Eyton & Eyton & Ors
[2013] FamCA 657
FAMILY COURT OF AUSTRALIA
| EYTON & EYTON AND ORS | [2013] FamCA 657 |
FAMILY LAW – CHILDREN – Living arrangements – eldest child to live with paternal grandparents – seven youngest children to live with the mother – eldest child to spend time with the mother and father in accordance with her wishes – seven youngest children to spend substantial and significant time with the father – time spent by the children with the father overnight must occur in the presence of at least one of the paternal grandparents within the paternal grandparents’ home until each child attains the age of ten years – where it was necessary to make orders inconsistent with an apprehended violence order protecting the mother and children from the father.
FAMILY LAW – CHILDREN – Parental Responsibility – presumption of equal shared responsibility in relation to all of the children does not apply due to the incontrovertible evidence of the father’s family violence – equal shared parental responsibility for the eldest child to be shared between the paternal grandparents and the parents – the mother to have sole parental responsibility for the seven youngest children.
FAMILY LAW – CHILDREN – Injunction – parties restrained from allowing the mother’s older son to associate with the children – where the mother’s older son was accused of sexually assaulting some of the children.
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 64B, 65D 65AA, 65DAA, 65DAC, 65DAE, 68P, 69ZK Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) |
| Aldridge & Keaton (2009) FLC 93-421 AMS v AIF (1999) 199 CLR 160 Cales & Cales (2010) FLC 93-459 Dennett & Norman [2007] FamCA 57 Goode & Goode (2006) FLC 93-286 Jacks & Samson (2008) FLC 93-387 Malcolm & Monroe & Anor (2011) FLC 93-460 Marriage of L & T (1999) 25 Fam LR 590 MRR v GR (2010) 240 CLR 461 Potts & Bims & Ors [2007] FamCA 394 Sampson v Hartnett (No.10) (2007) FLC 93-350 U v U (2002) 211 CLR 238 Valentine & Lacerra [2013] FamCAFC 53 |
| APPLICANT: | Mr Eyton |
| 1st RESPONDENT: | Ms Eyton |
| 2nd RESPONDENT: | Mrs Eyton |
| 3rd RESPONDENT: | Mr Eyton Snr |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW, Newcastle |
| FILE NUMBER: | NCC | 1804 | of | 2012 |
| DATE DELIVERED: | 5 September 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 12, 13, & 14 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Murray |
| SOLICITOR FOR THE APPLICANT: | McNeilly Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE 1ST RESPONDENT: | APJ Law Solicitors |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Wilkinson |
| SOLICITOR FOR THE 2ND RESPONDENT: | Crescent Head Legal |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Wilkinson |
| SOLICITOR FOR THE 3RD RESPONDENT: | Crescent Head Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Mooney |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW, Newcastle |
Orders
All former orders relating to the following children are discharged:
(a) A Eyton, born on … 2000;
(b) B Eyton, born on … 2001;
(c) C Eyton, born on … 2002;
(d) D Eyton, born on … 2003;
(e) E Eyton, born on … 2004;
(f) F Eyton, born on … 2005;
(g) G Eyton, born on … 2010; and
(h) H Eyton, born on … 2011
In respect of the child A:
(a)The applicant (“father”), first respondent (“mother”), second respondent (“paternal grandmother”), and third respondent (“paternal grandfather”) shall have equal shared parental responsibility for her.
(b)The child shall live with the paternal grandmother and the paternal grandfather.
(c)Each of the parties shall take all reasonable steps to ensure the child spends time with the mother and with the father in accordance with her wishes.
In respect of the children B, C, D, E, F, G, and H:
(a) The mother shall have sole parental responsibility for the children.
(b) The children shall live with the mother.
(c)Each of the parties shall take all reasonable steps to ensure the children spend time with the father, unless otherwise agreed:
(i)During school terms:
(A)Each alternate weekend, from 4.30 pm Friday until 8.30 am Monday, commencing on the first Friday of each school term; and
(B)Each alternate week, from 4.30 pm Thursday until 8.30 am Friday, commencing on the second Thursday of each school term.
(ii)During school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
(iii)During the Christmas school holidays, for the first two weeks of such holidays when the holidays commence in an even numbered year and for the last two weeks when the holidays commence in an odd numbered year.
For the purposes of implementation of Orders 3(c)(ii) and 3(c)(iii) hereof, the school holidays are deemed to commence at 8.30 am on the first day following the last day of school term, the holidays are deemed to end at 6.30 pm on the last day preceding the day upon which the children are due to return to school, and the mid-point is 1.30 pm on the day halfway between those first and last days.
Order 3 hereof is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years.
(b)From 5.00 pm Saturday until 8.30 am Monday over each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.
The father, paternal grandmother and paternal grandfather are each restrained from causing or permitting any of the children, until they attain the age of 10 years, to spend time with the father pursuant to these orders between 9.00 pm and 7.00 am the following day otherwise than within the home of the paternal grandparents whilst either the paternal grandmother or paternal grandfather is present within the home.
For the purposes of implementing Orders 3 and 5 hereof, unless otherwise agreed:
(a)The mother shall deliver the children to the residence of the paternal grandparents at the time the children are to begin spending time with the father; and
(b)The paternal grandmother or her nominee, excluding the father, shall deliver the children to the residence of the mother at the time the children are to be returned to the mother.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the seven youngest children communicate privately by telephone with:
(a)The father each Monday and Saturday when the children are living with the mother, between 6.00 pm and 7.00 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.
(b)The mother each Monday and Saturday when the children are spending time with the father, between 6.00 pm and 7.00 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
(c)The parent with whom the children are not then staying, on each of the children’s birthdays, between 6.00 pm and 7.00 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
The mother shall authorise and request the principal of any school attended by any of the seven youngest children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.
The mother shall notify the father of any medical emergency, illness or injury suffered by any of the seven youngest children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.
Each party, in so far as it is respectively known to them, shall keep the others informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
Each party is restrained from causing or allowing any of the children to be or remain in the physical presence of the mother’s son X, born … 1997.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other parties in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other parties.
Each party shall forthwith inform the others, and keep the others informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
By reason of an inconsistency between some of these Orders and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:
(a) The Registrar of the Local Court of NSW at Y;
(b) The Commissioner of the NSW Police Service; and
(c)The Director General of the NSW Department of Family and Community Services
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.
Notation
(A)Orders 3, 5, 8, and 11 hereof are inconsistent, or potentially inconsistent, with paragraph 5 of the Apprehended Violence Order made against the father in favour of the mother and the children by the Local Court of NSW at Y on 30 April 2012, in which case Division 11 of Part VII of the Family Law Act applies and these parenting orders prevail to the extent of any inconsistency.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eyton & Eyton 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 NEWCASTLE |
FILE NUMBER: NCC 1804 of 2012
| Mr Eyton |
Applicant
And
| Ms Eyton |
First Respondent
And
| Mrs Eyton |
Second Respondent
And
| Mr Eyton Snr |
Third Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The applicant father (“the father”) and respondent mother (“the mother”) have eight children together and they are the subject of these proceedings. They range in age from 13 years down to one year of age.
