DRAPER & ROILAND
[2017] FamCA 636
•22 August 2017
FAMILY COURT OF AUSTRALIA
| DRAPER & ROILAND | [2017] FamCA 636 |
| FAMILY LAW – CHILDREN – With whom the children live – Where the children live with the mother and the father proposed reversal of the children’s residence – Where the children have meaningful relationships with both parents – Whether the children are able to derive a full measure of benefit from both filial relationships while they live with the mother – Where the father will promote the children’s relationships with the mother – Where the modest success of interim orders suggests it is unnecessary to take the drastic step of reversing the children’s residence – Where the mother vigilantly attends to the children’s medical needs, the mother’s financial circumstances are at least equal to the father’s, and it would be beneficial for the children to live with their half-sibling – Ordered the children live with the mother FAMILY LAW – CHILDREN – Parental responsibility – Where the parties cannot share parental responsibility – Where the parties do not trust each other – Where the mother has stopped speaking with the father altogether – Concluded sole parental responsibility should vest in the parent with whom the children live – Ordered the mother have sole parental responsibility |
| Births, Deaths and Marriages Registration Act 1996 (Vic) Family Law Act1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 68P |
| Chapman v Palmer (1978) 4 Fam LR 462 Flanagan v Handcock (2001) FLC 93-074 Marriage of Mahony & McKenzie (1993) 16 Fam LR 803 Newlands v Newlands (2007) 37 Fam LR 103 Re David (1997) 22 Fam LR 489 Reynolds & Sherman [2015] FamCAFC 128 |
| APPLICANT: | Mr Draper |
| RESPONDENT: | Ms Roiland |
| INDEPENDENT CHILDREN’S LAWYER: | Taft Lawyers |
| FILE NUMBER: | DGC | 1915 | of | 2015 |
| DATE DELIVERED: | 22 August 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 1, 2 & 3 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Phelan |
| SOLICITOR FOR THE APPLICANT: | Wakefield Vogrig & Boote Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Southey |
| SOLICITOR FOR THE RESPONDENT: | Aitken Partners Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eidelson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Taft Lawyers |
Orders
All former orders under Part VII of the Family Law Act in respect of the following children are discharged:
(a)B, born … 2008;
(b)C, born … 2010;
(c)D, born … 2011; and
(d)E, born … 2013.
The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
The parties shall forthwith take all reasonable steps to ensure that the Register of Births, Deaths and Marriages kept by the Registrar pursuant to the provisions of the Births, Deaths and Marriages Registration Act 1996 (Vic) is amended so as to:
(a)Disclose the father’s paternity of the youngest child (if not already recorded);
(b)Change the youngest child’s surname from “Roiland” to “Draper”; and
(c)Ensure a fresh birth certificate issues for the youngest child disclosing the father’s paternity and his new name.
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 1996 (Vic).
The parties are restrained from causing or permitting the youngest child to be known by any surname other than “Draper”.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend time with the father as follows:
(a)Whilst ever the father lives more than 150 kilometres from the mother and children:
(i)During school terms, from 5.00 pm Friday until 5.00 pm Sunday each third weekend, commencing on the third Friday of each school term;
(ii)For the first week of the Autumn, Winter, and Spring school holidays; 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.
(b)Whilst ever the father lives within 150 kilometres of the mother and children:
(i)During school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first Friday of each school term;
(ii)For the first week of the Autumn, Winter, and Spring school holidays; 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.
Order 7 hereof is suspended during the following periods:
(a)From 5.00 pm on Christmas Eve until 5.00 pm on Boxing Day each year, during which period the children will spend time with the mother in odd numbered years and with the father in even numbered years; and
(b)From 5.00 pm Friday until 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 Mother’s Day weekends and with the father on Father’s Day weekends.
For the purpose of implementation of Orders 7 and 8 hereof:
(a)In respect of the operation of Order 7(a)(i), the mother (or her nominee) shall deliver the children to the father (or his nominee) at the McDonalds Restaurant nearest to the mid-point between their residences (which is presently the McDonalds Restaurant at F Town, Victoria) at the commencement of the children’s time with the father;
(b)Otherwise, the mother (or her nominee) shall deliver the children to the father (or his nominee) at the nearest McDonalds Restaurant to the father’s home at the commencement of the children’s time with the father;
(c)The father (or his nominee) shall deliver the children to the mother (or her nominee) at the nearest McDonalds Restaurant to the mother’s home at the conclusion of the children’s time with the father;
(d)All school holidays are deemed to commence at 5.00 pm on the last day of school term;
(e)The first week of the Autumn, Winter, and Spring school holidays ends at 5.00 pm on the second Saturday after the holidays commence;
(f)The weekly rotations in the Summer school holidays are measured in increments of seven consecutive days; and
(g)The last rotation in the Summer school holidays ends at 5.00 pm on the last day preceding the day upon which the children are due to return to school, regardless of whether it is a full week.
The parties shall take all reasonable steps to ensure the children communicate privately by Facetime 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 contact the children on the telephone number provided to him by the mother and the mother shall ensure 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 the children are able to receive the mother’s calls on that number at that time; and
(c)The parent with whom they 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 them on the telephone number provided by the other parent for that purpose and the parent with whom they are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.
The father is restrained from consuming alcohol for the period of 12 hours before and during any period in which the children spend time with him.
The father shall comply with any and all instructions issued to him in writing by the mother about the children’s treatment for any diagnosed medical conditions.
Each party is restrained from allowing any of the children to remain in any car, house, or other confined space in the presence of any person who is smoking.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
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.
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.
The mother shall authorise and request the principals of any schools attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.
In the event of either party notifying the police or a prescribed child welfare authority that the children, or any of them, has been or is the subject of actual or potential abuse the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:
(a)A copy of these orders;
(b)A copy of these reasons for judgment; and
(c)A copy of the Family Report dated 15 November 2016.
By reason of an inconsistency between some of these Orders and an existing Intervention Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the Melbourne registry of the Family Court of Australia shall send a sealed copy of these Orders to:
(a)The Registrar of the Magistrate’s Court at Suburb G, Victoria;
(b)The Commissioner of the Victorian Police Service; and
(c)The Director-General of the Victorian child welfare authority.
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.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs in respect of applications under Part VII of the Family Law Act are reserved for 28 days.
Any and all other outstanding applications under Part VII of the Family Law Act are dismissed.
