Elspeth & Peter - [2006] FamCA 1385

[2006] FamCA 1385

IN THE FAMILY COURT

OF AUSTRALIA

AT HOBART No. (P)HBF150/2003

Elspeth Applicant

AND

Peter Respondent

REASONS FOR JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE BENJAMIN

DATE OF HEARING : 3, 4, 5, 6, 9, 10, 11 and 12 October 2006 and

9 November 2006.

DATE OF ORDERS                   :    21 December 2006
DATE OF REASONS                :     21 December 2006
CATCHWORDS : FAMILY-LAW-CHILDREN – Parental responsibility – With whom a child lives – With whom a child spends time – With whom a child communicates – Mother and children’s religious beliefs conflict with the present religious beliefs of the father – Is the presumption which would otherwise arise under s. 61DA rebutted under ss. 61DA(4) – Should the primary place where the children live change or continue with the mother – In either event whether, when and how the children spend time and communicate with the parent with whom they are not living - No question marks over either parties quality of parenting – The issues of both parenting responsibility and time arise out of the children’s religious beliefs and that of their parents – Whether a 16 year old child should be compelled to live with or spend time and communicate with a parent in the face of her determined opposition to such orders but where she is likely to comply.
APPEARANCES  :     Mr McGuire of Counsel (instructed by Temple-Smith Partners) appeared on behalf of the applicant.
:Mr Murray of Counsel with Ms Mills of Counsel (instructed by Murray and Associates) appeared on behalf of the first respondent.
:Mr Waterhouse of Counsel (instructed by
P L Corby & Co.) appeared as the Independent Children’s Lawyer.

ORDERS

THAT P (“the father”) and E (“the mother”) have equal shared parental responsibility for the children L born in December 1990, J born in January 1994 and C born in December 1998.
THAT the three children L, J and C live with the mother.
THAT L spend time with the father:
(a)    each alternate Saturday during school term from 10.00am until 12.00 noon commencing the second Saturday after the commencement of each school term;
(b)    the first two days of each Tasmanian school holidays commencing at 10.00am on the first day and ending at 5.00pm on the following day;
(c)    on Father’s Day from 10.00am until 5.00pm;
(d)    such further time as is agreed in writing between L and the father.
THAT the C and J spend time with the father as follows;
(a)    during Tasmanian school term from 10.00am Saturday until 3.00pm Sunday each alternate weekend commencing on the second weekend after the start of each school term;
(b)    the first week of each of the mid term school holiday periods commencing 10.00am Saturday and ending 10.00am the following Saturday;
(c)    from one week from 14 January in each year;
(d)    if Father’s Day is not a time when the children would otherwise spend with the father, from 10.00am until 5.00pm on Father’s Day.
(e)    If Mother’s day is a weekend when the said children would spend time with the father by virtue of these orders then such time the children spend with the father that weekend will conclude at 5.00pm on the Saturday before Mother’s day.
(f)    That handover and return of the children and each of them to take place at the residential address of the mother or such other place as is agreed between the parties in writing.
THAT the father be at liberty to forward letters, cards, parcels and presents to the children or each of them and that the mother allows those letters, cards, parcels and presents to be given to the children unopened.
THAT the father be restrained from discussing and/or denigrating, or allowing others to discuss or denigrate the mother’s faith in the presence or hearing of the children and further that the father be restrained from taking the children to his church and from exposing them to television, radio, computers and other things that the father is aware is contrary to the children’s beliefs.
THAT the mother be restrained from discussing and/or denigrating, or allowing others to discuss or denigrate the father’s faith, the father’s leaving of the Exclusive Brethren or his lifestyle in the presence or hearing of the children.
THAT each of the parties be restrained from discussing these proceedings or allowing others to discuss them in the presence of the children.
THAT both the father and the mother:
a.shall do all acts and things necessary to encourage the children to speak positively to and about the other parent;
b.shall discourage the children from speaking negatively to or about the other parent.
THAT the mother forthwith authorise the appropriate officer of the children’s schools to provide information about the children’s schooling to the father (including but not limited to newsletters, photos, school reports) at the father’s expense.
THAT each party shall communicate with the other and keep the other party advised of all information in relation to any medical care or treatment for either child which may occur while the child is living with or spending time with that party.
THAT a copy of these Orders may be forwarded to the two children’s school by the independent children’s lawyer.
THAT a copy of these orders be served on each of the adult siblings of the children, their respective spouses and the maternal grandparents of the children by ordinary prepaid post with a request that each such person shall provide a written acknowledgement of receipt of the orders. Such acknowledgement of receipt to annexed to an affidavit of such service, which I direct the independent children’s lawyer to file.
THAT the parties use a communications book to pass information relevant to the children’s welfare to each other and ensure that the book is exchanged with the children at contact changeovers.
THAT pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
THAT this matter be removed from the list of cases requiring determination.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
REASONS FOR JUDGMENT
INTRODUCTION
This is an application where the father commenced proceedings against his wife (“the mother”) seeking parenting orders in relation to three of the parties children namely L aged 16, J aged 13 in January 2007 and C aged 8 in December 2006 (collectively called “the children”).
The father sought orders that the children live with him. He sought orders that there be equal shared parental responsibility and that the children spend time with and communicate with the mother as agreed between the parties or as otherwise ordered by the Court.
The father also sought orders that both parties be restrained from denigrating each other and his or her religious beliefs or causing other people to denigrate the other party or other party’s religious beliefs.
The mother sought orders that the father’s application be dismissed, that she have sole parental responsibility for the children and that there be no orders requiring the children spend time or communicate with the father.

BACKGROUND

This is a matter where the mother and father were both members of the Exclusive Brethren faith (“Exclusive Brethren”) and of the Exclusive Brethren Community in Tasmania. The father is no longer a member of that faith, nor that community, having ceased to be a member from early 2003.
The father is aged 49 years and lives in P in Tasmania. His evidence is that in early 2006 he entered into a de facto relationship with Ms M, with whom he now lives and with whom he is planning to marry.
The mother is aged 48 years and resides in N in Tasmania. She is a business proprietor and is the primary carer for the children.
The mother and father married in May 1977 and separated in February 2003.
There are eight children of the marriage of the parties, including five adult children. The children are:-
(a)    W aged 28;
(b)    M aged 27;
(c)    G aged 22;
(d)    T aged 21;
(e)    ME who turned 18 in October 2006;
(f)    L, who turns 16 in December 2006;
(g)    J, who turns 13 in January 2007 and
(h)    C, who turns 8 in December 2006.
At the commencement of the trial, the father indicated he was no longer pursuing orders with regard to ME as she would attain the age of 18 during the course of the hearing.
At that time, the father also elected not to proceed with his application that the mother be dealt with for contravention of interim orders. He continued to rely on the alleged facts upon which that application was based to be part of the factual platform relied upon by him in the parenting proceedings
Counsel for the mother sought permission of the Court for the child, ME (at that time aged 17 and a few days short of her 18^th birthday) to be present in court from time to time during the hearing. That application was supported by counsel for the father and the Independent Children’s Lawyer. It was clear that ME would attain the age of 18 during the course of the hearing and from that time she would be entitled, as of right, to be present in Court. As it was her wish to be present, and that wish was supported by the parties and the Independent Children’s Lawyer, permission was granted. Through the Independent Children’s Lawyer, ME was offered counselling, through the Court’s counselling service, which offer was declined by her. An Order was made allowing ME to be present in Court during the proceedings on and from the first day of the hearing.
The father spent time with the three children subject of the proceedings in the year following separation, but he has seen L once since 2004 and not at all in 2005 and 2006, save the two occasions in October 2006, which are dealt with in these reasons. C and J have also spent time with the father but this time has diminished, particularly over the last twelve months as set out in the father’s contravention applications.
The parties resolved property issues by consent orders made in December 2003. The father commenced proceedings for contact orders in this Court in December 2004. An application for orders for interim contact came before a Federal Magistrate and consent arrangements were made for the father to spend one hour per month with J and C.
In March 2005, requests by the father to spend further time with J and C were generally rejected by the mother. On 10 June 2006, there was a “once off” increase of contact from one to two hours.
On 15 March 2005, an Independent Children’s Lawyer was appointed and a Family Report was ordered in August 2005. That report was released in November 2005.
An addendum Family Report was released on 16 March 2006.
The trial commenced in Hobart on 3 October 2006 and continued until 12 October 2006. At that time much of the evidence was completed with the exception of the evidence of Mr C, the children’s maternal grandfather. He was ill and was unable to give evidence at that time. The trial was adjourned part heart to Launceston on 9 November 2006. Interim orders were made to enable the three children to spend time with the father over that period of time and leave was given to all parties to file evidence in respect of any circumstances surrounding those occasions.
Mr C gave evidence on 9 November 2006 and further evidence was provided in respect of the time the children spent with the father over October 2006.
An application in a case made by the father came before the Court on Thursday 14 December 2006 seeking leave to re-open his case and rely upon further evidence, which came into being between 9 November 2006 and the date of that application. The mother and the independent Children’s Lawyer opposed that application[1]. That application was dismissed and short reasons were provided. These reasons are incorporated into those short reasons.
[1] The Independent Children’s Lawyer initially supported the application but when the time delay arising from the granting of leave was made clear his submission changed.
The father’s submitted that the issues for the Court to determine in these proceedings are as follows:
(i)The children’s wishes and the weight to be attached to them including questions as to whether those wishes were voluntary, the motive behind those and whether they are soundly based;
(ii) How the Exclusive Brethren impact on the welfare of the children;
(iii)The question of the mother’s capacity to promote a relationship between the children and the father;
(iv)The issue as to the father’s capacity to deal with the problems arising if there is a change of the place where the children live;
(v)The issue as to the long term psychological issues of the children being denied a relationship with the father;
(vi)A determination as to how far the Court should uphold the principles of the Family Law Act1975(Cth) (‘the Act’) in the face of opposition from the mother, her family and members of the Exclusive Brethren as a consequence of dogmatic religious belief.
(vii)Whether the Exclusive Brethren is a culture within the meaning set out in s60B and within the meaning under s60CC(3) of the Act.
RELEVANT LEGAL PRINCIPLES PURSUANT TO THE FAMILY LAW ACT.
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of significant amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.
The objects of those provisions of the Act relating to children is to ensure that the best interests of the children are met by[2];
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
[2] s 60B(1) Family Law Act 1975 (Cth).
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[3]:
[3] s 60B(2) Family Law Act 1975 (Cth).
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for such child[4]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[5] for the child. The section provides as follows:
Section 60DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
[4] s 61C Family Law Act 1975 (Cth).
[5] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
There is some debate within the legal profession as to whether the presumption ‘automatically’ applies once an order is made. A reading of the amendments in context with s 61C of the Act suggests that the presumption provision of that section, viz 61C, applies until a contrary order is made by a court or agreed in writing between the parties.
A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[6], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.
[6] s 65DAA(1) Family Law Act 1975 (Cth).
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly

Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable. Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[7]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
[7] Both “abuse” and “family violence” are defined in s 4 Family Law Act 1975 (Cth).
If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[8], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[9]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.
[8] s 61DA(3) Family Law Act 1975 (Cth).
[9] s 61DA(4) Family Law Act 1975 (Cth).
A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[10]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act, as and from 1 July 2006, provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
[10] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
The amendments go on to provide in s 60CB:
How the court determines what is in the best interests of a child is set out under s 60CC.
Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
The primary considerations are contained in s 60CC(2) as follows;
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B (1)(a) and (b).
The additional considerations are set out in s 60CC(3) as follows;
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child[11]:
[11] This sub-section must be read in terms of s 60CC(6), which provides:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In having regard to ss 60CC(3)(c) and (i), s 60CC(4) applies in that it provides;
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Generally the section further provides that;
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
How does a court deal with this new “two tier list of factors” set out under s 60CC in determining the best interest of a child?
Professor Richard Chisholm, formerly a Judge of the Family Court of Australia, has recently written on this area of law and observes that
[t]he big question for us, is how this will affect decision making …[12]
[12]Richard Chisholm, a paper entitled ‘The Family Law Amendment, Shared Parenting Responsibility (Act) 2006: An Overview’ (2006).
Professor Chisholm goes on to suggest that;
The significance of the characterisation of some considerations as “primary” may be summarised as follows. Those matters should be considered first among relevant considerations, and should be treated as being of particular importance in assessing what orders are likely to promote the best interests of the child.
As indicated above, the primary considerations should not be regarded as necessarily outweighing or “trumping” other considerations, nor is it appropriate to attempt a mathematical or quantitative approach. The primary considerations, especially paragraph (a), cannot in fact be determined without reference to the additional considerations. A holistic approach is not only desirable, but logically necessary.
If all this is correct, the legislation will have been followed, in spirit and in the letter, if the court treats the primary considerations in subsection (2) as the first matters to be considered, and as matters of particular importance, as it engages in the task of determining, on the basis of the evidence and the provisions of Part VII, what orders are most likely to serve the best interests of the children who are the subject of the proceedings[13].
[13] Ibid.
Professor Parkinson similarly suggests that the additional considerations serve to assist the court in reaching a determination consistent with the primary considerations:
In almost all cases, the additional considerations will amplify the primary ones at another level of detail. Put differently, it is through detailed examination of such additional considerations as may be relevant, that a judge may be assisted to determine the significance of the primary considerations, and what orders to make[14].
[14] Patrick Parkinson, ‘Decision-making About the Best Interests of the Child: The Impact of the Two Tiers’ (2006) 20 Australian Journal of Family Law 179, 183.
Dr Altobelli[15] has a different view to how the amendments will operate. He has described them as “the most significant reform to Australian Family Law in a decade”[16]. In his paper on the amendments[17], Dr Altobelli observes the following:
[15] Now Federal Magistrate Altobelli.
[16]Dr Tom Altobelli, ‘Some Practical Implications of the Family Law Amendment (Shared Parental Responsibility) Bill 2005’ 2..
[17] Ibid.
How will Part VII of the Act be interpreted after 1 July 2006?

The answer to this question determines whether the changes wrought by the amendments are substantive or superficial. From a purely legal perspective, the answer will depend on how certain key sections inter-relate to each other.
The key sections are:
·Section 60B – the objects and principles underlying Part VII
·Section 60CA – the re-expression of s65E: that a child’s best interests are paramount
·Section 60CC – how a child’s best interests are determined
·Section 61DA – presumption for equal shared parental responsibility
·Section 65DAA – equal, or substantial and significant time

The first thing to note is that the legislature has not purported to change the paramountcy principle i.e. that a child’s best interests are the paramount consideration in making a parenting order. Indeed, by bringing it forward from s65E to s60CA, immediately following the objects provisions, but otherwise at the commencement of Part VII, it has reasserted the paramountcy principle. However, what the legislature has done is to explain, in more detail, how a child’s best interests are to be determined. The embodiment of this is found in s60CC, a far more prescriptive version of its predecessor, s68F. However, ultimately, the Court’s expression of what is, on the facts of a particular case, the best interests of a child, is found in a parenting order under s64B. Because of s61DA, there will often be a presumption of equal shared parental responsibility in parenting orders that leads the Court to consider at least two statutory expressions of what the legislature considers to be in the best interests of children so far as the time they spend with their parents after separation. Those statutory expressions are found in s65DAA: equal time or substantial and significant time. It is a complex and convoluted pathway that starts off with a very broad direction and unfettered discretion (child’s best interests paramount) but which is gradually fettered and narrowed as the decision-making process moves from generalised concept to concrete order.
The challenge facing the Full Court as regards these amendments is similar to that confronted by the Full Court as B and B: Family Law Reform Act 1995 (1997) FLC 92-755. There the Court decided that s65E prevailed:

“The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court… starts from that essential premise and it remains the final determinant.” (para 9.51).

That proposition should not, it is submitted, change, save that s60CA replaces s65E.
The Full Court then considered which of ss60B or 68F(2) was the next most influential provision in the decision-making process. The Court found, in effect, that s68F(2) was the implementation of s65E, and that s60B was to be read subject to both ss65E and s68F(2). The objects provisions in s60B:

“provide guidance to the Court’s consideration of the matters in s68F(2) and to the overall requirement of s65E.” (para 9.54).

Of course, the versions of ss60B and s68F(2) in the current amendments are significantly different. The shared-parenting “message” in s60B was not matched in s68F(2). Indeed the dissonance between these two sections when it comes to shared parenting is readily apparent when they are read alongside the “new” s60B as compared to s60CC. The objects of the legislation are far more closely aligned to how they are manifested and are to be implemented under s60CC.
The Full Court’s admonition in B and B was that the wording of s68F(2) made it clear that the court “must consider” the various matters set out therein and that the

“weight which is attached to any one consideration will depend upon the circumstances of the individual case” (para 9.53).

The Full Court also noted that he list was not intended to be exhaustive and that:

“the inquiry is a positive one tailored to the best interests of the particular children and not children in general…” (para 9.53).

Of course the successor to s68F(2) does not so easily lend itself to such an interpretation about weighting. The legislature has spoken – there are primary considerations, and there are additional considerations. The former is a closed class, the latter is not, as s60CC(3)(m) confirms. This “closed class” of primary considerations is actually a closed but broad class. For example, the s60CC(2)(a) consideration about “benefit to the child of having a meaningful relationship” necessarily incorporates, it could be argued, a number of factors that the section treats as additional considerations in s60CC(3). Hence, on this argument, “benefit” cannot be ascertained except by reference to what are the child’s views [(3)(a)] relationships with parents [(3)(b)] capacity of parents etc. The difficulty with this interpretation is that it is reading down “primary consideration” – primary loses its distinctiveness and becomes meaningless.
The problem with using B and B as a point of reference in interpreting the new Act is that it emphasised the importance of the exercise of discretion in each case, in a context where the Act permitted discretion to prevail. Arguably, under the new Act, discretion is fettered or circumscribed. Whereas in B and B the Full Court could confidently say:

“…….the legislature and the courts…. have eschewed the application of fixed or general rules as the solution.” (para 9.57)

that is no longer the case under the new Act because discretion is exercised within more narrow confines. Moreover, whereas the Full Court could confidently assert that the:

“Act contemplates individual justice. Any question of presumption or onus has the potential to impair the enquiry as to what is in the best interests of the particular children” (para 9.59),

now it could be asserted that the Act rather precisely and prescriptively creates a far more structured enquiry about what is best for particular children. On this view, sections 60CC(2) and 65DAA are the statutory manifestations of a new structured enquiry.[18]
[18] Ibid 36 - 38.

It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
The approach to be adopted by a court is structured.
(a) The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
(b)The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.
(c)To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
(d)Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests
(e)In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[19] where her Honour said;
[19] C & G [2006] FamCA 994.

The primary considerations

The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

This is a case where both of the primary considerations are relevant.

(a) The benefit of a meaningful relationship – as a primary consideration.
The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[20].
The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
[20] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).

The arguments supporting the second possible interpretation include;
(a) Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b) The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c) The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e) The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to Billy into the future.

I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists”.[21] I would, however, add that such evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child
[21] Ibid paragraph 68.
Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the court make such a determination.

THE EVIDENCE
The father’s evidence.

