ESSA & KADIR

FAMILY COURT OF AUSTRALIA

ESSA & KADIR

[2014] FamCA 210

FAMILY LAW – CHILDREN – With whom the children spend time – where the father seeks to spend time with the children – whether the father presents an unacceptable risk to the mother and children – where the father has a history of committing family violence – finding of unacceptable risk made – best interests – children to spend no time with nor communicate with the father – father restrained from contacting the mother and children.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks leave to proceed on an undefended basis – where the father has filed an amended application – where the father has not filed any affidavits of evidence in chief – where the father did not seek to cross-examine the mother or the family consultant – father permitted to participate in the proceedings.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Essa

RESPONDENT:

Ms Kadir

INDEPENDENT CHILDREN’S LAWYER:

Reale Lawyers

FILE NUMBER:

DGC

2673

2011

DATE DELIVERED:

3 April 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

30 September

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Ms McCarthy

SOLICITOR FOR THE RESPONDENT:

Perry Weston Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McCreadie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Reale Lawyers

Orders

IT IS ORDERED THAT

All previous orders be discharged, including paragraphs 3 to 5, 7 and 8 of the orders made by the then Federal Magistrate Riethmuller dated 14 September 2011.
The Registrar of the Family Court of Australia in the Melbourne Registry forthwith return to the mother and/or her solicitors any passports and/or travel documents held by the Registry pursuant to the orders made 14 September 2011.
The mother have sole parental responsibility for the children of the marriage K born … 2005, H born … 2007 and B born … 2010.
The children live with the mother.
The children spend no time with nor communicate with the father.
The mother be authorised to apply to the relevant authority to change the names of the children or any of them notwithstanding that the consent of the father has not been obtained.
The mother be authorised to apply for and obtain Australian passports in the names of the children or any of them notwithstanding that the father’s consent has not been obtained.
The father by himself, his servants and/or agents, be and is hereby restrained by injunction from:
a)   contacting or communicating or attempting to communicate with the mother or the children or any of them;
b)     approaching or remaining within 500 metres of the mother or the children or any of them; and
c)     going to or remaining within 500 metres of the mother’s residential address or the children’s school, kindergarten and/or childcare centre.
The father Mr ESSA born … 1975 by himself, his servants and/or agents, be and is hereby restrained from removing the children K born … 2005 (female), H born … 2007 (male) and B born … 2010 (female) or such other names as the children may be legally known by from the Commonwealth of Australia AND IT IS FURTHER ORDERED THAT the Australian Federal Police place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.

10. As soon as practicable the Court forward a copy of these orders to the Australian Federal Police.

11. The order for the appointment of the Independent Children’s Lawyer be discharged.

12. All extant applications be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

AND THE COURT NOTES THAT
Pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2673 of 2011

Mr Essa

Applicant

And

Ms Kadir

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The parties in this case met and were married in Indonesia in 2003. The mother says that their relationship has been characterised, both during the marriage and following separation, by what she alleges has been the father’s substance abuse, his violence towards her, which she says includes violence in the presence of the children, and his history of physical and mental health issues. That history is relevant in relation to both the procedural and substantive issues in this case.
There are three children of the marriage, K who is eight years of age, H who is six years of age, and B who is now three years of age. All three children live with the mother. The mother also has a child from a previous relationship who lives with the maternal grandmother in Indonesia. That child is 13 years of age.
It is not in dispute in this case that the children should live with the mother and it is her unchallenged evidence that she was primarily responsible for their care both during the marriage and since separation. The real issue in this case is whether it is in the children’s best interest to have face-to-face time or to have a relationship of any kind with the father and, if it were in their best interests, what form that relationship would take and how it would be implemented having regard to the significant history of family violence in this case to which these children have been exposed.
At the heart of this case is the issue of whether the father has acknowledged and addressed his behaviour and considered the impact of that behaviour upon the children. It is the father’s behaviour both during the relationship and since separation, and including during the course of these proceedings, that has been the focus and emphasis of both the mother and the Independent Children’s Lawyer in this case.

