FANDRICH& RUTHERFORD

[2020] FCCA 3105

FEDERAL CIRCUIT COURT OF AUSTRALIA

FANDRICH& RUTHERFORD [2020] FCCA 3105

Catchwords:
FAMILY LAW – Children – family violence – benefit of meaningful relationship – siblings separated.

Legislation:

Family Law Act1975 (Cth), s.60CC

Cases cited:

Goode & Goode [2006] FamCA 1346

Godfrey and Sanders (2007) FamCA 102

Applicant: MS FANDRICH

Respondent: MR RUTHERFORD

File Number: WOC 580 of 2017

Judgment of: Judge Boyle

Hearing dates: 13, 14, 15, 25, 27 November 2019

Date of Last Submission: 27 November 2019

Delivered at: Sydney

Delivered on: 7 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Schonell SC

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Mr Lloyd SC

Solicitors for the Respondent: Neil Jamieson & Associates

Counsel for the Independent Children’s Lawyer: Mr Sperling

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Campbelltown Family Law

ORDERS

1. That all previous parenting orders be discharged.

2. The mother shall have sole parental responsibility for the children X born in 2004 and Y born in 2007.

3. The father shall have sole parental responsibility for the child Z born in 2005.

4. The children X and Y live with the mother if not spending time with the father.

5. The child Z live with the father if not spending time with the mother.

6. The children Y and X spend time with the father as follows:

   (a)During school terms commencing the date of these orders, each alternate week on Sunday from 9:00am until 5:00pm with changeover to occur at the B Cafe, Town C or as agreed in writing between the parties.

   (b)During the NSW gazetted school holiday periods as agreed in writing between the parties, and failing agreement a minimum of 4 consecutive nights each holiday period:

   (i)in even numbered years the first 4 nights of the Term 1, 2 and 3 holidays, and 4 nights commencing 1 January in the December/January holiday period, or as otherwise agreed in writing.

   (ii)In odd numbered years 4 nights from the second Monday of the Term 1, 2 and 3 holidays, and 4 nights commencing 15 January in the December/January holiday period, or as otherwise agreed in writing.

   (c)X’s time with his father pursuant to these orders shall be in accordance with his wishes.

7. The child Z spend time with the mother as follows:

   (a)During school terms commencing the date of these orders, every other week on Sunday from 9:00am until 5:00pm with changeover to occur at the D Cafe, Suburb E or as agreed in writing between the parties AND to avoid any doubt the first such Sunday shall occur the Sunday after the first such time in 6 (a) above.

   (b)During the NSW gazetted school holiday periods as agreed in writing between the parties, and failing agreement a minimum of 4 consecutive nights each holiday period:

   (i)In odd numbered years, being the first 4 nights of the Term 1, 2 and 3 holidays, and 4 nights commencing 1 January in the December/January holiday period.

   (ii)In even numbered years 4 nights from the second Monday of the Term 1, 2 and 3 holidays, and 4 nights commencing 15 January in the December/January holiday period, or as otherwise agreed in writing.

8. The children's time with the mother and father in Orders 6 and 7 above shall be suspended and X, Z and Y shall spend time with their parents on days of special significance as follows:

   (a)On Mother's Day with the mother, from 9:00am until 5.00pm;

   (b)On Father's Day with the father, from 9:00am until 5.00pm;

   (c)With the mother in odd numbered years, from 12:00pm 25 December to 12:00pm 26 December and each year thereafter;

   (d)With the father in even numbered years, from 12:00pm 24 December to 12:00pm 25 December and each year thereafter.

9. Each party shall facilitate telephone communication between the children and the other party in accordance with the children's wishes during all times that the children are in that party’s care.

10. Each party shall advise the other within 7 days of updated contact details that the other party or the children may be contacted on.

11. Each party shall advise the other party promptly in the event that any of the children suffers from any significant illness or injury that requires the treatment from a medical specialist or hospital.

12. Each party shall exchange information relevant to the care, welfare and development of the children via SMS or email, and in case of emergency shall communicate with another by way of telephone.

13. Each party and members of their family shall be entitled to attend all events involving any of the children including:

    (a)Sporting fixtures; and

    (b)Extra-curricular activities that allow for parental and family attendance; and

    (c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent helpers, parent and teacher interviews, canteen duties and social functions.

14. Each party is restrained by injunction from:

    (a)Denigrating the other parent in the presence or hearing of the children and shall immediately remove the children from the presence of any other person who does so;

    (b)Denigrating any other person with whom either parent has a relationship with, including members of the other parent’s family, and shall immediately remove the children from the presence of any other person who does so.

15. The father shall use his best endeavours to ensure that no other person denigrates the mother or members of the mother's family to either of the children or in the presence of the children.

16. The mother shall use her best endeavours to ensure that no other person denigrates the father or members of the father's family to either of the children or in the presence of the children.

17. Each party is restrained by injunction from physically chastising or permitting any third person to physically chastise any of the children.

18. A copy of these Orders is deemed to be sufficient authority for each party to receive directly from the children's school a copy of school reports for either of the children, school photos (at the cost of the party requesting the photos), school newsletters and other documents normally provided to parents.

19. A copy of these Orders is deemed to be sufficient authority for each party to obtain information from any treating medical practitioner, hospital and/or health care professional concerning medical treatment provided to and/or the health of the children.

20. The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders is as follows;

    (a)the mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General or

    (b)the mother and the father shall participate in family dispute resolution with a person authorised under section 10.G of the Family Law Act.

21. That the mother, Ms Fandrich, be permitted to renew or apply for an Australian Passport for the children X born in 2004 and Y born in 2007 without first obtaining the written consent of the father provided she gives not less than 28 days prior written notice of her intention to do so to the father.

