Fahy and Antar

FAMILY COURT OF AUSTRALIA

FAHY & ANTAR

[2016] FamCA 762

FAMILY LAW – CHILDREN – Best Interests – Parental responsibility – Spend time with – International travel – Where there are three subject children – Where one child has a disability – Where the Department of Family and Community Services has been involved with the family including removing the children from the mother’s care – Where the children live with the father and spend limited time with the mother – Where the father and the ICL sought that the father have sole parental responsibility for the children, that the children live with the father and spend some day time with the mother – Where the father sought an order permitting him to travel with the children – Where the mother sought that the parents have shared parental responsibility, that the children live with the father and spend time with the mother including overnight time – Where the children have meaningful relationships with each parent – Where there has been family violence – Where there are practical issues in allowing the child with a disability to spend time with the mother – Where there is a risk that the father will not return with the children to Australia if allowed to travel – Where the Court is of the view that the father will return to Australia with the children if allowed to travel – Orders made for the father to have sole parental responsibility for the children – Orders made for the children to live with the father, for the older child to spend time with the mother in accordance with his wishes, and for the younger children to spend time with the mother but not overnight – Order made permitting the father to travel with the children once per year for up to six weeks.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC
Champness & Hanson (2009) FLC 93-407 McCall & Clark (2009) FLC 93-405

APPLICANT:

Mr Fahy

RESPONDENT:

Ms Antar

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

6435

2014

DATE DELIVERED:

8 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:	Loughnan J
HEARING DATE:	25 – 28 July 2016

REPRESENTATION

COUNSEL FOR APPLICANT FATHER:

Mr Guterres

SOLICITOR FOR APPLICANT FATHER

Louise Coady Family Lawyer

COUNSEL FOR THE RESPONDENT

MOTHER:

Ms Beck

SOLICITOR FOR THE RESPONDENT

MOTHER:

Thurlows Family Lawyers

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Clayhills Escobar Solicitors

Orders

The father shall have sole parental responsibility for decisions about long-term issues for the children J born … 2000; K born … 2003; and L born … 2009.
Notwithstanding order 1:
a)the father shall advise the mother of any parenting decision that he proposes to make about a long-term issue for a child;
b)in the event of a medical emergency and/or hospitalisation in relation to a child, each parent is to inform the other parent forthwith and shall provide the other parent with full details of the nature of the emergency, of the treating practitioners and of the location of the child.
c)the parents shall communicate directly with each other about the children, rather than through any of the children; and
d)the parents shall be civil and respectful in any communications they have with each other.
J shall live with the father and spend time with the mother in accordance with his wishes.
K and L shall live with the father and spend time with the mother as set out hereunder.
Until L attains the age of nine, K and L shall spend time with the mother on the third Sunday of each month, from 11.00 am until 4.00 pm.
After L attains the age of nine, and until she attains the age of 11, K and L shall spend time with the mother each alternate Sunday from 11.00 am until 5.00 pm.
For all times that K and L are to spend with the mother, the father or his nominee shall deliver them to the mother’s residence at the commencement of the time and the father or his nominee shall collect them from the mother’s residence at the conclusion of the time, unless the parents agree to an alternate arrangement, not less than 24 hours before the time is to begin.
If the mother becomes aware that she is unable to care for K and L on any occasion that they would otherwise be with her pursuant to orders 5 and 6, the mother shall:
a)advise the father not less than 24 hours before the time would otherwise commence; or
b)in the case of an emergency, at the earliest possible opportunity;
and such advice by the mother to the father shall be by way of text message to his mobile telephone number.
The father shall not be bound by orders 5 and 6 on any occasion on which the mother is not present at her residence when the time for K and L be with her is to commence.
The mother shall not leave K and L unattended at any time when they are with her pursuant to these Orders.
Not later than 30 January 2019 the parents shall attend a meeting with Relationships Australia to discuss arrangements for K and L to spend time with the mother after L turns 11, including overnight time.
Orders 5 and 6 are suspended during any time the children are on holiday with the father.
Each parent shall advise the other parent of a change to his/her contact telephone number or residential address not later than three working days after the change comes into effect.
K and L shall have telephone communication with the mother each Friday between 7.00 pm and 7.30 pm and that communication is to be facilitated by the father placing a call to the mother’s nominated telephone number.
The father is at liberty to remove J, K and/or L from the Commonwealth of Australia for the purposes of a holiday once per calendar year, for a period of not greater than six weeks, with the father to provide an itinerary and contact details for the children, while they will be overseas, to the mother four weeks before the intended travel.
Simultaneously with the father providing notice pursuant to order 15, he shall provide security for the return to Australia of such of J, K and L who travel pursuant to order 15 of these Orders, by depositing with his solicitor the sum of $25,000 to be held by that solicitor pending written advice from the mother or her solicitor as to the return to Australia of the children who travelled pursuant to these Orders.
In the event that J, K and/or L do not return from overseas travel pursuant to these Orders the mother is at liberty to forthwith apply to the Court for the payment out by the father’s solicitor of the whole or part of the said sum of $25,000 to cover all necessary airfares, travel expenses, accommodation expenses, legal fees and similar expenses for the purpose of the mother having the child or children returned to Australia.
K and L shall have communication with the mother via Skype and/or social media at times the children are travelling pursuant to order 15 every second Sunday at times agreed between the parties.
The father is permitted to obtain passports for the children, J born … 2000, K born … 2003 and L born … 2009 without the consent of the mother, Ms Antar.
Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and to each other, in relation to the wording of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC6435 of 2014

Mr Fahy

Applicant Father

And

Ms Antar

Respondent Mother

And

Clayhills Escobar Solicitors

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings about the children, J who is 16 years of age, K who is 13 years of age and L who is seven years of age.
The child K has asymmetric spastic quadriplegic cerebral palsy and requires a wheelchair. She has global developmental delay and a mild intellectual delay. She also has hyper IgD syndrome (which results in episodes of fever), gastroesophageal reflux and poor weight gain.
The children live mainly with their father. The dispute between the parents relates to issues about parental responsibility, about the amount of time the children will spend with their mother and the father’s proposal to take the children out of Australia for up to six weeks each year.
The main controversy in respect of those issues involve the practicability of the parents sharing parental responsibility for the children; whether it is in the best interests of K and L to spend overnight time with their mother; the risk of the children not being returned to Australia if the father is permitted to take them overseas; and any conditions that might be imposed to ameliorate that risk.

