CAMARO & CAMARO

[2012] FamCA 1068

FAMILY COURT OF AUSTRALIA

CAMARO & CAMARO [2012] FamCA 1068

FAMILY LAW – CHILDREN – Family Violence – where the father had a history of threatening the mother with the death and physical harm of her and the children – where there was no finding of actual physical violence – where injunctions were ordered for the protection of the mother against the father

FAMILY LAW – CHILDREN – With whom the children live – where the children live with the mother, with whom they have close and meaningful relationships – where the mother demonstrated an ability to meet the children’s needs – where the mother had made efforts to facilitate the relationships between the children and the father despite her fear of him

FAMILY LAW – CHILDREN – With whom the children spend time – where children spend time with the father under a graduating regime, initially supervised by the paternal grandparents and culminating in substantial and significant time – where a period of supervision was required to repair the children’s relationships with the father

FAMILY LAW – CHILDREN – Parental Responsibility – where the mother has sole parental responsibility – where the presumption of equal shared parental responsibility does not apply due to the family violence perpetrated by the father against the mother – where the parents proven inability to communicate with each other necessitated the parent with whom the children reside being allocated sole parental responsibility

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 62B, 64B, 65D, 65AA, 65DAA, 65DAC, 65DAE and 68B

Goode & Goode (2006) FLC 93-286
Ghazal v GIO (NSW) (1992) 29 NSWLR 336
Johnson & Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Camaro

RESPONDENT: Mr Camaro

FILE NUMBER: SYC 29 of 2011

DATE DELIVERED: 19 December 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 3, 4 & 5 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D. Morton

SOLICITOR FOR THE APPLICANT: Morton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr A. Givney

SOLICITOR FOR THE RESPONDENT: Kazi Portolesi Lawyers

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)J, born … August 2009;

   (b)M, born … September 2010; and

   (c)R, born …September 2010.

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

3. The children shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, unless otherwise agreed:

   (a)Until 31 March 2013:

   (i)From 10.00 am until 12.00 noon each Saturday and Wednesday, supervised by either the paternal grandmother or paternal grandfather at the home of the paternal grandparents; and

   (ii)From 2.00 pm until 6.00 pm on Christmas Day, supervised by either the paternal grandmother or paternal grandfather at the home of the paternal grandparents.

   (b)From 1 April 2013 until 30 September 2013:

   (i)From 9.00 am until 1.00 pm each Saturday;

   (ii)From 3.00 pm until 5.00 pm each Wednesday; and

   (iii)From 9.00 am until 1.00 pm on Father’s Day.

   (c)From 1 October 2013 until 30 September 2014:

   (i)From 9.00 am to 5.00 pm each Saturday;

   (ii)From 3.00 pm until 6.00 pm each Wednesday;

   (iii)From 9.00 am  until 5.00 pm on Father’s Day; and

   (iv)From 2.00 pm until 6.00 pm on Christmas Day.

   (d)Thereafter:

   (i)During NSW public school terms:

   (A)Each alternate weekend from the conclusion of school on Friday (or 3.00 pm, whichever is the latter) until 6.00 pm on Sunday, commencing on the first Friday of each school term; and

   (B)Each Wednesday from the conclusion of school (or 3.00 pm, whichever is the latter) until 6.00 pm.

   (ii)During NSW public school holidays at the end of terms 1, 2 and 3, for the first half of the holidays in every even numbered year and for the second half of the holidays in every odd numbered year; and

   (iii)During NSW public school holidays at the end of term 4, for the first half of the holidays when the holidays commence in an even numbered year and for the second half of the holidays when the holidays commence in an odd numbered year.

5. For the purposes of implementation of Order 4(d) hereof, the NSW public school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 6.00 pm on the last day preceding the day upon which the children are due to return to school, and the mid point is noon on the day halfway between those first and last days.

6. Order 4(d) is suspended during the following periods:

   (a)From 2.00 pm on Christmas Eve until 2.00 pm on Boxing Day in 2014 and each year thereafter, during which period the children will spend time with the father from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day, and with the mother from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and

   (b)From 6.00 pm Saturday and for the remainder of each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on that part of the Mother’s Day weekend and with the father on that part of the Father’s Day weekend.

7. Unless otherwise agreed, for the purposes of implementing Order 4(a) hereof, the mother shall cause the delivery of the children to the father at the home of the paternal grandparents at the commencement of their time with the father and the father and at least one paternal grandparent shall cause the delivery of the children to the mother or her nominee at the home of the maternal grandparents at the conclusion of their time with the father.

8. Unless otherwise agreed, for the purposes of implementing Orders 4(b) and 4(c) hereof, the father shall collect the children from and return the children to the mother or her nominee at the home of the maternal grandparents at the commencement and conclusion of the children’s time with him.

