DARROW & LANDON

[2014] FamCA 1117

FAMILY COURT OF AUSTRALIA

DARROW & LANDON [2014] FamCA 1117

FAMILY LAW – CHILDREN – Best interests – Where the evidence does not demonstrate that the children are at unacceptable risk of physical or psychological harm through exposure to family violence by either party or subjection to sexual abuse by the father – Where illicit drug use by both parties affected their parenting capacity – Where the father’s psychological disorder impairs his parenting capacity – Children to live with the mother – Where the children have not seen or spoken to the father in six months – Children to spend substantial time with the father after a graduated increase in the duration of their visits with him.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply because both parties perpetrated family violence upon the other – Where the parties are incapable of any civil communication – Where parental responsibility must be conferred exclusively on the party with whom the children live – Mother to have sole parental responsibility.

Births, Deaths, and Marriages Registration Act 1995 (NSW)
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D

AMS v AIF (1999) 199 CLR 160
Cales & Cales (2010) 44 Fam LR 376; (2010) FLC 93-459
Re David (1997) 22 Fam LR 489
Sampson v Hartnett (No.10) (2007) FLC 93-350; (2007) 38 Fam LR 315
U v U (2002) 211 CLR 238

APPLICANT: Mr Darrow

RESPONDENT: Ms Landon

INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

FILE NUMBER: NCC 2819 of 2012

DATE DELIVERED: 12 December 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 1, 2, 3, & 4 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Murray

SOLICITOR FOR THE APPLICANT: John Ticehurst & Co

COUNSEL FOR THE RESPONDENT: Mr C Boyd

SOLICITOR FOR THE RESPONDENT: Charlestown Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms D Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

Orders

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

   (a)       J Landon-Darrow, born … 2003;

   (b)       L Landon, born … 2008; and

   (c)       E Landon, born … 2010.

2. The parties are restrained from causing or permitting the children to be known by any surname other than “Landon-Darrow”.

3. The parties shall forthwith take all necessary steps to ensure that:

   (a)the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose:

   (i)the father’s paternity of the children; and

   (ii)the children’s surname as “Landon-Darrow”; and

   (b)fresh birth certificates issue for the children correctly reflecting the father’s paternity and their surname.

4. The parties are at liberty to provide a sealed copy of these orders to the Registrar appointed under the Births, Deaths, and Marriages Registration Act 1995 (NSW).

5. Other than as provided in Orders 2, 3, and 7 hereof, the mother shall have sole parental responsibility for the children.

6. The children shall live with the mother.

7. The mother is restrained from causing or permitting the children’s residence to be situated at a place more than a radius of 50 kilometres from the Post Office at Newcastle, NSW, without the father’s written consent.

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

   (a)       Up to and including Saturday 28 March 2015:

   (i)Each Saturday from 9.00 am until 5.00 pm; and

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

   (b)From Sunday 29 March 2015 up to and including Sunday 12 July 2015:

   (i)Each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on the second Saturday after the last visit pursuant to Order 8(a)(i) hereof.

   (c)From Monday 13 July 2015 up until the youngest child commences school:

   (i)During school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each term;

   (ii)For the first half of the Spring, Autumn, and Winter school holidays; and

   (iii)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays.

   (d)       From the time of the youngest child’s commencement of school:

   (i)During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, commencing on the first Friday of each term;

   (ii)During the Spring, Autumn, and Winter school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year; and

   (iii)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

9. For the purposes of implementation of Orders 8(c) and 8(d) hereof, the school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 6.00 pm on the last day preceding the day upon which the children are due to return to school, and the mid-point is noon on the day halfway between those first and last days.

10. Orders 6 and 8 hereof are suspended during the following periods:

    (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day in 2015 and each year thereafter, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years; and

    (b)Between 5.00 pm Saturday and 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.

11. For the purposes of implementing Orders 6, 8 and 10 hereof, the parties shall respectively ensure the children’s:

    (a)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

    (b)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

    (c)Collection from and return to the westbound Shell Service Station, Suburb D, NSW.

12. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

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

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

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

13. 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.

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

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

16. The mother shall inform the father, and keep the father informed, in writing, of the schools at which the children are enrolled.

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

18. Leave is granted to the parties to provide a sealed copy of these orders to the principal of any school attended by the children.

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

20. 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.

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

22. Costs are reserved for 28 days.

23. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2819 of 2012

Mr Darrow

Applicant

And

Ms Landon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings were commenced in the Federal Magistrates Court (as the Federal Circuit Court then was) in October 2012.

2. Whilst the litigation was before that Court, no less than six separate sets of interim parenting orders were made.

3. Ultimately, the proceedings were transferred to this Court in June 2014, when the mother first raised allegations of child sexual abuse against the father, which he fiercely denied.

4. The mother conceded the evidence of sexual abuse was too weak to permit any positive factual findings, but she maintained the father posed an unacceptable risk of harm to the children through sexual abuse. In light of the dramatic turn taken by the litigation in June 2014, it was somewhat surprising that issue did not dominate the hearing, but the case really remained what it always had been – a cluster of allegations and counter-allegations by the parties about their violent past, illicit drug use, and emotional instability.

5. Neither party was an optimal parent, but neither deserved to be marginalised in the children’s lives. The children’s interests would be promoted by each parent being able to monitor the performance of the other.

Background

1. The parties commenced cohabitation in either 2002 or 2003, married in 2006, and finally separated by September 2012. There was an inconsequential factual dispute about whether the parties briefly reconciled in December 2012 and again between October 2013 and January 2014 while these proceedings were pending.

2. Whatever its actual duration, the parties’ relationship was punctuated by several separations and reconciliations.

3. The parties’ three children were born in 2003, 2008, and 2010. They are now aged eleven, six, and four years respectively. The eldest child is a boy. The youngest two are girls.