Applications

The orders sought by each of the parents changed over the course of the proceedings and during the trial. At the time of final submissions, the orders sought by the father were as follows:
1.That the father shall have sole parental responsibility for [J] born … 2000, [K] born … 2003 and [L] born … 2009.
2.That [the children] live with the father.
3.That [J] spends time with the mother in accordance with his wishes.
4.That [K] and [L] spend time with the mother from 2.00 pm until 5.00 pm on the first Sunday of each calendar month and other times as agreed.
5.That for the purposes of [K] and [L] spending time with the mother the father or his delegate shall deliver the children to the mother at the commencement of time and the father or his nominee shall collect the children from the mother at the conclusion of time.
6.That [K] and [L] have telephone communication with the Mother each Friday between 7.00 pm and 7.30 pm.
7.For the purposes of telephone communication pursuant to Order 6 the Mother is to initiate the telephone contact on a mobile telephone purchased by the mother and the mother shall be responsible for costs to ensure the mobile telephone has credit and the father is to ensure the mobile telephone is fully charged and that [K] and [L] are available to speak to the mother.
8.That subject to Order 9 below [J] born … 2000, [K] born … 2003 and [L] born … 2009 remain on the Airport Watch List.
9.That the father be permitted to remove [the children] outside of the Commonwealth of Australia for the purposes of a holiday for up to 6 weeks per year and the following conditions shall apply to such travel:
i.The father is permitted to travel with the children to [Country X];
ii.That the travel shall otherwise be limited to Hague convention countries;
iii.The father shall provide the mother four weeks written notice of his intent to travel with the children;
ivThe father’s written notice is to include a copy of the itinerary and contact details for all places of travel and copy of the children’s airline ticket
v.That upon providing notice to the mother the father shall also provide by way of surety $20,000.00 to his solicitor to be held in the solicitor’s Trust account pending further Order of the Court or the return to Australia by the father of [J], [K] and [L].
10.Orders 4 and 6 shall be suspended for the period of time the father travels pursuant to Order 9.
11.That [K] and [L] shall have communication with the mother via Skype and/or social media at times the children are travelling pursuant to these Orders.
12.That the Father be permitted to obtain passports for [J] born … 2000, [K] born … 2003 and [L] born … 2009 without the consent of the Mother.
13.These Orders act as an authority for the mother to obtain information from [K] and [L’s] School(s) at her cost and be entitled to attend events to which parents are ordinarily entitled to attend.
14.These Orders act as an authority for the mother to obtain information about [the children’s] doctor and/or treating specialist.
15.That the father notify the mother as soon as reasonably practicable of any medical emergency requiring hospitalization.
16.That the mother is restrained from smoking at times [the children] are in her care.
17.That the mother is restrained from taking Panadeine Forte and Valium other than in compliance with a medical prescription at times [the children] are in her care and 24 hours before [the children] come into her care.
18.That the mother is restrained from leaving the children unattended during any time she shall spend with [K] and [L] pursuant to these orders.
The orders sought by the mother were as follows:
1.That the children: [K], born … 2003 and [L] born … 2009, shall live with the father.
2.That the mother and father have the shared parental responsibility for the long term care, welfare and development of the children.
3.That [J] born … 2000, be at liberty to choose which parents he wishes to live and spend time with.
4.Each parent shall be responsible for the day to day decisions concerning the care of the children when the child/children are living with or spending time with that parent.
5.That the children [K] and [L] spend time with the mother as follows:
a)In the first week:-
i)Each Friday from 5:30 pm to 7:30 pm;
ii) Each Sunday from 9:00 am to 5:00 pm; and
b)In the alternate week from Friday 5:30 pm until Sunday 5:00 pm.
c)For one week of each April, July and October New South Wales school holiday period as agreed, and failing agreement for the first week of each.
d)For one half of each December school holiday each alternate week by agreement and failing agreement for the first, third and fifth week of the holidays.
e) That unless the child is with the mother on Mother’s day then from 9:00 am to 5:00 pm on that day;
f)Liberal telephone, text messaging and skype with the children on the children’s mobile telephones;
g)Any other additional or alternate times as agreed between the parties
6.In the absence of agreement between the parties, in 2016 and all other even numbered years, the children are to be with the father from 3:00 pm on 24 December until 3:00 pm on 25 December and with the mother from 3:00 pm on 25 December until 3:00 pm on 26 December 2016.In 2017 and odd numbered years, the children are to be with the mother from 3:00 pm on 24 December until 3:00 on 25 December and with the father from 3:00 pm on 25 December until 3:00 pm on 26 December 2017.
7.In the absence of agreement between the parties, in 2016 and all other even numbered years, the children are to be with the mother from 3:00 pm on 31 December until 3:00 pm on 1 January. In 2017 and odd numbered years, the children are to be with the father from 3:00 pm on 31 December until 3:00 pm on 1 January.
8.That for the purpose of spending time, the father shall drop off and collect the children from the mother’s residence.
9.In the event either party is unable to care for the said children during their respective periods of residence/contact pursuant to these orders, then the other parent is to be given first option to care for the said children.
10.Each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice of affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
11.Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the said children including any need for hospitalisation.
12.Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the children.
13.Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matter concerning the children only.
14.Both parties shall keep the other informed of their residential address at all times and give no less than 21 days notice of your intention to change your address.
15.If either party intends to take the children on holidays within the Commonwealth of Australia or take the children away from their normal place of residence for a period of in excess of 24 hours they shall give the other party prior written notice of the intended date of departure; the proposed destination and address, mobile telephone or landline number where the children can be contacted.
16.In the event of a medical emergency and/or hospitalisation, each party is to inform the other party forthwith of the emergency and is to provide the other party with full details of the nature of the emergency, of the treating practitioners, and of the location of the child.
17.The parties, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the children: [J] born … 2000, [K] born (… 2003) and [L] born … 2009, from the Commonwealth of Australia.
18.The marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to retain the said children, [J] born … 2000, [K] born (… 2003) and [L] born …2009, on the family law watch list in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on the watch list under further order of the court.
The Independent Children’s Lawyer (“ICL”) proposals were set out in a minute of order provided prior to final submissions and were as follows:
1.The father shall have sole parental responsibility for decisions about long-term issues for the children [J] born … 2000, [K], born … 2003 and [L], born … 2009.
2.Notwithstanding order 1, the father shall advise the mother of any parenting decision that he proposes to make about a long-term issue for a child.
3.The parents shall communicate directly with each other about the children, rather than through the children.
4.The parents shall be civil and respectful in any communications they have with each other.
5.[J] shall live with the father and spend time with the mother in accordance with his wishes.
6.Until [L] attains the age of 9, [K] and [L] shall spend time with the mother on the third Sunday of each month, from 11am until 4pm.
7.After [L] attains the age of 9, and until she attains the age of 11, [K] and [L] shall spend time with the mother each alternate Sunday from 11am until 5pm.
8.For all times that [K] and [L] are to spend with the mother, the father or his nominee shall deliver them to the mother’s residence at the commencement of the time, and the father or his nominee shall collect them from the mother’s residence at the conclusion of the time, unless the parents have agreed to an alternate arrangement not less than 24 hours before the time is to begin.
9.If the mother becomes aware that she is unable to care for [K] and [L] on any occasion that they would otherwise be with her pursuant to orders 6 and 7, the mother shall:
a.advise the father not less than 24 hours before the time would otherwise commence; or
b.in the case of an emergency, at the earliest possible opportunity;
and such advice by the mother to the father shall be by way of text message to his telephone number.
10.The father shall not be bound by orders 6 and 7 on any occasion on which the mother is not present at her residence when the time for [K] and [L] to be with her is to commence.
11.The mother shall not leave [K] and [L] unattended for any of the time they are with her pursuant to these orders.
12.Not later than 30 January 2019 the parents shall attend a meeting with Relationships Australia to discuss arrangements for [K] and [L] to continue to spend time with the mother after [L] turn 11, including overnight time.
13.Orders 6 and 7 are suspended during any time the children are on holiday with the father.
14.Each parent shall advise the other parent of a change to his/her contact telephone number or residential address not less than 3 working days of the change coming into effect.
15.That [K] and [L] have telephone communication with the Mother each Friday between 7.00 pm and 7.30 pm.
16.Deleted
17.That [the children] be at liberty to travel with the father outside of the Commonwealth of Australia for the purposes of a holiday once a year for the period of not greater than 6 weeks with the father to provide an itinerary and contact details for [the children], while they will be overseas, to the mother 4 weeks before intended travel.
18.Simultaneously with the father providing notice pursuant to order 17, the father shall provide security for the return to Australia, of such [of the children] who travel pursuant to Order 17 of these Orders, by depositing with the solicitor for the Mother (“father’s solicitor”) the sum of $25,000 to be held by the father’s solicitor pending further Order of the Court for the return to Australia by the Father of such [of the children] who travel pursuant to Order 17 of these Orders.
19.In the event the Father fails to return the such of [the children] who travel pursuant to Order 17 of these Orders to Australia pursuant to these Orders the mother have leave to forthwith apply to the Court for the payment out by the Mother’s solicitor of the whole or part of the said sum of $25,000 to cover all necessary airfares, travel expenses, accommodation expenses, legal fees and similar expenses of the Mother to have such of [the children] who travel pursuant to Order 17 of these Orders, returned to Australia pursuant to these Orders.
20.[K] and [L] shall have communication with the Mother via Skype and/or social media at time the children are travelling pursuant to Order 17 every second Sunday at times agreed between the parties.
21.That the father be permitted to obtain passports for the children, [J] born … 2000, [K], born … 2003 and [L], born … 2009 without the consent of the mother, [Ms Antar].
22.That the Father notify the Mother as soon as reasonably practicable of any medical emergency requiring hospitalisation of the children [J], [K] or [L].

Written Evidence

The applicant father relied on:
·Affidavit of the father filed 15 July 2016
The respondent mother relied on:
·Affidavit of the mother filed 19 July 2016

The Hearing

The trial was listed for four days commencing on 25 July 2016. Both parents were represented as was the ICL. On 28 July 2016, oral submissions were made and judgment was reserved.

Short history

The father was born in Country X in 1970 and at the time of the trial he was 46 years of age. The mother was born in Country Y in 1969 and at the time of the trial she was 47 years of age. They were married in 1996 and separated in August 2009. In addition to J, K and L, the parties have a child F who was born in 1998 and who is 18 years of age.
The mother has an older child from an earlier relationship, called G.

Credibility and Submissions

There are some issues in respect of which the uncorroborated testimony of the parties is relevant to the proceedings. There are no corroborating witnesses.
English is not the first language of either parent and caution is needed in relation to observations about their credit.
The father was a poor and argumentative witness. His written evidence was largely unreliable not least because he gave evidence to the effect that he did not carefully check his affidavit or earlier affidavits before signing them. When asked about inconsistent statements in his affidavits he agreed that there were errors in them. When he was asked in cross-examination to explain what he meant by statements in his affidavit, the husband’s response was to refer that question back to the barrister cross-examining him. The father’s evidence about his income was vague despite the fact that he alone has all of the relevant knowledge.
The orders sought by the mother are largely inconsistent with her evidence and with the manner in which her case was presented. That could mean that her evidence is unreliable or that she sought orders, knowing them to be not in the best interests of her children or some combination of those things.
It the mother’s evidence that the father has been abusive to her and the children and has neglected the children. It is her case that he has used illegal drugs and that he runs or has run one or more illegal enterprises. It is her case that he has attracted the attention of criminal or unsavoury elements to his family and that they have threatened his children. It is her case that he has set out to estrange the children from her and that he has poisoned their minds against her. Much of the cross-examination of the father by the mother’s counsel and the submissions made in the mother’s case were apparently calculated to criticise if not, demonise, the father. It is strange then, that not only does she seek orders that he share parental responsibility with her, she wants the children to live with him, unsupervised, for most of the time. Despite those inconsistencies being pointed out during the trial, no attempt was made by her or on her behalf to explain them. I am left to speculate about the reason for this state of affairs. Assuming that the mother has sought orders that she believes are in the best interests of the children, it would follow that her evidence critical of the father is exaggerated or false. Another possibility is that the mother believes that even with the problems of the father’s behaviour, the children would be worse off, living mainly with her. If that was the case, she did not concede that in her evidence.
The mother made some concessions against interest. She conceded that she had refused to provide to those caring for K the adjustable bed designed and provided to her for K’s use. She conceded that on occasions she refused to spend time with K. I understood her to say that in doing so she was holding out for longer or more frequent periods of time or that she did not agree with the conditions that were placed on the offered time. It is possible, of course, that the mother did not see those as concessions against interest, that she thought her attitude in each case was appropriate or otherwise justified. Although not volunteered, the mother did concede that some of the father’s actions in offering and arranging for her to have time with K was responsible and generous behaviour by him. For these reasons, the mother is not a credible witness.
Where the parents’ evidence is unreliable, focus turns to the agreed facts and to independent records.
Ms R gave evidence as a single expert and her credit is not in issue.