The mother has two older children from a former relationship, but no orders are sought in respect of them. One was adopted out at birth and is now an adult and the other is in foster care pursuant to child welfare orders, thereby precluding jurisdiction (s 69ZK).[1]
[1] Family Report, paras 51, 53, 58, 71
The paternal grandparents are also parties to the proceedings, since the parties’ eldest child has lived with them for the last decade. Nobody suggested that arrangement be changed. It was furthermore agreed, or at least conceded, that all parties could have equal shared parental responsibility for that child.
Presently, the other seven children live with the mother. The principal issue in the proceedings was whether they should continue to do so. It is only possible for those children to live with either the mother or the father, since the paternal grandparents are only able to offer the father short-term residential assistance with those children.
Somewhat surprisingly, despite the privations endured by the children and the lengthy involvement by the NSW Department of Family and Community Services (“the Department”) in the affairs of the family, the Department declined to intervene in the proceedings, notwithstanding several invitations to do so[2] in accordance with recommendations made by the Family Consultant.[3]
[2] Order 7 made on 8 August 2012; Order 9 made on 31 August 2012;
Order 3 made on 30 November 2012
[3] Memorandum 24/7/12, page 14; Family Report, paras 56, 134, 150
As the Family Consultant observed at the time the Family Report was written:[4]
This is a very complex matter and there are no easy answers with regards to what parenting arrangement would best suit the children’s needs at this time.
While it is abundantly clear that the relationship between the parents was a very unhealthy one…it is not as clear whether the parents will be able to do a better job of parenting the children now that they have separated.
Both parents lack basic parenting skills and have a tendency to make very bad decisions that impact negatively on the children…
…it may be the case that neither proposal [of the mother or father] is found to be acceptable at this time.
[4] Family Report, paras 146, 148, 149
The past parenting performance of both the mother and father was undoubtedly diminished for a variety of reasons, but while the mother toiled to improve her parenting capacity the father did not. By the close of the evidence it was uniformly recognised the mother offered a more attractive residential option than the father. Nonetheless, there was still debate about whether all of the seven youngest children should live with the mother, how much time and the circumstances under which they should spend with the father, and who should have parental responsibility for them.
Background
The parties began their relationship in 1999, but were not married until 2009.[5]
[5] Family Report, para 22; Mother’s affidavit, paras 59, 63
Their eight children were born between 2000 and 2011.
Their tempestuous relationship was punctuated by several separations and reconciliations. They separated for the final time in March 2012.
The parties were living in the Y district on the New South Wales mid north coast, but upon separation the mother departed that area with the seven youngest children. Thereafter they moved itinerantly to various places in New South Wales and Queensland and the children were unable to see or speak with the father and paternal grandparents for several months.[6]
[6] Memorandum 24/7/12, page 2
The father commenced these proceedings in June 2012 and interim parenting orders were made by the Local Court of NSW at Y in July 2012, the effect of which was to join the paternal grandparents to the proceedings and provide for the eldest child to live with them. The proceedings were then transferred to the Federal Magistrates Court (as the Federal Circuit Court then was) and then subsequently to this Court.
Interim parenting orders were later made with the consent of the parties in August 2012 in respect of the other seven children. Provision was made for them to live with the mother at W in the New England region and to spend time with the father and their eldest sibling on alternate weekends under the supervision of the paternal grandparents in Y.
Although the interim orders were implemented for several months until late 2012,[7] regular compliance ceased in early 2013 and compliance ceased altogether in March or April 2013,[8] apparently because of flooding and the absence of a reliable motor vehicle in which to convey the children.[9] The driving distance between the mother’s residence in W and Y was 258 kilometres and was an arduous journey for the children.[10] No doubt that compounded the difficulty.
[7] Family Report, para 74
[8] Father’s affidavit, paras 158-161, 163-165; Mother’s affidavit, para 182
[9] Mother’s affidavit, paras 128-132, 178-179, 207
[10] Family Report, paras 69, 72
Presently, the father lives with the paternal grandparents and the eldest child in their home at Y. The father intends to remain living in the Y district, but he only planned to secure separate accommodation from the paternal grandparents if orders were made for the seven youngest children to live with him.[11] The paternal grandparents did not envisage the father and the other children living with them on a permanent basis.[12]
[11] Family Report, para 62, 95, 96; Father’s affidavit, paras 179-180
[12] Paternal grandmother’s affidavit, para 9
The mother did not regard her residence at W as permanent,[13] even though the Department apparently regarded the permanence of her residence in that area as necessary for her supervision.[14] The mother told the Family Consultant of her desire to relocate with the seven youngest children to a seaside township, other than Y, on the mid north coast of NSW. Although the mother told the Family Consultant she would move back to the Y area with the children if ordered to do so, she was “horrifie[d]” by the thought of that outcome[15] and the children knew she felt that way.[16] However, the mother changed her mind after reading the recommendations of the Family Consultant in the Family Report. She subsequently deposed to her hope of relocation with the children to the Y area,[17] and on 22 May 2013 managed to secure rental accommodation for herself and the seven youngest children in Y, where she presently remains.
[13] Family Report, paras 53, 78, 79
[14] Family Report, para 66
[15] Family Report, paras 66, 76, 78, 79, 87, 89
[16] Family Report, para 112
[17] Mother’s affidavit, paras 143-145, 152, 200, 209, Annexure N
Since the mother’s move back to Y with the seven youngest children compliance with the interim orders has been satisfactorily restored.
The mother, however, wants to move again with the seven youngest children into public housing accommodation that she hopes will be offered to her in the Port Macquarie district. She is uncertain as to when that offer will be made, but expects it to be more than 12 months hence.
Proposal and evidence of father
Until the last moments of the trial, the father wanted the seven youngest children to live with him instead of the mother. In final submissions he contended for only the second child to live with him and for the six youngest children to continue living with the mother. He proposed that he and the mother have equal shared parental responsibility for those seven children.
The father abandoned the orders set out in his Amended Application filed on 25 February 2013 and instead pressed for the orders set out in a minute of orders he tendered.[18]
[18] Exhibit F3
The father relied upon his affidavit filed on 22 March 2013.
Proposal and evidence of mother
The mother wanted the seven youngest children to remain living with her and desired to have sole parental responsibility for them.
The mother abandoned the orders set out in her Amended Response filed on 28 February 2013 and a subsequent minute of orders.[19] She instead pressed for the orders set out in a revised minute of orders she tendered.[20]
[19] Exhibit M2
[20] Exhibit M4
The mother relied upon her affidavit filed on 17 May 2013.
Proposal and evidence of paternal grandparents
The paternal grandparents only sought orders in respect of the eldest child. They tendered a minute of the orders they proposed,[21] which provided for the eldest child to live with them and for all parties to have equal shared parental responsibility for her.