4. The parties and the children lived within the Newcastle district, but in or about September 2012, which the father contends was about the time of final separation before these proceedings were commenced, the mother absconded to Queensland with the children and her new partner.

5. The father immediately instituted these proceedings before the Federal Magistrates Court and successfully obtained ex parte orders on 7 November 2012 for the children to live with him and for the children to be forcibly recovered from the mother if necessary. The children were shortly thereafter recovered by the father from the mother in Queensland and they returned with him to live in Newcastle. The mother also returned to live in Newcastle.

6. Further interim orders were made on 10 December 2012 for the children to live with the father and spend time frequently during each week with the mother. Those orders were contested, but were varied only days later by reversal of the children’s residence.

7. On 20 December 2012, fresh orders were made for the children to live with the mother and to spend substantial and significant time (amounting to five days each fortnight) with the father. The mother was compelled to live with the children at a particular address in Newcastle. Notably, those orders were made with the parties’ consent.

8. The occurrence of further disharmony between the parties in February 2013 prompted another interim dispute between them, which resulted in new orders made on 12 March 2013. The orders altered the time spent by the children with the father. Overnight visits were stopped, but the children still visited him on alternate weekends and on two afternoons each week. Again, those orders were made with the parties’ consent.

9. When the parties met with the Family Consultant later in March 2013, the mother told the Family Consultant she wanted orders for the children to spend time with the father as was then occurring under the current orders.[1]

   [1] Family Report, para 15

10. The interim orders were adjusted again on 17 April 2013 in some relatively minor ways, again with the parties’ consent. The time spent by the children with the father was not expanded.

11. The interim orders were adjusted again on 3 June 2013. They were changed to provide for the children to resume spending overnight time with the father each alternate weekend. Those orders were also made with the parties’ consent.

12. When the parties met with the single expert in December 2013, the mother told the single expert she was quite happy with the arrangement then in place and wanted final orders to reflect that regime, subject to the children also spending “block contact” with the father during school holiday periods.[2]

    [2] Single Expert Report, pages 2, 8, 9

13. On 17 June 2014, at a directions hearing, the Federal Circuit Court was informed of a recent allegation by the mother that the father sexually abused the youngest child. The Court then suspended all orders previously made by it and transferred the proceedings to this Court.

14. The sexual abuse allegation caused the proceedings to be entered into the Court’s Magellan protocol, by reason of which they were afforded expedition.

15. The mother made a further allegation of sexual abuse against the father in October 2014. She contended he also sexually abused the second child.

16. The proceedings were listed for final hearing at the first available opportunity, which was in December 2014.

Proposal of the father

1. The father eventually abandoned the parenting orders proposed in his Amended Initiating Application filed on 28 August 2014.

2. His final proposal, revealed in closing submissions, was outlined orally and only in broad terms.

3. The father conceded the children should live with the mother and that she should have sole parental responsibility for them. That was a momentous change, because he formerly proposed reversal of the children’s residence and allocation to the parties of equal shared parental responsibility.

4. He denied he presented any risk of harm to the children and therefore proposed that they spend “substantial and significant time” (s 65DAA(3)) with him after a relatively short re-introductory period.

5. More specifically, he proposed some daytime visits each weekend for up to a month, followed by another short period of weekend visits, which he envisaged might be supervised by a family member if the Court thought necessary, followed by commencement of unsupervised visits each school week and for half of all school holidays.

6. The father envisaged the regime would incorporate the children’s visits to him during school terms for five nights each fortnight – three in one week and two in the next. Alternatively, he proposed four nights in one week and a period of several hours after school in the intervening week.

Proposal of the mother

1. The mother abandoned her proposal for the orders set out within her Further Amended Response filed on 27 October 2014. Instead, she pressed for the orders set out within her minute of orders tendered at the commencement of final submissions.[3]

   [3] Exhibit M5

2. In essence, her proposal was for the children to live with her and for her to have sole parental responsibility for them. There was consequently no contest about that outcome.

3. She proposed the children would spend time with the father, ultimately on each alternate weekend and for periods during school holidays, but her proposal was couched in conditional terms. She wanted the children’s visits to the father supervised by a paternal family member until a medical report was furnished, at some indistinct time within the next two years, certifying the father’s attendance upon “mental health counselling” and compliance with his medication regime.[4]

   [4] Exhibit M5, Order 7.3

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer revealed her proposal by tendering a minute of the orders she sought at the commencement of closing submissions.[5]

   [5] Exhibit ICL2

2. She too proposed that the children live with the mother and that the mother have sole parental responsibility for them.

3. She also proposed graduation of the children’s visits with the father, culminating in 2016 with alternate weekends (Friday until Monday) and half of school holiday periods, but for only one week at a time.

4. The Independent Children’s Lawyer saw no need for the father to be supervised, but did propose joinder of the paternal grandmother to the proceedings as a party so she could be bound by an order that compelled her to assess the father’s suitability to care for the children on each and every visit and to unilaterally step in to suspend the visit if she adjudged the father unfit for that purpose.[6] As that proposal was debated, the Independent Children’s Lawyer conceded the paternal grandmother and the parties had been denied procedural fairness, since the idea was not raised with any of them until the evidence was closed. It was additionally conceded orders to that effect would imprudently abdicate the Court’s responsibility to decide what parenting arrangements were in the children’s best interests and invest the paternal grandmother with that power and obligation. The proposal was therefore abandoned.

   [6] Exhibit ICL2, Orders 2, 6, 7, 8, 9, 16

The evidence

1. The father relied upon:

   (a)His affidavit filed on 20 November 2014;

   (b)The affidavit of the paternal grandmother filed on 19 November 2014;

   (c)The affidavit of his sister, Ms W, filed on 19 November 2014; and

   (d)The affidavit of his other sister, Ms X, filed on 19 November 2014.