The father relied upon his affidavits filed 29 March 2006 and 22 June 2006. He said he has not had meaningful time with the children since his final separation from the mother and the Brethren in early 2003.
The father filed and relied upon a further affidavit sworn and filed 7 November 2006, which dealt with the time the children spent with him on 14 and 28 October 2006. In that affidavit he said the 14 October occasion the children were quiet but settled and that L said she wanted to go home after one hour with her father. He said that towards the end of the visit the children were acting naturedly and were talking freely. He said the visit went much better than he had expected.
The father’s evidence was that the second occasion did not go well. L was crying uncontrollably and was “in a hysterical state”[22]. The father was not cross-examined on his evidence. On this evidence, I infer that the children were the subject of comment and influence by member/s of the Brethren and that whilst they were encouraged to comply with orders, they were also discouraged from enjoying or taking benefit from the visits, particularly the second visit. I am also able to infer that, when free from the sway or pressures of other members of the Brethren, the children are able to derive much benefit and enjoyment from spending time with their father.
[22] Affidavit of father sworn 7 November 2006 at paragraph 21.
In September 2006, the father attended at the home of the children’s maternal grandparents. The children came to the door and expressed a desire not to visit with the father. He had a discussion with them over about ten minutes and described J’s behaviour as uninformative and tense. He said C was hesitant. He said that there were no adults visible but heard noises suggesting adult activity in the background.
The father tendered in evidence a photograph of J and C, which was taken late in 2004.
The father gave evidence that he had arranged to see the children in September 2006 but arrived early. Whilst he was driving around the block waiting for the time to commence he met his son G and had a discussion with him. G said to the father that he was asked by the solicitor to file an affidavit to assist his mother and he had done so.
When the father arrived at the children’s maternal grandparents house at the designated time in September, he was met by Mr C (the children’s’ maternal grandfather), Mr S (M’s husband), his son, T, together with J and C. The children said to the father that “they are not coming today”. G arrived, bringing the group constitution to five adult males and the two children. The father said he asked Mr C to assist in persuading the children to come. Mr C declined that request for assistance.
The father then had a discussion with G. They were consequently joined by T. This conversation was terminated when Mr C required the father to leave his property. The father moved his car and had a discussion with G on the footpath and gave presents to G to give to the children.
The father said he is in a committed relationship with Ms M and he will seek to divorce the mother so that he can marry her. He is now a member of the U Community (which is an “Open Brethren” religion). Ms M was a member of that Christian community and the father says that her faith has been reactivated. The father agrees that the mother is a devout member of the Exclusive Brethren, and that she is a fourth generation member of that community.
The father’s evidence was that he became a member of the Exclusive Brethren when he was aged five when his mother joined that group. His mother left that community some time after he left the community in 2003. She is now a Baptist and is aged eighty three. The father said he did not know his father for a period of forty years. The father was distressed that he was not permitted a relationship with his father.
The father had doubts in the later years of his association with the Exclusive Brethren. He denied assertions that he had relationships with other women prior to his separation from the mother. He said he left the Exclusive Brethren because he was disenchanted with the leadership and philosophy of that Church.
The father said that the mother volunteered to leave the Exclusive Brethren to stay with him at the time of separation. He did not believe this was a real offer and agreed that he told the mother that she should remain in the Exclusive Brethren. He did not believe this was an offer to save the marriage but a device to keep him in. His evidence was he did not take this offer because he could see through it. The husband’s evidence was that the wife was a fourth generation member of the Exclusive Brethren and he believed she should stay within the faith.
From all of the evidence, I find that not only did the father wish to leave the Exclusive Brethren but at the same time wished to separate from the mother.
His further evidence was that his business was going well at the time of separation. In terms of financial support for the children, he said this was included in the property settlement made in December 2003 and he had only had one request from ME for money for an orthodontist. He did not provide the money for her when she made that request.
The father has, he believes, three grandchildren, two of whom he has met. The father said in his evidence in chief that Mr C had not encouraged the children to go on contact. He further said in response to an affidavit of M that he at no time made the threats to kill the mother as set out in her affidavit. He said he was devastated when reading the remark and would never have made such a comment.
Regarding an affidavit of Mr S (the father’s son in law) the father conceded that he had spent a night with a woman in a hotel when in Hobart but this was after the break-up of the marriage.
The father gave evidence that he had been interviewed by a television program but believed that his children would not see the program as they were not allowed to watch television as members of the Exclusive Brethren. He later agreed that he had also given an interview to a newspaper and had been involved in an interview on the radio station. He agreed that he had said that he would be giving a further interview once these proceedings had been determined.
In cross-examination, he said that he was aware that, in declining the mother’s offer to remain with him when he left the Exclusive Brethren, she would remain with the faith and that the children would do likewise. Prior to separation, he had participated in the process of “withdrawing from” other members of the Exclusive Brethren. He had detailed knowledge of the Exclusive Brethren faith and practice. He agreed that marriage separation was inconsistent with remaining a member of the Exclusive Brethren and that the ultimate result was withdrawal from the person instigating such separation. He was also aware that members do not socialise with people outside the Exclusive Brethren. Whilst he was a member of the Brethren, the father imbued all of his children with the practices of the community and played a significant role in developing, educating and raising the children in the beliefs and traditions of the religion. He said that prior to separation, his son, G, had tested the boundaries of their lifestyle, faith and practices and that he had urged G to remain within the faith. The father said that he had experienced happy times with the children within the Exclusive Brethren community.
As to education, the father said that the children either attended the local Primary School, O School (an Exclusive Brethren school) or had home education. The father was, prior to his withdrawal from the community, a trustee of the O School.
The father said that the decision to send the children to the O School was a joint decision between the parties and, up until separation, he was happy with the education the children had received.
The father has not approached the local high school or primary school about education for J, C or L and has made no serious enquiries about schooling for them if they were to live with him. He was provided with the reports from the local Primary School and O School.
J has had difficulties at school but, on the evidence, seems to be managing particularly well with the significant direct educational assistance provided by the teaching staff of the O School. There is no issue as to the adequacy of primary and secondary education received by J, C and L. The issue in this matter is the influence of the Exclusive Brethren community and teachers upon the children. In that respect the court is satisfied that the children are being provided with sound primary and secondary education by teachers who are not members of the Exclusive Brethren, but who are aware of the particular upbringing of the children. I find that the teachings and approach of the Brethren, which is accepted and adopted by the mother, is that their children do not attend university. As such, these children, if they remain members of the Brethren, will not achieve their full academic potential.
The father said that when the children went to State Schools they were normally brought home for lunch. This was to avoid the children socialising with other children during mealtimes, as prohibited by the beliefs of the religion.
Further, the children were generally discouraged from interacting with children outside the Exclusive Brethren community. This was a parenting decision and accorded with the practices of the faith.
The father was cross-examined in relation to his relationship with Ms M. He agreed that he sought and obtained a restraining order against Mr D, who was the partner of Ms M at that time. This was due to the father receiving a death threat from Mr D.
The father denied that he had a sexual and/or romantic relationship with Ms M prior to separation.
After separation, the father remained in L for a while, then moved to Hobart in February 2004. In September 2004 he moved to coastal Tasmania.
The father said that Ms M had not met J and C. She had no relationship with them and, whilst the children had seen photographs of his home, they had never visited his residence. He also agreed in evidence that it was the first time he had given the mother his address. He prevaricated in relation to whether he had previously provided the mother his address. I find that he was not forthcoming to her in this regard.
The father was cross-examined as to why he did not disclose his relationship with Ms M in his initial trial affidavit. The father conceded that he and Ms M were living together at the time the affidavit was sworn but that he was concerned that that disclosure would adversely impact on his relationship with his children. He agreed that he ought to have told Mr CH (the family reporter) about the relationship when he changed his application from the children spending time with him to an application that the children live with him.
The father was questioned about how L would cope with an order that she live with him, bearing in mind her strong views that she does not want to do so. The father said he does not know what he would do if L refused to spend time with him.
He had contact with L in 2003 but only saw her once in 2004, for the purpose of preparation of the Family Report. He has not seen her since, apart from the two occasions in October 2006 during the hearing of these proceedings. The father is particularly attached to L as she was hurt in a car accident when she was a little girl, the father being the driver of the car. He went to the hospital and spent time with her and his evidence, which I accept, is that he is particularly bonded with her. The father said he would never accept that any of his children, but in particular C, J or L, do not love him. There is no doubt that the children deeply cared for their father and that his separation from the Exclusive Brethren has been deeply traumatic to them all.
The father agreed that L’s friends were members of the Exclusive Brethren and that she also has friends outside the community. If she lived with him she would be unable to continue in her faith, which, on the evidence, is contrary to her strong view that she remain a member of that community. He conceded that she would be likely to struggle with aspects of life which are in conflict with her religious beliefs, such as eating with non-members of the Exclusive Brethren community and exposure to television, computer and mobile phones.
Similarly, J and C’s friendships within the Exclusive Brethren would come to an end if they were to live with the father.
The father recalled that between the years 2000 and 2003, one of his children, he could not recall which one, asked about a non-Brethren friend and the father and mother at that time opposed that friendship.
The father gave evidence that he did not believe that J and C’s reluctance to see him was their own view but, instead, the view of the community. With regard to J, he described him as a quiet, frightened boy.
One of the concerns the Court has is the change of the father’s approach to his children since the first report by Mr CH. The father said that he informed Mr CH that he would be seeking residence, although that is inconsistent with the father’s comments recorded by the reporter in his first report where he says:
[The father’s] proposal for the children is consistent with his application namely:-
1.Alternate weekend for all four dependent children;
2.Half of all school holidays;
3.Special days such as birthdays, Easter and Christmas[23]
[23] Family Report, paragraph 31.
The father’s application has since been amended to seek orders that the three children live with him.
When he first met with Mr CH he appeared to:
Acknowledge that the transition process from what currently exists to his preferred alternative may require some graduated steps involving an increase in daily contact.[24]
[24] Family Report, paragraph 32.
The father's application is now for an immediate changeover in the children’s living arrangements. In terms of how the children would cope with his relationship with Ms M the family reporter observed that,
[The father] has indicated that his accommodation would involve only himself and the children and that initially he would not knowingly do anything with them that might compromise the teaching of the Brethren.[25]
[25] Family Report, paragraph 33.
The father's approach has since changed and one of the motivations for residence is now
a “desire to show them another side of life,” and to “release them from the clutches and powers of the Brethren.[26]
[26] Addendum Report, paragraph 6.
His initial concern for the impact of the change on the children seems to have been overtaken by his personal enmity towards the Brethren.
I find that the evidence given by the father is reliable, with the exceptions of the matters that I have already referred to above. As a court would expect, his evidence is coloured by his own perception but in making that observation, I generally accept his evidence.
The evidence of Mr T
Mr T gave evidence in accordance with his affidavit filed 29 June 2006. Mr T is currently aged 29 and had been a member of the Exclusive Brethren until he was about 19.
He left the Exclusive Brethren and has now been “withdrawn from”. He has now married and has three children of his own. His evidence was that his parents have had little contact with his children. He gave evidence of the nature of being “withdrawn from” and the practice of the Church that when a child reaches sixteen, the child should have no contact whatsoever with the “withdrawn from” parent. He was not challenged on that point.

He said that within the Exclusive Brethren there are strict rules that members were not to associate with persons outside the Exclusive Brethren, who are known as “outsiders” or “worldly” people.
This evidence was not seriously challenged and I accept the accuracy of it.
He said that, despite being withdrawn from, he has had some contact with the father’s son G and, to a limited degree, with the father’s son T.
On the evidence, it appears the ties of Mr T’s family have not been severed completely and Mr T is now aware that his children have had some contact with his parents, although he was not aware as to whether his parents attended at the hospital when his children were born. Mr T’s evidence was that his parents provided assistance for him, in the form of some money and employment by a company operated by his parents and his brothers for ten months last year.
There was some irony in that the father, when he was a member of the Exclusive Brethren, was one of the people who visited Mr T to attempt to persuade him to return to the Exclusive Brethren.

The evidence of Mr H

Mr H gave evidence in accordance with his affidavit sworn 29 June 2006. Mr H left the Exclusive Brethren in the year 2000. He has now completed a teaching degree and is in the process of qualifying as a teacher.
Mr H has six children and, as a result of leaving the Exclusive Brethren, he now only sees two of those children. The impact of his affidavit being filed in these proceedings has been quite profound. His son TH, aged thirteen, wrote to him on 18 September 2006 [27] saying:-
[27] Exhibit ‘F4’.
“To my father,
I am not coming with you on access anymore.
No one can make me come with you because it is my decision.
You put an attack against us in the newspaper.
You are going to be a witness for DT [the father]
You said in the paper that the trombone is your life, what about the bred?
You have taken us to football and you know that mum doesn’t allow that.
You try to talk us into going to the movies.
You left mum because you are against the Brethren.
You only give mum five dollars a week”
He also received a letter from his son WH, aged fourteen. That letter said:
To my father,
Following Saturday night phone-call [T][H] and I decided we would send you a letter each to tell you more.
The reasons for our decisions are:-
You asked us if we wanted to go to the movies and you would have known well enough that mum wouldn’t like us to go there.
You are a witness for DT [the father] in an attack against a mum and her kids.
You went to the media and caused trouble.
You have had two wives and a girlfriend since you left mum.
You are paying mum only $5.00 a week which is only enough to buy one lunch for one kid in a week. For nearly six years you have been paying this and that is what I call pathetic.
Do you love your trombone more than God or did you make a mistake in your statements to the newspaper?
You are opposing the truth.
You used to hit the older kids with sticks and belts.
Just BEWARE no one can make us come with you”
What is clear from those letters, which were not challenged, is that the community became involved in these disputes and the children were not shielded from the disputes.
Mr H was asked to comment in a newspaper article in August 2006 [28]. It is clear from the letters received from T and W that this article has been discussed with them, as has the question of child support paid or payable by Mr H to his children. Further, it appears that these proceedings and the witnesses involved in these proceedings have also been discussed with the children of the father and of Mr H.
[28] Exhibit ‘F2’.
I am able to infer that the children of both families have been significantly involved in these proceedings. Mr H and the father see each other socially on a regular basis as they have a common history with respect to the Exclusive Brethren. They have both given evidence that they are committed Christians.
Mr H has had no contact with his elder four children since separation. He endeavoured to see his son shortly before his 16^th birthday in order to give him a present. On Mr H’s evidence, he went, knowing that it was unlikely that he would see his son or have a relationship with him. That visit was cancelled. He has not had face to face contact with his younger children since the beginning of August 2006.
Mr H accepted an arrangement to see his children initially once a month and then once every two months, sometimes three months when times were not mutually agreeable. His evidence is that he did not have the strength to become involved in family law proceedings. As a consequence, his relationship with his children has diminished over the last six years to a situation where he, apparently, does not see his children at all.
When he was with the Exclusive Brethren, he was one of the “unofficial” leaders. He preached regularly and some of his writings have been published within the Exclusive Brethren.
He gave evidence of his knowledge of a “fighting fund” operated by the Exclusive Brethren to fight proceedings under the Act. This is set out in his affidavit and oral evidence given before me. I am able to find that a fund was created by the Exclusive Brethren to fight parenting disputes in courts exercising jurisdiction under the Act.
Mr H confirmed that members of the Exclusive Brethren believed all those who left the faith were “wicked” or “worldly” and ought to be regarded with contempt. He said that the Exclusive Brethren used fear, family and financial circumstances to manage their members.
In relation to the process of being “shut up” he said:
“20.The “fear” relates to doing something against the principles or rules. If a person contravenes a rule or Church principle then there is a process of being “shut-up”. This is essentially a situation of confinement. There is no social contact. The person cannot attend Church. I have seen such a process of “shutting-up” continue for up to two years. I saw this with a man whom I know who lives in [D]t. This man’s sin was to be caught watching cricket on television in a business office”.
21. When a person is “shut-up” he is unable to associate or even eat with members of his own family. He is visited by “priests”. He is interrogated. He is encouraged to confess his wrong doings. He is ostracised from family and associates until he does so.” [29]
[29] Affidavit of [Mr H], paragraph 20.
Mr H described the process of being “withdrawn” from. He says at paragraph 22:
“22.The next stage if a person does not repent is to be “withdrawn from”. This is a form of public ex-communication. The effective result of this is that members of the Church, including one’s own family, completely disassociate themselves from that person. There can be no business association. There can be no social associations.”
Mr H said that, where available, children attend Church high schools and it is forbidden for children to obtain tertiary qualifications. The Exclusive Brethren actively discourage the relationship between children and any former member and remaining members’ spouses are encouraged not to maintain relationships between the children and the “withdrawn from” spouse.
I accept Mr H to be a truthful witness.

The evidence of Ms M

Ms M gave evidence in accordance with her affidavit filed 29 June 2006. She is the father’s partner and they propose to marry in September 2007 but can bring that wedding date forward in the interest of the children if need be. Ms M divorced her previous husband in February 2006. Her evidence was that she and the father had discussions about marriage a few months before Christmas 2005 and she has been living with him in his house since January 2006. Her daughter, R, is now living with Ms M and the father whilst undertaking a child care course.
Ms M has met C and J on two occasions. These were quite short interactions, the first being when C and J were at a pharmacy, in which she was working, with their grandmother. The second occasion was when she met them at K-mart when they were spending time with the father around Christmas 2005. She has not played any role in the day to day care of the children. She does not know how the children would react to her if living with her.
She attends the O Church and is aware that the children, as members of the Exclusive Brethren, are not able to socialise or eat meals with outsiders. She accepts there would be difficulties but believes the children are young and are adaptable. She is prepared to move out of the father’s home into her mother’s home until they are married but intends to continue her relationship with the father. She said that she would not sleep at the father’s home at night but would be there during the day and that she would reduce her full time work to part time work to accommodate these arrangements. I find that she is dedicated to her relationship with the father.
Ms M was asked questions about whether she would allow the children to attend Exclusive Brethren meetings. She prevaricated in relation to that question and I infer that she would not encourage their relationship with the Exclusive Brethren. I believe she would support the father’s desire to remove the children from the influence of the Exclusive Brethren. If the children wish to remain part of the Exclusive Brethren I am able to infer that she would not accept their views in that regard.

The evidence of the mother

The mother gave evidence in accordance with her affidavits filed 20 March 2006 and 21 July 2006. She also relied upon her further affidavit filed and sworn 2 November 2006. In that affidavit the unchallenged evidence was that all three children were upset when told they had been ordered to spend time with their father in October 2006. In particular, L was observed to be particularly upset and resistant to seeing her father.
She was asked about the evidence in chief provided by Mr H. She has no recollection of children as young as six preaching (which was the evidence of Mr H in relation to himself) and was not aware of a fighting fund set up by the Brethren for family law proceedings, as alleged by Mr H. Whilst I accept the evidence of Mr H I do not regard the mother as being untruthful in this regard and I infer that she is simply not informed in regard to the “fighting fund”.
She denied that her son G left the Exclusive Brethren. She said that he had a brief respite of one day, but he did not leave the faith or community. He was not “shut-up”.
In response to the husband’s allegation that she attempted suicide, the mother denied ever doing so. She said that about five days before separation, she stated that she would jump from a balcony in order to elicit a response indicating care and affection from the husband. She said this was not a serious threat and I accept and prefer her evidence in that regard.
She was cross-examined as to the nature of the evidence she was giving the Court. She understood that she must tell the truth. She declined to take an oath on the Exclusive Brethren Bible but made it clear that she understood her obligation to the Court. She accepted that her obligation to God was more important than a social obligation but at the same time I am satisfied that she was a witness of truth and endeavoured, in each question, to answer it as truthfully as she possibly could. I find she is a deeply religious person, who is genuinely committed to her beliefs and those espoused by the exclusive Brethren. She believes that the children should not have a relationship with their father as their obligations to God are greater than their obligations to family. With the father having been “withdrawn from” she believes that there cannot be a meaningful relationship between him and the children and it is unrealistic for the children to have a relationship with him.
Asked if the father could have a relationship with the children if he returned home, the mother said he would have to be repentant because he had separated from her and she would need to be sure that she could trust him.
Asked if an order of the Court was made whether she would comply with the orders she replied she would. If the Court made an order for her to encourage the children to have a relationship with their father she said she would not be able to do that, bearing in mind the tenets of the Exclusive Brethren. Asked if she would comply with an order not to demean or belittle the father, she said she would comply with that order.
The mother did not regard “withdrawing from” as a punishment.
The mother had significant health problems from 1999 onwards including major surgery and the need for chemotherapy. She said that the husband was supportive of her during this time up to about a period of eight months and twelve months before separation. He was supportive and was a good husband until that time. However, she said she was the primary care giver for the children. She acknowledged the husband was a loving and caring father, shared close bonds with the children and was respected and loved by them, at least up until separation. She believed that the arrangements recommended by Mr CH that the children spend time with the father would be almost impossible to effect. She gave evidence, which I accept, that the children love their mother and are loyal to her and mostly obey her. They respect her as a mother.
The mother confirmed her belief that the children cannot mix with
non-members of the Exclusive Brethren, as they may be exposed to “worldly” influences. They can only eat with those, with whom they have community. She worried about the influence of others.
She was asked how she explained to the children the absence of the father and his departure from the household and community. Her response said she could not explain it to them as she did not understand why herself. When pressed in relation to this, she said she did not believe the father had difficulties with his faith but rather, that he had difficulties with some members of the Brethren community.
She agreed that when the father left she had a very difficult time. She was assisted by her family and members of the Exclusive Brethren community and sought assistance from Mr HA. Mr HA is a leader with the Exclusive Brethren and was approached by the wife because she felt her husband had respect for him and that he may be able to assist in convincing the father to return to her and to the faith. Her principal support over that time was through the local church community and her family.
She was asked what she would do if all, or some, of the children were ordered to live with the father. She said she would accept that and that she would continue to love them. She said that she would endeavour to see them but that this would be difficult if they were not in fellowship with the Exclusive Brethren. She said:
If they left, as a mother I would want to have a relationship with them. If they did not remain within the tenets of the Church I would accept that and would let them go
I take it that she would maintain contact with the children but that if they ceased in the beliefs of the Exclusive Brethren, they would eventually be alienated from her. I find that they would also be alienated from their siblings and family members who remain within the Exclusive Brethren.
This must be seen in the context of the father’s approach to the children if they were to live with him, as set out in the Addendum Family Report at paragraph 6 where Mr CH noted the following:
He [the father] was motivated to pursue a residence application out of a desire to show them the “other side of life” and to “release them from the clutches and powers of the Brethren.
In terms of the time spent between the children and the father, the mother said that if specific orders were made to ensure that they did not break the tenets of the Exclusive Brethren then this would give her some confidence. I accept what she says in this respect.
She was asked as to her views of the comment made by her father, Mr C, in his affidavit filed 20 March 2006 when he said:
However, I emphasis that any contact by the children with their father is seen to only have one possible benefit, namely, if the said children are successful in encouraging their father to repent.
The mother had great difficulty responding to this question. Her first response was that she was “not sure”. When she was informed that it was her father’s affidavit she replied initially “yes, I think so”, then later, “I can’t understand it”.
This must be seen in the context that the mother believes that her father is an important person in her life, she respects him and she would obey him. She agrees that the precepts of her religion require her to be in subjection to a man but noted that if she had a conviction against what he said she would not obey him. I infer that her father has a significant influence upon her.
If the children were living with the father it is unlikely that they would be “withdrawn from” whilst they were children but they would not be permitted to partake in fellowship. The Family Report attributed the following comments to the mother:
[The mother] indicated that should any of her children voluntarily chose to associate with their father her obligation would be to ask them to leave home and “withdraw” from them. She said that age would be a factor in relation to spending time with the children.[30]
She accepted that she might have said similar words to that effect.
[30] Single Expert Report, paragraph 39.
The mother said that the children had been reluctant to visit the father from the time of separation but that this reluctance had increased over recent times. She said J was a boy of few words. She did not accept that he was afraid to tell her that he wanted to see her father but conceded that one of the factors in the children not seeing the father was because of their love for her.
In relation to C’s use of the word “wicked”, she said that it was not a term she used in relation to the father and when she heard her use it in that respect, asked her not to do so. I accept her evidence in that regard.
The mother does not believe the children enjoy the time they spend with their father.
The mother agreed in cross-examination that there were a number of members of her church who were visiting Hobart to support her in the trial. Members of the Exclusive Brethren had booked the boardroom at a nearby hotel. She was not aware of the precise number of Exclusive Brethren supporting her. She said no one had communicated with her about her evidence between 5 and 6 October 2006.
Included in those people assisting her were Mr W and her father.
The mother was cross-examined in relation to her finances. She had an income from the business of approximately $24,000.00 per year and a family tax benefit of approximately $133.00 per week. With bank loans and loans from members of the Exclusive Brethren she owed about $500,000.00 in relation to her business. Of that sum, approximately $234,000.00 was owed to members of the Exclusive Brethren. It was put to her that she was induced to give evidence by virtue of her liabilities to other members of the Exclusive Brethren. She denied this assertion and I accept her evidence in that regard.
The mother said that the family played a pivotal role in her faith. The parent/child relationship was important and she conceded that the elder four children had rejected the father since separation. Her view was that the only thing stopping them seeing their father was his departure from the marriage and the church. She said she wished to remain a member of the church.
At the time of separation, she offered to leave her faith and be with the father as she thought the family was more important. The father rejected that offer. That evidence is consistent with that of the father.
What is in issue is whether the mother made the offer in an effort to induce the father back into the Exclusive Brethren or whether it was a genuine endeavour by the mother to keep the family unit together. In that respect, on balance, I prefer the evidence of the mother.

The religious practices of the Exclusive Brethren are asserted by the father to be contrary to the best interests of the children.
As I have indicated earlier in these reasons, this is not a trial of the Exclusive Brethren, however, what I have done in the analysis of the facts is to take into account and consider the effect of the religious beliefs that the mother and the extended family have on the welfare of the children. I must also take into account those religious beliefs, particularly in terms of L and somewhat less in terms of J.
The beliefs do impact on the children in terms of the ex-communication and the withdrawal of the father by the mother, her family and the community. I accept the submissions of the Independent Children’s Lawyer that I ought to take the religious practices of the mother, her siblings and other Brethren supporters together with other relevant factors about the religion into account when dealing with the welfare of these three children.

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant consideration in this matter.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

It is clear on the evidence that both parents demonstrate a deep interest in the welfare of all three children and toward their responsibilities as parents. During the marriage, both parents were actively involved in the children’s lives, for example, in the attendance at Brethren meetings as a family, participating in shared interests around the house and assisting the children with their homework. The father also assisted in the development of appropriate academic curriculum for the children’s school.
The opportunity for the father to continue this involvement has since diminished since separation, but he still remains interested in the children’s education and welfare. He has endeavoured to be kept informed of the children’s academic progress and regularly attended at the school to meet with the children’s teachers during 2004 and 2005.
There was some question raised by counsel for the father about the mother's failure to respond to J’s poor test performance. On the facts, I am satisfied that the mother has taken steps to manage J’s academic performance.
Since at least 2003 the mother has not endeavoured to maintain the relationship between the children and the father. I infer that she discourages that relationship but I find that she will not continue to do so if an order is made in that regard.

(j) any family violence involving the child or a member of the child’s family;

This is not a relevant consideration in this matter.