[21] Exhibit PGP1
The paternal grandparents expressly abstained from seeking any orders in respect of the seven youngest children.
The paternal grandparents relied upon the affidavit of the paternal grandmother filed on 22 May 2013.
Proposal of independent children’s lawyer
The Independent Children’s Lawyer did not announce his position until final submissions when he tendered a minute of orders,[22] which was generally consistent with the mother’s proposal.
[22] Exhibit ICL1
The Independent Children’s Lawyer did not adduce any additional evidence.
Additional evidence
The Independent Children’s Lawyer and the parties relied upon the evidence of the Family Consultant comprised within her Memorandum dated 24 July 2012 and her Family Report dated 28 November 2012, upon which she was cross-examined.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of children
Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44]-[48], [65], [74], [109]-[112], [119]; Potts & Bims & Ors [2007] FamCA 394 at [8]-[9]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Valentine & Lacerra [2013] FamCAFC 53 at [42]-[43]; Aldridge & Keaton at [59]-[61], [75]-[81], [83]; Dennett & Norman [2007] FamCA 57 at [53]-[60]).
Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern grandparents may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111]-[112], [119]; Malcolm & Monroe & Anor (2011) FLC 93-460 at [94]-[100]; Valentine & Lacerra [2013] FamCAFC 53 at [51]-[53]). Consequently, the parents and paternal grandparents are discussed simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.
These proceedings were commenced on 20 June 2012 and so the amendments to the Act, and in particular to the provisions of s 60CC stipulating the considerations relevant to findings about the children’s best interests, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 now apply (see Schedule 1, items 44 and 45).
Best interests – primary considerations
Section 60CC(2)(a)
It was beyond argument that all of the children enjoy meaningful relationships with both parents, though the children’s individual relationships with the parents are probably qualitatively different.
Even though the eldest child will remain resident with the paternal grandparents, she informed the Family Consultant she enjoyed spending time with both parents and her siblings.[23]
[23] Memorandum 24/7/12, page 5
The second, third, fourth, fifth and sixth children collectively informed the Family Consultant that they wished to spend more time with the father, paternal grandparents and eldest sibling, whom they clearly adored. Their love for and desire to be with the mother was also evident.[24]
[24] Family Report, paras 103, 106, 108
All of the children were observed by the Family Consultant to interact happily with both the father and mother.[25]
[25] Family Report, paras 142, 143
The Family Consultant expressed some concern about the children’s psychological attachment to the mother, particularly in respect of the two youngest children,[26] but the mother has always been their primary carer and the evidence justifies a finding that they have meaningful relationships with her. No party ultimately submitted the six youngest children should live with anyone other than the mother.
[26] Family Report, paras 117, 122, 123, 145
All of the children will benefit from maintenance of their meaningful relationships with both parents. Indeed, no submission was made to the contrary. That objective will be achieved by ensuring that all of the children spend time and communicate reasonably frequently with the parent/s with whom they do not live.
Section 60CC(2)(b)
The past occurrence of family violence between the parents was a troubling feature of these proceedings.
Shortly following the parents’ separation in March 2012 the mother approached the police to make a statement collating her grievances against the father.[27] In reliance upon that statement the police successfully applied for an interim family violence order to protect the mother and children from the father. The interim order was made final in April 2012.
[27] Mother’s affidavit, Annexure B
The mother alleged in her police statement that the father frequently called her grossly abusive names, threatened her with death, and threatened injury to the children. She elaborated those allegations in the affidavit she filed in these proceedings.
The extent of the father’s vicious treatment of the mother should not be minimised. The father referred to the mother as a “black slut” and told her she was ugly and he did not love her.[28] He told her she should “fuck off” and “get raped by the blacks”.[29] The father also threatened the mother’s safety by saying “If you leave I will shoot you”, “I have seven graves dug” and “I am going to bury you and the children alive”.[30] The father said to the mother “I am going to kill the kids, I am going to burn them alive”[31] and he threatened to “smash” the second youngest child’s head into the side of a van.[32]
[28] Mother’s affidavit, paras 34, 46, 52, 53, 60
[29] Mother’s affidavit, paras 46, 60, 73
[30] Mother’s affidavit, paras 38, 45, 47, 97
[31] Mother’s affidavit, para 74
[32] Mother’s affidavit, para 75
Much of that evidence proved uncontroversial. The father admitted he called the mother derogatory names and made such hateful comments to her. He also admitted he threatened to harm her – sometimes in the presence of the children. He said he did not recollect saying all of the things allegedly attributed to him by the mother but, apart from denying any threats to harm the children,[33] he was not prepared to deny the truth and accuracy of the mother’s evidence. As might be expected, he conceded the children would have been frightened by his remarks to the mother.
[33] Father’s affidavit, para 14
It is common ground the father was convicted of and sentenced for assaulting the mother in 2008, but while the mother alleged the father’s physical violence was a more common occurrence,[34] the father denied any other physical assault of the mother. During the incident in 2008 the father alleged he only “slapped” the mother, but the father was convicted and sentenced in accordance with the police records, which asserted the father punched the mother in the head with a closed fist multiple times causing her injury.[35] The mother was a more measured, thoughtful and forthright witness than the father, so her evidence was preferable in the event of discrepancy.
[34] Mother’s affidavit, paras 34, 37, 49, 54, 60, 62, 91
[35] Family Report, paras 15-16; Mother’s affidavit, para 54; Father’s affidavit, para 17
Although the mother also asserted the father was sexually demanding, she did not expressly allege she was sexually assaulted by him.[36]
[36] Mother’s affidavit, paras 30, 65, 90
The evidence proved the father was an abusive and controlling bully. He dealt with the mother over many years in an oppressive, degrading and humiliating way, for which he should rightfully be ashamed.
It is probable the mother also reacted violently towards the father from time to time, as he alleged,[37] but more than likely she did so as a protective measure.[38] I do not accept as accurate the Family Consultant’s conclusion, based on reports by the children and paternal grandparents, that the parties were involved in “mutual combat”, implying equivalent responsibility for the violent behaviour within their household.[39] In evidence, the father tended to minimise his family violence, just as the Family Consultant found he did with her.
[37] Father’s affidavit, paras 19-20
[38] Mother’s affidavit, para 91
[39] Memorandum 24/7/12, page 3; Family Report, paras 18, 92, 135
By reason of the mother’s past adverse experiences with the father it is understandable she is wary and would prefer to avoid personal interaction with him.[40]
[40] Mother’s affidavit, para 209
The passage of time since the parties’ separation does not seem to have calmed the father. He admitted their relationship had been “volatile”[41] and he was irascible and highly critical of the mother when discussing her during cross-examination, leaving little room for any conclusion other than that his emotions towards the mother still run deep.
