FADDEN & JANCO
[2020] FCCA 1101
•13 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FADDEN & JANCO | [2020] FCCA 1101 |
| Catchwords: FAMILY LAW – Parenting – allocation of sole parental responsibility to the Father – children live with the Father – meaningful relationship with the parents – whether the Father ought to be permitted to obtain Australian passports for the Children without the consent of the Mother – whether the Children should be permitted to travel internationally – ongoing litigation. |
| Legislation: Australian Passports Act 2005(Cth), ss.7, 11 Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 62B, 62G, 65D, 65DA(2), 69ZT Federal Circuit Court Rules 2001 (Cth), r.21.15 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MR FADDEN |
| Respondent | MS JANCO |
| File Number: | MLC 10826 of 2010 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 24 February 2020 |
| Date of Last Submission: | 25 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 13 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bonney |
| Solicitors for the Applicant: | Pearce Webster Dugdales |
| The Respondent: | Appearing in person |
| Counsel for the Independent Children’s Lawyer: | Mr Kiernan |
| Solicitors for the Independent Children’s Lawyer: | Clark Family Law |
ORDERS
Previous Parenting Orders
All previous parenting orders in relation to X (X), born in 2005 and Y (Y), born in 2008 (together the Children) be discharged.
Parental Responsibility
The Applicant Father, Mr Fadden (Father), have sole parental responsibility for X and Y, provided always that the Father keep the Respondent Mother, Ms Janco (Mother), informed of significant long term decisions that he makes in relation to the Children and actively seeks the Mother’s input on such issues.
For the purpose of Order 2:
(a)Before any such long term decisions are made in respect of X and alternatively Y:
(i)The Father shall advise the Mother by email of his proposal relating to X and alternatively Y;
(ii)If the Mother wishes to comment on the Father’s proposal (or if the Mother has any proposal she wishes to make relating to X and alternatively Y on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by one email (to the email address from which the Father sent his communication) of her views;
(iii)Upon receipt of any comment or proposal by the Mother, the Father shall give consideration to the Mother’s views;
(iv)After the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision; and
(v)If the Mother does not respond by email as provided in Order 3(a)(ii), the Father shall be entitled to presume that the Mother does not wish to be involved as provided in Order 3(a)(ii), and he may decide the issue.
Living Arrangements and the Time the Children Spend with the Mother
X and Y live with the Father.
X and Y spend time with and communicate with the Mother, at such times (including during extracurricular activities) and on such terms, as may be agreed in writing (including text message), between the Father and the Mother, in accordance with the wishes the Children, or either of them individually.
Restraints on Parents
The Mother is hereby retrained from imbibing, ingesting or being under the influence of alcohol or illegal drugs for 24 hours prior to and at all times when the Children, or either of them, are in her care. For the avoidance of doubt, the Mother is required to have a blood alcohol level of 0.00 at all times that the Children, or either of them, are in her care.
The Mother shall do all things necessary to ensure that Ms A is not present during any time spent by the Children, or either of them, with the Mother.
The Mother and the Father and their servants and agents are hereby restrained from:
(a)Abusing, belittling, insulting or otherwise denigrating the other parent, their relatives or friends within the presence or hearing of the Children.
(b)Commenting, discussing, or referring to any part of the family law proceedings, including communications, negotiations, or showing any documents from these proceedings, or allowing any other person to do so within the presence or hearing of the Children.
(c)Encouraging the Children not comply with these orders.
Medical
The Father ensure that X, and Y if required, receive counselling as required from agencies such as the B Hospital, Headspace and Youth Beyond Blue. The Father shall be at liberty to provide a copy of the Family Report, dated 21 January 2020 to any such counsellors.
Each party shall notify the other as soon as practicable in the event that either of the Children suffers any serious illness or injury whilst in their respective care and each shall authorise any medical or dental practitioner who treats either of the Children to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for either of the Children while in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the Children, and that any such medication is taken in accordance with its prescription.
Education and Extra-Curricular Activities
The Father shall authorise any school or extra-curricular activity in which the Children are enrolled to provide to the Mother, at the expense of the Mother, all information, notices, photographs, reports, invitations and like materials, and the Mother shall be named as a contact person in the records of such school or organisation in the event of any emergency involving X and/or Y.
The Mother be at liberty to attend the Children’s school and extra-curricular events including, but not limited to, parent teacher interviews and other events organised by the school, sporting clubs and like activities.
Passports
Pursuant to ss.7 and 11 of the Australian Passports Act 2005(Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Mother to enable the Children to travel internationally, the Court makes the following orders:
IT IS ORDERED BY THE COURT THAT:
The Father of the Children X, born in 2005 and Y, born in 2008 be permitted to apply for an Australian passport to enable the Children, or either of them, to travel internationally, notwithstanding that the Mother of the Children has not signed the passport application form and furthermore the Children, or either of them, be permitted to travel internationally without the permission of the Mother.
The Father is to pay all expenses associated with the Children obtaining and renewing Australian passports, until they each attain the age of 18.
The Father have the sole right to retain in his possession the current Australian passports for the Children.
Miscellaneous
All extant applications are otherwise dismissed.
The Order of Judge C. E. Kirton QC, dated 16 October 2018 appointing the Independent Children’s Lawyer be discharged.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Fadden & Janco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10826 of 2010
| MR FADDEN |
Applicant
and
| MS JANCO |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant (Father) and the Respondent (Mother) are the parents of the children X (X), born in 2005 and Y (Y), born in 2008 (Children).
Issues in Dispute
The following parenting issues are in dispute between the parties:
a)The allocation of parental responsibility.
b)Who the Children should live with.
c)The time the Children should spend with the parent with whom they are not living.
d)Whether the Father ought to be permitted to obtain Australian passports for the Children without the consent of the Mother and whether the Children should be permitted to travel internationally with the Father, or alternatively on their own.
Synopsis
I have determined that:
a)The Father have sole parental responsibility for the Children.
b)The Children live with the Father.
c)The Children spend time with and communicate with the Mother, at such times (including during extracurricular activities) and on such terms, as may be agreed in writing (including text message), between the Father and the Mother, in accordance with the wishes of the Children, or either of them individually.
d)The Father be permitted to apply for an Australian passport to enable the Children to travel internationally, notwithstanding that the Mother has not signed the passport application form and furthermore the Children, or either of them, be permitted to travel internationally without the permission of the Mother.
Background
The Mother and the Father were both born in 1983 and are now each 36 years of age[1].
[1] Amended Initiating Application, filed by the Father 10.2.20, at [9] and [19].
The parties commenced a de facto relationship in 2002[2]. X was born in 2005 and is now aged 14. Y was born in 2008 and is now aged 12.
[2] Affidavit of the Father, filed 10.2.20, at [3].
The parties separated on 11 July 2008[3]. At the time of separation X was 2 years and 11 months old and Y nearly 5 months old. The Children remained living with the Mother.
[3] Application for Consent Orders, filed by the Father 19.11.10, at [11].
In 2010 the Father commenced a de facto relationship with Ms C[4].
[4] Outline of Case for the Applicant Father, filed 20.2.20, p. 2.
In 2010 D, the child of the Mother and Mr E was born (D) and is now aged 9[5]. D has been diagnosed with Autism Spectrum Disorder and is unable to communicate[6].
[5] Affidavit of the Father, filed 10.2.20, at [6].
[6] Family Report, dated 7.7.15, prepared by Family Consultant Ms J, at [2]; and Family Report, dated 21.1.20, prepared by Family Consultant Mr K at [72].
The Mother married Mr E in 2012[7]. The Mother and Mr E then separated in 2013 after three months of marriage[8]. D continued to live primarily with the Mother after the Mother’s separation from Mr E[9].
[7] Outline of Case for the Applicant Father, filed 20.2.20, p. 2.
[8]Affidavit of the Mother, filed 24.2.20, at [6].
[9] Ibid., at [6(a)].
In or about 2014 the Mother married Mr F[10]. In 2016 G, the child of the Mother and Mr F was born (G) and is now aged 3[11].
[10] Outline of Case for the Applicant Father, filed 20.2.20, p. 2.
[11] Ibid., p. 3; Transcript T16:27-29.
In 2017 the Father married Ms C, now known as Ms C (Ms C)[12].
[12] Ibid., p. 3.
The Mother separated from Mr F in approximately September 2017, when Mr F went to live in Queensland[13]. G remained living with the Mother.
[13] Affidavit of the Mother, filed 24.2.20, at [2].
On 20 June 2018 the Father did not return X and Y after the Children had spent five days of scheduled time with the Father[14]. On 22 June 2018 the Mother, filed proceedings in this Court seeking an urgent ex-parte recovery order in relation to the Children. On 12 July 2018, the Court made interim Orders that the Children live with the Father.
[14] Affidavit of the Father, filed 10.2.20, at [17].
D was removed from the care of the Mother in December 2018 and now lives with his father, Mr E, and D’s step-mother Ms H[15]. The Mother has not had supervised time with D since March 2019[16]. The Orders removing D from the care of the Mother were made by the Federal Circuit Court.
[15] Ibid., at [61].
[16] Outline of Case for the Applicant Father, filed 20.2.20, p. 6; Transcript T113:19.
Procedural History
The parties have been before the Family Court of Australia (Family Court) and this Court on and off, for over nine years, since 19 November 2010.
On 13 December 2010 the Family Court made final consent orders in relation to the Children. At that time, X was five years old and Y was two years old and the Mother used the surname “L”. The consent Orders made on 13 December 2010 may be summarised as follows:
a)The Children live with the Mother and the parents have equal shared parental responsibility in relation to the Children.
b)The Father spend time with the Children:
i)Each alternate weekend from Friday 5:30 pm until Sunday 5:30 pm;
ii)On the Children’s birthdays, the Father’s birthday, at Easter, at Christmas and on other special family events and festivities each year, as agreed between the parties and with the expectation that the Father will spend time with both of the Children on all of these occasions;
iii)For two one week periods per annum in each year, within the Victorian school holiday calendar periods.
c)The Father to be in substantial attendance when the Children were in his care.
On 4 February 2014 the Father filed an Initiating Application in the Family Court, commencing the first substantive tranche of litigation between the parties. The Father sought orders restraining the Mother from removing the Children from the State of Victoria and that the Children live with the Father and spend time with the Mother. During this first phase of litigation the Mother used the surname “M”.