Notation
(A)Orders 7, 8, 9, 10, 16, and 18 hereof are inconsistent with paragraphs 5, 6, and 7 of the Intervention Order made against the father in favour of the mother and the children by the Magistrate’s Court at Suburb G, Victoria on 20 January 2016, in which case Division 11 of Part VII of the Family Law Act applies and the parenting orders prevail to the extent of any inconsistency.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Draper & Roiland has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: DGC 1915 of 2015
| Mr Draper |
Applicant
And
| Ms Roiland |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
In these proceedings the parties contest orders for their four children under Part VII of the Family Law Act 1975 (Cth) (“the Act”), the father’s application under Part VIII of the Act to set aside past property settlement orders, and the mother’s application for orders in respect of child support under Part 7 of the Child Support (Assessment) Act 1989 (Cth). These reasons deal only with parenting orders under Part VII of the Act. The remainder of the proceedings have been listed either for trial or further procedural events some time ahead.
Until the commencement of the trial in August 2017, the mother wanted the father eliminated from the children’s lives because she considered he posed an unacceptable risk of harm to them for various reasons. However, she expressly abandoned that position and instead proposed the children spend substantial amounts of time with him, the frequency and amount of which was dictated by the distance between their respective households. The father, however, maintained his application for reversal of the children’s residence because he believed the mother’s conduct undermined their relationships with him. The parties also disputed the allocation of parental responsibility for the children, though their respective proposals in that regard fluctuated throughout the trial until the very end.
Short history
The parties commenced cohabitation in 2007 and married in 2008.
Their four children were born in 2008, 2010, 2011, and 2013. At the time of trial the eldest was nearly nine years of age and the youngest was nearly four years of age.
The mother has an older child from an earlier relationship (“H”). She was born in 2003 and was 14 years of age at the time of trial. She lived with the family throughout the parties’ relationship. The father also has an older child from an earlier relationship (“K”), but he lives with his mother and has little or no contact with the father.
The parties bitterly disputed the date of their final separation, but it is now unnecessary to make a factual determination about it because nothing presently turns on the decision. If the parties considered otherwise they did not say so. Neither submitted that any factual finding should be made by the Court about it. While there was considerable inconsistency within and between the parties’ evidence about the issue, there is no doubt they were separated by May 2015 at latest, when the father vacated the family home. The mother, H, and the children have continued to occupy the home ever since. The father moved and now lives in a township nearly four hours’ drive away.
In May 2013, parenting and property settlement orders were made by the Court in response to the parties’ joint application. Despite the orders, each party remained involved in the other’s domestic and financial affairs. In 2014, the parties sold one property and bought another. Although the mother held exclusive legal title to both properties, the purchase of each property was funded by mortgaged loan and the father was the co-borrower in respect of each loan. Following a dispute between the parties in May 2015, the father permanently departed the property.
The mother then allowed the children to spend time with the father but, by August 2015, she terminated the voluntary arrangement and would not let them see him at all. The father therefore commenced these proceedings in November 2015 before the Federal Circuit Court.
By way of interim orders made in April and June 2016, the mother was granted sole parental responsibility for the children and a psychologist was appointed as a single expert witness. Simultaneously, the proceedings were transferred to this Court for determination.
By December 2016, the children had not seen or spoken with the father since August 2015. The Family Report was then available and, in reliance upon the Family Consultant’s evidence, fresh interim orders were then made for the parties to have “joint parental responsibility” for the children, for them to live with the mother, for them to spend increasing amounts of time with the father (culminating in alternate weekends), and for them to communicate with him twice each week.
The implementation of those orders met with mixed success. Rarely have the children been able to communicate with the father, but they have visited him each alternate weekend in accordance with the orders. They did not spend time with him in the Autumn school holidays as required by the orders, due to the parties’ disagreement about the times of commencement and conclusion of their visit, but they spent almost all of the Winter school holidays with him. The parties advanced conflicting stories and sought to absolve themselves of blame for why implementation of the interim orders has not been as easy as it should have been, but the conflict simply served to demonstrate their inability to co-operate and the consequent need for them to be bound by relatively simple, unambiguous, and prescriptive orders.
Proposals
The father pressed for the orders set out in his Further Amended Initiating Application filed on 7 May 2017, subject to some minor modifications outlined in final submissions. In effect, he proposed that the children live with him instead of the mother, that he have sole parental responsibility for them, and that they spend substantial amounts of time with the mother.
At the outset of the trial, the mother abandoned the orders proposed in her Further Amended Response filed on 29 May 2017, which entailed her proposal for the father to be eliminated from the children’s lives. She consistently advanced that proposal throughout the litigation, but instead foreshadowed a revised proposal for the children to spend substantial amounts of time with the father. She maintained she should have sole parental responsibility for the children and they should live with her. She tendered a minute of orders to that effect after the evidence was closed.[1] The father consented to the mother’s belated amendment of her case in that fashion.
[1] Exhibit M4
The Independent Children’s Lawyer also tendered a minute of the orders he proposed before final submissions were commenced.[2] His proposal largely supported the father’s position. He contended the mother’s belated proposal for the father to remain substantially involved in the children’s lives was insincere and was, in effect, a tactical ruse.
[2] Exhibit ICL1
Evidence
The father relied upon:
(a)His two affidavits filed on 9 May and 4 June 2017;
(b)The affidavit of his partner, Ms J, filed on 9 May 2017; and
(c)The affidavit of the paternal grandmother, Ms L, filed on 7 May 2017.
The mother relied upon only her affidavit filed on 30 May 2017. She abandoned her intention to adduce oral evidence from a medical practitioner in accordance with the leave formerly granted to her.[3]
[3] Order 7 made on 29 June 2017
The parties and Independent Children’s Lawyer relied upon:
(a)The Family Report dated 15 November 2016 prepared by the Family Consultant; and
(b)The affidavit of the single expert psychologist, Dr M, filed 19 April 2017.
Ms J, the paternal grandmother, and Dr M were not required for cross-examination. Only the mother required the Family Consultant for cross-examination.
Legal principles
Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Children’s best interests – primary considerations
Section 60CC(2)(a)
So far as the quality of the children’s relationships with the father is concerned, only one inference is reasonably open: they love him dearly and they regard their relationships with him to be immeasurably important. That inference springs from the Family Consultant’s observations of the children’s interactions with the father in October 2016, at which time they had not seen him for some 15 months. The two eldest children were introduced to the father separately from the two youngest children, because the mother did not take all four children together to the initial appointment with the Family Consultant,[4] but all the children were similarly effusive with him. They sought his attention and his close physical contact and eagerly engaged him in enthusiastic banter and play. They were obviously “calm, happy and relaxed” in his presence and openly expressed their love for him. The two eldest children were reluctant to leave him and the two youngest were “clearly distressed” on his departure.[5]
[4] Family Report, paras 8, 9, 161
[5] Family Report, paras 207-212, 214-220
Given the mother’s expressed doubts about the quality of the children’s relationships with the father,[6] in the face of the Family Consultant’s evidence, she was invited to concede in cross-examination that the children do in fact love the father, but she would not do so. She initially said she was surprised to read in the Family Report how the children had responded so positively to the father and claimed it was “not typical” of their relationships with him, but she then resorted to disavowal of the accuracy of the Family Consultant’s report. She doubted the Family Consultant correctly recorded or characterised the nature of the children’s interaction with the father. The mother’s contradictory responses on the one topic – her initial acceptance of the truth of facts, even if surprised by them, but then her rejection of the truthful facts when pressed about the illogical inconsistency between the truth and her perception – typified tranches of her evidence.