22. That X and Y's Passports be held by the mother for safe keeping subject to Order 25(g) herein.

23. That the father, Mr Rutherford, be permitted to renew or apply for an Australian Passport for the child Z born in 2005 without first obtaining the written consent of the mother provided he gives not less than 28 days prior written notice of his intention to do so to the mother.

24. That Z's Passport be held by the father for safe keeping subject to Order 25 (g) herein.

25. Pursuant to section 65Y of the Family Law Act 1975, that the mother and father be at liberty to remove the children X born in 2004, Z born in 2005 and/or Y born in 2007 from the Commonwealth of Australia for the purposes of overseas travel PROVIDED that the following conditions are met:-

    (a)Such time occurs during the time that the children is in their respective care pursuant to these Orders, or such other period as the parents may agree in writing;

    (b)That the travelling parent gives written notice of the intention to travel overseas to the other parent not less than 14 days prior to the date of the intended travel including but not limited the countries and regions where the children will be travelling and the dates of the proposed travel;

    (c)In event that the Mother requires a copy of the child Z's passport to confirm such travel bookings then the Father shall provide the Mother with a copy of Z's passport within seven (7) days of such request being made by the Mother;

    (d)In event that the Father requires a copy of X or Y's passport to confirm such travel bookings then the Mother shall provide the Father with a copy of X or Y's passport within seven (7) days of such request being made by the Father;

    (e)That no less than seven (7) days prior to the scheduled date of departure, the travelling parent shall provide to the other parent a copy of the travel itinerary detailing the return flight details, accommodation details, shipping tickets, insurance coverage, details of the countries and cities where the children will be travelling;

    (f)Upon the travelling parent's compliance with Order 25 (a, b and e) herein, the other parent shall release the travelling children's original Passports to the travelling parent;

    (g)That the travelling parent shall return the children's original Passports to other parent at the next changeover of the children within 14 days of the children returning to the Commonwealth of Australia in accordance with orders 22 and 24.

IT IS NOTED that publication of this judgment under the pseudonym Fandrich & Rutherford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 580 of 2017

MS FANDRICH

Applicant

And

MR RUTHERFORD

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings with respect to the children X aged 16 years, Z aged 15 years and Y aged 13 years.  At the time of the hearing X and Y were living with their mother, and Z with her father.

2. The mother seeks orders: for sole parental responsibility of X and Y; that they live with her; that X spends time with the father in accordance with his wishes, and Y the first Sunday of each month from 9am to 5pm, and otherwise in accordance with her wishes.  The mother seeks that the father have sole parental responsibility for Z; that she lives with him; that she spends time with the mother each third Sunday from 9am to 5pm, and otherwise in accordance with her wishes. 

3. The mother broadly agrees with the detail of the parental responsibility orders sought by the Independent Children’s Lawyer (“ICL”). The ICL seeks orders for the children’s living and time arrangements in very similar terms to the mother. 

4. The father initially sought orders for the three children to reside with him, and that all three spend alternate weekends from after school Friday to before school Monday with the mother.  Ultimately he sought orders for Z and Y to live with him, and X to remain with the mother. He also seeks orders for the children to spend holiday time equally with each of their parents. The father seeks a restraint on the mother leaving Z or Y in the sole care of her husband, Mr F, at any time. He seeks no order with respect to parental responsibility.

Background

1. The parties were married in 1988.  They separated in November 2013, at which time they were living in the Region G.  Following separation there was a shared care regime between the parties.

2. On 26 February 2014 the parties signed consent orders to resolve their parenting dispute, and orders were made by the Federal Circuit Court in Wollongong. The orders required payments to be made by the father to the mother on a monthly basis.  The father has not has not complied with that order.  The parties attended mediation, and it was agreed the father would pay for X’s private school fees to meet the outstanding $92,000. That has not occurred.

3. The parties reached a parenting agreement at mediation where they would share the care of the children in 2015, and the mother would move to Sydney in 2016 with the girls. X would remain with the father and attend H School for high school.

4. The mother moved to Suburb E to reside with Mr F in early 2015.  The parties agreed that the children would continue to attend their schools in the Region G, live with the father, and spend alternate weekends with the mother. 

5. The mother married her partner Mr F in 2015.  He has two children Mr J aged 21, and K aged 17.  Mr J has spent most of the time living as part of the household with the mother and Mr F, and K has lived with her mother, and spent time in the household with the Mr F children.

6. In January 2016 the father moved to the Region L.  The parties reached an agreement so that X remained living with the father, and attended M School, Town N.  Z and Y commenced residing with their mother, and attending O School.  The children spent the weekends together in alternate households.  The children shared the school holidays in block periods with their parents.

7. In 2016 the father commenced a relationship with Ms P.  She has twins Q and R, aged 11 years.  They live with her, and spend regular time by agreement with their father.  The father met Ms P through the children’s school in the Region G. Ms P moved in with the father in March 2017.  Shortly prior to the hearing she moved from the Region L to the Region G with Q and R, to be near her mother.  Ms P’s evidence is that her mother is getting older, and needs her assistance.  Her relationship with the father is ongoing.

8. On 24 March 2017 X complained to the mother that his father caused him physical injuries whilst disciplining him.  The mother took X to the police and criminal proceedings commenced, as detailed below. The matter was reported to the Department of Family and Community Services. X did not see his father until 25 March 2018.  Z did not see her father until 23 January 2018. Y has had limited contact with her father at report interviews and meetings.

9. Z left her mother’s home to go to her father, without her mother’s knowledge, in January 2018. She has lived with the father since, and had limited time with her father and siblings.

