CHOLIC & CHOLIC

[2016] FamCA 900

FAMILY COURT OF AUSTRALIA

CHOLIC & CHOLIC [2016] FamCA 900

FAMILY LAW – CHILDREN – Undefended parenting – Reunification process between the father and the children was unsuccessful – Relocation of the children from Adelaide to Perth – The father has disengaged from the proceedings – The father has spent no time or communicated with the children for almost seven years – Best interests of the children.

Cholic & Cholic [2015] FamCA 1156
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93–286
Jarrah & Fadel [2014] Fam CAFC 14

Mazorski & Albright (2007) Fam LR 518

McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC, 69ZN

APPLICANT: Ms Cholic

RESPONDENT:	Mr Cholic
INDEPENDENT CHILDREN’S LAWYER:	Norman Waterhouse Lawyers

FILE NUMBER: ADC 5009 of 2009

DATE DELIVERED: 27 October 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Adelaide

JUDGMENT OF: Hannam J

HEARING DATE: 4 October 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: A L Thomas Law

SOLICITOR FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

Orders

(1)All previous orders be and are hereby discharged.

(2)The mother be permitted to change the principal place of residence of the children B born … 2004 and C born … 2006 from metropolitan Adelaide to Perth, Western Australia.

(3)The mother provide the father with a postal address at which the father may send correspondence addressed to either child/children, and the mother keep the Father informed by email and letter by post within 48 hours of any change to her postal address.

(4)The father be at liberty to send communication by post to the children (in the form of letters, cards, photos and pictures). 

(5)The mother ensure that any mail sent addressed to the children from the Father be provided to the child/children as soon as practicable after receipt, unless the content of the mail is deemed inappropriate for the child.

(6)If the mother withholds providing the mail from the father to the child on the ground that the content of the mail is inappropriate for the children, then the mother must inform the father of this by email and letter by post as soon as practicable after receipt of the mail.

(7)The mother shall facilitate either child/the children preparing and sending correspondence, including letters, pictures and photos, from the child/children to the father in the event either child expresses the wish to do so.

(8)For the purpose of the mother’s communication with the father, the father will provide the mother with and keep her informed of his current email address and a current postal address.

(9)For the purpose of the father’s communication with the mother, the mother will provide the father with and keep him informed of her current email address and a current postal address. 

(10)The father MR CHOLIC and his servants and agents are restrained from taking, sending or attempting to take or send the children B born … 2004 and C … 2006 from the Commonwealth of Australia.

(11)The Marshall and all Officers of the Australian Federal Police and Police Forces of the States and Territories are requested and authorised to give effect to these orders.

(12)The Court requests that the Australian Federal Police place the names of the said children on the Airport Watch List for all points of international arrival and departure in Australia for the purpose of preventing removal of the said children from Australia in breach of these orders.

(13)The mother have sole parental responsibility for the said children PROVIDING that the mother shall give the father twenty eight (28) days notice of any intention to either enrol or remove the said children from any school to which they attend or are to attend and shall give the father fourteen (14) days notice of any significant medical intervention, surgery or procedure to be undertaken by the children or each of them, but in the circumstances of a medical emergency the mother will advise the father as soon as is practical following such medical procedure or intervention taking place.

(14)The children shall live with the mother.

(15)The father and the mother be entitled to receive school newsletters, school reports and notices in relation to the children.

(16)The mother keep the father advised of the name and address of the children’s treating medical practitioners and any change thereto and shall advise the father in writing of any hospital admission in relation to the said children and shall provide such authority to enable the father to contact such treating medical practitioner and obtain information in respect of the children’s health, ongoing medical treatment or other health related matters affecting the children and each of them.

(17)The mother and the father are restrained and an injunction is granted restraining each of them from showing the children any documents relating to these proceedings, talking to the children about the content of documents in these proceedings or any criminal proceedings involving the parties or from allowing anyone else to do so SAVE in the course of treatment for the children and then only at the direction, or under the supervision of a counsellor, therapist or treating professional.

(18)The parties be restrained and an injunction is granted restraining each of them from abusing, insulting, belittling, harassing or threatening the other in the presence or hearing of the children or either of them and from permitting any other person to do so in presence or hearing of the said children or either of them. 

(19)The mother shall forthwith advise the father of the whereabouts of the children, their school and their current medical practitioner and shall authorise their current school and medical practitioner to provide information to the father in respect of the children as he may request.

(20)The mother shall be restrained and an injunction is granted restraining the mother from:-

(a)       taking the children to any psychologist, counsellor or therapist other than as provided for SAVE as may be the subject of agreement between the parties;

(b)       changing the names of the children or using any other name or referring to the children or allowing anyone else to do so by a name other than their birth name.