[6] Family Report, paras 136, 138
Despite the mother’s asserted doubt about the correctness of the observations made of the children’s interaction with the father, the Family Consultant was not challenged in cross-examination with the proposition that her description of their interaction was in any way false or mistaken. Her evidence is therefore accepted as correct without reservation, which necessarily means the mother’s refusal to accept its truth was either disingenuous or demonstrated her profound lack of insight. There is no other plausible alternative. The Family Consultant independently reached the same conclusion about the mother.[7] The children do have meaningful relationships with the father and they each derive enormous benefit from those relationships. Their derivation of such benefit cannot be compromised again.
[7] Family Report, para 138
The children have correspondingly meaningful relationships with the mother, which fact the father did not question, but the underlying issue is whether the children are able to derive a full measure of benefit from both filial relationships while they live with the mother. They undoubtedly could if they live with the father, because he will promote their relationships with the mother, but the father fears his relationships with the children will atrophy if they remain living with the mother, because she cannot genuinely support and promote their relationships with him. Obviously enough, if the children’s relationships with the father wilt and the benefit they each receive from those relationships either ceases or diminishes, their interests will be adversely affected. That feature of the evidence is prescribed by the Act to be a consideration of primary importance.
The mother is generally ill-disposed towards the father. She said in cross-examination he was vivacious and sporty but, in reality, she gave inconsistent accounts to the Family Consultant about his “goodness” as a person, disparaged his capacity for clear, rational, and mature thought, was critical of his asserted lack of independence, and was dismissive of his role in the children’s lives.[8] If that is genuinely how she feels towards the father, it will be very difficult for her to shield the children from her disdainful views. Although the mother was loathe to admit it, whilst ever she provides primary care for the children and they remain immersed in the parental conflict, they will likely be attuned to her views and align with her. If they perceive her dislike of the father and her expectation they cannot derive any tangible benefit from their relationships with him then, over the course of time, the chance they will resist spending time with him is liable to increase.
[8] Family Report, paras 110, 117, 129
Thankfully, for the children’s sake, that has not yet happened. Despite the interruption of their connections to the father between August 2015 and December 2016, they were able to reclaim the value of their relationships with him by the restoration of a regime under which they spend substantial amounts of time in his care. Favourably from the mother’s perspective, the modest success of the interim orders made in December 2016 suggests it is unnecessary to take the drastic step of reversing the children’s residence, but that option can only be avoided for so long as the mother faithfully complies with orders by ensuring the children spend substantial amounts of time with the father and communicate with him regularly.
Section 60CC(2)(b)
The radical revision of the case conducted at trial by the mother necessarily implied her abandonment of any contention the father posed any unacceptable risk of harm to the children – at least by reason of his subjection or exposure of them to “abuse” or “family violence”. Her counsel squarely made that concession before the trial commenced and again during final submissions.
Given the mother’s serious allegations of the father’s perpetration of family violence upon her and his physical abuse of at least H, which allegations she made to the Family Consultant and in her trial affidavit, no explanation was advanced for why her fears for the children’s safety were suddenly allayed on the morning of the first day of trial. It was perplexing, to say the least, and was an issue the Independent Children’s Lawyer pursued with her in cross-examination. Her evidence did not answer the riddle. Rather, it only served to create doubt about the genuineness of her concession. In all probability, as the Independent Children’s Lawyer submitted, the concession was strategic rather than authentic. Moreover, it was probably motivated by the mother’s understanding that her role as the children’s primary carer was under serious threat and, to avert the prospect of reversal of the children’s residence, she needed to mollify concerns about her willingness to facilitate the children’s relationships with the father.
Since considerable doubt surrounds the sincerity of the mother’s abandonment of concern about the risk the children’s sufferance of harm through their subjection or exposure to abuse or family violence, it is still desirable to advert briefly to the evidence adduced about it. But first, something must be said about the mother’s unreliability as a witness.
The mother’s evidence was an admixture of fabrication, hyperbole, and truth, which elements were so thoroughly blended it was very difficult to segregate fact from fiction. The mother’s counsel eventually conceded, fairly but sparingly, that the Court would have “concerns” about “some aspects” of her evidence. That is indeed so, but the conclusion about the mother’s unreliability is not an isolated finding made only on her evidence adduced at trial. The Victorian child welfare authority considered the mother’s statements are “at times inconsistent”[9] and the Family Consultant found the mother was selective, evasive and slippery, with her “confused narrative” permeated by contradictions.[10] Even H’s school counsellor considered the mother has difficulty with “consistent reporting”.[11]
[9] Family Report, para 24
[10] Family Report, paras 105, 106, 107, 131, 239
[11] Family Report, para 150
By way of specific examples, in summary:
(a)Save in respect of a discrete and contentious incident in February 2013, neither the mother nor H made any allegations at all against the father of his perpetration of abuse or family violence until after he contested the mother’s divorce application in June 2015,[12] notwithstanding she previously described him in July 2014 as a “supportive and involved father” who “presents no risks to the children”;[13]
(b)The mother’s subsequent allegations in 2015 and 2016 of the father’s abuse of the children were exaggerated and lacked specific detail;[14]
(c)The mother’s allegations of the father’s misconduct at the children’s school were contradicted by the school vice-principal;[15]
(d)The mother gave inconsistent accounts about the conception of the two youngest children due to her rape by the father;[16]
(e)H contradicted the mother’s version of the incident in February 2013 by denying she was a witness;[17] and
(f)H and the children contradicted the mother and corroborated the father about the parties’ separation in May 2015.[18]
[12] Family Report, paras 90, 112, 239
[13] Family Report, para 239
[14] Family Report, para 121
[15] Family Report, para 146; Mother’s affidavit, paras 80-81
[16] Family Report, paras 20, 122; Mother’s affidavit, paras 13, 14, 19, 22, 25; Father’s first affidavit, para 52(g)
[17] Family Report, paras 179, 236
[18] Family Report, paras 76, 108, 175, 182, 193
The mother told the Family Consultant the father “often hit the children”[19] and she adduced evidence at trial of his violent conduct towards H and the second child,[20] but he conceded only that both he and the mother occasionally “smacked the children”.[21] He was clear to say he did not physically abuse the children or H.[22] Even though H told the Family Consultant that the father “hurt” her and the children,[23] and she told the mother in 2015 he “punched her in the face”,[24] the mother filed a Notice of Risk in these proceedings in February 2016 asserting she had no concerns about any child abuse by the father.[25] In fact, the mother deposed how she tried to encourage the children’s interaction with the father between 2010 and 2013 (while she alleged they were separated), but her attempts were thwarted by his unreliability.[26] She did not explain the curious inconsistency between her encouragement of such interaction and her alarm about his alleged physical abuse of the children.