Documents Relied on

1. The mother and father filed case outline documents identifying the documents relied upon.

2. All parties have tendered documents during the course of the hearing.  I have had regard to that material.

Issues

1. The issues requiring determination are:

   a)Are Z and Y at risk in their mother’s household, and do they require protection from the mother’s partner by injunction.

   b)Do Y’s best interests require a change of residence to live with her father.

   c)What orders will best promote the relationship between the siblings, taking into account their respective ages and maturity.

   d)How should the desirability of an end to litigation be weighed against specific time orders for teenagers.

   e)Is it reasonably practical for these parents to make agreed decisions about their children’s education and health issues.

   f)Is it appropriate for the Court to make orders for equal shared parental responsibility for decision-making about X’s health when he is 16 years old.

Credit

1. The father was at times evasive and non-responsive in his evidence. I did not accept his evidence in a number of specific areas as referred to in these reasons.  The father at times was unable to separate his own feelings on a matter, when questions were directed to him to consider the events from his children’s perspective. This is not an issue of credit in the usual sense, but it was a matter that made his evidence difficult to follow and at times unreliable. Dr S referred to similar issues in interviewing the father for the family report.[1]

   [1] Family Report, dated 23 March 2018, paragraphs 49, 56.

2. The father asserted that Z had self-harmed before coming into his care in January 2018. He said he saw a scar on her arm. He did not refer to this in the affidavit he filed on 25 January 2018.  Clearly it would have been significant evidence in support of his retaining Z’s care. When challenged he said he had instructed his solicitor about this.  No document in support of this claim was produced following a call.  He could not recall which arm was scarred. The police who saw Z over this period did not observe any injury on her.  I do not accept his evidence on this topic.

3. The father agreed in cross-examination that he had failed to comply with orders to pay the mother $92,000 as part of the property proceedings.  He failed to produce documents as sought in a notice to produce, including tax returns and bank statements. He was asked at various points during his cross-examination to bring bank statements to court.  He offered various excuses for failing to produce the material, such as that he could not get the documents from the bank over the lunch adjournment because he had no identification on him.  He agreed he would bring printouts of statements to court.  This did not occur. His evidence in this area was unsatisfactory.

4. The father sought to influence a report provided about Z by Dr T.  Dr T set out in correspondence “her dad wanted his lawyers to go over everything that I wrote with a legal fine toothcomb, to make sure it could not be used against them, and would produce the desired legal effect.”[2] 

   [2] Exhibit M7, Letter from Dr T to Town C Healthcare.

5. The father asserted that he told the mother about concerns raised by Z about her partner trying to kiss her, and making her feel uncomfortable. The father admitted when cross-examined that he never raised with the mother Z’s concerns about her partner’s conduct, consistent with the mother’s evidence.

6. The mother made efforts to be frank in her evidence.  I have referred to issues with her evidence where that arises in the course of this judgment.

7. Mr F did his best to be truthful in his account of matters.  I generally accept his evidence. 

8. Ms P did her best to give a straightforward account of matters.  Difficulties with her evidence occurred at times, as she relied on matters told to her by the father.  For example, she described it as “preposterous” that the father would have hit Y.  The father admitted to the Court that he has done so.  

Y’s Counselling

1. Ms U is a psychologist who gave evidence in these proceedings.  She provided counselling to Y on three occasions in June 2017.  She then saw her on 15 December 2018, then in January 2019, and a number of sessions took place between 9 August 2019 and 19 October 2019.

2. Ms U regarded Y as being ambivalent about seeing her father. She attempted to assist Y’s feelings of anxiety around that.  Y spoke to her of her distress around the treatment of X by her father.  In Ms U’s assessment, Y was feeling guilty and ashamed about this.  This related in part to Y being asked by her father to get the belt for him to use it to hit X.  When challenged about the veracity of that by counsel for the father, Ms U was clear that Y told her about that. 

3. After the first period of seeing Y in 2017 she regarded Y’s anxiety as decreasing.  Y returned to see her in 2019 when her anxiety had increased. Ms U was concerned Y had some features of post-traumatic stress disorder.  Ms U regarded herself as treating Y’s perception of matters; whether the father agreed with Y’s version of events was not relevant to that task.

4. She referred to Y as being interested in having a relationship with her father on the one hand, and on the other being afraid that there might be aggressive behaviour by him again.  She wanted to see her father on her own terms, so far as Ms U understood her.  Y was clear that she misses her sister, and enjoys the time they spend together.

X’s health

1. In 2011 X was diagnosed with Asperger’s Syndrome.  After diagnosis he attended speech therapy and occupational therapy.  The Australian Autism Spectrum Association (“ASPECT”) provided support for X. He was initially prescribed risperidone by Dr V. 

2. In late 2016 the father sought assistance in managing X’s behaviour.  He was referred to the Infant Child Adolescent Mental Health Service (“ICAMHS”) for this purpose.  During the course of that year he was suspended three times from M School. He ceased taking medication in early 2017, when living with his father.  In mid-2017 the mother arranged for X to be assessed, and he was again prescribed medication.

3. On 8 January 2019 the mother arranged for X to be re-assessed by a paediatrician, Dr W.  Dr W’s opinion is that X no longer fulfils the diagnosis of autism spectrum disorder. He is no longer prescribed medication.

Physical discipline

1. There is no issue that the father physically disciplined X on occasions with a rolled up belt.  His evidence is this was for serious behavioural issues such as swearing at his father or teacher, or hitting his siblings.  He has physically disciplined Y by hitting her on her bottom with his hand, on top of her clothes. Z has not been physically disciplined by her father. The mother did not use physical discipline with any of the children.

2. The mother’s evidence is that in October 2014 she observed bruising on X’s legs.  He told her “dad hit me with a belt”, and asked her to talk to his father about it to stop it.[3] She says she told the father that he should not further physically discipline X. He promised it would not happen again.  In November 2014 at mediation, the parties agreed X would continue to reside with the father.