History of the proceedings

The matter was listed for final hearing before me commencing on 30 September 2013. The first hearing of the matter in this Court was on 27 November 2012. On that date, Registrar Field adjourned all extant applications to a hearing before Dessau J on 1 February 2013. Registrar Field also ordered that all parties appear or be represented on the adjourned date, that the father file and serve any amended initiating application setting out with precision the final orders he seeks by no later than 27 January 2013, and that the mother have liberty to apply to proceed on an undefended basis in the event that the father did not comply with either the order requiring him to appear or be represented or with the order as to the filing of any amended initiating application.
The father appeared in person at the hearing on 1 February 2013. Dessau J ordered that the existing applications be adjourned to a telephone mention with Registrar Field on a date to be advised, noting that the father was arranging urgent legal representation.
On 19 April 2013 the matter was listed for hearing before Registrar Field. The father again appeared in person. Registrar Field adjourned all extant applications to the Registrar’s Procedural List on 17 May 2013 and further ordered that:
·all parties appear and/or be represented on the adjourned date.
·the father file and serve any amended initiating application setting out with precision the final orders he seeks by no later than the 10 May 2013; and
·in the event that the father fails to comply with these orders, the mother have liberty to apply to proceed on an unopposed basis at the adjourned date.
On 17 May 2013 the father again attended in person. Registrar Kaur adjourned the matter to a date to be fixed. Later that same day the matter was heard in chambers in the absence of the parties and Registrar Kaur made the following orders:
·all extant applications for final orders be listed for hearing before Cronin J on 5 June 2013 for the purposes of listing the matter for final hearing;
·the parties and, if represented, their legal practitioners attend the first day of hearing;
·that notwithstanding applications/responses that have already been filed:
a)by 4.00 pm on 29 May 2013 the father file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and
b)by 4.00 pm on 3 June 2013 the mother file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial; and
·to the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposed orders and present a copy of the proposed orders to the Court.
The Court noted that if either party did not comply with the orders with respect to the filing of an amended application or an amended response then the party who had complied could make an application to proceed on an undefended basis on the return date.
The matter was listed for hearing before Cronin J on 5 June 2013. The father again appeared in person. Cronin J made orders setting the matter down for final hearing as the fifth matter in his list commencing on 9 September 2013 but not before 23 September 2013, as a two day matter, and with all evidence in chief to be by affidavit. His Honour further ordered that:
·by 4.00 pm on 14 June 2013 the father file and serve upon all other parties an amended application setting out with precision the orders to be sought;
·by 4.00 pm on 19 July 2013 the father file and serve upon all other parties his affidavits of evidence in chief of all witnesses including his own, and noting that the affidavits relied upon for previous hearing cannot be relied upon as evidence in chief;
·the father pay all setting down and trial fees by 4.00 pm on 19 July 2013; and
·by 4.00 pm on 9 August 2013 the mother file and serve upon all other parties the affidavits of evidence in chief of all witnesses including her own, noting that the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief; and
·that should any party fail to comply with these orders:
a)the Court may relist the matter requiring the parties to justify why it should not be taken out of the list; and
b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.
The father filed an Amended Initiating Application on 18 June 2013 however he did not file any affidavits of evidence in chief, as a result of which on 26 August 2013 the mother filed an Application in a Case seeking leave to proceed on an undefended basis and that she be permitted to attend the hearing by electronic communication. The Application in a Case was listed for hearing before me at 9.00 am on 26 September 2013 in anticipation of the final hearing listed before me on 30 September 2013.
On that date, although I was satisfied that appropriate steps had been taken to bring the listing of the matter to the attention of the father, he did not appear when the matter was called. On that basis, having heard submissions on behalf of the mother and the Independent Children’s Lawyer, I made orders permitting the mother to give her evidence by video-link but adjourned the hearing of her application for leave to proceed on an undefended basis to the first day of the final hearing before me. At the first day of the final hearing the mother renewed her application to proceed undefended.

Mother’s application to proceed on an undefended basis

Rule 11.02 of the Family Law Rules 2004 (‘the Rules’) provides that:
(1)If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.
Note: A defaulter may apply to the court for relief from this rule (see rule 11.03).
(2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
(a) dismiss all or part of the case;
(b) set aside a step taken or an order made;
(c) determine the case as if it were undefended;
(d) make any of the orders mentioned in rule 11.01;
(e) order costs;
(f) prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).
Note: This list does not limit the powers of the court. It is an expectation that a non defaulting party will minimise any loss.….
The Explanatory Guide to the Rules, which does not form part of the Rules, describes the term “undefended basis” as follows:
... the court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The court may make orders set out in the application on being satisfied by evidence that orders should be made.
In Tate JRD v Tate MT (2000) FLC 93-047 (‘Tate’) the Full Court upheld the decision of the trial judge in striking out the husband’s response and refusing him the right to cross-examine the wife based upon what she described as a “continual delay; most of it due to the non-compliance of the husband”. The Full Court said as follows:
99.In attempting to match the limited resources of the Court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration” (State of Queensland v J.L. Holdings; supra) (original italics). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz [2000] HCA 40 at paras 38-40). Case Management guidelines, principles and orders are designed to facilitate the ends of justice by encouraging: full frank and prompt disclosure; settlement; identification of the matters genuinely in dispute needing the Court’s determination; and the expeditious marshalling and presentation of relevant evidence. …
107.The Court, no less than those who litigate before it, is constrained by the interplay of competing principles. In the attainment of justice in individual matters, which will always remain the paramount consideration, appropriate sanctions are essential to see that its orders and directions are obeyed in the pursuit of that end. Such a goal overrides any notions of punishment for disobedience of such orders.
108.Where, as here, non-compliance with the orders and directions of the Court will, in the opinion of the trial Judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are “exceptional”, and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that a manipulation of the court processes, (as was attempted and indeed partially achieved in this instance), through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.
The father has filed an Amended Initiating Application hence there are live issues in the case, albeit that he did not do so until after he had been ordered to by Cronin J on 5 June 2013 and not withstanding a number of earlier orders permitting him to file any amended initiating application upon which he sought to rely. What the father does not have, however, is any evidence in support of that Application nor any evidence in answer to the mother’s evidence and the question I was asked to determine as a preliminary matter was whether, on that basis, the father should be precluded from taking any part in these proceedings or be entitled to participate in the proceedings albeit on a limited basis.
It was submitted on behalf of the mother that I should proceed on an undefended basis by striking out the father’s Amended Initiating Application and not allowing him to participate in the hearing. The father has appeared at the various hearings when ordered to do so. The orders made by Registrar Field on 19 April 2013 were worded in such a way as to give the father the option of filing an Amended Initiating Application rather than requiring him to do so. When explicitly ordered to do so, he did comply. Although the father did not file any affidavits of evidence in chief, I am not satisfied that that is a sufficient basis for striking out his Application entirely or, for that matter, excluding him from participating in the hearing. As he has not filed any affidavits of evidence in chief it follows that he has no evidence in chief, unless he were to be granted leave to give viva voce evidence in chief, a course which would potentially prejudice the mother. Whilst the father could challenge the mother’s evidence in the absence of his own evidence, unless the mother were to make concessions with respect to the matters he put to her then he would be bound by her answers.
Although I had some sympathy for the submission that given the violent history of the matter it would be difficult for the mother to be cross-examined by the father, that is a different issue and is not directly related to the management of the case based upon the father’s failure to comply with the orders. Ultimately, the father indicated that he did not want to question the mother and therefore it was not necessary to decide that particular issue.
Notwithstanding that concession, it was still the mother’s case that I should permit her to proceed undefended. I was, however, not satisfied that because of the father’s failure to file affidavits of evidence in chief that he should not be permitted to participate in the hearing and make submissions with respect to the orders he sought and the orders sought by the mother, subject to those submissions being based upon the evidence in the case, which was essentially the unchallenged evidence of the mother. The matter proceeded on that basis.
Whilst it is necessary to weigh up the competing rights of both the father and the mother and the interests of justice generally, it could not be said that the circumstances in this case were exceptional, or that, as the matter had been listed for a two day hearing and could be accommodated in that timeframe, even if the father were to be permitted to make submissions that there would be any real injustice caused to the mother in permitting him to do so.