Background Facts

The parents were married in 1996.
F was born in1998.
In 1999 a daughter was born to the parents but she sadly passed away shortly after her birth.
J was born in 2000.
K was born in 2003.
The mother said that in late 2004, a caseworker from the Department of Family and Community Services (“the Department”) attended the parents’ home in response to a report. Departmental staff spoke with the mother and inspected the home. A few days later they spoke with the father.
In 2005 the Department organised for the parents to receive assistance with K’s care including an in home carer, a cleaner and physiotherapy services.
In 2005, K was diagnosed with Immunoglobulin D (IgD). She had regular hospital attendances for the treatment of high temperatures.
The mother said that in early 2007, the Department closed their file in relation to the children. If that is true a new file was later opened.
In September 2007 the mother travelled to Country Y with F, J and K and they stayed for three months.
L was born in 2009.
The parents separated on 11 August 2009. The mother and the children remained in the former matrimonial home.
The children continued to live with the mother after separation.
In September or October 2009 there was an incident after which the father was arrested and an Apprehended Domestic Violence Order (“ADVO”) was taken out against him for the protection of the mother.
The mother deposed that in late 2009 she, the father, the children and some other family members travelled to Town A. The mother said that during that trip, the father screamed at her in front of the children and threw a table onto her.
The mother said that in 2010 the father asked if he could spend time with the children for two nights per week. It is the mother’s evidence that she agreed to that arrangement but on the second occasion of exercising that time the father returned the children early, said he could not do that anymore and asked for day-only time, each Sunday.
In March and December 2010 the father was charged with breaching of ADVO. The mother said that for a period of nine months, the father did not see or communicate with the children.
In April 2010 a final ADVO was issued against the father for the protection of the mother.
In February 2011 the father travelled to Country X where he remained for two months. He returned on 17 April 2011.
On 18 February 2011 the ADVO against the father was extended.
Importantly, on 9 September 2011 the Department removed the children from the mother’s care and placed them in foster care with the father’s brother and sister in law. From late September 2011 the father had unsupervised contact with the children.
From December 2011 until October 2012 the mother had supervised contact with the children for approximately two hours, once a week.
In January 2012 the Department placed the children with the father. Importantly, the children have lived with their father since that time.
In February 2012 the ADVO against the father expired.
Orders were made in the NSW Children’s Court on 8 October 2012 aimed at restoring the children to the care of their mother.
In December 2012 the father said he wanted to take the children to Country X over the Christmas period. The mother refused to give her consent. Ultimately the Department facilitated the issue of passports for the children, without the mother’s signature.
In December 2012 the NSW Supreme Court made orders on the mother’s application, restraining the parents from taking the children from Australia and placing the children on the Watch List.
On 9 October 2013 further orders were made in the NSW Children’s Court providing for:
·the parents to have joint parental responsibility for education, religious upbringing and major medical treatment and otherwise for the father to hold sole parental responsibility for the children;
·the children to live with their father;
·F and J to spend time with the mother in accordance with their wishes; and
·K and L to spend time with the mother:
·5.30 pm to 7.30 pm Friday and 9.00 am to 5.00 pm Sunday in week one;
·5.30pm Friday to 7.30pm Sunday in week two; and
·One week during each school holidays.
The orders for the children to spend time with their mother have never been fully implemented. They have spent little time with their mother. F and J have seen her more frequently than K and L.
In May 2014 the father commenced proceedings in the NSW Supreme Court to have the Watch List orders discharged. On 25 September 2014 those proceedings were transferred to this Court.
In December 2014 the mother was at work when the father and the girls visited her.
On 25 December 2014 the parents and the children attended a Christmas lunch together. The mother deposed that the father offered her money if she would consent to the children relocating to Country X.
Between Christmas 2014 and January 2015 the mother spent some time with K and L including on 1 January 2015.
The father deposed that during 2015, the mother contacted him three times by text message to request time with the girls. The father said that the girls spent time with the mother on five occasions in 2015 and that those arrangements were made through F.
Importantly, these proceedings were commenced by the father. He filed an Initiating Application on 11 January 2015.
On 27 April 2015 the parents and the children attended interviews for the preparation of a Children and Parents Issues Assessment.
On 20 July 2015 orders were made for the appointment of an ICL.
The mother deposed that on 20 and 28 August 2015 she contacted the father by text message to organise contact with the children. She said that she received no response each time. On 29 August the mother spoke to the girls on the phone, facilitated by J.
On an occasion in October 2015 F and J took K and L to see the mother.
On 26 December 2015 the mother spent time with the children for dinner. Since then the mother has spent no time with K or L.
In January 2016 K was treated for appendicitis. The father failed to inform the mother of K’s illness. J was with the father at the hospital and he contacted the mother on the morning after K’s operation, to advise her of K’s treatment.
On 1 April 2016 the father filed an Application in a Case seeking permission to travel with the children to Country X for a period of five weeks. On 4 May 2016 the application for interim orders was dismissed but the proceedings were set down, including in relation to travel to Country X, for this final hearing.
On 9 May 2016 the family participated in interviews for the preparation of the family report.
The mother deposed that on 9 May 2016 she saw K and L attending a dinner with the father and his partner. The mother claims that she was prevented from spending time or speaking with K or L.
On 10 May 2016 the mother’s solicitors wrote to the father’s solicitors requesting contact that weekend.
On several occasions throughout May 2016, the mother spent time with F and J.
On 2 June 2016 the mother slipped and broke her wrist at a shopping centre.
On 22 June 2016 the family report dated 21 June 2016 was released to the parties.
The mother deposed that she attempted to contact K for her birthday. She said that her number was blocked and she was unable to get through. She then commenced communicating with the girls by text message to K’s phone.
On 27 June 2016 the mother’s solicitors wrote to the father’s solicitors to organise contact the following weekend. Importantly, the father instructed his solicitors not to respond to that letter.
The mother lives in Suburb B. She has a casual sales job but at the time of the trial had not returned to work following her fall.
The father and children live in Suburb C. They live in premises rented from a friend or associate of the father. The father runs a business which he works from 9.00 am to 2.00 pm but he employs staff to operate the equipment. F works full time in the business, and J works in the business Monday to Thursday and attends TAFE on Fridays.
The father has been in a relationship with Ms H for about 12 months. Ms H has five children. She and the father do not live together but she spends time at his home with the children. The father did not call her as a witness in these proceedings.

The Expert Evidence

The single expert was Ms R. Ms R is a family consultant and has undertaken that role since 2011. Ms R has worked as a psychologist in NSW in Juvenile Justice, as a drug and alcohol counsellor and a child protection case worker. Her qualifications include the following degrees:
Bachelor of Psychology (Honours) …
Master of Psychology (Forensic) …
Master of Couple and Family Therapy …
Ms R’s report is dated 21 June 2016.

The Legislation

The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
The children were the subject of care proceedings. By a letter dated 4 March 2015 the Secretary of the Department of Family and Community Services consented to this Court exercising jurisdiction in relation to the children.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if s 65DAA is not relevant, assess the proposals against the best interests criteria;
f.consider and make findings about living arrangements; and
g.make orders.

The Parties’ Proposals

There were changes in the positions of the parties in the period leading up to and during the trial. By the time for final submissions the orders sought by the parties were as follows:
·The father seeks sole parental responsibility for the children whereas the mother seeks that the parents have equal shared parental responsibility.
·Both parents seek that K and L live mainly with the father and that they spend time, unsupervised, with the mother. The father proposes day-only time with the mother, once a month, whereas the mother seeks an order that her time be on a fortnightly basis and include overnight time. Although expressed in different terms there is no relevant controversy about the orders sought in respect of J. Both parents seek orders that allow J a say in relation to his arrangements. The mother seeks orders whereby J’s living arrangements are a matter for him whereas the father seeks an order that J reside with him but that any time with the mother will be a matter for J.
·The father proposes that he be permitted to remove the children from Australia for up to six weeks each year. The mother opposes any overseas travel for the children.
As is set out earlier in these reasons, the ICL’s proposals were to the following effect:
·That the father have sole parental responsibility for the children and that they live with him;
·That the girls initially spend time with the mother, for five hours each month. Once L turns nine and until she attains the age of 11, K and L shall spend time with the mother each alternate Sunday from 11.00 am until 5.00 pm.
·Not later than 30 January 2019 the parents shall attend a meeting with Relationships Australia to discuss arrangements for K and L to continue to spend time with the mother after L turns 11, including overnight time.
·That the father be permitted to remove the children from the Commonwealth of Australia for the purposes of travel for no longer than six weeks provided that the father provides a bond or security in the sum of $25,000 as a condition of their removal.