[41] Father’s affidavit, para 11
The prospect of the father acting towards the mother in an unrestrained and aggressive way remains pronounced. If exposed to behaviour of that sort, the children are liable to suffer psychological harm, so it is essential they are protected from that risk. The Court is also duty bound to make orders, where possible, that do not expose the mother to an unacceptable risk of family violence (s 60CG(1)(b)). Those outcomes can only be ensured by orders which minimise the need for the parents to interact with one another directly.
Significantly, the mother did not submit the past family violence should result in the severance or even curtailment of the children’s relationships with the father. On the contrary, she agreed it was in their interests to maintain regular interaction with him. That was why she decided to move back to Y. It must follow the mother does not envisage the children are at unacceptable risk of harm through exposure to family violence by the father, provided she is not required to deal directly with him. As a consequence, the issue of past family violence really only materially pertains to the allocation of parental responsibility for the children (s 61DA(2)).
Despite some evidence adduced by both parents, which could capably be construed as evidence of the children’s alleged “abuse” or “neglect” by the other, the evidence was largely ignored. No submission was ultimately made by any party or the Independent Children’s Lawyer that any of the children were at risk of physical or psychological harm through subjection or exposure to abuse or neglect.
Best interests – additional considerations
Section 60CC(3)(a)
The eldest child, who is now 13 years of age, expressed a clear desire to remain living with the paternal grandparents. She has lived with them for most of her life and, given her age and maturity, her view should carry substantial weight.
The second, third, fourth, fifth and sixth children spoke lovingly to the Family Consultant of both parents and their stated views about parenting arrangements were consistent with such mutual affection.
Their strongest desire was to move back to the Y district, in which event they were content to remain living with the mother, although they still wanted to see much more of the father, paternal grandparents and their oldest sibling. On the other hand, they expressed the desire to instead live with either or both of the father and paternal grandparents if the mother declined to move back to the Y area. Curiously, the children defined “home” as living with the paternal grandparents and nominated the paternal grandmother as the person to whom they would normally resort in times of trouble.[42] The sentiments they expressed in November 2012 were unchanged since the time of their earlier interview with the Family Consultant in July 2012.[43]
[42] Family Report, paras 69, 103-108
[43] Memorandum 24/7/12, pages 5-10
Those children are aged between twelve and seven years respectively. They are still too young to have significant weight reposed in their views, but it is instructive that their views were so consistent and so ardently expressed.
The two youngest children were too young to express any views.
Section 60CC(3)(b)
The nature of the children’s relationships with the parents has been adequately addressed under s 60CC(2)(a) of the Act.
It was not disputed the children enjoy loving relationships with the paternal grandparents. Nor was it disputed they are affectionate towards the maternal aunt and enjoyed leisure activities with the maternal uncle.[44] The children do not seem to have a well developed relationship with the maternal grandfather.[45]
[44] Family Report, paras 105, 106, 107, 108, 110, 142, 143
[45] Family Report, para 110
Section 60CC(3)(c)
Both parents have effectively left all decisions relating to the eldest child to the discretion of the paternal grandmother. The parents have been content to be merely kept informed of such decisions.
The mother assumed sole responsibility for all decisions relating to the other children in her care. The father acquiesced to that arrangement. The paternal grandparents have never sought to intervene in decisions affecting the seven youngest children.
The father was frustrated by the mother’s relocation away from Y with the seven youngest children following their separation in March 2012. The preclusion of his interaction with the children prompted his commencement of these proceedings in June 2012, but he was satisfied with the interim orders made in August 2012 requiring the children to visit him each fortnight.
When those orders could not be implemented because of the unreliability of the mother’s car, preventing her transport of the children between W and Y, the mother offered the father the opportunity to travel to W to visit the children.[46] The father did not avail himself of that offer. His only explanation was the paternal grandmother did not want to accompany him on the journey as his designated supervisor. That hardly seemed a reasonable justification, given the hiatus of several months duration. The most likely inference is the father enjoys spending time with the children, provided it does not cause him too much inconvenience.
[46] Exhibit M1
Section 60CC(3)(ca)
The father pays child support to the mother for the seven youngest children in the sum of $30 per month. The father pays no child support to the paternal grandparents in respect of the eldest child.
That situation might be justified by the father’s unemployment and his reliance upon social security, but for his evidence in cross-examination. The father admitted he works casually and is paid cash in hand. There was no evidence as to the average quantum of his undeclared income, but none of it was shared with the mother or paternal grandparents. The father only pays $50 per week to the paternal grandparents for his own board. The father also admitted he recently received $7,000 from his superannuation entitlements following his hardship application, which he banked. He has not yet shared any of those funds with the mother or paternal grandparents either.
All of the parties in these proceedings struggle financially to maintain themselves and the eight children. If the father’s sense of parental responsibility was better developed he would do more to support the children.
Section 60CC(3)(d)
The seven youngest children currently spend alternate weekends with the father and paternal grandparents, pursuant to the interim orders made in August 2012.
According to the proposals made by all parties and the Independent Children’s Lawyer, at least the six youngest children will maintain that regime of residence with the mother and alternate weekend visits with the father and paternal grandparents. Although the father proposed a reversal of that arrangement for the second child, it was laudably acknowledged such an arrangement was contrary to the weight of evidence.
There was also agreement for the children to spend some time with the father and paternal grandparents during each alternate week, although there was dispute about the duration of such visits. There will consequently be some change in arrangements for the seven youngest children, but the proposals of the parties and Independent Children’s Lawyer signify their acknowledgement that the children will cope with the extent of the proposed changes.
The eldest child will remain resident with the paternal grandparents, whose household will presumably continue to include the father. It was unanimous that her visits with the mother would be dictated by the child’s desire. That has effectively been the situation for years, so nothing will change for her.
Section 60CC(3)(e)
The parties all now live in the Y district. They live in sufficient proximity to enable all of the children to spend substantial and significant time with all parties.
The only difficulty in exchanging the children is the parties’ lack of a sufficiently large vehicle to safely transport all of the children together. Both parents professed an intention to acquire another vehicle to overcome that problem.
The mother maintains a desire to ultimately relocate with the seven youngest children to Port Macquarie. It was agreed the driving time between Y and Port Macquarie is 35 minutes. Even if that relocation eventuates, the extra distance will not preclude implementation of the parenting regime envisaged by the parties and Independent Children’s Lawyer. Some extra fuel expenses will be incurred, but that will not prevent operation of the orders. The fuel expenses did not preclude the implementation of similar orders when the mother was required to transport the children between W and Y.
Section 60CC(3)(f)
There can be no doubt about the mother’s ability to meet the children’s physical needs. She has been doing so, without assistance, since the time of separation.
Although the Family Consultant wondered about the mother’s capacity to meet the children’s emotional needs, the other parties dispensed with that concern, conceding that at least the six youngest children should remain living with the mother. They would not have suggested such an outcome if they felt better placed than the mother to cater to the children’s needs.