Documents relied upon

The father

The father relied upon his Amended Initiating Application filed 14 June 2013.

The father had previously filed an Affidavit on 14 September 2011 when the proceedings commenced in the Federal Circuit Court, or the Federal Magistrates Court as it then was, in support of his application seeking a location order and to prevent the mother removing the children from the Commonwealth of Australia. As I have already discussed, however, the father has not filed any affidavits of evidence in chief for the purposes of these proceedings.

The mother

The mother relied upon the following documents:
1.her Further Amended Response to the father’s Initiating Application filed 29 May 2013;
2.her Trial Affidavit filed 22 August 2013;
3.her Affidavit filed 26 August;
4.the Family Consultant’s s 11F Memorandum to the Court dated 22 December 2011 (‘the s 11F assessment’); and
5.her Outline of Case filed 27 September 2013.

The Independent Children’s Lawyer

The Independent Children’s Lawyer also relied upon the s 11 F assessment and an outline of case document filed 30 September 2013.

The parties’ proposals

The father’s proposals were as set out in his Amended Initiating Application, where he sought orders as follows:
1.That the Mother and the Father have joint parental responsibility for the long term care, welfare and development of the children of the marriage, [K] born [in] 2005, [H] born [in] 2007 and [B] born [in] 2010.
2.That the children live with the Mother.
3.That each parent have sole parental responsibility for the day-to-day care, welfare and development of the children, while the children are living with them or spending time with them.
4.That the Father have access/contact with the children as follows:
(a)That the Father spend time [with] the children on a supervised basis at a Children’s Contact Service to be agreed upon between the parties, every alternate weekend for no less than 2 hours, at times and places to be agreed between the parties, for a period of 2 months;
(b)Thereafter the Father spend time [with] the children on a supervised basis at a Children’s Contact Service to be agreed upon between the parties, every weekend for no less than 2 hours, at times and places to be agreed between the parties, for a period of 2 months;
(c)That the children have telephone communication with the parent with whom they are not living each Wednesday evening between the hours of 6:00 pm and 7:30 pm;
5.Subject to an independent assessment and review of the Father’s access with the children, the reviewer to be determined by the Court, and [the] Father’s compliance with all the below court orders:
(a)After 4 months of contact as outlined in paragraph [4](a) & (b), the Father shall spend time with the children every weekend for no less than 4 hours, at times and places to be agreed upon between the parties, for [a] period of 2 months;
(b)Thereafter, the Father, shall spend time with the children:
(i)Each alternate weekend from 5:00 pm or after school on Friday until 5:00 pm on Saturday;
(ii)Each Wednesday from 5:00 pm or after school until 8:00 am or [the] school commencement on Thursday.
(iii)Failing other agreement from time to time, the children shall be picked up and dropped off from a location to be agreed between the parties or change over location to be appointed by the Court.
6.That the Father complete attend (sic) and complete an appropriate Anger Management course or a Mens (sic) Behaviour Change group or a counsellor with an interpreter to address anger management issues, as deemed appropriate by the Court.
7.That the Father attend and participate in a Parenting Orders Program, such as that provided by [C Organisation] in [Suburb D] or any other service suitable or recommended by the Court.
8.That the Father attend drug and alcohol counselling and not consume alcohol, drugs or any illicit substances in the presence of the children or be in any way effected by them whilst the children are in that person’s care or control.
9.The Father shall submit any (sic) drug or alcohol tests as required by the Court.
10.That the Mother be at liberty not to disclose her address.
11.That the Mother do (sic) not relocate to such a location to prevent [the] Father from spending time with the children as proposed above.
12.The Mother be restrained from disciplining the children by corporal punishment and or psychological threats.
13.That the Mother be restrained and an injunction is hereby granted, restraining her from using, or being party to or complicit in, the use of any surname for the children of the marriage [K], [H] and [B].
14.That the Mother be restrained from applying for or obtaining any passports in the names of the said children without the consent of the Father or an order of the Court.
15.That in the event of childhood illness or emergency the parent with whom the child or children are with, do contact the other parent forthwith to inform them.
16.That each of the parties, their servants and agents be hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so.
[17]That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress
[18]That each party be at liberty to attend at the said children’s school for the purposes of any function or activity normally attend by parents.
The mother’s proposals as set out in her Outline of Case were as follows:
1.That the [mother] have leave to proceed on an undefended basis.
2.The [mother] have sole parental responsibility for the children of the marriage, [K] born [in] 2005, [H] born [in] 2007 and [B] born [in] 2010.
3.That the children live with the [mother].
4.That the children’s time with the [father] be reserved.
5.That the [mother] be at liberty to relocate with the children within the Commonwealth of Australia, and that she be permitted to not disclose her residential address or the school at which the children attend to the [father].
6.That if the [mother] deems appropriate she be authorised to change the names of the children or any of them notwithstanding the [father’s] consent has not been obtained.
7.That each party be restrained from denigrating the other or any member of their household to or in the presence of the children or any of them or allowing any other person to do so.
8.That paragraphs 3 to 5 of the Orders of the Federal Magistrates Court at … dated 14 September 2011 be discharged [that is, the orders placing the children’s names on the Airport Watch List].
9.That the [mother] be authorised to apply for and obtain Australian passports in the names of the children or any of them notwithstanding the [father’s] consent has not been obtained.
10.That the [father], his servants and agents be restrained by injunction from:
(a)By himself, or any servant or agent, contacting or communicating or attempting to communicate with the [mother] or the children or any of them save via his solicitor contacting her solicitor;
(b)Approaching or remaining within 500 metres of the [mother] or the children;
(c)Going to or remaining within 500 [metres] of the [mother’s] address or the children’s school, kindergarten or childcare centre.
11.Such further and other Order as deemed appropriate by this Honourable Court.
At the conclusion of the case the mother adopted the position of the Independent Children’s Lawyer that rather than reserving the question of the father’s time with the children I should make orders that he not spend any time with the children. The Independent Children’s Lawyer otherwise supported the orders as sought by the mother.