9. Unless otherwise agreed, for the purposes of implementing Orders 4(d) and 6 hereof:

   (a)The father shall collect the children from school whenever the children are to begin spending time with him from the conclusion of school;

   (b)The mother shall cause the delivery of the children to the father at the home of the paternal grandparents at the commencement of their time with the father, whenever that begins at a time other than the conclusion of school; and

   (c)The father shall cause the delivery of the children to the mother or her nominee at the home of the maternal grandparents at the conclusion of their time with the father.

10. Unless otherwise agreed, from 1 October 2014, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

    (a)The father each Wednesday when the children are living with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.

    (b)The mother each Tuesday and Thursday when the children are spending time with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

    (c)The parent with whom they are not then staying, on the children’s birthdays, between 6.00 pm and 6.30 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.

11. Pursuant to s 68B of the Family Law Act, the father is restrained from:

    (a)Entering upon or approaching within 100 metres of the mother’s place of residence, without the mother’s express written permission;

    (b)Entering upon the mother’s place of employment, without the mother’s express written permission; and

    (c)Assaulting, intimidating, stalking, molesting, harassing, threatening, or otherwise interfering with the mother.

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

13. 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.

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

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Camaro & Camaro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 29 of 2011

Ms Camaro

Applicant

And

Mr Camaro

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to these proceedings have a profound dislike of one another, which appears to have intensified rather than abated since their separation two years ago. The chance of their three very young vulnerable children receiving cooperative care from them has all but been foreclosed.

2. Regrettably, the parties’ conflict appears to have permeated the professional relationship of their respective solicitors, which made the prospect of compromise even more elusive for the parties. Their fixation on largely irrelevant factual disputes only served to inflame the controversy.

3. Having litigated their property settlement dispute to finality some months ago,[1] the parties conducted this trial to determine the final parenting arrangements for their children. They disagreed about the allocation of parental responsibility and the amount of time to be spent by the children with the father.

   [1] Camaro & Camaro [2012] FamCA 735

Background

1. As was found in the earlier trial:[2]

   The parties married and commenced cohabitation in May 2004.

   Three children were born during the parties’ marriage – the eldest in August 2009 and the twins in September 2010.

   The parties finally separated on 19 November 2010, when the twins were barely two months of age, and the children have lived with the mother since separation.

   [2] Camaro & Camaro [2012] FamCA 735 at [1]-[3]

2. The eldest child is now three years of age and the twins two years of age.

3. Following the parties’ separation in November 2010, the mother took the children to live at the maternal grandparent’s home.[3] The children spent no time with the father for some months after separation, which was the subject of correspondence between the parties’ lawyers.[4]

   [3] Mother’s affidavit, para 49

   [4] Mother’s affidavit, paras 51-53

4. These proceedings were commenced in January 2011 and on 1 February 2011 the first set of interim orders were made. Relevantly, they related to only the eldest child and provided for him to spend time with the father for a number of hours several times each week.

5. The twins, who were then still newborns, were too young to be separated from the mother. However, the Court noted that it was the parties’ intention for the twins to spend up to 30 minutes with the father on occasions when the father returned the eldest child to the mother.

6. On 21 April 2011 those orders were discharged and replaced with fresh orders providing for all three children to spend time with the father for three hours once per week, upon condition that such time be spent in the presence of the paternal grandmother at her home. The mother was ordered to deliver and collect the children to and from the paternal grandparents’ home to enable implementation of the orders.

7. Another set of fresh orders was made on 16 May 2011, making different arrangements for the eldest child and the twins about their expenditure of time with the father. The eldest child was to spend each Saturday with the father and the twins would accompany them for only two hours that day. On another midweek occasion, all three children would spend time with the father for 90 minutes. The twin’s interaction with the father was conditional upon it occurring at the home and in the company of the paternal grandmother, whereas the father and the eldest child only needed to be in the vicinity of the paternal grandmother’s home.

8. By late October 2011, the mother was sufficiently satisfied with the success of the arrangement that she volunteered to expand the amount of time spent by the twins with the father, so that all three children spent the same amount of time with him.[5] The father agreed and that arrangement applied from about mid November 2011.[6]

   [5] Mother’s affidavit, paras 102-103

   [6] Mother’s affidavit, para 104

9. Only a month later in mid December 2011 the mother offered the father even more time with the children, subject to his collection and return of them at the maternal grandparent’s home, to which the husband acceded.[7]

   [7] Mother’s affidavit, paras 106-107

10. Although the parties still indulged in petty squabbles,[8] their agreement about parenting arrangements held sway until an incident occurred between them on Saturday 14 April 2012.[9]

    [8] Mother’s affidavit, paras 108-119

    [9] Family Report, para 9

11. The parties’ versions of what occurred between them on that day are irreconcilable and the disparity in their evidence is not explicable by honest mistake. One of them lied. The mother alleged the father threatened the lives of her, the children, and himself, which the father flatly refuted.