The Family Consultant was previously concerned by the mother’s past psychological condition, which was liable to affect her emotional availability to the children and prevent her from prioritising the children’s needs above her own. Moreover, the Family Consultant was sceptical about her ability to change.[47] When presented with updated information during her cross-examination, the Family Consultant was pleasantly surprised by the mother’s progress and conceded she seemed to be coping much better than she was when formerly interviewed.
[47] Memorandum 24/7/12, page 3; Family Report, paras 26, 37, 67, 130, 132, 134
The mother voluntarily completed a parenting course.[48] More recently she sought a mental health assessment, following which she was informed she did not require any counselling or therapy,[49] but she participated in some therapy nonetheless.[50]
[48] Family Report, para 85; Mother’s affidavit, para 203
[49] Mother’s affidavit, paras 120, 205, Annexure R
[50] Mother’s affidavit, para 206
The children’s school reports issued by the W public school suggested the children were progressing satisfactorily.[51] It was also an agreed fact the children are all currently progressing well at the Y public school they now attend. Although the Family Consultant advised caution about the inferences permissibly drawn from the children’s school reports, their progress and settlement probably indicates they are being satisfactorily supported by the mother at home. It also tends to demonstrate the mother’s capacity to meet the children’s intellectual needs.
[51] Mother’s affidavit, paras 147-148, Annexures I, J
By comparison, the father has experienced little in the way of tangible attitudinal change. Apparently pursuant to the interim orders,[52] the father sought counselling about the deleterious effects of domestic violence,[53] but he had already completed the same program in 2008 as part of his sentence following his assault upon the mother. The Family Consultant considered the father displayed “some” insight into the cycle of family violence,[54] which she assumed resulted from his participation in that course, but there was little insight on display when the father grossly minimised his violent past and sought to attribute most, or at least equal, blame for the domestic violence to the mother. He did not undertake the parenting course recommended for him by the Family Consultant,[55] for which failure he had no adequate explanation.
[52] Order 1.2 made on 31 August 2012
[53] Family Report, para 93; Father’s affidavit, para 185
[54] Family Report, paras 93, 137
[55] Family Report, Recommendation V (page 37)
As the Family Consultant correctly observed, the father’s parenting capacity is really untested.[56] The mother was the primary carer for the children during their cohabitation, because the father normally worked to derive the family income. Since separation the mother has cared for the seven youngest children alone. The father has lived with the paternal grandparents since the time of separation and during the children’s visits with him the paternal grandmother is habitually the primary carer for the children. The father has never cared for any of the children whilst maintaining his own household.
[56] Family Report, para 117, 148
The Family Consultant properly acknowledged the need to test whether the father could “make the necessary changes to his life so as to step up and meet the needs of the children – or whether he will continue to rely on the assistance of his parents as he has always done in the past”.[57] The passage of time has inexorably proven the latter rather than the former. The evidence does not rationally permit a conclusion the father is capable of meeting the children’s physical and emotional needs on a permanent basis in the manner required of a residential parent. His inertia suggests he will remain living with the paternal grandparents whilst ever they allow him to do so.
[57] Family Report, para 128, 148
Ultimately the father sought an order that only the second child live with him,[58] apparently merely because she had occasionally expressed a desire to live with him, notwithstanding she had also variously expressed desires to remain living with the mother and also to live with the paternal grandparents and the eldest child.
[58] Exhibit F3, Order 9
The father’s proposal was acutely superficial. It was made for the first time in final submissions, and seemingly in ignorance of other salient considerations like how the second child might react in the longer term to separation from her siblings, how the siblings would be affected, and how he would cope living alone with a pre-pubescent daughter without any individual parenting experience. It really would be, as the Family Consultant described it, an “experiment”. The Family Consultant maintained her opinion that none of the children should live with the father.
If the father’s proposal really was for the second child to live with him, together with the paternal grandparents and the eldest child within a common household, then the proposal was made in ignorance of the paternal grandmother’s original evidence. She said that, apart from the eldest child, they could not accommodate any of the children other than on a short-term basis or for periodic visits.
The paternal grandmother revised her evidence in cross-examination and said the second child could live with them if she desired, but she did not explain why that would be feasible when she previously deposed it would not. The paternal grandmother confirmed it was not her application for the second child to live with them.
The paternal grandparents have the capacity to meet all of the eldest child’s physical, emotional and intellectual needs. They also play a significant role in assisting the father to meet the other children’s physical and emotional needs during their periodic visits. The paternal grandmother had no concerns about the children in the mother’s residential care.
Section 60CC(3)(g)
The parents’ past illicit drug use and alcohol misuse was a prominent feature of the evidence.
The mother’s current abstinence from illicit drug use is further evidence of her effort to rehabilitate her parenting capacity. She proved her abstinence by producing negative urinalysis tests taken over the past year.[59] The father is seemingly satisfied of her reformation.[60]
[59] Mother’s affidavit, para 125, Annexure E; Exhibit M3; Family Report, para 86
[60] Father’s affidavit, para 83
The father’s efforts have not been as encouraging. He acknowledged he was unable to remain abstinent from cannabis use until only a few weeks ago. He produced a negative urinalysis test dated 24 July 2013,[61] but admitted he only ceased the use of cannabis some 12 days before the test.
[61] Exhibit F2
The father began smoking cannabis when aged only 16 years and he is now aged 39 years, so for the past 23 years he has regularly smoked cannabis. The father admitted he “ha[s] an issue with cannabis”[62] and conceded, at least until very recently, his best efforts had only resulted in a reduction rather than cessation of cannabis use.[63] Although he denied the mother’s allegation he smoked cannabis in the presence of the children,[64] there is little doubt his psychological or physiological addiction to cannabis has been pronounced. Against that history, abstinence over only the last month or so is an insufficiently secure foundation to predict he has overcome the habit. The chance of relapse must logically remain quite high for some time yet.
[62] Father’s affidavit, para 186
[63] Father’s affidavit, para 81
[64] Mother’s affidavit, para 160; Father’s affidavit, para 82; Family Report, para 86
As would be obvious, illicit drug use is antithetical to responsible parenting. Intoxication deprives the parent of the acumen to properly care for the children and, just as importantly, models destructive behaviour to the children.
The mother consequently proposed an order restraining any party from being “under the influence of any illicit substance or of alcohol to the extent that the party has a blood alcohol concentration which is in excess of the legal limit for driving in NSW” whenever the children are in the care of that party.[65] Even though the objective of the order is commendable, I decline to make the order for a number of reasons.
[65] Exhibit M4, Order 10(e)
Firstly, there is no evidence which reasonably permits an inference that any party is now prone to intoxication by alcohol to an extent that would preclude their physical care of the children. Neither the parties nor the Independent Children’s Lawyer contended to the contrary.
Secondly, the proposed order is impossible to enforce and so it is futile. Who would measure the blood alcohol concentration of the parties and how would it be measured? Only the police and medical authorities are authorised by State legislation to administer tests, scientific or otherwise, designed to measure a person’s blood alcohol concentration, and only then in connection with driving performance. The parties have no power to do so and the Court has no power to authorise it.