During the first tranche of the litigation in the Family Court, a Family Report, dated 7 July 2015, was prepared by Family Consultant Ms J (2015 Family Report). At the time the 2015 Family Report was prepared X was aged nine years and ten months and Y was aged eight years and four months[17]. The 2015 Family Report identified issues in dispute between the parents at that time, which included[18]:
a)The allocation of parental responsibility.
b)Time and living arrangements for the Children.
c)Concerns about the Mother’s history of substance misuse and mental health issues.
d)Allegations that the Mother had exposed the Children to family violence between herself and her previous partner, Mr E.
e)Claims that the Children had made disclosures regarding sexual abuse.
f)Concerns about both parents’ capacity to identify and priorities the needs of the Children.
g)The needs and views of the Children.
[17] 2015 Family Report, at [1].
[18] 2015 Family Report, at [14].
The first phase of the litigation settled, when listed for Final Hearing before Justice Thornton on 17 August 2015.
The Orders made by consent by Justice Thornton on 17 August 2015 (2015 Orders), may be summarised as follows:
a)The parents have equal shared parental responsibility for the Children.
b)The Children live with the Father:
i)During school term times from 3:30 pm or after school on Friday until 9.00 am or before school on Wednesday in each alternate week;
ii)For the first half of the term 1, 2 and 3 school holidays;
iii)During the long summer vacation on 17 consecutive nights at varying times in alternate years;
iv)On the Children’s birthdays, the Father’s Birthday, at Christmas and on Father’s Day at specified times;
v)The Children otherwise live with the Mother.
c)The Mother to forthwith enrol in and complete a Post Separation Parenting Program and provide the Father with a copy of her Certificate of Completion.
d)Each party was restrained from consuming illicit substances or alcohol to excess of 0.05 blood alcohol, when the Children were in their care.
The second and current tranche of litigation commenced with the Mother filing an Initiating Application on 22 June 2018, seeking an urgent, ex parte recovery order in relation to the Children. The Mother sought orders that the Father do all things necessary to immediately return the Children to her care. On 22 June 2018 the Mother also filed a Notice of Risk, where she alleged that X had been physically hurting Y. The Mother also filed two affidavits in support of her Initiating Application, filed on 22 June 2018.
At the time that the Mother filed the documents referred to in the preceding paragraph, she was self-represented. The Mother continued to be self-represented throughout remainder of this proceeding.
On 28 June 2018 the Father filed a Response to Initiating Application (Response to Initiating Application). The Father sought final orders that can be summarised as follows:
a)The parties have equal shared parental responsibility for the Children.
b)The Children live with the Father and the Mother be restrained by injunction from removing the Children from the care of the Father, including during school hours from their primary school or any other school they are attending.
c)The Children spend time and communicate with the Mother as follows:
i)Each alternative weekend from after school Friday to 5:00 pm Sunday;
ii)During the school term holidays for four consecutive nights, at times to be agreed between the parties;
iii)During the long summer holiday vacation for three separate periods of four consecutive nights, at times agreed between the parties;
iv)On the Children’s birthdays, the Mother’s birthday, Mother’s Day and at Christmas time at specified times;
v)At other times as agree between the parents.
d)There be a Family Report prepared.
e)The Mother forthwith attend upon a psychiatrist as agreed between the parties, for the purpose of the preparation of a report providing an assessment of her psychiatric state.
On 28 June 2018 the Father filed a Notice of Risk (Father’s Notice of Risk) and an Affidavit in Support (Father’s June 2018 Affidavit). The Father’s Notice of Risk made detailed allegations of the neglect and abuse of the Children in the care of the Mother, escalating increasingly after the Mother separated from Mr F in October 2017[19].
[19] Father’s Notice of Risk, at [1].
At the time the Father filed the documents referred to in the preceding two paragraphs, he was represented by his current solicitors. The Father continued to be represented by his current solicitors throughout this proceeding.
The Mother filed two further affidavits on 6 July 2018. One affidavit sought various orders, and was in effect a form of an amended initiating application (Mother’s First July 2018 Affidavit). The other affidavit deposed to the substantive issues between the Mother and the Father (Mother’s Second July 2018 Affidavit). On the same day the Mother also filed an affidavit of her friend Ms A, to support her case (Ms A Affidavit). Ms A will become a person relevant to proposed orders later in this Judgment.
The matter first came before the Court on 10 July 2018 in the Duty List. The Court ordered that the parties and the Children attend upon a Family Consultant for the purpose of a Child Inclusive Conference, pursuant to s.11F of the Family Law Act 1975 (Cth) (Act), on 12 July 2018. It was also ordered that the Family Consultant provide an oral report to the Court on 12 July 2018 and that the proceeding be adjourned to that date.
On 12 July 2018 the parties and the Children attended the Court for the purpose of the Child Inclusive Conference. On 12 July 2018 Family Consultant Ms J (the author of the 2015 Family Report), provided an oral report to the Court. This report was subsequently provided in a written Child Inclusive Memorandum to Court, dated 12 July 2018 (Child Inclusive Memorandum).
After hearing the evidence of Ms J on 12 July 2018, the Court made Interim Orders, which may be summarised as follows:
a)The Children live with the Father.
b)The Children spend time with the Mother each alternate Sunday from 12:00 pm to 4:00 pm, commencing on 29 July 2018.
c)The Children communicate with the Mother by FaceTime on mobile phone between the Mother and the Children every Monday, Wednesday and Friday and that such calls to occur between 6:00 pm and 6:30 pm and the Father ensure that his mobile phone is charged and switched on during that period to facilitate such calls.
d)The Mother do all things necessary to engage with the following support services and complete the following programs as soon as practicable:
i)N Family Services parenting program or in the alternative, the SeaChange program for women offered by Lifeworks;
ii)The ‘Tuning into Teens’ parenting program offered by N Family Services.
e)The Mother be restrained by way of injunction from:
i)Consuming alcohol or illegal drugs within 24 hours of the Children spending time with her;
ii)Disciplining the Children by using corporal punishment or any other form of violence, including the destruction of their possessions, at any time.
iii)Discussing these proceedings, the Children’s views as conveyed by the Family Consultant or the Children’s change of residence with the Children at any time.
f)Ancillary orders in relation to the further conduct of the proceeding, including the ordering of a Family Report pursuant to s.62G of the Act.
g)The proceeding was otherwise adjourned for Mention to 16 October 2018.
On 16 October 2018 the Court made Orders which may be summarised as follows:
a)The proceeding be listed for Mention on 27 November 2018.
b)The proceeding be listed for Final Hearing on 24 February 2020, with an estimate of two days.
c)The Children be independently represented.
d)The parties file any affidavit they intend to rely upon at the Mention on 27 November 2018, on or before 13 November 2018.
e)Trial directions in relation to the Final Hearing (Trial Directions), which included:
i)The Applicant to electronically file and serve any further affidavits to be relied upon at the Final Hearing, no later than 21 days prior to the trial;
ii)The Respondent to electronically file and serve any further affidavits to be relied upon at the Final Hearing, no later than 14 days prior to the trial;
iii)The ICL to electronically file and serve any further affidavits to be relied upon at the Final Hearing, no later than 7 days prior to the trial.
On 19 October 2018 the Independent Children’s Lawyer (ICL) filed a Notice of Address for Service. At that time, the ICL appointed was Ms MM at Victoria Legal Aid.
On 13 November 2018 the Father filed an Amended Response to Initiating Application (Amended Response). The Father also filed an affidavit on 13 November 2018 in support of his Amended Response.
The Father sought the following interim orders in the Amended Response, which may be relevantly summarised as follows:
a)The Father have sole parental responsibility for the Children.
b)The Children live with the Father.
c)The Children spend time with and communicate with the Mother:
i)On the first Sunday of each calendar month from 12 noon to 4:00 pm;
ii)By FaceTime or telephone each Monday, Wednesday and Friday between 6:00 pm and 6:30 pm and the Father shall ensure that his mobile is charged and switched on during that period to facilitate such calls.
iii)At such other times as agreed between the parties.
d)The Mother to confirm by text message 24 hours in advance whether she intends to adhere to the next scheduled time with the Children.
e)The Mother and the Father do all things necessary to:
i)Enrol X into Year 7 at O School, Town P for the academic year commencing 2019;
ii)Enrol Y into Grade 6 at Q School, Town R for the academic year commencing 2019; and
iii)Enrol Y into Year 7 at O School, Town P for the academic year commencing 2020.
In the Amended Response, the Father sought final orders in accordance with sub-paragraphs (a)-(d) of the preceding paragraph.
On 27 November 2018 the proceeding again came before the Court. The Mother appeared in person. The Father and the ICL were represented by Counsel. Interim Orders were made by the Court, which may be summarised as follows:
a)The Father have sole parental responsibility for the Children and advise the Mother by text of any major long-term decisions he made in relation to the Children or either of them.
b)The Children spend time with the Mother as follows:
i)On the first Sunday of each calendar month from 12 noon until 4:00 pm, commencing 2 December 2018 and calendar monthly thereafter; and
ii)At such further and other times as may be agreed between the parties in writing (text) and the ICL to be advised of such further and other times.
c)The Mother to confirm by text to the Father not less than 24 hours prior to each occasion pursuant to sub-paragraph (b)(i), confirming her attendance on that occasion and if no such confirmation is made, time on that occasion to be suspended.
d)The Father be permitted to enrol and facilitate:
i)X’s attendance at O School, Town P commencing in 2019; and
ii)Y’s attendance at Q School, Town S in 2019 and O School, Town P in 2020.
The Orders made on 27 November 2018 included the following notations:
[…]
B.The Mother has advised that DHHS has indicated to her that in the event G and X are in each other’s company that they are to be monitored by her.
C.The Father intends to facilitate further time between the children and the Mother upon reasonable requests and sufficient notice and if appropriate conditions are agreed between the parents.
On 14 December 2018 a Notice of Address for Service was filed advising that Ms NN, at OO Lawyers, had been appointed as the ICL. Subsequently, on 15 January 2020 a further Notice of Address for Service was filed, advising that Mr PP, at Clark Family Lawyers, had been appointed as the ICL.
On 3 February 2020 the Court ordered that the Family Report prepared by Family Consultant Mr K, dated 21 January 2020 (Family Report), be released to the parties and to the ICL.
On 10 February 2020 the Father filed an Amended Application (Amended Initiating Application) seeking final orders, which may be summarised as follows:
a)The Father have sole parental responsibility for the Children.
b)The Children live with the Father.
c)The Children spend time with and communicate with the Mother at such times, including for extracurricular activities, as may be agreed in writing between the parents and in accordance with the wishes of the Children or either of them.
d)Ms A not be present during any time spent by the Children or either of them with the Mother.
e)The Father ensure that X receive such supportive counselling as required from agencies such as the B Hospital, Headspace, Youth Beyond Blue and that a copy of the Family Report be provided to any such counsellors.
f)The Father arrange for the Mother to receive copies of all school reports and invitations normally distributed to parents.
g)The Father’s sole parental responsibility include any application for obtaining, replacing, maintaining or renewing current and future Australia passports for the Children.
h)Any requirement for the Mother to give her consent in relation to any application for obtaining, replacing, maintaining or renewing current and future passports for the Children be dispensed with by the Court.
i)The Father meet all the expenses associated with all passport applications for the Children until they attain the age of 18 years.
j)The Father have possession of the passports of the Children at all times.
k)The Children be permitted to travel internationally with the Father.