2. The mother relied upon:

   (a)Her affidavit filed on 19 November 2014;

   (b)The affidavit of her partner, Mr U, filed on 19 November 2014;

   (c)The affidavit of the maternal grandmother, filed on 19 November 2014;

   (d)The affidavit of the maternal grandfather, filed on 19 November 2014;

   (e)The affidavit of her sister, Ms V, filed on 19 November 2014; and

   (f)The affidavit of Ms B, filed on 8 March 2013.

1. The parties and Independent Children’s Lawyer also relied upon:

   (a)The Magellan Report, dated 3 September 2014, furnished to the Court by the NSW Department of Family and Community Services (“the Department”);

   (b)The Family Report prepared by the Family Consultant on 5 April 2013; and

   (c)The report dated 9 January 2014 prepared by the single expert psychiatrist, Dr S.

2. The Family Consultant and single expert were cross-examined and the evidence of both proved reliable and persuasive.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”), in which the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that 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 equal 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).

5. 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 best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. The Family Consultant reported, without challenge, she observed in March 2013 the children were relaxed and comfortable with the mother and they enjoyed spending time with the father, who was attentive to them.[7]

   [7] Family Report, paras 75-76

2. The single expert also reported, without challenge, he observed in December 2013 the children interacted warmly with both the mother and the father, although the eldest child was slightly more tense with the father than the two younger children. The single expert opined all three children have secure relationships with the mother and, while the two youngest children have quite secure attachments to the father, the eldest child’s attachment to the father is “more disorganized and less secure”.[8]

   [8] Single Expert Report, pages 9, 19, 25

3. The parties and Independent Children’s Lawyer eventually agreed the children should live with the mother and frequently spend substantial amounts of time in the care of the father. Their proposals manifested acceptance that the children have meaningful relationships with both parents which must be fostered to ensure they derive as much benefit from those relationships as they are able.

Section 60CC(2)(b)

1. Evidence of alleged child sexual abuse and family violence was adduced by the parties, though they had very different perspectives about those allegations.

Alleged unacceptable risk of sexual abuse

1. Notwithstanding the mother’s bald assertion on numerous occasions during the course of these proceedings that the father actually did sexually abuse both of the two youngest children, the trial commenced by her counsel conceding no such factual finding was sought. Instead, the mother’s case was confined to an assertion that the father posed an unacceptable risk of harm to the children through his subjection of them to sexual abuse.

2. The evidentiary premise for the alleged risk was confined to comments made by each of the two youngest children, mainly to the mother and investigating officers, in June, September, and October 2014.

3. On the evening of 4 June 2014, after returning from a visit to the father, the youngest child behaved and complained to the mother in a way which implied that some soreness she felt in her genitals was attributable to the father, though not necessarily to his impropriety. Because she was then still only three years of age and unable to speak in grammatical sentences, the precise nature of her complaint was indistinct and ambiguous.[9]

   [9] Mother’s affidavit, paras 109-111

4. The next day the mother inspected the child’s genitals while changing her. The mother deposed she found the child’s labia “bright red and swollen”, but she only told police the child’s genitals “appeared red”. For reasons which she was never asked to explain, the mother immediately and impulsively concluded, from what she heard the night before and what she then observed, that the child had been sexually abused the father. She rang her solicitor, the police, and members of her family. The police and members of the maternal family attended the mother’s home a short time afterwards.[10]

   [10] Mother’s affidavit, paras 112-113

5. When the child was invited, in front of an audience comprising at least the mother and police officers, to tell them all what she did at the father’s home, the mother alleged the child replied “Daddy got cock”. The child undoubtedly used those words because they were also heard and recorded by the police officers, though the police perceived the words carried a much different connotation from the mother.[11]

   [11] Exhibit M4

6. What the child meant by those words remains unknown, but her use of the word “cock” served to inflame the mother’s suspicion. She imputed it was a colloquial reference by the child to the father’s penis. It was not a word she had heard the child use before.[12]

   [12] Mother’s affidavit, para 114

7. It is hardly surprising the child’s use of such a word evoked some concern in the mother, but she regrettably lost the capacity to objectively consider alternate innocent explanations. The police records actually suggest the child said the words thus, in the form of a question: “Daddy got cock?”.[13] Construed in that way, the words are liable to be much more benign in meaning than the mother’s interpretation of an incriminating accusation by the child.

   [13] Exhibit M4

8. If the child actually used the words to ask a question, as the police imputed, she could have meant anything. She might, for example, have been showing off her knowledge of a new word she believed was salacious and might shock the adults to whom she was speaking. That seems a more plausible inference than the mother’s theory that she was alleging the father had used his penis to sexually molest her, causing inflammation and discomfort to her genitals. It hardly seems likely the father would have informed the child, in the course of his sexual abuse of her, that he was using his “cock” to do so. Any sexual abuse of the child would much more likely have involved furtive intimacy than a ribald running commentary by the father. Even if the child did learn the word “cock” in its colloquial sense from the father, or within his household, but in circumstances unrelated to her sexual abuse, then the mere fact she learned to use that word as a descriptive term for a penis has no logical bearing at all on whether she was or was not sexually abused.

9. In any event, the mother took the youngest child to the doctor for examination three days later.[14] The doctor’s records of that examination are in evidence,[15] so it is unnecessary to rely upon the mother’s memory of what then occurred. The doctor’s contemporaneous notes are much more reliable.

   [14] Mother’s affidavit, para 118

   [15] Exhibit ICL1

10. The examination of the child was “essentially unremarkable”. The child had “labial adhesions with no sign of infection or trauma”. The doctor “re-assured” the mother – which was presumably re-assurance that there was no physical sign of the child’s sexual molestation. That evidence is patently inconsistent with the mother’s uncorroborated evidence that the doctor told her the child appeared to be suffering from a “friction burn”, which evidence I do not accept.