Thirdly, the evidence probably demonstrates that only the father is now prone to future use of illicit drugs. It is an offence for him to use illicit drugs at any time. There is no point to an order that only restrains him from using illicit drugs at certain times when it is unlawful for him to use them at all. Nor is there any point to an order that purports to limit the extent to which he becomes stupefied by the ingestion of illicit drugs. An unlawful act is unlawful per se. There are no gradations of unlawfulness, only aggravated examples of the unlawful conduct. An order that implies authorisation for a party to act only slightly or moderately unlawfully is misconceived, not simply futile.
Sections 60CC(3)(h), (6)
The mother has Aboriginal heritage, but does not identify as Aboriginal. The father and the children do not identify as Aboriginal.[66] There is no evidence that any party intends to inculcate the children with their indigenous heritage.
[66] Family Report, para 1
Section 60CC(3)(i)
The attitudes of the parents to the children and the responsibilities of parenthood have already been satisfactorily addressed under the rubric of ss 60CC(3)(f) and (g). Nothing can be usefully added.
Save for their past hostility towards the mother, which the children probably perceived, the paternal grandparents display appropriate attitudes to the children and to the responsibilities that attend their residential care of the eldest child.
Thankfully, the past animosity between the paternal grandmother and mother has abated.[67] They both affirmed the thaw in their relations, which now permits them to chat amiably about the children and their progress.[68] Maintenance of that harmonious relationship between the mother and paternal grandmother is very important for the children.
[67] Memorandum 24/7/12, page 12; Family Report, para 4
[68] Family Report, para 74
Section 60CC(3)(j)
The issue of family violence has been thoroughly canvassed under s 60CC(2)(b). No more need be said.
Section 60CC(3)(k)
On 30 April 2012, the Local Court of NSW at Y made a family violence order against the father for the protection of the mother and all eight children. The order lasts for three years.[69]
[69] Mother’s affidavit, Annexure C; Family Report, paras 43, 63
One part of the family violence order is inconsistent with both the existing interim parenting orders and the various final parenting orders proposed by the parties in these proceedings.
Paragraph 5 of the family violence order provides as follows:
“The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation, or mediation.”
The “defendant” is of course the father.
The “protected persons” are the mother and the children.
The family violence order precludes the father from contacting the mother to discuss issues relevant to the children, including the exchange of the children between them. That is because the father may only contact the mother in one of the nominated ways and only then for the purposes of “counselling, conciliation, or mediation”.
The family violence order even precludes the father from allowing the children to spend time or communicate with him, because they are designated as protected persons.
The literal terms of the family violence order are untenable in the face of the parenting orders this Court is enjoined to make. The parenting orders specify the inconsistency with the family violence order and explain how those parenting orders will operate, as required by s 68P(2)(a),(b) of the Act.
The following explanation is therefore given to the parties pursuant to the Court’s obligations under s 68P(2)(c),(d) of the Act:
a)The parenting orders are inconsistent with paragraph 5 of the family violence order because the need may arise for the mother and father to correspond with one another about the children or the need may arise to exchange the children between them. There is also a need for the children and the father to approach and contact one another.
b)It is necessary to make parenting orders which are inconsistent with paragraph 5 of the family violence order in order to promote the children’s best interests.
c)The children’s best interests are promoted by them spending time, and communicating, with the father. That will be aided by the mother and father being able to contact one another if necessary, in person, by telephone, and in writing, to ensure that occurs.
d)The parenting orders set out how the children are to spend time, and communicate with, the father.
e)The parenting orders do not require breach of paragraphs 1(a), 1(b), or 1(c) of the family violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence order may be consistently obeyed.
f)Contravention, variation, or revocation of the family violence order will be dealt with by prosecution or application in the Local Court of NSW.
g)Contravention or variation of the parenting orders will be dealt with under the terms of the Act.
The terms of the family violence order which remain valid offer appropriate protection to the mother against the father. The existence of that order is a factor which assists the Court to make orders that achieve the aim of the mother’s protection, as prescribed by the Act (s 60CG).
Section 60CC(3)(l)
None of the proposals made by the parties or Independent Children’s Lawyer are either more or less likely to lead to the institution of further proceedings in relation to the children.
Section 60CC(3)(m)
The mother’s older child X lives in foster care. Despite past equivocation by the mother about the veracity of such allegations, the Department was satisfied X had sexually abused some of the children, or at least attempted to do so.[70] The mother explained in cross-examination how she struggled with her conflicted sense of loyalty to X and to the other children before finally deciding X presented too great a risk to the other children. She ultimately asked staff of the Department to remove X into foster care, where he will remain until his majority. His interaction with the mother is now only occasional[71] and the children remain wary of him.[72]
[70] Family Report, paras 33-36, 48-50, 58, 123, 131
[71] Family Report, paras 71, 80
[72] Family Report, para 111
The child X will attain his majority in February 2015. What becomes of him then is unknown. Understandably, concern was expressed about him then returning to live with the mother in her household with the seven youngest children. The mother at least implied she would not allow it because of his violent tendency and his sexual proclivities, but her present intention does not induce sufficient confidence in the probability of that outcome. The father’s proposal for an injunction precluding X’s interaction with the children was irresistible.[73]
[73] Exhibit F3, Order 20
There was inconsistency in the evidence adduced about whether the mother was sexually abused as a child by her brother. The father said the mother admitted the abuse to him,[74] but the mother denied it.[75] Irrespective, the maternal uncle has been afflicted by psychological instability in the past and he is prone to act violently or aggressively towards the maternal grandfather.[76] Independent records tend to verify the risk presented by the maternal uncle.[77]
[74] Father’s affidavit, paras 58-59
[75] Mother’s affidavit, paras 184, 197
[76] Mother’s affidavit, para 197; Memorandum 24/7/12, page 3; Family Report, para 45
[77] Family Report, paras 2, 48
That evidence gave rise to concern about the children’s safety in the company of the maternal uncle, so the parties agreed upon an interim order that required the children’s supervision when with him.[78] No party sought an extension of that order, all of whom were presumably satisfied by the mother’s assurance of her compliance with the interim injunction.[79] The mother affirmed the children do not now see the maternal uncle as a consequence of their relocation from W to Y. While they may see him from time to time in future, those occurrences are likely to be rare and the mother is vigilant of the children when near him.
Conclusions and orders
[78] Order 1.20 made on 31 August 2012
[79] Mother’s affidavit, paras 141-142
Parental Responsibility
In respect of all children, the presumption of allocation of equal shared parental responsibility to the parents does not apply by virtue of the incontrovertible evidence of the father’s engagement in family violence (s 61DA(2)).
In respect of the eldest child, the parties’ agreement for her to remain living with the paternal grandparents necessarily means the paternal grandparents should share in her parental responsibility.