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

This is not a relevant consideration in this matter.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

In these reasons there is discussion in relation to a proposal, at one stage, for interim orders. For those reasons I determine that final orders are least likely to lead to further proceedings in relation to the children. The father submitted that a change of the place where the children live would avoid further proceedings as orders in that form are more likely to be obeyed. Given the facts in these proceedings, I am satisfied that if an order was made moving the place where the children live to the home of the father, further proceedings would be almost inevitable. The orders that the court proposes to make may not avoid further proceedings as they may lead to contravention proceedings. I have had regard to that consideration.

(m) any other fact or circumstance that the court thinks is relevant.

In coming to the conclusions in this matter I take into account all the facts, circumstances and inferences outlined or referred to in these reasons and the evidence before me during the hearing.
In assessing the additional considerations set out in s60(3)(c) and (i) I am obliged to consider the extent to which each of the children’s’ parents have fulfilled, or failed to fulfil, his or her responsibilities as a parent as set out in s 60CC(4). In coming to the conclusions set out in these reasons I have considered the extent to which each of the children’s parents have taken or failed to take the opportunity to;
o   to participate in making decisions about major long‑term issues in relation to the child; and
o   to spend time with the child; and
o   to communicate with the child; and
o   has facilitated, or failed to facilitate, the other parent:
o   participating in making decisions about major long‑term issues in relation to the child; and
o   spending time with the child; and
o   communicating with the child; and
o   has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The Court must also have regard to events that have happened, and circumstances that have existed, since the separation occurred[48].
[48] s 60CC(4A) Family Law Act 1975 (Cth)
The Act defines ‘major long-term issues’ regarding the child as including, but not limited to, decisions regarding the child’s education, religious and cultural upbringing, health, name and changes to the child’s living arrangements.[49] The provision further notes that a decision by a parent to form a relationship with a new partner is not, of itself, a major long-term issue, insofar as it does not impact upon the ability of the child to spend time with the other parent[50].
[49] s 4 Family Law Act 1975 (Cth).
[50] s 4 Family Law Act 1975 (Cth).
It is apparent from the evidence outlined above that the father has fulfilled his responsibilities as a parent, to the extent that he was able to, except for the period he lived in Hobart after separation and during the time he was emotionally struggling with the changes arising from his departure from the Exclusive Brethren in early 2003. He has taken almost every opportunity to spend time with and communicate with the children where possible. The parties were originally in agreement as to the religious upbringing of the children during the marriage. The father has since changed his view on the matter, wishing for the children to leave the Exclusive Brethren faith and join him in the Open Brethren. Insofar as these proceedings constitute ‘participation in the making of decisions’ regarding major long-term issues for the children, the father has addressed this concern and that of the children’s living arrangements in his amended application.
The mother has endeavoured to fulfil her responsibility in participating in the lives of the children, with the significant exception of encouraging the relationship between the father and the children. I am concerned, however, that the mother has, together with other family members, failed to enable the children to feel able to freely go with their father and to be emotionally available to him throughout the visit.
I do not consider the mother’s forwarding of the children’s letters to the father through his solicitors to constitute facilitation of communication between the father and the children. The contents of the letters served to sever the relationship, rather than to facilitate its continuation.
I take the precepts of the Exclusive Brethren faith regarding social interaction with non-members into account pursuant to s 60CC(4A) of the Act, as this has been a relevant circumstance as to why the father has been unable to fulfil his parental responsibilities since separation. I find, however, that he has taken every opportunity to do so, given the limitations imposed upon the children by their religion.

CONCLUSIONS

In terms of determining whether the presumption for equal shared parental responsibility created by s 61DA of the Act ought to apply, the Court needs to consider whether there are “reasonable grounds to believe” that a parent or person who lives with a parent and has engaged in abuse or family violence. In this case no such submission were made. Accordingly, the presumption should apply, subject to the submission by the mother that it is rebutted.
To consider whether the presumption is rebutted, the onus is on the mother to show on balance that its application would not be in the best interests of the children. Taking into account all of the findings and considerations contained in these reasons, on balance, I am not satisfied that it would be in the best interests of the children for the parents not to have equal shared parental responsibility. Therefore I will make orders for equal shared parental responsibility.
In terms of L, she is aged sixteen and has expressed strong views against spending time or living with the father. On the evidence before me she accepts the direction of her mother and accepts the direction of the Court. She accepted the direction of the Court on the basis that she needed to do that for her mother and on her mother’s persuasion and that of her brother G.
In respect of J and C, they are significantly younger. The orders I have made will provide that they spend time with their father and communicate with him. In their case I am not satisfied that there are appropriate circumstances whereby the presumption ought to be rebutted and accordingly, the orders I make are that there be equal shared parental responsibility with regard to these children subject to other parts of the orders with regard to religious instruction.
Having come to the conclusion that the orders ought to provide for equal shared parental responsibility, I have considered whether the children should spend equal time with each parent and whether that would be both practicable and in the best interests of the children individually and as a group. Having regard to all of the evidence I do not consider that the children should spend equal time with each parent.
Further, I have considered whether the children should spend substantial and significant time with each parent and whether that approach would be both practicable and in the best interests of the children both individually and as a group. Having regard to all of the evidence, I do not consider that the children should spend substantial and significant time with each parent.
I have determined that the children should continue to live with the mother and spend time and communicate with the father.
I conclude that it is in the best interests of these three children to spend time with the father on a regular basis, and that such time should be free of influence with regard to the underlying beliefs of the children or either of their parents. To that end, I will make orders preventing either party from discussing these proceedings with the children and to prevent the parties from denigrating the faith of the other party or allowing others to do so in their presence.
In making the orders, I am conscious of the reluctance of L to spend time with the father. As such, I have made those visits of short duration. Whilst the time provided is short I have found that L had a close relationship with the father up until 2003. I find that it is possible for her to have a meaningful relationship with the father over the next two years and that such relationship would be of benefit to her.
It is in the best interests of the children that the father is aware of what is happening in their lives at school and in respect of their health and I have made orders to facilitate the provision of that information.
Communication is a problem between the parties. Electronic communication is significantly constrained because of the religious practices of the children and the mother. Accordingly, I have made provision in the orders for a communication book to facilitate communication.
The mother gave evidence that she could not positively encourage the children to spend time with the father. I do not propose to make such an order. Instead, I will make an order that both parties be restrained from speaking negatively to the children about either parent.
I requested the subject children to be present when the orders are made and I propose to read to them a short explanation of my reasons, which are set out below, and are incorporated as part of my reasons. I determined to do this based upon the evidence of Mr CH.
Having regard to all of the evidence, all of the fact findings, the inferences and the considerations under s 60CC I determine that the children should live with the mother and spend time with the father in accordance with the proposed orders set out in these reasons. I have taken into account all of the submissions made by the parties and the Independent Children’s Lawyer.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Peter & Elspeth.

ANNEXURE TO REASONS

From the Bible of J N Darby, Gospel of Mark, Chapter 12, Verse 17.

“Pay what is Caesar’s to Caesar, and what is God’s to God.”

I am a Judge appointed by the Australian Government under Chapter III of the Constitution of Australia. I am sworn to implement the civil laws of Australia, which, amongst other things, relates to the interaction between parents and their children.
Those laws are set out in the Family Law Act and my duty is to make certain that the best interests of C, J and L are met by seeing that they have the benefit of the involvement of both their mother and father in their lives and that they are protected from harm.
Children have a right to spend time and communicate with both of their parents. That law was reiterated in the Australian Parliament as recently as May this year.
In many ways these proceedings reflect a conflict between the principles of Church and the laws of Government.
My initial comments are directed the father and Ms M.
I will be making orders that all three children spend time with you, Mr E. This is not an opportunity for you to “show these children the other side of life”. It is not an opportunity for you to “release them from the clutches and powers of the Brethren”.
You no doubt had an epiphany in your life in or about 2003. Up to that time, you insisted that all eight of your children accept and live by the tenets of the Exclusive Brethren. This Court will make orders enabling the children to continue to have the benefit of a meaningful relationship with you, but will not allow that time to be used to meet your broader emotional or political objectives.
The orders I will make are intended to restrain you from taking the children to your church and from exposing them to television, radio, computers and other things and events which are in breach of the very tenets that you imposed upon them up to 2003.
To you, Mrs T, to your children ME, M, W, T and G, to your sons-in-law, Mr A and Mr S, and to your parents, I say this – these reasons and these orders acknowledge, but do not endorse the tenets of your church, but in the interest of C, J and L, I apply the laws of the Commonwealth of Australia.
This was the most difficult of cases. You will recall that Mr CH described that each and every one of your responses in terms of the time the children spend with their father was “totally unacceptable” and “cruel, unacceptable and abusive to these children”. He described the emotional removal of these children from their father at the higher end of “psychological abuse of the children”.
I did not find that you did this with malice. I acknowledge that your actions have been in accordance with what you consider to be right. However, I am going to make orders which are in the best interests of these children, as determined under Commonwealth law. I am making orders that the children spend time with their father. I am also making orders that your abusive behaviour in terms of these children cease immediately.
These children are not a thing or a possession of the mother or the church. They are human beings, who are the responsibility of both parents, I say again, of both parents.
These orders are not an “invitation” or “a request”. They are orders of a Court exercising the laws of Australia. The orders are directed towards
the father and the mother and I expect them to be obeyed in substance and in spirit.
Those who are not parties to these proceedings are still, in my view, affected by the orders.
I have all of you here, Ms M, Mr and Mrs C, W, M, T, G, ME, Mr A and Mr S, to tell you that if you aid and abet the breach of these orders, you may be liable to suffer the same consequence as if the father or mother did it. If there is a breach of an order it can precipitate a change in the person with whom the children live. Courts exercising jurisdiction under the Family Law Act have the power to imprison people who contravene Court orders. If a person abuses a child, whether physically or psychologically, it seems to me that prison is a proper consideration particularly when it also involves contravention of a court order to prevent such misbehaviour. Similarly, the Court has power to impose hefty fines to create economic burdens on people who breach orders. The laws regarding contravention of orders are tough. I have attached a copy of these comments to the judgment in this case so that any judicial officer, if it is not me, will understand who is here and the warnings that I have given so there will be no ability for any of you to say, you did not know.
To the elders of the Exclusive Brethren, a review of the authorities shows that these difficulties have been going on for thirty years under the Family Law Act. It must surely not be beyond your intellect and wit to find a dimension in your beliefs so that they may reconcile with the law of this country and the need for children to know both of their parents.
Finally, C, J and L – I have taken the unusual step of having you here today. You are not in any way threatened by fine or prison. I am aware that you have expressed wishes not to see your father. I have heard evidence from your mother, your father, your sisters, your brothers, your grandfather and a court appointed expert. I have heard evidence from your teachers. One thing is abundantly clear, you all deeply love and care for your mother and for your father and that your reluctance to visit your father is out of natural concern for your mother and the faith in which you have been brought up. The last three years have been difficult for you as you struggle to understand the loss of your father from your home and community.
These proceeding are about you and the importance for each of you to know and be cared for by both of your parents. You may have received mixed messages from others close to you about whether it is okay to see your father and spend good times with him, let me make it clear – it is okay.
The law provides that you are entitled to know your father and spend time with him and he with you. I have determined that there is a benefit to each of you in having a meaningful relationship with him. I expect that the adults around you will obey these orders and that they will render to Caesar what is Caesar’s. You may have been told that these orders only apply until you are sixteen. That is not the case. You are subject to the supervision of the orders of this Court until you are eighteen.
I am going to ask Mr Waterhouse, your independent lawyer, to explain these orders and these reasons to you. If you have any questions of me, now is the time for you to ask.

(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii) to develop a positive appreciation of that culture.

Details

AGLC: Elspeth & Peter [2006] FamCA 1385
Case: [2006] FamCA 1385
Decision Date: 21 December 2006

CaseChat Overview and Summary

This case involved parenting orders sought by Elspeth ("the mother") and Peter ("the father") concerning their three children, L, J, and C. The father sought orders for the children to live with him and for equal shared parental responsibility, along with orders restraining both parties from denigrating each other or their religious beliefs. The mother sought dismissal of the father's application, sole parental responsibility, and no orders for the children to spend time or communicate with the father. The proceedings were heard in the Family Court of Australia.

The central legal issues before the Court were: the presumption of equal shared parental responsibility under the *Family Law Act 1975* (Cth) and whether it should apply or be rebutted; the paramount consideration of the children's best interests, assessed through the primary and additional considerations outlined in section 60CC of the Act; the impact of the Exclusive Brethren faith on the children's welfare and their relationships with their parents; the capacity of each parent to promote a relationship between the children and the other parent; and the children's expressed wishes and the weight to be given to them. The Court also considered the practicalities of implementing any orders, including the distance between the parents' residences and the potential for conflict arising from the parents' differing religious beliefs and lifestyles.

The Court's reasoning focused on applying the principles of the *Family Law Act 1975*, particularly the presumption of equal shared parental responsibility and the paramountcy of the children's best interests. The Court found that the presumption of equal shared parental responsibility should apply, as there were no reasonable grounds to believe abuse or family violence had occurred. While acknowledging the mother's strong religious convictions and the children's deep connection to the Exclusive Brethren faith, the Court determined that the children's best interests required them to maintain a meaningful relationship with their father. The Court found that the children's expressed wishes against contact were significantly influenced by their family and community, and that continuing contact, free from undue influence, would ultimately benefit them. The Court also considered the need to protect the children from psychological harm, noting that the emotional removal from the father was considered a form of psychological abuse by an expert witness. The Court ultimately concluded that while the children should continue to live with the mother, they should spend time with the father, with specific orders designed to facilitate this contact and prevent denigration of either parent or their beliefs.

The Court made orders for equal shared parental responsibility for the children L, J, and C. The children were ordered to live with the mother. Specific arrangements were made for L to spend time with the father on alternate Saturdays during school terms, for the first two days of each Tasmanian school holiday period, on Father's Day, and any further agreed time. J and C were ordered to spend time with the father on alternate weekends during school terms, for the first week of mid-term school holidays, from 14 January each year, and on Father's Day if not otherwise scheduled. The orders also included provisions restraining both parents from discussing or denigrating the other's faith or lifestyle in the presence of the children, and requiring both parents to encourage positive communication between the children and the other parent. Further orders facilitated the father's access to school information and mandated the use of a communication book.

Orders

Orders of the court

THAT P (“the father”) and E (“the mother”) have equal shared parental responsibility for the children L born in December 1990, J born in January 1994 and C born in December 1998.

THAT the three children L, J and C live with the mother.

THAT L spend time with the father:

(a) each alternate Saturday during school term from 10.00am until 12.00 noon commencing the second Saturday after the commencement of each school term;

(b) the first two days of each Tasmanian school holidays commencing at 10.00am on the first day and ending at 5.00pm on the following day;

(d) such further time as is agreed in writing between L and the father.

THAT the C and J spend time with the father as follows;

(a) during Tasmanian school term from 10.00am Saturday until 3.00pm Sunday each alternate weekend commencing on the second weekend after the start of each school term;

(b) the first week of each of the mid term school holiday periods commencing 10.00am Saturday and ending 10.00am the following Saturday;

(d) if Father’s Day is not a time when the children would otherwise spend with the father, from 10.00am until 5.00pm on Father’s Day.

(e) If Mother’s day is a weekend when the said children would spend time with the father by virtue of these orders then such time the children spend with the father that weekend will conclude at 5.00pm on the Saturday before Mother’s day.

(f) That handover and return of the children and each of them to take place at the residential address of the mother or such other place as is agreed between the parties in writing.

THAT the father be at liberty to forward letters, cards, parcels and presents to the children or each of them and that the mother allows those letters, cards, parcels and presents to be given to the children unopened.

THAT the father be restrained from discussing and/or denigrating, or allowing others to discuss or denigrate the mother’s faith in the presence or hearing of the children and further that the father be restrained from taking the children to his church and from exposing them to television, radio, computers and other things that the father is aware is contrary to the children’s beliefs.

THAT the mother be restrained from discussing and/or denigrating, or allowing others to discuss or denigrate the father’s faith, the father’s leaving of the Exclusive Brethren or his lifestyle in the presence or hearing of the children.

THAT each of the parties be restrained from discussing these proceedings or allowing others to discuss them in the presence of the children.

THAT both the father and the mother:

a. shall do all acts and things necessary to encourage the children to speak positively to and about the other parent;

b. shall discourage the children from speaking negatively to or about the other parent.

10.

THAT the mother forthwith authorise the appropriate officer of the children’s schools to provide information about the children’s schooling to the father (including but not limited to newsletters, photos, school reports) at the father’s expense.

11.

THAT each party shall communicate with the other and keep the other party advised of all information in relation to any medical care or treatment for either child which may occur while the child is living with or spending time with that party.

12.

THAT a copy of these Orders may be forwarded to the two children’s school by the independent children’s lawyer.

13.

THAT a copy of these orders be served on each of the adult siblings of the children, their respective spouses and the maternal grandparents of the children by ordinary prepaid post with a request that each such person shall provide a written acknowledgement of receipt of the orders. Such acknowledgement of receipt to annexed to an affidavit of such service, which I direct the independent children’s lawyer to file.

14.

THAT the parties use a communications book to pass information relevant to the children’s welfare to each other and ensure that the book is exchanged with the children at contact changeovers.

15.

THAT pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

16.

THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

17.

THAT this matter be removed from the list of cases requiring determination.

IT IS CERTIFIED

18.

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

REASONS FOR JUDGMENT

INTRODUCTION

This is an application where the father commenced proceedings against his wife (“the mother”) seeking parenting orders in relation to three of the parties children namely L aged 16, J aged 13 in January 2007 and C aged 8 in December 2006 (collectively called “the children”).

The father sought orders that the children live with him. He sought orders that there be equal shared parental responsibility and that the children spend time with and communicate with the mother as agreed between the parties or as otherwise ordered by the Court.

The father also sought orders that both parties be restrained from denigrating each other and his or her religious beliefs or causing other people to denigrate the other party or other party’s religious beliefs.

The mother sought orders that the father’s application be dismissed, that she have sole parental responsibility for the children and that there be no orders requiring the children spend time or communicate with the father.

BACKGROUND

This is a matter where the mother and father were both members of the Exclusive Brethren faith (“Exclusive Brethren”) and of the Exclusive Brethren Community in Tasmania. The father is no longer a member of that faith, nor that community, having ceased to be a member from early 2003.

The father is aged 49 years and lives in P in Tasmania. His evidence is that in early 2006 he entered into a de facto relationship with Ms M, with whom he now lives and with whom he is planning to marry.

The mother is aged 48 years and resides in N in Tasmania. She is a business proprietor and is the primary carer for the children.

The mother and father married in May 1977 and separated in February 2003.

There are eight children of the marriage of the parties, including five adult children. The children are:-

(a) W aged 28;

(b) M aged 27;

(d) T aged 21;

(e) ME who turned 18 in October 2006;

(f) L, who turns 16 in December 2006;

(g) J, who turns 13 in January 2007 and

(h) C, who turns 8 in December 2006.

10.

At the commencement of the trial, the father indicated he was no longer pursuing orders with regard to ME as she would attain the age of 18 during the course of the hearing.

11.

At that time, the father also elected not to proceed with his application that the mother be dealt with for contravention of interim orders. He continued to rely on the alleged facts upon which that application was based to be part of the factual platform relied upon by him in the parenting proceedings

12.

Counsel for the mother sought permission of the Court for the child, ME (at that time aged 17 and a few days short of her 18th birthday) to be present in court from time to time during the hearing. That application was supported by counsel for the father and the Independent Children’s Lawyer. It was clear that ME would attain the age of 18 during the course of the hearing and from that time she would be entitled, as of right, to be present in Court. As it was her wish to be present, and that wish was supported by the parties and the Independent Children’s Lawyer, permission was granted. Through the Independent Children’s Lawyer, ME was offered counselling, through the Court’s counselling service, which offer was declined by her. An Order was made allowing ME to be present in Court during the proceedings on and from the first day of the hearing.

13.

The father spent time with the three children subject of the proceedings in the year following separation, but he has seen L once since 2004 and not at all in 2005 and 2006, save the two occasions in October 2006, which are dealt with in these reasons. C and J have also spent time with the father but this time has diminished, particularly over the last twelve months as set out in the father’s contravention applications.

14.

The parties resolved property issues by consent orders made in December 2003. The father commenced proceedings for contact orders in this Court in December 2004. An application for orders for interim contact came before a Federal Magistrate and consent arrangements were made for the father to spend one hour per month with J and C.

15.

In March 2005, requests by the father to spend further time with J and C were generally rejected by the mother. On 10 June 2006, there was a “once off” increase of contact from one to two hours.

16.

On 15 March 2005, an Independent Children’s Lawyer was appointed and a Family Report was ordered in August 2005. That report was released in November 2005.

17.

An addendum Family Report was released on 16 March 2006.

18.

The trial commenced in Hobart on 3 October 2006 and continued until 12 October 2006. At that time much of the evidence was completed with the exception of the evidence of Mr C, the children’s maternal grandfather. He was ill and was unable to give evidence at that time. The trial was adjourned part heart to Launceston on 9 November 2006. Interim orders were made to enable the three children to spend time with the father over that period of time and leave was given to all parties to file evidence in respect of any circumstances surrounding those occasions.

19.

Mr C gave evidence on 9 November 2006 and further evidence was provided in respect of the time the children spent with the father over October 2006.

20.

An application in a case made by the father came before the Court on Thursday 14 December 2006 seeking leave to re-open his case and rely upon further evidence, which came into being between 9 November 2006 and the date of that application. The mother and the independent Children’s Lawyer opposed that application[1]. That application was dismissed and short reasons were provided. These reasons are incorporated into those short reasons.

21.

The father’s submitted that the issues for the Court to determine in these proceedings are as follows:

(i) The children’s wishes and the weight to be attached to them including questions as to whether those wishes were voluntary, the motive behind those and whether they are soundly based;

(ii) How the Exclusive Brethren impact on the welfare of the children;

(iii) The question of the mother’s capacity to promote a relationship between the children and the father;

(iv) The issue as to the father’s capacity to deal with the problems arising if there is a change of the place where the children live;

(v) The issue as to the long term psychological issues of the children being denied a relationship with the father;

(vi) A determination as to how far the Court should uphold the principles of the Family Law Act 1975 (Cth) (‘the Act’) in the face of opposition from the mother, her family and members of the Exclusive Brethren as a consequence of dogmatic religious belief.

(vii) Whether the Exclusive Brethren is a culture within the meaning set out in s60B and within the meaning under s60CC(3) of the Act.

RELEVANT LEGAL PRINCIPLES PURSUANT TO THE FAMILY LAW ACT.

22.

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of significant amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.

23.

The objects of those provisions of the Act relating to children is to ensure that the best interests of the children are met by[2];

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

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

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

24.

The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[3]:

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

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

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

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

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

25.

Each of the parents of a child has complete but several parental responsibility for such child[4]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[5] for the child. The section provides as follows:

Section 60DA Presumption of equal shared parental responsibility when making parenting orders

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

26.

There is some debate within the legal profession as to whether the presumption ‘automatically’ applies once an order is made. A reading of the amendments in context with s 61C of the Act suggests that the presumption provision of that section, viz 61C, applies until a contrary order is made by a court or agreed in writing between the parties.

