CASSWELL & MOESER

[2017] FamCA 806

FAMILY COURT OF AUSTRALIA

CASSWELL & MOESER [2017] FamCA 806

FAMILY LAW – CHILDREN – With whom the children live – Where the father withdrew from the litigation prior to final hearing – Where the second eldest child lives with the father and the two youngest children live with the mother – Where there is a need to protect the two youngest children from exposure to family violence perpetrated by the father – Where the father’s parenting capacity is impaired and he appears to have abandoned interest in the youngest children, at least until they attain majority – Concluded the father has prioritised his own needs above the emotional needs of the children – Ordered the two youngest children live with the mother and the mother have sole parental responsibility for them

FAMILY LAW – CHILDREN – Wishes – Where the second eldest child expressed a strong desire to remain living with the father and spend no time with the mother – Where the family consultant considers the second child is emotionally immature for his age – Concluded the second child has nearly attained his majority and cannot be forced to act against his wishes – No orders as to with whom the second child lives or spends time

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

Allesch v Maunz (2000) 203 CLR 172
Goode & Goode (2006) FLC 93-286
Taylor v Taylor (1979) 143 CLR

APPLICANT: Mr Casswell

RESPONDENT: Ms Moeser

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

FILE NUMBER: NCC 276 of 2016

DATE DELIVERED: 22 September 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 4 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Ms Court

SOLICITOR FOR THE RESPONDENT: Ms Shepherd, NLS Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lovell-Jones, Legal Aid NSW, Newcastle

Orders

1. All former orders in respect of the following children are discharged:

   (a)B, born … 2000;

   (b)C, born … 2002; and

   (c)D , born … 2012

Orders for C and D

1. The mother shall have sole parental responsibility for C and D.

2. C and D shall live with the mother.

Orders in respect of all children

1. 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.

2. 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.

3. The father shall authorise and request the principal of any school attended by B to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to B.

4. The mother shall authorise and request the principal of any school attended by C and D to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to C and D.

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

6. 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.

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

8. Any and all other outstanding applications are dismissed.

Notations

(A)Both parties retain parental responsibility for B pursuant to s 61C of the Family Law Act.

(B)No orders are made prescribing with whom B lives, spends time, or communicates

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 276 of 2016

Mr Casswell

Applicant

And

Ms Moeser

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the youngest three of the parties’ four children. The eldest is now an adult and, while she is not the subject of the proceedings, she was a witness in the mother’s case.

2. For some years, the second child has lived with the father and had no interaction of any sort with the mother and his siblings. Over the same period of time, the third and fourth children have lived with the mother and they have had no interaction of any sort with the father and the second child. The father lives with the second child in NSW and the mother lives with the two youngest children in Victoria.

3. The mother sought orders designed to largely consolidate those arrangements. The father proposed that the two youngest children should instead live with him, but he withdrew from the litigation prior to trial and did not contest the mother’s application. There remained some minor disagreement between the mother and Independent Children’s Lawyer about the orders needed but, at the commencement of the trial, they compromised the dispute and tendered a joint minute of the orders they sought. These reasons explain why the orders must generally reflect their joint proposal.

Background

1. The parties married and commenced cohabitation in 1996. They finally separated in December 2014, after 18 years of marriage.

2. Their children were born in 1998, 2000, 2002, and 2012. The eldest is now an adult and the three youngest were aged 17, nearly 15, and 5 years respectively at the time of trial.

3. At the time of separation, the family was living in Queensland. The father and second child vacated the family home and moved to live in NSW. The third and fourth children stayed with the mother and they later moved to live in Victoria, with the father’s consent. Both parties filed applications in courts of their respective home States seeking family violence orders against the other, but no such orders were ever made on a final basis.[1] The children have not seen their non-residential parent or the sibling/s living with the non-residential parent since the parties’ separation.

   [1] Family Report, para 8

4. These proceedings were commenced by the father in February 2016, some 15 months after the parties’ separation. Their competing interim applications were listed for hearing in June 2016, at which time orders were made for the parties to have equal shared parental responsibility for the children, for the second child to continue living with the father, and for the two youngest children to continue living with the mother. Given the schism within the family over the preceding 18 months and the distance between the parties’ homes, no orders were made for the children to spend time with the non-residential parent. Orders were, however, made for the siblings to communicate by telephone each week. Those orders prevailed until trial, but the evidence is sparse about whether the communication order was the subject of compliance. The Family Consultant reported only that the telephone communication was sporadic, often initiated by the third child and unanswered by the father or second child.[2]

   [2] Family Report, paras 14, 23, 33

5. In December 2016, orders were made for the preparation of a Family Report, but the father did not participate in the process as ordered. He was apparently getting married in Country E at the time.[3] The Family Report was released in March 2017 and, at the next Court event in April 2017, the proceedings were fixed for trial in September 2017.