It was always a common position that both parents and both paternal grandparents would have equal shared parental responsibility for the eldest child, until final submissions, when the mother changed her mind and wished to exclude the father.[80] It transpired though that the mother had no objection to the father sharing in the child’s parental responsibility, provided the parents could liaise with the paternal grandparents rather than directly with one another in respect of the significant decisions that need to be made for the eldest child. The best interests of the eldest child are served if both parents and the paternal grandparents have equal shared parental responsibility for her, just as the paternal grandparents, father and Independent Children’s Lawyer jointly proposed.
[80] Exhibit M4, Order 1
As for the seven youngest children, the paternal grandparents expressly disavowed any interest in sharing parental responsibility for them so there is no point forcing their involvement in that manner. It is inevitable those children must remain living with the mother, so the question distils to whether the mother should have sole parental responsibility for them, as she proposed,[81] or whether the parents should have equal shared parental responsibility, as the father proposed.[82] The Independent Children’s Lawyer had no view. Nor did the paternal grandparents.
[81] Exhibit M4, Order 4
[82] Exhibit F3, Order 4
As the evidence unfolded it became painfully apparent that the mother and father are unable to communicate effectively, irrespective of the restrictive terms of the family violence order that will prevail until April 2015. When asked about his proposal for equal shared parental responsibility, the father said in respect of the mother “she won’t talk to me so how can we discuss anything?”. It is little wonder the mother is reluctant to converse with the father having regard to the manner in which he treated her. Her opinion of the father would hardly have been improved by his evidence, since he took every conceivable opportunity to criticise her.
The reality is the parties do not have the capacity to courteously consult one another and rationally discuss, in good faith, issues of major long-term importance to the seven youngest children, as the law would require of them if equal shared parental responsibility was allocated to them (s 65DAC). The only feasible outcome is to allocate sole parental responsibility for them to the mother. I reject the Family Consultant’s opinion that the parents should share parental responsibility for the seven youngest children.[83]
[83] Family Report, Recommendation VII (page 37)
The parents could not agree upon the school the seven youngest children should attend and argued that as a discrete issue from the allocation of parental responsibility for them.
In May 2013 the mother relocated back to Y with the seven youngest children and enrolled the school-aged children at the local Y public school, where they currently attend.
The father still faintly proposed that the children be removed from that school and re-enrolled at the T public school,[84] but his proposal was flawed.
[84] Exhibit F3, Orders 6-8
It was an agreed fact the children are doing well at their current school. The mother reported the teachers are satisfied with the children’s progress and they are joining in sporting and other extra-curricular activities such as the choir. The children have paternal cousins at the school whom they have befriended. They have also forged other friendships at the school. The school is a walk of only two minutes duration from the mother’s home and the mother is able to observe the children over the journey between her home and the school grounds.
In the past, when the mother and children still lived at W, the Family Consultant recommended their relocation to the Y district and re-enrolment of the children at the T public school.[85] However, upon learning of the mother’s relocation and the children’s current attendance and pleasing progress at the K public school, the Family Consultant understandably resiled from her former recommendation. She acknowledged it would be disruptive for the children to again be moved to a different school. The older children have already attended up to five different schools in the past few years, which had the potential to disrupt their academic achievement and socialisation.[86] The chance of that should not now be increased by enforcing another change of school.
[85] Family Report, Recommendations III, IV and VII (pages 36-37)
[86] Memorandum 24/7/12, page 5
The mother should make decisions about the children’s schooling as an incident of her sole parental responsibility for them.
Residence
Since equal shared parental responsibility is not allocated to the “parents” in respect of any child, there is no obligation to follow the path designated by s 65DAA in determining their residential arrangements.
The allocation of equal shared parental responsibility in respect of the eldest child to the parents and paternal grandparents does not require evaluation of the benefits and practicality of that child living for equal time between the households of the paternal grandparents, mother, and father. The eldest child should remain resident with the paternal grandparents, as was common ground. That outcome serves her best interests.
The seven youngest children should remain resident with the mother. The father’s belated proposal for only the second child to live with him is rejected for the reasons canvassed under s 60CC(3), but most particularly s 60CC(3)(f). As the Independent Children’s Lawyer succinctly submitted, the mother’s parenting capacity was superior to the father’s. The continued residence of the seven youngest children with the mother is consistent with the weight of the Family Consultant’s evidence. The Family Consultant did not support any of the seven youngest children living with the father, even if it was within the paternal grandparents’ home.
The father sought an order restraining the mother’s future residential relocation beyond 25 kilometres from the centre of Y.[87] Although the Court has power to make the injunctive order sought by the father, such orders should only be made cautiously (see Cales & Cales (2010) FLC 93-459 at [74]-[91]). That is because parents have as much residential freedom as is compatible with their obligations pertaining to the children (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210, 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350). Only when the welfare of the children would be adversely affected should a parent’s right of freedom of mobility defer to the paramount consideration of the child’s best interests (see U v U (2002) 211 CLR 238 at 262), and that is not the situation here merely because the mother covets a move to Port Macquarie from Y.
[87] Exhibit F3, Order 5
There is no warrant for such an impediment upon the mother’s freedom of accommodation and movement, and conversely, there is good reason why she should have such freedom.
Firstly, the proximity of Port Macquarie to Y would not preclude her compliance with the parenting orders. Even if the mother later becomes inclined to move to some place other than Port Macquarie or Y, her ability to do so will be circumscribed by her obligatory compliance with the regime under which the children spend time with the father.
Secondly, she only has a lease of six months duration over her current home in Y. Her continued occupation of that home is not within her unilateral control. If she is forced to vacate it there is no evidence about the ease with which she would be able to obtain substitute accommodation in Y in her penurious circumstances. The mother’s desire to move to Port Macquarie is partly motivated by an expected offer of secure public housing in that area. If she does not receive an offer of public housing in that area her stated intention is to remain in Y.
Thirdly, the mother remains wary of the father and wishes to put some moderate distance between them to alleviate her sense of vulnerability, which is not unreasonable. The father admitted he knows the mother does not wish to live close to him. As the Family Consultant said:[88]
It may be of benefit to the mother to be allowed to relocate with the children to either Port Macquarie or Coffs Harbour, on the basis that to do so will strengthen her ability to parent the children, as well as allowing her to distance herself from the family violence and any threat presented by the father.
[88] Family Report, Recommendation II (page 36)
The mother also advanced better medical facilities for the children in Port Macquarie as a reason for her desire to relocate there, but that evidence carries little, if any, weight. The mother probably does not have the knowledge to reliably inform the Court about the respective attraction of medical facilities in Port Macquarie and Y.
Spending time
As is the case with the concept of “equal time”, it is not mandatory to consider orders under s 65DAA providing for the eldest child to spend “substantial and significant time” with both the mother and the father. Nevertheless, that outcome may still be ordered if appropriate.