Section 60CC Considerations

Section 60CC specifies the following considerations:

Primary considerations:

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

(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents

A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[1] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[1] McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[2]
[2] Champness & Hanson (2009) FLC 93-407.
The orders sought by the parties suggest that they believe there is meaning in the relationships between the children and each parent. Subject to the other considerations, such as the safety of the children, any orders made in these proceedings should prioritise and promote those relationships.

(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.

‘Abuse’ and ‘family violence’ are defined terms.
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.

Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

Section 60CC(2A) requires the court to give greater weight to the consideration set out in paragraph (2)(b).
It is the mother’s evidence that the father was verbally and physically abusive towards her throughout the marriage. There is no corroborative evidence about physical abuse. By that I mean, beyond the ADVO proceedings, there was no allegation of physical abuse in respect of which the police laid criminal charges against the father.
The mother specifically alleges that:
·On one occasion the father threw a chair at the mother and said: “You fucking bitch. You slut.” The police attended and the mother told them that she did not want the father locked up.
·On one occasion after visiting K in hospital the father said to the mother: “You fucking bitch you stopped me seeing my girl. Fuck you and the community services. I am going to send someone on them.”
·In about early September 2009 the father rang the mother and said that he wanted to kill her. The father blocked the driveway of the building the mother was leaving and opened the door of her car. He grabbed her handbag and grabbed the mother by the hair and put her on the floor. K started to scream. The father told her to meet him at home and said “I want to kill you.” The mother agreed but instead drove to B Police Station. The mother was later followed by the father and again rang the police. The father screamed: “Fuck you and the police, I want to burn the whole of [Suburb B].” The mother followed police to another Police Station. The father later arrived there and was arrested.
·The mother deposed that in late 2009 she, the father, the children and some other family members travelled to Town A. The mother said that during that trip, the father screamed at her in front of the children and threw a table onto her.
·In about 2010 at about 11.00 pm the father came to the mother’s door and rang the bell. He said: “Open up, you fucking bitch. I want to fucking talk to you!”
·In September 2014 the father said to the mother: “Listen you slut, you bitch. I kicked [J] out of the house and if I find that he comes over to your house, you’re not going to be happy”.
·On 25 December 2014 the father began to yell and scream at the mother in the presence of the children and that he forced the children to leave her, grabbing the girls with his hands.
The father denies ever abusing the mother, either physically or verbally. When directly asked by the mother’s counsel whether he denies any accusation that he was ever verbally abusive towards the mother, the father agreed.
In relation to the incident in October 2009 that led to the issue of an ADVO, the father confirmed his written evidence that he “…started shouting, was angry and lost my temper”. In his oral evidence, the father said that they were yelling at each other. Counsel for the mother asked him whether he regards that as verbal abuse. The father said he did not.
The father confirmed that at the time of that incident, the children were at the home. However the father attempted to minimise the fact of their exposure to the incident because he said that he and the wife were arguing 50 metres from the house at the end of the driveway and the children were inside the home.
In relation to the three ADVOs that issued against the father for the protection of the mother, the father said that he had lost count of the number of breaches made by him. The father maintained that despite those breaches, he had not once verbally abused the mother, and said that “something was always fabricated” and “she always calls the cops”. He said that there was one occasion where he was 10 minutes late to sign, presumably referring to a document required in relation to an ADVO, and that was the only time he had done anything to warrant the finding of a breach against him.
Further, the father said that when he had consented to an ADVO in 2001 he did not know what it meant, what the letters stood for, and that he only read the order after he had consented to it being issued.
There is no independent evidence of physical violence by the father. It is conceded that the father shouted at the mother in an angry way. It would not be unreasonable for the mother to have been afraid on those occasions. Such behaviour falls within the relevant definition.
The child K has been bruised in the mother’s care. The mother contends that K was bruised by her brother, J, pinching her out of an excessive display of affection.
In her Initial Family Assessment for CatholicCare dated 20 July 2011, caseworker Ms P[3] described witnessing unexplained bruises on both J’s and K’s faces during a home visit on 10 August 2011, and that the mother openly told her that she used corporal punishment as a form of discipline. She said that the boys both confirmed that the mother hits them, and Ms P reported observing the mother on one occasion hit F on his lower arm during a verbal altercation.
[3] Exhibit 5, document 6 (Annexure B to Affidavit of caseworker Ms S, filed in the Children’s Court on 19 January 2012)

Additional considerations

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

There is some resistance on the part of the girls to spending time with the mother. All of the children have expressed the wish to travel to Country X, whether with the father or otherwise.
It is the mother’s contention that the children have been brainwashed by the father and members of the paternal family, that they are scared of the father and that they really want to spend time with her. She told Ms R that K had told her that she wanted to spend overnight time with the mother but that the father would not permit it.
Ms R recorded the views expressed to her by the children. Ms R noted that J presented as confident and assertive and appeared to express his views freely. J expressed frustration that his mother will not consent to him travelling overseas, and expressed a desire to travel to Country X but said that he would not like to live there for an extended period of time. He referred to the mother’s concern that they would not return as “ridiculous”.
J expressed a view that he does not think it is safe or appropriate for his sisters to spend time with their mother.
K said that she does not generally enjoy spending time with her mother. She said that she only wants to spend time with her mother if her mother wants to see her and her siblings. Ms R recorded that K’s perception is that the mother does not want to see her and her siblings. K said “I want to stay with my Dad”. Further, K said she would like to travel to Country X to see the paternal family. She is aware of her mother’s disagreement and does not understand why; she thinks it is “not fair”. Ms R did note that K’s cognitive development is delayed.
Ms R noted that L appeared confident to be interviewed. When Ms R asked L how she feels about not seeing her mother, she said she did not know what to say, and was not able to describe how she perceives her mother. It was noted that L did not indicate that F or J had told her anything about their experiences of the mother when living with her. L said she would like to go overseas to see the paternal family, and she is aware that the mother does not want her to. L said “I really want to go”.
Ms R noted that in regard to the father’s application to travel overseas with the children and the mother’s application to spend time with the children, the children’s expressed views need to be “considered amidst the broader context”. She said that J’s views about these issues can be give substantial weight by the Court given his age and development. But his concerns about the mother and how that would impact decision making regarding K and L, should be interpreted with caution.
Ms R said that regarding the travel to Country X, some weight can be given to K’s and L’s views, but given their ages and development, particularly K, their ability to comprehend the gravity of potentially living in Country X is limited. Ms R recorded that the girls seem ambivalent about spending time with their mother and that it is possible that the girls are influenced by J’s and F’s perceptions of the mother. She said that ultimately, some weight can be placed on the girls’ views regarding spending time with their mother.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and

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

The mother reported to Ms R that the children are scared of their father. Ms R said in her oral evidence that in the interviews and observations for the family report, she did not observe any indication that the children were scared of the father. She said there was a positive interaction between each of K and L and their father. She reported that the interaction between J and the father was nothing remarkable; but that the father appropriately pulled him up on an issue that occurred during the observation. Importantly, as I have referred to, the mother’s evidence about this is entirely inconsistent with the orders she seeks. It is not possible to make sense of the mother’s position. Is her contention: “the children are afraid of the father and therefore they should live mainly with him but spend a bit more time with me”?
Ms R recorded in her report that K and L are ambivalent towards their mother. She said in her oral evidence that she takes this to mean that they hold both positive and negative feelings towards the mother, and hold her at some distance. At paragraph 33 of her report she recorded that the girls said the mother’s home is boring, she smokes cigarettes, and that they just watch TV. K reported being scared when using public transport with the mother. Ms R said in her oral evidence that both girls have the impression that the mother does not want to see them. Ms R agreed that it is possible that the girls’ negative feelings towards the mother could be as a result of the father and the brothers’ influence.
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and

(iii) to communicate with the child;