Background

As previously discussed the father did not file any affidavits of evidence in chief, did not seek to give viva voce evidence in chief, nor did he seek to cross-examine the mother or the family consultant who prepared the s 11F assessment. The evidence contained in the mother’s affidavit of evidence in chief is unchallenged and the following history of the matter is to be treated as findings of fact.
Following their marriage the parties lived in Indonesia. The mother says that the father is a refugee who arrived in Indonesia from Country E in 2000. She says that she knew little of the father’s life in Country E except that he had told her that he had seen “terrible things” and that he had disclosed having substance abuse problems whilst still in Country E. The two eldest children of the marriage were born in Indonesia.
The father received a refugee visa to come to Australia in 2009. The mother’s daughter from her previous relationship, who the mother says was frightened of the father, expressed a strong wish to remain in Indonesia with her maternal grandmother. Notwithstanding that the mother says that the father had by this time become physically abusive towards her in front of the children, she says she felt obligated to remain with the father and to travel to Australia with him for the sake of their then two children.
It is the mother’s evidence that following their move to Australia the father become increasingly controlling and both verbally and physically abusive. The mother initially spoke no English and was extremely isolated. In August 2010 the mother left the home and sought assistance from a friend. She says that although she wanted to take the children with her she did not believe the father would permit her to do so and was frightened of how he would react if she did take the children.
The mother said that the father refused to return the children to her and constantly visited her at her friend’s home, as a result of which she obtained an intervention order against the father and moved to a refuge. The father eventually returned the children to the mother’s care because they were unwell and he was unwilling or unable to care for them in those circumstances. Notwithstanding that the mother had obtained an intervention order, she continued to receive threatening and abusive text messages from the father. The mother also alleges that the father threatened and abused refuge workers and tried to follow the workers who were assisting her at court.
The text messages sent by the father to the mother included messages threatening to have her daughter in Indonesia tortured, raped and killed. The mother says the father told her that if she showed anyone the messages he would have her daughter killed anyway. As she had found the father’s friends intimidating, the mother was convinced that the father would carry out his threats and reluctantly agreed to return to the home with the father.
The mother deposes that the father’s behaviour towards her deteriorated further following her return to the home and that he was constantly verbally abusing, denigrating and belittling her in front of the children. She says that in July 2011 the father held two knives to her neck and threatened to kill her. The following morning the mother attempted to leave the home with the children but was intercepted by the father who she says struck her across the face and grabbed her by the throat. The eldest child of the marriage, K, tried to pull the father off the mother. The father locked the mother in the house and threatened to take away her passport. The mother says that thereafter the father watched her closely and it was difficult for her to leave the home.
In August 2011, shortly before their final separation, the mother says that the father told her to get into the car and threatened to take her to a remote location and kill her. The father became irate when the mother refused to get in the car and said that he was going to take a blunt knife rather than a sharp knife to cause more pain. The mother says that she was terrified of the father and that the children were clinging to her and were also very frightened. On 29 August 2011 the police assisted the mother to leave the home and again move to a refuge with the children.
The father commenced these proceedings in what was then the Federal Magistrates Court of Australia in August 2011 seeking orders, inter alia, that the children spend time and communicate with him each week and that the mother be restrained from removing the children from the Commonwealth of Australia and the children’s names be placed on the Airport Watch List. The matter was listed for hearing in the Federal Magistrates Court on 27 October 2011. The matter was adjourned for further hearing on 28 November 2011 and various orders were made for the purposes of that further hearing, including an order for the appointment of an Independent Children’s Lawyer, that the parties attend counselling pursuant for the purposes of a s 11F assessment, that the father and mother enrol at G Contact Centre, and the father spend supervised time with the children at the Centre, and that the father undertake supervised drug testing.
On 28 November 2011 the family consultant gave evidence to the court that when the father entered the childcare room to spend time with the children, the eldest child K ran into the adjoining room and sought help from the childcare support worker. When the family consultant asked the father to leave the childcare room due to K’s distress, he “became very angry” and “more and more agitated”. The family consultant recommended that that father’s time with the children be reserved and the matter was adjourned for further hearing on 1 December 2011.
The mother says that following the hearing on 28 November 2011 she and her support worker were in the court’s secure car park putting the children in the car when the father ran into the car park past the security officer stationed at the entrance and ran up to her. The mother says that the father’s behaviour was alarming and that although she was very frightened both she and her support worker were keen to avoid any conflict which would distress the children.
As a result of the father’s behaviour, the mother was given leave to appear via electronic communication at the hearing on 1 December 2011. The mother was represented by counsel at the hearing, which was in the then Federal Magistrates Court, but the mother was appearing via videolink from the a different registry. The father either learned or presumed that the mother was at the other registry and during the luncheon adjournment travelled to this registry and located her as she was leaving the court with her support worker. The father took the youngest child, B, out of the mother’s arms, threatened her and again threatened to have her daughter in Indonesia killed. The father spoke to the mother in Indonesian so that her case worker could not understand him.
Riethmuller FM, as he then was, was made aware of the father’s actions, as a result of which he gave the father’s solicitor leave to withdraw and made orders that the mother have sole parental responsibility for the children, that the children live with the mother and not spend time or communicate with the father, and transferred the matter to this Court.
The mother says that in early January 2012 she received a telephone call from a friend who asked her to meet her at a restaurant in the city to talk about the parenting arrangements. The mother says she understood that the husband had asked her friend to talk to her. The mother agreed to meet her friend on the condition that the father would not be there. Not long after she had arrived with the children, the father arrived. The mother says that on this occasion the father was restrained and that he seemed to genuinely want to see the children. The mother says she knew that her son, H, in particular was missing the father so she agreed to let him visit the father while she moved house. The mother’s evidence is that while H was spending time with the father, she telephoned the father who told her that there had been an accident and that H had been hit by a motorcycle. The father told the mother that he was at the hospital, that H was about to be operated on, and she needed to come immediately as it was a matter of life and death. The mother says that the father said he would send a friend to collect her and bring her to the hospital to see their son she only had to tell him where she was. When the mother could not get on to her case worker to get help, she called the father and gave him her home address so that his friend could pick her up. Shortly afterwards the father arrived at her home with H. Although the mother was relieved to see that H was unharmed, she was both shocked and frightened when she realised that the father had tricked her into disclosing her address.
The father told the mother that he wanted to reconcile, which she said she was prepared to consider if he would change his behaviour, because she believed it was important for the children to know both their parents. Although the mother said she wanted to discuss it with her case worker, the father would not leave her property. During the evening his behaviour towards the mother deteriorated and he began insisting that she had a boyfriend and that if she had a boyfriend then he would have to kill her because of the shame she had caused him. Over a period of days, the mother says that the father would not leave the house, would not let her leave the house, and if he went out he would insist on taking her and the children with him. The mother says that the father started hitting her again in front of the children and told her that if she left the house without the children, the “devil might come into his head” and he might hurt the children. The mother says this situation continued for some two weeks.
In mid-January 2012 the father went out with the children. The mother says she was using the toilet when he returned and so she did not immediately answer the door. When she did open the door she says the father grabbed her around the throat and pushed her down into a chair. She says he demanded to know “where is the man?” and, when she said “what man?” the father went and took a knife from the kitchen. The mother says that the father was swinging the knife backwards and forwards in front of her face and throat. She says that she was eventually able to grab the knife from the father, cutting her hands deeply in the process. The mother’s evidence is that the children witnessed the incident and that the two eldest children tried to protect her and were hit by their father. The eldest child was struck and cut by the knife. Although the mother says that the injury to the child was minor and she does not believe that the father intended to injure the child, she was extremely concerned about the children being involved in family violence and being injured themselves, albeit unintentionally.
The mother says that she was bleeding heavily and that as she went to get some bandages, the father picked up the knife and placed the point at the back of her neck. Although he eventually calmed down, he would not allow her to get medical treatment. The mother’s evidence is that the following day the father arranged for a community elder to visit the mother’s home and that he promised, in the presence of that elder, that he would stop accusing her of having an affair and stop his violent behaviour.
The mother says that although the father’s behaviour improved, after a few days he again accused her of having an affair and threatened to tie her up until she confessed. The father bought an electrical cord and put it at her feet. The mother then went into another room with the children but says she did not sleep all night because she was so frightened. The following day the mother left the house and her next door neighbour helped her to call the police. The police attended and helped the mother to collect the children and to once again go to a refuge. As a result of these incidents, the father was charged with breaching the intervention order, false imprisonment, theft and recklessly causing injury. The father was remanded in custody.