11. Not only did the doctor not suspect any sexual abuse, nor apparently did the police. Although they issued a provisional apprehended violence order against the father for the protection of the child, the provisional order was discharged by the Local Court of NSW some weeks later in July 2014.[16] Despite the mother’s dissatisfaction with the decision, the police elected not to press any application for an apprehended violence order and declined to charge the father with any offence.

    [16] Mother’s affidavit, para 128; Father’s affidavit, para 35

12. The mother alleged the youngest child was highly resistant to any idea of her further visits to the father, which the mother implied demonstrated the child was fearful of further sexual abuse, but it is just as likely the child was by then well aware of the mother’s vehement opposition to her further involvement with the father and she was acting in response to that knowledge.

13. It was several months before there was any further material development.

14. On 20 September 2014 the youngest child drew a picture which she showed to the mother and her partner. The mother interpreted the drawing to be a shape like “a worm”. The child explained the drawing represented “Daddy” and when asked how, the child licked the index and middle fingers on one hand, placed them over her vulva outside her clothing, and said “that’s what Daddy does”.[17]

    [17] Mother’s affidavit, para 131

15. It should be remembered that by then none of the children had seen the father for many months. The mother acted to terminate all forms of interaction between all of the children and the father from the time the youngest child first complained about her genitals on 4 June 2014. So, on 20 September 2014, the child could only have been referring to some event months before, which entailed the father touching her genitals.

16. With her suspicion again elevated, the mother decided to interrogate the middle child by asking her “what do you do at Daddy’s house?”. The middle child told the mother the father “touches me down there” and “Daddy does not hurt me because he uses cream down there”.[18] Inferentially, the mother interpreted “down there” to mean her genitals.

    [18] Mother’s affidavit, para 132

17. The mother telephoned police the next day and arrangements were then made for the two youngest children to be formally interviewed by the NSW Joint Investigation Response Team on 7 October 2014. The mother was told by JIRT officers after the children were interviewed that there was insufficient evidence to charge the father with any offence.[19]

    [19] Mother’s affidavit, paras 136-139

18. The official summary of the interviews was tendered in evidence.[20] Both children were interviewed separately. In response to leading questions about whether the father ever touched her on the genitals, the middle child said “only when daddy puts cream on me and [the youngest child’s] rude part…because he said it might be red and it might be sore”. The child said her “rude bit” was sore when she “has a rash or a mozie [sic] bite”. She explained that the father used his fingers to apply the cream to “the outside of her rude bit” and the cream relieved her soreness. She said that was the only time the father touched her genitals. The youngest child was unable to be engaged by the officers in conversation in any meaningful way.

    [20] Exhibit M1

19. The middle child told police the mother applied cream to her genitals in the same way the father had done. The mother agreed in cross-examination it is not sexually abusive for a parent to apply cream to a child’s genitals for a therapeutic purpose.

20. The police notified the father their investigation came to nothing and the case was closed.[21] That decision was perfectly understandable because the middle child’s answers to the questions she was asked revealed nothing more than her empathetic physical care by a competent parent. Every doting parent applies cream to their child’s excoriated or inflamed genitals to relieve the child’s discomfort. The curiosity in this case is that the father repeatedly and emphatically denied that he ever did.

    [21] Exhibit M1

21. During his cross-examination, when referring to his daughters, the father went so far as to say “I have never touched their vaginas – inside or out”. The father’s reference to the word “vaginas” should be properly construed as a reference to their “vulvas”. Neither the children nor anybody else ever suggested the father touched their internal organs.

22. The father denied he had ever applied any cream to their genitals. He insisted he squeezed the cream on to their fingers and allowed them to apply the cream to their own bodies. Even when they were too young to do so themselves, the father insisted he summoned the paternal grandmother or his sisters to his house to apply the cream to the children’s genitals.

23. It was apparently uncontroversial that the two youngest children occasionally suffered urinary tract infections, which on at least one occasion required one of them to be presented at hospital for review and treatment. Otherwise, cream was topically applied to their genitals as a home remedy.

24. I do not accept the father’s blanket denials of touching any of the children on their genitals for any reason at any time in their lives. He admitted he had physically cared for each of the children in the past, including when they were babies and toddlers, which care included bathing, drying, and changing dirty nappies. It would have been quite impossible to provide such care to the children without his hand having touched their genitals at any time.

25. The mother urged an inference that the father falsely denied such innocent physical care of the children because he was consciously guilty of sexually molesting the children, but that analysis is too simplistic. The father was an unsophisticated person who appeared to think in quite concrete rather than conceptual terms. An alternate inference is just as – perhaps even more – likely. The father may have falsely denied such innocent physical care of the children because he reasoned the Court would wrongly conclude he had sexually abused the children if he admitted he had touched their genitals in any way. Of course, he should be chastened about his dishonesty, but dishonesty does not make him a sexual threat.

26. The evidence does not demonstrate that the children are at unacceptable risk of physical or psychological harm through subjection to sexual abuse by the father. There is no need to curtail or impose conditions upon the children’s expenditure of time with the father on that account. The Independent Children’s Lawyer agreed.

27. The mother must realise that to be correct as well. Although she proposed the imposition of supervision upon the children’s visits with the father for an initial period of about two years, the dispensation of supervision was dependent upon the father’s proven compliance with a medical regime to maintain his mental health, not to eradicate any risk of sexual abuse he posed.

Alleged risk of exposure to family violence

1. The parties spent an inordinate amount of time, effort, and expense to adduce evidence about their reciprocal allegations of the other’s commission of family violence. They told both the Family Consultant and single expert about it and they each devoted much of their affidavit evidence in chief to the topic.

