’s cause in religious preaching and commitment to the continuity of a meaningful relationship between the children and the mother. The maintenance of such a relationship between the children and the mother would be all but impossible if the father were to be free to roam with them at his whim.

Section 60CC(3)(f)

1. Despite the evidence about her past difficulties, there is no direct suggestion that the mother is currently unable to provide for the physical needs of the children.  She is in stable accommodation and is now self-employed in another business, which she commenced in June 2009. The father has faintly suggested that the mother does not properly address the children’s nutritional needs, but that issue was not the subject of any cross-examination or submission and I pay it little heed. I find that the mother can meet the children’s physical needs.

2. There is no suggestion that the mother is unable to cater to the emotional needs of the children. I find that she can.

3. The father does, however, criticise the capacity of the mother to provide for the children’s intellectual needs.  The evidence permits a finding that the children’s academic progress has not been afforded the attention by the mother that it deserves. There has been some absenteeism from school and a lack of diligence in attendance to homework tasks in respect of both children.  The mother’s attitude to the children’s completion of homework can properly be described as cavalier.  The children have each experienced academic difficulties from time to time and the evidence warrants mild criticism of the mother’s attitude to that situation. I accept that the father would likely bring a more diligent attitude to bear on that problem. That fact carries some, but not considerable, weight.

4. The ability of the father to provide for the children is untested.  His financial circumstances are a conundrum. Neither he, nor his wife, is gainfully employed.  They do not receive a wage or PAYG certificates, nor are they in receipt of any Centrelink benefits.  The entirety of their income is derived from undisclosed proceeds of sale of religious items, “love offerings” from their church, and some undisclosed interest generated by the investment of some modest savings.  The evidence is silent as to whether that income is declared in totality to the Australian Taxation Office.

5. When asked directly, the father was simply unable to offer any estimate of his average monthly income. The father glibly asserted that the income received by he and his wife was sufficient to cover their costs because they had not incurred any debts.  He considered that if the need arose, both he and his wife could obtain gainful employment.  He described his wife as having skill as a chef and himself as having skill as a handyman.

6. The unchallenged evidence is that the father currently pays to the mother approximately $170 per month in total by way of child support. By any measure, that is a very modest contribution towards the financial cost of maintaining two boys broaching adolescence. One might have thought that the time for the father to generate greater income to assist in the support of the children had already arrived. The father must not accept that proposition. If he did then presumably he would already be utilising his other skills to earn more income.

7. Curiously, despite what must be very modest financial circumstances, the father proposes that he will enrol the children at a private school at K should the Court order that the children live with him.  He was aware that such enrolment would entail liability for significant fees, but did not anticipate encountering any difficulty in raising sufficient money to meet those fees.

8. I remain quite uncertain as to how the father would have the immediate wherewithal to provide for the physical needs of the children on a long term basis if they were to live with him. The father’s proposals about accommodation and education for the children were quite ethereal.

9. I am satisfied on the evidence that the father and his wife have the capacity to provide adequately for the intellectual needs of the children. Their capacity to provide for the emotional needs of the children is apparent, but complicated by the tension produced by their ardent religious views which are impressed upon the children.

Section 60CC(3)(g)

1. The children were born to the parties whilst they engaged in a relatively insular lifestyle at the religious Community.  The family left that community and moved to the northern coast district when the children were quite young.  The parties did, however, maintain their religious lifestyle.  The evidence, however, demands a finding that the father maintains a much more fervent commitment to his religious beliefs than the mother.  Although the mother retains her religious beliefs, in recent years the father has utterly devoted his life to religious pursuits.  He describes his lifestyle as one in which he travels the country engaged in religious activities.  He does so in the company of his wife, who is similarly committed to the cause.

2. Despite having been raised in a religious family, the children are not as devoted to religious pursuits as the father.  The mother reports the children as being embarrassed by their father’s fundamentalism.

3. The children have reported to the mother that the father forces them to hand out religious leaflets at shopping malls where the father plays music, sings and preaches to shoppers.  The vehicles which the father drives, and in which he lives, are emblazoned with religious names. Photographs of those vehicles are in evidence as Exhibit M1.