On 10 February 2020 the Father also filed his trial affidavit in support of his Amended Application (Father’s February 2020 Affidavit).
The Mother failed to comply with the Trial Directions and did not file any affidavit material after filing the Mother’s First July 2018 Affidavit and the Mother’s Second July Affidavit. On the morning of the first day of the Final Hearing on 24 February 2020, the Mother delayed the commencement of the hearing by attending the Court Registry and attempting to file two affidavits and a contravention application[20].
[20] Transcript T5:9-6:32.
On the first day of the Final Hearing on Monday 24 February 2020, the Mother applied for an adjournment of the Final Hearing, so that she could work out “[…] what’s going on”[21]. The Mother said that although she had received the Family Report, she had not read it until the previous Friday (21 February 2020). The Mother said that she was “[…] still trying to catch up with everything that is going on”[22]. In the alternative, the Mother sought leave to file the contravention application, the affidavit in support of the contravention application and a trial affidavit that day and to rely upon those documents.
[21] Transcript T4:45.
[22] Transcript T4:46-47.
Counsel for the Father opposed the Mother’s application for an adjournment of the Final Hearing. Counsel submitted that the Father was ready to proceed and that he had complied with the Trial Directions. Counsel submitted that the Father was privately funded and had spent over $400,000 on these proceedings since the commencement of the first tranche of litigation in 2014. Counsel said that the Father estimated that he had paid approximately $17,000 to prepare for the Final Hearing. Counsel also argued that there were clear recommendations made by Mr K in the Family Report. Counsel submitted that in light of the recommendations made by Mr K in the Family Report, the proceeding should be concluded as expeditiously as possible for the emotional well-being of the Children[23].
[23] Transcript T7:18-8:25.
Counsel for the Father pragmatically said however, that she would be willing to consider the Court’s suggestion that the Mother be given leave to file her trial affidavit and proceed with the Final Hearing, provided that Counsel had the opportunity to read the affidavit prior to commencing the Final Hearing[24].
[24] Transcript T8:27-9:15.
Counsel for the ICL also opposed the Mother’s application for an adjournment of the Final Hearing. Counsel submitted that the Family Report had been ordered to be released to the parties on 3 February 2020 and therefore the Mother had already had sufficient time to read the Family Report. Counsel also submitted that the trial date had been fixed on 16 October 2018. Counsel noted that the Mother was technically the applicant and that she had not filed any documents since June 2018[25], until attempting to file documents on the morning of the Final Hearing on 23 February 2020. Counsel submitted:
It’s a long time not to be filing anything. And certainly, it’s stretching the tolerance of your Honour to be coming along at 10 o’clock with documents[26].
[25] Transcript T10:6-7.
[26] Transcript T10:8-10.
Counsel for the ICL agreed however to the Court’s suggestion that the matter could proceed, if the Mother was given leave to file her trial affidavit, provided that time was given to both Counsel to review the trial affidavit before the commencement of the Final Hearing[27].
[27] Transcript T10:11-15.
Both Counsel agreed that the Final Hearing should proceed on the basis that the Father was the applicant, as the Mother had not prosecuted her original case as the applicant[28].
[28] Transcript T10:22-11:4.
The Mother was given leave to file her trial affidavit (Mother’s February 2020 Affidavit). The Mother was not given leave to file the contravention application or the affidavit in support of the contravention application, for the purpose of relying on these documents at the Final Hearing[29].
[29] Transcript T11:5-29.
The proceeding was then stood down to enable the Mother to file the Mother’s February 2020 Affidavit and for Counsel to read the Mother’s February 2020 Affidavit and to obtain instructions. The Final Hearing then commenced at 2.45 pm on the afternoon of 24 February 2020.
The following day, on the morning of 25 February 2020, the Mother attended the Final Hearing with G. The Mother told the Court that it was her expectation that G should remain in the Courtroom throughout the day. The Mother was due to give evidence and be cross-examined at the commencement of the proceeding on the morning of 25 February 2020.
This was not the first occasion that the Mother had attended the Court with G, with the expectation that G should remain in the courtroom during proceedings or be accommodated in the Court’s Child Minding Facility. The Court has previously been required to accommodate G at short notice in the Child Minding Facility. When this has not been possible, the Court has been required to have G in the Courtroom during busy lists, whilst attempting to manage interlocutory proceedings involving the Mother. On this occasion Child Dispute Services (CDS) were able to arrange for G to be accommodated at short notice in the Child Minding Facility for the day on 25 February 2020, notwithstanding that the staff at the Child Minding Facility were stretched to the limit. Had CDS not been able to make these urgent arrangements, the Final Hearing would have been required to have been adjourned that day. The commencement of the Final Hearing on 25 February 2020 was delayed until the necessary arrangements could be made by CDS. The Court acknowledges and thanks CDS for the assistance provided on this occasion.
On 25 February 2020 the following Interim Orders were made:
a)Order 3(a) of the Orders dated 27 November 2018 be suspended. This was the Order that the Mother spend time with the Children on the first Sunday of each calendar month from 12 noon to 4:00 pm.
b)Order 14 of the Orders made on 12 July 2018 be suspended. This was the Order that the Children communicate with the Mother by FaceTime every Monday, Wednesday and Friday between 6.00 pm and 6.30 pm.
c)G be placed in the Child Minding of the Court, on Level 5, from 10.30 am and not be removed until advised by the Court.
d)Judgment reserved.
The Proposals of the Parties at Trial
The ICL’s Proposal
The ICL’s Proposal was set out in a Minute of Proposed Final Orders, dated 24 February 2020 (Minute of Proposed Final Orders) signed by the Father and Counsel for the ICL on behalf of the ICL (ICL’s Proposal). The Minute of Proposed Orders was provided to the Court on the first day of the Final Hearing. The Minute of Proposed Final Orders in substance adopted the final orders sought by the Father in the Amended Initiation Application, as discussed in paragraph 39, save for the following:
a)The Children spend time with and communicate with the Mother at such times, including for extracurricular activities, and on such terms as may be agreed in writing, including by text message, from time to time between the Father and the Mother, and in accordance with the wishes of the Children or either of them.
b)The Mother shall do all things necessary to ensure that Ms A not be present during any time spent by the Children or either of them with the Mother.
c)The Father authorise the Children’s schools to provide the Mother with copies of all school reports, newsletters and invitations normally distributed to parents, with such material to be sent to the Mother at her initiative.
d)The Children be permitted to travel internationally with the Father and/or on their own.
e)The Father to inform the Mother by email if one of the Children or both of them suffers a serious injury, serious illness or hospitalisation.
Documents Relied on by the ICL
The ICL relied on the following documents:
a)Minute of Proposed Final Orders.
b)Family Report.
The Father’s Proposal
The Father supported the ICL’s Proposal as set out in a Minute of Proposed Final Orders (Father’s Proposal).
Documents Relied on by the Father
The Father relied on the following documents[30]:
[30] Transcript T17:8-18:7.
a)Amended Initiating Application.
b)Father’s February 2020 Affidavit.
c)Affidavit of Ms C, filed 10 February 2020 (Ms C Affidavit).
d)Mother’s February 2020 Affidavit.
e)Father’s June 2018 Affidavit[31].
f)Outline of Case for the Applicant Father, filed 20 February 2020 (Father’s Outline of Case).
g)2015 Family Report.
h)Child Inclusive Memorandum.
i)Family Report.
[31] Transcript T18:28-19:4.
The Mother’s Proposal
It was difficult to ascertain from the Mother the orders that she sought. In the Family Report, Mr K reported:
For her part [the Mother] did not seek parental responsibility for the boys or that their primary care be returned to her. Instead she seeks “… a reasonable agreement to see them”, including, “attending their sports and school events”[32].
[…]
[the Mother] hopes for a “reasonable” but undefined arrangement for the boys contact with her, including possible attendance at their sporting activities and school events.
Other than that she is not contesting the question of parental responsibility for the boys or their continuing primary care by the father[33].
[32] Family Report, at [24].
[33] Family Report, at [30]-[31].
The Mother’s February 2020 Affidavit contained, in paragraphs 14 to 25, an indication of the orders that the Mother was seeking. These orders were predicated upon the basis that the Children remained living with the Father. However during the Final Hearing, the Mother resiled from that position. When asked by Counsel for the Father whether the Mother agreed that the Children should live with the Father, the Mother responded as follows:
I didn’t say I agree. I said if that’s how it needs to be, then that is fine, on the provido (sic) that I have contact […] And not over the phone; contact. Proper […] contact[34].
[34] Transcript T85:23-30.
Counsel for the Father then asked the following question:
[Counsel]Just listen to the question. … you agree that the boys should remain in primary care of [the Father]?
[Mother]To live with him, yes[35].
[35] Transcript T85:32-33.
Notwithstanding the Mother’s response to this question from Counsel for the Father, having taken into account the whole of the Mother’s evidence, I understand the Mother’s position to be that, unless she has defined spend time arrangements with the Children, she did not agree to the Children living primarily with the Father. In those circumstances and in this Judgment, I have considered the primary living arrangements for the Children to be a live issue between the parties.
In the Mother’s First July 2018 Affidavit, the Mother had previously made proposals for the living arrangements for the Children, if they were returned to her primary care. Events in the intervening period of some 20 months, had superseded these proposals. At the Final Hearing the Mother did not make an alternative proposal of what should happen if the Children were to return to live primarily with her.
In the Mother’s February 2020 Affidavit, the Mother sought the following orders[36] (Mother’s Proposal):
[36] Mother’s February 2020 Affidavit, at [14]-[18].
a)Shared parental responsibility.
b)The Children remain living with the Father and spend time with the Mother as follows:
i)Every second weekend Friday from after school (time to be negotiated) to Sunday evenings;
ii)First half of each semester school holidays, including summer break; and
iii)At the Children’s request when reasonable and practicable.
c)The Mother be at liberty to attend school events, parent teacher interviews and extracurricular activities without restriction and any other appointment, including medical appointments that require a parent attend.
d)The Father advise the school, sporting management and doctors of the Mother’s details and the Mother be included on all enrolment and/or medical information and/or forms needed for the Children, including the potential future passports for the Children.
e)The Father and his wife encourage, promote and facilitate the rebuilding of the relationship between the Children and their Mother, without coaching or manipulating the Children about the Father’s thoughts of their Mother.
f)The Father and the Mother communicate via email or text message biweekly for updates on the Children’s week at school and extra activities, appointments that both parties inform and actively involved the other parent and facilitate the relationship with the Children.