[19] Family Report, para 119
[20] Mother’s affidavit, paras 51-54, 74-79
[21] Family Report, para 69
[22] Family Report, paras 69, 85
[23] Family Report, paras 24, 177
[24] Family Report, paras 24, 239
[25] Family Report, para 21
[26] Mother’s affidavit, paras 100-104
The mother alleged in the Notice of Risk that the father committed family violence in the past, but such allegations need to be contextualised. While the parties were certainly involved in some form of physical confrontation in February 2013, the circumstances of that incident remain most unclear, though a family violence order was still made against the father in March 2013 (in his absence) for a period of 12 months.[27] Otherwise, the mother’s allegations against the father of family violence, which asserted his misconduct extending as far back as 2011, were not made until 2015 and 2016, after the father had vacated the former matrimonial home for the last time.[28] By that time, the mother probably envisaged some forensic advantage in making historical allegations of misconduct against him. She is not guileless. Rather, she is intelligent and resourceful. Her father was formerly a police officer and it is almost inconceivable she would not have sought his contemporaneous assistance and protection if her allegations against the father were accurate.
[27] Family Report, para 22; Mother’s affidavit, para 20
[28] Family Report, para 24
Significantly, although the mother asserted she suffered injuries from the father’s assaults, none was verified by any medical record, police record, or corroborative witness.[29] In fact, in relation to the contentious incident in February 2013, the police records expressly note the “lack of medical evidence confirming any injuries”,[30] even though the mother repeatedly asserted she was seriously injured at that time. Notably, the father was never charged by police with any offence arising out of that incident, despite the seriousness of the mother’s allegations against him.
[29] Family Report, para 238
[30] Family Report, para 24
To the extent the mother may believe her allegations against the father enjoy some corroboration from H, she is wrong, because H is unreliable. Her own counsellor is uncertain whether she reports “what really happened or what she thinks really happened”.[31] The Family Consultant asserted she is “enmeshed” with the mother, histrionic, lacks the ability to discriminate information, lacks insight, and is liable to be manipulated.[32]
[31] Family Report, para 150
[32] Family Report, paras 151, 153, 173, 235, 240
The father emphatically denied he perpetrated family violence, either during the marriage or after the parties’ separation.[33] As for the Family Consultant, she considered the parties “mutually engaged” in the conflict and that physical violence between them was initiated by the mother.[34] Significantly, the father alleged the mother occasionally struck him, isolated him from family and friends, and carefully controlled their finances.[35] In part, at least, the mother conceded that to be true. She managed all their finances, resented any interference from the paternal grandmother, and forbade the paternal grandparents from visiting the family home without a specific invitation.[36] Even the children confirmed the mother chided the father for “back chatting” her.[37] The Family Consultant commented upon the father’s passivity,[38] which suited the mother’s desire for control and absolute obedience from the father.[39] The mother’s own conduct was therefore redolent of “family violence” as defined in the Act (s 4AB).
[33] Family Report, paras 61, 69, 81
[34] Family Report, para 236
[35] Family Report, para 70
[36] Family Report, paras 131, 134
[37] Family Report, paras 200, 238
[38] Family Report, paras 54, 222
[39] Family Report, para 223
Even if the father did perpetrate violence upon the mother, as the Family Consultant observed, it does not automatically follow the children should spend no time with him.[40] The mother’s change of position at the commencement of trial manifested her recognition of that fact. As the mother eventually accepted, even if only grudgingly, the evidence did not support any finding that the children are at any tangible risk of physical or psychological harm by reason of their subjection or exposure to abuse or family violence.
[40] Family Report, para 243
The mother’s position finally distilled to her contention the children remain exposed to the risk of harm by reason of their subjection to the father’s neglect, which danger was attributed to his propensity to drink too much alcohol and not supervise them properly, his failure to ensure they are properly restrained when travelling in cars, and his failure to ensure they are always properly medicated. Her grievances were stated more broadly in her affidavit,[41] but were pared back in final submissions.
[41] Mother’s affidavit, para 111
Both parties consume alcohol, but neither to excess according to the evidence. The parties’ uncorroborated allegations against one another and their denials of alcohol misuse do not carry much probative value.[42] The father’s two past convictions for “drink driving” do not, of themselves, prove he is either currently dependent upon alcohol or misuses it to the detriment of his parenting capacity. Most probably, in the past, he drank more alcohol than was wise, but there is no satisfactory evidence he still does so. The parties were ordered in December 2016 not to drink “excessive alcohol” during or immediately prior to them caring for the children.[43] There is no evidence either party has breached the injunction. In cross-examination, the father agreed to submit to an injunction that precludes him from consuming alcohol when the children are in his care and also during the period of 12 hours immediately preceding their visits, which is sufficient protection for them, regardless of the mother’s doubts.
[42] Family Report, paras 67, 68, 115, 116
[43] Order 19(a) made on 8 December 2016
Since December 2016, the parties have instructed their solicitors to correspond over the father’s use of car seats for the children. The mother’s concern about the children being properly restrained while travelling in cars has not been abated by the father’s responses, since she alleged (in reliance upon the children’s reports) he did not ensure their proper restraint on three occasions.[44] That may be so, but the father denied it and, since the evidence was sparse and little attempt was made to cross-examine the parties on the issue, a firm factual finding is not really open.
[44] Mother’s affidavit, paras 125-132
The second and fourth children suffer from asthma and are prescribed preventative medication.[45] The orders made in December 2016 required the father to ensure the children were administered with all prescribed medications when they visit him.[46] To that end, the mother provided medications and scripts to him, but on several occasions he did not administer the medication.[47] The father lamely said in cross-examination he did not administer the asthma medication because the children told him they did not need it, even though he admitted the youngest child had a wheeze on at least one of those occasions. His oral evidence was similar to his written evidence.[48] Asthma is an insidious and deadly affliction which can quickly and unexpectedly cause death in acute episodes. The father should have known prescribed preventative medication must be administered even when symptoms are not present.[49] That is why it is called “preventative” medication. If the father compounds his laxity by allowing his partner to smoke in the children’s presence,[50] the concern is all the greater, so the parties are restrained from allowing any person to smoke in the children’s presence in any confined space.
