Dyer & Dyer - [2023] FedCFamC2F 80

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dyer & Dyer [2023] FedCFamC2F 80

File number(s): CAC 2304 of 2020

Judgment of: JUDGE W J NEVILLE

Date of judgment: 10 February 2023

Catchwords: FAMILY LAW – Parenting – best interests of the child – where there are 8 children of the marriage but the proceedings related only to the four children under 18 years of age – where the Father conceded he would not pursue orders in relation to the older three children – where the Father sought equal shared parental responsibility and spend time with orders in relation [only] to the youngest child who is 7 years old and the Mother sought sole parental responsibility and limited spend time with orders – where the Mother adopted the independent children’s lawyers orders sought for the Mother to have sole parental responsibility and the child spend limited time with the Father - where the Father lives a financially and economically unstable lifestyle as a minister, and who relies solely upon “providence” in the form of funds regularly provided by a limited number of benefactors and is unable to provide certainty that he is able to meet the child’s emotional and physical needs – where the Father is estranged from 6 of the 7 older children - finding that the Father poses an emotional and psychological risk - it is in the child’s best interests for the Mother to have sole parental responsibility and the child spend regular but quite limited time with the Father.

Legislation: Family Law Act 1975 (Cth) ss. 60CA, 60CC(3)(a) – (m), 65DAA

Cases cited:
AMS v AIF (1999) 199 CLR 160

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Collu & Rinaldo [2010] FamCAFC 53

Fox v Percy (2003) 214 CLR 118

Godfrey & Saunders (2007) 208 FLR 287

Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422

Isles & Nelissen (2022) 65 Fam LR 288

In the Marriage of Kress (1976) 13 ALR 309

Lee v Lee (2019) 266 CLR 129

M v S (2008) 37 Fam LR 32

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC 93-375

Partington v Cade (No.2) (2009) 42 Fam LR 401

In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230

Sigley v Evor (2011) 44 Fam LR 439

Vontek & Vontek [2017] FamCAFC 28

The New Jerusalem Bible

K. Aland (ed.) The Greek New Testament, (Stuttgart: United Bible Societies, 1983)

F.W. Danker (ed.), A Greek-English Lexicon of the New Testament and other early Christian Literature (Third Edition) (Chicago & London: The University of Chicago Press, 2000)

P. Brown, Poverty and Leadership in the Later Roman Empire (The Menahem Stern Jerusalem Lectures) (Hanover & London: University Press of New England, 2002)

P. Brown, Augustine of Hippo (Revised Edition) (London: Faber & Faber, 1967 & 2000)

S. Lancel, St Augustine, (trans. A. Nevill) (London: SCM Press, 2002)

The Oxford Dictionary of the Christian Church, (ed. A. Louth) Fourth Edition, 2 Volumes (Oxford: Oxford University Press, 2022)

Division: Division 2 Family Law

Number of paragraphs: 115

Date of last submission/s: 15 December 2022

Date of hearing: 17 – 18 October 2022

Place: Canberra

Counsel for the Applicant Mr G Waterman

Solicitor for the Applicant Dianne Grace Solicitor

Counsel for the Respondent Ms M Davis

Solicitor for the Respondent Legal Aid ACT

Independent Children’s Lawyer Jeanine Lloyd & Associates
ORDERS

CAC 2304 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DYER
Applicant

AND:
MS DYER
Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

10 February 2023

THE COURT NOTES THAT:
A.Final property Orders were made by consent on 30^th November 2022. These Orders are intended to be supplementary to those; accordingly,

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.

Parental Responsibility
2.The Mother have sole parental responsibility for X (born in 2006) (‘X’), Y (born in 2007) (‘Y’) and Z (born in 2010) (‘Z’).
3.The Mother have sole parental responsibility for W (born in 2015) (‘W’).
4.Notwithstanding Order 3, except in an emergency, the Mother must advise the Father about all proposed major long term health and educational decisions in relation to W and:
(a)Prior to the decision being made in relation to W give him 7 days in which to provide a response in relation to his views;
(b)Following the Father providing a response to the Mother, the Mother have a further 7 days to consider his views and provide a further response to the Father;
(c)Once that response is provided to the Father, the Mother can make the decision 7 days thereafter, providing she advises the Father that she has done so; and
(d)Nothing in these Orders permits the Mother to change W's surname or permanently to relocate to a country outside Australia without the prior written consent of the Father or first obtaining a Court Order dispensing with the Father's consent.

Live and Spend Time With
5.X, Y, Z and W live with the Mother.
6.X, Y and Z spend time with the Father in accordance with their wishes.
7.W spend time with the Father as agreed in writing between the parents, but failing agreement, as follows:
(a)Every second weekend from 3:00pm Friday to 5.00pm Saturday.
(b)During the school holidays:
(i)During the Term 1, 2 and 3 school holiday period from 12:00pm on the second Saturday to 12:00pm on third Saturday weekend.
(ii)During the long summer school holiday period from 12:00pm on Saturday to noon on the following Saturday for one week in early January and a further week in late January on dates to be advised by the Father to the Mother in writing at least 21 days in advance and not on the weekend before the commencement of Term 1 of the new school year.

(c)From 10:00am to 2:00pm on the Father’s birthday if a weekend or 3:00pm to 6:00pm if a school day;
(d)From 9:00am on Good Friday to 4:00pm on Easter Saturday.
(e)From 3:00pm to 6:00pm on W’s birthday if she is not already in the Father’s care.
(f)From 5:00pm on the preceding Saturday until to 5:00pm on Father’s Day.
(g)From 11:00am on 25 December to 11:00am on 26 December.
(h)Commencing 2023 and every odd numbered year thereafter from 9:00am on 31 December to 4:00pm on 1 January.

8.In the event Z expresses a wish to spend time with the Father, the Mother shall do all things necessary to facilitate such time.
9.The children’s time with the Father pursuant to Order 6, 7 and 8 shall be suspended, and the children shall spend time with the Mother, as follows:
(a)From 5:00pm on the preceding Saturday to 5:00pm on Mother’s Day if W is not already in the Mother’s care.
(b)From 10:00am to 2:00pm on the Mother’s birthday if a weekend or 3:00pm to 6:00pm if a school day if W is not already in the Mother’s care.

10.The Mother shall be at liberty to suspend W’s time with the Father on up to 4 occasions per year for no more than 21 cumulative nights if she is having a holiday in Australia or overseas with the children provided that:
(a)If travelling within Australia she has given the Father written notice of her intention to travel 14 days in advance or as otherwise agreed between the parties in writing;
(b)If travelling overseas she has provided written notice in compliance with Order 11; and
(c)The Mother provide make up time to the Father within 3 months of her return from her holiday.

Passports and Travel
11.In relation to the children’s passports:
(a)The parents shall do all acts and sign all documents necessary to ensure the children maintain a valid Australian Passport with the cost of same to be shared equally between the parties;
(b)The Mother shall hold the children’s passports and provide same to the Father not less than 28 days prior to any proposed travel and the Father shall return same to the Mother within 7 days of returning to Australia.
(c)Should either parent lose the children's passports, the cost of a new passport for the child shall be the sole expense of the parent who lost the passport.

12.Neither parent shall be permitted to travel with W (or any older child who wishes to travel with that parent) overseas without the other parent’s written consent and that consent shall not be unreasonably withheld.
13.The Father only be permitted to travel with W (or any older child who wishes to travel with that parent) overseas for no more than 1 week unless with the Mother’s express written consent.
14.Each parent shall provide the other parent with at least 2 months written notice of any proposed international travel with W (or any older child who wishes to travel with that parent), including providing the other parent with a copy of return airline tickets, a travel itinerary, a contact phone number and addresses for all accommodation where the W/the children will be staying.

Communication
15.The parents will communicate only using the Talking Parents App or another similar App agreed in writing except in an emergency.
16.Both parents shall keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to the children while the children are in that parent’s care as soon as possible and keep the other informed of any medication to be taken by the children.

Restraints
17.Without admission, each parent is restrained from the following:
(a)Using physical discipline on the children or allowing anyone else to do so;
(b)Exposing the children to family violence, or allowing anyone else to do so;
(c)Yelling or shouting at the children or allowing anyone else to do so;
(d)Discussing these Court proceedings with the children; and
(e)Denigrating or criticising the other parent, or members of the other parent’s family or household in the presence or hearing of the children and shall not allow any third party to do so.

18.The Father is restrained from sending any communications or gifts to the children through W.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dyer & Dyer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

