Elspeth & Peter

[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.

[2006] FamCA 1385

21 December 2006

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Judicial Review