2. Without implying any trivialisation of the family violence which certainly did occur between them, the issue is not greatly influential in, much less determinative of, these proceedings. The reasons for that are twofold. First, the parties each unequivocally demonstrated the issue was not of great importance to them. Secondly, even allowing for the past occurrence of family violence, there has been no clear evidence of its occurrence since September 2012.

3. It will be remembered the father alleged the parties finally separated in September 2012. Despite the mother’s assertion they finally separated months earlier in February 2012, she made numerous contrary admissions when directly challenged.

4. The mother lived in a separate residence from some point during 2012, but she still told the single expert they reconciled for about a month before September 2012.[22] She said in cross-examination: she regularly spent time with the father around September 2012; she spent one or two nights each week at his home around that time; she willingly took the children to his home; and they voluntarily spent several hours a day in each other’s company a “couple of days a week”, even as late as December 2013, while these proceedings were pending.

   [22] Single Expert Report, page 6

5. The mother has a younger child, conceived in late 2012 and born in June 2013,[23] who was not a subject of these proceedings. The mother and father submitted to parentage testing in respect of that child pursuant to orders made in November 2013, which disproved the father’s paternity. Although the mother said she knew all along the father was not the biological father of that child, the father obviously thought there was a chance he was, for otherwise he would not have demanded such a test be carried out. The inference is fairly available that the parties were still engaged in a sexual relationship at a time close to the mother’s conception of that child in late 2012.

   [23] Mother’s affidavit, para 2

6. The mother was not trapped in an abusive relationship with no means of escape. She was not compelled to go to the father’s home, since she had her own home. She was not compelled to let the father visit her home, because he would have been a trespasser without her consent to his entry. It could not have been the mother was afraid to call the police for help, because both parties had summoned police for assistance in the past. The mother voluntarily chose to continue her tumultuous relationship with the father. Either the parties were ignorant of the deleterious effects of their violent conduct upon the children or they chose to maintain their relationship with one another regardless.

7. Once both parties finally accepted their relationship was at an end, they still both acted in a manner that belies their current criticisms of each other. In December 2012, March 2013, April 2013, and June 2013 the parties agreed to a sequence of interim parenting orders under which the children lived with one or other of the parties and spent substantial amounts of unsupervised time with the other. The mother told the Family Consultant in March 2013 and the single expert in December 2013 that she wanted the orders to which she had agreed converted into final parenting orders.

1. The mother’s current attitude about curtailment of the children’s interaction with the father was galvanised by the belief she formed in June 2014, and again later in September 2014, that he had sexually abused the two youngest children. The mother filed two Notices of Child Abuse and Family Violence in August 2014 and October 2014, both of which exclusively alleged the father’s sexual abuse of the two youngest children, neither of which made any mention of family violence. The issue of family violence was plainly not at the forefront of the mother’s mind. Nor the father’s, because he did not file any Notice of Child Abuse and Family Violence at all.

2. Now, much later, the parties cannot reasonably point to and complain about the other’s behaviour prior to September 2012 merely because they perceive it will bolster their position in this litigation. It is disingenuous to do so.

3. Aside from some evidence about some vituperative remarks made between them in a public place in the absence of the children on an occasion in June 2014, at about the time the mother unilaterally acted to sever all interaction between the children and the father, there is no evidence of any conduct by either party since September 2012 that could reasonably amount to “family violence”. As the parties’ fraught relationship subsides into history, the chance of any further violent conduct between them diminishes.

4. The evidence is not such as to suggest the children are at appreciable risk of physical or psychological harm through exposure or subjection to family violence by either party. The risk cannot be ruled out, but it is not so pronounced a risk that it should result in the marginalisation of either party in the children’s lives. The risk of harm is sufficiently attenuated by ensuring that any exchange of the children between the parties occurs at the children’s school or at a public venue. The Court cannot make orders binding persons who are not parties to the proceedings but, if the parties have any sense at all, they would use family and friends to assist in the changeovers.

Best interests of children – additional considerations

1. Illicit drug use by both parties was an issue of significance to their past and present parenting capacity.

2. Orders for their respective participation in urinalysis were made in November and December 2012.[24] Those orders remained in existence until suspended by the Federal Circuit Court in June 2014.[25] Both parties submitted to drug tests prior to the suspension of those orders and each party’s test results were anomalous.

   [24] Order 4 made on 7 November 2012; Order 7 made on 10 December 2012

   [25] Order 1 made on 17 June 2014

3. The father’s last test prior to his consultation with the Family Consultant in March 2013 was positive for morphine, for which he offered an excuse.[26] Some of his subsequent tests were also positive, for which he offered more excuses.[27] The mother alleged the father was still “drug-affected” at around the time of the breakdown of their relationship,[28] which view the police also formed when they attended an incident involving the father in February 2013. The father told the single expert in December 2013 he had “not touched any form of illicit drugs for more than a year”.[29] Although the father provided some earlier clear urine screens, the single expert remained uncertain whether he was abstinent from drugs.[30] His intuition was right because the father certainly smoked marijuana in May 2014.[31]

   [26] Family Report, para 47

   [27] Father’s affidavit, paras 149-150, 202-205

   [28] Family Report, para 25

   [29] Single Expert Report, page 17

   [30] Single Expert Report, page 30

   [31] Father’s affidavit, para 205

4. The mother submitted to a drug test at the request of the Department in March 2012, before the abovementioned urinalysis orders were made by the Court, and the laboratory reported the mother provided a specimen of synthetic urine substitute. Efforts to have her provide a fresh urine sample over the next month or so failed.[32] The mother’s more recent drug screens in 2014 were positive, for which she also offered excuses.[33]

   [32] Single Expert Report, pages 7, 8

   [33] Mother’s affidavit, paras 51-52

5. The mother told the single expert both she and the father were using drugs in the last four or five years of their relationship.[34] Given the mother’s contention their relationship finally ended in February 2012, she was therefore necessarily confessing her drug use up until that time. She later deposed to that fact.[35] She also told the single expert her random drug tests over the 12 months preceding her consultation with him in December 2013 were all clear.[36] Nevertheless, the single expert still held a “degree of uncertainty” about her drug use.[37] While the mother protested against any inference of her deceit over the fake urine sample, the most plausible inference is she was deceitful, just as the single expert was inclined to conclude. That deception occurred at about the time she was admittedly just giving up use of illicit drugs.