27.

A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[6], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.

28.

The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:

Section 65DAC Effect of parenting order that provides for shared parental responsibility

(1) This section applies if, under a parenting order:

(a) 2 or more persons are to share parental responsibility for a child; and

(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.

(2) The order is taken to require the decision to be made jointly by those persons.

Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

(3) The order is taken to require each of those persons:

(a) to consult the other person in relation to the decision to be made about that issue; and

(b) to make a genuine effort to come to a joint decision about that issue.

(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly

29.

Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.

30.

The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable. Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[7]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.

31.

If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[8], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[9]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.

32.

A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.

33.

As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[10]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act, as and from 1 July 2006, provides:-

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

34.

The amendments go on to provide in s 60CB:

How the court determines what is in the best interests of a child is set out under s 60CC.

35.

Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.

36.

The primary considerations are contained in s 60CC(2) as follows;

Primary considerations

(2) The primary considerations are:

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

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

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B (1)(a) and (b).

37.

The additional considerations are set out in s 60CC(3) as follows;

Additional considerations

(3) Additional considerations are:

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child[11]:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j) any family violence involving the child or a member of the child’s family;

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

38.

In having regard to ss 60CC(3)(c) and (i), s 60CC(4) applies in that it provides;

(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a) has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:

(i) participating in making decisions about major long‑term issues in relation to the child; and

(ii) spending time with the child; and

(iii) communicating with the child; and

39.

Generally the section further provides that;

(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

40.

How does a court deal with this new “two tier list of factors” set out under s 60CC in determining the best interest of a child?

41.

Professor Richard Chisholm, formerly a Judge of the Family Court of Australia, has recently written on this area of law and observes that

[t]he big question for us, is how this will affect decision making …[12]

42.

Professor Chisholm goes on to suggest that;

The significance of the characterisation of some considerations as “primary” may be summarised as follows. Those matters should be considered first among relevant considerations, and should be treated as being of particular importance in assessing what orders are likely to promote the best interests of the child.

As indicated above, the primary considerations should not be regarded as necessarily outweighing or “trumping” other considerations, nor is it appropriate to attempt a mathematical or quantitative approach. The primary considerations, especially paragraph (a), cannot in fact be determined without reference to the additional considerations. A holistic approach is not only desirable, but logically necessary.

If all this is correct, the legislation will have been followed, in spirit and in the letter, if the court treats the primary considerations in subsection (2) as the first matters to be considered, and as matters of particular importance, as it engages in the task of determining, on the basis of the evidence and the provisions of Part VII, what orders are most likely to serve the best interests of the children who are the subject of the proceedings[13].

43.

Professor Parkinson similarly suggests that the additional considerations serve to assist the court in reaching a determination consistent with the primary considerations:

In almost all cases, the additional considerations will amplify the primary ones at another level of detail. Put differently, it is through detailed examination of such additional considerations as may be relevant, that a judge may be assisted to determine the significance of the primary considerations, and what orders to make[14].

44.

Dr Altobelli[15] has a different view to how the amendments will operate. He has described them as “the most significant reform to Australian Family Law in a decade”[16]. In his paper on the amendments[17], Dr Altobelli observes the following:

How will Part VII of the Act be interpreted after 1 July 2006?

The answer to this question determines whether the changes wrought by the amendments are substantive or superficial. From a purely legal perspective, the answer will depend on how certain key sections inter-relate to each other.

The key sections are:

· Section 60B – the objects and principles underlying Part VII

· Section 60CA – the re-expression of s65E: that a child’s best interests are paramount

· Section 60CC – how a child’s best interests are determined

· Section 61DA – presumption for equal shared parental responsibility

· Section 65DAA – equal, or substantial and significant time

The first thing to note is that the legislature has not purported to change the paramountcy principle i.e. that a child’s best interests are the paramount consideration in making a parenting order. Indeed, by bringing it forward from s65E to s60CA, immediately following the objects provisions, but otherwise at the commencement of Part VII, it has reasserted the paramountcy principle. However, what the legislature has done is to explain, in more detail, how a child’s best interests are to be determined. The embodiment of this is found in s60CC, a far more prescriptive version of its predecessor, s68F. However, ultimately, the Court’s expression of what is, on the facts of a particular case, the best interests of a child, is found in a parenting order under s64B. Because of s61DA, there will often be a presumption of equal shared parental responsibility in parenting orders that leads the Court to consider at least two statutory expressions of what the legislature considers to be in the best interests of children so far as the time they spend with their parents after separation. Those statutory expressions are found in s65DAA: equal time or substantial and significant time. It is a complex and convoluted pathway that starts off with a very broad direction and unfettered discretion (child’s best interests paramount) but which is gradually fettered and narrowed as the decision-making process moves from generalised concept to concrete order.

The challenge facing the Full Court as regards these amendments is similar to that confronted by the Full Court as B and B: Family Law Reform Act 1995 (1997) FLC 92-755. There the Court decided that s65E prevailed:

“The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court… starts from that essential premise and it remains the final determinant.” (para 9.51).

That proposition should not, it is submitted, change, save that s60CA replaces s65E.

The Full Court then considered which of ss60B or 68F(2) was the next most influential provision in the decision-making process. The Court found, in effect, that s68F(2) was the implementation of s65E, and that s60B was to be read subject to both ss65E and s68F(2). The objects provisions in s60B:

“provide guidance to the Court’s consideration of the matters in s68F(2) and to the overall requirement of s65E.” (para 9.54).

Of course, the versions of ss60B and s68F(2) in the current amendments are significantly different. The shared-parenting “message” in s60B was not matched in s68F(2). Indeed the dissonance between these two sections when it comes to shared parenting is readily apparent when they are read alongside the “new” s60B as compared to s60CC. The objects of the legislation are far more closely aligned to how they are manifested and are to be implemented under s60CC.

The Full Court’s admonition in B and B was that the wording of s68F(2) made it clear that the court “must consider” the various matters set out therein and that the

“weight which is attached to any one consideration will depend upon the circumstances of the individual case” (para 9.53).

The Full Court also noted that he list was not intended to be exhaustive and that:

“the inquiry is a positive one tailored to the best interests of the particular children and not children in general…” (para 9.53).

Of course the successor to s68F(2) does not so easily lend itself to such an interpretation about weighting. The legislature has spoken – there are primary considerations, and there are additional considerations. The former is a closed class, the latter is not, as s60CC(3)(m) confirms. This “closed class” of primary considerations is actually a closed but broad class. For example, the s60CC(2)(a) consideration about “benefit to the child of having a meaningful relationship” necessarily incorporates, it could be argued, a number of factors that the section treats as additional considerations in s60CC(3). Hence, on this argument, “benefit” cannot be ascertained except by reference to what are the child’s views [(3)(a)] relationships with parents [(3)(b)] capacity of parents etc. The difficulty with this interpretation is that it is reading down “primary consideration” – primary loses its distinctiveness and becomes meaningless.

The problem with using B and B as a point of reference in interpreting the new Act is that it emphasised the importance of the exercise of discretion in each case, in a context where the Act permitted discretion to prevail. Arguably, under the new Act, discretion is fettered or circumscribed. Whereas in B and B the Full Court could confidently say:

“…….the legislature and the courts…. have eschewed the application of fixed or general rules as the solution.” (para 9.57)

that is no longer the case under the new Act because discretion is exercised within more narrow confines. Moreover, whereas the Full Court could confidently assert that the:

“Act contemplates individual justice. Any question of presumption or onus has the potential to impair the enquiry as to what is in the best interests of the particular children” (para 9.59),

now it could be asserted that the Act rather precisely and prescriptively creates a far more structured enquiry about what is best for particular children. On this view, sections 60CC(2) and 65DAA are the statutory manifestations of a new structured enquiry.[18]

45.

It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.

46.

The approach to be adopted by a court is structured.

(a) The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.

(b) The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.

(c) To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.

(d) Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests

(e) In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[19] where her Honour said;

The primary considerations

47.

The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-

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

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

48.

This is a case where both of the primary considerations are relevant.

(a) The benefit of a meaningful relationship – as a primary consideration.

The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.

The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.

While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[20].

The arguments supporting the first possible interpretation include:

(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;

(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;

The arguments supporting the second possible interpretation include;

(a) Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;

(b) The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-

“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”

The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;

(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;

(e) The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.

My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to Billy into the future.

49.

I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists”.[21] I would, however, add that such evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child

50.

Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the court make such a determination.

THE EVIDENCE

The father’s evidence.

51.

The father relied upon his affidavits filed 29 March 2006 and 22 June 2006. He said he has not had meaningful time with the children since his final separation from the mother and the Brethren in early 2003.

52.

The father filed and relied upon a further affidavit sworn and filed 7 November 2006, which dealt with the time the children spent with him on 14 and 28 October 2006. In that affidavit he said the 14 October occasion the children were quiet but settled and that L said she wanted to go home after one hour with her father. He said that towards the end of the visit the children were acting naturedly and were talking freely. He said the visit went much better than he had expected.

53.

The father’s evidence was that the second occasion did not go well. L was crying uncontrollably and was “in a hysterical state”[22]. The father was not cross-examined on his evidence. On this evidence, I infer that the children were the subject of comment and influence by member/s of the Brethren and that whilst they were encouraged to comply with orders, they were also discouraged from enjoying or taking benefit from the visits, particularly the second visit. I am also able to infer that, when free from the sway or pressures of other members of the Brethren, the children are able to derive much benefit and enjoyment from spending time with their father.

54.

In September 2006, the father attended at the home of the children’s maternal grandparents. The children came to the door and expressed a desire not to visit with the father. He had a discussion with them over about ten minutes and described J’s behaviour as uninformative and tense. He said C was hesitant. He said that there were no adults visible but heard noises suggesting adult activity in the background.

55.

The father tendered in evidence a photograph of J and C, which was taken late in 2004.

56.

The father gave evidence that he had arranged to see the children in September 2006 but arrived early. Whilst he was driving around the block waiting for the time to commence he met his son G and had a discussion with him. G said to the father that he was asked by the solicitor to file an affidavit to assist his mother and he had done so.

57.

When the father arrived at the children’s maternal grandparents house at the designated time in September, he was met by Mr C (the children’s’ maternal grandfather), Mr S (M’s husband), his son, T, together with J and C. The children said to the father that “they are not coming today”. G arrived, bringing the group constitution to five adult males and the two children. The father said he asked Mr C to assist in persuading the children to come. Mr C declined that request for assistance.

58.

The father then had a discussion with G. They were consequently joined by T. This conversation was terminated when Mr C required the father to leave his property. The father moved his car and had a discussion with G on the footpath and gave presents to G to give to the children.

59.

The father said he is in a committed relationship with Ms M and he will seek to divorce the mother so that he can marry her. He is now a member of the U Community (which is an “Open Brethren” religion). Ms M was a member of that Christian community and the father says that her faith has been reactivated. The father agrees that the mother is a devout member of the Exclusive Brethren, and that she is a fourth generation member of that community.

60.

The father’s evidence was that he became a member of the Exclusive Brethren when he was aged five when his mother joined that group. His mother left that community some time after he left the community in 2003. She is now a Baptist and is aged eighty three. The father said he did not know his father for a period of forty years. The father was distressed that he was not permitted a relationship with his father.

61.

The father had doubts in the later years of his association with the Exclusive Brethren. He denied assertions that he had relationships with other women prior to his separation from the mother. He said he left the Exclusive Brethren because he was disenchanted with the leadership and philosophy of that Church.

62.

The father said that the mother volunteered to leave the Exclusive Brethren to stay with him at the time of separation. He did not believe this was a real offer and agreed that he told the mother that she should remain in the Exclusive Brethren. He did not believe this was an offer to save the marriage but a device to keep him in. His evidence was he did not take this offer because he could see through it. The husband’s evidence was that the wife was a fourth generation member of the Exclusive Brethren and he believed she should stay within the faith.

63.

From all of the evidence, I find that not only did the father wish to leave the Exclusive Brethren but at the same time wished to separate from the mother.

64.

His further evidence was that his business was going well at the time of separation. In terms of financial support for the children, he said this was included in the property settlement made in December 2003 and he had only had one request from ME for money for an orthodontist. He did not provide the money for her when she made that request.

65.

The father has, he believes, three grandchildren, two of whom he has met. The father said in his evidence in chief that Mr C had not encouraged the children to go on contact. He further said in response to an affidavit of M that he at no time made the threats to kill the mother as set out in her affidavit. He said he was devastated when reading the remark and would never have made such a comment.

66.

Regarding an affidavit of Mr S (the father’s son in law) the father conceded that he had spent a night with a woman in a hotel when in Hobart but this was after the break-up of the marriage.

67.

The father gave evidence that he had been interviewed by a television program but believed that his children would not see the program as they were not allowed to watch television as members of the Exclusive Brethren. He later agreed that he had also given an interview to a newspaper and had been involved in an interview on the radio station. He agreed that he had said that he would be giving a further interview once these proceedings had been determined.

68.

In cross-examination, he said that he was aware that, in declining the mother’s offer to remain with him when he left the Exclusive Brethren, she would remain with the faith and that the children would do likewise. Prior to separation, he had participated in the process of “withdrawing from” other members of the Exclusive Brethren. He had detailed knowledge of the Exclusive Brethren faith and practice. He agreed that marriage separation was inconsistent with remaining a member of the Exclusive Brethren and that the ultimate result was withdrawal from the person instigating such separation. He was also aware that members do not socialise with people outside the Exclusive Brethren. Whilst he was a member of the Brethren, the father imbued all of his children with the practices of the community and played a significant role in developing, educating and raising the children in the beliefs and traditions of the religion. He said that prior to separation, his son, G, had tested the boundaries of their lifestyle, faith and practices and that he had urged G to remain within the faith. The father said that he had experienced happy times with the children within the Exclusive Brethren community.

69.

As to education, the father said that the children either attended the local Primary School, O School (an Exclusive Brethren school) or had home education. The father was, prior to his withdrawal from the community, a trustee of the O School.

70.

The father said that the decision to send the children to the O School was a joint decision between the parties and, up until separation, he was happy with the education the children had received.

71.

The father has not approached the local high school or primary school about education for J, C or L and has made no serious enquiries about schooling for them if they were to live with him. He was provided with the reports from the local Primary School and O School.

72.

J has had difficulties at school but, on the evidence, seems to be managing particularly well with the significant direct educational assistance provided by the teaching staff of the O School. There is no issue as to the adequacy of primary and secondary education received by J, C and L. The issue in this matter is the influence of the Exclusive Brethren community and teachers upon the children. In that respect the court is satisfied that the children are being provided with sound primary and secondary education by teachers who are not members of the Exclusive Brethren, but who are aware of the particular upbringing of the children. I find that the teachings and approach of the Brethren, which is accepted and adopted by the mother, is that their children do not attend university. As such, these children, if they remain members of the Brethren, will not achieve their full academic potential.

73.

The father said that when the children went to State Schools they were normally brought home for lunch. This was to avoid the children socialising with other children during mealtimes, as prohibited by the beliefs of the religion.

74.

Further, the children were generally discouraged from interacting with children outside the Exclusive Brethren community. This was a parenting decision and accorded with the practices of the faith.

75.

The father was cross-examined in relation to his relationship with Ms M. He agreed that he sought and obtained a restraining order against Mr D, who was the partner of Ms M at that time. This was due to the father receiving a death threat from Mr D.

76.

The father denied that he had a sexual and/or romantic relationship with Ms M prior to separation.

77.

After separation, the father remained in L for a while, then moved to Hobart in February 2004. In September 2004 he moved to coastal Tasmania.

78.

The father said that Ms M had not met J and C. She had no relationship with them and, whilst the children had seen photographs of his home, they had never visited his residence. He also agreed in evidence that it was the first time he had given the mother his address. He prevaricated in relation to whether he had previously provided the mother his address. I find that he was not forthcoming to her in this regard.

79.

The father was cross-examined as to why he did not disclose his relationship with Ms M in his initial trial affidavit. The father conceded that he and Ms M were living together at the time the affidavit was sworn but that he was concerned that that disclosure would adversely impact on his relationship with his children. He agreed that he ought to have told Mr CH (the family reporter) about the relationship when he changed his application from the children spending time with him to an application that the children live with him.

80.

The father was questioned about how L would cope with an order that she live with him, bearing in mind her strong views that she does not want to do so. The father said he does not know what he would do if L refused to spend time with him.

81.

He had contact with L in 2003 but only saw her once in 2004, for the purpose of preparation of the Family Report. He has not seen her since, apart from the two occasions in October 2006 during the hearing of these proceedings. The father is particularly attached to L as she was hurt in a car accident when she was a little girl, the father being the driver of the car. He went to the hospital and spent time with her and his evidence, which I accept, is that he is particularly bonded with her. The father said he would never accept that any of his children, but in particular C, J or L, do not love him. There is no doubt that the children deeply cared for their father and that his separation from the Exclusive Brethren has been deeply traumatic to them all.

82.

The father agreed that L’s friends were members of the Exclusive Brethren and that she also has friends outside the community. If she lived with him she would be unable to continue in her faith, which, on the evidence, is contrary to her strong view that she remain a member of that community. He conceded that she would be likely to struggle with aspects of life which are in conflict with her religious beliefs, such as eating with non-members of the Exclusive Brethren community and exposure to television, computer and mobile phones.

83.

Similarly, J and C’s friendships within the Exclusive Brethren would come to an end if they were to live with the father.

84.

The father recalled that between the years 2000 and 2003, one of his children, he could not recall which one, asked about a non-Brethren friend and the father and mother at that time opposed that friendship.

85.

The father gave evidence that he did not believe that J and C’s reluctance to see him was their own view but, instead, the view of the community. With regard to J, he described him as a quiet, frightened boy.

86.

One of the concerns the Court has is the change of the father’s approach to his children since the first report by Mr CH. The father said that he informed Mr CH that he would be seeking residence, although that is inconsistent with the father’s comments recorded by the reporter in his first report where he says:

[The father’s] proposal for the children is consistent with his application namely:-

1. Alternate weekend for all four dependent children;

2. Half of all school holidays;

3. Special days such as birthdays, Easter and Christmas[23]

87.

The father’s application has since been amended to seek orders that the three children live with him.

88.

When he first met with Mr CH he appeared to:

Acknowledge that the transition process from what currently exists to his preferred alternative may require some graduated steps involving an increase in daily contact.[24]

89.

The father's application is now for an immediate changeover in the children’s living arrangements. In terms of how the children would cope with his relationship with Ms M the family reporter observed that,

[The father] has indicated that his accommodation would involve only himself and the children and that initially he would not knowingly do anything with them that might compromise the teaching of the Brethren.[25]

90.

The father's approach has since changed and one of the motivations for residence is now

a “desire to show them another side of life,” and to “release them from the clutches and powers of the Brethren.[26]

91.

His initial concern for the impact of the change on the children seems to have been overtaken by his personal enmity towards the Brethren.

92.

The evidence of Mr T

93.

Mr T gave evidence in accordance with his affidavit filed 29 June 2006. Mr T is currently aged 29 and had been a member of the Exclusive Brethren until he was about 19.

94.

He left the Exclusive Brethren and has now been “withdrawn from”. He has now married and has three children of his own. His evidence was that his parents have had little contact with his children. He gave evidence of the nature of being “withdrawn from” and the practice of the Church that when a child reaches sixteen, the child should have no contact whatsoever with the “withdrawn from” parent. He was not challenged on that point.

95.

He said that within the Exclusive Brethren there are strict rules that members were not to associate with persons outside the Exclusive Brethren, who are known as “outsiders” or “worldly” people.

96.

This evidence was not seriously challenged and I accept the accuracy of it.

97.

He said that, despite being withdrawn from, he has had some contact with the father’s son G and, to a limited degree, with the father’s son T.

98.

On the evidence, it appears the ties of Mr T’s family have not been severed completely and Mr T is now aware that his children have had some contact with his parents, although he was not aware as to whether his parents attended at the hospital when his children were born. Mr T’s evidence was that his parents provided assistance for him, in the form of some money and employment by a company operated by his parents and his brothers for ten months last year.

99.

There was some irony in that the father, when he was a member of the Exclusive Brethren, was one of the people who visited Mr T to attempt to persuade him to return to the Exclusive Brethren.

The evidence of Mr H

100.

Mr H gave evidence in accordance with his affidavit sworn 29 June 2006. Mr H left the Exclusive Brethren in the year 2000. He has now completed a teaching degree and is in the process of qualifying as a teacher.

101.

Mr H has six children and, as a result of leaving the Exclusive Brethren, he now only sees two of those children. The impact of his affidavit being filed in these proceedings has been quite profound. His son TH, aged thirteen, wrote to him on 18 September 2006 [27] saying:-

“To my father,

I am not coming with you on access anymore.

No one can make me come with you because it is my decision.

You put an attack against us in the newspaper.

You are going to be a witness for DT [the father]

You said in the paper that the trombone is your life, what about the bred?

You have taken us to football and you know that mum doesn’t allow that.

You try to talk us into going to the movies.

You left mum because you are against the Brethren.

You only give mum five dollars a week”

102.

He also received a letter from his son WH, aged fourteen. That letter said:

To my father,

Following Saturday night phone-call [T][H] and I decided we would send you a letter each to tell you more.

The reasons for our decisions are:-

You asked us if we wanted to go to the movies and you would have known well enough that mum wouldn’t like us to go there.

You are a witness for DT [the father] in an attack against a mum and her kids.

You went to the media and caused trouble.

You have had two wives and a girlfriend since you left mum.

You are paying mum only $5.00 a week which is only enough to buy one lunch for one kid in a week. For nearly six years you have been paying this and that is what I call pathetic.

Do you love your trombone more than God or did you make a mistake in your statements to the newspaper?

You are opposing the truth.

You used to hit the older kids with sticks and belts.

Just BEWARE no one can make us come with you”

103.

What is clear from those letters, which were not challenged, is that the community became involved in these disputes and the children were not shielded from the disputes.

104.

Mr H was asked to comment in a newspaper article in August 2006 [28]. It is clear from the letters received from T and W that this article has been discussed with them, as has the question of child support paid or payable by Mr H to his children. Further, it appears that these proceedings and the witnesses involved in these proceedings have also been discussed with the children of the father and of Mr H.

105.

I am able to infer that the children of both families have been significantly involved in these proceedings. Mr H and the father see each other socially on a regular basis as they have a common history with respect to the Exclusive Brethren. They have both given evidence that they are committed Christians.

106.

Mr H has had no contact with his elder four children since separation. He endeavoured to see his son shortly before his 16th birthday in order to give him a present. On Mr H’s evidence, he went, knowing that it was unlikely that he would see his son or have a relationship with him. That visit was cancelled. He has not had face to face contact with his younger children since the beginning of August 2006.

107.

Mr H accepted an arrangement to see his children initially once a month and then once every two months, sometimes three months when times were not mutually agreeable. His evidence is that he did not have the strength to become involved in family law proceedings. As a consequence, his relationship with his children has diminished over the last six years to a situation where he, apparently, does not see his children at all.

108.

When he was with the Exclusive Brethren, he was one of the “unofficial” leaders. He preached regularly and some of his writings have been published within the Exclusive Brethren.

109.