(21)The order appointing the Independent Children's Lawyer shall be discharged.

(22)The Form 1 Application filed by the mother on 3 November 2015 and the Form 1A Response filed by the father on 27 November 2015 be otherwise dismissed.

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 Cholic & Cholic 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 PARRAMATTA

FILE NUMBER: ADC5009 of 2009

Ms Cholic

Applicant

And

Mr Cholic

Respondent

REASONS FOR JUDGMENT

Introduction

1.This matter concerns the long term parenting arrangements for the two daughters of the parties, B who is twelve and C who is almost ten.

2.In April 2014 final orders were made following a protracted parenting hearing which required the mother with whom the children had been living, to relocate from Perth, where they had lived since separation to Adelaide where the family had previously lived. Orders were made for a gradual re-introduction and rekindling of the relationship between the children and their father which had been fractured.

3.The unification process was not successful and the father has spent no time with or communicated with the children for almost seven years.

4.The mother has initiated these proceedings to revisit the parenting orders and seeks to relocate with the children to Perth on a permanent basis. The father is disengaged from the proceedings and did not participate in an assessment by a court appointed expert and did not attend a number of court events including when trial directions were made.  The final hearing was heard in the father’s absence.

5.At the final hearing the Independent Children’s Lawyer (“ICL”) agreed that the orders proposed by the mother were in the best interests of the children. The Family Consultant also expressed the view that the orders proposed by the mother were in the children’s best interests.

6.On 4 October 2016 when the matter was heard on an undefended basis with respect to the father, I made the final orders in terms sought by the mother and indicated that I would publish my reasons for judgment at a later stage. These are those Reasons.

Background

7.On 3 December 2015 I heard an application whereby the mother sought to relocate to Perth on an interim basis. The background set out in that judgment[1] is repeated here as follows.

[1] Cholic & Cholic [2015] FamCA 1156.

8.The mother, who is 40, and the father, who is 47, met and commenced a relationship in 1994.  They married in 2002.  In 2004 the parties’ first daughter B was born and their second daughter C was born in 2006. 

9.From about 2006, the relationship between the parties began to deteriorate and in around 2008 the family spent some time living in Country S.  On 14 December 2009 there was an incident at the parties’ business which resulted in the father’s arrest and the parties’ separation.  Initially the mother and children went into hiding and then were assisted by police to leave Adelaide and take up residence in hiding in Western Australia.

10.On 18 December 2009 the mother initiated parenting proceedings.  Although there were orders made for the father to spend supervised time with the children at a contact centre, this did not eventuate.  The orders with respect to the father’s time with the children were later suspended.

11.In January 2011 the parties divorced and the mother filed a Further Amended Initiating Application.  The first parenting proceedings were heard in December 2013 and February 2014 with Judgment delivered on 11 April 2014. 

12.According to the judgment in the first parenting proceedings reported as Cholic & Cholic (2014) FamCA 234, the parties’ position can be summarised as follows [at 22]:

It is the mother’s case that the father perpetrated sustained and ongoing domestic violence, including sexual violence, against the mother and, with less detail, physical and psychological abuse to the children.  Indeed, the mother alleges that the father’s demonstrable violence and aggression towards her was a feature of their relationship from a time before the parties married and possibly as early as 1998.  The father’s alleged behaviour did not abate but rather developed into behaviour that borders on the horrific.  The father trenchantly denies the allegations and alleges that the mother suffers from significant psychiatric disability, has concocted the entirety of the allegations and, for reasons that are not clear to him, has in effect manufactured a circumstance which has seen the mother and the children in hiding in Western Australia with the father having been denied a relationship with his children for now in excess of four years.

13.The trial judge is the first proceedings was satisfied that it would be in the best interests for the children to return to reside in South Australia and for there to be an attempt at rekindling the relationship between the children and their father.  The orders provided for a graduated reunification process whereby the ICL was to organise for the children to attend upon a therapist and for the father to participate in the therapy which was to take place over eight weeks from July 2014.

14.At the conclusion of this period, according to the first parenting orders the children were to spend time with their father for two hours on one occasion each week for four occasions, supervised by the therapist.  If the therapist was unable or unwilling to supervise these four periods, then the manager of Child Dispute Services at the Court was to nominate a family consultant to supervise the compliance by the parties with the parenting orders. 

15.After this period of four supervised occasions of time with the father, the parents were to enrol in a contact centre for supervised time to commence as soon as practicable thereafter.  The orders provided for six periods of supervised time at the contact centre, either weekly or, if weekly could not be accommodated, fortnightly. 

16.At the conclusion of the six supervised occasions at the contact centre, the children were then to spend time under the orders with their father unsupervised on a graduated basis.  This regime was to commence with one period of seven hours on a single day each alternate weekend for six periods, after which one overnight was to be introduced, which was to increase to three overnights after six occasions and four overnights after a further six occasions.

17.At the commencement of overnight time, the children were also to spend block periods of a week with their father during the school holidays.

18.The mother complied with the orders that she relocate with the children to Adelaide.  She and the children moved to Adelaide in July 2014.  The father paid the costs of the relocation as required by the orders.  The mother and children then lived in a village in the XX Region and the children were enrolled in a private school which they have attended since the third term of 2014.  The mother has paid all the school fees and other costs associated with the support and maintenance of herself and the children and has received no contribution from the father.

19.The ICL made arrangements for the children to receive therapy as required by the orders.  A therapist was chosen and arranged by the ICL and the mother ensured that the children attended each of the sessions arranged by the therapist.  After four sessions of therapy the therapist wrote to the ICL and informed him that following four sessions with the children he did not feel that he could ethically carry out the therapeutic course of action ordered by the Family Court. Thereafter no further steps have been taken to pursue the children’s reunification with their father. Accordingly the father has not spent time with the children for almost seven years.

20.Although the mother and children relocated to live in South Australia in mid-2014 the mother continued to be employed by an employer in Perth and carried out her work remotely from Adelaide as well as travelling to Perth for five days every three weeks. During this time the children were cared for by a live-in nanny in Adelaide.

21.In November 2015 the mother commenced these proceedings seeking that she be permitted to relocate the children to Perth on a final basis and that the orders with respect to the children’s time and communication with their father be discharged.

22.In December 2015 the mother sought to relocate to Perth on an interim basis. For the reasons given in a judgment[2] delivered on 3 December 2015 I dismissed the mother’s application. The father who represented himself at that stage, appeared at the interim hearing, but has not engaged in the proceedings thereafter.

[2] Cholic & Cholic [2015] FamCA 1156.

23.Notwithstanding that the mother was required to continue to reside in Adelaide as a result of the December 2015 judgment, the mother relocated with the children to Perth at the end of January 2016. The children commenced at school in Perth at the beginning of the school year in 2016.

24.The mother formed a relationship with a new partner, Mr JJ, in around 2016 and at the time of this final hearing the mother and Mr JJ lived together with the children in Perth.

25.The parents engaged in email contact between one another in February and March 2016 and it appears that the mother first advised the father that she and the children had relocated to Western Australia in April 2016. 

26.There were court events on 29 June, 15 July and 1 September when various trial and procedural directions were made. The father did not appear at any of these court events and on 1 September 2016 the matter was listed for undefended hearing on 4 October 2016. The father was notified of the various court events.

27.On 15 July 2016 Dr YY, a clinical psychologist, was appointed as the Single Expert to prepare a report in relation to the family. Dr YY subsequently sent emails to both parties setting out appointment details for interviews which were to take place in Adelaide (for the father) and Perth (for the mother and children). The appointments were made for the mother and children but the father did not respond to text messages, emails and telephone calls made by Dr YY, with the exception of a telephone call on 9 August 2016.  On that occasion, Dr YY telephoned the father who said that he was “spending time in Queensland setting up another business.” The father subsequently advised Dr YY by email on 9 August 2016 that he could not attend an interview on 11 August and asked for the interview to be rescheduled in Queensland.

28.The Single Expert Report was produced on 15 August 2016 and subsequently released to the parties.

The undefended hearing

29.The father proposed in his Response to the Initiating Application that if the mother is unable to facilitate his relationship with the children, the children should live with him and spend time with the mother as ordered by the court. At the interim hearing in December 2015 he also proposed similar orders on an interim basis. That Application was dismissed.

30.The father has essentially not engaged in the proceedings since the interim hearing.

31.Even though he has been informed of the various dates for procedural hearings the father has not attended nor filed any documents in support of orders he may seek.

32.Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules) provides that:

(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

Note:   The court may dispense with compliance with a rule (see rule 1.12).

(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

33.Having regard to the considerations in respect of adjourning parenting proceedings, which were considered by the Full Court in Jarrah & Fadel[3], and to the principles for the conduct of child-related proceedings[4], in my view, it is in the best interests of children for the proceedings to be finalised and dealt with in the absence of the father.

[3] [2014] FamCAFC 14

[4] Set out in s 69ZN of the Family Law Act 1975 (Cth).

34.In light of the matter proceeding on an undefended basis, the father’s material will not be read.

The Law and Discussion

35.The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

36.The objects are to ensure that the best interests of children are met by:-

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

37.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

38.According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

39.Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

40.The primary considerations as applied to B and C under s 60CC(2) are:-

a)the benefit to the children of having a meaningful relationship with both of the child’s parents; and

b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

41.As these proceedings commenced after 7 June 2012 greater weight is to be given to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

42.Although the meaning of the phrase “meaningful relationship” is not defined in the Act the Full Court in McCall & Clark[5] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[6] and has also agreed with the reasoning of Bennett J in G & C[7].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

[5] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

[6] (2007) Fam LR 518

[7] [2006] FamCA 994

43.The Full Court said in McCall & Clark (supra) at [117]:

Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

44.The Full Court in McCall & Clark (supra) continued at [122]:

No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

45.The mother’s proposed orders do not provide for the children to spend any time with their father or that there be any further attempt at re-establishing the children’s relationship with him.  The mother continues to suggest however, throughout her affidavit that she would be prepared to explore the possibility that the children be provided with some therapy for this to occur through a particular agency in Western Australia should the father be also minded to consider such a possibility.  The mother does not, however, seek any orders to this effect and the clear inference in the orders she seeks and the submissions made on her behalf is that any attempt at rekindling the relationship through therapy has been unsuccessful and is now not in the children’s best interest. 

46.It is not clearly submitted on behalf of the mother that there is no benefit to the children in having a meaningful relationship with the father and she continues to promote the idea that there may be a prospect of a relationship in the future through orders which permit the father to communicate with the children by post. 

47.Ultimately however, it is the father’s approach to the proceedings from which the clearest inference about his attitude towards a meaningful relationship with the children can be drawn.  In my view, it can be taken from the father’s lack of engagement in these proceedings for almost a year including his failure to ensure that he could be assessed by the expert that the father can be taken to concede that there is no benefit to the children in having a meaningful relationship with him.

The need to protect the children from physical or psychological harm

48.I am unable on the evidence to make a positive finding that the children have been subjected to or exposed to abuse, neglect or family violence in the father’s care.  The submissions made on the mother’s behalf do not rely upon such a finding.  It is also to be remembered that the trial judge in the first parenting proceedings did not make any positive finding that the children were subjected to or exposed to abuse, neglect or family violence at the hands of the father or that there was an unacceptable risk that this would occur in his household. 

Additional considerations: s 60CC(3)

49.Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

50.The children who are 12 and 10 told the expert that they do not want to recommence a relationship with the father.  Both children also indicated that they enjoyed living in Perth with their mother and were much happier than they had been living in Adelaide.  The expert felt that this last mentioned view was likely to be a genuine reflection of the children’s views.

51.So far as recommencing a relationship with their father is concerned, there is no need to make a determination as to the weight to be attached to these views as there is no proposal that orders be made to promote such a relationship other that through permitting the father to send letters to the children.

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

52.The children do not have a relationship with their father or the paternal family and the expert recommends that no further attempts be made to “therapeutically or otherwise” re-establish such a relationship.

53.The mother has been the children’s sole carer for almost seven years and has been their primary attachment figure throughout their lives.

54.It is unfortunate that the mother’s partner was not assessed by the expert, especially as he lives in the mother’s household and clearly plays some role of significance in the children’s lives.  However, it is to be noted that the children do not express any concerns about the mother’s partner and speak positively of him. 

The extent to which the children’s parents have taken the opportunity to participate in decision making, spend time with and communicate with the children

55.In my view, this consideration is the most weighty in this matter.  As was noted ten months ago when considering the mother’s interim application to relocate to Perth, the father has not taken any steps to spend time with the children since the failure of family therapy to rekindle the relationship.

56.As noted earlier in these Reasons, it can be taken from the father’s complete disengagement in the proceedings since the interim Judgment, that he has no motivation to seek any relationship with the children other than being provided with limited information about them and be permitted to communicate with them through letters.

Obligation to maintain the children

57.The mother has supported the children entirely through her own resources since separation.  She has not sought child support nor has the father made any payment to assist his children financially on a voluntary basis. 

58.In email correspondence exchanged earlier this year the father offered to pay for the children’s health insurance which was declined by the mother as it was not needed.

Likely effect of change in the children’s circumstances

59.The orders sought by the mother will not bring about any actual change in the children’s circumstances as the children have at all times since separation lived with the mother and spent no time with the father.  Contrary to the court orders made in April 2014 and December 2015, the mother moved the children’s home to Perth in January 2016 where they appear well settled.  The mother’s proposed orders simply formalise the reality of the children’s circumstances.

Practical difficulty and expense involved in spending time with and communicating with the other parent

60.There are no orders to support the father spending time with the children so the issue of practical difficulty or expense does not arise.  The father is permitted to communicate with the children by way of letter which will not give rise to any practical difficulty or expense.

Capacity of each parent and any other person to provide for the children’s needs

Attitude to the children the responsibilities of parenthood demonstrated by each parent

61.The mother is clearly a capable parent who has raised the children on her own for many years.  She has met their material and everyday needs ably from her own resources.

62.Some concerns have been raised in the past about the mother’s capacity to provide for the children’s emotional needs due to her lack of willingness and ability to facilitate the children having any relationship with their father.  In the mother’s interim application to relocate which was heard and Judgment delivered on 3 December 2015, I expressed the following:

[at 73] I think there are real concerns about her capacity to provide for the children’s psychological and emotional needs, especially because, despite the statement she make about supporting the relationship with the father, it is clearly the case that she does not support that relationship and cannot see the benefit to the children for it. 

63.In my view little has changed in these proceedings in relation to the mother’s capacity to recognise the benefit to the children of a relationship with their father.  In the most recent assessment interviews with the expert, it is noted that the mother displayed an obvious negative attitude to the father consistent with her expressed views in the past. However, the mother’s incapacity to meet the children’s emotional needs is of less significance in these proceedings where the father’s disengagement with the children is the most relevant consideration and there is currently no prospect of a relationship with him.

64.The father’s capacity was unable to be assessed by the expert as he did not make himself available.  In the April 2014 decision in the first parenting proceedings, the trial judge found that the father’s ability to provide for the children was “uncertain”.  The trial Judge went on to say “[the father] has a somewhat brash approach to the matter and would wish the court to accept that the last four years will be easily swept away and within a short period of time the relationship between the father and the children will be reconstituted”.  The father took a similar approach to the interim application in December 2015 and at that stage was seeking orders that the children live with him.  While similar orders were initially sought by the father in these proceedings, it can be taken through his lack of engagement that he has abandoned any application for the children to live with him or for him to play any role in their future lives.  In these circumstances the issue of the father’s capacity is not a weighty consideration.

65.The mother clearly has a loving attitude towards the children and has cared for them well throughout their lives.  The father previously displayed an attitude that his children were important to him and for many years pursued a relationship with them through seeking parenting orders.

66.Both parents in my view have shown a poor attitude to the responsibilities of parenthood.  So far as the father is concerned, this is demonstrated in his complete failure to support the children at any time since separation, other than to provide the funds for the mother’s relocation to Adelaide as he was required to do under the orders.  This attitude is also evident in the father’s failure to take steps to rekindle the relationship with his children and be a father to them following the failed reunification and his non engagement in these proceedings, including in failing to meet with the expert. 

67.Although the mother has generally had a good attitude towards her responsibilities regarding her children, in my view, she has a significant blind spot with respect to promoting the children’s relationship with their father and a determination to act in a manner which she believes is in her children’s best interest which does not necessarily accord with findings and orders of the court.  In my view, the mother is particularly disingenuous when initially explaining her decision to relocate the children to Perth a short time after an application made to the court seeking permission to do so was dismissed.  In my view the mother’s motivation to relocate to Perth had more to do with her desire to pursue her choice of employment and her own relationship than her responsibilities as a parent.

Family violence

68.It is not the mother’s case in these proceedings that family violence is a relevant issue.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

69.In my view, in circumstances where the father has disengaged in the proceedings it is unlikely he will institute further proceedings in relation to the children.  This is particularly so when he did not institute further proceedings after the attempt at reunification failed even though the children remained in South Australia until January 2016.

Summary and conclusion

70.The mother is not seeking to revisit final orders with respect to parental responsibility or the children’s living arrangements.  The only matter under consideration is her relocation to Perth, and the children’s time with and communication with their father.

71.When the mother recommenced these proceedings the father was actively engaged in them and it may have been expected that the final hearing would have involved a real testing of the mother’s proposed orders that almost completely excludes the father from a role in the children’s lives.

72.However, through his own actions in taking no steps to pursue a relationship with his children, the father can be taken to have conceded that there is no benefit to them in having a meaningful relationship with him and that he does not wish to play any further role in their lives.  In circumstances where the mother has for many years held sole parental responsibility and made all decisions for the children, where no current relationship between the children and their father exists, and where the mother has met most of the children’s needs and been a competent parent, I am satisfied that the orders proposed by her are in the best interests of the children.  For this reason made those orders when the matter was heard on a final and undefended basis.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 October 2016.

Associate: 

Date:  27 October 2016