It is the father’s contention that the mother has not taken the opportunities to spend time with the children. He told Ms R that F takes K and L to see the mother “whenever she calls”. He said that he thought that was less than five occasions in the last 12 months. In May 2016 he told Ms R that the last time was just after Christmas 2015.
The orders of the Children’s Court provide for the mother to have overnight time with the girls and that has never occurred. The father told Ms R that the girls have not stayed overnight with their mother because:
·he does not trust the mother;
·it is not appropriate for K to stay at her mother’s home as she does not live on the ground floor; and
·the mother has not asked to have that time with them.
The first of those reasons suggests that the father has deliberately not facilitated the orders. However, he also said that in the past he had taken the children to spend time with the mother and that she had made excuses, saying she was not home or not available until later in the day and then would demand that he collect them earlier than the appointed time. Importantly, the mother conceded that she did not take up all of the opportunities offered to her to spend time with the girls. The mother has not sought to enforce the orders which provided for her time with the children. It was the father, not the mother, who commenced these proceedings.
The report filed on 8 March 2013 in the Children’s Court pursuant to s 82 of the Children and Young Persons (Care and Protection) Act 1998 (“the s 82 Report”) details the circumstances following the orders made on 8 October 2012 and prior to the orders made on 9 October 2013. The report says on page 1 that “The mother … has not cooperated consistently in organising with the father contact visits with her children. It has been difficult to arrange a schedule due to [the mother’s] changing work schedule. Attempts to arrange contact visits based on the children’s wishes have been hampered by [the mother’s] wish to only have contact at her residence despite her children wanting contact elsewhere.”
The report says that the mother and father were each sent a schedule of the mother’s contact visits by the caseworker on 20 December 2012, and in addition the mother was sent a letter on 10 January 2013 intended to recommence contact visits. However, the mother declined the conditions of the proposed contact.
The report notes that on 21 February 2013 the mother was contacted by the caseworker to discuss further contact visits with the children. The caseworker recorded that the mother was not willing to negotiate, and demanded to speak with a manager. The mother was encouraged to attend the office with her work schedule to plan for contact visits, which she did the following day.
The report also records that the Department had been attempting to ensure that K and L had phone contact with the mother (J and F had been independently exercising that contact on their mobile phones). As at 28 February 2013 the mother had been consistent in stating her intention not to contact the father’s phone in order to facilitate her telephone contact with the children, and the mother could not suggest an alternative. The report notes that as at 4 March 2013, the father did not have the mother’s mobile phone number and was therefore unable to contact her for the purposes of phone contact.
The report further notes that although the mother had been offered contact visits, none took place between November 2012 and February 2013 because of a “breakdown in communication between the parents”. It records that the Department needed to intervene as the shared care approach agreed to in the Amended Care Plan was not working and the mother’s visits were not taking place. During cross-examination the mother conceded that there had been a breakdown in communication between the parents, and that it had not improved. Further, she accepted that the shared care approach in the Amended Care Plan was not working; and that she and the father do not communicate and have not communicated with each other for a long time.
The mother said that her attempts at telephoning the girls more recently have failed because the father blocked her number. As is referred to above, from May 2016, she commenced communicating with the girls via K’s phone by text message.
Ms R said that one should not put a lot of weight on text messages in an assessment of a child’s relationship with a parent as they are not interpersonal, nor reflective of what is really happening in the relationship.
The mother conceded that she had not had any contact or involvement with K’s doctors since the children were in her care. She said that she had not had contact with the girls’ schools since at least Christmas last year. However the father did concede that he had made decisions in relation to the children’s schooling, including changing their schools, without consulting with or informing the mother. The mother said she was under the impression that she was not allowed to attend the schools.
(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
It is the father’s case and it is the fact that the mother has not taken every opportunity to spend time with the children and to communicate with them.
Although the mother complained about the financial support provided to her and the children when they lived with her, the father maintained an account at a local supermarket for the mother to use to purchase grocery items for her and the children.
In October 2010 the mother declined an offer from Housing NSW of a house that had been specifically modified to meet K’s needs. A letter dated 7 July 2010 was sent from K’s Occupational Therapist, Ms N, in support of the family’s priority housing application and outlining K’s requirements. A further Occupational Therapy report was completed by Ms N on 12 September 2011. Ms N noted as follows[4]:
Previous letters have been sent to Department of Housing outlining [K’s] needs for a wheelchair accessible house. A fully modified wheelchair accessible house was offered to the family late October 2011… The house was fully wheelchair accessible including large bedrooms, ramp access and a fully accessible shower and bathroom. However [the mother] refused this housing offer as she was requesting features that housing do not provide including air conditioning, wardrobes, curtains or bars on the windows. [The mother] was also dissatisfied with the fencing, a large tree in the backyard, and the layout of the house. [Ms U] from housing at [Suburb B] reported that this house was modified specifically for the family and that if they refused the house they would not be looked on favourably for other houses… [the mother] decided that the family would remain at their current residence.
[4] Exhibit 5, Document 8.
Notes from the Department record a discussion between the mother and a caseworker from the Department on 31 March 2011[5]. The caseworker recorded that she told the mother that while she can refuse an offer, it would likely be a wait until another house would become available, and that the house offered to her, was the best she would be offered. The notes also record a conversation between the mother’s caseworker from the Department and a Housing NSW staff member on the same date. The notes record that the mother refused the house because it did not have air-conditioning, the rooms were too widely set apart, it had too many trees, and that the fence on the property was not secure enough. In cross-examination the mother agreed that she had refused the housing offer because of those reasons. In submissions, the mother’s counsel said that it was also due to lack of public transport at the available property, considering the mother does not have access to a car. It is not clear why that reason was not conveyed to the Department. The mother said that she was told that if she refused an offer, she would still be eligible for a second offer. She disagreed with counsel’s suggestion that she was aware that refusing the first offer reduced her chances of a second offer. I prefer the record of the caseworker as to what the mother was told about impact of refusing the first offer.
(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or

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

[5] Exhibit 5, Document 7.

The question of the children travelling outside Australia raises a concern for the mother that they might not return. The mother contends that in the past the father has expressed the wish or intent to move to Country X. She says that he would like members of his family there to care for K. She says that she (the mother) would not be safe if she travelled to Country X and therefore, if they were retained there, she would not be able to take steps in Country X to have the children returned.
Because of the mother’s concerns, the children have not spent time with members of the paternal family who live in Country X, for a considerable period if at all.
Otherwise, neither of the parties proposes an arrangement that would cause long periods of separation between one parent and the children.

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

Aside from the implications for K of the mother’s second floor apartment, the issues in the case do not significantly turn on practical difficulties or expense.
(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