   [3] Mother’s affidavit filed 11 October 2019, paragraph 30.

3. The father’s use of physical discipline did not stop. In November 2016 Y texted her mother: “Dad hit me … now he is hitting X … he is crying.”[4] X made a complaint to the mother of his father pinning him against the wall in February 2017.  They discussed his staying with his father, and he told her he wanted to stay at his school, rather than move to live with her. In March 2017 Y complained to her mother that she had been hit by her father, and had a bruise on her leg. 

   [4] Ibid, paragraph 33.

4. The father’s evidence is physical discipline of X occurred on about 4 occasions during 2014 and 2015, and a further 4 to 6 occasions in 2016. He recalled specifically doing so when he saw X hitting one of his sisters, and making them cry.[5] The father says he only once disciplined X when Y was present in March 2017, and never asked her to fetch the belt.[6]  The children have suggested to the mother, and others, that physical discipline occurred with a greater degree of frequency than suggested by the father. 

   [5] Father's affidavit, filed  paragraph 77

   [6] Ibid, paragraph 80.

5. In late 2016 the father says that he sought assistance in managing X’s behaviour through ICAMHS.  On the father’s evidence he physically disciplined X more that year than any other. He did not raise with that service the appropriateness of physical discipline of X, nor ask advice about other options. 

6. On 22 March 2017 the father asserts that X had not completed his chores, and told his father to “go fuck yourself”.  The father physically disciplined X by smacking him on the buttocks with a doubled over belt.  When X again said “fuck you” the father told him that every time he swore, he would be smacked.  He smacked him again.  The father says that X went to his bed and pulled his doona around him.  As he stood he tripped, fell backwards and hit his back on the bedside table.  X suffered a panic attack.  He could not breathe, and was frothing at the mouth.  The father sat on the bed with him, and encouraged him to breathe deeply, and calm down.  X was left with a bruise and graze on his lower back. His father said he should tell anyone who asked that he had fallen over.

7. X was in pain the following day.   The mother’s evidence is he said that his father had hit him, and pushed him on to the desk.  He asked his mother to tell his father to stop hitting him. The mother took X to the police.  This incident was the catalyst for X moving to his mother’s care, and Y and Z ceasing time with the father. 

8. It is troubling that the father regarded physical discipline with a belt as an appropriate way to discipline X.  2016 was a particularly difficult year for X.  He was suspended on three occasions from school, and at risk of expulsion.  It must have been obvious to the father that his method of discipline was not effective any longer, if it ever was. There is no indication he sought any advice about methods of discipline for the children until the lead up to the criminal proceedings.  At that time he consulted with Ms AA on one occasion.  She suggested other methods of discipline that may be more appropriate and effective.  There is no evidence he has physically disciplined any child since then.

9. Y has been in the home when X was physically disciplined by his father.  The father’s evidence is that occurred once in March 2017.  Y’s account supports it having occurred on more than one occasion, and that she has been requested by her father to get the belt.  The father denies this. I accept that she has been very upset by her father’s discipline of her brother.  This includes hearing him scream.  Given Y’s upset at this I accept on the balance of probabilities it occurred more than once.

10. One of the issues in the father using physical discipline for X, and occasionally Y, is that it created a division between the children.  All the children are aware that Z has never been smacked or hit by their father, and they regard that as part of her being favoured by him.

Family Report and Report of Dr BB

1. Dr S was concerned about divisions in the relationships between the children, and their parents. She recommended family therapy as being a way to deal with those matters.

2. Dr S observed “an affectionate reunion” between Z and Y.  All three children were enthusiastic and boisterous with each other.  The mother and Z had a mutually affectionate reunion, if a little reserved.  Z was not observed to be constrained or avoidant of Ms Fandrich.

3. X and Z were friendly with the father when seen with him.  Y did not greet or approach him. The father followed Dr S’s direction not to approach her. The father managed this well.

4. Dr S was most concerned about the children being able to spend time with each other.  She suggested that intense problems, such as exist in this family, require intense remedies. Recommendation was made for Dr BB’s RIFT intervention.

5. The intensive family therapy engaged in by Dr BB was to “address the conflicts and estrangements between children and their parents and to assist in maximising the children and adults well being and satisfaction.” 

6. Y had not seen the father for about 2 years prior to the assessment.  Z has seen the mother at times in accordance with orders, but visits have taken place out of the home. 

7. Dr BB’s approach focuses those involved to look forward, rather than looking back to address issues from the past. There were a number of factual inaccuracies in the report of Dr BB.  Examples of this include the date the father hit X resulting in the AVO and criminal proceedings was reported as 2015, 2 years before it occurred. Z was reported as going to live with her father in January 2016, not 2018. There has never been an allegation made of “inappropriate touching” made against Mr F, nor that he actually kissed Z or any friend of Y’s on the lips, although those are referred to by Dr BB. The mother did not bring a contravention application which was unsuccessful, in the context of allegations against Mr F of “inappropriate touching”. Dr BB opined that she did not need the detail of allegations made.  Whilst she may take that view, the accuracy of factual matters can have an impact on how conclusions and recommendations are accepted by those involved. The inaccuracies about significant factual matters has unsurprisingly caused concerns for the mother about Dr BB’s approach and conclusions.

8. Dr BB observed Y was “happy and excited” to see her father.  She was assertive with him over various matters, including that it was her choice not to see him.  She rejected being influenced by her mother, as her father asserted. She was observed to become increasingly relaxed with him over the course of the assessment. 

9. The observations of Dr BB were similar to Dr S, in relation to the delight of Y and Z in spending time with each other.[7] X was reported to be unreservedly pleased to see his father, and wanted to be able to do so when he wished.