The father was convicted of false imprisonment, recklessly causing injury, theft and contravening an intervention order in mid-May 2012 and as a result was the subject of a community correction order for a period of 12 months. The result of this order was that he was to be under supervision, required to perform unpaid community work, undergo assessment and treatment for drug and alcohol abuse or dependency, undergo a mental health assessment and participate in and complete offending behaviour programs.
The mother says that while the father was incarcerated she was informed by his brother that he had been attacked by the other inmates and seriously injured, that he had been admitted to hospital as a result of the attack and received compensation from the government of “US $250,000”. She also said that he told her that the father’s family held her responsible for the father’s incarceration and hence his injuries. The father’s brother also told the mother that the father wanted one more “last chance”, and he reassured the mother that if she brought the children to his home to see the father there that he would protect them and ensure that nothing happened to her or the children.
The mother’s interim intervention order was made final in mid-June 2012 and remained in force for a period of 12 months.
In or about July 2012 the mother says she agreed to go to the father’s brother’s home with the children and stayed there with the children for three weeks. The father and mother had separate rooms and the mother’s evidence is that, although the father was not physically violent, he was verbally and emotionally abusive. She says the father harassed her for the addresses of the various refuges she had spent time in and searched her telephone, handbag and wallet looking for information. The situation eventually became intolerable and the mother once again left with the children.
The mother continued to receive text messages from the father. On 20 July 2012 the mother received a telephone call from her friend Ms H. As soon as the mother answered, the husband took the phone from Ms H and demanded that the mother give him some money. He then told her in Indonesian that he would kill her and that although the last time he had used a knife this time he would use a pistol. He also told her that he would burn down the house she was living in in Suburb I. This was particularly frightening as the mother’s belief had been that the father did not know where she was living as she had obtained this accommodation with assistance from the refuge. The father also threatened Ms H and her children, as a result of which they were also forced to move.
Notwithstanding the father’s threatening behaviour the mother, in an attempt to maintain the father’s relationship with the children and to see if there was any possibility of him behaving appropriately towards herself and caring appropriately for the children, contacted his brother and proposed that she visit the father at his brother’s home.
The mother says that when she told the father this was his last chance, he told her that he had acquired a gun and that he had hidden it so that the police did not find it, and that he also had a machete, or some kind of “fighting knife”, in his bedroom. He accused the mother of only wanting the children so that she would be entitled to receive Centrelink payments. The father then insisted that he could look after the children for a day. The mother then left the children with the father and his brother but after a few hours, the father called and demanded that she return to care for the children. When she returned, the father told her he would do whatever she asked as he just wanted to see the children.
The following day the mother received a call on her mobile phone from a blocked number. No-one spoke and the father accused her of having a boyfriend. The father eventually admitted that he had made the call. The mother became increasingly concerned about the father’s fixation on the notion that she had a boyfriend and that evening left with the children and obtained accommodation for herself and the children. The mother did not have any further contact with the father.
In or about November 2012 the mother says she contacted her family in Indonesia and was told by her mother that the father had been telephoning her family in Indonesia and making graphic threats about having her daughter killed and ‘her body chopped up and placed on the grave’ of the recently deceased maternal grandfather.
Although the father’s attendance and compliance with the conditions of the community correction order were initially satisfactory, they deteriorated after he ceased contact with correctional services approximately two months after the order was made. The father was charged with breaching the conditions of the community corrections order. According to the Victoria Police records subpoenaed for the purposes of the hearing before me, on 26 September 2012 the father was also charged with two counts of making a threat to kill and a further charge of contravening a family violence intervention order. At the time of the hearing before me all of these charges remain pending.