He gave evidence of his knowledge of a “fighting fund” operated by the Exclusive Brethren to fight proceedings under the Act. This is set out in his affidavit and oral evidence given before me. I am able to find that a fund was created by the Exclusive Brethren to fight parenting disputes in courts exercising jurisdiction under the Act.

110.

Mr H confirmed that members of the Exclusive Brethren believed all those who left the faith were “wicked” or “worldly” and ought to be regarded with contempt. He said that the Exclusive Brethren used fear, family and financial circumstances to manage their members.

111.

In relation to the process of being “shut up” he said:

“20. The “fear” relates to doing something against the principles or rules. If a person contravenes a rule or Church principle then there is a process of being “shut-up”. This is essentially a situation of confinement. There is no social contact. The person cannot attend Church. I have seen such a process of “shutting-up” continue for up to two years. I saw this with a man whom I know who lives in [D]t. This man’s sin was to be caught watching cricket on television in a business office”.

21. When a person is “shut-up” he is unable to associate or even eat with members of his own family. He is visited by “priests”. He is interrogated. He is encouraged to confess his wrong doings. He is ostracised from family and associates until he does so.” [29]

112.

Mr H described the process of being “withdrawn” from. He says at paragraph 22:

“22. The next stage if a person does not repent is to be “withdrawn from”. This is a form of public ex-communication. The effective result of this is that members of the Church, including one’s own family, completely disassociate themselves from that person. There can be no business association. There can be no social associations.”

113.

Mr H said that, where available, children attend Church high schools and it is forbidden for children to obtain tertiary qualifications. The Exclusive Brethren actively discourage the relationship between children and any former member and remaining members’ spouses are encouraged not to maintain relationships between the children and the “withdrawn from” spouse.

114.

I accept Mr H to be a truthful witness.

The evidence of Ms M

115.

Ms M gave evidence in accordance with her affidavit filed 29 June 2006. She is the father’s partner and they propose to marry in September 2007 but can bring that wedding date forward in the interest of the children if need be. Ms M divorced her previous husband in February 2006. Her evidence was that she and the father had discussions about marriage a few months before Christmas 2005 and she has been living with him in his house since January 2006. Her daughter, R, is now living with Ms M and the father whilst undertaking a child care course.

116.

Ms M has met C and J on two occasions. These were quite short interactions, the first being when C and J were at a pharmacy, in which she was working, with their grandmother. The second occasion was when she met them at K-mart when they were spending time with the father around Christmas 2005. She has not played any role in the day to day care of the children. She does not know how the children would react to her if living with her.

117.

She attends the O Church and is aware that the children, as members of the Exclusive Brethren, are not able to socialise or eat meals with outsiders. She accepts there would be difficulties but believes the children are young and are adaptable. She is prepared to move out of the father’s home into her mother’s home until they are married but intends to continue her relationship with the father. She said that she would not sleep at the father’s home at night but would be there during the day and that she would reduce her full time work to part time work to accommodate these arrangements. I find that she is dedicated to her relationship with the father.

118.

Ms M was asked questions about whether she would allow the children to attend Exclusive Brethren meetings. She prevaricated in relation to that question and I infer that she would not encourage their relationship with the Exclusive Brethren. I believe she would support the father’s desire to remove the children from the influence of the Exclusive Brethren. If the children wish to remain part of the Exclusive Brethren I am able to infer that she would not accept their views in that regard.

The evidence of the mother

119.

The mother gave evidence in accordance with her affidavits filed 20 March 2006 and 21 July 2006. She also relied upon her further affidavit filed and sworn 2 November 2006. In that affidavit the unchallenged evidence was that all three children were upset when told they had been ordered to spend time with their father in October 2006. In particular, L was observed to be particularly upset and resistant to seeing her father.

120.

She was asked about the evidence in chief provided by Mr H. She has no recollection of children as young as six preaching (which was the evidence of Mr H in relation to himself) and was not aware of a fighting fund set up by the Brethren for family law proceedings, as alleged by Mr H. Whilst I accept the evidence of Mr H I do not regard the mother as being untruthful in this regard and I infer that she is simply not informed in regard to the “fighting fund”.

121.

She denied that her son G left the Exclusive Brethren. She said that he had a brief respite of one day, but he did not leave the faith or community. He was not “shut-up”.

122.

In response to the husband’s allegation that she attempted suicide, the mother denied ever doing so. She said that about five days before separation, she stated that she would jump from a balcony in order to elicit a response indicating care and affection from the husband. She said this was not a serious threat and I accept and prefer her evidence in that regard.

123.

She was cross-examined as to the nature of the evidence she was giving the Court. She understood that she must tell the truth. She declined to take an oath on the Exclusive Brethren Bible but made it clear that she understood her obligation to the Court. She accepted that her obligation to God was more important than a social obligation but at the same time I am satisfied that she was a witness of truth and endeavoured, in each question, to answer it as truthfully as she possibly could. I find she is a deeply religious person, who is genuinely committed to her beliefs and those espoused by the exclusive Brethren. She believes that the children should not have a relationship with their father as their obligations to God are greater than their obligations to family. With the father having been “withdrawn from” she believes that there cannot be a meaningful relationship between him and the children and it is unrealistic for the children to have a relationship with him.

124.

Asked if the father could have a relationship with the children if he returned home, the mother said he would have to be repentant because he had separated from her and she would need to be sure that she could trust him.

125.

Asked if an order of the Court was made whether she would comply with the orders she replied she would. If the Court made an order for her to encourage the children to have a relationship with their father she said she would not be able to do that, bearing in mind the tenets of the Exclusive Brethren. Asked if she would comply with an order not to demean or belittle the father, she said she would comply with that order.

126.

The mother did not regard “withdrawing from” as a punishment.

127.

The mother had significant health problems from 1999 onwards including major surgery and the need for chemotherapy. She said that the husband was supportive of her during this time up to about a period of eight months and twelve months before separation. He was supportive and was a good husband until that time. However, she said she was the primary care giver for the children. She acknowledged the husband was a loving and caring father, shared close bonds with the children and was respected and loved by them, at least up until separation. She believed that the arrangements recommended by Mr CH that the children spend time with the father would be almost impossible to effect. She gave evidence, which I accept, that the children love their mother and are loyal to her and mostly obey her. They respect her as a mother.

128.

The mother confirmed her belief that the children cannot mix with

non-members of the Exclusive Brethren, as they may be exposed to “worldly” influences. They can only eat with those, with whom they have community. She worried about the influence of others.

129.

She was asked how she explained to the children the absence of the father and his departure from the household and community. Her response said she could not explain it to them as she did not understand why herself. When pressed in relation to this, she said she did not believe the father had difficulties with his faith but rather, that he had difficulties with some members of the Brethren community.

130.

She agreed that when the father left she had a very difficult time. She was assisted by her family and members of the Exclusive Brethren community and sought assistance from Mr HA. Mr HA is a leader with the Exclusive Brethren and was approached by the wife because she felt her husband had respect for him and that he may be able to assist in convincing the father to return to her and to the faith. Her principal support over that time was through the local church community and her family.

131.

She was asked what she would do if all, or some, of the children were ordered to live with the father. She said she would accept that and that she would continue to love them. She said that she would endeavour to see them but that this would be difficult if they were not in fellowship with the Exclusive Brethren. She said:

If they left, as a mother I would want to have a relationship with them. If they did not remain within the tenets of the Church I would accept that and would let them go

132.

I take it that she would maintain contact with the children but that if they ceased in the beliefs of the Exclusive Brethren, they would eventually be alienated from her. I find that they would also be alienated from their siblings and family members who remain within the Exclusive Brethren.

133.

This must be seen in the context of the father’s approach to the children if they were to live with him, as set out in the Addendum Family Report at paragraph 6 where Mr CH noted the following:

He [the father] was motivated to pursue a residence application out of a desire to show them the “other side of life” and to “release them from the clutches and powers of the Brethren.

134.

In terms of the time spent between the children and the father, the mother said that if specific orders were made to ensure that they did not break the tenets of the Exclusive Brethren then this would give her some confidence. I accept what she says in this respect.

135.

She was asked as to her views of the comment made by her father, Mr C, in his affidavit filed 20 March 2006 when he said:

However, I emphasis that any contact by the children with their father is seen to only have one possible benefit, namely, if the said children are successful in encouraging their father to repent.

136.

The mother had great difficulty responding to this question. Her first response was that she was “not sure”. When she was informed that it was her father’s affidavit she replied initially “yes, I think so”, then later, “I can’t understand it”.

137.

This must be seen in the context that the mother believes that her father is an important person in her life, she respects him and she would obey him. She agrees that the precepts of her religion require her to be in subjection to a man but noted that if she had a conviction against what he said she would not obey him. I infer that her father has a significant influence upon her.

138.

If the children were living with the father it is unlikely that they would be “withdrawn from” whilst they were children but they would not be permitted to partake in fellowship. The Family Report attributed the following comments to the mother:

[The mother] indicated that should any of her children voluntarily chose to associate with their father her obligation would be to ask them to leave home and “withdraw” from them. She said that age would be a factor in relation to spending time with the children.[30]

She accepted that she might have said similar words to that effect.

139.

The mother said that the children had been reluctant to visit the father from the time of separation but that this reluctance had increased over recent times. She said J was a boy of few words. She did not accept that he was afraid to tell her that he wanted to see her father but conceded that one of the factors in the children not seeing the father was because of their love for her.

140.

In relation to C’s use of the word “wicked”, she said that it was not a term she used in relation to the father and when she heard her use it in that respect, asked her not to do so. I accept her evidence in that regard.

141.

The mother does not believe the children enjoy the time they spend with their father.

142.

The mother agreed in cross-examination that there were a number of members of her church who were visiting Hobart to support her in the trial. Members of the Exclusive Brethren had booked the boardroom at a nearby hotel. She was not aware of the precise number of Exclusive Brethren supporting her. She said no one had communicated with her about her evidence between 5 and 6 October 2006.

143.

Included in those people assisting her were Mr W and her father.

144.

The mother was cross-examined in relation to her finances. She had an income from the business of approximately $24,000.00 per year and a family tax benefit of approximately $133.00 per week. With bank loans and loans from members of the Exclusive Brethren she owed about $500,000.00 in relation to her business. Of that sum, approximately $234,000.00 was owed to members of the Exclusive Brethren. It was put to her that she was induced to give evidence by virtue of her liabilities to other members of the Exclusive Brethren. She denied this assertion and I accept her evidence in that regard.

145.

The mother said that the family played a pivotal role in her faith. The parent/child relationship was important and she conceded that the elder four children had rejected the father since separation. Her view was that the only thing stopping them seeing their father was his departure from the marriage and the church. She said she wished to remain a member of the church.

146.

At the time of separation, she offered to leave her faith and be with the father as she thought the family was more important. The father rejected that offer. That evidence is consistent with that of the father.

147.

What is in issue is whether the mother made the offer in an effort to induce the father back into the Exclusive Brethren or whether it was a genuine endeavour by the mother to keep the family unit together. In that respect, on balance, I prefer the evidence of the mother.

148.

The mother was asked whether she had ever doubted the faith. She said she had doubts about herself and she questioned God’s way but that she had never renounced her faith.

149.

As to the children’s relationship with the father, she does not encourage it. She acknowledges that the children had a deep and loving relationship with the father but that, as a consequence of their belief, and her beliefs, that relationship has diminished.

150.

I infer from the evidence that the children are discouraged from pursuing a relationship with the father. This is not necessarily achieved by the mother but is likely to emanate from other family members, including siblings, spouses of siblings and grandparents, and other members of the Exclusive Brethren. Letters have been sent to the father, purportedly by the children, which clearly reflect the views of the Exclusive Brethren and use language which is unlikely to be language used by the children.[31]

151.

On 4 March 2006, the child J sent a letter to the father[32]. It was put to the mother that this arose in anticipation of the preparation of the addendum to the single expert report. On balance, I infer that it arose out of the difficulties regarding contact operating through January and February 2006.

152.

The struggle which the children are required to deal with is in many ways summed up on the single expert report where it deals with ME:

59. [ME] presented as a polite, deep thinking, articulate and sensitive young woman. She seemed anguished about her father’s departure from the family and his emotional absence from her life.

60. She pleaded for him to return home and to be reconciled with the Exclusive Brethren Church in her individual discussion with the Reporter directed to her father when they met later that day.

61. [ME] stated that she prayed for her father each day and still “kept hope alive in her heart”, that he would return despite acknowledging that there were no encouraging signs of this hope being realised.

62. [ME] disclosed that she thought she had a close relationship with her father prior to separation but found her feelings are now in somewhat of a quandary.

“I really do love him, but couldn’t live the way he does. Would he have left if he really loved me? “

153.

She went on to outline some of her unresolved concerns:

“I am scared about what is going to happen and sad that I don’t feel like I have a proper family”.

65. Mention was also made of the mother whom she said she worries about because of the load that she carries and feels a level of responsibility towards her.

154.

The mother initially encouraged the children to go and visit their father and stated that such encouragement was not made with the intention of the children persuading the father to return to the Exclusive Brethren. The father moved to Hobart without leaving a contact address. It was for this reason that contact in 2004 was significantly reduced.

155.

The mother agreed that ME wants to have a relationship with her father, but only if within the faith.

156.

She says that she has told the children that their father loves them and that she has not demonised him to the children. She said she was at court to defend her children.

157.

The mother has been clearly influenced by other members of the community in relation to the father’s involvement in the public campaign against the Exclusive Brethren. She was aware of the newspaper article and a current affairs program, in which the father was interviewed. She gave evidence that she does not watch television but on this occasion had gone to the O School and saw the program which featured the father. It was put to the mother that the reduction, and essentially termination, of contact in 2006 arose as punishment for the husband for his public agitation with regard to the Exclusive Brethren. The mother denied this assertion.

158.

I accept the mother’s evidence in that regard. I infer from the evidence, however, that the father’s public campaign has resulted in pressures being placed on the children to cease all contact with the father. The mother said that a family meeting took place after the viewing of the television program involving most of the children and Mr C. During this meeting, statements which the family thought were incorrect were refuted. She agreed the children were not likely to have watched the television program but felt that they were likely to have heard about it elsewhere and that it needed to be properly dealt with.

159.

The younger children generally only spend one hour, and on one occasion, two hours, with the father per month. The mother said that if there was a court order for the children to spend time with the father, she would respect it and would encourage the children insofar as she was able, but that she would not discourage the children if they chose not to go.

160.

The mother agreed that L had a particularly close relationship with the father. She said L was a quiet girl but was not averse to expressing her own opinion.

161.

She said that she believed that C and J could approach her if they wanted to see the father, although, when pressed in cross-examination, she agreed that they may be reluctant to do so out of fear of hurting her. She said, however, that such social interaction with the father was contrary to the way in which she and the father had brought the children up.

162.

Her son T is 20 years of age and lives at home. He has a firm judgement and is a person of few words.

163.

Her daughter WE, who is married, does not see her father and has strong views on that issue.

164.

The mother was not sure when the edict against socialising with non-members of the Brethren was put in place. She had heard of a man called JT who was a former leader of the Exclusive Brethren.

165.

She said there are about 150 to 160 members of the Church in L. She could not recall a new member entering the Exclusive Brethren for some time but she believes that this has happened in other locations.

166.

She agreed that, according to the religion, if C had the capacity to attend university, she would not be able to do so as a member of the Exclusive Brethren. She also said that the principles of the faith prevented her from discussing parenting issues with the father, as he was no longer a member of the faith. She said she had written to him on one occasion regarding such issues but he had not replied to the letter.

167.

During cross-examination from the Independent Children’s Lawyer, the mother agreed that C was of above average intelligence.

168.

On the evidence of the mother, it is clear that the adult child G struggles with his love and affection for his father and mother and his commitment to the Exclusive Brethren.

169.

The mother clearly endeavoured to be truthful in answers to questions and in terms of her affidavits. The mother’s evidence is subjective but I generally accept her version of events.

Evidence of Dr J

170.

Dr J, a psychologist of D, gave evidence in accordance with his affidavit filed 4 August 2006. The father and his partner, Ms M, self-referred to Dr J and he saw them on the first occasion on or about 27 July and, on the second occasion, about a week later. He has not seen them since that time but swore an affidavit. There was no significant challenge to the qualifications of Dr J as a psychologist although there was some question about his qualifications with regard to children. I am satisfied that he is a qualified psychologist and is able to provide expert evidence with regard to the children as well as adults.

171.

Dr J has not seen nor met any of the children of the parties, nor has he seen or met with the mother. He gave evidence that he was not familiar with the Exclusive Brethren and that the information he learnt about it came primarily from the father. He had never had involvement with a child from the Exclusive Brethren. He said that he had dealt with children who had been taken from their parents and then returned and children in the “Moonie” religion.

172.

I accept his evidence that the father is not in need of therapy and that

Dr J observed no psychological or psychiatric illness. Further, that should the father need assistance, Dr J would be a resource with whom the father and Ms M could use. Dr J has not seen the father since the second visit in late July or early August this year and sees no need for further visits at this time.

173.

Some effort was made to use the evidence of Dr J in relation to how the children would cope if there was a change in parenting. The only evidence he could give in relation to the children was that, generally, change is stressful but that children are generally adaptive and reserved. Whilst that may be the general situation, I give it no weight as it does not necessarily relate to these particular children and these particular circumstances.

174.

In many ways, the evidence of Dr J advocated the father’s cause without a sound factual basis for doing so.

Evidence of T

175.

T gave evidence in accordance with his affidavit. He was a very focused witness, who did not look at or acknowledge the father. His evidence was provided to assist his mother and, I infer, to support his strong support of the Exclusive Brethren. As such, I am cautious about the weight that attaches to his evidence. He is convinced about the merits of the mother’s case.

176.

He confirmed that he did not support the children J and C having any contact with their father. He said he did not want them to have contact with the father. This, he said, was his own view and he had not been told to say so by anyone else. I am guarded about his evidence in this regard.

177.

T has only seen his father three or four times since separation. If the children live with their father he initially said he could not have anything to do with them because of what he had been taught by the Exclusive Brethren. He later said that if the subject children live with the father and his mother spent time with the children he would like to spend similar time with them. I find that he genuinely cares for the subject children and that there is a close mutual relationship between them.

178.

If the Court made an order preventing his mother from discouraging the children from spending time with the father he would comply with such an order.

179.

T had been shown the television current affairs video of his father discussing the Exclusive Brethren and said that it made him feel more opposed against his father.

Evidence of G

180.

G gave evidence in accordance with his affidavit. His affidavit was filed very late in the proceedings and after he had had some discussions with the father’s legal practitioner. He was clearly troubled by the evidence he was giving and on the motion of the father’s counsel, with the consent of counsel for the mother and the Independent Children’s Lawyer, the court was closed and an order made, preventing the parties and G from discussing his evidence other than the context of proper forensic use in terms of the proceedings and in terms of the parties and their legal practitioners communicating in respect of these proceedings. I find that G remains attached to his father, but struggles to reconcile that attachment and the demands made upon him by his own beliefs and the Exclusive Brethren community.

181.

Bearing in mind the late filing of his affidavit and his initial unwillingness to become a witness against his father, I have concerns about the weight I ought to give to his evidence is some areas.

182.

G is aged twenty two and he had regular contact with his father from separation. This included a significant discussion with him in about

early September 2006. His views in relation to the time that his younger siblings had with the father has changed over the last few weeks. This arises out of a change to his circumstances, which he said was following the ending of a relationship of his. I am able to infer that G was under enormous pressure to comply with the wishes of the Exclusive Brethren community because he was previously more willing to communicate with the father. Over the last few weeks his views have changed and he has adopted a view consistent with the father not seeing the children. I do not accept his evidence in that regard.

183.

When asked if he would support an order with regard to not discouraging the children from visiting their father, he said he would honour such an order and he seemed far more positive in that respect than was T.

Evidence of M

184.

M, one of the adult children of the parties, gave evidence in accordance with her affidavit. She said that the elder girls, E and ME had expressed to her that they did not wish to visit their father, as had J. She was made aware of J’s comment to Mr CH that “contact was ok”. Her evidence is that she agreed that a woman is subjective to men in both family and religion and that children are subjective to their parents.

185.

Her evidence was that, prior to separation, she and her father were very close. They supported and leant on each other. She had difficulty now acknowledging the support her father had given her mother when her mother was ill. Since separation, she had little to do with her father for at least three months but not since that time. She says her father is not the man she grew up with.

186.

There is an issue about a statement allegedly made by C to M, as set out in paragraph 6, 7 and 8 of M’s affidavit filed 17 November 2005, where it is alleged that the father had told C that he would “kill [her]”, “mum’s fat” and “I’m going to kill [the mother]”.

187.

I accept the evidence of M that those words were said. I do not accept that they were words used by the father and I infer that they were words provided to C by some other person. This is particularly so in light of the disclosure allegedly being made some two days after returning from visiting the father. M’s evidence was that in September 2005 she was not discouraging the children from visiting their father. Nor was she was not aware of anyone suggesting that the only reason the children should see the father was to encourage him to repent.

188.

She said that she and her husband had made it well known that they do not want a relationship between themselves and the father. I accept that that is her view but I infer that it arises as a consequence of her religious upbringing and pressure from her community.

189.

She was asked whether she would assist her mother in complying with an order not to discourage contact between the subject children and the father. She agreed she would support her mother. She also agreed that if there needed to be a person to facilitate changeover she would do so, provided she was not required to speak with her father.

Evidence Mr S

190.

Mr S is M’s husband. He gave evidence in accordance with his affidavit. He is a member of the Exclusive Brethren and appears fixed in those beliefs. His evidence is coloured by the beliefs and his strong support of the mother in particular and his community in general.

191.

He will not support a relationship between the children and the father. Mr S made it clear that he would discourage the children from seeing their father and he affirmed this at paragraph 19 of his affidavit filed 20 March 2006 as follows:

The Brethren are law abiding and therefore, as part of the Brethren community, I can say that we would encourage the children to go on contact if it were ordered. However, such encouragement would encourage the children to “put up with contact” rather than encouragement to enjoy contact or to redevelop any relationship with [the father].

Evidence of W

192.

W (another of the parties’ adult children) gave evidence in accordance with her affidavit[33]. She had a good relationship with her father prior to separation and would not encourage a relationship between her younger siblings and the father in view of the present circumstances. She said she would assist her mother in complying with any order not to discourage the father spending time or living with the children. She did not know if she could assist in changeover.

193.

Her evidence need to be cautiously treated in the light of the comments I have already made in respect of the pressures that I infer are placed upon members of this community to conform.

Evidence of Mr A

194.

Mr A, W’s husband, gave evidence in accordance with his affidavit [34]. In particular, he confirmed his views as set out in paragraph 11 of that affidavit:

11. If [J] ever came to me and said he wanted to have contact with his father then I would counsel [J] that the only appropriate reason for contact with his father would be to encourage him to repent.

195.

Mr A said he had known the father for about seven years but lost faith in him because he left his wife. He had not spoken to him to hear his version of the events and he seemed, sadly, content to allow a seven year old and twelve year old to carry spiritual messages from the Exclusive Brethren to the father. He felt this was the right thing to do. He and his wife have a four year old daughter called B, who has not met her maternal grandfather.

196.