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

The mother’s capacity to provide for the needs of the children, particularly, K, is canvassed in much of the historical material, however only material that is relevant to the contested issues will be addressed.
The father and the children live in a Suburb C property rented from an acquaintance of the father. It is has an open plan design with K’s bedroom and bathroom on the ground floor. The owner has permitted the father to make some changes to the property to better meet K’s needs.
The mother lives in a second floor apartment. There is no elevator in the building. The mother fractured her wrist about four months ago when she slipped over. Since that accident she has yet to return to her paid employment in retail sales. The mother’s job involves her in working two to three days a week, involving both weekend and week days. At the hearing she said that she plans to return to work in five to six weeks. The father gave evidence that K weighs 25.7 kilograms. I take it that if the mother’s injury has prevented her working in sales, she would have difficulty managing some aspects of K’s care until her wrist has healed.
Progress notes from a physiotherapist at the Children’s Hospital dated 13 May 2016[6] which form part K’s medical records note that K can only manage standing transfers with help, if the situation is ideal, and that she is nervous about walking independently in her walker. The father gave evidence that K mostly needs to be carried[7]. In cross-examination the father said this involves transferring her from her wheelchair to bed, to the toilet and changing her clothes. The father agreed with counsel for the ICL that it is an important part of K’s daily care that she has some lifting assistance. He said that at night when K requires the use of the toilet, which happens once or twice a week, he carries her to the toilet.
[6] Exhibit 5, Document 13.
[7] Affidavit of the father, paragraph 156.
The Initial Family Assessment by CatholicCare caseworker Ms P, dated 20 July 2011, is annexed to an affidavit filed in the Children’s Court for the Care Application filed 14 September 2011[8]. It sets out Ms P’s observations made over visits to the mother’s home throughout July and August 2011. The report notes that due to the family’s “current level of crisis” Suburb B Community Service had made a referral to CatholicCare for an intensive preservation service to provide an assessment of the mother’s parenting capacity.
[8] Exhibit 5, Document 6.
In the section titled “Parental Capabilities” Ms P describes the mother as displaying developmentally appropriate supervision, for example practicing safe road rules with the children. However Ms P expressed concern as to the mother’s reliance on F and J to perform household duties and caring tasks, particularly for K, including lifting and carrying her. The caseworker also commented on the mother’s provision of developmental opportunities for the children, for example the mother told Ms P that she limits the family’s activities outside of school due to safety concerns.
In the section titled “Family Interaction” Ms P observed that the mother frequently left K on her own on a stool or on the floor with no forms of stimulation other than television. However Ms P recorded that the mother did have insight into K’s medical needs. With regard to behaviour management of the children, Ms P recorded that the mother said “she has ‘tried everything’ and sometimes she just ‘sits and watches’ as she is ‘too tired’ to intervene”. It was again noted that the mother appears to have unrealistic expectations on the boys, for example the mother requiring F to do grocery shopping after school, cleaning, and performing personal care tasks for K, particularly carrying her including upstairs. The caseworker noted that in the time she had observed the family, she had observed the mother bathing K only once. Ms P expressed concern of the level of support within the immediate family available to the mother.
Ms P recorded in the section “Family Safety” that the mother was able to physically provide for her family by having dinner prepared, and the house clean and hygienic. But the mother was unable to provide the children with entertainment including having minimal toys. Although Ms P recorded that the mother had insight into the children’s medical needs, she described concern in regard to the mother’s neglect. In particular, the mother was observed to have failed to facilitate a dental visit for J, to the point where the caseworker herself had to take J to a dentist due to the level of pain he was in. The mother reportedly said she had “too much cleaning” to do at home or that she was “too busy”. Ms P expressed concern as to the mother’s ability to meet the emotional needs of the children, for example not providing comfort to F when he was in pain and leaving L in her cot or highchair for extended periods of time.
Ms P summarised the position of CatholicCare as being one of grave concern for the overall wellbeing of the children. She expressed the view that the mother’s parenting style appears to have a negative impact on the children, and the mother appears resentful of the children, particularly F, J and K. Despite efforts to discuss concerns and consider solutions, the mother showed limited insight and presented barriers to effecting changes.
The mother substantially disagreed with Ms P’s observations.
In a letter dated 17 January 2012 annexed to an affidavit filed in the Children’s on 19 January 2012[9] for the Care Application, Ms P expressed support for the children’s restoration to the father’s care. She said that the father had actively and consistently engaged with CatholicCare, and he had been observed to have integrated new parenting strategies to support the needs of his children. He had been observed to adequately care for the children, particularly K, which had resulted in increased mobility and independence for her. The father had developed strategies to deal with challenging behaviours presented by the boys.
[9] Exhibit 5, Document 6.
The Application and Report initiating care proceedings in the Children’s Court stamped 14 September 2011[10] records that the grounds on which the final orders were applied for under s 71(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) included:
·The child or young person has been, or is likely to be, physically abused or ill-treated
·Subject to subsection (2) the child’s or young persons basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her primary caregiver.
·The child or young person is suffering or is likely to suffer serious development impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living.
[10] Exhibit 5, Document 1.
The Application and Report details the circumstances of the children’s removal from the mother’s home on 9 September 2011 and provides as follows:
Community Services has extensive history in relation to all four children, [F], [J], [K] and [L]. The issues have related to the physical, psychological and emotional abuse of [F], [J], [K] and [L] from their primary carers, [the father] and [the mother]. In addition, their basic needs, including [K’s] complex medical needs, were not being met by their primary carers. These concerns over the past 12 months have escalated to a level where the mother would frequently be heard by a CatholicCare worker in the home threatening to kill herself in front of the children, and noticeable decline in the mother’s ability to appropriately and consistently parent the children.
The Application and Report records reports, communication and correspondence between the Department and various organisations involved with the mother and the children. The report records the reasons for seeking the orders as follows:
·FACS has assessed [the children] to be at risk of harm due to [the mother’s] disengagement from CatholicCare
·[The mother] has not followed through with supports and services as recommended by the CatholicCare intensive support service
·[The mother] has demonstrated resistance to working with FACS by terminating the progress meeting on 6 September 2011 and denying FACS workers access to [the B property] on 7 September 2011
·Reports received indicate that [the mother] has been physically violent toward her children
·Community Services is concerned that the risk of harm to [K] will increase should [F] and [J] continue to care for her
·[The children] have been exposed to ongoing neglect from [the mother].
I note that at the time of the children’s removal, the mother was caring for four children, including one with a disability, on her own. She no doubt made every effort to provide adequate care for her children but due to her limitations and some challenges, this proved to be difficult for her. Due to the ADVO being in place and after being charged with breaching it numerous times, the father’s involvement in caring for the children for a period of time was also limited.
The Children’s Court Clinic Assessment Report by Mr O dated 14 April 2012[11] records that the mother thought that her caseworker from the Department “had something personal against her”. Mr O reported that the mother “thought that the father had a ‘contact’ with the Department…”. Mr O further said that “the most salient feature of [the mother’s] presentation was the paucity of insight she displayed in respect to circumstances leading to the children’s removal … matched by the extent to which she appears to have directed the blame for their removal on both the father and FACS…her current appraisal of the children’s circumstances in (sic) conspicuously deficit in the acceptance of any level of responsibility for a range of child protections concerns raised before their removal.”.
[11] Exhibit 5, Document 3.
In his further report dated 12 September 2012[12] Mr O described the mother as “somewhat rigid in her thinking and practice” and he said that she remained unengaged with the Department.
[12] Exhibit 5, Document 4.
In the CatholicCare Initial Family Assessment dated 20 July 2011, caseworker Ms P recorded that the mother does have some insight into the children’s personalities, but that overall the mother had limited insight and presented barriers to effecting necessary changes to ensure the children’s wellbeing.
Ms R agreed with the proposition that considering the mother’s belief that caseworkers from the Department were personally against her, in the context of the quantity and the nature of the reports received by the Department over the 2010-2011 period, this would indicate a lack of insight on the part of the mother.
Ms R agreed that if the mother had left the children unsupervised while in her care, this would present a significant risk to K and L, due their age at the time, and K’s disability. Ms R said that to leave K alone now, would be a risk. She said that if there are indications that there is a greater chance of K being left unsupervised at night than during the day, then an option regarding K would be to not permit the mother to have K overnight. As is set out later in these reasons, on a night in March 2010 the mother did leave K and L alone in her apartment.
Ms R recalled that one issue J had with the mother was his feeling that she did not support him to get an education, particularly by disciplining him by not allowing him to attend school.
The ICL took Ms R to page 4 of the s 82 Report which details a discussion between the Department and the mother as to her progress against the minimum outcomes needed under the agreed restoration plan. Ms R said that there is nothing to indicate that any of those steps have taken place in recent times, nor does it appear that there has been improvement or progress made in those areas.
The s 82 Report notes on page 9 that as at 1 March 2013 the child L had been attending Playskool for approximately one year and that during that time, staff had noticed a “dramatic improvement in her physical presentation”. Staff said that the previous year, L would attend in unwashed clothes and appeared to be unclean but such concerns had dissipated throughout the year. Counsel for the ICL took the mother to this and she accepted that this was the case.
The non-participation of each of the parents in parenting courses was raised in the proceedings. The s 82 Report notes that neither parent had attended the parenting courses requested by the Department. The report records that the mother said she could not attend because of work commitments. In cross-examination, the mother said she could not remember if she was asked to attend but when taken to the relevant part in the s 82 Report, she said that she might have tried to leave two messages with the relevant facilitator but did not follow it up after that. There is an issue as to whether the father has attended such a course. The ICL submitted that neither parent had attended a parenting course. However counsel for the father pointed out that in his affidavit the father referred to having attended an anger management course and a parenting course for teenagers[13], which he submitted the father was not challenged on.
[13] Affidavit of the father, paragraph 99
On 9 September 2011 after the removal of the children from the mother’s care, the police were called to the mother’s home after receiving a report that she had threatened to self-harm. The mother denied making such a threat. Nonetheless she admitted that she required some mental health assistance. An ambulance was called and the mother was voluntarily scheduled under the Mental Health Act.

(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 father was born in Country X and has members of his extended family living there. He runs a business. The parents’ son F works in that business. The husband’s working arrangements are not entirely clear. He has deposed to not working but to being engaged full-time in caring for the children. At other times he said that he works between 9.00 am and 2.00 pm to accommodate the children’s school hours. He estimated that his business earned $100,000 in a recent year. He said that he receives in the order of $1,680 per fortnight from Centrelink.
The mother was born in Country Y. She works part-time in retail sales. In 1998 she was involved in a car accident. As is referred to above, in April 1999 she lost a baby. She contends that the death was due to medical negligence. She was prescribed a number of drugs at that time. At one point she was taking six Valium, six Mogadon, and six to eight Panadeine Forte tablets a day.
Both parents hold Country X citizenship. Ms R accepted that being of a Country X background is a significant part of J’s identity. She said that the children know they have family in Country X, they identify with that and want to have contact with those family members. She said that J has spoken about having family members in Country X and wanting to visit them. Ms R confirmed that the children are aware that the mother is withholding consent, and that J is angry about it. She said that the girls might feel that way too, as they get older.

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

Conduct relevant to this criterion has been addressed elsewhere in these reasons.
It is the father’s case that the mother has abused medication and illicit substances, that she smokes in the presence of the children and that she has failed to prioritise her relationship with them.
Forming part of the records from the Children’s Hospital is a Child Protection Income and Outcome Form completed by a social worker on 22 June 2006. The social worker notes as follows:
…
1.Fa works a lot (manages a … company. On the phone all the time when on ward. Has been observed to be loving & appropriate towards [K].
2.Mo presents with volatile mood; histrionic behaviour; low self care; ? depression; ? Benzo use (Valium)… threatened to call amb to take [K] to a private hosp. after she was t/f from CICU to ward & then stated that she would refuse t/f back to CICU if necessary; makes comments indicating she can’t cope with home duties & organising care for boys but will not engage in d/w SW re: assistance and support needs.
…
In oral evidence the mother disagreed with those observations and said she had just been asking about her daughter.
Correspondence was sent by the same social worker on 30 June 2006 to other staff members as follows:
…
My Main reason for alerting you is to do with [K’s] Mo, [Ms Antar]. She is an extremely anxious woman who lost a female child at birth 6 years ago … this naturally exacerbates the stress she experiences when [K] is unwell… each time I have noted her to be highly anxious and mistrusting of the medical and nursing staff. Often reporting sleep deprivation and an inability to eat/toilet. [The mother] will not leave the hospital at all – although she is regularly away from the bedside smoking or socialising with other parents. [The mother] has been known to make serious threats – such as “I’ll call a Current Affair”, “I’m going to the media” etc. In my opinion [the mother] is quite manipulative in her approach to others and this has worked in the past for getting her needs met. [The mother] has difficulty following conversations and appears to have trouble comprehending a lot of what is said by doctors etc – although it is hard to tell what is just [the mother’s] own interpretation of things. She continuously feels people are hiding something from her – and that [K] is going to die. There is some question around whether [the mother] may mis-use prescription meds such a Valium/Panadol Forte.
Fa, [Mr Fahy], works long hours running his own business and is also caring for [K’s] siblings… he and [the mother] fight a lot – [the mother] often says she doesn’t want to be in the marriage. [The father] has recently said the same, althought he would like to seek counselling … There was some DOCS involvement late last year around some query DV – but nothing current – it is hard to determine what went on with that.
… I feel [the mother] has potential to abuse the service. Having said that – she can become quite volatile on the ward and nursing staff have difficulty dealing with that
…
On 7 March 2010 the police came to the mother’s apartment to investigate a report she had made that on the previous day, that associates of the father’s, who he allegedly owed money to, had made a threat to the effect “if he doesn’t give the people $135000 within 7 days he’s going to lose one of his kids”. Detectives arrived at 11.40 pm and were unable to obtain access to the property. They gained access and found the children alone and without adult supervision. The police noted that they contacted other family members who attended thereafter, that they held concerns that the children were left alone, and those concerns were voiced to the mother when she arrived. The police recorded that the mother reported that she had been at B hospital as she was stressed and suffering from depression. The police observed that the mother appeared to be mildly under the influence of sedatives. It was the mother’s evidence that earlier that evening she suffered a migraine headache and called a friend who lived in the same street. The friend took the mother to a local hospital. Before leaving the apartment with the mother, the mother’s friend rang her daughter and asked her to come and mind the children.