Relevant legal principles

The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) relating to children are set out in s 60B(1) of the Act as follows:
The objects of this Part are to ensure that the best interests of children are met by:
(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.
The principles underlying those objects are set out in s 60B(2). They are that unless it would be contrary to the best interests of a child:
(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).
The paramount consideration when making a parenting order is the best interests of the child or children who are the subject of that order (s 60CA). In determining what is in that child’s or children’s best interests the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s 60CC(4A)).
The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.
The Act defines parental responsibility as all of “the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B).
There is a statutory presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA). The presumption may be rebutted if the Court is satisfied that it is not in the child’s best interests for the child or children’s parents to have equal shared parental responsibility.
When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider firstly whether it is in the child’s best interests and reasonably practicable to spend equal time with the parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable to spend “substantial and significant time” with each of the parents (s 65DAA(2)).

Best interests of the children

It is convenient in this case to address the issues in the context of the primary and additional considerations the Court must consider in determining what is in the best interests of the children. However, this case is also one which clearly demonstrates that these are not considerations that can be dealt with in isolation.
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents
It is accepted that as a general proposition children will benefit from having a meaningful relationship with each of their parents. The mother in this case ascribed to that view, and I am satisfied that in the face of a significant history of family violence she, and potentially to her detriment and that of the children, attempted on a number of occasions to give the children an opportunity to have a relationship with the father. However, the mother also submits, and I agree, that that relationship with the father cannot be maintained or for that matter be in any real sense a meaningful relationship for the children if it exposes them to a significant risk of physical and psychological harm of family violence. In all of the circumstances of this case I am satisfied that it is not possible to frame orders enabling the children have a meaningful relationship with the father.
I accept the mother’s unchallenged evidence that she has been primarily responsible for the children’s care and I am satisfied that the children benefit and will continue to benefit from a meaningful relationship with her.
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As submitted by the Independent Children’s Lawyer this matter is defined by a history of family violence both prior to and following separation and it is essential that the children be protected from the physical risks of the father’s behaviour and the psychological harm of being exposed to that behaviour, whether it is directed towards them or the mother.
The father’s failure to comply with the conditions of the community corrections order does not bode well for any conditions this Court might impose in order to protect the children in this matter. I am satisfied that in this case the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence outweighs any benefit that the children might obtain from having a relationship with the father.
I turn now to the additional considerations.
(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;
Although it is the mother’s evidence that the middle child, H, was missing his father, I must also have regard to the evidence of the family consultant in relation to the reaction of the eldest child, K, when the father was invited into the childcare room to spend time with the children for the purposes of the s 11F assessment. I have also taken into account the fact that this interview with the children took place over two years ago, that it was prior to the incident with the knife for which the father was charged, and that the children have now not seen the father for almost two years.
Whilst I do not have the benefit of an updated assessment or report, in any event the benefit of any updated assessment or report must in the circumstances of this case be weighed up against the risk to the children of seeing the father given the history of violence and the risk of the father using the preparation of any report to locate the mother and the children. I am also satisfied that in circumstances where the children have not seen the father for a significant period of time that it would not be in their best interests to now see the father simply for the purposes of the preparation of a report.
The children are eight, six and three years of age. Given the young ages of the children and the disruption and trauma they have already experienced in their young lives, it would be inappropriate to place significant weight upon any wishes they did express.
(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);
For the reasons I have already discussed in some detail the children presently have no relationship with the father and have had little or no relationship with him since he and the mother separated finally in August 2011. The father has a brother who lives in Australia however the children – because of the father’s behaviour and the risk he poses to them and the mother – have had no contact with their uncle since 2012.
The mother has been the children’s primary carer throughout their lives and their sole carer since separation. The mother does not have any family in Australia. The mother’s daughter from a previous relationship lives in Indonesia with the maternal grandmother. It is part of the mother’s case that she be able to obtain passports for the children so that they can visit her family in Indonesia.
(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;
Following separation the mother made various attempts to reconcile with the father in order to facilitate the father having an ongoing relationship with the children. I am satisfied that whilst the mother’s actions were well intentioned, they resulted in the children being exposed to further family violence. As a consequence of the father’s behaviour, the mother now opposes him having any relationship with the children.
(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;
The children in this case are already separated from the father and his family. As a consequence of the circumstances of this case I must consider not only the effect of the children being separated from the father and his family but the risk to them in the event that I were to make the orders sought by the father, thereby allowing him to spend time with the children. I am satisfied that in this case the risks presented by the father spending time with the children far outweigh the benefit of that relationship.
(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;
There are significant practical difficulties associated with the father spending time with the children. This is particularly so because of the lengths, as he has previously demonstrated, that he is willing to go to determine the whereabouts of the mother and the children and his threats that he would have to kill the mother for the “shame” she has brought on him. The father has managed to find out where the mother and the children are living in circumstances where their accommodation has been arranged by a women’s refuge for their protection. The father has used the children to trick the mother into revealing her whereabouts and, when arrangements were made to enable the mother to attend the proceedings by electronic means because of his behaviour, the father has nonetheless travelled from one registry of the court to another in order to confront the mother. I am satisfied that any arrangement for the father to spend time with the children would expose the mother to the risk of the father locating her place of residence and that of the children.