   [7] Report of Dr BB dated 22 November 2018, page 6.

10. Dr BB was critical of the mother in not maintaining a bedroom for Z in her home.  Y has moved into Z’s old bedroom. When cross-examined Dr BB agreed there may have been a bedroom.  The mother was clear that there is a bedroom for Z in her home.  Correspondence sent by the mother to Dr BB suggested there was a room for her, but that the current office/ spare room was more appropriate and could be decorated as Z wishes. When cross-examined Dr BB accepted that she may have seen a room which was Z’s. 

11. The primary concern of Dr BB is that the mother tells X and Y that their views about spending time with the father will be supported, but does nothing to support their desire for time with the father.  The children are supported by their mother only when expressing negative views about the father. 

12. Dr BB did not consider the father’s use of physical disciple in the context of the mother’s concerns about time.  Part of the mother’s issue stems from the father assuring her he would stop, and then persisting with, physical discipline.  These are the sorts of matters that cause erosions of trust, and serious concerns about the other parent’s capacity.  A style of family intervention that looks forward, drawing a line on past problems without addressing or acknowledging the issues, is in my view problematic for this family.

13. Dr BB contrasted her experience of the father and his partner’s co-operative approach, and ability to take advice, with the mother and Mr F.  Her description is at odds with Dr S, and my observations of the parents and their partners during the course of the hearing.

The Law

1. The best interests of the children are paramount in parenting proceedings. The Family Law Act 1975 (Cth) (“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests.[8]

Primary considerations

Section 60CC(2) The primary considerations are:

[8] Goode & Goode [2006] FamCA 1346.

(a) Benefit to the children of having a meaningful relationship with both of their parents

1. It is clear that X and Y have the benefit of a meaningful relationship with their mother, and Z with her father.  The family report writer identified Z as aligned with her father, and Y with her mother.  This impedes the girls’ capacity to benefit from a meaningful relationship with each of their parents.

2. The children are all of an age, and have the capacity, to communicate independently with their parents by text, telephone and video chat. That is not enough for the maintenance of meaningful relationships.  That requires for these children positive encouragement, and consent from the parent with whom they reside to have a relationship with the other parent.

3. There are presently fractures in the relationships between the children and the parent with whom they do not live.  Neither of the parents has done all they could have to maintain a relationship with the children not living with them.  When all three children were with the mother she did not make arrangements for them to maintain a relationship with their father.  All the children, and Z in particular, needed to spend time with him.

4. The children are now old enough that they can remember the other parent, think about them, and communicate with them when they wish.  Infrequent time is unlikely to lead to an optimal relationship, but as stated by Kay J sitting as the Full Court:

   what the legislation aspires to promote is a meaningful relationship, not an optimal relationship. [9]

   [9] Godfrey and Sanders (2007) FamCA 102.

5. I accept that the maintenance of a meaningful relationship between Y and her father requires orders to ensure that it occurs.   X is in a different situation given his age.  I accept that he can maintain that relationship without orders, particularly if Y is travelling back and forth to the Region L.

6. Z needs time with her mother to maintain a meaningful relationship.  It would be beneficial for Z if that incorporates ordinary family time in her mother’s house, rather than them going on outings together. 

(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Administering physical discipline risks moving into abuse or family violence, particularly if a parent is angry.  This risk increases if an object like a belt is used, when the force may be greater than could be administered with an open hand. 

2. I accept that the father’s use of physical discipline of X with a belt moved beyond reasonable discipline to physical abuse.  It was upsetting to X, and to others around. It should have been obvious to the father that it was ineffective as a method of discipline, particularly as X got older. 

3. It is accepted that family violence impacts not only those directly involved, but other members of the household. Family violence covers a broad range of behaviour which can be harmful.[10]

   [10] Family Law Act 1975, section 4AB.

4. Children can be seriously distressed from: hearing the cries of a sibling; feeling frightened for their sibling; feeling frightened for themselves; feeling powerless to help or intervene.  I accept that Y has been adversely affected by being present in the home when her father has hit X in the past.

5. The father gave evidence that he will no longer use physical discipline.  It is troubling he took no steps to seek advice or strategies for appropriate discipline until after he was criminally charged, when one session with a counsellor was apparently all it took for him to learn other strategies.  It became clear during cross-examination that the father ceased physical discipline because “I wanted to protect myself from further allegations”. It is difficult to accept the sincerity of the father’s evidence that he understands the ramifications of his conduct in those circumstances. 

6. X is not the child he was when last hit by his father.  He is now a teenager: tall and physically capable.  He is more emotionally mature, and self-disciplined.  The mother is not concerned that the father would attempt to physically discipline him now.  I accept that it is also unlikely he would now physically discipline Y.

7. Z has made allegations to her father and his partner that the mother’s partner has attempted to kiss her on the lips, and intruded on her in the bathroom and bedroom when the door was closed.  She has described him blocking her passage on the stairs and trying to kiss her, which she escaped by ducking under his arm.  The father’s evidence is that he told the mother of Z’s concerns, and she ignored it.  He referred to CC, Z’s friend, making complaint about Mr F’s conduct.

8. The father filed an affidavit on 25 January 2018 which made no reference to any of those allegations of Z.  The affidavit was filed to support Z remaining in his care.  Had Z made any such statements to the father at that time, it would have featured in the father’s affidavit.  I find that the father’s evidence in this area was unreliable.

9. At the time of the family report interviews the father understood Z was unhappy because “Mr F yells a lot at Ms Fandrich and the kids”, and his “sexualised comments about Ms Fandrich … He did not think Z had been in danger, only discomfort”.[11]

   [11] Family Report dated 23 March 2018, paragraph 42.