Mr A recalled that J had called his father a “jerk’ [35]. He could not recall how he responded to that conversation.

197.

Mr A and Mr S both indicated in a response to a question from the counsel for the father that they would not refrain from discouraging the children from spending time with the father.

The adult children’s evidence, generally.

198.

It was clearly an emotional struggle for all of these adult children to give evidence in these proceedings. Subject to the particular comments made above, all of the party’s adult children endeavoured to give evidence truthfully and it is clear that all of them had a deep love and affection for their father up to the time of separation. They are people who care deeply about family but are prevented from retaining a relationship with their father as a consequence of the teachings of the Exclusive Brethren, as well as out of love and respect for their mother, who they believed was abandoned by their father.

199.

These adult children of the parties all appeared to be decent people who are deeply troubled by the circumstances that had overtaken their family and struggle with what they see as a terrible situation.

Evidence of Ms F

200.

Evidence was given by Ms F, the Acting Principal of the local Primary School in accordance with her affidavit filed 26 July 2006. She is an experienced teacher who has worked for many years in the Tasmanian Education Department. There are underlying values that apply to teaching which are applied in Australian schools and which are as set out in Exhibit “F5” as follows:-

201.

Teachers are given continuing teacher education and these values underlie that education.

202.

In late 2004 or early 2005, the father attended the school and showed interest and concern about the children’s academic progress.

203.

There was a question about the mother’s response to J’s change in academic levels, exhibited by the results of external examinations completed at the end of Grade 5 as compared to those at the end of Grade 3. The mother’s response was that he ought not to be judged on that examination result alone. This view concurred with the view of this witness and J’s teachers.

204.

She said that the local Primary School had been teaching students for about one hundred years and she believed it had a fine reputation. It had a number of children of the Exclusive Brethren as part of the student population. Last year, Mr H, a past member of the Exclusive Brethren, was teaching music in term 3. This witness was approached by elders of the Exclusive Brethren church, who said they felt uncomfortable with their children being taught by someone who was ex-communicated from their church. Alternative arrangements were made for the Exclusive Brethren children during that time. Mrs F’s evidence was that all children were treated the same at the school.

205.

As to the child J, she said that he had two friends who were both Exclusive Brethren and that he was not always switched on to learning.

206.

She agreed that class sizes of six or seven students would be better in terms of one-to-one education for J, but he would be exposed to less diversity and less social interaction in such an environment. She believed his class last year, consisted of about twenty-seven or twenty-eight students. She also said that numbers impact on outcomes but that the real impact is the quality of the teacher.

207.

Her evidence was essentially unchallenged.

Evidence of Ms D.

208.

Ms D gave evidence in accordance with her affidavit filed 26 July 2006. She was J’s teacher when he was in Grade 6 in 2005. She was a grade 5 and 6 classroom teacher. Miss D was cross-examined about the discussion she had with J in term 3 of 2005. She could not recall precisely what was said but indicated that she quite often sat with J as he did not talk much. She had developed a good rapport with him and he volunteered to her that he had spent time with his father.

209.

She said that J was an introverted boy, who lacked some social skills and social graces. (By this, she meant that he poked fun at other children).

210.

J’s friends were Exclusive Brethren children. In the curriculum, Miss D sought to broaden the children’s social interactions. She said that J found it difficult to get on with other students.

211.

She was asked as to whether Mr H, who taught some students in term 3, was called “Mr H” or “Mr M”. Her recollection (which accorded of that of Mrs F) was that they had only heard him called “Mr H”.

212.

J regularly did not do homework and Miss D put notes in his homework book in that regards. She was also asked about class sizes of six or seven students and her response was “wow – aren’t they lucky”. She said that small class sizes would be good but that the benefits of this still depended upon the teacher. She said of her observations of J that he did not interact with non- Exclusive Brethren children. There was no substantive challenge to her evidence.

Evidence of Ms S

213.

Ms S gave evidence in accordance with her affidavit. She is the campus director of the O School at L. She said this was analogous to the school principal. It is a small school with about forty students. It has another campus in D and a further one in Hobart. There are two administrators who help with the management of the three schools. They are not members of the Exclusive Brethren. The school is managed by six Exclusive Brethren trustees, Mr WP (CEO Trustee), Mr W, Mr SR, Mr KT, Mr CT and Mr ON. Mr ON is presently an “inactive” trustee. Mrs S graduated from University in 1986 and has taught continuously since 1987, except for two periods of six months maternity leave.

214.

The beliefs of the Exclusive Brethren do not encourage or allow university education. The school has some teachers’ aids, who are generally members of the Exclusive Brethren. The curriculum includes bible studies, which are taught by Exclusive Brethren community members, in one, one hour session per week.

215.

Her aim, and the aim of the school, is to enable the children to reach their potential, both academically and socially. There is no in-house or externally-employed counsellor or guidance officer. The evidence of this witness is that O was a small school and she normally dealt with pastoral care.

216.

Of L, Ms S said she was quiet, mature, close to her friends, takes on responsibility and was a good leader.

217.

There are thirteen students in L’s class. Her class teacher is Mr R, who is a science teacher.

218.

The school has, over the last two years, become a five day a week school. Prior to that, the curriculum included an element of home schooling.

219.

The question in relation to this school is the social interaction of the children, as it is a school solely for Exclusive Brethren. Upon his arrival at this school, J exhibited immature behaviours, found it difficult to concentrate for long periods of time, was constantly in and out of his seat, interrupted lessons and disrupted other students. He has improved markedly since that time and Ms S described him as a well-adjusted young man. She could not speak more highly of his development.

220.

Ms S was aware that he does not see his father and stated that the mother had informed her of this and possibly also by other members of the Exclusive Brethren, who sat on the governing board.

221.

As distinct from Mrs F, she was not concerned about the children arriving a few minutes late for school. This occurred about once or twice a week. She said that first period each day was home period and that it was not a major issue if the children were a little bit late to this.

222.

The children at the school do not socialise with non-Exclusive Brethren children and they are not encouraged to do so. The school does not compete against other schools in sports or other activities. They have activity days at the other two campuses which, at times, involve debating.

223.

Ms S is not, nor has she ever been, a member of the Exclusive Brethren. She is an English teacher and also a Physical Education teacher and has a broad experience as a teacher in private schools. That evidence of her experience was not challenged.

224.

The curriculum of her school is essentially the same as that used in State schools. The school does not presently include a year 12 at this stage, as the school is still new. It is intended for this to occur next year

225.

L is presently in year 10 and Ms S has known her since she commenced at the school in year 8. Ms S said that she believed that the level of education provided by this school was superior to that of regular schools because of the small class sizes and the individual approach. The school runs a “VET” vocational course for past students. ME attends this training. It involves attending the school once per fortnight in the first year and having some academic training in the workplace in the second year. Ms S describes ME as mature, kind and considerate, able to make her own decision, an asset and a leader in the school. If ME completes the course, she will receive a certificate II in business. The school encourages this post school education and has succeeded in having seven of its nine 2005 year 11 students undertake this course.

226.

At school, the TA children seemed close and companionable. Ms S has regular contact with the mother, whom she sees at least two or three times a week and speaks to at least once a fortnight.

227.

In J’s July 2005 school report Ms S observes:

[J] has made huge improvements with approach to learning this year at his new school. He is now very well settled and his concentration has improved. As a result, most teachers have noticed improvement in his performance since the start of the year.

228.

The school has a television and DVD facility. This is used for providing information to the children, such as snippets from the Beaconsfield Mine Tragedy and documentaries on whales and dolphins. The use of the television needs to be approved through the Trustees.

229.

Ms S was cross-examined as to the social development of the children. The witness said she tried to challenge the children to speak in groups, to back up their arguments, to reject bullying and harassment and to feel good and about their ability to deal with the general public. She said the skills of the children the subject of proceedings were quite good in this regard. She said that both L and ME had the capacity, should they wish, or should they be allowed, to undertake tertiary studies.

230.

The teachers gave consistent and sound evidence. I accept their evidence as being accurate and essentially unchallenged.

Evidence of Mr CH

231.

Mr CH is the single expert who has provided two reports referred to earlier in these reasons. His qualifications as a sociologist were not challenged. He has been involved in preparing family reports in family law proceedings since 1981, he was a court counsellor from 1981 to 1986, he was mediation manager of the Family Court of Australia in Tasmanian from 1986 until 2003, he is a counsellor of the Tasmanian Aboriginal Centre (part time) and has been in private practice in counselling and family assessment since June 2003.

232.

Despite his significant experience, he described this as a difficult case. He adopted a strong line to retain the connection between the children and their father, as he was firmly of the view that the well-being of the children deserves such a connection.

233.

I generally accept his evidence and I am satisfied that his opinion should carry considerable weight.

234.

He was cross-examined by the father’s counsel on three options:-

Option 1 – that the children stay with the mother and have no relationship with the father;

Option 2 – that the children stay with the mother but there be detailed orders, as set out in his report, with developing and accelerating time spent with the father or

Option 3 - that the children live with their father and spend time with their mother.

235.

In cross-examination, Mr CH said that the first option was the easy option and removed the children from the conflict. With regard to the second option, he added that the orders made in these proceedings ought to be interim orders to allow the Court to review the time the children spend with the father and, if it was not occurring, or was not consistent, to consider whether the children ought to live with their mother. He then said that whilst it was a convenient option, did not meet the best interests of the children.

236.

In terms of “the children” he was specifically referring to all three, C, J and L.

237.

I am cautious about his evidence in regard to his recommendation that there be interim orders for three to four months instead of six to twelve months and that these be reviewed after the evidence had been completed but before delivery of reasons, with the inevitability of further evidence later on, including further evidence from him and, presumably, from the parties. This would inevitably lead to another lengthy trial with all that that entails to the parties and, more particularly, the children. With the interim orders and the subsequent need for further evidence and reports, this process could extend proceedings by between one and two years. By that time, L would be approaching 18, J 14 and C 10.

238.

These children face an enormous challenge in that if they are separated from their mother and the church, they will be left with a stark decision when they get older. That is, to remain with their father and be alienated from the members of their church including their mother, siblings, spouses of siblings, grandparents, nieces and nephews, their general community and their school friends.

239.

Mr CH expressed a view, which I accept, that the behaviour of family members and other members of the Church in discouraging the children from spending time with their father and counselling them to “put up with” such time amounted to psychologically cruel, unacceptable and abusive behaviour towards these children. He went on to say that the emotional removal of the children from their father is at “the highest end of psychological abuse of them”. From Mr CH’s perspective, this approach was not designed to be abusive, these intentions not naive but misplaced. I agree with his analysis in that regard.

240.

In interviewing the mother, he said her beliefs are real and sincere. He questioned whether an order restraining her from not denigrating the children would be such that she would be able to comply with it. I disagree with him in that regard. I accept her evidence that she would comply with an order not to denigrate the father in front of the children. I agree with him, however, that she would not in any way encourage or support the time the children spent with their father.

241.

His evidence of the Exclusive Brethren was that it did not adopt the structure of a nuclear family unit but, instead, that of a network and if any person counselled against spending time with the father (particularly a male) such advice would be significant and influential. He said that there needed to be something positive to affirm the times the father spent with the children.

242.

The third option canvassed by Mr CH is a change of residence to the father’s home. In terms of this option, Mr CH was quite opposed to it. He said:

“I don’t think that it is fair to gamble with the children’s lives”.

243.

He spoke strongly against this, saying that it may be a “too high a price to pay” and “too much of a gamble”. His reasons for this view were that the children would be away from their faith, away from the close relationships shared with their siblings, away from relationships with significant adults, away from the relationship of their network of friends and away from their school environment. They would have to adjust to life with their father and to his new partner/wife Ms M (and in this respect it was the view of the expert that she would present a significant obstacle to the restoration of the relationship between the children and the father). This is not in any way to criticise Ms M or the father but simply a statement of the circumstances as they exist.

244.

On the evidence of Ms M and the father, the children would need to adjust to a new lifestyle and religious practice and adjust to the loss or reduction in their relationship with their mother and their siblings, friends and church.

245.

It was put to Mr CH that the Court could have no control over the actions of the adults in excluding or communicating with the children in a negative way. Mr CH said yes that may well be the case, but that was likely to be an unavoidable consequence, regardless of whether the Court considers such behaviour appropriate or not.

246.

He was asked to comment on the remarks made by Ashe J in Plows & Plows (1979) FLC 97-12 where His Honour says at page 78, 801:

“It is the very strength and sincerity of her beliefs which cast doubt on her ability to carry out a course of conduct which she would clearly consider to be deeply wrong. She would no doubt try to accept the Court's directions. But it would be impossible for a woman as plainly sincere as she seems to be not to betray her own feelings when she had day to day care and control of the children. Indeed it would be casting an almost intolerable burden upon her. Her whole life revolves around her Church and its members. One could hardly forbid her to have members of the Church visit her when she had the children; or never to discuss Church or religious affairs with other people in the children's presence. By her own choice the only people she associates with are members of her Church; and it would be extraordinary if those members, holding so strongly to their beliefs which to them are the most vital aspects of their life (and I do not denigrate them for it), would not in the presence of the children betray their sorrow and concern that the children cannot walk in their ways”.

247.

This was asked in relation to the question of whether the mother would find facilitating contact between the father and children intolerable and the need to find a dimension in her religion to allow her to autonomously practice her beliefs whilst also allowing the father to have some involvement in his children’s lives. Mr CH expressed a hope that this could occur. I accept that the mother would do her best to comply with orders of this Court, but that would need to be considered in the context of the children remaining in a community where they would likely be influenced against spending time with their father. The impact upon the mother in this case of the children spending time with the father would be as was described above in Plows.

248.

Mr CH said that on his reading of the case law, he did not think such an approach was encouraging. From his evidence, I determine that the views of the children are that they want to see their father and have a relationship with him, but are unable to freely exercise that view because of their fear of the impact of this upon mother, the family and the community in which they live. Further, the children may fear the direct conflict such an approach would present to their religious beliefs. The children are in an impossible dilemma. Mr CH said the expressed views of the children were not soundly based, as the children did not have the opportunity to exercise a real choice within their current environment. He also gave evidence that the children’s views are not an absolute guide as to what arrangements may be in their best interests.

249.

Mr CH said that the authority of the Court to make orders requiring them to spend time with the father may allow lift the emotional burden from the children and allow them to spend time, guilt-free, with the father in the window of opportunity which exists between now and when they are able to make a choice to either remain within the Exclusive Brethren or join the father. It was raised during cross-examination of Mr CH as to who should inform the children of the orders. His view is that it should be through the office of the Court, if possible the Judge in concert with the Independent Children’s Lawyer. I accept his evidence in this regard and I find that the younger two children once settled enjoy and get benefit from the time they spend with the father.

250.

In that context, he stated the children had not objected to seeing the father in preparation of the Family Report. Each child bears an unreasonable burden and shares a faint hope that their father will return to the family and the faith. It is likely that the marriage of the father to Ms M will extinguish that hope.

251.

In cross-examination, Mr CH remained of the view, as set out in his recommendations, that the children should spend time with their father on an increasing and accelerating basis. Further, that the children, fortunately, have significant male role models within the Brethren community but that it remain integral for them to know their father because, in rejecting him, they are, in many ways, rejecting a part of themselves.

252.

Counsel suggested that these issues were not solely attributable to families of the Exclusive Brethren faith. Mr CH agreed with this statement, but said that Exclusive Brethren added a further layer of adjustment for the children. He said that option 2 is the safer approach.

253.

Mr CH interviewed the children once in September 2005. He has spoken to the parties on the telephone, particularly in preparation for the addendum report in 2006. He has not seen or spoken to the children or the parties since March 2005.

254.

Counsel for the mother challenged Mr CH in relation to his expression that the children wanted a relationship with the father. I accept the evidence of Mr CH in that regard in that the children want a relationship with their father but it is limited by the factors I have referred to above.

255.

In terms of L, Mr CH was asked for his opinion on the likely consequences if there was no order requiring her to see her father, but the door be left open for her to do so if she chose. Mr CH expressed a view that L does not have an independent view in this regard, notwithstanding that she is quietly mature, has a close group of friends, is noted as a leader and speaks in public places. He believes that children can devote themselves to the Exclusive Brethren faith but he struggled to accept that it applied to the exclusion of the father. This is notwithstanding that both the mother and father have brought the children up according to the tenets and practices of the Exclusive Brethren.

256.

There was a question as to whether this was an “either or” decision. Mr CH said it could be reconciled. That is the very challenge faced by the Court in these proceedings.

257.

Mr CH gave evidence that he interviewed all the parties’ adult children and their partners. He did so to assess the cohesiveness of the family belief system. He determined that there seemed to be some equivocation on the children spending time with the father. As an example, he said that W deferred to her husband for his response before voicing her own. He said he thought the children would not be held accountable or blamed for spending time with their father. He said that the family was generally cohesive.

258.

Mr CH observed that all the family seem to be devoted and committed to their faith and he went on to say [36];

5. The issue of religious faith features prominently in this assessment and remains central to the lives of all concerned even though there would appear to be a diversion between [the father] and other members of his family in the understanding of how “faith” is understood in practice. It is understood that it is [the mother’s] preference that the Exclusive Brethren not be involved in public forum such as courts, the reality is that the Church is already involved and will continue to do so in the future, given the significance of faith and practice to family members.

259.

Religion is an integral part of life for each of the members of the family.

Mr CH said that each of the children are committed to this particular way of life and because of that, it is the family’s belief that there can be no room for the father at a cognitive level. His evidence is that the stress of the children having contact with the father in breach of their faith is detrimental to these children but noted, however, there is no option without negative consequence. If the children are left with the emotional responsibility of leaving their father, they have had the elevated responsibility of that withdrawal. On balance, his view is that the lesser damage is for the children to spend time with the father.

260.

The evidence of Mr CH is that the paternal relationship is a fundamental relationship. This relationship had value and relevance prior to separation but it is being put to the children that there is no value or no relevance subsequent to separation.

261.

Mr CH had seen in Aboriginal communities the pain, suicide and drug dependency of children who had been separated from this fundamental relationship.

262.

The father has expressed that he wishes to “liberate” his children [37]

22. If the father goes down this pass and focuses on a battle for their “souls” rather than spending his energies on relationship between the parent and the child, it would add another layer to the issues with which the children have to deal. If he exposes them to his lifestyle, contrary to the teachings and done in a deliberate way it would detract or interrupt the ability of the children to reconnect with him.

263.

If the Court chooses to change the living arrangements of the children, Mr CH indicated some reservation about L as to whether she would be part of that application. Her inclusion in the application for the children to live with the father is problematic. If there is to be any such change, it will be at a time when L is sixteen or older. Normally, he said, her views would be of significant weight but, as her views were created in this particular family environment, the Court ought not to give great weight to them. The Court finds that a difficult concept to accept. This must be seen in the context that Mr CH says the Court ought to experiment with the children spending time with the father for three or four months then undertake an assessment and then possibly change residence. At that time L may be closer to her seventeenth birthday than her sixteenth birthday. Mr CH’s view was that because of the nature of the community in which she currently lives, L would be more amenable to direction from the Court. The Court has concerns that this may well be a naive approach in terms of the likely compliance by a mature teenager to such orders or an expression of hope rather than expression of what is likely to occur.

264.

In his evidence, Mr CH said that he was involved in a similar dispute some two years ago where a mother had left the Exclusive Brethren and that it was possible to move from one world to the other as it was an adult issue not a child issue.

265.

Mr CH was questioned about an eventual residence of the children with the father and the consequences of the children, eventually, being withdrawn from by the Exclusive Brethren community. He agreed that it would be devastating but it would be an adult decision. That may well be the case, but the effect on the children would remain. His preferred approach is for increasing time spent with the father, as set out in his report, which would initially be stressful for the children but beneficial in the long term. However, he would want some enforcement mechanism, such as a threat of changing residence in default of compliance, to ensure that the arrangements are complied with. I understand his evidence in that regard, but I do not accept his suggestion that the Court need adopt that course, for the reasons set out above. That would be wholly unsatisfactory in bringing an end to the proceedings. If such a situation arises, the contravention procedures under the Act are such that a change of residence is one of the considerations. It is the evidence of Mr CH that such an approach as outlined by him represented “the sword of Damocles” and would help overcome the view that the relationship of the father would not go ahead, as that is a supervised adult view.

266.

In paragraph 23 of that report Mr CH observes:

23. There are no compelling solutions to a matter such as this, but [the father’s] statement, “I haven’t done anything wrong”, and “I am doing this because I love my children” is suggestive of a desire for moral vindication, and a gesture of commitment that is unlikely to be recognised as such by the children.

267.

In that report, Mr CH reiterates that the proposal for the change of residence cannot be supported. He somewhat backed away from this during the course of cross-examination, however, I prefer his initial view of the approach.

268.

He observed in terms of psychological abuse the following:-

The children are told to go but are told not to enjoy contact. They are not to enjoy that time they spend with their father. The witness said this is an abuse of the child.

The children are expected to lead their father back into the marriage and into the faith. This, he said, places adult responsibilities on the children which is unreasonably making them moral guardians of the parents. He said that is abusive. He said the children are set up to fail in that respect.

He went on to say that a parent who holds unconditional affection of the child is abusive. Children should be free to have a relationship with both parents and should be entitled to have a childhood.

269.

Mr CH was apprised of the evidence given on behalf of the mother that it was the belief of the Exclusive Brethren that children should be in subjection to adults. He said that this must be read in context of the special place children must be given according to the scripture of Matthew in the Holy Bible, as set out at paragraph 87 of his expert report, and of the responsibility to honour the stewardship of children.

270.

He also gave evidence that if the children were placed in the full time care of the father, their religious upbringing would be a matter for him to determine. The Court finds this a somewhat simplistic approach, bearing in mind the upbringing of the children until 2003 and the impact of such a change in terms of their relationships with their mother, grandparents, siblings, nephews and nieces etc.

271.

Mr CH gave evidence that it would be of value for the children to be informed of such a decision by the Court with their family around them and in circumstances where they had the support of a family consultant (not the single expert) and the Independent Children’s Lawyer.

272.

In terms of the weight that should be given to the views of the children,

Mr CH asserted that no great weight should be given to the views of any of the children, not even to the views of L, who will be sixteen when this matter is determined. Whilst L is a member of the Exclusive Brethren and would be more likely to comply with orders than would some other children, her views, at that age, must be given significant weight.

Evidence of Mr C

273.

Mr C is the children’s maternal grandfather. He is a very dour and determined man with fixed resolve and unbending views. This is reflected in his affidavit evidence and in his evidence during the hearing. He swore an affidavit filed 20 March 2006 where he says that he has a close relationship with the mother and his eight grandchildren and three great grandchildren.

274.

Mr C was ill at the time of the trial in October 2006 and the hearing was stood over, part heard, for him to give evidence in November 2006.

275.

He has known the father for thirty years. He says that he had a close relationship with the father and great respect for him until separation in February 2003. For about ten months after that period of time he attempted to reconcile the father with his family and his beliefs. Mr C said that as the father had withdrawn from the community the community withdrew from him and he was thus in effect “excommunicated”. Mr C did not have the insight to see that the father was leaving his wife and the community but not his children. Notwithstanding this, Mr C’s view is that the father was welcome back into the community should he “repent” and “recommit himself to the family and to the Brethren”.