   [34] Single Expert Report, page 4

   [35] Mother’s affidavit, para 45

   [36] Single Expert Report, page 8

   [37] Single Expert Report, pages 29, 30

6. The mother brazenly said in cross-examination her past drug use was never excessive, but she previously told the single expert she smoked marijuana or a synthetic substitute up to 15 times a day for a prolonged period of time.[38] The mother was in denial if she did not regard that as an excessive level of drug use, for it plainly was.

   [38] Single Expert Report, page 8

7. The parties both said they only ceased use of the synthetic substitute for marijuana because it became illegal to use – not because they realised it was harmful to them or because it impaired their parenting capacity. Foolishly, both parties asserted their illicit drug use had no discernable effect upon their parenting capacity. The father said that to the single expert,[39] and the mother said that in cross-examination. Their drug use obviously was a serious problem because it brought them to the attention of the Department on literally dozens of occasions over the past decade. Many of those reports related to concerns about the mother’s capacity to care for the children because of her “ongoing drug use”.[40] Shortly after the parties separated in February 2012, the Department found all children in both households were subject to at least “moderate risk” of both neglect and abuse.[41]

   [39] Single Expert Report, page 17

   [40] Magellan Report, page 3

   [41] Magellan Report, page 4

8. It is possible the parties are now abstinent from use of illicit drugs, or have at least abated their use of them, but the evidence falls short of proving that on the balance of probabilities. Their mutually professed current abstinence is not convincing because of their respective unreliability as witnesses. If they continue to use illicit drugs, such drug use will continue to impinge upon their parenting capacity.

9. The father currently receives a disability pension because of his deteriorated psychological health, which has been in a precarious state for a long time. He admitted to the single expert he had consulted about six psychiatrists over many years and was currently prescribed anti-depressant medication.[42] Unwisely though, he denied any past suicidal ideation or the self-infliction of bodily injury, which medical records revealed did occur.[43]

   [42] Single Expert Report, page 13

   [43] Single Expert Report, pages 14, 15, 16

10. The father’s first contact with mental health services occurred in 1998. He sought further help on numerous other occasions in 2002, 2005, 2006, and 2012.[44] However, he was discharged from the constant surveillance of mental health services by December 2012 at the latest, which was confirmed by his last treating psychiatrist.[45]

    [44] Single Expert Report, pages 14-16; Exhibit M2

    [45] Single Expert Report, page 16

11. The single expert concluded the father had a vulnerable personality structure, best described as Dysthymic Disorder, which condition may be aggravated by “substance abuse”.[46] While the father is coping reasonably well at the moment, his underlying personality instability is unchanged and when subjected to stress his behaviour will likely regress. His medication regime helps, but does not render him “fully stress resistant”.[47] Sensibly, the father is now aware he will “go downhill again” if he stops taking his medication against medical advice.[48] He also admitted he has been warned of the possible link between his illicit drug use and his mental ill health, which must be an incentive for him to avoid drug use. The father’s psychological disorder undoubtedly impairs his parenting capacity.

    [46] Single Expert Report, pages 27-28

    [47] Single Expert Report, page 28

    [48] Single Expert Report, page 14

12. The single expert considered the mother to be a “competent and organised parent”, “the more child focussed parent” of the parties, and “significantly more capable” than the father.[49] That view seems to be generally vindicated by the evidence, though the mother’s parenting capacity is not optimal. She commendably conceded in her Case Outline that her parenting capacity was “compromised”.

    [49] Single Expert Report, pages 26, 27, 31

13. The mother may have a superior capacity to cater to the children’s physical needs, but her capacity to meet the children’s emotional needs is severely stunted in one important respect.

14. The mother said in cross-examination she did not think the father was an important person in the children’s lives and she would rather they did not have relationships with him. The mother even said she would not force the children to spend time with the father if they expressed a desire not to go. That was a particularly alarming confession since the children will likely express some reluctance to visit the father in the future. That is because they will become aware, if they are not aware already, of the mother’s distaste for the father and her opposition to their continued interaction with him. The children will intuitively react to the mother’s verbal and non-verbal cues. Unfortunately, the maternal grandmother and maternal aunt hold similar negative views about the father and the children’s continuing association with him, so the children will perceive the exertion of pressure upon them from several sources.

15. Despite the mother’s unambiguously negative views about the father, she insisted she would comply with the Court’s orders, even if they were not to her liking. Hopefully she can be taken at her word, for otherwise further litigation is likely and a reversal of the children’s residence will then need to be considered consonantly with the principles discussed in Re David (1997) 22 Fam LR 489 at 506-507. While the mother may have superior capacity to provide for the children’s physical needs, a pre-eminently important factor is the ability of the children to derive benefit from their loving relationships with the father.

16. The mother should remember the single expert’s caution that children who are able to maintain satisfactory relationships with both parents are less likely to experience emotional, behavioural, educational, and relationship difficulties in the future. In his view, that principle even applied in the specific circumstances of this family.[50]

    [50] Single Expert Report, page 30

17. There is no practical difficulty or expense in the children being exchanged between the parties with reasonable frequency. The parties’ homes are both in suburban Newcastle, about 15 minutes driving time apart. Both parties can drive and both have access to cars.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because of the incontrovertible evidence that both parties perpetrated family violence upon the other (s 61DA(2)).