12. In any event, the mother determined that the children would not spend any more time with the father once they were returned to her by the father later that day. The children have not spent any time with the father since that incident.[10] Although the existing orders made in May 2011 continue to prevail, they have been deliberately flouted because the mother alleged she feared the father would fulfil his threats.[11]

    [10] Mother’s affidavit, para 131; Father’s affidavit, para 198

    [11] Mother’s affidavit, para 142

13. The mother was only prepared to countenance the children’s re-introduction to the father under supervised conditions. She recently offered use of a contact centre to the father, but that offer was rebuffed.[12]

    [12] Mother’s affidavit, paras 132-134

Proposal and primary evidence of the mother

1. The mother abandoned the orders set out within her Further Amended Initiating Application filed on 8 October 2012 and instead sought the orders comprised in a tendered minute.[13]

   [13] Exhibit M3

2. The mother proposed that the children live with her and that she have sole parental responsibility for them. She proposed that the children spend time with the father under a gradually expanding regime, culminating in alternate weekends, several hours on one evening in the intervening weeks, and for weekly periods in school holidays.

3. In support of her position the mother relied upon her affidavit filed on 20 November 2012.

Proposal and primary evidence of the father

1. The father abandoned the orders set out within his Amended Response filed on 25 October 2012. He instead sought the orders comprised in a tendered minute.[14]

   [14] Exhibit F4

2. The father proposed that the parties have equal shared parental responsibility for the children. He also proposed that the children live predominantly with the mother, but that they live with him under an expanding arrangement, which culminated in the children living with the parties for equal time several years hence.

3. The father relied upon his affidavit filed on 23 November 2012.

Additional evidence

1. The Family Consultant provided evidence through the medium of her affidavit sworn on 5 December 2011 and her Family Report dated 27 September 2012.

2. She adopted and elaborated upon the contents of those documents during her cross-examination.

3. Her evidence was generally persuasive because it was logical and reasoned.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“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). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and 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 presumption applies to the allocation of parental responsibility and not to 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 both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (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 and MRR v GR (2010) 240 CLR 461.

Best interests of the children – primary considerations

Section 60CC(2)(a)

1. There was no dispute that the children are primarily attached to the mother.[15] Their relationships with her cannot safely be disturbed and it was not suggested that they should.

   [15] Family Report, paras 43-44, 59

2. Although there was no dispute that the children also have meaningful relationships with the father, there was a difference of opinion about the disparate quality of those relationships.

3. The evidence proved that the children’s relationships with the father are presently less meaningful to them than their respective relationships with the mother, and further, that there are qualitative variations between the children’s relationships with the father.[16] The eldest child is seemingly more strongly bonded with the father than the male twin, who in turn is seemingly more strongly bonded with the father than the female twin.[17]

   [16] Family Report, para 45

   [17] Family Report, paras 46-47, 49-52, 61

4. As the Family Consultant correctly observed, a decisive feature of the case is the manner in which the children may rejuvenate their relationships with the father in circumstances where their developing attachments to him were disrupted in April 2012.[18]

   [18] Family Report, paras 58, 60, 61

5. The competing proposals of the parties, both of which entailed the children spending gradually expanding amounts of time with the father, recognised that they will derive benefit from their relationships with him. The mother expressly conceded in cross-examination that it is important for the children to have relationships with the father. It therefore follows that orders must be made which enable reparation of those relationships.

6. As the Family Consultant also correctly observed, one key aspect of how orders are fashioned to safely achieve that objective depends upon findings about the allegations of family violence made by the mother against the father,[19] to which it is now necessary to turn.

   [19] Family Report, paras 53-56

Section 60CC(2)(b)

1. Having heard and carefully watched the parties give oral evidence about the critical incident on 14 April 2012, I find the following facts on the balance of probabilities.

2. On 7 April 2012 the mother asked the father if he would collect the children from her one hour later on the following Saturday, but the father did not consent,[20] so the mother decided to deliver the children to the father an hour late the following Saturday notwithstanding his refusal.

   [20] Mother’s affidavit, para 119

3. On Saturday 14 April 2012 the father attended the maternal grandparent’s home at 9.00 am to collect the children as usual. The mother was then still at her own home with the children, not intending to exchange the children with the father at the maternal grandparent’s home until 10.00 am.

4. The father grew impatient. He sent text messages to the mother to inform her of his readiness to collect the children, which went unanswered, so he drove to her home.[21] He remained in the residential complex car park and did not go to the mother’s front door because of an existing injunction precluding him from “attending upon [her] residence”.[22] The father had never before driven to the mother’s home after that injunction was made, so his decision to do so that day was evidence of his burgeoning frustration with the mother. He knew she had defied his stated desire the week before to collect the children on time.

   [21] Father’s affidavit, para 196

   [22] Order 2 made on 22 August 2011

5. The mother declined to exchange the children with the father at her home because of her fear of him, so she drove the children in her car to the maternal grandparent’s home.[23] The father drove his car back to their home also.