[45] Mother’s affidavit, paras 113-114
[46] Order 4 made on 8 December 2016
[47] Mother’s affidavit, paras 117-122
[48] Father’s first affidavit, para 68(g)
[49] Mother’s affidavit, para 123
[50] Mother’s affidavit, paras 145-146
The children are in need of protection from physical harm they may suffer by virtue of the father’s neglect of their medical needs, but such protection is adequately afforded by the mother’s investiture with sole parental responsibility for the children and a mandatory injunction obliging the father to follow the mother’s instructions about their treatment for any diagnosed medical conditions.
Children’s best interests – additional considerations
Section 60CC(3)(a)
There is no evidence of either child expressing any view about the manner in which the case ought be disposed and, even if they did, they are too young and immature for their views to carry any weight.
Section 60CC(3)(b)
The nature of the children’s relationships with the parties has already been addressed under s 60CC(2)(a) of the Act. There is nothing to add in that regard.
The children have equivalently loving relationships with other members of the extended paternal and maternal families so that is not a differentiating feature of the evidence, save in respect of their prospective separation from H, which is a material consideration under s 60CC(3)(d)(ii) of the Act.
Section 60CC(3)(c)
The father ensured his regular contact with the children after the orders were made in December 2016 enabling him to do so. Despite the inconvenience and cost of regular fortnightly visits, the father and at least one paternal grandparent have done all of the driving necessary to facilitate the visits. The father is undoubtedly committed to the continuity of his relationships with the children.
The mother excluded the father from the process of making decisions about the children’s lives, despite the order made in December 2016 for them to have “joint parental responsibility”. For reasons later explained, the parties are incapable of sharing parental responsibility, but that is because of their conflict, not because of the father’s disinterest.
Section 60CC(3)(ca)
The parties’ financial circumstances and the payment of child support was a subject of the parties’ irritation.
The father is self-employed. In or about December 2016, in support of a loan application to enable his purchase of a boat, he represented to a financial institution that his annual income was about $80,000, though the evidence was indistinct as to whether that figure was gross or net. In any event, in cross-examination he professed his weekly income is now only about $1,000, due to lack of work. Consequently, he now intends selling the boat, discharging the loan, and avoiding the periodic repayments.
The mother farms the property on which she lives and is available to care for the children at all times. In November 2015, she represented to a financial institution that her 2014 income was in excess of $280,000 gross and about $160,000 net.[51] She said in re-examination those figures were not reflective of only her farm income, but included payments received by her for the compulsory acquisition of other land. That may be so, but she did not assist by estimating her regular income. In fact, rather incredibly, she asserted she could not even give broad estimates of her annual farm income or the overhead expenses of running the farm. All she would say was that her income was only sufficient to cover her expenses. That evidence was difficult to accept because she qualifies for payment of a Family Tax Benefit, she does not qualify for any Centrelink welfare income, she chooses to pay school fees of between $25,000 and $30,000 each year, and her bank statements show the regular deposit of irregular amounts into her account over the last couple of years.[52] That is not to say the mother is financially comfortable but, on the evidence adduced, her position is not as parlous as she contended.
[51] Family Report, para 52
[52] Exhibit F1
The father is currently indebted for child support in an amount of between $27,000 and $28,000, though some of that debt is referrable to K and some is referrable to the children. There was no evidence as to the proportional division. The father alleged he is currently voluntarily making child support payments of $150 per week and he did not deny the proposition that only about $77 of that amount is paid to the mother in respect of the children, which amount he conceded would not be sufficient to meet the weekly cost of maintaining the children, let alone reduce the existing child support debt.
Although the father will soon not have to meet the boat loan repayments of $887 per month once the boat is sold, that saving, aggregated with his current child support contribution of $77 per week, would still not cover the weekly cost of maintaining the children. In such circumstances, the mother questioned the father’s financial capacity to meet the children’s physical needs if they live with him. She had a point, since the father said if the children live with him he would only work to suit their school hours, he would take time off work in school holidays, and he and his partner would look to rent a bigger home. Those measures would likely worsen his financial position by decreasing his income and increasing his housing costs. The mother correctly submitted she has the proven ability to maintain the children despite little financial help from the father.
Section 60CC(d)
The children’s relationships with H are powerful considerations which influence determination of the proceedings, because their separation from H to live with the father instead of the mother would likely cause them grief. The Family Consultant said in cross-examination she could not predict whether they would thereby suffer “psychological damage” or the extent of such damage but, regardless of its correct epithet, they would almost certainly experience emotional disturbance which would probably be more than merely ephemeral. For the children, spending time with H on alternate weekends and during school holidays would be an inferior substitute for living with her.
Section 60CC(3)(e)
The conflict between the parties following their separation became so embittered that the father felt he could only emotionally survive it by moving away.[53] Consequently, he moved to a country town on the NSW/Victorian border, close to the paternal family. The mother and children remain in the former matrimonial home. The parties’ households are therefore now about 350 kilometres apart and the driving time between them is about four hours, allowing for a short break. The travel commitment for the children over any weekend visit is onerous and tiring. The parties generally agreed the fuel expense of a return trip between their homes was about $75.
[53] Family Report, para 88
Compounding the tyranny of distance is the father’s driving disqualification. He was convicted of a driving offence in 2015 and is disqualified from driving until January 2018.[54] Until then, he will be reliant upon his partner or the paternal grandparents to drive him to collect and return the children.
[54] Family Report, para 68
For those reasons, some expense and considerable practical difficulty attend any arrangements for the frequent exchange of the children between the parties. For reasons yet to be explained, the children should remain living with the mother, so the impediments to the exchange of the children between the parties must be considered in the context of them visiting the father.
To address the issue of expense, the mother suggested the father be responsible for all of the travelling because she could not afford it and the paltry child support paid by him would barely cover her fuel expense of one return trip per month. The father suggested the travel burden be shared by the parties equally and that they meet at a mid-point of the journey to exchange the children. He proposed the McDonalds Restaurant at F Town, Victoria, as a suitable public venue. The parties should ideally share the travelling but, to overcome the chance of delays and hence more conflict arising from the need for the parties to travel considerable distances to meet at a particular place at a stipulated time, the parties should preferably take turns delivering the children to a public place proximate to their respective homes. Since the father claims the mother has not supported his relationships with him, she should play some part in the physical delivery of the children to him. That way the children may get the message she is supportive of the idea of them spending time with him. He can return the children to her. The evidence did not validate the mother’s contention she cannot afford to share any of the travel, particularly if the travel is less frequent, as she proposed.