10. Z’s complaint to Dr S was that Mr F “yells at mum until she cries”.[12] She was not concerned about risk to herself, but “discomfort”.  She disliked him kissing Y on the lips and patting her bottom.

    [12] Family Report, dated 23 March 2018, paragraph 68.

11. Ms DD gave evidence that her daughter CC and Z were close friends in years 5 and 6.  CC’s father passed away in 2019.  He was violent to her sister EE.  CC had a difficult relationship with her father, and neither she nor her sister spent time with him.  CC had an episode of self harming in year 6.

12. Z spoke to Ms DD, and in her hearing, about missing her father, and being unhappy living with her step father.  She was at times resentful of her mother.  On occasions Z used CC’s telephone to contact her father.  Ms DD heard her daughter EE say to Z that she could make up her own mind about where she wanted to live, and that she had left her father against court orders.

13. Sometime in 2017 CC told her mother in Z’s presence “when we went upstairs so Z could get changed, Mr F blocked our way up the stairs and he tried to kiss me, but I ducked under his arm.  I saw then he tried to kiss Z on the lips and Z ducked under his arm too.” CC told her at other times that Z told her about comments made by Mr F referring to her mother sexually.  CC referred to Mr F as “creepy”.  Ms DD did not raise this issue with the mother.  It is not clear when this was said to occur with respect to Z living with her father.

14. Had these been issues of serious concern for Ms DD I do not accept she would have done nothing to protect her daughter, nor Z. In her evidence she agreed CC was not always truthful, and had emotional and psychological difficulties arising from matters concerning her father.  She did not act on what CC told her to protect CC or Z.  I accept that Ms DD was doing her best to be clear in her evidence, however I do not accept she was concerned about the matters told to her by CC and Z given her lack of action.

15. The allegations made by Z were investigated by JIRT, a joint investigation taskforce comprising police officers and child protection workers.  The matter was not pursued with respect to Mr F.

16. Dr BB observed that Mr F did not enjoy being left out of decision making, and was not content to play a supportive role.   I accept that she was highly critical of Mr F, when it was open to conclude that he was being somewhat protective of his partner dealing with her ex-husband when that relationship was fraught, and Ms Fandrich was distressed at times during the interview process. In particular she was very critical of Mr F giving Z dog treats, and in doing so closing his hand around hers.  Relationships are clearly strained between Z and Mr F.  I do not regard what appears to have been an awkward interchange between them as being indicative of anything sinister.

17. Y has made no complaint about Mr F’s behaviour towards her, her sister or mother.  She has seen the school counsellor, Ms U, Dr S, and Dr BB, and had numerous opportunities to share any concerns she may have had. 

18. The disparity in the sisters’ views of Mr F is stark.  Z’s views have been supported, and the mother argues developed, by the father.  There is no issue that Z missed her father, wanted to spend time with him and resented being with her mother in the period leading up to her leaving her mother in 2018.  No injunctive orders with respect to Mr F were sought by the father until shortly prior to the hearing.  I do not find that either Z or Y is at risk from Mr F.  It follows that I do not propose making the order restraining Mr F from being present with the children without the mother.

Additional considerations

Section 60CC(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.

1. X is a 16 year old, apparently as mature as his age suggests.  He has clearly expressed his view that he wishes to live with his mother.  There could be no doubt about that from the evidence of both Dr S, and Dr BB.

1. X has expressed a desire to spend time with his father.  That has occurred on a limited number of occasions during 2018 and 2019.  It has happened since the report of Dr BB.  X’s views should be supported by his mother to assist him.

2. Z is 14 years old.  The evidence suggests she is as mature as her chronological age.  She had raised with her mother her desire to attend FF School and live with her father from the end of 2016.  She did not see her father from March 2017, until she left her mother’s home to in January 2018.  The father was not frank about the circumstances of that move.  His evidence is that he was unaware that Z was coming to live with him until she called him from the train, and advised she was on her way to City GG.  This is completely inconsistent with the records produced from Telstra. 

3. I accept that Z would have been missing her father, having not seen him for 10 months.  The father asserted in his evidence that he made every effort to see Z.  However no proceedings were commenced by him to do so.  The father had a role in her moving to live with him. I accept that this was done deliberately without the mother’s knowledge, as she would not have consented.  He enrolled her in FF School, and misrepresented the position with Z’s care to the school. 

4. When orders were made requiring Z’s return the father deliberately acted to thwart those orders.  This is what led to the events over the Australia Day long weekend where Z was seen by the police, a general practitioner, and Dr T.  Whilst the father denied any connection with Dr T, Z described him to the school counsellor as a family friend.  I accept that he was known to the father, at least through the paternal grandmother.  He was able to obtain an appointment on no notice for Z over the Australia Day holiday weekend.

5. Whilst the father was influential in Z’s decision to live with him, I accept that she has settled there.  She is firm in her desire to continue living with him.  The mother does not seek orders that Z reside with her.

6. Y is described similarly by Dr S, Dr BB and her parents as a confident, mature early teen.  She is at least as mature as her years. 

7. Y has clearly expressed her view that she wants to live with her mother. Y has expressed different views about spending time with her father from time to time.  The observations of Dr BB make it clear that Y is able to enjoy time with her father.  She expressed the desire to spend overnight time with him to Dr BB. 

8. Y has spent time with the father subsequent to Dr BB’s involvement on a number of occasions during the day, and for a meal.  She stayed overnight on Z’s birthday.  This may have continued more freely had the father respected her view to not have photographs of her posted on his Instagram account.  It is unfortunate her views were not respected on that occasion.  Nonetheless, I accept that Y should spend time with her father. 

Section 60CC(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);

And

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The siblings have had significant disruptions to their relationships with each other. The parents initiated a situation where X lived with his father in the Region G and then the Region L, while the girls lived with their mother in Sydney. Z has lived with her father since January 2018.  The three children have spent limited time together since.