(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:
I am satisfied that the mother has the capacity to provide for the needs of the children, including their emotional needs, and that she has done so in very difficult circumstances both during the marriage and since separation with little to no assistance from the father.
I have no confidence in the father’s capacity to provide for the needs of the children. The mother’s evidence in relation to the father’s violent behaviour, mental health issues and substance abuse during the marriage is substantiated by the documents produced pursuant to subpoena by Community Correctional Services, which include a document titled “Offender Into Custody Report”. In that document, the father is described as having been diagnosed with post-traumatic stress disorder and depression, and that he attempted suicide within two months of being in Australia and was hospitalised. The father is also described as having used heroin and amphetamines and having consumed alcohol in the last 12 month period, although the document states that the father reported he had ceased using heroin prior to his court hearing in May 2012. The same report notes that the father was assessed by ACSO/COATS on 14 June 2012 and ‘deemed unsuitable for further intervention as he presented with significant mental health concerns’.
The report prepared in relation to the father’s contravention of the community correction order states that although the father had been deemed by ACSO/COATS as being unsuitable for further intervention, the father denied any current substance abuse issues and did not present as substance effected at any time.
On 27 October 2011 orders were made by Riethmuller FM, as he then was, requiring the father to undertake supervised drug screening. Pursuant to that order, the Independent Children’s Lawyer made a number of requests to the father for supervised drug screening however the father did not undertake any of the requested tests.
The father did not adduce any evidence as to any of these issues or for that matter his capacity to provide for the children’s care and I am not satisfied that he has taken steps to address any of these issues or that he has the capacity to provide for the children’s physical, emotional or intellectual needs. It was submitted on behalf of the Independent Children’s Lawyer that even if the father loves the children he has not demonstrated that he has either the insight or the capacity to modify his behaviour to the extent necessary to satisfy the Court that he does not present an unacceptable risk to the mother and the children.
(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;

The father is a refugee from Country E. There is no evidence before me other than the mother’s evidence in relation to the father’s brother living in Australia and as to the rest of his family having fled to Country F from Country E.
The mother is Indonesian and has no family in Australia. Her mother is elderly and in poor health and currently cares for the mother’s eldest child from another relationship. The mother is trying to arrange for her daughter to join her in Australia. She may need to go to Indonesia to facilitate her eldest daughter’s move to Australia and to take the children to see the maternal grandmother.
In a perfect world, it would benefit the children to be exposed to both their father and their mother’s cultural backgrounds, however whilst the children will have exposure to their mother’s family and culture the risks associated with the father spending time with the children in this case outweigh the likely benefit to the children of exposure to their father’s cultural traditions.
(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 case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Notwithstanding the mother’s various attempts to facilitate the children’s relationship with the father and the risks associated with her doing so, I am satisfied that the mother has demonstrated a responsible attitude to her responsibilities as a parent. She has been the children’s primary caregiver and, for a significant period, their sole carer responsible for providing for all of their needs. The mother has received no financial assistance from the father. This is all in circumstances where the mother herself came to Australia as a refugee, speaks limited English, has no family support, and had been exposed to significant physical and psychological abuse and family violence.
I am satisfied that although the father expresses both his love for the children and a desire to spend time with them, he has not demonstrated a responsible attitude to his responsibilities as a parent. The father’s history of family violence demonstrates a total disregard for his children’s welfare. The father has failed to take the necessary steps to address his significant mental health and substance abuse issues and his history of family violence. The father did not file any affidavit nor did he produce any other evidence which might lead me to conclude that he has addressed any of these issues.
(j)any family violence involving the child or a member of the child’s family;
I have already discussed in some detail the history of family violence involving the mother and the children. As a result of that history of family violence and the steps taken by the father to locate the mother and the children, it is now necessary for them to live at an undisclosed interstate location.
(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;
There are no current family violence orders in place, however as at the date of the hearing the father was facing two charges of making a threat to kill and one charge of breaching an intervention order. According to the mother’s outline of case, she intends to apply for a new intervention order against the father.
(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;
I am satisfied that it would in this case be preferable to make an order that would be least likely to lead to further proceedings. Although it is arguable that if the father is not successful here he may at some later date institute further proceedings seeking orders that provide for him to spend time with the children, I am also satisfied that even if I were to accede to the father’s application that would similarly lead to further proceedings in circumstances where there is no evidence to suggest that he has addressed any of the issues in relation to his mental health, substance abuse or family violence.
I am also required to consider s 60CC(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:
(iii)     to participate in making decisions about major long-term issues in relation to the child; and
(iv)   to spend time with the child; and
(v)    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.
I have had regard to the events and circumstance since separation. Since separation the mother has of necessity been the parent who has made both the short and long-term decisions in relation to the children. Although pursuant to the orders made by Riethmuller FM, as he then was, the father has not spent time nor communicated with the children, the father has not taken steps to address the issues which led to the making of those orders and which might have led the Court to now conclude that it was in the children’s best interests to spend time with him. The mother has also been solely responsible for the financial support of the children. I have otherwise dealt with the matters in s 60CC(4) in the course of these reasons.