   [3] Family Report, page 6

6. The father later invoked the leave granted to re-list the proceedings before the Court on short notice[4] and, at the Court event then listed at his request in July 2017, his oral application to vacate the trial dates was dismissed. He then advised of his intention to withdraw from the proceedings and therefore consented to the dismissal of his Amended Application. It was expressly noted the trial in September 2017 would proceed in his absence unless he complied with the former procedural orders made in April 2017.[5]

   [4] Order 14 made on 26 April 2017

   [5] Orders and Notations made on 20 July 2017.

7. The father did not appear at the trial and neither the mother nor the Independent Children’s Lawyer sought an adjournment of the trial. On the contrary, they both wanted the proceedings resolved. The trial therefore proceeded in the father’s absence. In the circumstances, the Court was not required to delay resolution of the proceedings merely because the father declined to appear. He was afforded procedural fairness and there was no miscarriage of justice (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

Proposals

1. The father failed to appear and prosecute any application. With his consent, the Amended Application he filed on 3 October 2016 was dismissed in July 2017. He did not wish to be heard in relation to the form of the orders that should regulate the care of his children.

2. The mother’s last formal application was for the orders set out in her Amended Response, filed on 21 April 2017. In respect of the second child, she sought that he continue to live with the father and that the father have sole parental responsibility for him, but she sought orders for him to communicate with her twice weekly and for him to submit to therapeutic counselling until he attained his majority, designed to try and recover the relationship between them. As for the two youngest children, she sought orders for them to continue living with her and for her to have sole parental responsibility for them. She furthermore proposed that they visit the father on four occasions each year under professional supervision at a contact centre.

3. The Independent Children’s Lawyer foreshadowed in her Case Outline her proposal for no orders at all to be made in respect of the second child “given his age and his wishes as expressed to the Independent Children’s Lawyer”. In respect of the other two children, she proposed the only orders that need be made were to vest sole parental responsibility in the mother and to provide for them to live with her. At the commencement of the trial, the mother acceded to that proposal and so a minute of orders jointly proposed by the mother and Independent Children’s Lawyer was then tendered.[6]

   [6] Exhibit A

Evidence

1. The mother relied upon:

   (a)Her affidavit filed on 21 July 2017;

   (b)The affidavit of the parties’ eldest child, filed on 24 July 2017;

   (c)The affidavit of the maternal grandmother, filed on 21 July 2017;

   (d)The affidavit of the maternal grandfather, filed on 21 July 2017; and

   (e)The affidavit of the maternal uncle, filed on 21 July 2017.

2. The Independent Children’s Lawyer did not require the mother or any of her witnesses for cross-examination.

3. The mother and Independent Children’s Lawyer also relied upon the Family Report dated 23 March 2017, which annexed the Memorandum earlier prepared by the Family Consultant in September 2016. Neither of them required the Family Consultant for cross-examination.

4. In view of the father’s withdrawal from the proceedings and his consequent unavailability for cross-examination, the affidavits previously filed by him in the proceedings were ignored.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. 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 the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (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 significant issues (s 65DAE).

4. 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 it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, 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). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests

Section 60CC(2)(a)

1. There was no factual dispute about the quality and importance of either the second child’s relationship with the father or the two youngest children’s relationships with the mother. Of significance, for present purposes, was the children’s derivation of benefit from their relationships with their respective non-residential parents.

2. The second child’s relationship with the mother is now seriously deteriorated. She was concerned for his welfare when the father recently left him in Australia so he could travel to and wed in Country E, so she attempted to contact the child. When unsuccessful, she asked police to check on his welfare, which prompted the child to contact her and verbally abuse both her and the maternal uncle.[7] He wants her to leave him alone and he refused to see the mother and the maternal grandparents in the Family Consultant’s company, other than on conditions she was unable to meet.[8] Whatever his motivation, the second child has no current interest in pursuing a relationship with the mother. It could not be said he presently derives any benefit from his filial relationship with the mother and, given his opposition, there is little or no chance of restoring their relationship in the immediate future.

   [7] Family Report, para 29

   [8] Family Report, paras 66, 69

3. The third child is open-minded about pursuing a communicative relationship with the father, but she is nervous about the acute conflict between the parties.[9] The Family Consultant was unable to observe the third child’s personal interaction with the father because of his absence from the assessment, but the child was happy to meet with the second child and the paternal grandparents.[10] The third child would likely derive some benefit from restoration of her relationship with the father, but that objective is counteracted by his current disinterest in her and his violent propensity, yet to be addressed.

   [9] Family Report, paras 33-34

   [10] Family Report, paras 87-88

4. The youngest child was less than two years of age when the parties separated, so he has few, if any, memories of the father.[11] Overall, the evidence did not suggest his interests would be advanced by forcing him to develop a meaningful relationship with the father, particularly since the father withdrew from the litigation. In the observation session, while the youngest child was interested in the second child’s attention, he was disinterested in the paternal grandparents.[12]

   [11] Family Report, paras 37, 83, 85

   [12] Family Report, paras 85, 90, 91

Section 60CC(2)(b)

1. The mother maintained the risk of harm posed by the father to both her and the two youngest children was one of the pre-eminent issues in the litigation.[13] In the main, the risk of harm was attributed to the father’s past family violence, the mother’s allegations about which were sufficient to convince the Child Support Registrar she should be exempt from having to seek a child support assessment against the father.[14]

   [13] Family Report, para 39

   [14] Family Report, para 40

2. The Family Consultant formed an unchallenged conclusion that the father had probably behaved in a “controlling, coercive manner towards the mother”, since his past behaviour demonstrated “an ongoing pattern of use of threat, force, emotional abuse and other coercive means to unilaterally dominate” her.[15] It could not be said the Family Consultant’s conclusion was without foundation because the mother adduced a volume of evidence which, in the absence of her contradiction, proved the father’s long history of violent domination over her.

   [15] Family Report, paras 92-94

3. As the Family Consultant keenly observed about parents who perpetrate violence within the family home:[16]

   Although in the majority of cases the risk of future family violence diminishes after separation, where there has been coercive controlling violence the intensity may escalate.

   Perpetrators of coercive controlling violence are more likely to have difficulties parenting. Common features include a lack of warmth, coercive tactics and rejection of the children. Individuals who have a pattern of partner abuse and who resolve conflicts using physical force are likely to be poor role models for their children. Abusive ex-partners are also more likely to undermine the victim’s parenting role.

   [16] Family Report, paras 95-96

4. The evidence easily established the need to protect the two youngest children against the risk of them sustaining psychological harm by reason of their exposure to the father’s family violence (s 60CC(2)(b)). Moreover, the evidence demonstrated the need, consistently with the children’s best interests, to avoid the mother’s exposure to the unacceptable risk of family violence at the father’s hands (s 60CG(1)(b)).

5. While the second child should also be ideally protected against the risk of harm posed by the father, he is now 17 years of age and his strongly expressed desire to remain living with the father and to have no contact with the mother is a prevailing feature of the evidence.

Section 60CC(3)

1. The second child purports to be content living with the father and he expressed to the Family Consultant his wish to be left alone by the mother.[17] While the Family Consultant considers him to be emotionally immature for his age,[18] the fact remains he has nearly attained his majority and he cannot be forced to act against his wishes, even if his attitude is assumed to be the product of influence exerted by the father. His expressed views are really dispositive of the proceedings in so far as they concern him.

   [17] Family Report, para 66, 69

   [18] Family Report, para 74

1. The third child is anxious about the pressure she feels at being the focal point of the conflict between the maternal and paternal families. She is reluctant to be drawn into the conflict and avoids pointed questions about what she wants to do.[19] She did not express any view about her future and even if she did, given the Family Consultant considers she is “currently functioning at the level of a much younger child”,[20] her views would not likely carry much weight anyway.

   [19] Family Report, para 60

   [20] Family Report, para 63

2. The youngest child, who is still very young and immature, did not express any view about his future.

3. Regrettably, the rank bitterness between the parties has all but destroyed the family. The Family Consultant expressed it thus:[21]

   …the relationship between the parents is highly acrimonious, polarising the extended family members, who have been drawn into the parental conflict.

   [21] Family Report, para 18

4. If even adult members of the maternal and paternal families have been drawn into the conflict, it is easy to see how the children have also been consumed and adversely affected by it. The second child refuses to even speak to the mother, other than to berate her about leaving him alone,[22] the third child is so stressed about the conflict she eats to ease her anxiety and is now overweight,[23] and the youngest child lives in a fantasy world with imaginary friends and is well behind his developmental milestones.[24]

   [22] Family Report, paras 29, 66

   [23] Family Report, para 62

   [24] Family Report, paras 78-79

5. Underlying the parental conflict were the parties’ mutual allegations that the other was aligning the child or children in their care and, as a consequence, was impeding the children’s emotional needs. The Family Consultant believed that was true of the father, but not the mother. That opinion is not demonstratively unsound, given the two youngest children did not present to the Family Consultant as alienated children and the records produced on subpoena tended to support the mother’s allegations against the father. As an example of the father’s improper influence, the second child refuses to spend time with the mother unless the two youngest children spend time with the father and paternal family members,[25] so the second child obviously feels the need to fight the father’s battle. He probably would not feel that way unless co-opted by the father. The two youngest children do not seem to have been susceptible to the same level of influence by the mother. The Family Consultant witnessed the youngest child speak to the paternal grandparents in a manner that could demonstrate his alignment with the mother,[26] though the third child remains open-minded about her retention of a line of communication with the father,[27] suggesting she has not been overborne by the mother.