2. Z had apparently formed the view that she could determine where she lived from the age of 12.  She referred to a countdown before her 12th birthday, after which she could live with the father. Her moving to live with him is framed by the father as simply an expression of her wishes, with no input from him.  It is clear from the telephone calls that passed between them, that the picture he sought to paint was incorrect.  The father’s encouragement of Z to live with him was done without him considering the impact that would have on her relationship with her siblings and mother.

3. The Facebook post[13] of the father in October 2017 lacked insight:

   I love each of my three children deeply and unconditionally, however, I am extremely proud of Z who has such great strength of character and indefatigable faith in God, at such a relatively young age.  Despite enormous parental pressure she refused to participate in a false allegation against me (her father) and as a result, to her personal detriment, she has received unfair punishment and has frequently had her mobile phone confiscated in an attempt to prevent her from communicating with me - but never once did she waiver from the truth! …  I am also proud of X who was put in the unforgivable situation of being coerced by one parent and their partner to make a full statement against the other parent (me) to police.  Under extreme  pressure to perpetuate the fabrication in court, a further unforgivable action by a reckless parent was made to put a child on the witness stand in open court to make a full statement against the other parent.

   [13] Exhibit M5.

4. He went on to refer to X being ripped out of a phenomenal school, and placed into a mediocre school in the region.  He gave no thought as to how X might perceive that. 

5. The post was open to any “friend” of his on Facebook.  He knew Z had access to the post, as she is his friend on Facebook.  Z was living with the mother and siblings at the time.  When cross-examined about the appropriateness of Z reading his post, he said he did not consider her when he wrote it.  He gave evidence that he did not think that Z would show it to X and Y.  It is impossible to imagine she would not.  These are siblings with a close relationship, living in the same house. The father’s concern was to vindicate himself through the post. He did so without thought of how that may impact on any of the children, including on their relationship with each other.

6. Notwithstanding the Facebook post, the father’s evidence is that he has never undermined the mother’s parenting.  He agreed that he holds a very poor view of the mother.  Dr S noted the father’s persistent criticism of the mother.  During the course of interviews with Dr S he said she “indoctrinated” and “brainwashed” the children.  He referred to the mother and her partner as being “brutally aggressive towards him”.

7. The father agreed he had discussed the criminal proceedings with Z, including that the mother made X complain to the Police.  The father enrolled Z into FF School in February 2017.  There were no orders that she reside with him at that time.  It was submitted by counsel for the mother that this was part of an orchestrated move by the father to secure Z in his care. 

8. Unfortunately all three children have perceived Z as her father’s favourite over a number of years.  Y expressed this clearly to her counsellor:

   at the top is Z who never gets into trouble or only very occasionally, and then part way down is me, and I’m treated badly and things like I will get in trouble for yelling at Z or I will get hit if I haven’t cleaned my room, and then at the very bottom, a long way past the bottom is X and he gets into trouble for everything and dad always needs to discipline him.[14]

   [14] Exhibit ICL 1 - records produced by HH Clinic dated 1 July 2017.

9. The father has not done anything to change the perception of different treatment for the children, or that Z is the favourite. When cross-examined he denied there were any issues between the three siblings.

10. Were Y to live with the father it would have the advantage of re-uniting her with Z.  However, it would separate her from living with X.  It would also be contrary to her wishes, and ignore the rift in her relationship with her father.  I do not accept that such an order would be in her best interests.

11. The father suggested that the girls have complained to him that X is favoured in the mother’s home.  This is not borne out by the children’s comments to counsellors, Dr S and Dr BB.

12. Z has not spent time at the mother’s home.  Rather when they have spent time together they have gone on an outing. This is consistent with the mother’s comment to Dr S that Z would be “a spy in the camp” reporting back to the father.[15] The mother has not sufficiently supported Z having a relationship with her, and the siblings together. 

    [15] Family Report dated 23 March 2018, paragraph 29.

13. The mother is aware of the issues between the siblings, and that the problems are of long standing.  She is more in tune with the children’s views than the father.

14. Although orders were made for the children to spend time together, neither party made that happen.  Instead, each blamed the other for it not occurring.  The father refused at times to provide Z to spend time with the mother when the other children were not present at changeovers, as that was his opportunity to see them.

15. Dr S gave evidence of the importance for the siblings to have enough time together that they can argue, and make up.  As she put it, time for “rift and repair”.  In her view that requires them to spend time together at a minimum each fortnight.

16. I accept that orders are required to ensure that Y and Z have the benefit of regular time with each other.  Whilst I accept that it would assist the children if X is also present, I also accept that he is of an age where he is becoming more independent.  Although orders should encourage his attendance I do not propose mandating that it occur.

Section 60CC(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 long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

1. Each of the parents has created barriers to the other parent participating in the lives of the children.  This has impacted on the extent to which each of the parent has participated in decision making about the children not living with them.  Neither of the parents has facilitated time with the children residing with the other parent.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child

1. The mother’s evidence is that as at 8 February 2018, the father was $2,360.11 in child support arrears. On 18 May 2018 the father lodged a change of assessment stating that he had a nil income, which was challenged by the mother. The Child Support Agency assessed Mr Rutherford’s adjusted taxable income for the period 1 July 2018 to 31 December 2019 at $60,000.

2. The effect of the decision was that the amount of child support payable by the mother was reduced. The mother is assessed to pay the father $452.17 per month in relation to Z.[16]

   [16] Mother’s affidavit filed 11 October 2019, paragraphs 199-200.

3. The mother states that she is the sole provider of financial support for X and Y, and the father has failed to contribute to school fees or educational expenses for those children.[17]

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

[17] Mother’s affidavit filed 11 October 2019, paragraphs, 197-198.