All family law litigation has a degree of sadness, grief, and regularly, tales of misfortune – which arise either from intentional, negligent, or otherwise inadvertent conduct – including omissions. This parenting matter arises from parents who have eight children from their long marriage but only one of whom, 7½ year old W, is formally the primary subject of the current litigation; the issue in question relates to the Father’s time with W.[1] The tragedy and sadness here is both because of the litigation itself but especially due to the Father’s astonishing lack of insight, which led him not to see the most basic of parenting realities that were (and many that remain) right in front of him, and which were patent for all to see during the trial.
[1] Other, not quite so young children, such as Y (formerly known as Y) and Z, were also part of the litigation by virtue of not having yet acquired their majority. However, the Father confirmed that he only sought Orders in relation to W.
The particular realities I refer to here, discussed later in these reasons, are (a) how so many (and certainly the majority) of his children have turned their backs on their Father (including refusing to spend time with him) and his Christian way of life, and (b) as a consequence, how his conduct and belief structure (e.g. the inerrancy and literal truth of the scriptures, and the same literal truth as the moral norm for daily life), which has alienated so many of his children, apparently is the driving force for pursing specific Orders effectively to force W to spend time with him.[2] Concerningly, regardless of how many times or ways it was put to the Father directly, and/or to his Counsel, neither of them could or would answer directly, either as a matter of evidence or more generally as an unassailable fact in the proceeding, what inference the Court could or should draw from the fact that the large majority of his children do not wish to spend time with their Father, and have consistently refused to do so, certainly in more recent times. The Father and his legal team also eschewed providing any explanation for the large-scale estrangement of the family from him, other than to blame the Mother. As explained below, I reject this regrettably facile attempt by the Father to blame-shift. I am also very concerned at his refusal, and/or his basic inability, to answer these critical and glaringly obvious issues concerning his own family.
[2] More generally, see the brief discussion of “fundamentalism” in The Oxford Dictionary of the Christian Church, (ed. A. Louth) Fourth Edition, Volume 1 (Oxford: Oxford University Press, 2022) at 745 – 746. Hereafter “Louth, Christian Dictionary” followed by Volume and page number.
Properly, the focus of the Court’s judgment and reasons is, and must be, upon W’s best interests, pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”). However, because of the quite extraordinary life (and life-style), circumstances, and much else, of the Father, so much of the Court’s attention was (and is) necessarily – at trial and in these reasons – upon him. Put starkly: it is one thing for a single person to embrace what is classically called “evangelical poverty” (discussed briefly below). It is quite another to impose that ascetic tradition and completely impoverished life-style upon one’s family, who otherwise do not have the luxury of any relevant choice or support in any relevant respect. Moreover, it is not just the ascetic life that was imposed upon the family by the Father, but in effect, even after many years as a minister, he was and has remained a “solitary” ascetic, deliberately bereft of more regular spiritual, ecclesial and other supports. Subject to the brief remarks below, it is unnecessary to undertake any exhaustive discussion of Christian tradition, virtue and/or practice regarding evangelical poverty to highlight and to contrast what that tradition shows, on the one hand, and on the other, how generally imprudent the Father’s choices have been for his family in circumstances where he extols, implicitly and explicitly, the centrality of reliance upon providence for his own Christian ministry but which has sadly left his own family, in almost every respect, bereft of every kind of sustainable support, at least since the family’s move to Country B and subsequent return to Australia. Whatever perspective one takes of his life-style or individual ministry, its significantly adverse impact upon his children and former Wife cannot be underestimated.
The Father’s rather blinkered and heavily filtered views are neatly captured in the following email sent to his former Wife, dated 6^th June 2020, which is Annexure A to the Mother’s Affidavit, sworn and filed 7^th December 2020. It became Exhibit M3:
Hi [Ms Dyer]
Thought it best I let you know my plans with the kids. I’ve prayed and considered the Holy Spirit flow I’ve made my life.
I will not be chasing you for custody at this point. I will not be meditating through a professional mediator at this point.
I feel the whole spirit of the bible and God I serve is love forgiveness, peace, long suffering and if someone wants your coat give them your shirt as well. If they want you to walk one mile walk two with them.
So God bless you with the desires of your heart. I love the children and the pain is unbearable. But I’ve discovered pain only shows where I haven’t let God into my life. Pain only reveals I am in control.
When we married I gave up my rights willingly and in a love that will never change.
I will not fight you for what I don’t own.
Tomorrow I will be at McDonald’s and Monday I will be at McDonald’s at 12pm. I would love to be a father to our children.
Whatever the outcome please know I forgive all your actions. I forgive all the hurt and I forgive myself for failing you. I feel that work of the spirit powerfully that flushed the pain away as I gave up control. I will live my life and be the best father I can be from the little contact I celebrate. My God is faithful and his court room is the only one I will stand and give an account for my actions in.
So with all that. I choose life, I choose freedom, I choose no control but the fruits of the spirit to flush my life.
Whatever you choose just know I hold no anger, hate or unforgiveness. Thanks for you life [sic: “your life”) it is an amazing blessing.
Regards
[Mr Dyer]
The generalities, subtle blame-shifting, and self-justification indicated here are not only self-evident, but they are also part of the Father’s [attempted] shaming and control of the Mother. His references to “forgiveness … [and] long suffering …” point to this being the Father’s assessment of his situation that (in his view) has been caused, at least to a significant degree, by the Mother. There is scant attention to any personal responsibility on his part. Indeed, surprisingly, there is no asking of forgiveness by the Father of the Mother, which would be the more appropriate and classically Christian response, rather than simply and presumptuously to bestow it upon someone who has not sought it, thereby, as it were, imposing guilt and responsibility on her for the plight of all.
Doubtless well-intentioned, the commencement of the final paragraph – “Whatever the outcome please know I forgive all your actions. I forgive all the hurt and I forgive myself for failing you” – is a quite stunning assessment by the Father of the Mother’s purported culpability for the situation that now confronts the parents and the children. And should it need to be noted, “forgiveness” in classical Abrahamic/Christian tradition is predicated upon a person seeking or asking for forgiveness. There is no indication or evidence that the Mother has ever sought forgiveness from the Father which, according to this email, he has gratuitously bestowed upon, or granted to, her with only passing reference to any personal responsibility on his part. Perhaps to highlight the point from a slightly but complementary perspective, the biblical instruction is to ensure that before accusing and judging others (which is plainly implicit in the Father’s message to the Mother here), it is imperative that one remove, or attend to, one’s own faults first. The relevant scriptural text states (Mt 7,1-5):[3]
Do not judge, so that you may not be judged. For with the judgment you make you will be judged, and the measure you give will be the measure you get. Why do you see the speck in your neighbour’s eye, but do not notice the log in your own eye? Or how can you say to your neighbour, ‘Let me take the speck out of your eye,’ while the log is in your own eye? 5 You hypocrite, first take the log out of your own eye, and then you will see clearly to take the speck out of your neighbour’s eye.
[3] See similar text in Lk 6,37 – 42.