276.

Mr C is an unofficial elder of the Brethren and has lived the whole of his life as a member of the Brethren. His evidence is:-

(a) The Brethren grew out of the movement of the late 1820’s in Ireland due to a “conviction that the condition of the established churches were no longer adequate to spiritual need”.

(b) That the origins and development of the Brethren as set out in an article entitled “The Brethren”: A Current Sociological Appraisal by Bryan R Wilson. A copy of that document is attached to the single expert report.

(c) The principle of separation is a crucial feature of the Brethren, that means separation from persons who are not members of the Brethren fellowship and who therefore cannot participate in the breaking of the bread ceremony.

(d) Brethren believe they must separate from those who the Brethren believe are impure in faith and morals. This is the principle separating from evil and an essential basis for the true Christian unity and is taken to apply to separation from all forms of human association which do not have priced at their head, and also from those who are involved in the worldly practices and who were therefore considered to “dishonour God”. Only those who act together and who “separate from” “evil” are able to join in common fellowship [38].

(e) Brethren believe that they must separate from those who the Brethren believe are impure in faith or morals.

(f) From a practical point of view this means that practicing Brethren are not able and do not associate with non-Brethren other than as may be required for work or for the provision of appropriate professional services.

(g) Brethren tend to largely operate family businesses and it is necessary to employ non-Brethren or to have non-Brethren as customers and to deal with non-Brethren in associated businesses and enterprises.

(h) However, Brethren do not develop personal relationships with non-Brethren which extend beyond the workplace or professional nature of the relationship.

(i) Brethren believe that eating together is an act of fellowship and therefore they should eat only with those with who are Brethren.

(j) As modern technology has developed, Brethren have had to define an attitude in relation to such technology including radio, television and more recently computers and mobile phones. Brethren do not believe in the ownership or personal use of such technology. This is another practical reason as to why Brethren do not visit the homes of non-Brethren or socialise with them.

(k) When it is perceived that a member of the Brethren has acted inconsistently contrary to our principals and beliefs then we have a duty to withdraw from that person.

(l) When a person has been “withdrawn from” and “put out” that person is to be treated as no longer Brethren and consequently the aforesaid restrictions on eating, socialisation and general association apply to that person as to any non-Brethren.

(m) The obligations to separate are a cardinal principle of the Brethren.

277.

The evidence of Mr C was the Brethren saw the father’s separation from the mother as a serious issue. There was no room for the father to remain within the Brethren and, I infer, to have a relationship with his children or them with him.

278.

He said that is part of his beliefs and practices and that this commitment to his way of life transcends all social obligations, including even those of the family. The effect of his evidence is that, from the Brethren perspective, there is no benefit or value in a relationship between the father and the children. The only legitimate basis for a member of the Brethren to have an ongoing contact with the father is to encourage them to repent. This applies to all members, including the children under the age of eighteen years.

279.

Mr C says that ME and L have expressed views that they do not want to see their father. He says that these are their own wishes. I do not accept his evidence in that regard. I find that their views are, if not wholly, significantly influenced by the expressions of their family and other members of the Brethren, and I infer that those views are expressed by

Mr C as a male, an elder male and an unofficial leader of the Brethren.

280.

He gave evidence in chief in relation to “subjection”. He said that in terms of women, this meant that the man was the head of the home but does not “Lord over” his wife. He is an influence or source of protection and he is responsible for the wife and children. He defined subjection as meaning “submissive”. He was questioned in relation to the members of the Exclusive Brethren who took out a conference room at a nearby hotel during the hearing of these proceedings in Hobart in October. He did not know who paid for the conference facility and stated that he had only attended a number of meetings after the first day’s hearing.

281.

He was asked if an order was made that the mother facilitate and encourage the children to see their father whether he would support such an order and he said he would. His idea of support is to say the words but not provide positive encouragement. His evidence was generally in terms of that contained in his two affidavits.

282.

I find that he would comply with the Court’s orders and urge others to comply but would not provide any positive reassurance to the children that they ought to spend time with their father.

Generally

283.

At the conclusion of the hearing on 12 October 2006, an oral application was made by the father for a change in the order made in the Federal Magistrates Court on 12 December 2005 for additional time spent with the children. To the credit of both parties, they moved, with the father seeking four hours on 28 October and the mother saying she would consent to two hours on 14 October and two hours and 28 October. Based on the evidence before me and on the recommendation of the Independent Children’s Lawyer, I made an order in those terms.

RELEVANT MATTERS PURSUANT TO SECTION 60CC

280.

The first question I must determine is whether the presumption under s61DA of the Act applies. The legislation requires that it apply unless it is rebutted under s61DA(4) of the Act and if it would be in the best interests of the children that there be an order for equal shared parental responsibility. The mother submits that the presumption ought to be rebutted and that the court makes an order that the mother have sole parental responsibility. The mother submits that such a presumption is fundamentally unrealistic, bearing in mind the specific facts of this matter. The father submits that there ought to be an order for equal shared parental responsibility and that the presumption should apply.

281.

In determining both parental responsibility and parenting orders generally, the Court, as set out above, it obliged to consider the best interests of the children as the paramount, but not sole, consideration.

282.

It is not for the Court to determine whether one religion is preferable to another religion or, indeed, a religion over no religion. In terms of the findings of fact, I refer to the above and, in particular, I determine that the children have a close and bonded relationship with their mother, who has been the primary carer of them both before and after separation.

283.

Further, that until 2003 the father was a fundamental part of teaching the children the beliefs, to which he now objects to.

284.

I find that the children have close and supported relationships with their siblings, mother, and other members of their families and members of the Brethren faith. These are important to the children.

285.

I accept the submissions of the mother’s counsel that the children are completely aligned with their mother’s perspective and that the major social and cultural inputs received by the children throughout their lives has, and continues to be, in the context of the Exclusive Brethren. Further, it is inevitable that the children have been imbued with the beliefs that there is only way to live is through the Brethren. However, as I found earlier the younger two children settle and enjoy the time they spend with their father once outside the influence of the Exclusive Brethren community.

286.

In terms of the submissions the father, mother and Independent Children’s Lawyer provided written submissions. In these reasons I have highlighted some but not all of those extensive submissions. I have had regard to all the submissions made in these proceedings.

287.

The Independent Children’s Lawyer submitted that any final orders would give notice to the parties of their obligations pursuant to s 62B and s65DA(2) of their obligations including the power to provide for a change of living arrangements or spending time with if they were contravened and as such the orders should be final not interim. He submitted that there ought to be no orders in respect of L and that as part of the material the court ought to give weight to the evidence of the time she spent with the father in October 2006. He otherwise relied upon his written submissions.

288.

Counsel for the mother relied upon his written submissions and said that the orders ought not to extend to L and that the orders ought to be final orders. He submitted that J was at an age that the Court ought to give effect to his views. That is, that he has adopted the faith and principals of the Exclusive Brethren. He submitted that the orders should not be interim orders, but final orders. His client does not oppose the non-denigration orders including non-denigration of religious beliefs.

289.

In terms of the suggestion that the Court make an order that the mother positively encourage the time the children spend with their father, if that is the order that the court makes, I note that this would set the mother up to breach the orders, bearing in mind her strong convictions expressed in the evidence she has given.

290.

He argued that the Court is not in the business of determining one religion to be better than the other. He otherwise said there was a strong bond between the mother and her children. I accept that submission.

291.

On behalf of the father, counsel submitted that no interim orders should be made and that of the three options the only viable option is the third one, that is, that the children live with the father. The first option to not allow the children to spend time with the father would not be in their best interests and would not comply with the objects and principals of the Family Law Act.

292.

The second option, that is that the children spend time with the father, would not succeed as it had not succeeded in the past.

293.

His further submission was that the court had to consider the nature of the religion and the culture and tenets of that religion in terms of how it effects the children’s interaction with their respective parents. He submitted, generally, that the Court should find that the Exclusive Brethren are intolerant, elitist, misogynist and arrogant.

294.

In terms of those submissions, I reject the submission that there is evidence that the Exclusive Brethren are haters of women, for there was no such evidence in these proceedings.

295.

This was not a broad or general enquiry into a particular religious group and rather it is an inquiry to determine what orders to make in the best interests of the subject children having regard to the considerations under s 60CC of the Act. This involved the fact finding process which is outlined in these reason which are focused on the subject children and not a religious group as a whole. In determining this matter I have taken into account the evidence with regard to the nature of the religion and how it affects the children's relationship with their respective parents.

296.

The evidence before me in respect of the religious beliefs of the mother, her family and the children is that of the mother, the children’s siblings, the two spouses of the children’s siblings and Mr C. Mr CH also provides some insight into the religious practices of the Exclusive Brethren. I also have the evidence of the father Mr T and Mr H. The father seeks to submit that I should find the whole religion as intolerant, elitist and arrogant. What I do find, on the evidence before me, is that the practices of the religion, as they affect these three children are “exclusive”. I find that the children have been encouraged to separate themselves emotionally and physically from the father. This is seen in their reluctance to spend time with their father and the letters which were sent to him. I am able to determine that this is not an isolated practice, bearing in mind the evidence of Mr H.

297.

The impact on that exclusive approach on these children is reflected in their ability to continue a strong relationship with their father and other important people in his life such as the father’s new partner and their paternal grandmother. I do not use nor adopt the terms, intolerant, elitist or arrogant. What I do find is that the mother, and those who are supporting her, lack insight as to the needs of these three children in having a relationship with their father. I find that the mother, her family and her community have actively discouraged the children from maintaining a relationship with the father. I find that if orders are made that it is likely that the mother and her family will cease to actively discourage the children from spending time with the father, but will not promote such time. The approach by the mother, the family and the Exclusive Brethren community to the time the children spend with the father was as described in the father’s material in support of his contravention application, which evidence of the father I accept. I have taken all of these findings into account in determining what is in the best interests of these children.

298.

Counsel for the father further submits that it is open for me to find the Exclusive Brethren as a “cult”. I see no reason to make such a finding bearing in mind the focus of these proceedings, as I have already said, relates to the best interests of the children. The exclusive nature of the Exclusive Brethren community has a significant impact on the educational opportunities available to the children including their exclusion from university if they have the capacity to undertake such training. That is a lost opportunity for these children.

299.

Even if the Court were to accept the father's claim that the practices and beliefs of the Exclusive Brethren were harmful to society at large, this is not the issue to be determined in these proceedings. The paramount consideration in this matter is the best interests of the children. I do not find that the removal of the children from the community, in which they were raised and have established their religious and self identities, to be conducive to their best interests. In reaching this determination, I am not required to evaluate the broader impact of the religion upon the social attitudes of the Australian community at large. Instead, I must consider the likely impact of these practices upon the specific children the subject of these proceedings.

300.

I find that the mother and her family will not encourage the children to spend any time with or communicate with the father. I accept her evidence that she will comply with orders made by this Court and that she accepts that, notwithstanding her religious beliefs, she understands that she is bound by civil law, and will obey civil law.

Primary consideration (2)(a)

“The benefit to the child of having a meaningful relationship with both of the child’s parents”

301.

The mother submits that it is unrealistic to expect the children to have a meaningful relationship with the father as the children were brought up as members of the Exclusive Brethren and continue in that practice subsequent to separation. The mother has always been and remains a devout member of the Exclusive Brethren and I accept that as a fact. The father has ceased to be a committed member of the Exclusive Brethren and has been withdrawn from. There is no issue as to that fact.

302.

Similarly, the father is now critical of the Exclusive Brethren and has expressed such criticism both privately and in a public way. That public criticism has impacted upon the mother and her family.

303.

There are eight children of the marriage and five of those remain committed (to varying degrees) to the Exclusive Brethren and presently live their life in accordance with the tenets of that Church. The lifestyle of the father is fundamentally different to the lifestyle of the mother. It is submitted that in these circumstances, it is not realistic to expect the children to live with or spend time with their father, as it puts them in serious conflict with the faith and beliefs.

304.

Counsel for the father submits that the methodology to be adopted by the Court in implementing the fundamental principles under s 60CC(2) is through analysis of the additional considerations under s 60CC(3) of the Act.

305.

I do not accept that as an accurate construction of the law. Rose J in a recent unreported decision[39] discussed the interaction of the primary and additional considerations. He said;

40 Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[40] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.

41 The primary considerations are:

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

(c) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[41]

42 For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the nature of the relationship that a child has with each parent and the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.

43 Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”.[42]

44 Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

306.

In accordance with what I have said earlier, I have to evaluate the extent to which a meaningful and significant relationship with both parents is going to be beneficial and of advantage to each of the children. In coming to the conclusions as I do in relation to the first of the primary considerations I have taken into account all of the evidence before me together with the factors set out in the additional considerations.

307.

It is not disputed that the mother is the principal carer of the three children and that they have had a meaningful relationship with her throughout their lives and will continue to do so. It is the relationship between the father and the children which is the primary focus in this particular case.

308.

There is general agreement that the father had a very strong relationship with his children up to separation in early 2003 and probably for the remaining part of that year.

309.

This must be seen in the context of the difficulties faced by the parties and the children arising out of the father’s separation from the mother and from the Exclusive Brethren. I accept the father’s evidence that he struggled for some time after making that decision. The relationship between the three children and the father has diminished to a stage where the children say that they no longer wish to see him.

310.

I find that the children are committed to their religious beliefs. It is the mother’s desire that these beliefs continue and it is the father’s desire that the children be liberated from those beliefs.

311.

The father gives evidence of the struggle he has had during his life to come to terms with the alienation between himself and his father in circumstances where the father was brought into the Brethren community when he was about five years old. I accept the evidence of Mr. CH that [43]:

“All of the eight children are united in their hope that their father will return home and acknowledge, having had in the past, an important relationship with him, even if at times for the boys it felt a little tense”.

312.

He goes on to observe there has been no effective contact between the children and their father over the last two years[44];

“83. Should the status quo remain there is nothing to shift the weight of moral responsibility from the children’s shoulders to determine the future relationship with one of the parents, when objectively, it is commonly acknowledged that a positive relationship had generally been enjoyed by all the children with the father”.

313.

The essence of Mr. CH’s report is that contact between the children and the father would be of benefit to them, but that this would only be the case if they felt they had permission to do so.

314.

It may be that once the children attain the age of eighteen years they will forgo any further contact with their father, however, the evidence as it presently stands demonstrates that there is a benefit to the children in spending time with the father provided such time is meaningful. The limited time provided over the last two years does not facilitate such a beneficial relationship.

315.

In dealing with this primary consideration I have not forgotten nor neglected the underlying feature of this case, that is, the impact of the children being brought up as members of the Exclusive Brethren faith. I deal with this in detail in these reasons but in coming to the conclusion that there is a benefit to all three of the children in having a meaningful relationship with their father, I have considered those matters.

316.

Whether the opposition to children having a meaningful relationship with one of their parents arises from a particular view of an individual or a view of a community, it cannot stand in the face of Commonwealth laws which impose upon parents an obligation to ensure that the best interests of a child are generally met by having such a relationship with both parents.

317.

This was discussed by Fogarty J in In the Marriage of Horman, where his Honour stated at 75,114[45];

The test of the welfare of the child has to be determined having regard to contemporary social standards, that is, it cannot be a totally subjective test based upon the views or standards of the individual parent, but objective at least in the sense of falling within the wide range of existing social standards.

318.

As such, if a spiritual community puts in place practices or imposes practices which have the effect of precluding the operation of “contemporary social standards”, as embodied in the Commonwealth Law, then those practices ought to give way. This is not to say that I dismiss, or in any way diminish, the relevance of Exclusive Brethren values, beliefs and practices in these proceedings. Rather, I take these into account in my consideration, to be balanced with all other factors relevant to the children’s best interests.

Primary consideration (2)(b)

“The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence”

319.

The evidence of the family reporter was that the behaviour of the children’s mother, siblings, sibling’s spouses, maternal grandparents and perhaps others of the Exclusive Brethren community was “totally unacceptable” and was “cruel and unacceptable and abusive to these children”. He said that the emotional removal of these children from the father was at the higher end of “psychological abuse of the children”.

320.

This is a factor to which I have had regard in terms of the additional considerations. I also have some regard to it with respect to the primary consideration, although the behaviour does not fall within the definition of “abuse” under s 4 of the Act, nor does it fall within the definition of “family violence” within the meaning of the Act. It does, however, fall within the broader scope of the additional considerations with respect to the nature of the relationships between the children and their parents, the ability of a parent to facilitate and encourage a relationship, the capacity of a parent to meet the emotional needs of a child and their demonstrated attitude to the child and the responsibilities of parenthood.

Section 60CC(3)

any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

321.

The evidence before me indicates that the children have expressed views regarding their desired outcome of these proceedings to several people, including the mother, their older siblings and their spouses, Mr C and Mr CH.

322.

Mr CH initially interviewed ME, L, J and C in relation to spending time with the father. An addendum report was carried out in relation to the father’s amended application that the children live with him. The family reporter considered it unnecessary and ‘overly intrusive’ to re-interview the children.

323.

L is the eldest child the subject of proceedings. She is 16 years old and is described by Mr CH as ‘far more reserved and timid’ and ‘pensive’ than [ME]. L expressed the view that she had not spent any time with her father because such conduct was contrary to her beliefs and the teachings of the Exclusive Brethren. Whilst she expressed a hope that the father return to the family, she seemed ‘intransigent’ on the issue of not wishing to have any future contact with the father until that time.

324.

J is presently aged 12 years and will turn 13 in January 2007 and presented to Mr CH as having ‘a rather reserved personality’. He stated that current arrangements regarding time spent with the father were going ‘OK’ but commented that an increase in contact would be ‘like rewarding him for what he has done’. J’s view regarding future contact was that ‘[i]f [the father] wants to see us he could come home and see us.’ It is unclear whether this is indicative of J’s hope that the father will return to the family, or whether he merely considers it an easier arrangement for the father to visit the children at their home, rather than them having to journey to the father’s residence, where they maybe exposed to worldly influences.

325.

C, at 8 years of age, is the youngest of the children the subject of these proceedings. Although she expressed to Mr CH that she did not really wish to spend time with the father, he noted that this ‘appeared to lack force and conviction’ and that it appeared to be ‘based more on the adoption of the family view’, rather than her own.

326.

The respondent mother, in her affidavit filed 17 March 2006, described several incidents where the three children expressed their wish to no longer have any contact with the father. Annexure ‘B' attached to that affidavit is a letter from ME, L, J and C to the father, dated 2 August 2004, informing him of their wish to neither stay overnight at his residence or go anywhere with him, lest they ‘feel unsafe in the surroundings [they] would be brought into.’ The letter also expressed a wish to see the father ‘back home in [his] true position.’ The mother ‘vigorously’ denies influencing the children as to their expressed views regarding contact with the father or as to the contents of the letter. The father did not receive the children’s letter, as they did not have a mailing address for him at that time.

327.

The mother also deposed that J had stated to her on numerous occasions that he did not want to go for contact with the father. On 5 March 2006, the mother suggested that he write a letter to the father explaining ‘how he feels’. This letter is attached to the mother’s affidavit dated 17 March 2006 as Annexure ‘E’. The mother provided J’s letter to her solicitors, instructing them to forward a copy of the letter to the father’s solicitors. She again denies having influenced J in the construction of the letter.

328.

The following weekend, J and C were scheduled to see their father for one hour on Saturday morning. The mother stated that J protested against going with the father. C stated that she would not go if J was not going with her.

329.

In their respective affidavits, both Mr A and Mr S noted that they had close relationships with J and that he had stated to them on several occasions that he did not wish to spend time with his father. Mr A stated that J had referred to his father a ‘jerk’ without any encouragement or suggestion. Mr S deposed to an incident in February 2006, where J hid from his father behind a couch until his father left the premises.

330.

The children’s older sister, M, stated in her affidavit that L was adamant that she did not wish to pursue any ongoing relationship with the father and that J and C had both told her that they did not want to go with the father for contact visits. Further, C had requested that M assist her to write a letter to the father advising him of her view.

331.

Mr C deposed that he had heard L and J express on numerous occasions that they did not want to go on contact with the father. He stated that he had no reason to suspect that this was anything other than representative of the children’s wishes. He also recounted several examples where he had witnessed J and C refusing to leave the home with the father and telling him that they did not wish to go with him.

332.

In written submissions by counsel for the father it was put that “it appears to be a practice of the Brethren church to encourage children to write to their parents who have been withdrawn from.” I infer from the evidence before me that the children have been encouraged by others around them to express views that they do not wish to see their father. In reaching that conclusion I refer to the evidence referred to above, including that evidence of Mr H.

333.

L is aged sixteen and has expressed strong views about seeing the father. Normally at that age, those views would not be departed from. However, in the factual circumstances of these proceedings as set out in these reasons, I believe that, whilst those views are given significant weight I ought not to be bound by them.

334.

Counsel for the father submitted that the views of L where unreasonable. I do not accept that submission. For the reasons set out herein I am not satisfied that the views expressed by L are validly held. In particular I refer to the statements she made to Mr CH, which ought to be read in context with the views expressed by her elder sibling ME in the single expert report.

335.

I infer that the obligations of the adults towards former members who have been withdrawn from apply to children. These obligations have been imbued in L.

336.

With regard to all of the children I am not satisfied that their views are independent and free from the influence of the mother, the extended family or the community.

337.

With regard to J, evidence has been given with respect to his below-academic performance (although there is evidence that he is steadily improving in his new school environment) and that “his maturity has not kept pace with his age”. The Independent Children’s Lawyer submitted, and I accept, that J’s wishes ought not to be given as much weight as L’s. I accept that view.

338.

The father says in his affidavit dated 29 March 2006 that the children’s conduct when alone with him is entirely different to their attitude towards him in the company of other members of the Exclusive Brethren. He submits that this suggests that their expressed views are not indicative of their true wishes. I accept his evidence in that regard and that submission.

(b) the nature of the relationship of the child with:

each of the child’s parents; and

other persons (including any grandparent or other relative of the child);

339.

It is not disputed between the parties that all three children have close and loving relationships with the mother, maternal grandparents and extended family and members of the Exclusive Brethren community. Neither is it disputed that the children shared a similarly nurturing relationship with the father during the marriage. Since separation, however, there has been a significant change in the children’s attitude towards their father.

340.

In his affidavit dated 29 March 2006, the father deposed to his relationship with the child during the marriage as being ‘loving and intimate in nature’. The family was heavily involved with the church and attended weekly activities together. The father involved himself with the children’s schoolwork and assisted in developing a new educational system within the church community. He stated that he would read to the children before bed and spend time with them as they helped him with domestic chores, including tending the garden and general maintenance around the home.

341.

The father also had shared interests with the children, such as the building of models of sea cats, and stated that the children would be ‘open’ and ‘chatty’ with him and would often vie for his attention. He noted that because the family was so large, they achieved a ‘cohesive team environment’ and enjoyed many happy times and ‘much love and commitment’ together. The mother acknowledges the close bond the father shared with the children, particularly with L, and that he was loved and respected by them up until separation.

342.