All parties and the Independent Children’s Lawyer agreed the eldest child should spend time with the mother in accordance with the child’s wishes, without the need for any default prescription. The Family Consultant endorsed that position because she had sufficient faith in both the eldest child’s independence and the paternal grandmother’s good sense to ensure the child was not unduly pressured about the level of her interaction with the mother. Orders are therefore made consistently with that uncontroversial evidence. The same style of order is made in respect of the time the eldest child should spend with the father.
As for the other children, the parties and Independent Children’s Lawyer had different ideas about the regime under which they should spend time among the family members. Commonly, though, they suggested the two youngest children should be treated separately and graduate to the regime adopted for the others.
The rationale for dealing with the youngest two children differently was apparently founded only on some isolated comments of the Family Consultant. In the Family Report the Family Consultant suggested there could be a “stepped approach” for the younger children,[89] and in cross-examination the Family Consultant agreed with a proposition that it was appropriate for the youngest children to spend a few hours during the week with the father. Without implying any criticism of the Family Consultant, whose evidence in most respects was logical and persuasive, that evidence does not preclude the children from being treated uniformly.
[89] Family Report, Recommendation IV (page 36)
The evidence within the Family Report was becoming stale. It was compiled last year and several important developments have since occurred, such as the mother’s relocation to Y, the enrolment of the younger school-age children at Y public school, and the improvement in the mother’s parenting capacity. Importantly for present purposes, the youngest child is now verging on two years of age. The Family Consultant expressly said the hours the two youngest children presently spend with the paternal family on Saturdays and Sundays of alternate weekends, pursuant to the existing interim orders, is not enough for them. They need to spend more time with the father. The Family Consultant’s agreement to the idea of them spending additional time with the father midweek did not overtly foreclose the prospect of that time including overnight stays.
It is indisputable that all of the children should spend more time with the father than currently occurs. The evidence supposedly justifying differential treatment of the children is unconvincingly sparse. Inferentially, it would be of benefit to all of the children for them to spend time with the father and paternal grandparents together, which arrangement has the added benefit of reprieving the mother of her child care responsibilities at regular times so she may recover her energy. Of course, if the parties take a different view then they may agree otherwise between themselves.
The orders provide for the seven youngest children to spend time with the father, during school terms, on alternate weekends and for one midweek night in alternate weeks. The father sought two consecutive nights in alternate weeks, but his proposal is rejected. The sheer number of people in the undoubtedly cramped conditions within the paternal grandparents’ home would certainly compromise the children’s ability to complete school homework, and additionally, the Family Consultant thought two nights would be disruptive for them. Four nights with the father each fortnight is “substantial and significant time” (s 65DAA(3)) and is sufficient time to enable the children to develop their relationships with him. In all probability, the proposal for a fifth night was simply to sate the father’s desire, not to fulfil the children’s best interests.
The children will also spend two weeks with the father during the Christmas school holidays and one week in all other school holiday periods, consistently with the proposal of the mother and Independent Children’s Lawyer. The father’s proposal only differed slightly by seeking one-half of the Christmas school holidays in lieu of two weeks.
Although the parties mutually considered the seven youngest children should spend substantial and significant time with the father, there was dispute about whether that interaction should be the subject of some form of supervision by the paternal grandparents.
While the father opposed any form of supervision, however informal, the mother and Independent Children’s Lawyer both submitted the children, when staying overnight with the father, should always sleep overnight at the paternal grandparents home with at least one of the paternal grandparents being home.
I am satisfied of the need for some form of restriction, but not in the imprecise and indefinite terms proposed by the mother and Independent Children’s Lawyer. The restriction imposed by the orders requires the father and paternal grandparents to ensure that each of the children, until they attain 10 years of age, spend time with the father between the overnight hours of 9.00 pm and 7.00 am in the home of the paternal grandparents whilst at least one of the grandparents is present.
There are several reasons why the children’s interests are promoted by them and the father being monitored in that way.
The father has historically delegated care of the children to the paternal grandmother. She cooks for them, supervises them, and nurtures them. She is more likely than the father to afford them emotional succour in the evenings when they are away from the mother.
The father remains at significant risk of relapse to illicit drug use. Given the mother’s allegations of the children previously reporting to her that the father uses drugs in their presence, notwithstanding the father’s denials, it would be safer if at least one of the paternal grandparents is present in the evening to modulate the father’s behaviour in their home.
The father is so hateful towards the mother he finds it difficult to contain his denigration of her. The prospect of such denigration occurring in the children’s presence will likely be attenuated if a paternal grandparent is present to chide him.
Of course, all of those risks are also liable to be present during daylight hours, but the prospect of the father’s drug use and the children’s need for nurture is more pronounced in the evenings.
The need for that limited form of protection for the children should abate as they individually age and mature. It would be unduly onerous to impose an injunction requiring supervision by the paternal grandparents at all times indefinitely. Attainment of 10 years of age is arbitrarily chosen as the time by which the protection may be relaxed. For the youngest child that is eight years hence, but within the next month or so, the injunction will only cover the four youngest children.
The parties envisaged that exchanges of the children on school days could occur at their commencement and conclusion of school. While that arrangement is feasible for the school-aged children, it does not take account of the two youngest children who do not yet attend school. Complicated alternate arrangements would therefore need to be made to cater to all children, but this is a case where simplicity recommends itself.
So as to promote simplicity and uniformity, the orders provide for the children to be exchanged between the parties at the homes of the mother and paternal grandparents respectively. The mother said the drive between her residence and that of the paternal grandparents only takes about 15 minutes. For exchanges that are to occur on school days, the times are fixed so as to approximate the times at which the children will finish and begin school.
The mother must deliver the children to the paternal family and the paternal family must return the children to the mother. The father is forbidden from participating in that process unless the mother agrees otherwise. The mother was content with that arrangement.[90] While the paternal grandmother did not make any specific proposal about changeovers, she is presently involved in the process of exchanging the children with the mother and expressed no dissatisfaction with continuation of that arrangement. The Family Consultant also considered it “a good option” for changeovers to occur at the paternal grandparents’ home.
[90] Exhibit M4, Order 7
Miscellaneous orders
The orders permitting the children to have telephone communication with the parties generally reflect the proposals of the mother and Independent Children’s Lawyer. The father’s proposal for simply “liberal telephone communication” is insufficiently prescriptive in light of the evidence about the parent’s conflict and the past difficulties experienced implementing the interim order for telephone communication.
None of the other orders are controversial or could be the subject of reasonable opposition.
Some orders sought are not made.
The father proposed an order compelling the parties to arrange the children’s attendance at an educational program.[91] No such order is made because the proposal was unsupported by any evidence or submission.
[91] Exhibit F3, Order 27
The father acknowledged the Court has no power to make some of the orders he proposed requiring the mother’s unconditional participation in therapy,[92] even though it was recommended by the Family Consultant[93] (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).
[92] Exhibit F3, Orders 28-30
[93] Family Report, Recommendation VI (page 37)
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 5 September 2013
Associate:
Date: 5 September 2013
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