The Mother opposed all of the orders sought by the Father in relation to the issue of passports and travel overseas with the Children[37].
[37] Mother’s February 2020 Affidavit, at [20]-[23].
The Mother also opposed orders that were not sought by the Father in the Amended Initiation Application or the Father’s Proposal, or in any application filed by the Father in this proceeding. The orders the Mother alleges the Father sought in this proceeding are orders that:
a)The Children’s step-mother, Ms C, sign the Children’s passports[38].
b)Ms C be able to adopt the Children and have their birth certificates changed, in the event that the Father is granted sole parental responsibility or the Mother passes away[39].
[38] Mother’s February 2020 Affidavit, at [19].
[39] Mother’s February 2020 Affidavit, at [24].
The Court, will not be giving any consideration to or making any determination in relation to the matters referred to in the preceding paragraph.
Documents Relied on by the Mother
The Mother relied on the Mother’s February 2020 Affidavit.
Evidence
The standard of proof in a civil matter is the balance of probabilities: s.140 Evidence Act 1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
These are proceedings to which the provisions of Pt.VII, Div.12A of the Act apply. Section 69ZT(1) of the Act prescribes that certain of the provisions of the Evidence Act1995 (Cth) do not apply for the purposes of the admission of material into evidence, however the Court is to determine the weight such evidence should be given as a consequence of its admission due to the Evidence Act1995 (Cth) not being applied: s.69ZT(2) of the Act.
The Mother and the Father relied upon their affidavits. Their evidence set out in detail the history of their relationship and I do not propose to repeat it in this Judgment.
In Bell & Nahos[40] Strickland J addressed the obligations of a trial judge as follows:
[…] it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
[…] A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[40] [2016] FamCAFC 244.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
[…]
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision[41].
[41] Ibid., at [28]-[29].
Both the Mother and the Father gave limited evidence and were cross-examined. I therefore had the benefit of observing both parties in the witness box for a period of time and observing their demeanour in the Court throughout the proceeding, which lasted for two days.
The Father’s Evidence
The Father impressed as a reliable witness. He was a credible historian. Where the Father’s evidence differs from that of the Mother’s evidence, I prefer the Father’s evidence.
Ms C’s Evidence
The evidence of Ms C was admitted unchallenged, as Ms C was not required for cross-examination by either Counsel for the ICL or the Mother[42].
[42] Transcript T51:3-20.
The Mother’s Evidence
The Mother presented as distressed and was prone to uncontrolled outbursts of anger and rudeness directed at the Court and to Counsel[43]. It is understandable that the Mother is upset by these proceedings. However, the Mother regularly spoke in a very loud voice, almost yelling at the Court or Counsel. As an explanation for her behaviour, the Mother said that she was deaf in one ear[44]. This may well be the case. However, the Mother swore whist responding to questioning by Counsel for the Father[45]. The Mother argued with Counsel[46]. The Mother persistently interrupted the Father’s cross-examination by Counsel for the ICL and re-examination the Father’s Counsel. The Mother interjected by calling out her responses from the bar table[47].
[43] For example: Transcript T99:23-27; 104:26-39; and T108:44-109:3.
[44] Transcript T104:26-30.
[45] Transcript T108:24-30.
[46] For example: Transcript T126:6-11.
[47] For example: Transcript T32:18-24; T34:34-44; T37:43-44; T38:29-41; T39:39-43; and T48:5-11.
The Mother avoided questions and was prone to saying “I don’t recall”. The Mother refused to answer questions and had to be reminded that she was under cross-examination[48]. The Mother was a poor historian. In particular, I refer to the account of events provided by the Mother in paragraphs 6(b) and (c) of the Mother’s February 2020 Affidavit. The Mother’s account is wholly incorrect. When Counsel for the ICL put to the Mother that she was incorrect in her version of events, the Mother refused to concede that she was mistaken[49].
[48] For example: Transcript T90:3-11.
[49] Transcript T116:40-119:19.
The Mother was also untruthful. The Mother was untruthful in relation to the following matters:
a)The Mother’s relationship with Mr T. The Mother’s evidence in relation to her relationship with Mr T is discussed in relation to s.60CC(2)(b).
b)The Mother’s evidence as to why supervised time with D was suspended, which is discussed in relation to s.60CC(3)(f).
c)The Mother told the Family Report writer Mr K that she did not make what I have referred to as the G Allegation. This is discussed in relation to s.60CC(3)(ii).
Evidence of Mr K
Mr K was questioned by each Counsel and also by the Mother. Mr K impressed as a competent and truthful professional witness, who was prepared to make concessions where appropriate.
The Applicable Law
The 2015 Orders were Final Consent Orders. Final Orders cannot easily be changed because of the rule in Rice and Asplund[50] (Rice and Asplund), which is designed to prevent parties from returning to Court to seek new Court orders unless there has been a substantial change in circumstances. This was explained in Edwards and Edwards[51] where the Full Court of the Family Court stated:
The well settled principles in Rice and Asplund (supra) were formulated to promote the best interests of children who are subject of proceedings under the Act. The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of the child by subjecting the child to repeat expert interviews[52].
[50] In the Marriage of Rice and Asplund (1979) FLC 90-725; [1978] FamCAFC 128.
[51] (2006) FLC 93-306.
[52] (2006) FLC 93-306, 81,160.
The Full Court of the Family Court in Elmi & Munro[53] (Elmi & Munro) recently considered the principals in Rice and Asplund. In that case the Full Court said there was no scope for doubting the correctness of Rice and Asplund. The Full Court noted that in Poisat and Poisat[54] the Full Court had said (at [13]) that the principal was:
[…] intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently[55].
[53] [2019] FamCAFC 138.
[54] (2014) FLC 93-597; [2014] FamCAFC 84.
[55] [2019] FamCAFC 138, at [25].
The Full Court in Elmi & Munro held that:
The essence of the issues to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of the child for there to be a reconsideration of the parenting orders[56].
[56] Elmi & Munro, at [38].
In this case neither party nor Counsel for the ICL made an application for a threshold determination as to whether there had been a material change in circumstances, for the purposes of the rule in Rice and Asplund. Therefore, notwithstanding the implied consent of the parties to the discharge of the 2015 Orders, this threshold question will be determined by the Court as part of the overall proceeding.
The principles governing the Court’s decision in this proceeding are set out in Pt.VII of the Act. The Court in determining this proceeding must consider what orders are in the best interests of the Children: s.60CA. What this means in individual cases is determined by a number of statutory provisions.
The objects of Pt.VII of the Act are set out in s.60B(1) of the Act and assist in clarifying what Pt.VII aims to achieve to ensure that the best interests of children are met. There are also principles that underlie these statutory objects: s.60B(2) of the Act.
Section 65D of the Act gives the Court power to make a parenting order, which is defined by s.64B(1) of the Act.
In determining what is in the best interests of the Children, the Court must consider the matters set out in s.60CC of the Act. Section 60CC sets out the primary and additional considerations that the Court is to take into account, in determining what is in the best interests of the Children. Each of those matters where relevant, must be considered and assessed in the context of the respective proposals. The Court must then determine which of the proposals is in the best interests of X and Y.
The Court is not bound by the parties’ respective proposals (AMS v AIF[57] and U v U[58]).
[57] (1999) 199 CLR 160.
[58] (2002) 211 CLR 238.
In applying the primary considerations the Court is to give greater weight to the considerations set out in s.60CC(2)(b): s.60CC(2A) of the Act.
The Full Court in Goode v Goode[59] mandated that the legislative pathway must be followed in all parenting cases[60]. I will first consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
[59] (2006) 36 Fam LR 422.
[60] Ibid., 445, at [81]-[82].
The concept of a meaningful relationship, within the context of s.60CC(2)(a), has been considered in a number of decisions including Waterford & Waterford[61], Mazorski & Albright[62] (Mazorski & Albright) and McCall & Clark[63].
[61] [2013] FamCA 33.
[62] (2007) 37 FamLR 518; [2007] FamCA 520.
[63] (2009) FLC 93-405.
In Mazorski & Albright, Brown J considered the definition of “meaningful” in the context of a “meaningful relationship”. Her Honour said:
26. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
(Emphasis added)
Her Honour’s conclusions were approved by the Full Court of the Family Court in Moose & Moose[64]. In McCall & Clark[65] the Full Court of the Family Court again considered the concept of a “meaningful relationship”. In that case the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”[66].
[64] (2008) FLC 93-375, at [69] (May, Boland and O’Reilly JJ).
[65] (2009) FLC 93-405 (Bryant CJ, Faulks DCJ and Boland J).
[66] Ibid., at [109]
When considering the benefit to the child of having a meaningful relationship with both of the child’s parents, the Full Court of the Family Court in McCall & Clark[67] considered three possible interpretations of s.60CC(2)(a) as follows:
[67] (2009) FLC 93-405.
118It appears to us that there are three possible interpretations of s 60CC(2)(a):
a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
In arriving at its conclusions, the Full Court of the Family Court accepted as appropriate the interpretation of “meaningful relationship”, as set out by Brown J in Mazorski & Albright.
Therefore the Court is required, pursuant to s.60CC(2)(a), to determine if it is in the best interests of the Children, that orders can be framed to ensure that the Children have a “meaningful relationship” with both parents. In accordance with Brown J’s interpretation of a “meaningful relationship” in Mazorski & Albright, the Court will consider orders that facilitate the Children having a relationship with both the Father and the Mother that is “important”, “of consequence” and “valuable”[68]. This is a qualitative assessment. That is, the meaningfulness of a relationship between a child and their parents is measured by the quality of the time spent and not by the amount of time.
[68] Ibid., [26].
Further, in Tait & Dinsmore[69], Cronin J said:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child hose adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship[70].
(Emphasis added)
[69] [2007] FamCA 1383.
[70] [2007] FamCA 1383, at [170].
Therefore when considering the orders to be made, the Court must also ensure that the relationship between the child and the parent is “healthy, worthwhile and advantageous to the child”. This is a central issue in this case.