Parental responsibility

I am satisfied that in this case the presumption of equal shared parental responsibility is rebutted on the basis of the history of extensive and serious family violence perpetrated by the father. In those circumstances, it is not necessary to consider whether it is in the children’s best interests and reasonably practicable for them to spend equal or substantial time with each of their parents.
Although it is a serious matter to make orders which exclude a parent from being involved in making decisions with respect to his or her children, I am satisfied having considered all the relevant matters that, in this case, it is in these children’s best interests that the mother have sole parental responsibility for the children. On a practical level it is hard to see how the father and mother could consult for the purposes of making decisions in relation to the children without placing the mother and the children at risk of the father locating their whereabouts and, as a consequence, putting them at risk of further family violence.

Conclusion

Although the father had not filed any affidavits of evidence in chief and therefore had no evidence before the Court, he did with the assistance of his interpreter make submissions in support of his application that he be permitted to spend time with the children. Although he submitted that he respected the law, loved his children, and said that if the Court “want me to go through a process, after that I’ll be able to see my kids, I’m happy to do that … if you direct me to do an anger management course or some correction measure … I am happy to do that”, not only has the father failed to address these longstanding issues or produced any evidence of efforts he has made to address these issues in anticipation of the hearing before me, he has also failed to comply with orders made by this Court and the now Federal Circuit Court and the conditions of the community corrections order. Even if I were to make orders that the father seek assistance for his mental health issues, substance abuse and family violence as a condition of him seeing the children, I have no confidence that he would abide by those conditions.
It is also a serious matter to make orders which exclude a parent from his or her children’s lives, I am satisfied, having considered all the relevant matters that in this case, that it is in these children’s best interests that such an order be made.
It is submitted on behalf of the mother that the father is adept at finding the mother and that an order providing for the father to either spend time or even communicate with the children would expose both the mother and the children to an unacceptable risk of ongoing family violence. I accept the mother’s submissions. On that basis, I propose to make the orders sought by the mother restraining the father from contacting or communicating with the mother or the children, approaching or remaining within 500 metres of the mother or the children, and attending at or remaining within 500 metres of the mother’s residential address or the children’s school, kindergarten and/or childcare centre. It follows that I do not propose to make the orders sought by the father that he be permitted to liaise directly with the children’s schools and attend school functions.
The mother also seeks orders that she be at liberty to relocate with the children within the Commonwealth of Australia, that she not be required to disclose her residential address or the address of the school the children attend, and that she be permitted to obtain passports for the children notwithstanding that the father’s consent for the issue of those passports has not been obtained.
As I propose to make an order that the mother have sole parental responsibility for the children, she is therefore at liberty to choose where she and the children live and there is no requirement that she disclose either her residential address or the address of any school, kindergarten or any other childcare centre that the children may attend. In any event, I am satisfied that it would not be in the best interests of the children for her to be required to do so. The father did not oppose the mother’s application that she not be required to disclose her address.
Similarly, the mother does not need the father’s consent in order to obtain a passport for the children, however, in order to avoid any uncertainty or potential difficulty in relation to the mother obtaining passports for the children, I will make the order that she seeks. The mother also seeks the discharge of the previous orders precluding her from removing the children from the Commonwealth of Australia. I am satisfied that in circumstances where as a result of the orders I propose to make the mother is to have sole parental responsibility for the children and the father will not be spending time with the children, there is no basis for the mother to be restrained from removing the children from the Commonwealth of Australia. I do, however, propose to continue to restrain the father from removing the children from the Commonwealth of Australia and so the children’s names will remain on the Airport Watch List in that regard.
Finally, the mother seeks an order permitting her to change the children’s names. I am satisfied that, on the basis of the lengths to which the father has previously gone to in order to locate the mother and the children and his behaviour upon having located them, it is in the best interests of the children, and in order to protect their whereabouts and that of the mother, to make an order permitting the mother to change the children’s names without first obtaining the father’s consent.
I do not propose to make the non-denigration orders sought by the mother. Firstly, the order proposed is a mutual order in circumstances where, as a consequence of my orders, the father will neither spend time with nor communicate with the children. Further, in this case, it is not so much a matter of the children’s views of the father being tainted by the mother’s criticism or denigration of him but rather the children themselves having witnessed and been affected by the father’s previous behaviour. Insofar as the mother is concerned, I have made orders that she have sole responsibility for the children and I have accepted that she has, and will continue to, act in the children’s best interests.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 3 April 2014.

Associate:

Date: 24 March 2014

[2014] FamCA 210

3 April 2014

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