It would be remarkable if the police called at the property on the only occasion that the mother left the children alone.
In any event, on that occasion the mother did leave the children alone. If something had prevented the friend’s daughter from attending at the property then the children would have been alone for a longer period. In March 2010 L was 10 months of age and K was seven years of age. Suffice it to say, they should not have been left without adult supervision.
As is referred to above, the mother conceded that at one point she had refused to provide to those caring for K the adjustable bed that had been designed and provided for K’s use. She conceded that on occasions she refused to spend time with K, saying that she wanted more time or did not agree with the conditions that were placed on that time. In my view, on those occasions the mother was not able to give priority to K’s needs.
On 27 June 2016 the mother’s solicitors wrote to the father’s solicitors to organise contact the following weekend. Importantly, the father instructed his solicitors not to respond to that letter.

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

The evidence about this issue is contested.
As is referred to earlier in these reasons, it is the mother’s case that the father was verbally and physically abusive towards her during the marriage. There is no corroboration of the mother’s evidence about physical abuse. No allegation of physical abuse led to charges being laid by the police.
The father denies ever abusing the mother, either physically and verbally. When directly asked by the mother’s counsel whether he denies any accusation that he was ever verbally abusive towards the mother, the father agreed.
As is referred to earlier in these Reasons, the Application and Report initiating care proceedings in the Children’s Court stamped 14 September 2011[14] details the circumstances of the children’s removal from the mother’s home on 9 September 2011. It records that the grounds on which the final orders were applied for under s 71(1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) included:
·The child or young person has been, or is likely to be, physically abused or ill-treated
·Subject to subsection (2) the child’s or young persons basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her primary caregiver.
·The child or young person is suffering or is likely to suffer serious development impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living.
[14] Exhibit 5, document 1.
The report lists the reasons for seeking interim arrangements concerning parental responsibility and placement at that time as including “reports received indicate that [the mother] has been physically violent toward her children”. The schedule of reports received by the Department details 32 reports and is inclusive of the period between September 2000 and March 2011 including allegations of family violence by the mother, the father, and the parents together. The Children’s Court Clinic Assessment Report by Mr O dated 14 April 2012[15] says at paragraph 41:
41.[The father’s] history of domestic violence is a legitimate concern in respect to his current and prospective parenting capacity. He has twice been convicted of Breach of AVO, and had engaged in a number of verbally abusive and threatening behaviours with the mother … In the context of actuarial measurement of dimension of further risk of engaging in similar behaviours, this history in itself constitutes a low risk. Beyond this however, there do not appear to be any obvious current risk factors, and some evidence of the development of some protective factors … In a nett sense, [the father’s] risk of engaging in abusive behaviour, especially to the children, is considered to be low.
[15] Exhibit 5, document 3.
The CatholicCare Initial Family Assessment by caseworker Ms P[16] is dated 20 July 2011. Under the heading of “Family Safety”, Ms P describes witnessing unexplained bruises on both J’s and K’s faces during a home visit on 10 August 2011, and that the mother openly told her that she used corporal punishment as a form of discipline. She said that the boys both confirmed that the mother hits them, and Ms P reported observing the mother on one occasion hit F on his lower arm during a verbal altercation. Further, Ms P recorded that the mother had described concerns with the amount of force F, and sometimes J, use with L and K. Ms P reported observing F slap K on the face three to four times after she had kicked at him and punching L in the ribs. Ms P recorded that the mother had reported “alleged severe domestic violence in their marriage, which the children witnessed … on one occasion [the father] repeatedly kicked [the mother] while she was on the floor in front of the children”. In an interview with F on 1 September 2011, in regard to the mother hitting him, he said “it hurts but I am used to it”. In an interview with J on the same day, he “stated that he has taken a photo of a slap mark on his face that was inflicted by his mother.”
[16] Exhibit 5, document 6 (Annexure B to Affidavit of caseworker Ms S filed in the Children’s Court on 19 January 2012)
The COPS records produced on subpoena by NSW Police outline relevant history from September 2009[17].
[17] Exhibit 5, document 12.
The police notes record that on 20 September 2009 the mother and father had a verbal altercation about the father’s time spent with the children. The records describe that the father swore and abused the mother in front of the children including calling her a “fucking bitch”. The mother called the police who attended but no action was taken. The police noted that the mother did not fear for her safety and that she “merely wants Police to sort out her custody issues …”. The following day, the mother contacted police and they again attended at her home. The mother told police that no further issues had occurred, however she wanted to apply for an ADVO. The police were informed by the B Domestic Violence Liaison Officer that the father had broken into her home. The mother clarified with the police that the father used his key to access the home while she was there. The police applied for a non-urgent ADVO.
The police notes record an incident on 5 October 2009 where the mother was attending at a friend’s home to pick up two of the children. The father parked his car so as to block the mother from leaving. The father then ran up to the mother’s car and began yelling at her including calling her a “fucking slut”. The father reached into the car and removed the mother’s mobile phone. The mother went to the police station and arranged to meet with the police at another location. The notes record that the father again blocked the mother’s car with his, and the mother drove away at which point the father chased her in his car, yelling and screaming. Police arrested the father and served him with an AVO. The Department were notified. The police records note that the children were “hysterical”.
On 8 October 2009 the Local Court continued the AVO served on the father by the police on 5 October 2009, until hearing on 19 April 2010.
On 20 January 2010 the police attended the mother’s home as she wanted to report a possible breach of AVO. The notes record that the father did not agree with the mother’s decision to christen their youngest daughter in March. The records say that the father had regularly been contacting the mother, on the previous day in excess of 16 times. There was some confusion as to whether there was an AVO in force at the time, but ultimately the father was charged with breach of AVO.
On 7 February 2010 the police attended the mother’s home at her request. She showed the police text messages she had received from the father that she perceived to be threatening. The notes record that the police did not hold the view that the messages were threatening, but that the father had breached the AVO by contacting her. In relation to the same incident, the notes of 18 March 2010 record that the mother was not cooperating with police and that they had made numerous attempts at contacting her and could not organise to take a statement, “victim does not seem fearful and is not taking incident seriously… Police hold no fears”.
The police notes record that on 21 March 2010 the father attended the mother’s home, and when she would not let him in, he commenced telephoning and text messaging her repeatedly. The mother told police that in the early hours of 22 March 2010, the father attended the home again and knocked on the front door and said “open you fucking bitch. I wanna kill you tonight” and “I will fix you up, you bitch”. The father was arrested and charged with breach AVO.
On 19 April 2010 a final AVO was issued against the father for the protection of the mother.
On 6 May 2010 a cousin of the father’s was visiting the mother. The mother said that the father called the cousin and the cousin put the conversation on loud speaker. The father said “someone is going to die, either me or him”. Later that day the mother received further calls from the father on her mobile phone and during one such call the father said “…if I see that guy or his car at your house or his family someone will die. Either me or him.” The father then indicated that he was going to come to the mother’s house at which point she called the police. The notes from 8 May 2010 record that the father was charged.
On 1 June 2010 the mother contacted police because she said that the father had driven repeatedly past her house and yelled out to her. The notes record that the father was to be charged. There is no further reference to this matter in the records.
The COPS notes from 12 December 2010 record that on 11 December 2010 the father sent a text message to the mother, tried to call her and then attended her home. The mother called the police but the father had left the home by the time they arrived. The notes record that the mother was scared of the father and scared that he would break into her home and harm her. The police located the father and he was charged with breach of AVO in relation to contacting his children outside the times prescribed in the conditions of the AVO.
The COPS notes record that on 13 December 2010 the mother received a text message from the father and that she was scared of the father and scared that he would come to her house and harm her and the children. The father was charged with breach of AVO.
On 16 December 2010 the mother reported to police that the father called the children on the mother’s mobile phone, rather than on the number specified in the AVO of 19 April 2010. The father later attended the police station on 18 December 2010 and he gave conflicting evidence. No further action was taken.
On 8 November 2011 in the early hours of the morning the police were called to the mother’s home. She told police that she noticed the father in his vehicle out the front of her home. Police attended at 1.02 am and the mother said that she wanted to report it as the father had breached the AVO in a similar way in the past. The father denied being in that location and no action was taken.