   [25] Family Report, paras 20, 21, 24, 69, 71-73

   [26] Family Report, para 85

   [27] Family Report, para 33

6. The Family Consultant concluded the father’s parenting capacity was impaired for a number of reasons: his alienation of the second child from the mother; his past propensity to coerce and control the mother; his generally impulsive and aggressive anti-social behaviour; and his history of unstable psychological health.[28] The father has also apparently been oblivious to the emotional toll the conflict has taken on the third child. She needed counselling to deal with her feelings of abandonment and rejection by him.[29] The father must know that to be so now, even if he was previously ignorant of it, because he presumably read the Family Report when he received it. Notwithstanding such knowledge, it made no difference to his attitude. He still tends not to accept or respond to the third child’s attempts to communicate with him. Such behaviour is consistent with the paternal grandparents’ report about him to the Family Consultant, in that he intends to “get on with his new life” and “focus on his current relationship”. He has apparently abandoned interest in the two youngest children, at least until they attain their majority.[30] The Family Consultant was correct to conclude the father has prioritised his own needs above the children’s emotional needs.[31]

   [28] Family Report, para 21

   [29] Family Report, para 36

   [30] Family Report, para 51

   [31] Family Report, para 99

7. Aside from the youngest child’s curious threat to the paternal grandparents to hurt them if they hurt the mother,[32] no aspect of the evidence adduced before the Court called into question the mother’s parenting capacity. The Family Consultant described the mother and maternal grandparents as “attuned to the children’s needs” and capable of meeting them.[33] The mother understands the pressure being either deliberately or ignorantly exerted by the father upon the second child to reject her, which can only be satisfactorily relieved at the moment by her withdrawal from any meaningful involvement in his life.[34]

   [32] Family Report, para 85

   [33] Family Report, para 86

   [34] Family Report, paras 30-32

8. Presently, the mother’s care of the two youngest children is well supported by the maternal family, including the parties’ adult child.[35]

   [35] Family Report, paras 44-49

Conclusions and orders

1. The presumption of the parties having equal shared parental responsibility for the children does not apply because the evidence establishes the mother was the victim of the father’s family violence (s 61DA(2)(b)). The conflict between the parties is too virulent for them to share parental responsibility. The Family Consultant was surely correct to observe:[36]

   There is a concerning lack of trust and poor communication between the parents that would make shared decision making exceedingly difficult, if not impossible.

   [36] Family Report, para 18

2. The paternal grandparents told the Family Consultant the father planned to “sever ties with the mother”, so he plainly has no interest in any communication with her.[37]

   [37] Family Report, para 51

3. In the absence of any order to the contrary, both parties, as parents, retain parental responsibility for the children, which they may exercise individually (ss 61C, 61D; Goode & Goode (2006) FLC 93-286 at [33]-[39]).

4. The mother and Independent Children’s Lawyer jointly proposed that no order be made allocating parental responsibility for the second child, in which event both parties would retain parental responsibility for him. They imagined that the second child would decide with whom he wanted to live, the practical effect of which was that the parent with whom he chooses to live will exercise parental responsibility for him and may do so without recourse to the other parent. Their proposal was valid and so no orders are made in respect of the second child. That will relieve the pressure upon him to support the father by rejecting the mother, which the Family Consultant advised was the “best outcome” for him.[38]

   [38] Family Report, para 76

5. However, the same analysis does not apply to the two youngest children. They are still insufficiently mature to make their own decisions. They will continue to live with the mother and the only feasible alternative is to ensure she has exclusive parental responsibility for them.

6. The father’s withdrawal from the proceedings effectively precludes any orders being made to prescribe the circumstances under which they might spend time or communicate with him, particularly since the paternal grandparents reported to the Family Consultant he is:[39]

   …content to leave them with the mother in Victoria until such time as they are old enough to reach out to him in order to re-establish a relationship.

   [39] Family Report, para 51

7. Although not sought by either party or the Independent Children’s Lawyer, the orders require the parties to keep each other informed of their various contact details so that lines of communication are open in the event of emergency. The orders also require the parties to keep one another informed of any serious medical injury or ailment suffered by the children and to enable each of them to procure school photographs and school reports about the academic progress of the children not living with them, should they wish. The Family Consultant made a recommendation to that effect and she was not challenged about its advisability.[40]

   [40] Family Report, Recommendation VI

8. An order is also made restraining the parties from permitting the children to be exposed to any denigration of the parties. Such an order could not be the subject of any reasonable opposition. The children’s interests are promoted by such an order.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 September 2017.

Associate: 

Date:  22/09/2017