4. Those experiences of the children are corroborated by the evidence of L, who reports her experience as being that the father would preach to all and sundry, including the girls at Coles checkout points and strangers at movie theatres.

5. There is really no dispute about those facts. When cross-examined, the father acknowledged that he would preach to anyone, given an opportunity.  He recognised that young teenagers may be embarrassed by such behaviour, but he regarded it as more important for him to obey what he described as “the spirit of God” than for him to accommodate a child’s feelings of embarrassment.

6. The mother reports that the children’s anxiety has been elevated within the last 12 months with respect to the time that they spend with the father.  She cited an example of witnessing a nightmare experienced by one of the children in December 2008.  When she questioned the child she was told “Mum, we are scared to burn in hell. God does not love us and we are going to hell”. The children have been inculcated by the father with polarised religious beliefs.

7. The lifestyle of the father and his wife is one in which they are completely committed to their mutual religious cause.  They deem it their duty to draw to the attention of others the virtue of God and adherence to religious scripture.  They regard that duty as paramount in their lives.  It is now their life’s work.

8. I do not find that the father’s religious commitment is such that it excludes his commitment to the children, but I do find on the evidence that the father’s commitment to the children must be accommodated around his commitment to his religious cause.  That is perhaps best demonstrated by the father’s decision to move away from the children to Queensland for a period of years to pursue his religious teachings, which had the consequence of diminishing the amount of time spent by the children with him.

9. I accept the evidence that demonstrates that the children are embarrassed by the father’s zealotry and that they do not wish religion to be as significant a part of their lifestyle as it is with the father’s. The father and the children are differentiated by the level of their commitment to a religious lifestyle.

10. There is homogeneity in the religious lifestyles of the children, mother, L and E.

Section 60CC(3)(i)

1. Both parties love the children and are genuinely committed to their wellbeing.  To that extent, they each demonstrate an admirable attitude to the children and to the responsibilities of parenthood.

2. The father’s attitude to parenting, however, has on occasions been lamentably lacking in empathy. Numerous examples can be cited to demonstrate the point.

3. When L was aged only about 11 years, the father disclosed to her and a friend that he had had a sexual interlude with another boy whilst he was a young boy in Scotland. L was shocked and embarrassed by being told that story, particularly in the presence of a friend. The father was cross examined about that. He did not deny it. I accept the evidence of L.

4. In about September 2002, Z reported to the father in the presence of L that she was likely bisexual. Z alleges that the father responded to her with words to the effect of “Sleeping with girls is just like sleeping with animals. Why don’t you just sleep with an animal?” L remembers that the father referred to Z as an animal and a slut. The father was cross examined about that incident and, although he does not concede the precise words attributed to him, he agrees with the general tenor of the conversation that then occurred. I accept the evidence of Z and L.

5. Z was at that time raising with the father a very personal and sensitive subject. It is difficult to conceive a more sensitive subject for a child to raise with a parent than sexual preference. It ill-behoved the father to treat her so contemptuously.

6. The insensitivity of the father was compounded by reason of the fact that Z had formerly suffered from depression. The father conceded in cross examination that he was aware of her having suffered from that condition, even though he was ignorant of Z having inflicted cutting injuries upon herself as a consequence of that condition. Z says that that occurred whilst she lived with the family for a period in the religious Community. The mere fact that the father was ignorant of Z’s self-harm itself demonstrates a degree of disconnection from her.

7. Disconnection is also evident in the relationship between the father and E. In mid 2003 E attempted suicide. Whether it was a fact or not, E perceived that his father was emotionally distant from him. E says, and I accept, that the father spoke to him about that event only once and simply said words to the effect of “Rely on Jesus and do not let things get to you so much”. The father said in cross examination that he could not remember whether he said words to that effect to E. He said that he knew that E was depressed and he relied upon the mother to give him good counsel. In the face of what must have been E’s gravely emotional state, the father’s solution was rather facile and exemplifies a lack of empathy and parental support.

8. Those instances lead me to the conclusion that the father is not always capable of demonstrating a proper attitude to his children and to the responsibilities of parenthood.

9. Another feature of the case also calls into question the father’s demonstration of a proper attitude to the children and the responsibilities of parenthood. The father was disaffected by the plight of the mother at the time that he decided to detain the children in April 2008. By then, the children had been permanently resident with the mother rather than him for several years – at least 4 years on his evidence, and as many as 6 years on the evidence of the mother. Instead of detaining the children and thereby preventing their return to their accustomed home, it was open to the father to render some financial assistance to the mother, or help her find alternate accommodation, so as to stabilise her precarious financial situation and secure her household. He chose not to do that. Even though the father professed to be acting in the children’s best interests, instead of acting so as to preserve their stability, he did the exact opposite.

10. The father’s wife admitted in evidence that when they decided to retain the children in April 2008, they discussed that decision with the children. They told the children that they were consulting a solicitor to see what could be done about taking them from the mother. They expressly invited the children to write down their feelings, as that might help the judge decide what to do. As a result of that pressure, the children each wrote notes. The note written by J was in evidence as an annexure to the father’s affidavit. For reasons which were not explained, the note written by N was not adduced in evidence.

11. The note written by J invites an inference of undue influence. It is stilted and contrived. Allowing for grammatical errors, it is intended to read as follows:

    I wish to wake up with Dad and [Mrs Brody].

    I feel safe.

    I play games.

    I love them.

    We go swimming, bike riding.

    Because I have fun with them.

    From [J]

12. It is trite to observe that the involvement of the children in the dispute in that way reflects poorly upon the father and his wife. They were not demonstrating an appropriate attitude to the children, or to their responsibilities of parenthood, by involving the children in the conflict in that way.

13. The mother is not however free from criticism. The Family Consultant was of the view that each parent had improperly involved the children in the conflict between them. Each had discussed aspects of the case with the children at one time or another.

14. There was other evidence of the mother not demonstrating a proper parental attitude at all times. When she moved to her new home in May 2008 and enrolled the children at their new school she deliberately omitted to include the father’s contact details as the non-residential parent on the enrolment forms. That was clear from J’s enrolment form, which was tendered as Exhibit F1. She admitted that N’s was the same. That reflects poorly upon her.

15. The father submitted that the decision by the mother to permit the adult children to give evidence in her case against the father, even though she may not have actively solicited their support, lacked insight and was demonstrative of a poor attitude to the responsibilities of parenthood. The Family Consultant could not be drawn into agreement with that proposition. He was reluctant to agree that it showed a disregard by the mother for the relationships between the father and the adult children. He considered that due to those children being adults, with the capacity for independent thought and conduct, it was largely a decision for them. Arguably, the paradox of the father’s position was that the father and his wife prevailed upon Mrs Brody’s own child, Ms W, to give evidence in the proceedings. Although Ms W was not giving evidence against her own parent, she was still being drawn into litigation which did not concern her.

Section 60CC(3)(j)

1. I have already addressed the evidence concerning the existence of family violence when dealing with s 60CC(2)(b) of the Act. There is nothing to add.

Section 60CC(3)(k)

1. There is no family violence order in existence.

2. The only family violence order previously made was that already referred to, which was made against the father in favour of the mother and the children in the Local Court of NSW on 4 May 2004. It has expired.

Section 60CC(3)(l)

1. Making orders which largely reflect those proposed by the mother and Independent Children’s Lawyer will essentially preserve the status quo that has existed since the time of the parties’ separation many years ago.

2. The father submits that making such orders will, at some stage, inevitably lead to the breakdown in the relationship between the children and the father, which will stimulate further litigation. I have already found that there is a risk of that, but not a substantial risk.

3. I find that there is a greater chance of further litigation between the parties if I accede to the orders sought by the father and reverse a long-standing parenting regime against the wishes of the children and the mother, against the submissions of the Independent Children’s Lawyer, and contrary to the evidence of the Family Consultant.

Section 60CC(3)(m)

1. Permeating the father’s case was an ill-defined allegation of cannabis use by the mother. It was ill-defined because the evidence did not specifically address the period over which the drug use allegedly occurred, or how frequently it allegedly occurred. Those issues were left entirely to speculation, and ultimately, no submission was made about the relevance of the issue in any event.

2. There is no doubt that the evidence of the mother was found wanting in several respects.

3. She alleged in her affidavit not having used cannabis for over 20 years. However, in cross examination she admitted having used cannabis once in an isolated incident around Christmas in 2006. She was likely untruthful rather than mistaken in her affidavit.

4. The father adduced evidence from his wife’s daughter Ms W, who alleged that she had smoked cannabis in the mother’s household in 2007 together with the mother and D. Ms W adhered to her evidence in cross examination. The mother flatly denied that evidence, saying it was a fabrication. There was only one independent witness who could directly throw light on the controversy, and that was D. Curiously, he was not cross examined about the event by the father. L was not alleged to have been present at the time, but in her evidence she said that although she had taken cannabis of her own into the house, no-one had ever smoked cannabis in the mother’s house to her knowledge. I am unable to determine on the balance of probabilities whether the mother smoked cannabis on that occasion with Ms W and D, as alleged.

5. Interim parenting orders were made by the Court on 20 August 2008. Order 3 required the mother to undertake two urinalysis tests within three months at the request of the Independent Children’s Lawyer. She complied with the first request, which test was negative. However, she delayed compliance with the second request for some months. The fact that the second test also proved negative is hardly convincing when she deliberately delayed compliance in the face of pressure. There is even a chance that she did undergo the second test at an earlier time but did not rely upon the result, perhaps because it proved positive. The mother denies that. She also offers up excuses for her delayed compliance, but they were unconvincing. The correspondence between the Independent Children’s Lawyer and the mother’s then solicitor, permitting such inferences, is in evidence as Exhibits ICL1 and ICL2.

6. Despite the unsatisfactory nature of the mother’s evidence, the highest inference properly arising from the evidence is that the mother has used cannabis intermittently whilst the children have been in her care. The subdued attempt to link the mother’s alleged cannabis use with her past financial woes, the untidy state of her past households, and her past evictions fails. That is pure conjecture. Even if the mother has used cannabis in recent years, there is no proper basis to find that it has precluded or impeded her proper care of the children.

PARENTAL RESPONSIBILITY

1. The mother and Independent Children’s Lawyer advocate for the allocation of parental responsibility for the children solely to the mother.

2. The father proposes allocation of equal shared parental responsibility in respect of the children. He has the support of the Family Consultant on that point.

3. By application of s 61DA(2) of the Act, the presumption of equal shared parental responsibility does not apply for two reasons.

4. Firstly, the father has perpetrated family violence, by virtue of his assault upon the mother. The father admits that occurred once. I do not need to make a finding whether it happened more often as the mother alleges.

5. Secondly, the father has abused his children on multiple occasions in the past by physically disciplining them with such force that they sustained injuries, which were more than transient. The father also concedes administering such discipline, although not perhaps the injuries.

6. Although the abuse occurred in the guise of parental discipline, the circumstances fall within the definition of “abuse” found within s 4 of the Act, which relevantly is:

   “An assault of the child which is an offence under a law, written or unwritten, in force in the State in which the act constituting the assault occurs”

7. The acts of abuse inflicted by the father upon his children from time to time occurred in New South Wales. It is an “assault” within New South Wales for a person to act in a way which intentionally or recklessly causes another person to apprehend immediate and unlawful violence (see Knight v R (1988) 35 A Crim R 314). The actual infliction of such violence in those circumstances is technically a “battery”, but ordinarily every “battery” includes an “assault”.

8. In New South Wales, since 5 December 2002, lawful correction of a child is a legitimate statutory defence to a charge of assault (s 61AA Crimes Act 1900 (NSW)). The circumstances that will permit reliance upon that defence are however restricted. The physical force applied to the child must be reasonable having regard to the age, health, and maturity of the child and also the nature of the alleged misbehaviour (s 61AA(1)(b)). Further, the application of physical force is not reasonable if it is applied in such a way to cause harm to the child that lasts for more than a short period (s 61AA(2)(b)).