However, while the parties live so far apart, in order for the children’s weekend visits with the father to start at 5.00 pm on Fridays (as he proposed for the mother in reverse)[55], they will need to be exchanged between the parties at a mid-journey venue. The mother would not have sufficient time between the conclusion of school and 5.00 pm on Friday afternoons to drive the children all the way from her home to the township in which the father lives. She would only have time to drive them to the mid-journey venue proposed by the father.
[55] Amended Application filed 7/5/17, Order 4.1.1
The mother proposed the children’s weekend visits to the father should only occur once every three weeks instead of once every fortnight, but the father proposed retention of fortnightly visits. The children are still young and the current weekend travel commitment is rather punishing for them. Although they may not have complained, as the father asserted, they are certainly tired by the journeys, as the mother said. Whilst ever the father chooses to live so far away from the mother and children, their visits with him should occur once every three weeks instead of fortnightly. If he moves to live closer to the mother, for which purpose a radial distance of 150 kilometres is arbitrarily but reasonably chosen, then the children’s weekend visits with him will revert to fortnightly.
Section 60CC(3)(f)
For reasons already addressed under the rubric of s 60CC(3)(ca) of the Act, the mother has at least an equal and probably a slightly superior financial capacity to meet the children’s physical needs.
The father has had plenty of experience caring for the children’s daily needs,[56] so that aspect of the evidence does not discount his competence as a primary carer.
[56] Family Report, para 72
Neither party has a superior capacity to meet the children’s intellectual needs.
The feature of the parties’ parenting capacity to manifest the greatest differential was their willingness and ability to meet the children’s emotional needs. Despite the parties’ inter-personal conflict, the father recognises the mother’s importance to the children and is genuinely supportive of their relationships with her. By comparison, the mother’s derision of the father impairs her capacity to genuinely support the children’s relationships with him and, most probably, the children are attuned to her adverse attitude.
As already explained, until the commencement of the trial, the mother was utterly dismissive of the father’s value to the children and advocated for his complete elimination from their lives.[57] The Family Consultant reported that the mother’s narrative of the parties’ relationship did not reveal any consideration towards the father or the needs of the children and, further, she could not entertain the idea that the children may have different perspectives of their experiences with the father than those held and espoused by her. She lacked the capacity to consider the children were capable of and entitled to individual responses, separate from her own, and therefore had no insight. The Family Consultant considered her unable to ensure the children’s “emotional well-being”.[58] Her enmeshment with H and her tendency to “overload” H with “adult information” also exhibited her stunted capacity to act in an emotionally protective way for all her children.[59] Her grandiose, but false, allegations of the father’s violent threats to murder H and her attempts to cajole evidence from staff at the children’s school to help prove the father’s “damage to the children” were examples of the lengths to which she was prepared to go to achieve her objective of absolute control.[60] It is relatively clear the mother induced the children to criticise the father for misconduct when they conferred with the Family Consultant,[61] but their allegations were wholly inconsistent with their gleeful reunion with him.
[57] Family Report, paras 50, 129, 244
[58] Family Report, paras 106, 107, 110, 138, 242, 244
[59] Family Report, paras 151, 183, 185
[60] Family Report, para 155
[61] Family Report, paras 189, 190, 191, 194, 197, 200, 240
In cross-examination, the Family Consultant agreed the mother’s changed position about the children spending substantial amounts of time with the father could reflect her changed attitude about his retention as an important influence in their lives, but she cautioned careful evaluation of the authenticity of the alteration. She opined there was a “high possibility” it was not authentic, having regard to the former rigidity of her views about the father. She wondered whether the mother’s facilitation of the regular weekend visits under the December 2016 interim orders was only due to “the eyes of the Court…upon her”. Those doubts resonated with the father and Independent Children’s Lawyer and formed the basis of their mutual proposal for reversal of the children’s residence. It is certainly an influential feature of the evidence, but the shared doubts of the father, Independent Children’s Lawyer, and Family Consultant do not eradicate the modest success of the parenting regime over the past eight months. The mother’s deeds are liable to speak louder than her words.
It should also be remembered the father never contemplated substituting himself for the mother as the children’s residential carer until he conferred with the Family Consultant in October 2016, and only then because he doubted the mother’s willingness to ensure the children would spend time with him.[62] Parental animosity aside, since December 2016, the mother has generally ensured the children spend time with him as required by the interim orders. Given the express and implied criticism of her at trial, she is likely now well aware of the urgent need for the improvement of her parenting performance at risk of loss of the children’s residence.
[62] Family Report, paras 43, 46, 87
In the face of thorough knowledge of the mother’s shortcomings as a parent, the Family Consultant only recommended that the Court should “consider” the reversal of the children’s residence, and only then if there was an escalation of the mother’s unfounded allegations against the father. Her expectation of the retention of the status quo was embedded in the orders she recommended.[63] Her conditional recommendation for consideration of change fell considerably short of a stout opinion that the children’s best interests would probably be advanced by the reversal of their residence. Although the mother has since made a further complaint to the police about the tone of the father’s email correspondence, her complaint was fatuous and insignificant in the historical context of this litigation.
[63] Family Report, paras 245, 246(vi), 246(viii)
Section 60CC(3)(g)
This factor was not addressed by the parties or Independent Children’s Lawyer.
Section 60CC(3)(h)
The child was not identified as indigenous.
Section 60CC(3)(i)
The only evidence of relevance to this factor is that already discussed under s 60CC(3)(f) of the Act.
Section 60CC(3)(j)
The issue of the children’s subjection or exposure to family violence has already been comprehensively addressed under s 60CC(2)(b) of the Act. There is nothing to add.
Section 60CC(3)(k)
An Intervention Order (being a “family violence order” as defined in s 4(1) of the Act) was made against the father in favour of the mother, H, and the children in March 2013, following the incident between the parties in February 2013.[64] As already noted, considerable uncertainty attends the circumstances of that incident. The parties have very different versions of it. The police did not charge either party with any offence. The father was not present at the State court when the Intervention Order was made against him and the order expired in March 2014.
[64] Family Report, para 22; Mother’s affidavit, para 84; Father’s first affidavit, para 30
Another Intervention Order was made against the father in favour of the mother, H, and the children in January 2016. It will not expire until January 2018.[65] The underlying reason for the order was not made clear in the evidence but, given it was first made on an interim basis in August 2015, it was inferentially due to either or both of the following allegations:
(a)The mother’s allegation that the father tried to abduct one, and perhaps two, of the children from their school in August 2015.[66] The school vice-principal refuted the mother’s version of that event when interviewed by the Family Consultant in November 2016.[67] It remains unknown whether the State court was ignorant of the independent contradiction of the mother’s version of the event when the Intervention Order was made.
(b)The mother’s allegation that the father threatened to kill or injure the children in a car crash during a conversation in August 2015, which threat the father denied.[68]
[65] Family Report, para 22; Mother’s affidavit, para 86; Father’s first affidavit, para 46
[66] Mother’s affidavit, paras 80-81
[67] Family Report, paras 9, 146
[68] Mother’s affidavit, para 108; Father’s first affidavit, para 45
The father alleged the order was made on both an interim and final basis with his consent, but without his admission,[69] in which event it cannot be inferred the State court found any of the mother’s allegations proven.
[69] Father’s first affidavit, paras 17-18
The father’s breach of the Intervention Order has been proven and sanctioned by fine on three occasions – once in September 2015 (without conviction), the second time in April 2016, and the third time in August 2016.[70] The mother’s assertion of more breaches must be incorrect.[71] The third breach resulted from the father making hand gestures at H from a distance in February 2016,[72] which was foolish and infantile. The first two breaches related to the father’s attempts to establish contact with the children while the mother thwarted it.[73] His contraventions of the order were inexcusable, but the modest value of the fines reflected some extenuating circumstances.
[70] Exhibit M2
[71] Mother’s affidavit, para 88
[72] Exhibit M1; Mother’s affidavit, para 83
[73] Family Report, para 85; Mother’s affidavit, para 88
Given the mother’s contention that the children should spend substantial amounts of time with the father, despite the past and current family violence orders and despite his few proven breaches of them, it must follow she does not consider those facts preclude the children’s relationships with him. However, orders made in accordance with her proposal for the children to spend time and communicate with the father will be inconsistent with some terms of the family violence order, which prohibit any form of interaction between the children and the father. The terms of the family violence order also preclude communication between the parties, which is necessary in some limited respects.
The literal terms of the family violence order are untenable in the face of the proper parenting orders this Court is enjoined to make. The orders made in these proceedings specify the inconsistency with the family violence order and explain how the parenting orders will operate, as required by s 68P(2)(a),(b) of the Act. The following explanation is given to the parties pursuant to the requirements of s 68P(2)(c),(d) of the Act:
(a)The parenting orders are inconsistent with paragraphs 5, 6, and 7 of the family violence order because they require the parties to contact and approach one another and also for the children and father to approach and contact one another.
(b)It is necessary to make parenting orders which are inconsistent with paragraphs 5, 6, and 7 of the family violence order in order to promote the children’s best interests.
(c)The children’s best interests are promoted by them spending time and communicating with the father. Implementation of the orders to that effect will be facilitated by the parties’ ability to communicate when necessary.
(d)The parenting orders set out how the children are to spend time and communicate with the father.
(e)The parenting orders do not require breach of paragraphs 1, 2, 3, 4, or 8 of the family violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence order may be consistently obeyed.
(f)Contravention, variation, or revocation of the family violence order will be dealt with by prosecution or application in the Magistrate’s Court of Victoria.
(g)Contravention or variation of the parenting orders will be dealt with under the terms of the Act.
The orders make provision for their service upon Victorian Police, the Registrar of the Suburb G registry of the Victorian Magistrate’s Court, and the Victorian child welfare authority so they are aware of the inconsistency between these parenting orders and the terms of the existing Intervention Order.
Section 60CC(3)(l)
No submission germane to this consideration was made by the parties or the Independent Children’s Lawyer.
Section 60CC(3)(m)
The only remaining contentious issue addressed by the parties was the discrepancy between the surnames used by the children. The youngest child uses the mother’s surname, but the three oldest children use the father’s surname.
The mother registered the youngest child’s name at birth to coincide with her surname. Although the father signed the birth certificate, implying his consent to that arrangement, the evidence remains unclear as to whether or not his paternity of the child is actually endorsed on the birth certificate.[74]
[74] Mother’s affidavit, para 24; Father’s first affidavit, para 37
In these proceedings, the mother sought an order enabling her to change the three oldest children’s surnames to coincide with the surname used by her and the youngest child,[75] though she abandoned her application for that order during final submissions.[76] The father, on the other hand, maintained his application for an order that compelled the parties to change the youngest child’s surname to coincide with the surname used by him and the three oldest children.[77] Regrettably, despite the controversy, the issue was barely the subject of any mention throughout the trial.
[75] Further Amended Response filed 29/5/17, Order 4
[76] Exhibit M4
[77] Further Amended Application filed 7/5/17, Order 14
Any decision about the name by which a child should be known is dictated by the child’s best interests (see Reynolds & Sherman [2015] FamCAFC 128 at [54]-[55]). There is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) 4 Fam LR 462). That decision will often be informed by such factors as the degree of the child’s identification with the existing surname and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive, and there are many other conceivable considerations (see Flanagan v Handcock (2001) FLC 93-074 at [19]-[38]; M v B [2001] FamCA 894 at [35]-[37]; Marriage of Mahony & McKenzie (1993) 16 Fam LR 803).
The mother deposed the children have asked her why they have different surnames and she feels it is best for them to have a common surname so they feel more like “the same family unit”.[78] Presumably the father agrees, but he wants them to bear his surname rather than the mother’s. Therefore, despite their disagreement about how it should be achieved, the parties agreed uniformity in the children’s surnames was desirable. It would be better not to change the three oldest children’s names, because that would require some re-adjustment by three of them when at least two of them are already committed to use of their existing surnames at school. It would be better to change only the youngest child’s surname because that will require only re-adjustment by him. It will be easier for him because he is still only very young and he has not yet started school. Less public notoriety attends the use of his surname than does the surname of the three oldest children.
[78] Mother’s affidavit, para 174
Accordingly, an order is made for the parties to ensure the registration of the father’s paternity of the youngest child (if his paternity is not already a registered detail), the registration of the youngest child’s change of surname, and the issue of a fresh birth certificate in the youngest child’s new name. The parties are empowered to apply for those changes under Parts 3 and 4 of the Births, Deaths and Marriages Registration Act 1996 (Vic) and the parties can be compelled by mandatory injunction to make the necessary applications.
Conclusions and orders
Most probably, family violence was committed by each party during their relationship, in which case the presumption of equal shared parental responsibility does not apply (s 61DA(2)). Even if that was not so, the evidence rebuts the presumption (s 61DA(4)). There is no way the parties could share parental responsibility in the co-operative way demanded by law (s 65DAC). The father agreed in cross-examination the parties do not trust each other. He admitted cooperation between them had been “difficult”, for which he principally blamed the mother. She, on the other hand, confirmed in cross-examination she has stopped speaking with the father altogether. She agreed she had no trust in him and there was no possibility of any co-operation between them. One simple example should suffice to prove the point. The mother treats two children for asthma on medical advice, but the father said he sought his own medical advice and was told one of those two children does not suffer from asthma, so they are prepared to operate unilaterally and in conflict on such an important matter as the children’s health.
The mother said she would be willing to use a communication book with the father, but that hardly seems a good idea, given her frequent complaints to the police about the tone of his emails. She was asked to give examples of the allegedly “abusive” or “threatening” messages she has received from him. Surprisingly, after two separate delays measured in minutes rather than seconds, she selected two emails that were anything but abusive or threatening. They were assertive, but only in response to similarly assertive emails sent by her to him which demanded his reply. If the parties cannot engage with one another responsibly even by emails then a communication book will not likely be any better. Therefore, the Independent Children’s Lawyer’s proposal for the parties’ use of a communication book is rejected.[79]
[79] Exhibit ICL1, Order 13
The mother sought sole parental responsibility for the children if they live with her but, when she realised the corollary of her evidence was the father should conversely have sole parental responsibility for the children if they live with him, she illogically contended the parties should share parental responsibility for the children in those circumstances. But that was not acknowledgement of the parties’ underlying ability to communicate constructively. Rather, it was the mother’s attempt to salvage some semblance of authority over the children if her case founded on the rocks of her antipathy towards the father.
The children’s best interests would not be served by the parties’ investiture with equal shared parental responsibility for them. One party must have exclusive parental responsibility for the children and it should be the parent with whom they live. That was always the father’s case and it was ultimately also the formal proposal of the mother and Independent Children’s Lawyer.
It was posited that the party who holds exclusive parental responsibility for the children should be obliged to consult with and take the other party’s views into account before making decisions.[80] The proposal is rejected. If the parties cannot courteously consult to make joint decisions, as was conceded, it is just as unlikely they could courteously consult to exchange their respective opinions. The orders provide that the mother will have sole parental responsibility for the children in respect of all “major long-term issues”, as defined in the Act (s 4(1)). In respect of all other decisions which fall outside that purview, each party will continue to hold and may individually exercise parental responsibility for the children pursuant to ss 61B, 61C and 61D of the Act (see Newlands v Newlands (2007) 37 Fam LR 103 at [89]-[91]).
[80] Exhibit ICL1, Order 3
Attention must therefore turn to the children’s residence. Some aspects of the evidence marginally favoured them continuing to live with the mother. She more vigilantly attends to their medical needs, her financial circumstances are at least the equal of the father’s, and it would be more beneficial for them to live with H than to merely visit her periodically from the father’s residence. However, the significant countervailing consideration is the doubt that hangs over the mother’s willingness and capacity to genuinely support the children’s relationships with the father if they remain in her primary care.
On balance, the children should remain living with the mother – at least for as long as is necessary for her to prove her commitment to promotion of their relationships with the father. She said in cross-examination she could and would support the relationships, despite her asserted concerns about the inferior quality of his care for them. The Independent Children’s Lawyer submitted the mother’s statements of commitment were merely “platitudes”, but there is some basis for cautious optimism. The children’s relationships with the father did not fail despite their separation from him for nearly 15 months and, since the restoration of their relationships under the interim orders made in December 2016, the father believes his relationships with them have consolidated. While he is the parent most likely to support the children’s relationships with the non-residential parent, the evidence fell short of satisfactory proof the mother would sabotage the children’s relationships with the father.
Orders providing for the children to live with the mother represent an opportunity for her to demonstrate that she can now be trusted to comply with Court orders consistently and indefinitely, even though the orders may not reflect her genuine feelings about what is best for them. The mother should realise the father is no longer the passive man she once sought to dominate. He is genuinely committed to meaningful involvement in the children’s lives.[81] In the event she fails to adhere to the orders in all respects, the father will most probably bring fresh litigation and few, if any, options will then be available aside from reversal of the children’s residence, consonant with the principles discussed in Re David (1997) 22 Fam LR 489 at 506-507. She cannot be allowed to jeopardise the children’s relationships with the father again.
[81] Family Report, paras 57, 65, 69, 92, 222
The children should spend as much time with the father as reasonably practicable. For reasons already discussed, that will comprise every third weekend during school terms, but every second weekend if he chooses to move and live closer to the mother and children. In either case, the children will spend half of all school holiday periods with him. Special provision is made for Christmas, the Mother’s Day weekend, and the Father’s Day weekend. The mother’s proposal for extra time on the children’s birthdays is rejected,[82] given the current distance between their homes.
[82] Exhibit M4, Order 12
The mother’s proposed order requiring the father to be in “substantial attendance” during all the children’s visits is also rejected.[83] Apart from the fact it was meaningless and therefore unenforceable, no aspect of the evidence suggested any such restraint was necessary.
[83] Exhibit M4, Order 11(a)
As already noted, implementation of the interim orders made in December 2016 has not been uniformly successful. In fact, compliance with the communication orders has been abysmal. The interim orders provided for communication between the father and children to be by way of “Facetime or Skype”.[84] It is common ground the children have rarely, if ever, communicated with the father since the orders were made.[85] The mother explained that was because the father tried to contact the children by telephone instead of by Facetime or Skype. Rather unhelpfully, she did not assist the children receive the telephone calls. She said in cross-examination she left the telephone on the kitchen bench for them to use, presumably expecting them (despite their young ages) to rally around and accept the call while she stood idly by feigning disinterest.
[84] Order 3(e) made on 8 December 2016
[85] Father’s first affidavit, paras 24, 74
Given the children’s visits with the father are liable to be three weeks apart for the foreseeable future, their relationships with him should be bolstered by more frequent communication. To that end, an order is made for them to communicate with the father by Facetime once each week. The order reflects the father’s proposal in reverse.[86] The same arrangement will apply in respect of the mother when they spend time with the father during school holiday periods. Extra provision is made for the children’s birthdays.
[86] Further Amended Application filed 7/5/17, Order 4.1.2
Each party is restrained from inflicting corporal punishment upon the children. The father said both parties punished the children in that way in the past so the injunction binds both of them. If the mother did not ever do so, she is not prejudiced by compliance with an injunction which only requires her adherence to current practice.
The restraints proposed by the Independent Children’s Lawyer against the parties’ partners and extended family members cannot be made.[87] They were not parties to the proceedings and so cannot be bound by the Court’s orders.
[87] Exhibit ICL1, Order 11
The remaining orders are either consistent with the miscellaneous proposals of the parties and Independent Children’s Lawyer, self-explanatory, or could not be the subject of reasonable opposition.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 22 August 2017.
Associate:
Date: 22 August 2017
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