The Father is a non-ordained Minister, or Pastor, effectively of his own “Church” of approximately 30 or so “parishioners.”[4] I say “non-ordained” in Australia because the only evidence of “ordination” is from the Father’s oral evidence to the effect that someone (un-named) from a similar Church in City C that is run by his sister, “ordained” him.[5] Query if this was, in fact, ordination in a Church because the Father’s evidence was that it actually occurred at the “Christian Centre” but which, apparently, does not now exist under that name, or maybe otherwise. To say that the Father’s evidence here was vague, and not a few other things, is something of an understatement. In any event, following the ordination, the Father said that he wanted to remain quite “autonomous” and therefore he moved away from the Church or Centre run by his sister.[6] There is no other evidence about these matters.
[4] In the absence of any relevant detail by the Father about his ministry, other than in the most general terms, it might be assumed (it certainly cannot be put any higher) that the religious tradition that might more closely resemble his ministry is some form of evangelicalism. See the article under this title in Louth, Christian Dictionary Vol.1 pp.670 – 671.
[5] In his Affidavit of 14^th October 2020, (par.2), the Father deposed that he was ordained as a Pastor of the City E non-denominational centre. The provenance of this ordination, in any relevant respect, was not explained.
[6] See Transcript (17^th October 2022) pp. 35 & 36. Hereafter, such references will simply be “T” followed by the page number.
The Father confirmed that for most of his adult life he has been financially dependent upon, and supported by, others. This includes confirmation that his legal fees for the current litigation will be paid by one or other of his benefactors, who also generally cover his daily living expenses. He and the family lived on the beneficence of various [unidentified] benefactors for a significant time in the Country D, and more recently in Country B (notwithstanding that no member of the family spoke [or speaks] Country B). In all instances, the Father extolled, and the family relied upon, providence almost completely. At one stage in his oral evidence, the Father likened himself or his “mission” as somewhat akin to that of Mother Teresa.[7] To state perhaps the most obvious difference: Mother Teresa did not have a spouse and a large number of children to support and to look after. Further still, Mother Teresa worked within the long-established charitable and other structures of the Catholic Church, while still benefitting from benefactors.
[7] T 34.
In his oral evidence, the Father confirmed that he has no formal, or recognised, training as a Minister. He has no fellow or assistant “Minister”. His “Church” has no formal structure; it has no name for operating in Australia but apparently has some nominal connection with the non-denominational centre in City E. It would appear that there has been no registration of the Father’s “Church” as a charitable organisation, but this is something, the Father said, which might be looked at in the future. The Father has no formal or regular income. His current residence is with an 82 year old “friend” or “supporter”; he said that he had no “plans” in relation to his future living situation.[8]
[8] T 31 – 33.
A comment or two about the Christian tradition regarding evangelical poverty is apposite here to provide some context and comparative norms in the light of the Father’s evidence and ministry.
First, the Old Testament biblical tradition enjoins that the economically and legally vulnerable (i.e those without protection under the law), notably widows, strangers and orphans, must be provided for and generally looked after. There are abundant references to this in the Book of Deuteronomy (e.g. Dt 10,18; 16,11 and 24,17 – 22). Likewise, the prophetic tradition was vehement if not strident about how essential it was that the local community provided for those who were generally and properly regarded as “the poor” (e.g. Is 1,23; 9,16; Jer 49,10-11; Ezk 22,7).
Secondly, in the New Testament, there was similar emphasis upon the care of the poor, perhaps beginning with the Beatitudes in Mt 5,3 and Lk 6,20. Part of this tradition emphasises that “poverty” (and conversely, the reliance upon providence) is a self-chosen course by the individual. It is not something that is “imposed” upon others, including one’s family.
Thirdly, throughout history there are literally thousands of examples, and an even greater amount of academic and pastoral learning, regarding the injunctions and way of life that embraces “evangelical poverty.” It is sufficient simply to note the examples (in their writings and way of life), the following: Anthony of Egypt (generally 3^rd century); John Chrysostom (5^th century – based in Constantinople), notably Francis and Clare of Assisi, both of whom embraced “lady poverty” with great gusto, and so many others in between and since. Crucially, they never abandoned anyone for whom they were responsible – for example, in the case of Anthony, he provided for his younger sister before heading into the North African desert.[9] The primary and hopefully logical point is that evangelical poverty is a long-recognised part of Christian tradition. But, as already noted, it is a personal choice that is never imposed upon others, and certainly never imposed upon one’s family, especially one’s children.
[9] A typically erudite and compelling account of a select part of this tradition regarding care for the poor, is Peter Brown’s Poverty and Leadership in the Later Roman Empire (The Menahem Stern Jerusalem Lectures) (Hanover & London: University Press of New England, 2002).
Fourthly, the biblical instruction also records that a “tree is known by its fruit” (i.e a good tree produces good fruit; the converse is also true) perhaps has special application here.[10] By this I mean that for all of the theological and historical precedent of relying upon providence, such as Mother Teresa or Francis of Assisi, such radical life-styles are always tempered by other virtues, notably prudence and temperance, to name only some. The so-called “fruit” of the Father’s life has been essentially if not fundamentally negative in terms of the impact of his life-style and imprudent choices for his Wife and family. It can hardly be a good advertisement for the “fruit” of his evangelical mission that the bulk of his family is estranged from him.
[10] See Mt 7,15-16; 12,33. It is sufficient to set out only the latter text (12.33): “Make a tree sound and its fruit will be sound; make a tree rotten and its fruit will be rotten. For the tree can be told by its fruit.” The extensive – in time and breadth – philosophical and theological (Judeo-Christian) tradition and understanding of “fruit” (karpos – κάρπός) is summarised in many classic reference books, such as A Greek-English Lexicon of the New Testament and other early Christian Literature (Third Edition) (ed. F.W. Danker) (Chicago & London: The University of Chicago Press, 2000) 509 – 510.
A final preliminary observation: the Father’s oral evidence in particular was strongly characterised by generalities, on the one hand, and on the other, an inability to engage with the specifics of, for example, the need for children to have certainty, a level of predictability and regular routine in their lives. The Father’s life-style, replete with regular moving of residence (especially when the family resided in the Country D), and complete dependence upon benefactors for meeting basic, day-to-day, needs necessarily led to regular if not complete uncertainty regarding those daily needs being met. It also meant that “planning” in any and every ordinary sense, such as for education, family holidays and the like, was utterly impossible.
Further, the evidence and basic argument of the Father was simplistic in the extreme, and thereby in certain respects, somewhat illusory and tending towards being dangerous, precisely because it was so removed from reality. It also had no regard to the history of estrangement of the older children from the Father, noting too that the Father contended that this estrangement with the children was the fault or responsibility of the Mother. The Father’s incredulous (and incredible) if not strangely naïve argument went thus: because there is no formal or other risk of the children being in his care (discussed further below), it must follow that “I am entitled to spend time with W.”
It warrants being noted also that the facts and circumstances of the matter, the evidence of the parties, the detailed assessment by Ms F in both of her Reports, and by reference to basic principle, require the comment to be made that this was a case that should never have been run. It put the parties and the children, virtually needlessly, through litigation that should have been resolved at least very soon after the release of the first Report of Ms F. It was a tragedy for all that it did not resolve sooner. Amidst much generalisation, the Father explained, or justified, his obduracy as follows:[11]
Again, I want to suggest to you that this is you saying, “I’m not going to fight you. We’re not going to court. I’m not mediating. We’re done here. Do you agree with that?   No. This is me saying, “I am not personally engaging you in a fight. I very much believe in a courtroom. I think, in another document, that comes up. In fact, I believe a judge is a court-ordained authority, hence why I’m sitting here today. But I don’t believe that it’s a godly thing to be engaging somebody in a personal fight, when we’re both just butting heads, and we need somebody to intervene.
So just to be clear, reviewing this email now, it is your evidence to this court that the email had nothing to do with the potential court proceedings between you and the mother; is that right?   I think – the spirit of what I’m meaning here. I mean, obviously, we can pull any document apart, but the spirit of what I’m meaning here is, “I am not personally engaging you in a fight”, and, “I will stand in a courtroom”, and me saying, “I will stand in a courtroom”, the ultimate authority, as a minister and a supposed man of God that I fear, is that standing in front of God, and giving an account for my actions.
…
If court was the end result, this message, why did you say, “My God is faithful, and His courtroom is the only one I will stand”?   Because His is the first courtroom I stand in, and where He leads me, if that’s here – or another court – then that’s where I go as well. But my first and foremost allegiance is to a God that I have given my life to.
And - ?   And I fear His courtroom, and I believe, as the Bible says, that a secular courtroom is God-ordained. The Judge is a God-ordained authority that, when he speaks, you listen to him. If you don’t, I’m not in the courtroom in heaven.
[11] T 48 – 50.
It was almost impossible to get a straight answer from the Father, or for him to address directly what he had been asked. Nearly everything ended with the Father giving a rather long-winded response, albeit in quite generalised terms, which rarely addressed the question. Regularly, the Father repeated phrases, interspersed with occasional biblical allusions, and various words that were either inapt or somewhat mixed up.
For the reasons already given, and those which follow, the Orders proposed by the Independent Children’s Lawyer (“the ICL”), which the Mother supports, are in W’s best interests. The Father accepted a limited number of Orders proposed by the ICL but not regarding the primary issues in dispute, notably regarding the time-with arrangements between Father and daughter and parental responsibility.
Father’s Orders Sought
The Applicant Father’s Orders sought were contained in the Case Outline filed 12^th October 2022. Those Orders contained both property and parenting Orders. The property aspect finalised by consent on 30^th November 2022. The parenting Orders sought were as follows (emphasis in original):
The Child, [W]
1.The Father and Mother are to have equal shared parental responsibility for the major long-term decisions of the Child, [W], born [in] 2015 including but not limited to:
(a)The Child’s education including but not limited to, the choice of school and curriculum;
(b)The Child’s religious and cultural upbringing;
(c)Major issues concerning the Child’s Health; and
(d)The Child’s names.
2.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They will inform the other parent about the decision to be made in writing;
(b)They will consult with each other by providing the details of any proposal they have, at least thirty (30) days prior to the date when the proposal is to be implemented or such lesser time in cases of emergency or necessity;
(c)They will make a genuine effort to come to a joint decision at least fourteen (14) days prior to the date the initial proposal is due to be implemented or such lesser time in cases of emergency or necessity.
3.The process to be used for resolving disputes making joint parental decisions referred to at Order 1 above, is as follows:
(a)The parties will consult with a Family Dispute Practitioner (“the FDRP”) to assist with resolving any dispute or reaching agreement about changes to be made;
(b) The parties will pay the costs of FDRP equally;
(c)In the event that the parties cannot agree upon a FDRP, the Father will nominate three (3) practitioners and advise the Mother in writing of the details of their fees, experience and availability;
(d)The Mother will choose a practitioner within 7 days, if the Mother fails to choose a practitioner within 7 days, the Father is at liberty to do and to arrange for an initial appointment for the parties to attend upon that practitioner.
4.If either party does not respond to the other’s proposal or does not engage in the dispute resolution process referred to above, then the parent making the proposal is at liberty to implement the proposal at the expiration of the end of the 30-day period as referred to in Order 2.
5.That each parent has the parental responsibility for the day to day needs of the Child, [W] for such periods that the Child live with or spends time with each of them.
6.The Child, [W] will spend time with the Father as follows:
(a)Each fortnight with the Father:
(i)In the first week with the Father from afterschool Wednesday to before school Friday; and
(ii)In the second week with the Father from afterschool Thursday to before school Tuesday.
(b)For school holidays:
(i)In even numbered years, for the first half of all school holidays and each alternate year thereafter;
(ii)In odd numbered years for the second half of all school holidays and each alternate year thereafter;
(c)During all other times in the school holidays with the Mother; and
(d)For Father’s Day or the Child’s birthdays:
(i)On Father’s Day from 4.00pm Saturday until before school Monday morning;
(ii)On the Child’s birthdays, from 3.30pm to 6.30pm, if a school day and from 10.00am to 2.00pm, if a non-school day;
(iii)Changeover is to take place at the Child’s school or McDonald’s as the case may be.
7.The parents agree that a Parenting App will be used, Talking Parents, Our Family Wizard or WeParent or email.
8.Each party must notify the other of any change of address within seven (7) days, as well as mobile and email contact details.
9.The parties agree that the Father shall have telephone communications / WhatsApp or FaceTime communications with the Child in the first week on Tuesday evenings from 6.00pm to 6.30pm.
10.The Mother will provide the Child with a telephone / computer specifically for the purpose of telephone communications / WhatsApp or FaceTime communications with the Father.
11.During telephone communications or WhatsApp / FaceTime communications, the Mother will not be present while the Child are speaking with the Father and the Mother will afford the Child privacy during these times.
12.The Mother is restrained from:
(a)denigrating or criticising the Father to the Child or allowing any third party to denigrate or criticise the Father within the present or hearing of the Child;
(b)Discussing these proceedings with the Child;
(c)other than as specifically provided in these orders, the Mother is restrained from taking the Child for counselling or psychological intervention or allowing others to do so unless recommended by the Child’s school or general medical practitioner and after the Mother has consulted with the Father pursuant to paragraph (2) of these orders and has provided the Father with the name, address and telephone number of the proposed counsellor or mental health professional.
13.That in relation to travel for the Child:
(a)The Father and Mother may travel out of the ACT to visit extended family within Australia;
(b)That the Child will be transported by family members or responsible adults with a current licence;
(c)That the Child will not be permitted to leave Australia without the prior knowledge of the other parent.
14.The Child’s Australian passports is to be kept current and the parents will share the cost of renewing the same; and
(a)In the event that the Child travel overseas the parent accompanying the Child must provide the other parent with details of the travel at least thirty (3)) days prior to the proposed travel. The parent travelling with provide the other parent with the following;
(i)Date of intended travel and itinerary,
(ii)Addresses of where the Child will be staying.
(iii)Return airline tickets for the Child,
(iv)Proof of registration with the Australian Smart Travellers website – Undertaking that the parent will not leave a child under the age of 18 years old unaccompanied in the country being visited.
15.That the Mother is restrained from travelling with the Child on the Child’s [Country D] Passports unless she has obtained the express written consent of the Father and provided the Father with the following:
(a)Dates of intended travel and Itinerary,
(b)Addresses of where the Child will be staying,
(c)Return airline tickets for the Child,
(d)An Undertaking that the Mother will not leave the Child under the age of 18 years old unaccompanied in the country being visited.
16.That the Mother will not relocate the residence of the Child outside of Canberra without the expressed written agreement of the other parent or Court Order.
17.Should either parent wish to live overseas, the parent seeking to relocate must obtain the written consent of the other parent three (3) months prior to the intended date of departure.
18.The parties agree:
(a)All documents, birth certificates, citizenship by descent and passports for the Child are to be held by the parent they live with;
(b)The parent whom the Child live with must ensure that the Child has all government requirements met so they can reside in Australia such as Tax File Number and Medicare Number;
(c)All [Country D] and Australian passports and citizenship documentation must be kept current and renewed prior to expiry of such; and
(d)Both parties agree to equally share the costs associated with keeping the documentation for the Child current.
19.That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address and email address within twenty-four (24) hours of relocation;
(b)Keep the other parent informed of the names and addresses of any treating medical or allied health practitioners who treat the Child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the Child;
(c)Inform each other about any emergency or critical injury or accident or health issue for the Child with twelve (12) hours;
(d)Ensure that the other parent’s details are placed on any form (medical or educational) requesting information in relation to the Mother and/or Father;
(e)Ensure that discussions are held with the other parent prior to making decisions regarding changes to the Child’s education, location of the Child’s schools, costs associated with any changes regarding relocation, and costs of extra-curricular activities;
(f)Ensure that discussions are held with the other parent prior to making decisions regarding changes to the Child’s medical and dental needs; and
(g)Ensure that the Child’s vaccinations are kept up to date.
20.That the parents authorise any schools or any other relevant persons for extracurricular activities attended by the Child to give each parent information about the Child’s educational certificates and awards obtained by the Child (at the parent’s cost).
21.That at all times each parent:
(a)Respect the privacy of the other parent and not question the Child, [W] about the personal life of the other parent;
(b)Speak of the other parent and their partners and extended family respectfully;
(c)Not denigrate or insult the other parent and their partners and extended family in the presence or hearing of the Child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the Child; and
(d)Not discuss with the Child any adult issues arising in their current or future parenting arrangements.
22.That both parents be at liberty to attend any school sport or extra-curricular activities and events associated with the Child regardless of with who the Child is living with.
23.That this Order shall be authority to medical, health, sporting and educational providers of the Child to release information about and discuss the Child’s progress with and / or health and other needs with each parent and each parent provide such written authority as may be required from time to time and inform the other of the names and addresses of such medical, health, sporting, or educational service providers.
24.That the Mother ensure that the Father is noted on any formal documentation (including enrolment and medical forms) as the Child’s Father.
25.That the Mother pay the Costs of and incidental to this Application to be taxed.
26.Such further or other Order as this Honourable Court deems fit.
Mother’s Orders Sought

The Respondent Mother’s Orders sought were contained in the Case Summary Document filed 10^th October 2022; they were as follows (emphasis in original):
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for [X] born [in] 2006 (“X”), [Y] (otherwise known as “[Y]”) born [in] 2007, [Z] born [in] 2010 (“Z”) and [W] born [in] 2015 (“[W]”) (collectively “the children”).
3.That the children live with the Mother.
4.That [X], [Y] and [Z] spend time with the Father in accordance with their wishes.
5.That W spend time with the Father as agreed in writing between the parents, but failing agreement, as follows:
a.Every second weekend from 9.00am to 5.00pm Saturday.
b.During the school holidays:
i.During the Term 1,2 and 3 school holiday period from 9.00am Saturday to 4.00pm on Sunday on the middle weekend.
ii.During the long Summer school holiday period from 9.00am Saturday to 4.00pm on Sunday for one weekend in January with dates to be advised by the Father to the Mother in writing at least twenty one days in advance and not on the weekend before the commencement of Term 1 of the new school year.
c.From 10.00am to 2.00pm on the Father’s birthday if a weekend or 3.00pm to 6.00pm if a school day;
d.From 9.00am on Good Friday to 4.00pm on Easter Saturday.
e.From 3.00pm to 6.00pm on [W]’s birthday if she is not already in the Father’s care.
f.From 10.00am to 2.00pm on Father’s Day.
g.From 11.00am on 25 December to 9.00am on 26 December;
h.Commencing 2023 and every odd numbered year thereafter from 9.00am on 31 January to December to 4.00pm on 1 January.
6.In the event [Z] expresses a wish to spend time with the Father, the Mother shall do all things necessary to facilitate such time.
7.The children’s time with the Father pursuant to Order 4,5 and 6 shall be suspended, and the children shall spend time with the Mother, as follows:
a.From 10.00am to 2.00pm on Mother’s Day if [W] is not already in the Mother’s care.
b.From 10.00am to 2.00pm on the Mother’s birthday if a weekend OR 3.00pm to 6.00pm if a school day if [W] is not already in the Mother’s care.
8.The Mother shall be at liberty to suspend [W]’s time with the Father on up to 4 occasions per year for no more than 21 cumulative nights if she is having a holiday in Australia or overseas with the children provided that:
a.if travelling within Australia she has given the Father written notice of her intention to travel 14 days in advance or as otherwise agreed between the parties in writing.
b.if travelling overseas she has provided written notice in compliance with Order 12.
9.In relation to the children’s passports:
a.the parents shall do all acts and sign all documents necessary to ensure the children maintain a valid Australian Passport with the cost of same to be shared equally
b.the Mother shall hold the children’s passports and provide same to the Father not less than twenty-eight (28) days prior to any proposed travel and the father shall return same to the Mother within seven (7) days of returning to Australia.between the parties;
c.should either parent lose the children's passports, the cost of a new passport for the child shall be the sole expense of the parent who lost the passport.
10.Neither parent shall be permitted to travel with [W] (or any older child who wishes to travel with that parent) overseas without the other parent’s written consent and that consent shall not be unreasonably withheld.
11.That the Father only be permitted to travel with [W] (or any older child who wishes to travel with that parent) overseas for no more than one week unless with the Mother’s express written consent.
12.Each parent shall provide the other parent with at least two months written notice of any proposed international travel with [W] (or any older child who wishes to travel with that parent), including providing the other parent with a copy of return airline tickets, a travel itinerary, a contact phone number and addresses for all accommodation where the [W] /the children will be staying.
13.That the parents will communicate only using the Talking Parents App or another similar App agreed in writing except in an emergency.
14.That both parents shall keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to the children while the children are in that parent’s care as soon as possible and keep the other informed of any medication to be taken by the children.
15.That, without admission, each parent is restrained from the following:
a.Using physical discipline on the children or allowing anyone else to do so;
b.Exposing the children to family violence, or allowing anyone else to do so;
c.Yelling or shouting at the children or allowing anyone else to do so;
d.Discussing these Court proceedings with the children
e.Denigrating or criticising the other parent, or members of the other parent’s family or household in the presence or hearing of the children and shall not allow any third party to do so.
Independent Children’s Lawyer’s Orders Sought
The ICL’s Orders sought were contained in the document titled ‘Minute of Final Orders Sought by the Independent Children’s Lawyer’ emailed to Chambers on 10^th October 2022; they were as follows (emphasis in original):
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for [X] born [in] 2006 (“[X]”), [Y] (otherwise known as “[Y]”) born [in] 2007, [Z] born [in] 2010 (“[Z]”).
3.The mother has sole parental responsibility for [W] born [in] 2015 (“[W]”).
4.Notwithstanding Order 3, except in an emergency, the Mother must advise the Father about all proposed major long term health and educational decisions in relation to the [W] and:
a)prior to the decision being made in relation to the child [W] and give him seven days in which to provide a response in relation to his views;
b)Following the Father providing a response to the Mother, the Mother have a further 7 days to consider his views and provide a further response to the Father and
c)Once that response is provided to the Father, the Mother can make the decision 7 days thereafter, providing she advises the Father that she has done so.
d)Nothing in these orders permits the Mother to change [W]’s surname or permanently to relocate to a country outside Australia without the prior written consent of the Father or first obtaining a court order dispensing with the Father's consent.
5.That all the children live with the Mother.
6.That [X], [Y] and [Z] spend time with the Father in accordance with their wishes.
7.That [W] spend time with the Father as agreed in writing between the parents, but failing agreement, as follows:
a.Every second weekend from 3pm Friday to 5.00pm Saturday.
b.During the school holidays:
i.During the Term 1,2 and 3 school holiday period from noon on the second Saturday to noon on third Saturday weekend.
ii.During the long Summer school holiday period from noon on Saturday to noon on the following Saturday for one week in early January and a further week in late January on dates to be advised by the Father to the Mother in writing at least twenty one days in advance and not on the weekend before the commencement of Term 1 of the new school year.
c.From 10.00am to 2.00pm on the Father’s birthday if a weekend or 3.00pm to 6.00pm if a school day;
d.From 9.00am on Good Friday to 4.00pm on Easter Saturday.
e.From 3.00pm to 6.00pm on [W]’s birthday if she is not already in the Father’s care.
f.From 5 pm on the preceding Saturday until to 5.00pm on Father’s Day.
g.From 11.00am on 25 December to 11.00am on 26 December.
h.Commencing 2023 and every odd numbered year thereafter from 9.00am on 31 December to 4.00pm on 1 January.
8.In the event [Z] expresses a wish to spend time with the Father, the Mother shall do all things necessary to facilitate such time.
9.The children’s time with the Father pursuant to Order 4,5 and 6 shall be suspended, and the children shall spend time with the Mother, as follows:
a.From 5pm on the preceding Saturday to 5.00pm on Mother’s Day if [W] is not already in the Mother’s care.
b.From 10.00am to 2.00pm on the Mother’s birthday if a weekend OR 3.00pm to 6.00pm if a school day if [W] is not already in the Mother’s care.
10.The Mother shall be at liberty to suspend [W]’s time with the Father on up to 4 occasions per year for no more than 21 cumulative nights if she is having a holiday in Australia or overseas with the children provided that:
a.if travelling within Australia she has given the Father written notice of her intention to travel 14 days in advance or as otherwise agreed between the parties in writing.
b.if travelling overseas she has provided written notice in compliance with Order 12.
c.That the mother provide make up time to the father within 3 months of her return from her holiday
11.In relation to the children’s passports:
a.the parents shall do all acts and sign all documents necessary to ensure the children maintain a valid Australian Passport with the cost of same to be shared equally between the parties;
b.the Mother shall hold the children’s passports and provide same to the Father not less than twenty-eight (28) days prior to any proposed travel and the father shall return same to the Mother within seven (7) days of returning to Australia.
c.should either parent lose the children's passports, the cost of a new passport for the child shall be the sole expense of the parent who lost the passport.
12.Neither parent shall be permitted to travel with [W] (or any older child who wishes to travel with that parent) overseas without the other parent’s written consent and that consent shall not be unreasonably withheld.
13.That the Father only be permitted to travel with [W] (or any older child who wishes to travel with that parent) overseas for no more than one week unless with the Mother’s express written consent.
14.Each parent shall provide the other parent with at least two months written notice of any proposed international travel with [W] (or any older child who wishes to travel with that parent), including providing the other parent with a copy of return airline tickets, a travel itinerary, a contact phone number and addresses for all accommodation where the [W] /the children will be staying.
15.That the parents will communicate only using the Talking Parents App or another similar App agreed in writing except in an emergency.
16.That both parents shall keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to the children while the children are in that parent’s care as soon as possible and keep the other informed of any medication to be taken by the children.
17.That, without admission, each parent is restrained from the following:
a.Using physical discipline on the children or allowing anyone else to do so;
b.Exposing the children to family violence, or allowing anyone else to do so;
c.Yelling or shouting at the children or allowing anyone else to do so;
d.Discussing these Court proceedings with the children
e.Denigrating or criticising the other parent, or members of the other parent’s family or household in the presence or hearing of the children and shall not allow any third party to do so.
Father’s evidence
It is as well to note at the outset that in view of the significant generalities in the Father’s evidence, plus his unusual ability either not to address, and/or his inability to address, specific issues, coupled with the Mother’s candour and ready concessions in the Father’s favour and against her own interest (the Father could, or would, do neither), I very strongly prefer the evidence of the Mother to that of the Father wherever there is any relevant inconsistency. The Father had a remarkable capacity to deflect almost any specific question and to turn it into a generalised response about something rarely related to the original question. Highly summarised, his evidence was as follows.
The first part of the Father’s evidence enquired about where he did his ministry in terms of ecclesial organisation. For example, when asked what church he was in, somewhat discursively he said that he set up a non-profit organisation in the Country D and that he operated under that organisation. Other than the name of this “church”, City E non-denominational Centre, and that this organisation was registered in the Country D for tax purposes, no details or records were provided in relation to this organisation. He went on to say that here he simply meets “various people” and that he is “helping different ones.” He said that he “minister[s]” to them, do[es] things, help the children” and their family; he confirmed that “they then support what I am doing.”[12]
[12] T 31 – 32.
When asked about his church services, he said that there were some before COVID but since that time there have been no formalised meetings. Prior to COVID, he said that there were perhaps 30 or 40 people present. In response to the proposition that he did not earn any income other than from donations, he said he sometimes fixes cars with his son in City C and later confirmed that the cars were “cheap” and a very modest profit was obtained on their sale of perhaps between $1,000 to $2,000 which was obviously split between himself and his son Mr G. The Father was somewhat imprecise as to where the original funds came that were used to buy these somewhat decrepit cars; he simply said that the money “can come from the parishioners-type folks.”[13]
[13] T 32 – 33, 40.
When asked whether or not he had lodged a tax return in Australia, the discursive response was along the following lines. He said that his Father was a minister, and that as a minister some things were “set up for him” (no details supplied) such as housing and getting other things “taken care of.” He was unclear whether or not this was his expectation as a “minister” or how he intended the Court to use this evidence regarding his Father. In any event, he said he did not pay for petrol, registration or insurance regarding a vehicle that is provided for his use. He said that he lived with a family friend, and that he cared for her generally.[14]
[14] T 33.
When asked how long this living situation would continue (noting that the person he purportedly cares for, upon further examination, appeared to be not much more than him doing some odd jobs around this 82-year old woman’s house, perhaps a bit of shopping, generally monitored her wellbeing and did some cleaning for her) some quite further nebulous comments were made in response to the question. For example he said that this woman’s son was “my best friend growing up.”[15] This was unexplained. He also said that the woman’s family had made it clear that once the Father “moved on” (when and how was also not explained) she would have to live with her family as she was unable to take care of herself. He confirmed that his living situation with this lady had no set timeframe. Still somewhat obliquely, the Father further commented that his living situation was in some way related to once he knew how much time he would be spending with W.[16] Further general comments were made in relation to this living situation, but there was little clarification. It is, in my view, an important illustration of the rather unstable life-style of the Father when considering the best interests of his children.
[15] T 33.
[16] T 33,
The Father confirmed that he lived off “donations” which, he said, brought credibility to his ministry, somewhat akin to Mother Theresa – sans children of course. He also confirmed that he was the only minister in his church.[17]
[17] T 34.
When asked about his expenses, he said that he had the registration for the car paid for by one of his benefactors, with the car also being used for some or part of his ministry. He said that the person who bought the car for him also pays any road tolls on behalf of the Father. He says that he receives approximately $400 for ministry expenses each week. He hopes to set up a charitable organisation but there is a significant financial outlay for that to occur; but he speaking with his accountant about this.[18]
[18] T 34 – 35, 37.
He said his church meets in homes and that, puzzlingly, and certainly without any explanation, every church “has a registered corporation.” Where, how and by whom the “registration” might occur was not indicated. He said “they” were building it (without specifying who the “they” are, or what the “it” was). He also said that the move to Country B was in some way related to the building of the church corporation. He was unclear how it was related.[19]
[19] T 35.
He said he was ordained by or through an organisation in City C called the Christian Centre but confirmed that he has no named organisation here as yet. He says he has a bank account in his name but the money in it is not his because it belongs to the [unregistered] organisation.[20]
[20] T 35 – 37.
When he was asked the very practical and simple question about where and or how he would have the money, for example, to take W to the movies, he simply said that he would use the money from “when I sell a car.” The fixing and selling of the car would be through some business that his son in City C has set up. He flies to City C sometimes twice a month flying from Sydney. The money for the airline ticket comes from either when he `sells a car or people have “paid for airfares for me to go there.” He said he usually is away for approximately 11 to 12 days.[21]
[21] T 37 – 38.
He confirmed that from week-to-week he usually lived on money received from selling cars for groceries. This is despite other evidence from the Father that he does not have a grocery bill, per se. He said that in the past year he and Mr G have sold perhaps six cars which has resulted in a profit of $1,000 to $2,000 per car, which is split between each of them.[22] Accepting this evidence, for which there was nothing other than the Father’s general account, this would result in an “income” from car selling of a maximum of $6000.00 per year. To state the obvious: such a sum would not go very far to cover living or other expenses. It is certainly, and sadly, essentially non-existent to assist the Mother with any child support.
[22] T 39 – 40.
As noted earlier, the Father confirmed that his legal fees are being paid for by benefactors.[23] He said it was his intention to repay them for these fees unless they said that they did not want to be repaid; but he said he would not pressure them in this regard. When asked how he would repay them he said that if he had to he would get another job. He said that such other jobs that he would consider would be driving buses.[24] There was no evidence of the Father having been in any paid employment outside the ministry, such as by driving buses.
[23] T 41.
[24] T 41 – 42.
The Father confirmed that his ministry did not go well in Country B but it was “doing well” in Australia. He said that people have known him for 40 years noting also that in his Affidavit he said that he was 53 years old. The “math” as deposed to by the Father did not really balance out. He said that his family had a long-standing ministry, but he did not explain how that was relevant to the issues before the Court or to the questions about his almost subsistence existence.[25]
[25] T 42.

The Father confirmed that he was not in receipt of Centrelink benefits at the time of filing his Initiating Application. He said he did not approve, as a minister, to receive Centrelink benefits from the government. He was not suggesting that the Mother was, for example, cheating the system because she now received Centrelink benefits.[26]
[26] T 43 – 44.
The Court may take judicial notice of the regularly published figures, which are also publicly available, that someone on a Job-seeker allowance would receive a figure slightly over $17,000.00 per year, while a single, aged pensioner, receives approximately $1026 per fortnight, which results in $26,689 annually. These figures obviously dwarf the sums the Father deposed to receiving by the sale of rather “down at heel” cars for very minor sums. If accessed, it might give the Father the opportunity to provide something by way of child support to the Mother for his children rather than leaving everything to the Mother to make ends meet.
A general observation regarding the Father’s evidence is that there was, and is, no transparency or accountability regarding either his ministry generally, and/or any funds he receives for it, in particular, from benefactors or anyone else. Neither the Court, nor the Mother have any safe and reliable information regarding the Father’s financial status, including any “prospects” for the future. The Mother and the children are left to fend for themselves. It is an immense impost; it is an abrogation of the Father’s parental responsibility.
Various, disparate, other topics were canvassed even more briefly with the Father such as an email he sent to the Mother in June 2020 in which he appeared to say that he was going to give up fighting the Mother in relation to time with arrangements with the children. He sought to clarify his position by saying that he would not engage in a personal fight. Rather, by bringing the matter before the Court, he was simply “putting it in the hands of others”, seeking that the Court decide the issues in dispute. This was because, among other things, he “believe[s] in a courtroom” and that the Judge is a “court-ordained authority.”[27]
[27] T 48 – 50.
The Father said that he would love an equal time arrangement but, the Court being “a God authority speaking into the situation, I will accept what he says.”[28]
[28] T 50.
Among a number of incongruities in the Father’s evidence, he said, for example, that he could ask a friend to pay for an airfare to City C so that he can work on the old cars with his son, but that he would not do this. However, in the next breath, he said that he could ask the ministry to pay for the flight. The distinction between these and many other matters was, at least, most opaque.[29] Again, issues of transparency and [lack of] accountability were readily evident – but alas, not to everyone.
[29] T 51.
The Father was taken through his current orders sought in relation to him seeking to spend half of every school holidays with W. He wished her to be able to see his family in City C but also to spend time with the Mother’s family.[30]
[30] T 51.
Importantly, the Father also said in relation to all of his children who currently do not spend time with him that “they will come find me when they’re ready.”[31] To state what should be obvious: there is clearly no plan by the Father actively to repair any of his relationships with any of his children. Also to state the obvious: this is a sad and highly concerning situation. It is tantamount to an abrogation of proper, informed and insightful parenting. In this regard it is also significant to note the Father said that there was nothing that he did wrong in relation to the children.[32] This was both alarming and bordering on the bizarre that the Father should be so sanguine about the wreckage of his family and have no plan to salvage any of it – most notably the ruptured relationships with most of his children – other than to leave it to the passage of time!
[31] T 52.
[32] T 52.
The Father was then taken through certain aspects of the family’s time in Country B. This included a period of some months where the Mother was left on her own in Country B with the majority of the children and the Father had returned to Australia. When asked how the Mother and the children survived he confirmed that he had had no contact with them other than indirectly through “two supporters.” He confirmed that the Mother had access during this time in Country B to approximately €320 per month, which was deposited into a PayPal account from donating parties and the Mother’s family to which she had access.[33]
[33] T 54, 56 – 59.
The Father said that in order to essentially survive in Country B the family needed approximately $5,000 per month. With alarming understatement he said that the donations to achieve this were “pretty difficult.” He said that there was a donor in the Country D who gave the Mother an American Express card which had unlimited credit thereby (in his view) relevantly providing for the Mother and the children in Country B. He confirmed that while he was in Country B the family received $5,000 per month but then, somewhat incomprehensibly, said that this continued until he informed the Mother “I can’t do this anymore. We can’t be here.” Hardly helpfully, and more likely the reverse, while he was in Australia and some of the children remained in Country B with the Mother, he sent one or more of them a screenshot to show that there was money available to the family simply to confirm that there was money available to bring those remaining in Country B back to Australia.[34] One could hardly be certain that such conduct would allay any anxiety either the Mother or the children in Country B were feeling.
[34] T 60 – 61.
The Father confirmed that on 6^th October 2022 he had paid off a child support debt owed of $2,000. He said that someone had “lent” him the money for this. When asked, the Father confirmed this would be another debt he intended to pay back, unless the lender indicated repayment was not necessary. There was no further discussion about whether or not he would pay this sum back or whether he had any intention to do so, let alone where any repayment funds would come from.[35] This evidence, like many other instances, again showed a totally blithe disposition to responsible use of funds, which invariably came from someone else. “Responsibility” and prudential judgment were patently missing “virtues” from the Father’s daily practices.
[35] T 61 – 62.
There were further issues canvassed with the Father about providing funds for dental treatment for W. He said that he could not find a way to provide the money to the Mother for this through child support. I suggest, through child support, or carrier pigeon – anything – would or should be acceptable and tried. At the same time, he said that he was “happy to pay”, presumably because the sum was only approximately $185. He said he had that money which he thought probably came from the sale of a car.[36] It was suggested that the only reasons the Father would consider paying this very modest sum was to reduce his child support payments, which were miniscule in any event. There was little response to the question.
[36] T 62.
The Father confirmed that he sent a birthday card to Y in 2022 and that he sent it via W.[37] A copy of this birthday card became Exhibit 1. The card is clearly of a kind intended for a young girl, with the cover reading “Wonderful Daughter – Happy Birthday”.[38]
[37] T 62-63.
[38] T 16.
The Father said that he thought that was Y was a lesbian, and he only first heard that he was transgender from Ms F’s report. He also said that the report from the school counsellor about Y’s self-harming also only came for the first time through Ms F as the Mother had never told him about such things, although he confirmed the Mother had informed him of Y’s suicide attempt.[39] When asked how he referred to Y at home when referring to W he said he refers “to her as Y most of the time.” He went on to say that his way of life was “unconditional love”; he said he has not met Y because he has never met the person who introduces themselves as Y. He said that “she left my life” and “I’ve have no contact since.” He also said that he required Y to tell him personally about such matters.
[39] T 64 – 65.
Finally on this aspect, he was asked why he sent the card that he did to Y. He simply repeated that he sent it because the last time that he saw Y he had never met Y and that his daughter was [then] in his life. He said he did not think that Y was yet fully committed to his transition. The birthday card was, in his view, a way of honouring his “daughter” and telling “her” of his love. He acknowledged that he could have done better and that he hopes to do better.[40]
[40] T 65 – 68.
The Father generally said that the Mother did not facilitate his time with the children. He said he did not have a good memory about certain details which included the Mother organising, in August 2020, weekly video chats for the Father and W. He did not recall that he did not attend either of the two video chats.[41] He also confirmed that he did not spend time with the children following mediation in December 2020 and mediation in April 2022. He said that he was concerned to set a precedent that he did not agree with in relation to the “time with” arrangements.[42]
[41] T 78 – 79.
[42] T 79 – 80.
There was other discussion regarding the Father moving to Canberra but still not spending time with the children. And likewise, discussion regarding him not actually paying the cost of the airfares to bring the Mother and the rest of the children back to Australia.[43] He simply said that he did not know that the Mother and remaining children had returned to Australia. When the Mother retuned to Australia she set up a dedicated account and gave the Father details of it to enable him to transfer money for the airfares paid. The Mother contended, and the Father only slightly cavilled, that he put only $200 into this dedicated account. He said that he gave the Mother money several times and that most of it went through as child support.[44]
[43] T 80.
[44] T 80 – 81.
Questioning returned to the Father’s ministry. For example, the Father confirmed that he was ordained at a Christian Centre, and earlier had been ordained at, apparently, a similar centre in City E in the Country D. Somewhat curiously, the Father’s evidence would suggest that each country in which one intends to exercise some ministry further “ordination” is required. As a general proposition, this is not what would usually be required in any of the more mainstream Christian traditions. Moreover, and with no relevant evidence to support it, the Father further contended that one had to get approval from the government to ordain or perhaps to be ordained. Again, the Father’s evidence was most unclear. When asked if he considered himself something of a “free spirit” he simply stated that he was “very big on accountability.” From what has already been stated, clearly his understanding of “accountability” does not accord with any accepted standard or practice of it. Perhaps the most glaring lack of accountability, or transparency, is that there was no evidence as to how much money the Father actually receives – weekly, monthly or annually – from his benefactors. There was simply no information. The Father operates in some sort of financial penumbra, where basic, black and white financial and other day-today detail simply do not exist.[45] For child support purposes, he is assessed at the lowest possible level, which plainly assists his children not a jot.
[45] The Shorter Oxford Dictionary (Fifth Edition) defines “penumbra” as “any partial shade or shadow around a thing; a surrounding area of uncertain extent.”
The Father confirmed again that he had no other assistance minister here in Canberra. He confirmed also that he had no formal income; his current residence was an 82 year old female “friend”; and that he was waiting to see what the outcome of the decision of the Court was before maybe working out some other living situation. He said the lady with whom he lives is a friend of his Mother’s. He cooks and vacuums for her, he insisted that he was responsible for cleaning his own bathroom. He further confirmed that he and one of his sons have bought and sold six cheap cars in 2022 (so far) and that there was approximately $1,000 to $2,000 between them on the sale of the cars. The Father clarified that he and his son were not really splitting the profit in a set way because the son spent a lot of money setting up the business. No details or documents were provided in relation to these matters.[46]
[46] T 82 – 84.
Again he confirmed that he relied upon supporters and, by way of clarification, he confirmed that he did not operate on the same level as Mother Teresa. He also said that it could be seen that materially there was little evidence of child support or otherwise before the Court. He said that he had been a “missionary” for 28 years. When asked about the “fruit of his ministry”, he said that that was something the Court would have to ask the people to whom he ministers. He said his eldest son was 25 and that the children had never missed meals, never slept in a car, and had travelled all over the world. He went on to say that he has eight healthy children, some are estranged but their physical needs were met. In turn, he was confident that W’s physical needs would be met.[47]
[47] T 84 – 86.
When asked about why he thought most of his children were estranged from him his comments, briefly, were as follows:
(a)His son X did not want to be involved in “drama” (e.g. the long-running litigation), which the Father said has not helped;
(b)He said he did not believe that the Mother had provided the children with a lot of encouragement;
(c)At the same time, he said that he did not entirely blame the Mother;
(d)He said he was “a young man” (it was unclear what this meant); and
(e)He said that when in Country B, his sons were young men who were “sitting up all night watching cartoons, laughing, sleeping all day” and “taking showers that were hours on end”; he said he raised these issues, which contributed to the strained relationship with the children.[48]
[48] T 86.
Such comments almost defy any analysis because they are so lacking in insight and understanding at absolutely every level. They simply speak loudly for themselves.
When asked by the ICL how he would communicate with the Mother if an Order for equal shared parental responsibility were made, the Father answered that he would ask the children what they wanted.[49] Respectfully, one would hardly think that, in all of the relentlessly uncertain dimensions of this matter, this was an insightful or penetrating answer. I certainly do not.
[49] T 87.
The Father confirmed that he had done some parenting courses, the last being completed on 5^th of September 2022.[50]
[50] T 90.
Simply to repeat: very concerningly, the Father’s evidence made plain how inattentive and seemingly unconcerned he is about the welfare of, and his relationship with, his children. As already noted, his responses to very basic questions were invariably meandering and lacking in both basic content and insight. Such comments are a very sad indictment of his remarkably poor parenting. To state again: the most glaring and damning judgment on his parenting is the estrangement of most of his children from their Father. Bizarrely and alarmingly, this state of affairs seems to trouble him negligibly.
No less troubling was the fact that even with the benefit of Ms F’s Report(s), the Father seems to have learnt little or gained much insight into his conduct and the impact of it for his children.
Mother’s evidence
Summarised, the Mother’s very limited evidence was as follows.
The first part of the Mother’s cross-examination sought to clarify the Orders she sought in response to the Father’s Orders sought notably, but not only, in relation to school holidays. In this regard the most important issue related to the Mother recording that after spending time with the Father, W returns to her showing various signs of anxiety, such as immediately going to the toilet upon her return, asking for food, attempts to relax and is otherwise quite clingy and wants hugs from her Mother. She said this is W’s state on every occasion when returning from spending time with her Father. She said she has sought some medical or psychological assistance for W, particularly from the school’s psychologists.[51]
[51] T 99 – 100.
A range of questions were attempted of the Mother, but ultimately they were not pursued after the Court pointed out that it was not a change in residence case (as the questions largely presumed) but simply a “spend time with” case.[52] Further, a number of questions were put to the Mother on multiple occasions, respectfully for no good purpose, she having answered questions the first time round. For example, she confirmed that she had no major problem with any of the children generally spending time with the Father (subject to their views for or against doing so). Nor did she generally oppose any of the children spending time with the Father’s family in City C. She acknowledged that those who spent time with the grandparents enjoyed doing so but otherwise she had no knowledge of the “time with” because she was not present.[53]
[52] T 103- 104.
[53] T 106 – 107.
She was aware that the paternal grandfather had had a fall somewhat recently. She confirmed that she informed the children of this incident. However, she did not know if any of the children, Z in particular, had sent him any message directly to the Grandfather.[54]
[54] T 107.
The Mother confirmed that in relation to the family’s stay in Country B, she had the opportunity to take an educators job while there. The Father had deposed in his Affidavit material that he did not oppose the Mother working in Country B. She denied this and explained that, amongst other things, the hourly rate of pay for this job, in his view, was too low.[55]
[55] T 108.
She said that living in Country B was expensive, although the cost of food was quite cheap. She commented further that it was just as difficult to live in Country B as it was to live in the Country D especially given how precarious finances always were for the family.[56]
[56] T 108 – 109.
She said she was relatively content to discuss matters with the Father but indicated that she would prefer sole parental responsibility, with a requirement to consult with the Father (albeit that this could be difficult) as proposed by the ICL.[57]
[57] T 109 – 111.
In response to questions from the ICL, the Mother denied that she had in any way undermined the children’s relationship with the Father. She did say that, when the parties were together, it was very difficult to have discussions with the Father that were not heard by all eight children. Indeed, she commented that the older children in particular were affected in hearing the discussions between the parents to such an extent that they intervened to ask or direct the Father to leave the Mother alone. She said even W commented similarly at times when the Mother was attempting to do research for her education and the Father was annoyed she was working from home. She said he had the view that she should never bring work home.[58]
[58] T 112 – 113.
When asked whether or not there were more personal criticisms that the children were exposed to in the parental relationship, the Mother commented that the children, the older boys in particular, observed the Father’s behaviour, which included him regularly pressuring the Mother to have sex with him. And even when he agreed to “take a break” this rarely if ever occurred because of his actions during the night, which still pressured the Mother into having sex with him.[59]
[59] T 113.

In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], admittedly in a different context to what is the situation in the present proceeding, where his Honour said (emphasis added):[67]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[67] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[68]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[68] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[69] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183].[70]
[69] McCall v Clark (2009) 41 Fam LR 483.
[70] Sigley v Evor (2011) 44 Fam LR 439.
Subject to what is said below, the repeated reference in the cases mentioned to the quality of a parent-child relationship is not relevantly dependent upon the quantity of the time spent between the two. Regrettably, the Father here seemed so often to be focussed at least as much, if not more so, upon ensuring the amount of time with the child rather than taking proper account of the quality of his relationship with her.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):[71]
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
[71] Sigley v Evor (2011) 44 Fam LR 439.
In addition to the principles already outlined, because of the unique and delicate issues in this matter, the following further principles should be noted.
First, in Bondelmonte v Bondelmonte, the High Court confirmed that as important as it is to have regard to a child’s views, they are but one of a range of considerations under part VII of the Act, nor is a Court bound to follow any such views.[72]
[72] Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34] – [35] and [43]. Of course, in considering a child’s views, the Court should also be mindful of potential consequences if Orders are made that are contrary to any expressed views of a child or children.
Secondly, it is also the case that issues of relevant “risk” can apply to situations that concern various kinds of pressure that are brought to bear on a child or children that does not otherwise constitute either physical or sexual abuse. Thus, In the Marriage of R, the Full Court said, at [177] – [179] (emphasis added):[73]
[177] For our part, we echo the view expressed by the trial judge of the serious nature of depriving the father of contact in circumstances where that appears to have been engineered by the mother, without any fault on the part of the father at all. This cannot be in a child's best interests.
[178] It also does not appear to us to be appropriate for a parent to be able to manipulate the family law system to such an extent that the other parent's hope of ever seeing the child again, rests upon the possibility that she may wish to seek him out in later adolescence or adulthood.
[179] We think that a Family Court would not be doing its duty if it were to simply give in to these sorts of considerations, except in the most extreme case and only then, when a positive determination is made that the welfare of the child requires it.
[73] In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230.
Issues and assessment of “risk” (not necessarily relating to any physical or sexual abuse) may be relevant to a parent’s general parenting capacity.[74] In the current matter, to a significant degree, it is “parental capacity” that is a central issue, in particular the parenting capacity of the Father. In this regard, it is useful to record comments, now of a little age, from the decision in Kress, where Goldstein J said, at 319:[75]
Given the overriding consideration of the welfare of the child, the court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
[74] Among other places, see the Full Court decision in Partington v Cade (No.2) (2009) 42 Fam LR 401 at [48] and [56]. Partington v Cade (No.2) must now be read in the light of the Full Court’s recent stern qualifying comments in Isles & Nelissen (2022) 65 Fam LR 288.
[75] In the Marriage of Kress (1976) 13 ALR 309.
This is very much the case here and the Court’s delicate task in the light of the troubling, discordant evidence of the parties, ad notably the evidence of the Father being so problematic.
Consideration and Disposition
In addition to preferring and accepting the submissions of the Mother and the ICL to those of the Father, not least because they are strongly more congruent with the evidence generally and with the evidence which I have accepted in particular, summarily I note the following by reference to the “considerations” in Part VII of the Act. Without necessarily mentioning directly or specifically each such consideration, I should be taken to follow them sequentially.
Although only 7 years old, W’s views as recorded by Ms F in her Report(s), noted above, remain not insignificant for the Court to have proper regard. Her views are not, and cannot be, definitive. They are, nonetheless, instructive. Her comments reflect that she has a reasonable relationship with her Father. But she is aware of her need or desire to limit her time with him, and certainly to spend rather less time with him than what the Father seeks. She clearly stated that her refuge and support is pre-eminently with her Mother.
Sadly, it was also clear that W is aware of the difficult financial circumstances of the Father, as recorded at par.79 of the first Report of Ms F. Children should not be embroiled in, or even cognisant of, adult matters, such as the financial plight of parents. That a 7 year old is aware of such matters, presumably in part due to the Father’s unusual living situation in which he is essentially dependent upon an 82 year old lady to provide accommodation, and for others to provide his other daily needs of various kinds including a vehicle and such expenses, is very sad – and much else.
As for W’s relationship with each of her parents, it is firstly coloured, to some degree, by the Father’s impoverished relationship with all of the other children (with one exception) who, by and large, have turned their backs on him. As already recorded, W’s closest parental relationship is indisputably with her Mother. Her relationship with the Father remains generally good but somewhat guarded for reasons already given.
There is no question that W has a good a close relationship with her siblings, including (perhaps especially) Y, her transgender brother. Although he was not interviewed, the reports from the children and the Mother are that all children have a good relationship with the Mother’s new partner, Mr H. A number commented that one of the reasons Mr H was well liked was because he was not like their Father because he listened to them – a poignant comment if ever there was one.[76]
[76] There are multiple positive comments by the children scattered throughout Ms F’s first Report about the Mother’s partner recorded above.
Regarding the considerations set out in sub-paragraphs (c), (ca), (f) and (i), each and all of which in various ways focus upon the parenting capacities and responsibilities of the parents and the exercise of same, summarised from the evidence before the Court, the following should be taken to be formal findings:
(a)Up until separation, it was largely the case that the Father made all major decisions, notably in relation to where the family lived, and certainly how the family lived, specifically upon “benefactions”, broadly described. Since separation, in colloquial but very practical terms, most if not all of the children “have voted with their feet”; all but one child (who lives in City C) live with their Mother, and have little or nothing the do with the Father;
(b)It follows from this that, largely since separation, most day to day and longer-term decisions have been made, and have had to be made, by the Mother who remains with little financial support (e.g. such as child support) from the Father because he is unable to file tax returns and remains financially, and in all other respects, dependent upon donations from others who are directly or otherwise somehow associated with his very narrow, and narrowly Christian “ministry”;
(c)Because of the Father’s lack of, or inability, to undertake daily and longer-term planning due to his indigent situation, for many years and currently he has been, and remains, unable to provide for the family and the children in particular other than via benefactions. Necessarily, this must make the proper and reasonable practice of planning (and reasonably providing) for, for example, the schooling needs of the children, family holidays, medical care and the like, completely problematic. Such day-to-day, and longer-term, realities, in my clear view, show an astonishing ignorance or denial on the Father’s part of the need for his family, and the children in particular, to have a degree of certainty, routine and predictability in relation to basic needs, and having a degree of reasonable confidence (and expectation) that their needs will be met;
(d)It follows from the evidence and the comments above that the Court can have no confidence in the Father’s capacity “to provide for the needs of the children”, which must include their physical, emotional and intellectual needs. Again, the fact that the children have essentially refused to have any contact with him is perhaps the most eloquent, tragic and strident assessment and comment on the Father’s parenting, his capacities more widely, and his relationship with the children. It also highlights the Father’s abject refusal and/or inability even to acknowledge, let alone address, the plight of, and circumstances surrounding, the lack of relationship with most of his children. His fundamental silence (or deflection) on this aspect, despite many questions about it, was and remains alarming. His lack of insight on such matters was quite disturbing. He plainly has no plan to address pretty much anything to do with the children and the ongoing support they require. Effectively he has abandoned the parenting playing-field, and barely knows where or how to find the field or even to cheer from the side-line. These are abjectly serious and concerning assessments of the deficiencies of the Father’s parenting. Everything has effectively been left to the tender care of the Mother, who, for the most part, undertakes her lot, dumped on her by the Father with zero resources, faithfully and thoroughly;
(e)These comments apply with equal force (for the purposes in particular of sub-paragraph (i)) regarding the deeply unfortunate but blindingly obvious deficiencies, in my view, of the Father’s irresponsible approach to parenting. There has been no obvious weekly, monthly or longer-term plan; no obvious provision for basic, daily necessities of life for the children, including their education. Everything relied upon the Father’s “ministry” and benefactions, such as they are. While the history of providence in all manner of circumstances cannot be doubted (again the instances of Mother Teresa and Francis of Assisi may be noted among countless others), almost invariably, radical, new enterprises of Christian endeavour have been by those who do not have a spouse and a large number of children. It is also regularly the case that such new enterprises occur by reference to some connection to an established ecclesial organisation, and no less importantly the “fruit” of their labour becomes manifest “along the way.” While there are notable exceptions to some of these general “criteria” or examples, they remain classic instances of “the good tree bearing good fruit.”[77]
[77] Among many instances of supremely radical Christian life-styles that led to abundant “fruit” only after death, there is the remarkable life of Charles de Foucauld, the former French Viscount who later became a solitary monk who lived among the Tuareg tribes in and around the Sahara Desert in Algeria until he was killed by bandits in 1916. Wherever he lived in abject poverty during his life, and obviously after his conversion from a life of raucous debauchery and relentless affairs, he always subjected himself to the authority of the local bishop of the area, and remained further subject to a long-time spiritual guide, a priest in Paris. Following his death his saintly life gave rise to multiple, world-wide communities of women and men; his sanctity is formally recognised by the Catholic, Anglican and Episcopal Churches. The definitive English biography of Foucauld, a translation of the original French version in 1997 of the same title, is by Jean-Jacques Antier, simply entitled Charles de Foucauld (trans. J.S. Smith) (San Francisco: Ignatius Press, 1999).
To summarise, the Father’s deliberate and ongoing “providence-based” choices, notably his complete dependence upon benefactions, including for his accommodation with a quite elderly “supporter” or member of his ministry, in my view, highlight his lack of insight regarding the need regularly and reliably to provide the most basic of necessities of daily life for his family.
Likewise, the utterly sad circumstance of the almost complete estrangement of the children from their Father, and poignantly his utter inability and/or refusal to acknowledge or explain this terrible situation, highlights still further the impoverished and inappropriate attitude of the Father towards his parental responsibilities. In my view, the evidence plainly confirms the Father’s inability and/or refusal to accept any proper or considered responsibility for the plight of his family, the plight of the broken relationship with his former Wife, and tragically, the circumstances and reality of the broken relationship with almost all of his children. Even the most basic contribution for the day-to-day material care of the children does not figure in the Father’s thinking or “plans.”
Further to this, the Father regularly deflected any attempt by the Court to inquire into these most basic and essential of matters. For a clearly intelligent man, his refusal, or inability, to engage properly, or at all, regarding these fundamental issues and questions regarding his family showed an astonishing lack of insight. Effectively he has left his family, in all relevant respects, to “providence.” To do this, even if slightly albeit remotely virtuous, was and remains, in fact, a dereliction of parental responsibility and duty. He will “walk” – literally and metaphorically – his own path. He cannot, as he has done in the past, force his large and still in many respects young family, to follow such a financially, emotionally and psychologically precarious path.
In my view, the evidence makes clear that he has chosen a hugely irresponsible path for his children (and previously for his Wife) in almost every respect. Almost blithely, he takes little or no responsibility for those choices and the plight of the [lack of] relationship he now has with most of his children. It is all a tragic situation. It is not ameliorated by platitudes of the kind like “God will provide”, and “the Spirit will blow where He will.” After a life of profligate debauchery and unrestrained “womanising”, the great Augustine later remarked in the course of intense study and learning while living in a monastic community, “the God who made us without us will not save us without us.”[78] Respectfully, if one of the greatest minds of the ancient and neo-medieval world (recognised by Christian and on-Christian alike) enjoins that human beings need to take responsibility (and be accountable) for their lives, I suggest that it is a particularly “brave” if not foolhardy person not to take heed of such counsel.
[78] Among the immense array of material written by, and about, Augustine, see the encyclopaedic and magisterial, as well as generally stunning, study by Serge Lancel, St Augustine (trans.A. Nevill) (London: SCM Press, 2002) Chapters XII – XV, and perhaps the better known (in the English-speaking world) Peter Brown’s, Augustine of Hippo (Revised Edition) (London: Faber & Faber, 1967 & 2000) Chapters 11 – 13.
Further still, with his long-time mistress (her name is unfortunately unknown, and she is more regularly referred to as his concubine) of 15 years or so before becoming a Christian, it is well-known that Augustine had a son – Adeodatus – whom he looked after and provided for even after he joined, firstly, a contemplative philosophical community in Cassiciacum not far from Milan, secondly, for a short time in Rome, and then his embryonic monastic community in the Numidian town of Thagaste in northern Algeria, near Hippo in northern Africa. In all instances, whatever Augustine’s personal circumstances, he ensured that he provided in every respect for his son – intellectually, philosophically, emotionally, spiritually and materially. Adeodatus died when he was approximately 18 years old when Augustine was living in Thagaste.
While Augustine resolutely pursued a disciplined and exhausting Christian life and ministry, just as resolutely did he always ensure that his son was properly and diligently provided for. In my view, the evidence makes plain that the Father in this matter did not, and continues to be derelict in his duty, in the care of and notably the provision – even materially – for his children.
It is not to the point, as the Father argued, that W is not at risk in spending time with him. It is, among other things, the circumstances of his concerning living situation, and his lack of plans for the care and well-being of W (let alone the rest of his children for whom the Mother now cares completely, and completely unsupported). “Providence” and benefactions are his only “security.” Certainly under the Act, this is less than satisfactory. And as noted multiple times already, the Father remained disturbingly tight-lipped, even apparently insouciant, about the lack of relationship with most of his other children and the fact that they are estranged from him. He offered no explanation or even comment, other than it was the Mother’s fault.

There was no suggestion at any time that the Father planned to seek paid employment to enable him to provide for his children. There was no real suggestion that he had any plan to seek to reconcile with his children. There was no suggestion that he had any plan in relation to his “ministry” becoming more aligned with some formally recognised ecclesial enterprise, even if only to be able to obtain some of the charitable taxation benefits.
Viewed through any one of, but especially the combined prism of, these matters, I have very little confidence in the capacity of the Father actually to care for his children, certainly in any practical way. No less troubling is the Father’s apparent indifference to this. He seems to have no insight, or to accept any responsibility, for him to do so. This is genuinely alarming.
In addition to the matters already raised, without being indelicate or wishing to cause any distress, the Father never addressed what his living situation will be when his 82 year old land-lady, for example, goes in to care or ultimately dies. There was no discussion, let alone any evidence, whether (for example) he has any expectation of being a beneficiary of her estate. Otherwise, if that is not so, there is utterly no evidence as to what his living situation will likely be. In such an eventuality, it will present more uncertainty for W, and to some extent perhaps, the other children. It is yet another completely unsatisfactory situation in which the Father has placed himself, and in turn, his children.
In addition to these reasons, I accept and adopt the submissions of the Mother and those of the ICL. For the reasons given, it is in W’s best interests that she spend regular but limited time with her Father and in accordance with the Orders proposed by the ICL, which are also supported and accepted by the Mother. These Orders include one for sole parental responsibility in the Mother’s favour, subject only to requirements of limited consultation between the parents but with the Mother having the ultimate decision-making responsibility. In making such Orders it obviates the need to consider other provisions, such as s.65DAA of the Act.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 10 February 2023

File number(s):	CAC 2304 of 2020
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	10 February 2023
Catchwords:	FAMILY LAW – Parenting – best interests of the child – where there are 8 children of the marriage but the proceedings related only to the four children under 18 years of age – where the Father conceded he would not pursue orders in relation to the older three children – where the Father sought equal shared parental responsibility and spend time with orders in relation [only] to the youngest child who is 7 years old and the Mother sought sole parental responsibility and limited spend time with orders – where the Mother adopted the independent children’s lawyers orders sought for the Mother to have sole parental responsibility and the child spend limited time with the Father - where the Father lives a financially and economically unstable lifestyle as a minister, and who relies solely upon “providence” in the form of funds regularly provided by a limited number of benefactors and is unable to provide certainty that he is able to meet the child’s emotional and physical needs – where the Father is estranged from 6 of the 7 older children - finding that the Father poses an emotional and psychological risk - it is in the child’s best interests for the Mother to have sole parental responsibility and the child spend regular but quite limited time with the Father.
Legislation:	Family Law Act 1975 (Cth) ss. 60CA, 60CC(3)(a) – (m), 65DAA
Cases cited:	AMS v AIF (1999) 199 CLR 160 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Collu & Rinaldo [2010] FamCAFC 53 Fox v Percy (2003) 214 CLR 118 Godfrey & Saunders (2007) 208 FLR 287 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Isles & Nelissen (2022) 65 Fam LR 288 In the Marriage of Kress (1976) 13 ALR 309 Lee v Lee (2019) 266 CLR 129 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 Partington v Cade (No.2) (2009) 42 Fam LR 401 In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230 Sigley v Evor (2011) 44 Fam LR 439 Vontek & Vontek [2017] FamCAFC 28 The New Jerusalem Bible K. Aland (ed.) The Greek New Testament, (Stuttgart: United Bible Societies, 1983) F.W. Danker (ed.), A Greek-English Lexicon of the New Testament and other early Christian Literature (Third Edition) (Chicago & London: The University of Chicago Press, 2000) P. Brown, Poverty and Leadership in the Later Roman Empire (The Menahem Stern Jerusalem Lectures) (Hanover & London: University Press of New England, 2002) P. Brown, Augustine of Hippo (Revised Edition) (London: Faber & Faber, 1967 & 2000) S. Lancel, St Augustine, (trans. A. Nevill) (London: SCM Press, 2002) The Oxford Dictionary of the Christian Church, (ed. A. Louth) Fourth Edition, 2 Volumes (Oxford: Oxford University Press, 2022)
Division:	Division 2 Family Law
Number of paragraphs:	115
Date of last submission/s:	15 December 2022
Date of hearing:	17 – 18 October 2022
Place:	Canberra
Counsel for the Applicant	Mr G Waterman
Solicitor for the Applicant	Dianne Grace Solicitor
Counsel for the Respondent	Ms M Davis
Solicitor for the Respondent	Legal Aid ACT
Independent Children’s Lawyer	Jeanine Lloyd & Associates

CAC 2304 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DYER Applicant
AND:	MS DYER Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

order made by:	JUDGE W J NEVILLE
DATE OF ORDER:	10 February 2023