2. The Family Consultant noted, without challenge, that on several occasions police were called to the family home due to complaints of family violence and the police found little, if any, evidence to vindicate one party’s allegations against the other.[51] The Family Consultant concluded, from the children’s reports and the records available to her, that the children had been exposed to many years of family violence.[52] Even the maternal grandmother admitted in cross-examination that the parties were “at each other’s throat” throughout their relationship. While the family violence may have been pervasive within the parties’ household, the evidence permits much more precise findings about instances of family violence.

   [51] Family Report, para 40

   [52] Family Report, paras 62, 63, 68, 92

3. In early 2010, the father was convicted of assaulting the mother. His conviction is conclusive evidence of his violent conduct towards the mother on New Year’s Eve in 2009.[53]

   [53] Family Report, para 40; Single Expert Report, page 12

4. For her part, the mother admitted in cross-examination that she struck the father in the face during an incident at the father’s home in September 2012. She said she did so because the father invited her to do so, not because she was acting in self-defence. It must follow that she perpetrated family violence on that occasion. The incident was sufficiently serious that police were summoned to attend. The police observed the father was injured as a result of the mother’s blow. The mother was argumentative with police and refused to follow their directions.[54]

   [54] Family Report, paras 31-32; Single Expert Report, page 13

5. Although the presumption of equal shared parental responsibility does not apply because of that family violence, parental responsibility for the children may still be allocated on an equal and shared basis to the parties, but such an outcome is untenable if the evidence suggests the children’s best interests would not be promoted by an order of that type.

6. The evidence proved the parties are incapable of exercising equal shared parental responsibility for the children in the manner required by law (s 65DAC). They are incapable of any civil communication in even the most benign circumstances.

7. When the father said in cross-examination he wanted equal shared parental responsibility for the children conferred on him and the mother, he was asked how they could reach agreement on anything, to which he simply said:

   I do not know.

8. The father also said during cross-examination, in respect of the mother, words to the effect:

   I don’t want to talk to her anymore.

   and:

   I can’t communicate with her. I’ve tried and it just doesn’t work.

9. For her part, the mother said during cross-examination, in respect of the father, words to the effect:

   I can’t talk to him about anything at the moment.

10. If the parties cannot even conceive how they might converse with one another then the prospect of their respectful and considered debate about issues of importance to the children is remarkably remote. The chance of any compromise being reached between them is even more remote.

11. Inevitably, parental responsibility for the children must be conferred exclusively on one of the parties and that must be the party with whom the children live. That conclusion accords with the recommendation of the Family Consultant[55] and the single expert.[56] The parties even realised the weight of the evidence necessitated that outcome.

    [55] Family Report, paras 111, 114

    [56] Single Expert Report, page 31

12. The children should live with the mother, because that was the result upon which the parties and Independent Children’s Lawyer eventually agreed.

13. The dispute distilled to the manner in which the children would spend time with the father.

14. The father is not an incompetent parent. He cared for the eldest child alone while the two younger children lived with the mother for periods during the parties’ separation in 2012,[57] and all three children lived with the father for about six weeks between November and December 2012 after execution of the recovery order. The mother was impelled to concede that when the children returned to her residential care in late December 2012 they were in good physical and emotional condition. Her only concern was about their dental hygiene, but she admitted she was not particularly diligent about their dental hygiene either.

    [57] Family Report, para 65

15. The Family Consultant recommended that the children should spend substantial and significant time with the father, but only once he furnished evidence of his drug abstinence and adherence to a mental health plan.[58]

    [58] Family Report, paras 113, 116, 118

16. The single expert also considered the father needed to have “regular contact with somebody who understands his personality vulnerability”, which the single expert envisaged would entail therapy with either “a psychiatrist or a clinical psychologist on at least a monthly basis”.[59] The single expert articulated his concern about the risk posed to the children by the father in three ways: first, his depressive withdrawal may leave the children neglected and without proper supervision; second, the children may be exposed to his anger and any suicide attempt he may make; and third, if he resorts to drugs and alcohol his behaviour may become even more unpredictable and impulsive.[60] Nevertheless, the single expert recommended the orders in force in December 2013, under which the children spent alternate weekends with the father, were “probably within the appropriate range”, subject to provision of extra time during vacations.[61]

    [59] Single Expert Report, page 28

    [60] Single Expert Report, pages 28-29

    [61] Single Expert Report, page 31

17. In apparent reliance upon those comments by the Family Consultant and single expert, the mother proposed orders that imposed stringent conditions upon the children’s expenditure of unsupervised time with the father. However, such conditions should not be imposed for several reasons.

18. First, the father and paternal grandmother have both repeatedly demonstrated an ability and willingness to recognise the onset of any symptoms in the father and seek out psychological help. They have done so many times in the past. The father credibly said in cross-examination, in reference to such help, “if I feel like I am going downhill I ring them”. The single expert described how the paternal grandmother had previously acted as the father’s “mental health gate-keeper”, implying his confidence in her commitment to the father.

19. The father did stop seeing the psychologist to whom he was recently referred,[62] but he explained he only had free access to 12 counselling visits and he wanted to save most of his credits so he could use them when the children resumed visits with him. His explanation was satisfactory and I reject the criticism levelled at him for that decision.

    [62] Exhibit M3; Father’s affidavit, para 169

20. The paternal grandmother confirmed the father had spoken to her about the prospect of them living together if his mental health declines, so he clearly has the support of the paternal family, several of whom gave evidence in his case.