At the time of the interviews for the Family Report on 28 November 2019[71], the Children were to spend time with their Mother for four hours on the first Sunday of each month, pursuant to the Interim Orders made on 27 November 2018[72]. In the Family Report, Mr K reported that this had occurred on only two or three occasions in the 12 months preceding the interviews, based on information provided by the Father[73]. In the Father’s February 2020 Affidavit, the Father deposed that the Children had only seen the Mother once since the Orders were made on 27 November 2018, prior to the Family Report interviews on 28 November 2019[74]. This occasion was on 7 July 2019, when the Children had spent time with the Mother at the Suburb U shopping complex for a period of three and a half hours[75]. Prior to this occasion, the Children had not spent time with the Mother since 7 October 2018[76].
[71] Family Report, p.2.
[72] Orders 27.11.18, Order 3(a) of Exhibit A.
[73] Family Report, at [1] and [53].
[74] Father’s February 2020 Affidavit, at [20]-[29].
[75] Father’s February 2020 Affidavit, at [27].
[76] Father’s February 2020 Affidavit, at [(18(c)].
The Interim Orders made on 12 July 2018 also provided that the Children could communicate with the Mother by FaceTime on mobile phone, every Monday, Wednesday and Friday between 6:00 pm and 6:30 pm[77]. In the Family Report, Mr K reported that there had only been “minimal phone/FaceTime” between the Children and the Mother in the twelve months preceding the interviews, based on information provided by the Father[78]. In the Father’s February 2020 Affidavit, the Father deposed that between January 2019 and November 2019 (inclusive) there were 142 FaceTime calls placed by the Children to the Mother at the appointed times, pursuant to the Court Orders. During this period the Mother was unavailable and failed to answer 77 of those scheduled calls[79]. This represented 54% of missed calls placed.
[77] Orders 12.7.18, Order 14.
[78] Family Report, at [53].
[79] Father’s February 2020 Affidavit, at [32]-[33] and Annexure “-1”.
In the Family Report Mr K reported the following observations in relation to the Children’s interactions with the Father:
X and Y were brought to the interviews by their father. They had driven for about an hour and a half from Town V. Both of the boys, now aged 14 and 11 respectively, were well dressed and appeared to be well cared for. The boys related in a relaxed, respectful manner with their father and with each other.
[…]
Relationships between the boys themselves and with their father were observed to be entirely relaxed and informal. They spent time together chatting while waiting for their mother to turn up […][80].
[80] Family Report, at [81] and [84].
Mr K reported the following observations in relation to the Children’s interactions with the Mother, in the Family Report:
When [the Mother] arrived at the practice and was taken into the playroom there were no affectionate greetings; no kisses or cuddles, either way. The atmosphere was fraught; with [the Mother] bravely trying to engage each of the boys in conversation.
[…]
X sat alone in the playroom and resisted taking part in his mother’s attempted conversations. At the same time Y, while sharing accounts with his mother, sat well apart from her. There was stilted conversation, based on enquiries by [the Mother] about the boys’ sports, especially their football, when she understood the boys had been playing in finals.
This very difficult, unenthusiastic interaction between the boys and their mother continued for the best part of an hour, with [the Mother] endeavouring to move on and talk about the boys’ schools. While the boys spent time with [the Mother] each was taken out of the room to be separately interviewed by the writer.
At the end of the play session, when it came time for [the Father] to return to the practice and take the boys away, on departing from their mother, Y permitted her to hug him, but X refused. In this situation [the Mother] did not appear to be distressed
While neither of the boys was worried or anxious in the presence of their mother, at the same time neither was particularly interested or engaged with her either. One gained the impression that by spending time with their mother at the interviews they were discharging a duty[81].
[81] Family Report, [86]-[90].
Mr K reported the following in the Family Report, in relation to X:
Asked to speak about the people that he loves, X became particularly distressed and tearful. He originally identified only, “Dad/Nana”. However with a little prompting, was open to adding his brother, Y, and Ms C, his father’s wife.
[…]
X continued to be very upset when asked to speak about his family; that is, the people that make up this family. He drew an image including five stick figures, named, from left to right “Dad, Ms C, X, Y, Nana”, omitting his mother. According to X the kindest person in his family is “Dad”[82].
[82] Family Report, [94], [96].
Mr K reported the following in the Family Report, in relation to Y:
[…] When speaking about the people that he loves, unlike his older brother, Y was not at all distressed; in fact remained unstressed throughout his whole interview. As regards the people he loves Y identified, “Dad, Nana, X, Ms C”.
[…] Asked to speak about his family - the people that make up his family - Y identified, “dad, Ms C, X, me”. In his family he does not have one kindest person, but 2, “Dad and Nana”[83].
[83] Family Report, [108]-[109].
In the Family Report Mr K noted that Y made the following comment in relation to his Mother:
“I don’t have a problem with mum, if she is acting normal. I get nervous if she is angry”[84].
[84] Family Report, at [114].
Mr K also made the following comment in relation to Y in the Family Report:
At the end of his interview Y, without being asked, offered an extraordinary insight for a boy of his age. Speaking about his mother he said, “She is basically like a teenager; like her mind froze when she was 16 and stayed the same”[85].
[85] Family Report, at [117].
Mr K said the following when he gave evidence:
[…] the relationship between the boys and their mother has broken down, but it didn’t break down this year or last year. It broke down back in, I don’t know, 2018 sometime. And, of course [The Mother] as the adult and parent has to take the major responsibility there in my view. I don’t see that [the Father] has done anything since mid-2018, nothing significant to impede the relationship between the boys and their – and their mother […][86].
[86] Transcript T129:45-130:4.
I conclude that the Children have a “meaningful” relationship with their Father within the context of s.60CC(2)(a) of the Act. I base this conclusion upon Mr K’s observations of the relaxed and informal interactions between the Father and the Children, during the Family Report interviews. I also base this conclusion upon each of the boy’s expressions of the people that they love and their descriptions of their family unit. Each of the Children described their Father as the focal part of their family.
I am unable to conclude that the Mother had a “meaningful” relationship with either X or Y within the context of s.60CC(2)(a) of the Act. The Mother had only seen the Children once for three and a half hours in the thirteen months, prior to the Family Report interviews on 28 November 2019. I base my conclusion upon Mr K’s observations of the deeply strained interaction between the Mother and the Children, when they were reunited with their Mother on 28 November 2019. There was no warmth or pleasure expressed by either of the boys, upon being reunited with their Mother. I also base my conclusion upon each of the boy’s expressions of the people that they love and their descriptions of their family unit. Neither X nor Y mentioned their Mother as a person that they loved or identified their Mother as part of their family unit.
Having made these findings, the Court is mindful that it should adopt the “prospective approach”, as enunciated by the Full Court of the Family Court in McCall and Clark[87].The Court must therefore determine, if it is in the best interests of the Children, whether orders can be framed to ensure that the Children develop a meaningful relationship with the Mother. This approach requires the Court to also take into account the other relevant statutory considerations.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[87] (2009) FLC 93-405, at [119].
In the Father’s June 2018 Affidavit, the Father deposed, at paragraphs 32 to 52, to the allegations that were made in the Father’s Notice of Risk. These matters related to the escalating abuse and neglect of the Children whilst in the care of the Mother from early 2018[88]. The Father’s June 2018 Affidavit included the following:
I am now very concerned for my children’s wellbeing. Things have become a lot worse since [the Mother] separated from her second husband, Mr F, in late 2017. While Mr F was living with [the Mother] and the children, [the Mother] did not complain of any significant behavioural issues involving X and Y. I do not think she copes with the children alone, or is capable of maintaining a structured routine, or of setting appropriate boundaries. I do not think that X and Y are safe while living with [the Mother][89].
[88] Father’s June 2018 Affidavit, at [32]-[52].
[89] Father’s June 2018 Affidavit, at [45].
In the Father’s June 2018 Affidavit, the Father also deposed that Order 22 of the 2015 Orders, required that the Mother attend a Post Separation Parenting Program and provide the Father a copy of the Certificate of Completion (Certificate of Completion). The Father said that the Mother had never provided him with a copy of the Certificate of Completion. In the Mother’s Second July 2018 Affidavit, the Mother deposed that her then solicitor had sent to the Father’s solicitor the Certificate of Completion and purported to annexe evidence of this[90]. The relevant annexure does not provide evidence of a copy of the Certificate of Completion being sent to the Husband’s solicitors or even refer to it.
[90] Mother’s Second July 2018 Affidavit, at [31(c)] and Annexure “J2”.
In the Child Inclusive Memorandum, Ms J reported the following risks and issues had emerged as a result of the Child Inclusive Conference, which took place on 12 July 2018. At the time of the Child Inclusive Conference X was aged 12 and Y was aged 10.
[The Mother] considered that as a result of the family separation the children’s behaviour, particularly X’s has been more dysregulated. At interview [the Mother] presented as highly distressed and defensive, while the children presented in a calm responsive manner and were able to articulate their accounts clearly.
The parents report that X has run away from [the Mother’s] home on four occasions, and Y has run away once. This behaviour was in response to arguments between X and [the Mother], and inappropriate disciplinary responses on the part of [the Mother]. (For example on one occasion she smashed X’s i‑Pad, and on another occasion she flicked skin lotion at him).
Both children reported that [the Mother] frequently yells at them and hits them. On one occasion Y reported that his mother struck him in the face and drew blood. However [the Mother’s] relationship with X appears to be the more highly conflicted relationship. X reported that his mother provoked him into running away by suggesting that he go and live with his father on a permanent basis, and that he could walk there[91].
[91] Child Inclusive Memorandum, p.2.
In the Child Inclusive Memorandum it was noted that there was a history of involvement with Child Protection and family support services, in relation to the Mother’s parenting capacity, aggressive behaviour and substance misuse. In particular, it was noted that the Mother had a history of struggling to manage X’s difficult behaviour. Ms J reported that many of the issues raised in the current assessment were also raised in the 2015 Family Report assessment. In 2015, one of the concerns raised was the Mother’s ability to engage effectively with family support services[92].
[92] 2015 Family Report, at [36]-[38] and [68].
Ms J reported the following, in the Child Inclusive Memorandum, in relation to the Children:
Both X and Y expressed the desire to live primarily with their father and spend time with [the Mother].
The children reported that they felt “unsafe” in the care of [the Mother] due to the fact that she yelled at them and hit them on a frequent basis, consumed alcohol and had a number of boyfriends. Their accounts raised some concerns that they may have been exposed to adult views on the parenting dispute.
[…]
Y expressed concern that the next time that they spent with [the Mother], she [was] likely to be verbally abusive toward them for their accounts at the Child Inclusive Conference[93].
[…]
At interview the children provided accounts that suggested [the Mother] is consuming alcohol on a regular basis[94].
[93] Child Inclusive Memorandum, p.4.
[94] Ibid., p.3.
Ms J expressed the view that:
Although the father is seeking that the children spend time with [the Mother] from Friday until Sunday on alternate weekends, it is possible that until [the Mother] has reengaged with family support services and completed a program on more effectively managing her emotional responses, that the children should only spend limited time with their mother during the day[95].
[95] Ibid., p.4.
Ms J made the following recommendations in the Child Inclusive Memorandum[96]:
a)The Children live with the Father.
b)The Children spend time with the Mother for four hours on either alternate Saturdays or alternate Sundays.
c)The Mother engage with N Family Service and completes the parenting program she has been referred to by her current family support service, or attends a SeaChange Program for women offered by Lifeworks and a Turning into Teens parenting program, as offered by N Family Services.
d)The Mother be restrained from drinking alcohol when the Children are in her care and from using corporal punishment.
[96] Ibid., at p.5.
When Mr K gave evidence he said:
[…] this abuse was prolonged, it was extended over a long period, it was very real and very damaging for both the boys, but particularly for the older boy, X, I think, who seems to have come into conflict with his mother more than Y. And so that the – in my view, the decisions that were made after the section 11F report, I think it was, in mid-2018 were spot on, were correct, and that is for the boys to move into their father’s primary care. And I think, in a sense – I mean, it’s quite clear that the father’s care has been far superior and that the boys appreciate that and they wish to continue living with their father and appear to have only very painful memories of living with their mother[97].
(Emphasis added)
[97] Transcript T128:12-20.
In the Family Report Mr K reported the following in relation to X:
Another very notable feature of X’s interview was that the child was very distressed throughout it; crying copiously for about 20 minutes, particularly, when speaking about his family[98].
[…]
X continued to be distressed right through to the end of his interview[99].
[…]
Turning to the future X was adamant he wishes to continue living with his father. Crying profusely, he told the writer clearly and unambiguously, “I would rather live on the streets than with my mum any day”[100].
The writer wishes to note that X, from his very distressed presentation in interview, while being a sensitive boy seemed to be the most emotionally damaged and vulnerable 14-year-old boy he has interviewed for a long time[101].
One very notable feature when preparing this family report has been the deep distress displayed by X during his interview. He is a sensitive boy but, very clearly, an emotionally damaged boy as well[102].
[98] Family Report, at [91].
[99] Family Report, at [99].
[100] Family Report, at [100].
[101] Family Report, at [103].
[102] Family Report, at [125].
When giving evidence Mr K said:
I must say that in my extensive career over which I’ve done hundreds of family reports, I have never had a child say to me that he would prefer to live on the street than go back to his living with his mother. And to say it unambiguously and with conviction while sobbing, sobbing, sobbing, and that really is the depth and breadth of the harm that has been done here, I think. And of course the subsequent period has only added to the problems in the sense that I understand in late 2018 there was arranged to be fortnightly contact between the boys and their mother which did not work out very well, I understand. And that was followed by monthly contact throughout last year and on most of those occasions, and I think there were 13 occasions that I’m aware of, the contact did not occur[103].
[…]
Y, seems a very switched on kid and less – he was probably less involved in the pre-2018 issues, but the older boy, X, he is very – is really a very damaged boy, in my view, and very fragile, emotionally fragile boy. I’ve never had a boy of his age cry incessantly throughout an interview, sobbing, sobbing, sobbing, particularly when talking about his family. So that the very special and particular circumstances of the case, in my view, require a very special response to protect the boys[104].
(Emphasis added)
[103] Transcript T128:22-32.
[104] Transcript T129:6-13.
In the Family Report Mr K reported that:
[…] Most recently there is mention of [the Mother] being in a relationship with a Mr T, however, according to her, he is not a partner, but just “a friend”.
[The Father] has alleged that, following the breakdown of her marriage in 2017, one of the issues giving rise to concerns for the children’s safety in their mother’s care were that she had “several short-term male partners between February and May 2018”. When this was discussed with [the Mother] she seemed to have a poor recollection of that time, but sought to persuade that her adult life then did not have a downside for the boys.
At the same time, as alleged by [the Father], before the children were over held by him and came into his primary care, [the Mother] did agree there had been times when life had got on top of her and she had asked him “to take them”.
The writer tried to engage [the Mother] in a discussion about the boys’ care immediately prior to them coming into the care of their father in mid-2018. Why had the boys complained of neglect and physical abuse by the mother; at times running away from her home? It must be said [the Mother] had no real explanation for what had occurred; except to recall that the boys behaviour, particularly that of X, had been difficult to handle and had exasperated her[105].
[…]
During the litigation [the Mother] had been urged to seek support from N Family Services. Asked if she had done so, she responded negatively. She had also been advised to undergo the “Tuning into Teens” program to assist parents experiencing problems with their adolescent children. Again, [the Mother] reported she had not undertaken this program[106].
[105] Family Report, at [59]-[62].
[106] Family Report, at [64].
In the Mother’s Second July 2018 Affidavit, the Mother deposed:
In the months since my separation from my husband, I have only had one boyfriend which is current and his name is Mr T. I haven’t had various male or female friends frequent my home as stated in [the Father’s] affidavit[107].
(Emphasis added)
[107] Mother’s Second July 2018 Affidavit, at [32(d)].
When the Mother was cross-examined by Counsel for the Father, the Mother denied that she had been in a relationship with Mr T[108]. The Mother provided the following reason that she could not have been in a relationship with Mr T:
Because he’s actually married, so it’s impossible for me to be in a relationship with him[109].
[108] Transcript T83:6.
[109] Transcript T83:14-15.
The Mother also denied filing an affidavit in this proceeding stating that Mr T had been her boyfriend. After being shown paragraph 32(d) of the Mother’s Second July 2018 Affidavit, the Mother said:
Yes. Well obviously, I’ve mistyped that because I haven’t had any and I’m actually still legally married to my husband[110].
[110] Transcript T84:42-43.
The Mother claimed that she had not read paragraph 32(d) of the Mother’s Second June 2018 Affidavit properly and it was a mistake[111]. I do not accept the Mother’s evidence concerning her relationship with Mr T, when cross-examined by Counsel for the Father. Firstly, it is not believable that the Mother would “mistype” the whole of the sentence: In the months since my separation from my husband, I have only had one boyfriend which is current and his name is Mr T. Secondly, the sentence makes sense in the context of the following sentence in paragraph 32(d): I haven’t had various male or female friends frequent my home as stated in [the Father’s] affidavit. Thirdly, on the same day that the Mother filed the Mother’s Second July 2018 Affidavit, the Mother also filed the Ms A Affidavit. In the Ms A Affidavit, Ms A deposed that:
I need to clarify that she has only had ONE boyfriend – Mr T since her split with her husband […][112]
[111] Transcript T85:1-9.
[112] Ms A Affidavit, at p.4.
The relevance of the Mother’s evidence in relation to Mr T at the Final Hearing when cross-examined, goes directly to the Mother’s credit.
The Mother has not provided any evidence to the Court that she complied with the Orders made on 12 July 2018 to complete the following programs:
a)N Family Services parenting program or in the alternative, the SeaChange program for women offered by Lifeworks; and
b)The ‘Tuning into Teens’ parenting program, offered by N Family Services.
I accept the evidence in the Father’s June 2018 Affidavit at paragraphs 32 to 52. This evidence has been corroborated by the Child Inclusive Memorandum. It has also been corroborated by the Mother’s July 2018 Affidavit, the Ms A Affidavit, the Mother’s February 2020 Affidavit and from the Mother’s evidence under cross-examination[113].
[113] Transcript T114:6-115:17.
Mr K concluded in relation to the Father:
It must be said the writer gained a very good impression of [the Father] in the interview. It seemed that the two boys were very fortunate to have a father who was willing to step-up in mid-2018 and assume their primary care when their care by their mother had apparently all but broken down[192].
[192] Family Report, at [56].
I therefore determine that the Father is able to provide for the needs of the Children, including their emotional and intellectual needs within the context of s.60(3)(f)(i) of the Act.
The Mother
I refer to the discussion in relation to s.60CC(2)(a) and (b) and s.60CC(3)(ca) of the Act.
When cross-examined by Counsel for the Father, the Mother stated that D had stopped living with her in November 2018. The Mother said that supervised time was stopped in March 2019. The Mother was asked why supervised time had been stopped. The Mother said:
I don’t know, to be honest. As far as I know, the supervisor, the company that was running that, no longer felt the need to supervise any more[193].
[193] Transcript T113:21-23.
The Mother no longer spends any time with D. The Mother’s account therefore logically makes no sense at all. If the supervisor felt there was no need to supervise D’s visits to the Mother’s home, then why is D not spending time with the Mother? Counsel for the Husband suggested to the Mother that:
[The Father] has received information that the supervisor stopped time because there were issues with your presentation, how you were with D on 23 March last year and that’s why his time stopped. You say that’s wrong?[194]
[194] Transcript T114:1-4.
The Mother responded “I’m not aware of that, no”. During the Mother’s cross-examination on this topic, the Court reminded the Mother that the proceeding between Mr E and the Mother concerning D, was before me on my docket and that she had appeared before me in relation to that proceeding. The Mother acknowledged that to be the case. The Court is therefore aware of the circumstances as to why the Mother’s supervised time ceased with D. The Court finds the Mother’s responses as to why she was not spending supervised time with D, to have been untruthful.
In the Child Inclusive Memorandum, Ms J reported the following additional matters, in relation to the Mother’s alcohol and substance use and mental health:
[The Mother] denied that she has ever been diagnosed with mental health issues, however following her most recent family separation, she sought counselling services and currently attends counselling once per month[195].
[…]
In the interim it is respectfully recommended that […] [the Mother] is restrained from consuming alcohol when the children are in her care[196].
[195] Child Inclusive Memorandum, p.3.
[196] Child Inclusive Memorandum, p.5.
In the Family Report Mr K reported the following, in relation to the Mother’s alcohol and substance use and mental health:
[The Mother] admits that she used to have a serious problem of heroin addiction, which she overcame following seven years of treatment on a methadone program. The writer hasn’t actually seen any evidence about the success of [the Mother’s] methadone program, but when interviewed she insisted that at this stage she is free of illicit drugs.
[…]
In interview [the Mother] was at times visibly distressed, and told the writer she is taking antidepressants. But it is not clear that she has ever been diagnosed with depression[197].
[…]
[The Mother] admitted she had a 10-year history of heroin addiction and told the writer it had taken her seven years on a methadone program to be free of the drug. At this stage, according to [the Mother], she uses no illicit drugs at all and does not “have a problem” with alcohol[198].
[…]
During her interview [the Mother] was frequently distressed and, apparently not being aware of it, spoke in a loud voice. At times she apologised telling the writer, “I am emotional and I take antidepressants”[199].
[197] Family Report, at [27]-[28].
[198] Family Report, at [63].
[199] Family Report, at [68].
In the 2015 Family Report it was reported by Ms J that the Mother had not completed the post separation parenting program as Ordered by the Family Court on 29 April 2014[200].
[200] 2015 Family Report, at [32].
It has been noted in the discussion in relation to s.60CC(2)(b):
a)The Mother has not produced evidence to the Father of a Certificate of Completion of a Post Separation Parenting Program, as required by the 2015 Orders.
b)The Mother has not provided evidence to the Court that she complied with the Orders made on 12 July 2018 to complete the N Family Services parenting program or in the alternative, the SeaChange program for women offered by Lifeworks; or the ‘Tuning into Teens’ parenting program, offered by N Family Services.
In the Family Report Mr K reported:
In general the writer gained the impression that [the Mother] considers she has been victimised by everyone; which may not be entirely untrue, and have a basis in reality when her own childhood is taken into account[201].
[…]
Before concluding, [the Mother] spoke briefly about her own childhood and family. She described an extraordinarily traumatic, fragmented childhood, within and outside what sounded like a very dysfunctional family[202].
[201] Family Report, at [67].
[202] Family Report, at [76].
In paragraphs 76 to 78 of the Family Report, Mr K summarised the Mother’s childhood and adolescence. Mr K concluded with the following assessment of the Mother:
Apart from her distress during the interview, the writer noted there was an adolescent quality to her presentation; something that has previously been noted when adults develop a heroin addiction from a young age and their emotional development seems to have been arrested at that point. In summary, taking into account [the Mother’s] story about her own childhood and upbringing, what has occurred during her own adult life would seem to be an example of intergenerational dysfunctionality.
Where a child’s life is defenceless and traumatised it is often not possible for the child in later life to develop and maintain adult relationships; since they did not experience and enjoy trusting relationships while they themselves were growing up[203].
[203] Family Report, at [79]-[80].
In the evaluation in the Family Report, Mr K said:
Looking at the case from [the Mother’s] point of view, particularly, her own very traumatic and fragmented childhood and upbringing, this is clearly a case of intergenerational dysfunctionality. Because of her own unfortunate upbringing, with so many emotional traumas and deficits, followed by 10 years of heroin addiction, [the Mother] has predictably found it difficult to sustain relationships in her adult life.
At the age of 36, of her four children, only one whose youngest daughter, remains in her primary care. It must be said that when interviewed [the Mother] definitely seemed to be in a bad place[204] .
[…]
It must be said that at the end of the family report interviews, [the Mother] presented as a truly pathetic figure; pathetic in the sense of evoking sympathy. She has arrived at a point in her life where she is facing an uncertain future, with minimal or no contact with 3 out of her 4 children, and seemingly living a life of near poverty[205].
[204] Family Report, at [120]-[121].
[205] Family Report, at [122].
The Court accepts Mr K’s expert evidence in relation to the Mother. The Court accepts the assessment that the Mother, due to her own unfortunate upbringing, suffers from intergenerational dysfunction. Mr K’s evidence that the Mother had an “adolescent quality to her presentation”[206] resonates with the Court. This evidence is consistent with the Court’s observation of the Mother’s presentation and behaviour during the Final Hearing. During the Final Hearing the Mother behaved more like a petulant teenager than a mature woman in her mid-thirties. The Mother’s behaviour has been previously discussed under the heading ‘Evidence’.
[206] Family Report, at [79].
I therefore determine that the Mother is unable to provide for the needs of the Children, including their emotional and intellectual needs, within the context of s.60CC(3)(f)(i) of the Act.
Any other person (including any grandparent or other relative of the child)
Ms C is a health care worker and is studying to become a health care worker. Ms C describes her career as being the “secondary role” whilst the Children are “still fairly young”. Ms C looks after the Children before school and takes them to catch the school bus. Ms C is also closely involved with transporting the Children to their after school activities during the week and to their activities on weekends with the Father[207].
[207] Ms C Affidavit, at [1] and [8]-[9].
Ms C works in Town EE. At the time of the Final Hearing she was not working, as she had recently had some health issues and surgery in December 2019. Ms C’s employment remains open to her and it is anticipated that she will be returning to work this year[208].
[208] Father’s February 2020 Affidavit, at [7] and [53].
The Court otherwise refers to the discussion concerning Ms C in relation to s.60CC(3)(b)(ii).
I therefore determine that Ms C is able to provide for the needs of the Children, including their emotional and intellectual needs within the context of s.60(3)(f)(ii) of the Act.
Section 60CC(3)(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 Mother and Father were born in Australia and have lived in Australia all their lives. The paternal grandmother was born in Country FF and came to Australia to live in 1963 when she was four years old[209].
[209] Transcript T86:32-33.
In relation to the Children, I refer to the discussion in relation to s.60CC(3)(a) of the Act.
X is now aged 14 ½ and is in year 8 at O School, Town P. Mr K reported that X told him that he had a number of good friends that he has known for between one to nine years and that he spoke warmly about his school and a particular teacher[210]. Mr K has recommended that X receive supportive counselling as required from agencies such as the B Hospital, Headspace and Youth Beyond Blue[211].
[210] Family Report, at [97].
[211] Family Report, at [131].
Y is now 12 and is in year 7 at O School, Town P. Mr K reported that Y said that he had several friends at his school at that time and other friends he has known for three years. Mr K described Y as a “chatty confident boy”. Y also spoke warmly about his school at that time and particularly about his teacher[212].
[212] Family Report, at [105], [110] and [111].
Any other relevant factors have been discussed elsewhere in this Judgment.
Section 60CC(3)(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;
Neither party nor the Counsel for the ICL made a submission to the Court that this was a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I refer to the discussion in relation to s.60CC(2)(b) and s.60CC(3)(c) of the Act.
The Mother has failed to complete any of the parenting courses ordered pursuant to the 2015 Orders or the Orders made on 12 July 2018.
Since June 2018 the Father has demonstrated that he has acted protectively towards the Children and has demonstrated a responsible attitude towards the responsibilities of parenthood.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
In the Child Inclusive Memorandum it was reported by Ms J:
No concerns were raised by either parent about family violence between them and there is no history of family violence orders between the parents[213].
[213] Child Inclusive Memorandum, p.4.
In relation to the Children, I refer to the discussion in relation to s.60CC(2)(b) of the Act.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I refer to the discussion in relation to s.60CC(3)(j). This is not a relevant consideration.
Section 60CC(3)(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;
The parties have been before the Family Court and this Court on and off, for over nine years, commencing on 19 November 2010. The Court intends to take into account issues that have arisen in the first tranche of litigation and again in this second tranche of litigation. The Court intends to make orders that would be least likely to lead to the institution of further proceedings.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
Passports and International Travel
The ICL’s Proposal and the Father’s Proposal include orders that the Father be permitted to obtain Australian passports for the Children and that the Children be permitted to travel overseas with the Father or on their own, without the permission of the Mother.
The Father deposed that the Children have never had passports and that the Father and Ms C would like to take the Children overseas for a holiday. The Father deposed that both X and Y are studying foreign language at school and that in Year 9, their school offers an excursion to Country GG. For X this will be in 2021 and Y in 2022[214].
[214] Father’s February 2020 Affidavit, at [70]-[71].
The Mother opposed the orders sought by the Father in relation to passports, on the basis that she would not be told about the itinerary and that potentially the Father may not return to Australia with the Children[215]. In paragraphs 21 to 23 of the Mother’s February 2020 Affidavit, the Mother proposed various conditions that she considered needed to be met before she would sign a passport application or giving permission for the Children to travel overseas. However when Counsel for the Father asked “So you are not going to sign the passports?” The Mother said “Unless I’m guaranteed time I won’t be signing them”[216].From this exchange I understood the Mother to be saying that unless the Court orders made provision for the Children to spend defined times with the Mother, the Mother does not intend to sign the passport applications.
[215] Transcript T85:43-44. Mother’s February 2020 Affidavit, at [20].
[216] Transcript T88:21-22.
The basis of the Mother’s concern that the Father would not return to Australia was that the paternal grandmother was Country FF and that the Father had relatives in Country FF[217]. The Mother had no knowledge of whether the Father had travelled to Country FF since the parties separated twelve years earlier. Counsel for the Father put to the Mother that the paternal grandmother had arrived in Australia in 1963, when she was four and that the Mother had no evidence that the Father was planning to live in Country FF. The Mother conceded that she had no evidence that the Father was planning to live in Country FF, but said that she did not trust the Father.
[217] Transcript T86:6-8.
The evidence before the Court is that the Father was born in Melbourne and has lived all his life in Melbourne. The paternal grandmother lives in Melbourne, in the same suburb where the Father was born and raised[218]. The paternal grandfather passed away in 2019. The Father deposed that the paternal grandmother is a:
[…] very “hands on” Country FF mother who prioritises family. The children have a great relationship with “nana”. We see my mother at least once per week, either she visits us or we go to her. The children still have sleepovers there[219].
[218] Family Report, at [54].
[219] Father’s February 2020 Affidavit, at [55].
The Family Report confirms the depth of the relationship between the Children and the paternal grandmother[220].
[220] Family Report, at [94], [96], [108] and [109].
The Father has also deposed to the good relationship that he has with his brother, Mr HH and Mr HH’s wife and their 5 year old child. They meet for family gatherings, birthdays, Christmas and holidays and enjoy each other’s company. They also go boating together[221].
[221] Father’s February 2020 Affidavit, at [57].
Ms C also keeps in close contact with her parents on a weekly basis and the Children visit Ms C’s parents around once a month. Ms C’s brother, Mr LL lives in Town JJ, about 10 minutes away from the property at Town V. Mr LL has three children aged 15, 8 and 2. Mr LL’s son KK, who is 15, plays in the same sports team as X[222].
[222] Father’s February 2020 Affidavit, at [59].
As discussed in relation to s.60CC(3)(f), the Father and Ms C own two properties in Victoria, one in Town V and one in Town CC. The Father also has his own business as a self-employed tradesman.
The Court determines that there is no evidence before it to substantiate the Mother’s allegation that the Father would not return the Children to Australia, should they leave Australia for a holiday with the Father. The Father and Ms C are established in Victoria, are employed, own properties and have their families in Australia.
In relation individual overseas trips, the Court concludes that unfortunately the Mother and the Father will be unlikely to agree on the arrangements for any trip for the Children. The Mother has said to the Court that she will not sign the passport applications unless she obtains orders that are in accordance with her proposed orders[223]. In light of the orders that the Court intends to make in relation to parental responsibility, the Court determines that it is in the best interests of the Children for orders to be made in relation to passports and international travel, in accordance with the ICL’s Proposal and the Father’s Proposal.
[223] Transcript T88:21-22.
Restraining Order Ms A
Both the ICL’s Proposal and the Father’ Proposal include an order that the Mother do all things necessary to ensure that Ms A not be present during any time spent by the Children or either of them with the Mother.
The circumstances relating to the request for this restraining order are discussed in relation to s.60CC(3)(c)(ii) at paragraphs 157(c) and 178. This incident is referred as having occurred on 9 September 2018 in the Father’s Outline of Case[224] and is deposed to by the Father in the Father’s February 2020 Affidavit[225]. The Mother has not provided any response to this allegation.
[224] Father’s Outline of Case, p.4.
[225] Father’s February 2020 Affidavit, at [18(c)].
I have taken into account the Mother’s behaviour discussed in relation to s.60CC(2)(b). In the circumstances I consider that it is in the Children’s best interest’s to make the orders sought by the ICL and the Father in relation to Ms A.
Mother’s Attendance at Children’s School and Extra Curricular Activities
In the Family Report Mr K recommended:
That [the Father] arrange for [the Mother] to receive copies of all school reports and invitations normally distributed to parents.
That [the Mother] be free to attend the boys extracurricular activities on advice from [the Father][226].
[226] Family Report, at [134]-[135].
In the Father’s February 2020 Affidavit, the Father expressed misgivings about the recommendation that the Mother be permitted to attend the Children’s extracurricular events. This was on the basis that the Mother may “behave poorly or fail to attend”, which would lead to future disappointment for the Children. The Father said he would be guided by the Court on this issue[227].
[227] Father’s February 2020 Affidavit, at [69].
When the Father was cross-examined by Counsel for the ICL he was very clear that at present the Children do not want to spend time with their Mother. Counsel for the ICL asked how could that change The Father said:
Well, I don’t know. Time ‑ with time, that’s all I could say. They miss her. They might want to see her, and I will facilitate it accordingly[228].
[228] Transcript T45:13-14.
The Mother’s Proposal included seeking orders referred to in paragraph 62(c) and (d).
The Court considers that it is in the Children’s best interests to make orders that are consistent with the recommendations made by Mr K in the Family Report. There has been significant damage in the relationship between the Mother and the Children. The orders I intend to make will allow the Mother to remain informed about the Children’s education and extra-curricular activities. The orders will also provide the Mother with a pathway for her re-engagement in their lives and to commence developing a meaningful relationship with both X and Y again.
Equal Shared Parental Responsibility
Section 61DA of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child. The presumption can be rebutted if it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case, the ICL’s Proposal and the Father’s Proposal both seek orders for sole parental responsibility for the Children for the Father. The Mother’s Proposal seeks orders that the Mother and the Father have equal shared parental responsibility.
I determine that it is not in the Children’s best interests, pursuant to ss.60CA and 60CC(1) of the Act, for the parents to have equal shared parental responsibility and that the presumption in s.61DA(1) does not apply for two reasons, as follows:
a)The presumption does not apply pursuant to s.61DA(2)(a) of the Act, on the basis that there are reasonable grounds to believe that the Mother has engaged in abuse of the Children; and
b)The presumption is rebutted pursuant to s.61DA(4) of the Act, by evidence that satisfies the Court that it is not in the best interests of the Children for the parents to have equal shared parental responsibility for the Children .
Considering first s.61DA(2)(a) of the Act, I refer to the discussion in relation to s.60CC(2)(b) of the Act, in relation to the Mother’s abuse of both X and Y. Mr K has given evidence in which he concluded that the abuse of the Children was prolonged and damaging for both boys, in particular for X[229]. The Court has accepted Mr K’s evidence. The Court has also accepted the evidence of the Father.
[229] Transcript T128:12-20.
Therefore pursuant to s.61DA(2)(a) of the Act, the presumption of equal shared parental responsibility does not apply, on the basis that there are reasonable grounds to believe that the Mother has engaged in abuse of the Children.
Considering next s.61DA(4) of the Act, the evidence is that it is not in the best interests of the Children for the parents to have shared parental responsibility. The parents’ are unable to communicate in any effective manner and this has been the situation for a long period of time.
It has already been noted earlier in this judgment that the parties have been engaged in litigation in this Court and the Family Court since 19 November 2010, a period of over nine years. There have been two tranches of litigation. Mr K described the first tranche of litigation in the Family Court as “resource intensive”[230].
[230] Family Report, at [10].
In the 2015 Family Report, Ms J reported:
In relation to the parents co-parenting communication, [the Father] considered that the parents had a limited ability to be able to co- parent effectively in future […] As the handovers for the children occur through the school, the parents only rarely meet, and [the Father] would be seeking for these arrangements to continue in future[231].
[…]
[The Mother] confirmed that parents had poor communication and low levels of trust for each other, and she claimed recently when Y was ill [the Father] was so resistant to communicating with her, that when she telephoned to inform him he advised her to communicate with him through his lawyer[232].
[231] 2015 Family Report, at [26].
[232] 2015 Family Report, at [32].
In the 2015 Family Report, Ms J recommended that the parent that the Children live primarily with have sole parental responsibility[233].
[233] 2015 Family Report, at [77].
The second tranche of litigation in this Court has been summarised under the heading ‘Procedural History’. It is significant that none of the interim Orders made during this second tranche of litigation were able to be made with the consent of both the Mother and the Father.
The Court made interim Orders on 27 November 2018 that the Father have sole parental responsibility for the Children, as discussed in paragraph 35(a).
In relation to the parents’ present capacity to participate in making decisions about major long-term issues in relation to the Children, I refer to the discussion in relation to s.60CC(3)(c)(i).
The most serious recent example of the parent’s inability to communicate, was the Mother’s failure to tell the Father about the G Allegation, as discussed in relation to s.60CC(3)(c)(ii).
In the Family Report, Mr K recommended that the Children continue to live with the Father and that the Father have sole parental responsibility for their long-term care, welfare and development[234].
[234] Family Report, at [129]-[130].
The Court now has before it two Family Reports recommending that one of the Children’s parents have sole parental responsibility. The situation between the parents and for the Children has deteriorated significantly since the 2015 Family Report was prepared. It is evident that the parents are unable to communicate in a productive co-parenting relationship and have been unable to do so for many years.
By reason of the foregoing matters, I am satisfied that there is evidence that it is not in the best interests of the Children for the parents to have equal shared parental responsibility for the Children. Therefore the presumption of equal parental responsibility pursuant to s.61DA(1) of the Act is rebutted by s.s61DA(4) of the Act. Orders will be made for the Father to have sole parental responsibility for both X and Y. I intend however to include in the Orders an obligation on the Father to make a genuine effort to consult with the Mother and come to a joint decision if possible. I make these Orders on the basis that they require a limited form of consultation by the Father with the Mother. The Orders allow the Mother to express her view in relation to significant decisions, should she choose to do so. As the Mother is seeking joint parental responsibility in the Mother’s Proposal, I consider that it is in the Children’s best interests for their Mother to be involved in significant decision making in this manner. It is apparent that the Mother wants to try to remain actively engaged in the Children’s lives.
As I have found that there is no equal shared parental responsibility pursuant to s.61DA of the Act, there is no requirement for mandatory consideration of equal time or significant and substantial time pursuant to s.65DAA of the Act.
Consideration and Conclusion
In this case the break down in the relationship between the Mother and the Children in about 2018, and the psychological harm and emotional abuse the Children suffered whilst living with the Mother, has been very damaging for both X and Y. I determine that there has been a material change in circumstances, which indicates that it is in the best interests of the Children for there to be a reconsideration of the 2015 Orders[235].
[235] Rice and Asplund; Elmi and Munro, at [38].
I have followed the legislative pathway as required by Goode v Goode[236]. I have considered each of the primary considerations in s.60CC(2) and accorded greater weight to the considerations set out in s.60CC(2)(b). I have also considered each of the additional considerations in s.60CC(3) to the extent that they are relevant.
[236] (2006) 36 Fam LR 422, 455, at [81]-[82].
I now turn to consider the parties respective proposals. I will first consider who the Children will live with. The Father’s Proposal and the ICL’s Proposal both propose that the Children live with the Father. Mr K in the Family Report recommends this proposal[237]. I have discussed earlier in paragraphs 58 to 60 that the Mother did not agree to the Children living primarily with the Father, unless she had defined spend time arrangements with the Children .
[237] Family Report, at [130].
I refer to the matters discussed in relation to s.60CC(2)(a) and s.60CC(2)(b) and s.60CC(3)(a), s.60CC(3)(b), s.60CC(3)(d), s.60CC(3)(f) of the Act. I determine that the overwhelming weight of the evidence is that it is in the Children’s best interests to live with the Father. An order will be made accordingly.
I now consider the spend time order proposed by the ICL’s Proposal and the Father’s Proposal, which is referred to in paragraph 53(a). The proposal allows the Children to spend time with the Mother when they choose, by prior agreement in writing between the Father and the Mother. This proposal was recommended by Mr K in the Family Report[238]. The Mother strenuously opposed this proposal and sought defined times for the Children to spend time with her.
[238] Family Report, at [132].
I refer to the matters discussed in relation to s.60CC(2)(a) and s.60CC(2)(b) and s.60CC(3)(a), s.60CC(3)(c)(i) and (ii), s.60CC(3)(d) and s.60CC(3)(f) of the Act. Having considered these relevant matters, I have accepted Mr K’s expert opinion and his recommendation regarding the spend time arrangements for the Children with the Mother. I also accept the wishes of both X and Y in relation to spending time with their Mother. I determine that it is in the Children’s best interests that an order be made that they spend time with the Mother in accordance with the ICL and the Father’s Proposal. An order will be made accordingly.
The Court intends to include a restraining order on the Mother consuming any alcohol or illegal drugs for 24 hours prior to or at all times whilst the Children are in her care. The Court has considered the matters discussed in relation to ss.60(cc)(2)(b) and 60(3)(f)(i) of the Act in relation to the Mother’s history of drug and alcohol use.
Orders are otherwise made in accordance with the ICL and the Father’s Proposals. I have included a requirement for the sharing of significant medical information relating to the Children between the parents, as I determine the sharing of such information to be in the Children’s best interests. Orders are made accordingly.
I certify that the preceding two hundred and eighty-eight (288) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 13 May 2020
0
9
5