(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;

In October 2009 an AVO was issued against the father for the protection of the mother. That AVO was made final in April 2010 and the father was charged on at least two occasions with breaching the AVO. The order finally expired in February 2012.
There is currently no AVO in place.

(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;

Apart from any appeal, an order that would be least likely to lead to further proceedings would be an order that effectively excluded one of the parents. Neither of the parents seek such an order. A puzzling aspect of the case is that the mother has taken no steps to enforce her rights under any orders.

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

One of the key areas of dispute relates to the father’s proposals for travel to Country X. He also seeks orders for travel to countries that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. The mother’s response to the latter proposal through her counsel was that there would be nothing to stop the father travelling on from a convention country to a non-convention country. I accept that practical reality and for that reason will give no separate consideration to travel to convention countries.
Returning to the issue of travel to Country X, initially the father wanted to stay in Country X for six months to do some work there but he now says, that opportunity is no longer available. He says that the business environment there is no longer suitable for the project he had in mind and now proposes to travel there for shorter periods.
In Australia, the father has a brother with three children and a sister with four children. His parents and four other sisters live in Country X. The arguments made on behalf of the father are that:
·he has consistently sought permission to undertake this travel and despite the mother’s contention that he has the financial capacity, the access to travel documents and an undiminished desire to do so, he has not in fact removed any of the children from the Commonwealth;
·the parents took the children overseas during the marriage;
·although the wife was born in Country Y, both parents are citizens of Country X;
·the father has a business here that provides his livelihood and that of F;
·the father receives significant Centrelink benefits in Australia and other practical and financial support that would not be available to him in Country X[18];
·better medical care is available for K in Australia than would be the case in Country X;
·the father will provide a bond of $20,000 (not $25,000 as proposed by the ICL);
·the father has close relatives in Country X and they should have time with the children and can provide him with respite from his onerous care obligations.
[18] Exhibit 4 – Australian Government Department of Human Services ‘Carer Allowance while travelling outside Australia’.
It is submitted on behalf of the mother that:
·the father intends to retain the children in Country X in part for the purpose of excluding her from their lives;
·on one earlier occasion he offered to pay her $100,000 to allow him to go and therefore $25,000 will not guarantee his return;
·he has the financial resources and family support to manage in Country X;
·he has no permanent ties to Australia;
·the mother opposes travel in any event but if it is to be allowed on the basis of a bond, $25,000 is inadequate and it should set at a much higher figure;
·that the bilateral arrangements between Country X and Australia in relation to removed children provide none of the safeguards or mechanisms of the Hague Convention.
Correspondence dated 6 June 2014 forming part of the Children’s Hospital records from Dr T, K’s paediatrician, notes that “there is no medical reason she should not be able to travel overseas with her family”.
In an affidavit dated 2 July 2014 filed by the mother in the Supreme Court in relation to the Airport Watch List orders, the mother said at paragraph 8 that she has text messages which prove the father’s intention to take the children to Country X to live. In oral evidence the mother confirmed that the text messages exist and said that she did not include them in this or any subsequent affidavit because her lawyers did not tell her to and that they are on an old phone.
The mother’s evidence is that on 25 December 2014 the father said:
“It’s a better future for the children in [Country X], I have a business, a house ... let me take them over for four years as there is no future for my children.”
And
“I’ll give you $100,000.00 in cash and I will buy you a house and every six months I will buy you tickets to [Country X] so you can see your children.”
It is the mother’s evidence that she responded:
“I will not sell my children.”
It is the mother’s evidence that the father has made similar offers to her on other occasions.
A copy of a complete contract entered into by the father’s company was tendered into evidence[19]. The submission by counsel for the mother was that the father had annexed an incomplete version to his affidavit to bolster his case that he would not relocate to Country X permanently. The submission by counsel for the mother was to the effect that the contract had been presented as a contract to build roads, but in reality, the contract was to complete work from July 11 – August 12, 2016 and that therefore it did not lend support to the father’s case. I accept that the contract does not assist in assessing the risk that if allowed to take the children from Australia, the father might not bring them back.
[19] Exhibit 5, Document 10
On the mother’s own case, the father could have taken the children out of the country at any time. It is her contention that he was involved in the making of false identity documents. It is her contention that he had at least $100,000 to put towards the costs of travel. Rather than taking matters into his own hands, the father has sought permission. The father sought the mother’s agreement and with the help of the Department, sought a Court’s approval for the travel. The father has a business that employs him, F and at times, J. He acknowledges that in Country X there is not the medical system, nor any practical or income subsidy available from the Government to assist with K’s care.
The father has a credible reason to visit Country X. He has extended family there and they would provide him with respite in relation to his care of the children. The parents have previously taken the children overseas.
In my view, if allowed to travel with the children, the father will comply with Court orders and bring them back. I accept that there is a risk of him not doing so. In my view, the risk is small but I accept that the harm caused if the risk is born out, would be very serious. In that regard, and in order to give the mother some comfort, I will impose a condition on any travel. In accordance with the proposals of the ICL, I will order that the husband provides security in the sum of $25,000. It is more than the father has offered but I acknowledge that it is much less than the mother proposed. Nevertheless, it is an amount that would go some way to enabling the mother to take action to recover the children.

Other issues

The father sought specific orders in relation to the mother smoking and in relation to her use of prescription drugs. He sought that the mother be restrained from smoking at times J, K and L are in her care and from taking Panadeine Forte and Valium other than in compliance with a medical prescription while and 24 hours before J, K and L come into her care. There is insufficient probative evidence about these matters to make significant findings.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position for the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.

An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.

Discussion

In the context of this case, s 61DA requires that I apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for them unless there are reasonable grounds to believe that the father or the mother have abused one or more of the children or engaged in family violence. The parents have engaged in family violence and therefore the presumption does not apply.
Where the presumption does not apply, s 65D(1) requires the Court to make such order with respect to parental responsibility, and/or time to be spent with each of the parties as it “thinks proper”. What is proper is what is in the best interest of the child, which in turn is determined by reference to s 60CC of the Act.
Going to the exercise of parental responsibility, the parties do not have a good relationship and their communication is poor. In my view it is not practicable to require or allow the parents to share parental responsibility.
It is agreed that the children will mainly live with the father. It is sensible for him to exercise parental responsibility. I will order that the father have sole parental responsibility. I will provide for him to keep the mother advised about significant decisions.

Conclusion

The presumption that the parents having equal shared parental responsibility would be in the best interests of the children does not apply. The proper order is one that places parental responsibility with the father. I will make an order in the terms proposed on behalf of the ICL.

Living Arrangements

In that the Court will not make an order that the parents have equal shared parental responsibility, it is not necessary to consider any particular pattern of living arrangements.
As I have noted above, although expressed in different terms the parents’ proposals raise no relevant controversy about the orders sought in respect of J. They both seek orders that allow J to decide what his living arrangements should be. The mother seeks orders whereby J’s living arrangements are a matter for him whereas the father seeks an order that J reside with him but that any time with the mother will be a matter for J. It is clear on the evidence that those proposals amount to the same thing.
Both parents seek that K and L live mainly with the father and that they spend time, unsupervised, with the mother. The father proposes day-only time with the mother, once a month, whereas the mother seeks an order that her time be on a fortnightly basis and include overnight.
The ICL’s proposals were to the effect that the girls initially spend time with the mother, for five hours each month. Once L turns nine and until she attains the age of 11, K and L shall spend time with the mother each alternate Sunday from 11.00 am until 5.00 pm. In order to address arrangements thereafter, the ICL sought an order that not later than 30 January 2019 the parents shall attend a meeting with Relationships Australia to discuss arrangements for K and L to continue to spend time with the mother after L turns 11, including overnight time.
In my view the ICL’s proposals represent a useful compromise between the parents’ proposals. Thereunder, the time will commence with a modest but achievable program, will build toward more meaningful periods of contact between the mother and the girls and will provide a mechanism for the parents to consider implementing something closer to substantial and significant time as the girls get older. In my view, provided it is practicable and safe, it is in the interests of the children and both parents that the mother have more time with the girls. The girls’ relationship with their mother is important and as they grow older may be more so and the father should not bear all of the parenting load, if there is a safe option for respite.

Conclusion

I will make orders in terms of the orders proposed on behalf of the ICL.

Other Orders - Overseas travel

The father proposes that he be permitted to remove the children from Australia for up to six weeks each year and he seeks consequential orders to facilitate that travel. The mother opposes any overseas travel for the children.
For the reasons set out above, I will make orders in the style of the orders sought by the ICL on that issue.
Leave will be granted to the parties to bring the matter back to the Court within 28 days, or such further time on which the parties may agree, in relation to the precise wording of the orders.
The process of explaining the reasons for making orders necessarily involves a critical review of the conduct of the parents. However, it should not go without stating that the father and mother are loving parents and that in my view, and in the most difficult of circumstances they have each done their best to love, support and provide for their children.

I certify that the preceding two hundred and twenty one (221) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 8 September 2016

Associate:

Date: 8 September 2016

[2016] FamCA 762

8 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction