Conn and Conn

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONN & CONN

[2015] FCCA 128

Catchwords:
FAMILY LAW – Parenting orders – whether orders should provide for sole parental responsibility – failure of father to attend final hearing – whether matter should proceed on an undefended basis.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 65AA, 60CC, 61C, 61DA(1)(2)(4), 65DAA(1), 65DAA(2), 60CC(2)(a), 60CC(2)(b), 660CC(3)(a), 60CC(3)(b), 60CC(3)(ca), 60(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(j), 60(3)(1), 60CC(3)(m).

Applicant:

MS CONN

Respondent:

MR CONN

File Number:

MLC 10155 of 2011

Judgment of:

Judge Jones

Hearing date:

17 November 2014

Date of Last Submission:

17 November 2014

Delivered at:

Melbourne

Delivered on:

23 January 2015

REPRESENTATION

Solicitors for the Applicant:

Self Represented

Solicitors for the Respondent:

Self Represented

Solicitors for the Independent Children's Lawyer:

Ms Lonergan

ORDERS

That all previous parenting orders be discharged.
The children W born (omitted) 1998 (“W”), X born (omitted) 2000 (“X”), Y born (omitted) 2005 (Y”); and Z born (omitted) 2011 (“Z”) (collectively “the children”) live with the mother.
The mother have sole parental responsibility for the children.
The children, Y and Z, spend time with the father as follows:
(i)each alternative weekend from 10:30am Saturday until 6.00pm on Sunday;
(ii)each Tuesday from 4:30pm to 7:30pm;
(iii)in the second half of the Victorian gazetted school holiday periods on each Tuesday and Thursday from 10.00am until 5.00pm;
(iv)for a period of 4 hours on Christmas Day, by agreement between the parties, but failing agreement from 2.00pm until 6.00pm;
(v)as otherwise agreed.
The father is restrained by injunction from doing the following:
(a)acting in a provocative or aggressive manner in the presence or hearing of the children;
(b)discussing adult issues and adult topics in the presence or hearing of the children;
(c)denigrating the mother to the children or in their presence or hearing;
(d)discussing future parenting arrangements with the children.
The father shall ensure that the children, during the time spent with him in accordance with order 4, continue with their activities or extra-curricular activities on Saturdays and Sundays.
The father shall deliver Z’s passport to the Melbourne Registry of the Federal Circuit Court of Australia no later than 17 February 2015. On or after 20 February 2015 the mother shall be permitted to collect Z’s passport from the Melbourne Registry of the Federal Circuit Court of Australia.
The mother is authorised to apply for and receive an Australian passport for the children W born (omitted) 1998 (“W”), X born (omitted) 2000 (“X”), and Y born (omitted) 2005 (Y”); without first obtaining the written consent of the other parent.
The mother shall retain possession of the children’s passports, which shall be provided to the father upon request and subject to order 10 below, and returned to her by the father at the completion of the international travel.
Each of the parents be permitted to take a child or children on an overseas or interstate holiday for up to 2 consecutive weeks once every 2 years with the written consent of the other party and subject to:
(i)6 weeks’ notice being given by the travelling parent to the other parent with the other parent to provide written consent of the travel in writing within 7 days;
(ii)the other parent not unreasonably withhold their consent;
(iii)the travelling parent provide a full itinerary and contact numbers and details to the non-travelling parent;
(iv)the non-travelling parent be permitted to telephone the children every second day of the travel period with the travelling parent to facilitate such calls, the time to be agreed between the parties and failing agreement at 6.00pm (in the time zone of the holidaying parent);
(v)the extra time spent with the children during the holiday to be made up with the other parent before OR after the holiday period, with the non-travelling parent to decide on the make-up days.
The Independent Children’s Lawyer be discharged

AND THE COURT NOTES:

A.Liberty to the father to apply to have these orders set aside within 28 days of this order.
B.Pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10155 of 2011

MS CONN

Applicant

And

MR CONN

Respondent

REASONS FOR JUDGMENT

These parenting proceedings were commenced by the applicant mother, who has now changed her name to Ms Conn (“the mother”) in relation to four children of her relationship with Mr Conn (“the father”). The mother made her initiating application because of risks she believed had arisen whilst the children were in the care of their father pursuant to consent parenting orders made by Registrar Riddiford on 15 November 2011 (“the 2011 Orders”).
The children are:
·W born (omitted) 1998 (“W”);
·X born (omitted) 2000 (“X”);
·Y born (omitted) 2005 (Y”); and
·Z born (omitted) 2011 (“Z”).
(collectively “the children”).
The mother was born on (omitted) 1980 and the father was born on (omitted) 1976. The parties commenced cohabitation and married on (omitted) 1999 and separated on 14 October 2012. The mother works as an (occupation omitted) and the father is unemployed.
Pursuant to the 2011 Orders, the parents had equal shared parental responsibility for the children, the children lived with the mother and spent time with the father each alternate weekend from 5.00pm Friday to 5.00pm Sunday and each Tuesday or Wednesday from 4.30pm to 7.30pm. There was provision for the father to spend time for a seven day period in the long school summer break and in the mid-year holidays (July) together with special occasions. Until Z was two years of age, her time with the father was confined to daytime. Orders were included for both parties to travel interstate and overseas for up to two consecutive weeks, every two years subject to the provision of written notice by the parent wishing to travel.
The mother filed a Notice of Risk together with her Initiating Application on 14 August 2013, alleging the father had disclosed inappropriate sexual material to W, subjected the children to emotional abuse by way of text messages and made threats to the children of harming the mother.
The father did not attend the first Court return date. By orders made on 23 September 2013, orders 2 and 3 of the 2011 orders in relation to the father’s time with the children were discharged and the parties were ordered to attend a child inclusive conference pursuant to s.11F of the Family Law Act 1975 (Cth) (“the Act”). The father failed to attend the s.11F conference.
At the next Court return date on 6 November 2013, (which the father again failed to attend), Family Consultant, Mr B, gave an oral report. He said, having interviewed the mother and all children, except Z, he had the following concerns regarding the welfare of the children in their father’s care:
a)The father’s alleged continuing use of cannabis;
b)Family violence during the relationship which the children were exposed to. Mr B said that both W and X confirmed this;
c)Ongoing erratic behaviour by the father towards the children and continuing verbal and emotional violence directed to the children;
d)Behaviour suggesting an extremely low, if any, insight into the needs of the children; for example, divulging to the two older children details regarding his past sexual life with their mother. Mr B said that both the girls told him that they found this behaviour both embarrassing and humiliating.
Orders were made by the Court on 6 November 2013 appointing an Independent Children’s Lawyer (“the ICL”) and providing for the father to undertake random drug screens at the request of the ICL.
The father appeared at the next Court return date on 13 December 2013. A further s.11F child inclusive conciliation conference was ordered. The father was ordered to attend upon a psychiatrist nominated by the ICL for assessment and report and to attend drug and alcohol counselling. The two older children, W and X, were not interviewed by the family consultant because of their refusal to participate in those proceedings. It was agreed as between parent and family consultant that they should not be made to engage in a process they felt so strongly about.
On 19 March 2014, orders were made for the father to spend supervised day time with Y and Z. Orders were also made for the preparation of a Family Report. The orders provided that Ms L (who was at the time the father’s partner) supervise the father’s time.
On 3 July 2014, orders were made for the father to spend unsupervised time with the children on alternative weekends from Saturday 10.30am to 6.00pm Sunday, each Tuesday from 4.00pm to 8.00pm and, in the second week of the school holidays, on Tuesday and Thursday from 10.00am to 5.00pm and for a period of 4 hours on Christmas day and otherwise as agreed between the parties. Time spent was conditional on the father providing clean urine drug screens pursuant to the request of the ICL, proof that he attends and continues to attend upon the “Stepping Up” program and proof that he has enrolled in and/or completed an Anger Management Course. The orders restrained the father from acting in a provocative or aggressive manner in the presence or hearing of the children, discussing adult issues and adult topics in the presence or hearing of the children, denigrating the mother to the children and discussing future parenting arrangements with the children. The order also provided that the father ensure the children continue with their activities or extracurricular activities on Saturdays and Sundays upon the commencement of overnight time. The matter was otherwise adjourned for final hearing on 17 November 2014
The father failed to appear at the hearing on 17 November 2014. The mother and the ICL asked the Court to proceed to hear the matter on an undefended basis. For the reasons set out below I decided that the matter should proceed to final hearing on an undefended basis. I noted that I would include a notation that the father have leave to apply within 28 days of any orders made by the court.
The father has shown a disinclination to attend Court hearings and to participate in intervention strategies. He has failed to provide drug screens upon each occasion requested by the ICL. He has failed to provide evidence that he has completed a Men’s Behavioural Change program as he was ordered to do. Text messages sent by the father to the mother in early September 2014 are to the effect that he was not going to attend said programme because the mother did not cooperate with his desire to see the younger children on days other than those provided in the orders of the Court (exhibit M1, tendered 17 November 2014). The mother says, and I accept this, that the father has on numerous occasions texted her and said he does not intend to attend Court proceedings. She says he did this only recently saying that he would not attend the final hearing set down for 17 November 2014 as he would not waste his time. The mother has produced text messages sent by the father in early 2014 in which he states “I’m not going to court I swell (sic) my life I will never go to court again” (exhibit M1, tendered 17 November 2014). The father has filed one affidavit which generally is comprised of a series of criticism of the mother and an emotional appeal to see his girls. His failure to provide a Response in an appropriate form and affidavit which covers relevant matters is likely the consequence of his literacy problems. He says he can’t read.
Although the father has not specified the Orders he seeks in written form, he has told the Court on the times that he has appeared that he just wants to see Y and Z. It appears he no longer seeks to have time with W and X, given the strong views they have expressed about spending time with him.
When the father first attended Court his presentation belied the observations of his children and Mr B in his Family Report regarding his behaviour. The father is a tall man and well built. On the first two occasions when at Court he burst into tears when stating that he loved his girls and just wanted to see them. I explained to him that the issue was not whether he loved his children but whether he could provide a secure and safe environment for them when they were in his care. I also stated to him that his behaviour in Court was demonstrative of the behaviour complained about by the mother and children and commented on by the Family Consultant.
I can say that over the next Court dates, the father’s presentation improved and indicated a better control of his emotional faculties. I have not had the benefit of his sworn evidence nor the testing of the expert evidence. However, it seems that the father never really appreciated the risk factors to his children caused by his behaviour. In reality he seemed to me not to have developed an emotional or intellectual capacity to appreciate and appropriately respond to and manage his children’s needs.
I am satisfied that the father was aware that this matter was listed for final hearing on 17 November 2014. He has made it clear that he does not intend to participate in these proceedings.
These proceedings have continued over a period of one year and ought to be brought to finality.

Documents Relied On

The mother relies on her Initiating Application filed on 14 August 2013, Notice of Risk filed on that same day, together with her affidavits filed 14 August 2013, 12 March 2014, 10 April 2014 and 13 October 2014. She also relies on the Family Report prepared by Mr B dated 12 June 2014 and the following exhibits:
·M1 – text messages from father to mother dated 1 September 2014 to 3 September 2014 tendered on 17 November 2014;
·M1 – intervention order dated 14 August 2013.
The ICL relies on the report of Dr P dated 28 February 2014 (ICL 1) and the Family Report prepared by Mr B dated 12 June 2014.
The father filed an affidavit 29 January 2014. His then partner, Ms L, filed an affidavit on 11 March 2014. I have had regard to these affidavits in framing earlier interim orders. Given the father’s failure to attend at final hearing, I have given these affidavits little weight.

Proposals of the Mother and ICL

The mother and the ICL seeks the following orders:
a)That all previous parenting orders be discharged.
b)The children W born (omitted) 1998 (“W”), X born (omitted) 2000 (“X”), Y born (omitted) 2005 (Y”); and Z born (omitted) 2011 (“Z”) (collectively “the children”) live with the mother.
c)The mother have sole parental responsibility for the children.
d)The children, Y and Z, spend time with the father as follows:
i)each alternative weekend from 10.30am Saturday until 6.00pm on Sunday;
ii)each Tuesday from 4:30pm to 7:30pm;
iii)in the second half of the Victorian gazetted school holiday periods on each Tuesday and Thursday from 10.00am until 5.00pm;
iv)for period of 4 hours Christmas Day, by agreement between the parties, but failing agreement from 2.00pm until 6.00pm;
v)as otherwise agreed.
e)The father’s time under order 3(iii) be suspended during the period 17 January 2015 to 26 January 2015 with provision for make-up time as agreed between the parties.
f)The father is restrained by injunction from doing the following:
i)acting in a provocative or aggressive manner in the presence or hearing of the children;
ii)discussing adult issues and adult topics in the presence or hearing of the children;
iii)denigrating the mother to the children or in their presence or hearing;
iv)discussing future parenting arrangements with the children.
g)The father shall ensure that the children, during the time spent with him in accordance with order d, continue with their activities or extra-curricular activities on Saturdays and Sundays.
h)The father shall deliver Z’s passport to the Melbourne Registry of the Federal Circuit Court of Australia no later than (insert date). On or after (insert date) the mother shall be permitted to collect Z’s passport from the Melbourne Registry of the Federal Circuit Court of Australia.
i)The mother is authorised to apply for and receive an Australian passport for the children W born (omitted) 1998 (“W”), X born (omitted) 2000 (“X”), Y born (omitted) 2005 (Y”); and Z born (omitted) 2011 (“Z”) without first obtaining the written consent of the other parent.
j)The mother shall retain possession of the children’s passports, which shall be provided to the father upon request and subject to order k below, and returned to her by the father at the completion of the international travel.
k)Each of the parents be permitted to take a child or children on an overseas or interstate holiday for up to 2 consecutive weeks once every 2 years with the written consent of the other party and subject to:
i)6 weeks’ notice being given by the travelling parent to the other parent with the other parent to provide written consent of the travel in writing within 7 days;
ii)the other parent not unreasonably withhold their consent;
iii)the travelling parent provide a full itinerary and contact numbers and details to the non-travelling parent;
iv)the non-travelling parent be permitted to telephone the children every second day of the travel period with the travelling parent to facilitate such calls, the time to be agreed between the parties and failing agreement at 6.00pm (in the time zone of the holidaying parent);
v)the extra time spent with the children during the holiday to be made up with the other parent before after the holiday period, with the non-travelling parent to decide on the make-up days.

The Evidence

The mother says that her relationship with the father was marked by physical and emotional family violence by the father towards her. She describes persistent hitting, kicking and punching by the father. She says that the father was controlling and manipulative. The father denies this violence, saying that he responded to the mother hitting and scratching him. It is to be borne in mind that at the commencement of the relationship the mother was only 16 years old. The mother is also short and petite in build. The father is tall and muscular in build. The mother also says the father abused drugs. The father agrees he smoked cannabis but says the mother encouraged him to do so. He deposes that he stopped smoking cannabis in December 2013, he has been to the “Stepping Up” program in (omitted) and gone to drug counselling sessions. The mother says the children were exposed to the family violence and that the father also physically assaulted the children when he had engaged in heated arguments with them. She says she terminated the relationship because she could no longer tolerate his violence.
The mother says the father made very serious threats of harm to her and the family during fits of rage soon after separation. The mother has produced an Intervention Order dated 14 August 2013 which varies an order made on 28 November 2012. The mother and the children are affected family members. The Intervention Order expired on 28 November 2013. In her affidavit filed on 12 March 2014, the mother deposed to abusive text and phone messages from the father accusing her of stopping the children from seeing him. She also deposed to the father discussing the proceedings with Z, who was then only two years old. In her affidavit filed on 10 April 2014, the mother described uncontrolled and aggressive behaviour by the father towards her after the cessation of his relationship with Ms L. The behaviour was whilst the mother was at home and the children in the house. The mother told Mr B that the abusive messages she had received in the past have not been repeated of late.

The mother does not doubt that the father loves his children and that the younger girls enjoy his company but says he does not have the skills necessary to adequately interact and cope with the children. She observes that he is really just like a child himself. The mother says that if she says or does anything that the father does not like, he refuses to talk to her, refuses to help her pay for things for the children, refuses to give the children things, to see them or to take them out on activities that he had planned to engage in. In other words, he retaliates in a way that is like a tantrum.
She says the father pays $15 a fortnight child support for the children and that comes out of his Centrelink payments. Her evidence is that he is living a good life claiming Centrelink benefits. He had a (omitted) business when they were together and when they were separating, he cancelled his ABN, he cancelled his insurance and sold the truck. Since then he has gone and bought another truck and, she says, is still running the business and has been doing so since they separated but on a cash-in-hand basis. She says he has all this equipment at his house and has just purchased a BMW convertible motor vehicle. She says when W turned 16 years of age he bought her a motor vehicle which she insured for $12,000. She now pays the insurance.
She says that W and X have now settled and are no longer displaying the anti-social behaviour that had arisen following separation.
The mother says that the father was erratic in spending time with the children in accordance with the consent orders. His decisions about what time he would spend with the children reflected his needs only. Also, there was a serious deterioration in his relationship with W. By early 2013, the parties agreed that alternate weekends were not working and that the father should spend time with the children one night each weekend. During this time, X’s relationship with the father soured and she commenced refusing to spend time with him.
The mother says the orders she seeks reflect what has been happening in recent times and she believes they work well for Y and Z. In cross examination she stated that if Y and Z asked for more time with their father, provided it was in the best interests, she would facilitate that.
The mother says that she believes she should have sole parental responsibility for the children as the father has never shown any interest or involvement in the children’s education and she doubts that he is even aware of what school year they are in. She says the fact that the father is illiterate means he has little respect for or understanding of the benefits of education for children. She says during any time the father has had contact with school staff he has behaved inappropriately.
In cross examination, the mother described her capacity to communicate and consult with the father about important issues for the children as impossible. She says that, with the father, it’s all about what he wants and not what the children want or need.
She says that she proposes the father spend time from Saturday morning to Sunday evening each alternate weekend because the father makes no attempt to ensure the children get to the extra curricular or school activities on weekends. She says experience has shown that he is just not reliable when longer time is made available to him.
The mother says that she wants litigation to end and provide some closure for her and the family.
A psychiatric report of the father was prepared by Dr P (exhibit ICL 1). Dr P noted an absence of formal psychiatric disorder but observed as follows:
·The damaging effects of the father’s upbringing, involving emotional abuse and physical intimidation, resulting in impaired parental models;
·The father has “significant personality vulnerabilities;
·The father’s ability to be a consistent and reliable parent has been significantly limited by the social consequences of his actions;
It was Dr P’s opinion, however, that there was no psychiatric constraint to the father having “unsupervised access” to the children.
A Family Report was prepared by Mr B and dated 19 March 2014. W and X also refused to engage in the interviews scheduled for preparation of the Family Report.
Mr B describes the mother as a “most settled and sensible woman.” He opined that it is to her credit that notwithstanding a difficult and abusive relationship with the father, she has remained child focused and supportive of the two younger children having a relationship with the father. Mr B described the father as “voluble and uncontained constantly speaking over this writer in in a fairly uncontrolled, garrulous, belligerent and illogical manner.”
Mr B stated in his report in relation to the two younger children:
“observations of Z indicate that she is familiar with and has a good relationship with both parents. Given that she has been in the continuous care of her mother since birth, there is no doubt that her primary attachment is with the mother but that she also appears to accept her father and gains considerable joy and comfort from his presence [50];
Y presented as friendly and settled and interacted in composed and confident manner with this writer. Y was able to comment quite comprehensively about her experiences at her mother’s home, and her interactions with her siblings. Overall, her narrative was consistent with the child that is receiving a good level of emotional and physical care by her mother. In relation to her father, Y stated that she did enjoy her time and described activities such as going bowling and playing with her father and younger sister. Asked specifically about what she thought of spending overnight time wither (sic) father, Y thought for a short time before replying that she was “not sure” about how she felt about this issue, however she also did not seem alarmed or dismissive of the prospect. Whilst Y appeared somewhat non - committal on the issue of overnight time with her father, she was quite clear that she wished to still continue spending time with him.” [51].
With respect to the mother’s allegations of family violence and the father’s capacities as a parent, Mr B said the following:
“The commentary by both DHS and the Victoria Police regarding Mr Conn would all appear to be similar, and tend to mirror the allegations and assertions made by Ms Conn and her older daughters about the character and behaviours exhibited by Mr Conn throughout the course of the relationship[52];
the observed presentation of the father, and the evidence from other sources, including a psychiatric report tends to suggest quite strongly that the scenario of the pre-and post separation period is most likely to be as described by the mother rather than the father [54];
Mr Conn appears to have considerable problems interfacing with authority, and is particularly prone to acting in a negative manner if he is challenged be it by an authoritative figure, or by his teenage daughters or ex-wife. In such instances Mr Conn becomes volatile and cannot contain his emotions [56]”;
The father will require fairly firm boundaries as a result of inability to regulate and control his “somewhat aberrant and at times inappropriate behaviour[30]”
During his observations of the father when a s.11F conference was conducted by another family consultant, the father “began an episode of uncontrolled crying that lasted for considerable time. His narrative during this episode was that of a child, and his inner pain was palpable. While seemingly arguing his case, he was in fact exhibiting the vulnerable, damaged and helpless child that he has in fact remained, as a result of this unfortunate and abusive upbringing”[57];
“the father has basic skills to meet his children’s needs, however he behaves like a child with his children. Once W and X began the transition into teenage/adulthood, and thus challenged their father, he could only respond as does another child, with anger, and tantrums, instead of controlled, reflective, compassionate and contained parenting” [58];
“given Mr Conn’s overall presentation, it is unlikely he will change.”[59]. Mr B was of the view that intervention strategies are unlikely to be absorbed by the father given his lack of educational capacity and other personal resources .
Mr B noted that the mother is at a point in the proceedings where she wants closure, that she indicated that recently it appeared the father had moderated his difficult behaviour somewhat. Mr B opined that the mother would need to be, into the future as the younger children mature into teenagers, cautious and vigilant given the father’s “emotional and psychological baggage that he has not (and probably will not) dealt with”. This is because once children begin to challenge the father it is most likely that he may resort once again to the “ineffectual and inappropriate reactions and parenting practices that appear to have caused hs older daughters to distance themselves from their father.” [60] to [61].
During the interviews with Mr B, the mother expressed her desire to travel with the children overseas and to obtain and retain control of their passports. The father expressed his vehement opposition to this (see below).