9. Before the proclamation of that statutory provision, lawful correction applied at common law as a defence to assault. However, the common law similarly required the lawful correction to be reasonable in all of the circumstances before it was a legitimate defence (Halsbury’s Laws of Australia par 205-1780).

10. I am satisfied that the father inflicted punishment upon his children from time to time, which has involved his use of implements, and which resulted in bruises and welts being occasioned to the punished child. When that occurred, in all probability, it amounted to an assault which was not defensible on grounds of lawful correction. It was therefore “abuse” within the meaning of the Act. It is immaterial that the father genuinely believed that such punishment was excusable as legitimate discipline. By reference to an objective standard it was not.

11. Although the presumption of equal shared parental responsibility does not apply, that does not mean that such an order may not be made – it is just not made presumptively.

12. Although the presumption does not apply by reason of the existence of past family violence, that was not the reason behind the submissions made by the mother and Independent Children’s Lawyer for the allocation of parental responsibility solely to the mother. Their reason was the history of the parties’ alleged inability to communicate and co-operate about issues of significance to the children.

13. The father conceded to the Independent Children’s Lawyer that the parties had been unable to co-operate about the parenting of the children since the time of separation. He thought it unlikely that they could work harmoniously on issues of significance related to the children. He did not envisage that situation improving. He did not regard their prior counselling as a success.

14. Although those concessions were candidly made, they are hardly consistent with the manner in which the parties demonstrated a conciliatory attitude to one another about the children over the years between separation and the incident in April 2008. I consider that the parties can return to that co-operative position once the controversy and uncertainty of these proceedings is determined.

15. The Family Consultant recommends the allocation to the parties of equal shared parental responsibility for the children, which is the wish of the father. The Family Consultant was encouraged in that view when informed that the parties had mutually agreed to engage in the counselling at Unifam Counselling and Mediation proposed by the Independent Children’s Lawyer. The Family Consultant thought that the allocation of parental responsibility solely to the mother would bring with it the risk of the father ultimately drifting out of the children’s lives.

16. The Independent Children’s Lawyer submitted that the allocation of equal shared parental responsibility is an ideal rather than a practical solution in this case. I am not satisfied of that. I agree with the father’s counsel that there is a tangible risk of the father being marginalised in the lives of the children if the father has no say in major long-term issues affecting them.

17. I am not satisfied that the history of family violence in this case precludes the allocation of equal shared parental responsibility.

18. I am however satisfied that the fervour of the father’s religious beliefs render it desirable that the mother have sole parental responsibility in respect of the children’s religious instruction.

19. During submissions, for reasons of procedural fairness, I raised with the parties the prospect of parental responsibility being allocated on an equal shared basis, except in respect of the children’s religious instruction, which could be allocated solely to the mother. The Independent Children’s Lawyer argued against it. The mother did not address it, apart from generally adopting the position of the Independent Children’s Lawyer. Nor did the father address it as an alternative.

20. I am satisfied that parental responsibility ought be allocated to the parties on an equal shared basis, except in relation to religious instruction of the children, which should be allocated solely to the mother. I do not accept the arguments of the Independent Children’s Lawyer to the contrary.

21. The mother is not opposed to the children attending church services, prayer meetings, and fellowship events with the father. She will countenance a moderate religious upbringing for them. She is opposed to their participation in the father’s street witnessing and their subjection to the father’s uncompromising religious authoritarianism. The evidence satisfies me that the children are tired of that. I am uncertain as to whether the father recognises that fact, but even if he does, the father is unable to relax his views. They are too important to him.

LIVING ARRANGEMENTS

1. In this case it is neither in the best interests of the children, nor is it practicable, for the children to spend equal time living with each of the parents. Nor would it be in their interests, or practicable, for them to spend substantial and significant time with the non-residential parent. Apart from any other reason, the parents live too far apart for implementation of a regime of that sort. That is common ground. In addition, I remain uncertain whether the father will remain living in K on a long-term basis, for the reasons discussed earlier in this judgment.

2. Both parties and the Independent Children’s Lawyer advocate for an outcome where the children live predominantly with one parent and spend time with the non-residential parent on weekends and during school holidays. To that extent there is absolute consistency. Although the Court is not bound by the parties’ proposals, I concur that such an arrangement is in the children’s best interests.

3. With that in mind, the task becomes one of identifying the household that would serve the best interests of the children for the purposes of their primary residence.

4. The Family Consultant believes that the mother has a superior ability to promote a healthy balance between imposing consistent boundaries for the children and permitting them sufficient scope within which to explore their sense of self. The rigidity of the father’s religious beliefs, and his expectation of the children’s compliance with those beliefs, does not afford the children the same latitude allowed to them by the mother.

5. The Family Consultant held the view that the children should live predominantly with the mother. That is hardly surprising since, as the Independent Children’s Lawyer submitted, the father lacks parental experience as a primary carer.

6. I accept the submission of the mother’s counsel that the mother appears to have achieved a favourable parenting outcome with her adult children in the face of some quite trying circumstances. There is good reason to think that she will replicate that effort and outcome in raising the children.

7. I accept that the preponderance of evidence dictates that the children live with the mother.

8. The Family Consultant was furnished with Exhibit ICL7, being the Minute of Orders proposed by the Independent Children’s Lawyer. He was asked to read Orders 3-8 inclusive. Having done so, with one exception, he was in complete agreement about the appropriateness of those orders.

9. The exception was the amount of time to be spent by the children with the father in the Christmas school holidays. He was unconvinced that the children should spend as long as 14 consecutive days with the father. That was somewhat curious, given that he had previously recommended just that. In his Family Report it was recommended that the children spend a maximum of 14 nights with the father in end of year school vacation, although it must be said that the Family Consultant offered that recommendation at a time when he believed that the father resided principally in Queensland and extensive travel between households was a factor.

10. The father wants the children to spend time with him during the Christmas school holidays for half of those holidays, which would ordinarily amount to a period of approximately three weeks. On balance, I am satisfied that a period of 14 consecutive days is sufficient time for the children with the father during that vacation period. That is long enough for the father to take a holiday away with the children to some destination, and not so long that the children are exposed to the father’s religious zeal for too prolonged a period, which may exacerbate any sense of reluctance they experience about spending extended periods with the father.

EXPLANATION OF ORDERS

1. The first eleven orders that I have made reflect Orders 1-8, 10-11, and 26 of those proposed in Exhibit ICL7. They are merely expressed in different grammatical terms and in a different format, which I regard as preferable.

2. The orders contemplate that the father will maintain a residence within 100 kilometres of the mother’s residence, but provide for the possibility of the father living a greater distance from the mother’s residence. The separation of the parties’ respective households by more or less than that distance dictates whether or not the children spend time with the father on weekends during school terms. That range is arbitrary, but it is the range uniformly adopted in these proceedings by both the parties and the Independent Children’s Lawyer as representative of the distance which properly affects whether it is feasible for the children to spend time on weekends with the non-residential parent. It is also the range that was previously adopted by the parties when they made final parenting orders in July 2004.

3. Although not sought by the Independent Children’s Lawyer or either party, I have made an order restraining the parties from inflicting corporal punishment upon the children. I am satisfied on the evidence that such an order is warranted, and that it is proper to make such an order.

4. I have not made Order 9 sought by the parties and Independent Children’s Lawyer. I have replaced it with a like order, which is more readily capable of enforcement.

5. I have not made Orders 15 and 17 sought by the parties and Independent Children’s Lawyer, because I have not made an order allocating parental responsibility solely to the mother. I have made other orders that impose obligations and grant entitlements of a like kind.

6. Subject to grammatical changes, the remaining substantive orders that I have made are a simple adoption of the remaining Orders proposed in Exhibit ICL7, all of which are consensual as between the parties and Independent Children’s Lawyer.

I certify that the preceding two hundred and twenty-eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  22 October 2009