The father agreed that following separation, his relationship with the children the subject of proceedings had been strained. He recounted one occasion on 11 March 2006 when C referred to him as ‘wicked’. He stated that he felt as if the children had been ‘turned against me’ and fears that ‘they are not able to exercise their free will and choice to have contact with me.’ He attributes this to the teachings of the Exclusive Brethren, as well as the limited time he was permitted to spend with the children. This was further complicated by such visits being supervised by members of the Exclusive Brethren, including the children’s maternal grandparents. The father stated that the children were often ‘closed, reserved and withdrawn’ at the commencement of the hour, but that they enjoyed spending time with him once they have ‘settled into it and gained confidence in my presence.’

343.

As noted above, I accept the evidence of the father in this regard and am able to infer that the children are somewhat liberated in their interactions with their father when not overshadowed by the influence or suggestions of other Brethren members.

344.

The two occasions when the children spent time with the father in October 2006 give some scope to accept that at least C and J continue to have a close relationship with the father. In terms of L it is of concern that her reaction to spending time with the father was extreme and yet, this was a person with whom she had a close and loving relationship up to 2003.

(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

345.

The father gave evidence that he would ensure that the children maintained a relationship with the mother. He stated in his affidavit that,

[w]hilst I have different views about the care of the children I am still tolerant of [the mother’s] involvement in their lives. To this end I would be proposing the usual terms of contact ... to ensure that the children maintain contact with their mother.[46]

346.

The mother stated that she could not encourage the children to maintain a close relationship with the father, as this was contrary to her beliefs. She conceded, however, that if a court order was made for the children to spend time with the father, she would respect it and encourage the children to go in so far as she was able, but noted that she would not discourage the children if they chose not to go. I also note the mother’s evidence that she has told the children that their father loves them and that she has not demonised him to the children.

347.

It was Mr CH’s evidence that the mother's beliefs are “genuine and sincere”. Notwithstanding this, however, he questioned whether she would be able to comply with an order providing that she not denigrate the father in front of the children.

348.

I do not agree with Mr CH that the mother will not comply with the orders not to denigrate the father in front of the children. In giving evidence the mother endeavoured to be accurate and truthful. I accept her evidence that she will not denigrate the father in front of the children. I accept the mother's evidence that she would respect and comply with any court order but that she could not, and would not, encourage the children to continue their relationship with the father. This finding is consistent with the mother's evidence regarding previous contact between the children and the father in October this year, in which it is clear that she did not oppose the children seeing the father, but equally clear that she did not encourage them to do so.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

349.

The effects upon the children of separation from the mother are palpable. The circumstances of the children are inextricably tied to their faith and membership of the Exclusive Brethren. Not only do the children share a very close bond with the mother, but also with their older siblings and extended family. The church community, also, offers a stable and supportive community for the children, within which they have been raised since birth.

350.

In this matter, it is not as simple as saying a change in the children’s circumstances to live or spend time with the father would result in a decrease in time spent with the mother and extended family. The nature of the children’s religious system means that such a change may result in the complete removal of these significant relationships from their lives. There was conflicting evidence before me as to whether the children would be socially isolated or withdrawn from if they complied with court orders requiring them to socialise with the father. I am satisfied, however, that even if this were not the case, separation from the mother would nevertheless force the children to confront conflict within themselves as to the tenets of their religion and their relationship with the father. To them, the two cannot coexist. To place the children in such a position is of particular concern in relation to J and C, who are still at such an early stage in their emotional development.

351.

In contrast, separation from the father would have a less indelible effect upon the children. This is not to say that the children do not share as significant a bond with the father as with the mother. The children were very close to the father during the marriage and are likely to derive much benefit from maintaining an ongoing relationship him in the future. It must, however, be borne in mind that the children have had very little contact with the father over the last 12 months. Notwithstanding the interviews for the preparation of the Family Report, L has not seen the father for the whole of 2005 and 2006, except as set out above and that was not entirely satisfactory. Moreover, the father has evinced an intention to “release” the children from the teachings and lifestyle of the Exclusive Brethren. This would involve exposing the children to worldly influences not permitted by their faith. On Mr CH’s evidence, this is likely to have a traumatic effect for the children, as they struggle to reconcile their beliefs and values with those of their father. Such distress is certainly supported by the father’s evidence of his own experiences following his departure from the Brethren lifestyle.

352.

The distance between the mother's residence in N and the father's residence in D poses some practical difficulty and expense in allowing the children to spend time with both parents. The drive between the two locations takes roughly an hour to an hour and a half each way. In the past, the father has undertaken this travel to see the children.

353.

Evidence was also given that if the children spent weekends with the father it may involve them missing religious observants on Sundays. I do not see this as a practical difficulty, as it is not necessary for the children to be involved every Sunday.

354.

There may be a problem, in terms of the children’s requirement not to share meals with people who are non-Brethren, however, the evidence of the father is that he will put in place arrangements to enable the children to eat separately.

(f) the capacity of:

(i) each of the child’s parents and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

355.

It is not contended that the mother is unable to provide for the emotional needs of the children. It is, however, the father's argument that the mother is unable to provide for the children’s emotional and intellectual needs because their religion does not permit the children to pursue tertiary education. I have heard the evidence of Ms S, however, and I am satisfied that the children receive a sound primary and secondary education, with the option to attain vocational skills in various professions. The children’s older sister, ME, is currently undertaking further study to obtain a Certificate II in business. The children’s current school encourages students to pursue this training.

356.

What is of concern is that if these children have the potential to attend University in their current circumstances it would not be an option available to them. It is only an option if they are no longer members of the Exclusive Brethren. I do not propose to make an order in terms such as that.

357.

In contrast, the father made several comments in the witness box and during his interview with Mr CH, which causes me to query his ability to meet the emotional needs of the children throughout their potentially distressing transition from a conservative lifestyle within the Brethren community to a more “worldly” life with the father.

358.

The father acknowledged that a change in the children’s residence would displace them from the support of close friends and family in the Exclusive Brethren community and expose them to influences not permitted by the religion. He conceded that the children would be likely to struggle with this. He also stated in cross-examination that he did not know what he would do if L refused to spend time with him. It is disconcerting to note that the father persisted with his amended application that the children live with him, despite his first hand experience as to how difficult that could be. This indicates that the father does not fully grasp the full import or impact of such a change upon the children.

359.

I have reservations as to the capacity of the mother, the maternal grandparents and the elder siblings to cater for the children’s emotional needs. All of the children’s elder siblings stated that they would not support the children in pursing or maintaining a meaningful relationship with the father other than for the purpose of assisting him to repent.

360.

They generally agreed, however, that if a court order prevented the mother or her agents from discouraging the children from seeking the father, that they would comply with such order, some were more positive in affirming this duty than others. Mr S, Mr A and Mr C all stated that they would not refrain from discouraging the children to attend visits with the father.

361.

The religious upbringing and lifestyle of the children is a central issue in this matter. The expert evidence and associated research material regarding the practices and tenets of the Exclusive Brethren faith have been most useful in understanding the background of the children and the parties. It is obvious that the everyday lives of the children are steeped in religious beliefs and attitudes. This includes the practices of the religion, such as participation and attendance at church meetings, and the various precepts, which protect them from worldly influences. It must also be noted that these are children have been born into such a lifestyle, removal from which may have indelible consequences upon their wellbeing. Mr CH has given evidence as to the impact of such removal of the children from the Exclusive Brethren community.

362.

I consider this factor to be highly relevant to the determination at hand. I further note that the children’s religion and lifestyle are deeply imbedded in their way of life, and impacts upon almost every other consideration under both ss 60CC(2) and (3) of the Act.

363.

Counsel for the father has made significant submissions in relation to the Exclusive Brethren. These include: -

o The dogmatism of the religion.

o Subjectivism – of women and children.

o Alienation.

o Elitism.

o Lack of tolerance.

o A society of fear, guilt and eternal retribution that are the fundamental concern to this religion.

o The absence of television.

364.

It is not for the court to express prejudice or a preference but it is necessary for a court to take into account the religious practices of the parties in determining the welfare of the children.

365.

The Full Court in P&L [47] observed at paragraphs 127 to 131:

“127. The effect of a parent’s religious beliefs on the upbringing of his or her child has been raised in many parenting proceedings, and discussions are found in reported decisions in Australia and in overseas jurisdictions, in particular, those of the courts of the United Kingdom. The principles emerging from the cases are conveniently summarised by Dickey in Family Law (Sydney: LawBook Co, 4th ed, 2002) at 419 as follows:

‘In cases concerning parental responsibility, the courts have long refused to prefer one religion to another or even, in more recent times, to prefer a religious upbringing for a child to a non religious upbringing. What may weigh heavily in the mind of a judge in a case involving a party who is a member of a non conventional religion, however, is the effect on the welfare of a child of the practices of this religion.’

128 Cases determined after the introduction of the Family Law Reform Act 1995 (Cth) (‘the Reform Act’) are usefully reviewed in the decision of Federal Magistrate Ryan (as she then was) in In the Marriage of H (2003) 198 ALR 383. Those cases disclose no fundamental difference in approach by the Court on the issue after the Reform Act.

129 In H and H [1998] FamCA 7, the Full Court was dealing with an appeal against orders by a trial judge who had discharged all orders for contact between the father and the children. The parents had each been members of the religion known as ‘the Brethren’. The parties had separated when the father ceased adhering to the religious beliefs of the Brethren. The wife and children remained members of the Brethren. It was submitted on appeal in dealing with what was then an access application, a trial judge ‘“is entitled to look at the religious practices of one of the parties, which are put in issue by the other party as being detrimental to the welfare of the children, and in so doing (the judge) is entitled to take into account these practices as relevant factors together with all other relevant factors in the case in coming to a conclusion regarding the future access (to) a child”’. The Full Court noted it was further submitted that the trial judge was obliged to ‘consider matters and evaluate the views and practices promulgated by the Brethren religion, “not in an endeavour to evaluate whether the views of the wife were less preferable to that of the husband, but so as to determine the effect of these views and practices on the welfare of the children”’. In support of the submission reliance was placed on K v K (1979) FLC 90-680 at 78,634, Morrison and Morrison; Separate Representative (1995) FLC 92-639, Mauger and Mauger (1966) 10 FLR 285; Plows and Plows (1979) FLC 90-607 and Grimshaw and Grimshaw (1981) FLC 91-090.

130 The Full Court referred to the earlier decision in Firth and Firth; Boyer and Boyer (Interveners) (1988) FLC 91-971 at 77,025 where the Court said:

‘With this general proposition that it is not for a Court to prefer one religion to another we do not disagree. However, in determining questions of custody and access, depending upon, as they do, a determination of what is in the best interests of the child, or, what future proposals put forward by the parties to a suit will best promote the welfare of the child, it is permissible for a Court to examine the tenets and practices of a particular faith for the purpose of deciding these questions. It is in our view a proper exercise of the discretion vested in a judge hearing a custody case to take these factors into account and weigh them in the balance together with all relevant factors in the case. If, when following this approach a court decides that it is detrimental to the welfare of the children for them to be brought up adhering to such practices, this does not constitute a breach of sec. 116 of the Constitution, thereby rendering the orders made in consequence invalid.

The courts have for many years been faced with this question.

…

The Family Court has had cause to consider the question in a number of cases. See Paisio and Paisio (1979) FLC ¶90-659; Plows and Plows (1979) FLC ¶90-712; Grimshaw and Grimshaw (1981) FLC ¶91-090. It is clear from these cases that a trial judge in the course of assessing the competing claims for the custody of the child, is entitled to look at the religious practices of one of the parties, which are put in issue by the other party as being detrimental to the welfare of the children, and in doing so, he is entitled to take into account these practices as relevant factors together with all the other relevant factors in the case in coming to a conclusion regarding the future custody of a child.’

131 The Full Court went on to note:

‘However what is more important to note is that the Full Court held that a trial Judge is entitled to look at religious practices of one party “which are put in issue by the other party”. The Full Court did not say that the trial Judge must look at such practices and that the Judge must do so even where such practices are not put in issue by the other party.’ (original emphasis).

366.

The religious practices of the Exclusive Brethren are asserted by the father to be contrary to the best interests of the children.

367.

As I have indicated earlier in these reasons, this is not a trial of the Exclusive Brethren, however, what I have done in the analysis of the facts is to take into account and consider the effect of the religious beliefs that the mother and the extended family have on the welfare of the children. I must also take into account those religious beliefs, particularly in terms of L and somewhat less in terms of J.

368.

The beliefs do impact on the children in terms of the ex-communication and the withdrawal of the father by the mother, her family and the community. I accept the submissions of the Independent Children’s Lawyer that I ought to take the religious practices of the mother, her siblings and other Brethren supporters together with other relevant factors about the religion into account when dealing with the welfare of these three children.

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

369.

This is not a relevant consideration in this matter.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

370.

It is clear on the evidence that both parents demonstrate a deep interest in the welfare of all three children and toward their responsibilities as parents. During the marriage, both parents were actively involved in the children’s lives, for example, in the attendance at Brethren meetings as a family, participating in shared interests around the house and assisting the children with their homework. The father also assisted in the development of appropriate academic curriculum for the children’s school.

371.

The opportunity for the father to continue this involvement has since diminished since separation, but he still remains interested in the children’s education and welfare. He has endeavoured to be kept informed of the children’s academic progress and regularly attended at the school to meet with the children’s teachers during 2004 and 2005.

372.

There was some question raised by counsel for the father about the mother's failure to respond to J’s poor test performance. On the facts, I am satisfied that the mother has taken steps to manage J’s academic performance.

373.

Since at least 2003 the mother has not endeavoured to maintain the relationship between the children and the father. I infer that she discourages that relationship but I find that she will not continue to do so if an order is made in that regard.

(j) any family violence involving the child or a member of the child’s family;

374.

This is not a relevant consideration in this matter.

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person;

375.

This is not a relevant consideration in this matter.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

376.

In these reasons there is discussion in relation to a proposal, at one stage, for interim orders. For those reasons I determine that final orders are least likely to lead to further proceedings in relation to the children. The father submitted that a change of the place where the children live would avoid further proceedings as orders in that form are more likely to be obeyed. Given the facts in these proceedings, I am satisfied that if an order was made moving the place where the children live to the home of the father, further proceedings would be almost inevitable. The orders that the court proposes to make may not avoid further proceedings as they may lead to contravention proceedings. I have had regard to that consideration.

(m) any other fact or circumstance that the court thinks is relevant.

377.

In coming to the conclusions in this matter I take into account all the facts, circumstances and inferences outlined or referred to in these reasons and the evidence before me during the hearing.

378.

In assessing the additional considerations set out in s60(3)(c) and (i) I am obliged to consider the extent to which each of the children’s’ parents have fulfilled, or failed to fulfil, his or her responsibilities as a parent as set out in s 60CC(4). In coming to the conclusions set out in these reasons I have considered the extent to which each of the children’s parents have taken or failed to take the opportunity to;

o to participate in making decisions about major long‑term issues in relation to the child; and

o to spend time with the child; and

o to communicate with the child; and

o has facilitated, or failed to facilitate, the other parent:

o participating in making decisions about major long‑term issues in relation to the child; and

o spending time with the child; and

o communicating with the child; and

o has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

379.

The Court must also have regard to events that have happened, and circumstances that have existed, since the separation occurred[48].

380.

The Act defines ‘major long-term issues’ regarding the child as including, but not limited to, decisions regarding the child’s education, religious and cultural upbringing, health, name and changes to the child’s living arrangements.[49] The provision further notes that a decision by a parent to form a relationship with a new partner is not, of itself, a major long-term issue, insofar as it does not impact upon the ability of the child to spend time with the other parent[50].

381.

It is apparent from the evidence outlined above that the father has fulfilled his responsibilities as a parent, to the extent that he was able to, except for the period he lived in Hobart after separation and during the time he was emotionally struggling with the changes arising from his departure from the Exclusive Brethren in early 2003. He has taken almost every opportunity to spend time with and communicate with the children where possible. The parties were originally in agreement as to the religious upbringing of the children during the marriage. The father has since changed his view on the matter, wishing for the children to leave the Exclusive Brethren faith and join him in the Open Brethren. Insofar as these proceedings constitute ‘participation in the making of decisions’ regarding major long-term issues for the children, the father has addressed this concern and that of the children’s living arrangements in his amended application.

382.

The mother has endeavoured to fulfil her responsibility in participating in the lives of the children, with the significant exception of encouraging the relationship between the father and the children. I am concerned, however, that the mother has, together with other family members, failed to enable the children to feel able to freely go with their father and to be emotionally available to him throughout the visit.

383.

I do not consider the mother’s forwarding of the children’s letters to the father through his solicitors to constitute facilitation of communication between the father and the children. The contents of the letters served to sever the relationship, rather than to facilitate its continuation.

384.

I take the precepts of the Exclusive Brethren faith regarding social interaction with non-members into account pursuant to s 60CC(4A) of the Act, as this has been a relevant circumstance as to why the father has been unable to fulfil his parental responsibilities since separation. I find, however, that he has taken every opportunity to do so, given the limitations imposed upon the children by their religion.

CONCLUSIONS

385.

In terms of determining whether the presumption for equal shared parental responsibility created by s 61DA of the Act ought to apply, the Court needs to consider whether there are “reasonable grounds to believe” that a parent or person who lives with a parent and has engaged in abuse or family violence. In this case no such submission were made. Accordingly, the presumption should apply, subject to the submission by the mother that it is rebutted.

386.

To consider whether the presumption is rebutted, the onus is on the mother to show on balance that its application would not be in the best interests of the children. Taking into account all of the findings and considerations contained in these reasons, on balance, I am not satisfied that it would be in the best interests of the children for the parents not to have equal shared parental responsibility. Therefore I will make orders for equal shared parental responsibility.

387.

In terms of L, she is aged sixteen and has expressed strong views against spending time or living with the father. On the evidence before me she accepts the direction of her mother and accepts the direction of the Court. She accepted the direction of the Court on the basis that she needed to do that for her mother and on her mother’s persuasion and that of her brother G.

388.

In respect of J and C, they are significantly younger. The orders I have made will provide that they spend time with their father and communicate with him. In their case I am not satisfied that there are appropriate circumstances whereby the presumption ought to be rebutted and accordingly, the orders I make are that there be equal shared parental responsibility with regard to these children subject to other parts of the orders with regard to religious instruction.

389.

Having come to the conclusion that the orders ought to provide for equal shared parental responsibility, I have considered whether the children should spend equal time with each parent and whether that would be both practicable and in the best interests of the children individually and as a group. Having regard to all of the evidence I do not consider that the children should spend equal time with each parent.

390.

Further, I have considered whether the children should spend substantial and significant time with each parent and whether that approach would be both practicable and in the best interests of the children both individually and as a group. Having regard to all of the evidence, I do not consider that the children should spend substantial and significant time with each parent.

391.

I have determined that the children should continue to live with the mother and spend time and communicate with the father.

392.

I conclude that it is in the best interests of these three children to spend time with the father on a regular basis, and that such time should be free of influence with regard to the underlying beliefs of the children or either of their parents. To that end, I will make orders preventing either party from discussing these proceedings with the children and to prevent the parties from denigrating the faith of the other party or allowing others to do so in their presence.

393.

In making the orders, I am conscious of the reluctance of L to spend time with the father. As such, I have made those visits of short duration. Whilst the time provided is short I have found that L had a close relationship with the father up until 2003. I find that it is possible for her to have a meaningful relationship with the father over the next two years and that such relationship would be of benefit to her.

394.

It is in the best interests of the children that the father is aware of what is happening in their lives at school and in respect of their health and I have made orders to facilitate the provision of that information.

395.

Communication is a problem between the parties. Electronic communication is significantly constrained because of the religious practices of the children and the mother. Accordingly, I have made provision in the orders for a communication book to facilitate communication.

396.

The mother gave evidence that she could not positively encourage the children to spend time with the father. I do not propose to make such an order. Instead, I will make an order that both parties be restrained from speaking negatively to the children about either parent.

397.

I requested the subject children to be present when the orders are made and I propose to read to them a short explanation of my reasons, which are set out below, and are incorporated as part of my reasons. I determined to do this based upon the evidence of Mr CH.

398.

Having regard to all of the evidence, all of the fact findings, the inferences and the considerations under s 60CC I determine that the children should live with the mother and spend time with the father in accordance with the proposed orders set out in these reasons. I have taken into account all of the submissions made by the parties and the Independent Children’s Lawyer.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I find that the evidence given by the father is reliable, with the exceptions of the matters that I have already referred to above. As a court would expect, his evidence is coloured by his own perception but in making that observation, I generally accept his evidence. The evidence of Mr T Mr T gave evidence in accordance with his affidavit filed 29 June 2006. Mr T is currently aged 29 and had been a member of the Exclusive Brethren until he was about 19. He left the Exclusive Brethren and has now been “withdrawn from”. He has now married and has three children of his own. His evidence was that his parents have had little contact with his children. He gave evidence of the nature of being “withdrawn from” and the practice of the Church that when a child reaches sixteen, the child should have no contact whatsoever with the “withdrawn from” parent. He was not challenged on that point. He said that within the Exclusive Brethren there are strict rules that members were not to associate with persons outside the Exclusive Brethren, who are known as “outsiders” or “worldly” people. This evidence was not seriously challenged and I accept the accuracy of it. He said that, despite being withdrawn from, he has had some contact with the father’s son G and, to a limited degree, with the father’s son T. On the evidence, it appears the ties of Mr T’s family have not been severed completely and Mr T is now aware that his children have had some contact with his parents, although he was not aware as to whether his parents attended at the hospital when his children were born. Mr T’s evidence was that his parents provided assistance for him, in the form of some money and employment by a company operated by his parents and his brothers for ten months last year. There was some irony in that the father, when he was a member of the Exclusive Brethren, was one of the people who visited Mr T to attempt to persuade him to return to the Exclusive Brethren. Mr H gave evidence in accordance with his affidavit sworn 29 June 2006. Mr H left the Exclusive Brethren in the year 2000. He has now completed a teaching degree and is in the process of qualifying as a teacher. Mr H has six children and, as a result of leaving the Exclusive Brethren, he now only sees two of those children. The impact of his affidavit being filed in these proceedings has been quite profound. His son TH, aged thirteen, wrote to him on 18 September 2006 [27] saying:-[27] Exhibit ‘F4’.“To my father,I am not coming with you on access anymore.No one can make me come with you because it is my decision.You put an attack against us in the newspaper.You are going to be a witness for DT [the father]You said in the paper that the trombone is your life, what about the bred?You have taken us to football and you know that mum doesn’t allow that.You try to talk us into going to the movies.You left mum because you are against the Brethren.You only give mum five dollars a week” He also received a letter from his son WH, aged fourteen. That letter said:To my father,Following Saturday night phone-call [T][H] and I decided we would send you a letter each to tell you more.The reasons for our decisions are:-You asked us if we wanted to go to the movies and you would have known well enough that mum wouldn’t like us to go there.You are a witness for DT [the father] in an attack against a mum and her kids.You went to the media and caused trouble.You have had two wives and a girlfriend since you left mum.You are paying mum only $5.00 a week which is only enough to buy one lunch for one kid in a week. For nearly six years you have been paying this and that is what I call pathetic.Do you love your trombone more than God or did you make a mistake in your statements to the newspaper?You are opposing the truth.You used to hit the older kids with sticks and belts.Just BEWARE no one can make us come with you”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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