APPLICABLE LAW

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s.60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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);
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s.60CA and s.65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s.65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s.65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

S.60CC – Best Interest of the Children

Primary considerations
Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both of the child’s parents

There is no dispute that the mother has a meaningful relationship with W, X, Y and Z.
The father’s relationship with the two older daughters, W and X is fractured. I am satisfied that this is as a consequence of his erratic behaviour in relation to spending time with them together with his immature and volatile responses to the challenges that they naturally pose as children who are teenagers moving into adulthood. Having regard to the evidence, I cannot be satisfied that W and X would benefit from an ongoing relationship with their father. Of course, if the father chose to take appropriate therapeutic and other steps to deal with the issues which have resulted in his limited and ineffective parenting capacity, then there may well be some benefit to W and X. However, I agree with Mr B, that, based on the father’s conduct and presentation during these proceedings, this is most unlikely to occur.
The father has a positive relationship with the two younger daughters, Y and Z. I accept that they enjoy and take pleasure from his company as he engages with them in various activities. I am satisfied that there is a benefit to these children of having a meaningful relationship with their father.
I am satisfied that the mother has conducted herself in a mature and child focused way at all times. She has been cautious and vigilant in relation to protecting children from inappropriate conduct by the father, whilst at the same time appreciating the need to facilitate an ongoing relationship by the father with Y and Z. I am satisfied that she will facilitate that relationship into the future and will adopt a protective and cautious approach if necessary. I am satisfied that the mother has adopted a realistic approach to the circumstances of the older girls. She has appropriately taken account of their views, acknowledging that their refusal to engage with their father in any way reflects his erratic and volatile responses to them.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

Of course the benefit to Y and Z from having a relationship with their father is limited by his ability to refrain from engaging in emotional or physical abuse towards these little girls. In other words moderating his tendency to revert to volatile responses when things do not go as he would like them. It appears from the evidence that over the course of the proceedings, the father has moderated his behaviour with the two little girls. As I have said, I am satisfied that the mother will act in a cautious and vigilant manner to ensure that these children are not exposed to abuse or family violence when in their father’s care.

Additional considerations
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

W is 16 and a half years of age and X is 14 and a half years of age. They have expressed their views forcibly when they refused to participate in interviews for the purpose of both a s.11F and Family Report. The mother’s undisputed evidence is that the father has behaved towards them in a highly inappropriate manner exposing them to sexualised versions of his relationship with their mother. Moreover, since separation, he has been inconsistent in the time he has spent with the children, including the two older girls. He has responded to the challenges that they pose as teenagers by getting angry and engaging in tantrums and retaliation. In these circumstances, it is unsurprising that W and X have largely refused to spend time with their father. Rather than changing his behaviour to that which is controlled, reflective, compassionate and contained, he has chosen, in effect, to “spit the dummy”. He has decided he does not want these daughters included in any orders he seeks for time spent.
I am satisfied that given their age and the undisputed evidence regarding the father’s conduct towards them, weight should be given to their views.
Y and Z are too young for their views to be taken into account.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

The mother has an established and positive relationship with all four daughters. She has been their primary caregiver all their lives. She has provided a settled and secure environment within which the daughters can develop and flourish and has displayed, by her actions, a child focused approach to them.
This is in contrast to the father’s relationship with the daughters. I accept Dr P’s opinion that the father has significant personality vulnerabilities and that his parental capacity has been significantly adversely affected by his upbringing and his social actions.
It appears that the father is only able to interact with his daughters in a childlike manner himself. He is simply unable to respond to stressors and challenges in an adult mature manner. The consequence of this is a dysfunctional, fractured relationship with his two older daughters. Given the age of Y and Z, the father’s engagement on a childlike basis appears to have provided these little girls with generally a positive experience to date.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child

The evidence is that it is the mother who has discharged the obligations to maintain the daughters of the relationship. The father pays a very small amount of child-support reflecting the income he derives from Centrelink benefits.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

I am satisfied that this is not a factor which arises in this case as the mother and father live a short distance from each other.

Section 60CC(3)(f) – the capacity of each of the child‘s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

This has been a significant issue in these proceedings because of the assessment by the experts of the father’s capacity to provide for the needs of the children, including their emotional and intellectual needs. The expert evidence is undisputed and corroborated by the mother’s evidence. I should say here that I found the mother to be a very credible witness, who by comparison with the father, was not given to any hyperbole, and who remained child focused at all times.

I am satisfied and I find that:
a)the father’s ability to be a consistent and reliable parent has been significantly limited by his damaging and abusive upbringing and the social consequences of his actions;
b)the father has considerable problems interfacing with authority, and is particularly prone to acting in a negative manner if he is challenged, by an authoritative figure, or by his teenage daughters or ex-wife. In such instances the father becomes volatile and cannot contain his emotions;
c)he lacks the emotional and intellectual maturity to meet the children’s needs, other than in a childlike way.
Consequently, the father has only a very limited capacity to provide for the emotional and intellectual needs of his children. There is no doubt in my mind that it has been the mother and will be the mother only who will have the capacity to provide for the emotional and intellectual needs of the children.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant

The evidence relevant to this consideration has already been dealt with.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant factor in this case.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The evidence relevant to this consideration has already been dealt with.

Section 60CC(3)(j) – any family violence involving the child or
a member of the child’s family; and Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the Court in, or in proceedings for, the order, and any other relevant matter

I have considered and made findings in relation to these factors earlier in this decision.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

The nature of family law orders is that they are prospective and therefore subject to changes in circumstances of the child or either of the parents and the usual vicissitudes of life.
It is no doubt preferable for the Court to make orders that are least likely to lead to the institution of further proceedings in relation to the children.

Section 60CC(3)(m) -any other fact or circumstance that the Court thinks is relevant.

There are no other facts or circumstances that the Court thinks is relevant.

Section 61DA(1) – Equal Shared Parental Responsibility

S.61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility. However, there are exceptions incorporated into the relevant provision.
S.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence. S.61DA(4) of the Act provides that the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the child for the parent to have equal shared parental responsibility for the child.
S.65DAC provides that, if two or more persons are to share responsibility for a child the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
S.65DAC(3) provides that an order for equal shared parental responsibility is taken to require each of the parents:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
I am satisfied that there was family violence during the relationship. The father conceded as much to the Family Consultant, although he failed to understand the seriousness of the physical violence nor appreciate that his yelling at the mother and children would be experienced by them as threatening and intimidating. After separation, the evidence is that the father has continued to engage in family violence, although its occurrence may have moderated. The evidence reveals a person who is unable to control himself when things do not go his way. He resorts to yelling, abuse and intimidating acts as his first response. No doubt this is a reflection of his sad experience as a child and other factors such as his illiteracy. There is no evidence that the father has made any attempt to address this issue despite being fully aware that his volatility and uncontrolled behaviour was an issue in these proceedings. As I am satisfied that there has been family violence and that it is a continuing factor, the presumption of equal shared parental responsibility does not apply. In addition to this, the evidence is that the father would simply be unable to engage in meaningful discussions with the mother regarding long term issues affecting the children. I do not believe it is within his intellectual and emotional capacity to do so. On this basis I am satisfied the presumption is rebutted. I would therefore order that the mother have sole parental responsibility for the children.
As I have found that the presumption of equal shared parental responsibility is rebutted and should not apply I am not required to consider sections 65DAA(1) or (2). However, I will consider what time the father should spend with his children, having regard to their best interests.
There is agreement that no order should be made for the two older daughters, W and X, to spend time with the father. W is now 16 and 1/2 years old and X is 14 and ¼ years old. Their relationship with the father is completely fractured. They have both made their views clear about spending time with their father. It is apparent by their behaviour in adamantly refusing to participate in the interviews conducted by the family consultant that they have no desire to be part of the proceedings or their father’s life. The father has no insight into the effect of his conduct on them. I am satisfied that, given his continuing limited capacity to manage and control his emotional responses to stress based triggers and consequently, his very limited capacity to understand and appropriately respond to the demands of teenage girls, it would not be in their best interest to include in a parenting order, time spent with their father.
The younger girls, Y (who is 9 years old) and Z (who is 3 years old) have a positive relationship with her father and enjoy their time with him. However, the fact remains that the father has limited capacity to manage stressors which arise inevitably from caring for young children over a period of days. The evidence also is that he takes no interest in ensuring that the children attend activities which they clearly enjoy on the weekend. The father has a limited capacity to be a reliable and consistent parent. I am, therefore, satisfied that it is in their best interests to spend no more than one overnight period each alternate week with him together with daytime after school in each week during the school term and additional daytime during the second half of school holidays.

Passports for the children

The mother, who has been at all times self-represented, did not include in her Initiating Application, orders relating to passports for the children. Her proposal was ventilated during the course of interviews by the Family Consultant.
The mother says that the father took the children’s passports off her some time ago. W, X and Y’s passports have expired. She says she is of (country omitted) origin and has relatives in (country omitted) and (country omitted). She has no immediate plans to travel there but would like to be able take the children on a holiday to meet her family and relatives sometime in the future.
She says the consent orders provided for the parties to travel with the children overseas subject to written notification and communication by the non-travelling parent with the children during the trip.
The father made it clear to the Family Consultant that he was vehemently opposed to the mother travelling overseas with the children. Mr B stated this in his Family Report at [45]:
“ When the issue of the possibility of his ex-wife travelling with children (sic) overseas was raised Mr Conn’s level of distress increased significantly with him displaying an inordinate amount of anger. Mr Conn indicated that if this became an issue he would spend any money that he could gain from selling any property or possessions he had to hire a lawyer and would continue fighting in the highest courts for the mother to be stopped from going overseas. Mr Conn indicated that his fears were that firstly the mother would not return with the children and secondly that “she wouldn’t be able to protect our kids at all” if she travelled overseas. Challenged that in fact he himself had travelled overseas with the two oldest daughters, and asked to comment why the same privilege could not be extended to all the children to travel with their mother, Mr Conn was once again observed to become highly agitated. He stated that when he had travelled with W and X he and his ex-wife were still together (sic). Mr Conn stated that now that he was separated he wouldn’t travel overseas, but if he then chose not to do this his ex-wife should also be prevented from doing so”.
There is, of course, a benefit to be derived by the children from travelling overseas and, in particular, to the country where her family and relatives reside. Notwithstanding, the fathers protestations to Mr B, there is no evidence before the Court regarding an unacceptable risk that the mother would not return to Australia with the children.
The mother says that she has not yet applied for passports for W, X and Y and then sought the father’s signature. She says she expects he will refuse to sign any passport application for these children. I am satisfied, given the father’s vehement position expressed to Mr B, that he will not sign any application form for passports for the three girls. I have formed the view that it would be unfair for the mother to go through a futile process of asking the father to sign passport application forms and then be required, once again, to initiate proceedings in this Court. I am satisfied therefore, that I should make an order that the mother be permitted to obtain a passport for the children, W, X and Y without the consent of the father.
For the same reasons, I am satisfied that Z’s passport, which will not expire until 2016, should be in the possession of the mother. Given the father’s behaviour towards the mother and his emotional stance regarding international travel, it is safe to conclude he would use his control of any passports to prevent travel by the mother with the children in an unreasonable way. It would be unfair for the mother to be forced to institute litigation once again to retrieve the passports.
I am satisfied that the mother should retain control of all the children’s passports because I am satisfied that she will respond in a reasonable manner to any request made by the father for the children’s passports for the purpose of travelling overseas. By contrast I am satisfied that the father would not respond in a reasonable way, if he retained control of said passports, to a request by the mother to travel with the children overseas.
Otherwise, I am satisfied that the orders sought by the mother and the ICL are in the children’s best interests.

Conclusion

For the reasons set out in this judgement, I make the orders above.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 23 January 2015

[2015] FCCA 128

23 January 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Remedies