   [23] Mother’s affidavit, paras 121-122

6. Once back at the maternal grandparent’s home, in the process of moving the children from the mother’s car to the father’s car, the parties had the following conversation:[24]

   Father: Just to let you know, I got my gun licence back.

   Mother: Are you threatening me?

   Father: I’m just letting you know that I do recreational hunting and I’m gonna get you all.

   [24] Mother’s affidavit, para 123

7. The mother was concerned by what the father had just said, but frightened about what may happen if she tried to remove the children from him, so she did not attempt to do so.[25]

   [25] Mother’s affidavit, para 124

8. After the children were safely secured within the father’s car the parties had further conversation to the following effect:[26]

   Mother: Have the children back by 5.30 pm.

   Father: You bring that up at Court when we go back and remember I have a shot gun and nothing to lose.

   [26] Mother’s affidavit, para 125

9. After the father departed the property with the children the mother went inside and spoke with the maternal grandfather. He informed her that the father had earlier that morning said to him when he first arrived at the property:[27]

   Father: I have nothing to lose. I’ll put a single bullet in my head but not before putting one in [the mother’s] and the children.

   [27] Mother’s affidavit, para 126

10. The version of events given by the maternal grandfather to the police a short time later is at slight variance with the mother’s version,[28] but the variance is not significant. On the contrary, it implies they did not conspire to concoct an identical story. There is also a slight variation between the version to which the mother deposed in her affidavit and the contents of her contemporaneous police statement,[29] but again that is no reason to impute dishonesty on her part. Such variation suggests that she has avoided merely recounting a rehearsed story.

    [28] Mother’s affidavit, Annexure J (para 8)

    [29] Mother’s affidavit, Annexure K (paras 9-12)

11. The mother telephoned the police some time after the father’s departure, but the formal statements made by her and the maternal grandfather to police were given about two days later.[30]

    [30] Mother’s affidavit, para 128

12. In addition to telephoning the police after the father’s departure, the mother also contacted the paternal grandmother and paternal aunt to inform them of what had occurred and her fears about the father.[31] They both offered her re-assurance. The father returned the children to the mother later that day.[32]

    [31] Mother’s affidavit, para 127

    [32] Father’s affidavit, para 197

13. Following the mother’s complaint to police, the father was charged with an offence and a provisional family violence order was also taken out against him for the protection of the mother and children.[33]

    [33] Mother’s affidavit, paras 129-130; Father’s affidavit, para 206

14. It was an agreed fact that the prosecution of those proceedings against the father began before the Local Court of NSW in November 2012 and were adjourned part-heard until March 2013. The father is defending both the criminal charge and the family violence proceedings, although he has apparently not yet given evidence in those parallel proceedings.

15. The father denied to the Family Consultant, and also in evidence before this Court, that he has ever behaved in an abusive or intimidating manner towards the mother, or that he had ever threatened her or the children with harm.[34]

    [34] Family Report, para 23

16. I do not accept the father’s denials.

17. The father’s own evidence in relation to the events of 14 April 2012 proved his mendacity. It is a known fact that the father’s firearms licence expired in 2007,[35] yet he admitted to police upon his arrest that he had told the mother he had his firearm licence back.[36] In the truncated version of the incident to which he deposed in his affidavit,[37] the father did not deny making such an admission to the police, in which case it follows that he lied in two respects. He lied to the mother by telling her he had his firearms licence back when he did not, and he lied in evidence and also to the Family Consultant when he denied having said such a thing to the mother.

    [35] Father’s affidavit, Annexure M (page 77)

    [36] Father’s affidavit, Annexure N (page 84)

    [37] Father’s affidavit, paras 196-198

18. The father sought leave to adduce oral evidence to supplement the deficient evidence in his affidavit, but leave was refused. He was content for these proceedings to progress to final hearing and did not seek refuge in his privilege against self-incrimination, notwithstanding the incomplete state of the parallel criminal prosecution. He had plenty of time to contemplate and marshal his evidence. His affidavit was filed many months after the incident in April 2012 and only weeks before the trial began. His voluntary evidence about that incident was given in full knowledge of the contrary version given by both the mother and maternal grandfather, because he had been served with their police statements many months before as part of the prosecution process. He was therefore able to provide a more comprehensive version of the incident in his affidavit refuting the version of the mother and maternal grandfather had he wished to do so.

19. The mother was faintly criticised for not calling the paternal aunt as a corroborative witness. I reject any inferential suggestion that the mother’s evidence lacks veracity for such failure. Given the probable alignment of interests of the paternal grandmother and paternal aunt with the father, due to their familial relationships with him, no adverse inference arises against the mother (see Ghazal v GIO (NSW) (1992) 29 NSWLR 336 at 343).

20. Furthermore, given the mother’s evidence that she contacted them both on 14 April 2012 to inform them of the father’s threats and her fears, a much greater expectation arises that the father would have sought to call them as witnesses to refute the mother’s evidence. He did not do so and offered no explanation as to why. Their evidence was potentially important because, having regard to the mother’s version of the incident, they could have either corroborated or refuted her contemporaneous complaint to them about the father’s conduct. Even though the mother did not submit for an inference to be drawn that neither the paternal grandmother nor paternal aunt could have offered evidence to assist the father’s case (see Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321), the inference is available and I draw it.

21. The mother was also criticised for not calling the maternal grandfather as a corroborative witness, but I also reject that criticism. It was an agreed fact that the maternal grandfather gave evidence and submitted to cross-examination in the parallel criminal and family violence proceedings conducted in the NSW Local Court only the week before, just prior to his then immediate departure overseas on business.

22. The evidence established that the father telephoned both the police[38] and his solicitor[39] numerous times throughout the day on 14 April 2012, but that evidence did not assist the father. Certainly, no submission was made about how that evidence could be rationally construed in a way which corroborated the father’s version of events, even though that was seemingly the reason for the telephone records to be tendered. There is no evidence at all about the content of the conversations that transpired between the father and the police.

    [38] Exhibit F2

    [39] Exhibit F3

23. The mother’s report to police about the father’s homicidal and suicidal threats would likely have caused the police to contact the father as part of their inquiry. The telephone records tendered by the father only disclose the outgoing telephone calls made by him, not those that he received. He could have been simply responding to earlier calls made by police to him.

24. Alternatively, if it is to be assumed that the father initiated all of those telephone calls to the police and his solicitor, one may curiously wonder why. Perhaps it was because he was aware the threats he made to the mother were serious and his motivation was to establish first contact with police to refute any allegations in advance and to forewarn his solicitor of potential trouble. If the father’s evidence is to be accepted, apart from the mother’s lateness by an hour, his collection of the children from the mother on that day was utterly unremarkable and there would have been no obvious reason to call the police or his solicitor. The mother’s lateness, even by up to an hour, could surely not be a rational explanation for his need to contact the police on four occasions up until after 8.00 pm that night, or his solicitor on a weekend on four occasions up until nearly 6.00 pm, particularly given his return of the children to the mother by 5.15 pm.[40]

    [40] Father’s affidavit, para 197

25. It is unnecessary to speculate about the father’s motivation because there is no evidence from which to draw any reliable inference. It only need be observed that the father failed to offer any explanation for why he called the police or his solicitor on so many occasions and what he discussed with each of them.

26. The father’s abominable behaviour towards the mother on 14 April 2012 was entirely consistent with both his agitation at her disobedience of his instruction to have the children ready for collection on time and the appalling manner in which he has treated her in the past.

27. I accept that the father has threatened the mother numerous times in the past, including with threats of death and physical violence.[41]

    [41] Mother’s affidavit, paras 21, 26, 30, 66.7

28. I also accept that the father’s treatment of the mother has been characteristically disrespectful.[42]

    [42] Mother’s affidavit, paras 22-23, 29, 32-35, 48, 50, 112

29. The father’s conduct undoubtedly amounted to “family violence” as defined in the Act. The threats he made to her, and to others about her, both on 14 April 2012 and on prior occasions, reasonably caused the mother to be fearful and apprehensive about the safety of both the children and herself.[43] The father’s threats were obviously calculated to induce that reaction. There was no other conceivable reason for them to have been made.

    [43] Family Report, para 29

30. Although the mother remains troubled by the father’s past intimidation, she has not buckled to it. She has not deviated from her objective of ensuring a fair adjustment of their property interests and appropriate parenting orders for their children. The realisation appeared to have finally dawned upon the father that the mother will no longer be cowered by his threats and that she has exposed him for the shameful bully he is. It can only be hoped that such realisation will engender an understanding in him that the mother must in future be treated with the dignity and respect she deserves.

31. Notwithstanding the heinous nature of the father’s historical threats, none have actually been attempted or fulfilled. While the risk of the father acting on such threats remains, qualitative evaluation of the existing risk essentially depends upon two factors: the likelihood of the father acting as threatened and the passage of time since the threats were made. I am drawn to the conclusion that the father employs threats to coerce the mother without harbouring any real intention to act as he says. In any event, the risk of him acting as threatened continues to recede with the passage of time.

32. I am not currently satisfied that the risk of the father acting on his homicidal and suicidal threats is unacceptably high. The mother’s conduct demonstrated that she seemingly reached the same conclusion. Regardless of the father’s antecedent threats, in February 2012 the mother filed an Amended Application proposing that the children eventually spend unsupervised time with the father each alternate weekend and for portions of school holidays.[44] It was only the incident in April 2012 that led her to sever the children’s interaction with the father and file another Amended Application proposing that the children only spend supervised time with the father for a test period of six months.[45] However, by the conclusion of the trial she proposed that, subject to an initial period of supervision, the children spend unsupervised time with the father under an expanding regime, eventually reaching alternate weekends and portions of school holidays.