21. Secondly, in cross-examination, the single expert was much less assertive than he had been in his report about the father’s need for regular therapy. He was only prepared to say the father would “perhaps” manage stress better if he had counselling, which falls well short of an opinion that such therapy would probably result in benefit, and he also acknowledged the father’s disorder could not be cured by therapy or pharmacology. The single expert also considered supervision of the children with the father was unnecessary if the father had avoided any psychological disintegration over the last 12 to 18 months, which is the case on the evidence adduced.

22. Thirdly, the conditions proposed by the mother were incapable of prescriptive enforcement.[63] She wanted an un-named therapist to report on the father’s psychological progress at some point within the next two years, but: when would the solitary report need to be supplied within the next two years? who would compile the report? why would a therapist chosen by the father be trusted by the mother as impartial and reliable? how would the therapist know if the father actually imbibed his prescribed medication? what if the therapist did not regard the father as needing regular therapy? what would happen if the mother was dissatisfied with the report? who would pay for the report? Although well-intentioned, the mother’s proposed order was doomed to fail and more likely to stimulate rather than quell further dispute.

    [63] Exhibit M5, Order 7.3

1. The father’s level of function may presently preclude him from capably caring for the children on a full-time basis but, save for one caveat, there is no convincing reason why the children should not spend substantial amounts of time with him.

2. The children have not seen or spoken to the father for six months. They will probably be anxious about re-introduction to him because of their awareness of antipathy towards him within the maternal family and the sudden way in which their interaction with him was broken off.

3. I accept the single expert’s evidence that it would be better to re-introduce the children to the father in a “slower way”, but that it need not take too long to graduate to a much more substantial regime of interaction. The idea of graduated re-introduction of the children to the father was not ultimately controversial, though there were different opinions about the rate of acceleration. There was also a difference of opinion about the nature of the parenting regime at the conclusion of the introductory phase.

4. The common position was that the children should eventually spend alternate weekends with the father, though the single expert refused to adopt the father’s proposal for those visits to extend to four or five night periods during school terms. The single expert also asserted the children’s school holiday visits to the father should be confined to periods of no more than one week at a time. I accept that evidence.

5. The orders therefore provide for the graduated increase of the children’s visits with the father over at least the next 12 months. The visits expand to their zenith once the youngest child begins school. It is probable, though not certain, she will commence school in the 2016 academic year.

6. The mother did not oppose the father attending the children’s school events, so no order is made precluding his attendance at their school.

7. The Independent Children’s Lawyer proposed that the children be exchanged between the parties either at school or at a contact centre, but both parties proposed use of a public venue other than a contact centre if it could not be done at school. A public venue will suffice as it should be sufficient deterrent to unpleasantness.

8. The Independent Children’s Lawyer proposed that the mother be restrained from moving the children’s residence beyond an area confined to the environs of Newcastle.[64] The mother was content to submit to a restraint of that sort, but wanted a less stringent restriction on the residential area available to her.[65]

   [64] Exhibit ICL2, Order 14

   [65] Exhibit M5, Order 4

9. Although the Court has power to make injunctive orders in relation to the place where children must live, such orders should only be made cautiously (see Cales & Cales (2010) 44 Fam LR 376 at [74]-[91]). That is because parents with whom the children live have as much residential freedom as is compatible with their obligations pertaining to the children (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210, 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350). Only when the welfare of the children would be adversely affected should a parent’s right of freedom of mobility defer to the paramount consideration of the child’s best interests (see U v U (2002) 211 CLR 238 at 262).

10. In circumstances where the imposition of a residential restraint is consensual, an order is made to that effect, but the mother is only restrained to the extent to which she was prepared to submit.

11. The children currently have different surnames.[66] The eldest child’s surname is registered as “Landon-Darrow” and the two youngest children’s surnames are registered as “Landon”. Both parties and the Independent Children’s Lawyer proposed that the children should have a common surname, but there was disagreement about what the surname should be.

    [66] Father’s affidavit, paras 140-143

12. The father proposed “Darrow”, but would be content with “Landon-Darrow”.

13. The mother was deliberately unspecific about which name should be used, as she left a blank space in her proposed order,[67] though she conceded she would accept the Independent Children’s Lawyer’s proposal.

    [67] Exhibit M5, Order 5

14. The Independent Children’s Lawyer proposed “Landon-Darrow”.

15. The Family Consultant recommended that the children’s surnames should incorporate the father’s surname[68] and she was not challenged about that recommendation. In view of the mother’s expressed antipathy towards the father, it will be helpful to retain the children’s paternal link if the father’s name features in their surname. That can be accommodated by a hyphenated surname. Since the children will live with the mother, her name should not be excised from the children’s surname and it would be preferable for her name to precede the father’s in the children’s hyphenated surname. The children should therefore be known by the surname “Landon-Darrow”. Their birth certificates need to reflect that name.

    [68] Family Report, para 120

16. The children’s paternity is not disclosed on the two youngest children’s birth certificates, which deficiency the mother has prevaricated over rectification.[69] An order is made compelling the parties to ensure that anomaly is rectified by the Registrar of NSW Births, Deaths, and Marriages. The mother apparently consents to the rectification.[70]

    [69] Father’s affidavit, paras 23, 139-142, 171-173, 191

    [70] Mother’s affidavit, para 148

17. The father and Independent Children’s Lawyer wanted, and the mother submitted,[71] to an injunction restraining her from allowing the children to come into contact with her former associate, Mr A. The Family Consultant considered Mr A posed a danger to the children’s safety,[72] so the injunctive order is made.

    [71] Exhibit M5, Order 9

    [72] Family Report, paras 101, 119

18. The remaining orders either reflect the residual proposals of the parties, about which there was no dispute, or are orders about which there could be no reasonable dispute.

19. Costs are reserved for 28 days to accommodate any costs application the Independent Children’s Lawyer might be obliged by the Legal Aid Commission to make.

    I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 12 December 2014.

Associate: 

Date:  12 December 2014