    [44] Family Report, para 11

    [45] Family Report, para 12

33. Despite my acceptance of the mother’s evidence about the father’s past tyrannical treatment of her, I baulk at making positive findings about the father’s alleged physical violence towards her. To prove her physical abuse by the father on the balance of probabilities the mother must do more than merely depose obliquely in an otherwise lengthy and comprehensive affidavit:[46]

    Often when [the father] arrived home he would beat me

    Our relationship continued to be marred by beatings

    On occasions…[the father] has hit or slapped me

    [46] Mother’s affidavit, paras 20, 23, 44

34. The mother also deposed to the eldest child reporting to her in mid 2011 that the father struck the twins.[47] That evidence was not raised in cross-examination with either party and was not the subject of any submission. It was only months afterwards in October 2011 that the mother voluntarily suggested that the children spend more time with the father. In such circumstances, I presume that the mother did not and does not contend the children are at risk of physical abuse by the father by reason only of that revelation by the eldest child.

    [47] Mother’s affidavit, para 92

Best interests of the children – additional considerations

1. The parties have been intent on winning arguments with one another rather than resolving their differences, which betrays their impaired attitudes to the children and the responsibilities of parenthood.

2. The father told the Family Consultant he could think of nothing he has done or said that could account for the inter-personal conflict between the parties.[48] I suspect the father was disingenuous when he said that, but even if he was being honest it is a staggering example of his lack of insight into how his belligerent behaviour has intimidated the mother.

   [48] Family Report, para 22

3. The father reported to the Family Consultant his belief that the mother was deliberately thwarting his relationships with the children,[49] but I do not accept the validity of his perception, which is inconsistent with uncontroversial facts.

   [49] Family Report, para 24

4. For example, the mother volunteered on several occasions in late 2011 to expand the time spent by the children with the father beyond the constraints of the existing interim orders, which offers the father gratefully accepted. She also offered him extra time with the children to make up for time he had earlier lost with them, which offers were also accepted by the father, albeit not so gratefully.[50] Later, following the critical incident in April 2012, independently of the father, the mother also supported the children’s relationships with other members of the paternal family.[51] The Family Consultant also reported how the mother spoke positively of several members of the paternal family, including the paternal grandparents. When the children exhibited reluctance to engage with the father at the consultation with the Family Consultant in September 2012 the mother offered them encouragement and reassurance.[52]

   [50] Exhibits M1, M2

   [51] Family Report, para 38

   [52] Family Report, para 48, 50

5. The mother mentioned a host of concerns about the standard of the father’s care of the children, including her perception that he does not feed them properly, does not treat them equally, is insufficiently experienced to look after them together, and her fear he might introduce them to his “inappropriate” friends. I pay that evidence little or no heed. None of those concerns were apparently so worrying to preclude the mother from offering the father extra time with the children in late 2011. The mother also conceded in cross-examination that the children’s interests warranted an expanding regime of interaction with the father.

6. I am satisfied the parties each have the capacity to provide for the physical, intellectual and emotional needs of the children when they choose to exercise their parenting capacity to its fullest potential. Unfortunately, their pre-occupation with criticism of one another deflects their attention from the needs of the children.

Parenting orders

1. The presumption of equal shared parental responsibility does not apply because of the finding about the father’s perpetration of family violence (s 61DA(2)).

2. No aspect of the evidence suggests that it would be in the best interests of the children to nonetheless allocate equal shared parental responsibility. The parties are hopelessly estranged, which three simple examples serve to demonstrate.

3. The parties both follow the same religious faith and both highly regard their religious convictions. The mother arranged for the baptism of the twins without advising the father, so that he was excluded from that important religious family ceremony. The father was understandably annoyed.

4. The mother arranged for the children to attend a day-care centre for four days each week whilst she was in employment. She did not advise the father of their enrolment or the contact details of the centre. The father was ignorant of the children’s attendance at the centre, even though he may well have been available to care for the children or participate in activities at the centre.

5. One of the children has a genetic medical condition which requires surgical correction in the near future. The mother arranged his medical consultations and booked the surgery without conferring with the father. The first the father knew of the surgery was the mother’s written request for him to pay the uninsured gap cost of the surgery. Despite the father’s knowledge of the requirement for the surgery, despite his knowledge of its imminence, despite his willingness to contribute to the cost, and despite his concession that he should have responded to the mother without delay, the father admitted he had still not replied to the mother’s request. The father’s expression of willingness in the witness box to contribute to the cost of the surgery was the first the mother knew of it.

6. The Family Consultant was guarded in the Family Report about the advisability of allocating equal shared parental responsibility for the children to the parties, expressing “significant concerns” about their capacity to communicate effectively, and erring towards the allocation of sole parental responsibility.[53]

   [53] Family Report, paras 54, 66, 70

7. The Family Consultant endorsed that opinion in cross-examination. She observed that the parties had each participated in mediation and post-separation parenting programs, but neither perceived any improvement in their communication and both attributed blame to the other.[54]

   [54] Family Consultant’s affidavit, Assessment (page 5)

8. The father’s protestation to the Family Consultant that equal shared parental responsibility was “entirely appropriate and also realistically possible”[55] was merely a figment of his imagination. Any correspondence between the parties, either directly or through their solicitors, has generally been hostile. The father’s counsel admitted it had been “sharp and blunt”, which demonstrated his mastery of euphemism. Calling the mother a “fucking black cunt”[56] is proof enough of the father’s vulgarity and disdain.

   [55] Family Report, para 22

   [56] Mother’s affidavit, paras 33, 35

9. The simple fact is that the parties are distrustful of one another and have reached the point where they are not only willing, but anxious, to think the worst of the other. That is a great shame for the children, who will continue to be raised by parents they know dislike one another.

10. As the Family Consultant tritely observed, the exercise of equal shared parental responsibility for children requires frank exchange of information, candid consultation, and genuine negotiation by the parents. Each of those skills is presently well beyond the capacity of these parties.

11. I accept the Family Consultant’s evidence and reject the notion of equal shared parental responsibility as appropriate in these circumstances. It is necessary for the residential parent to have sole parental responsibility and because the parties agree the children must live predominantly with the mother, she will be the recipient of sole parental responsibility for the children.

12. The parties agreed that the re-introduction of the children to the father should occur in phases. They accepted the evidence of the Family Consultant that, after a hiatus now of some eight months duration, the children could not just seamlessly resume their relationships with the father where they left off in April 2012. Any residual doubts about that were dispelled when the children took some time to warm to the father when introduced to him in the company of the Family Consultant in September 2012.

13. There was, however, a difference of opinion about how the re-introduction process should begin. The mother desired the use of a contact centre for the first three months, followed by another three months of supervision by the paternal grandparents.[57] She said in cross-examination she regarded supervision for the period of six months as the “outer limit”. The father objected to use of the contact centre and proposed supervision by the paternal grandparents for only the first two months.[58]

    [57] Exhibit M3, Orders 3.1-3.2

    [58] Exhibit F4, Orders 3.1, 4

14. Self-evidently, the parties agreed that some form of supervision of the children with the father was warranted for the first few months of the children’s re-introduction to him. As the Family Consultant pointed out, the need for supervision is not an adverse reflection upon the father’s parenting capacity, but merely recognition of the children’s need to have others present to help them cope with the re-introduction. The children, and in particular the female twin, were reluctant to seek solace from the father when stressed by separation from the mother at the consultation with the Family Consultant in September 2012.[59]

    [59] Family Report, para 46

15. I adopt the idea of supervision by the paternal grandparents rather than by staff at a contact centre. There are essentially three reasons for that decision. First, no evidence was adduced by either party about the availability of the nominated contact centre in proximity to their homes. The father said in cross-examination, without contradiction, that he was previously informed the contact centre had lengthy delays. Second, the Family Consultant said in the Family Report that the “ideal situation” would be supervision by adults with whom the children were familiar.[60] Although the children have not seen the paternal grandparents since April 2012, they will still be more familiar to the children than staff at a contact centre whom they have never even met before. Third, the mother said in cross-examination that she trusted the paternal grandparents and she thought their presence with the father would help the situation.

    [60] Family Report, para 62

16. Of course, the duration of the initial period of supervision and the rate at which the interaction between the children and the father thereafter expands is relatively arbitrary. The Family Consultant expressly referred to the unpredictable features that would influence such decisions.[61] Apart from observing in her reports that the overall process would take the “next few years”,[62] the Family Consultant expressly declined in cross-examination to offer a recommendation about the incremental progressions of the parenting regime, so the respective proposals of the parties on that issue are devoid of any evidentiary foundation.

    [61] Family Report, para 63

    [62] Family Consultant’s affidavit, Assessment (page 6); Family Report, para 64

17. The mother submitted that the children should all spend time with the father together, whereas the father did not.[63] I accept the mother’s submission that the children will each garner comfort from the presence of their siblings, which militates in favour of them remaining together when with the father. It follows that the expansion of the regime of interaction between the children and the father must move at a rate commensurate with the coping ability of the twins, who are less emotionally robust than the eldest child.

    [63] Exhibit F4, Orders 3.2, 3.4

18. The orders provide for incremental expansion of the time spent by the children with the father over approximately the next two years. By late 2014 the regime reaches its zenith when the children spend time with the father each alternate weekend, for a few hours one evening every week, and for half of school holidays. By then the twins will have attained four years of age and should be mature enough to cope with that arrangement. Additionally, the eldest child will not be burdened simultaneously with the movement to that regime and his commencement of school.

19. The staged expansion under the orders entails fewer increments than proposed by each of the parties, but there was no evidence to infer that their respective proposals were any more favourable to the children’s interests. In any event, the orders permit them to agree upon an alternate arrangement if they wish.

20. The father proposed that the children’s time with him should gradually expand to the point where, in several years time, the children live with the parties for equal time on weekly rotations. The Family Consultant explained how that was an impossible outcome in the context of the parties’ current antipathy and the absence of reciprocal trust and respect. The father’s counsel, with customary candour, conceded there was no evidence before the Court to establish the advisability of an eventual “equal time” residential regime. For that reason, the father’s proposal is untenable. On the available evidence, such an arrangement is neither practicable nor in the children’s best interests.

21. The orders make special provision for the days over Christmas and the Mother’s Day and Father’s Day weekends each year. Contrary to the wishes of the parties, no special provision is made for birthdays,[64] special holidays,[65] or 9 February 2013,[66] the significance of which date was not explained by either the evidence or any submission. The level of conflict between the parties justifies simplicity in the orders with fewer opportunities at changeovers to engage in conflict. The parties can consensually make other arrangements if they choose.

    [64] Exhibit M3, Orders 4.3, 5.1, 6; Exhibit F4, Order 8

    [65] Exhibit F4, Order 7

    [66] Exhibit M3, Order 8

22. The father lives at Suburb L with the paternal grandparents. The mother lives at Suburb M, in very close proximity to the maternal grandparents. The driving time between the parties’ households is about 30 minutes.[67]

    [67] Family Report, paras 5-7

23. The Family Consultant opined that it would be better for both the mother and children if the mother did not participate directly in exchanges of the children with the father, since the children might be influenced by her apprehension and they should be emotionally free to enjoy their experiences with the father. The father’s former application, made in January 2012, for an order compelling the mother to be personally present at changeovers was misconceived and was rightfully dismissed.

24. The orders are not made in ignorance of that evidence or the mother’s continuing apprehension of the father. The needs of the children in the near future necessitate frequent but short visits with the father. However, that cannot be usefully achieved if the father spends a good proportion of those short visits on the road with them, collecting them from and returning them to the mother. For that reason, the orders require the mother or her nominee to participate in changeovers, but incorporate safeguards for her protection. She is required to deliver the children to the home of the paternal grandparents, with whom she has amiable relations, it being a relatively neutral venue she has willingly used in the past. Furthermore, an injunction is imposed upon the father to regulate his behaviour towards the mother.

25. Accordingly, for the initial phase of the children’s re-introduction to the father, when he and the children are to be supervised by one of the paternal grandparents, the mother shall cause the delivery of the children to the father and the father shall return the children to the mother.

26. Thereafter, when the children spend time with the father for a number of hours twice per week, the father must both collect and return the children. That obligation is not particularly controversial because the father proposed that he bear responsibility for collecting and returning the children from and to the Suburb M police station from January 2013 onwards, other than when collections and returns could be effected at the children’s school.[68] Suburb M police station is in near proximity to the maternal grandparent’s home, where the orders require collections and returns by the father.

    [68] Exhibit F4, Orders 3.2-3.9, 5

27. The father pays only a paltry amount of child support, quantified at $30.80 per month in total.[69] In the absence of his contradiction, I accept that the father’s financial circumstances do not permit him to pay more. However, the financial burden of raising the children falls onerously upon the mother and she should not therefore be unduly burdened with responsibility for transporting the children to and from the father.

    [69] Family Report, para 3

28. Once the graduated parenting regime reaches its final stage in late 2014, the orders require the parties to share the travelling. That will initially involve the mother causing the delivery the children to the father each Wednesday and each alternate Friday during school terms, but that obligation will abate altogether once all children are at school because the father will then be obliged to collect the children from school and later return them to the mother.

29. The orders make express provision for telephone communication between the children and the parties as from 1 October 2014. There is no need to make provision for telephone communication before that time because until then the children will be spending time with the father twice each week and they will still be too young to conduct meaningful telephone conversations. The parties can agree otherwise if they wish.

30. As earlier mentioned, an injunction is imposed upon the father, regulating the manner of his behaviour towards the mother and precluding his attendance at her home and place of employment. She does not presently have a place of employment since she is unemployed, but that may not always remain the case. The injunction applies similar, though not identical, restrictions to the father currently found in both interim orders made by this Court,[70] and the interim family violence order made by the NSW Local Court.[71] The father acknowledged he should be the subject of some form of lesser restriction,[72] but the evidence justifies broader protection of the mother.

    [70] Order 2 made on 22 August 2011

    [71] Mother’s affidavit, Annexure M; Father’s affidavit, Annexure M

    [72] Exhibit F4, Order 4.5

31. The remaining orders could not be the subject of any sensible dispute.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 December 2012.

Associate: 

Date:  19 December 2012