(i) either of his parents; or

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

1. I do not accept that any of the children would comply with orders to live with a parent not of their choosing.  This is unsurprising given their ages. The orders will see all children remain living where they currently are. 

Section 60CC(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.

1. The children need some practical level of assistance to travel between their parent’s homes on a regular basis.  At a minimum that would require train fares, and collection from the station. I accept that as they are all teenagers there are likely to be clashes between their activities and time arrangements that are ordered from time to time. 

2. X is of an age where he should be able to determine the time he spends with his father.  He is committed to his hobbies, which involves some weekend activities.  Both parents support that commitment.  He has school and academic commitments, which will become more pressing as he moves towards the last years of school.  He has had a part time job at Employer JJ, which is important to him.  I accept that it is not practical to have orders which compel X to attend time.

3. Z and Y should spend time with each other, and the other parent, regularly.  The orders promoted by the ICL and the mother are for daytimes to allow for the girls school and other commitments.  Time between them is important to the girls, and should occur.

Section 60CC(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.

1. The father’s past use of physical discipline on X and Y, as detailed elsewhere in this judgment, causes me concerns about his parental capacity for a number of reasons.  There was a high risk of injury, which in fact happened to X.  It caused significant distress, including to the other children present at the time.   There was a disparity in the way the children were treated, as articulated so clearly by Y to the school counsellor.  This has the effect of causing divisions between the children.  Additionally it was utilised when apparently ineffective.

2. The father suggested that one session with a counsellor was sufficient for him to re-consider how he disciplines the children.  His evidence on this was glib at best.

3. The mother was able to acknowledge shortcomings in her parenting. She was described by the report writer when discussing Z as “coherent, child focused and future orientated.”[18] Whilst she was cautious with Dr BB, her concerns were in my view understandable. I accept that her feelings about not protecting X from his father in the past have a long term impact on her.  It confirmed her fears of him, and his lack of transparency with her over the children.  The mother needs to accept that the children are now mature, and more able to manage independently of both the father and herself.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.

[18] Family Report dated 23 March 2018, paragraph 56.

1. These three children have a mixed cultural heritage, which includes Country KK through their father.  Z has travelled to Country LL with her paternal grandmother to meet extended family, and assist on an aid project.

2. Their paternal grandmother is significant to their connection with their Country KK culture.  In order for that to develop they need time with their father, and extended paternal family.

3. Their connection to their mother’s side of the family will maintain their connections to culture and traditions within that part of their family.  There was no evidence about any particulars culture or traditions on that side of the family.

Section 60CC(3)(j) any family violence involving the children or a member of the child’s family.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

1. A final apprehended family violence was made on 19 April 2017 to protect X, Z and Y from their father for one year.  The father consented to the order.  The orders were in the usual terms with additional orders that he not approach the children’s school, or any other place they may go to study, or any childcare, or the mother’s home.

2. The father was charged with assault occasioning actual bodily harm against X.  There was a hearing before the local court in Town MM on 18 August and 27 October 2017 where the father was not convicted.  X was cross-examined during the assault proceedings.[19]

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

[19] Exhibit M3 - Transcript of cross-examination of X dated 27 October 2017.

1. The mother has been resistant to X spending time with the father.  In the context of the father’s physical discipline of X, and subsequent involvement of the police and criminal proceedings, this is not surprising.  The mother acknowledged during her evidence that some of her concerns for X have fallen away. X is not the little boy he was when last physically disciplined by his father.  He is now over 6 feet tall, in her assessment.  X manages his own behaviour better than he did previously.  There is little risk now of physical discipline from his father. 

2. There should be time occurring between X and his father.  This will require the mother’s assistance and encouragement.  X has finished year 11.  He is engaged with his hobbies, which activity is supported by both his parents.  He is keen to join the military after school and he is involved with his hobby.  His hobby is usually on Fridays, and there are some weekend activities that he participates in.  It is not known what impact the pandemic has had on those activities.

3. X has held a part-time job at Employer JJ, generally on weekends.  That he has been able to do this given the evidence about his behaviour whilst living with his father, and attending M School, is indicative of how well he has settled in his mother’s care. 

4. I accept that as a teenager there will be events and activities which he will want to attend, rather than spending time with his father.  The Independent Children’s Lawyer argues for orders that prescribe time, but give X the ability to opt out.  That would have the effect of providing a structure for time to occur when Y goes to their father.  Having a structure to that time, capable of being varied by X, is in his interests.

5. There is a risk that orders structured in this manner will give rise to further litigation. This could occur if the parents do not accept X’s views.  This would not be in his interests, nor his sisters.  X and his father communicate by text message.  X could text his father if he chooses not to spend time with him.

6. Time between the mother and Z should occur.  It is important not only for the mother and Z’s relationship, but also provides more opportunities for the three siblings to be together.  Y needs time with her father.  Although she has had anxieties about that, it’s clear from Dr BB’s observations and discussions with Y that she enjoyed the time with her father.  It also gives her access to her broader extended paternal family, which is important to her.

Parental Responsibility

1. Each of the parents have been making unilateral decisions about the children in their care with respect to health and education.  The parties have not demonstrated an ability to make decisions co-operatively for years.  The only way for effective decision making for the children is for each parent to have parental responsibility for the children or child who live with them. Given the ages of the children there will be limited decisions to be made for them.  They are settled into schools, and X is talking about his career options in the military following his hobby experience. 

1. X is now doing reasonably well at school.  He has been engaged with hobbies for many years, most recently in the Region NN area. He wants to pursue a military career.  Both parents support his ambitions. 

2. X is 16 years old.  At his age he can provide consent to health treatment, and have a confidential relationship with treating medical practitioners, subject to certain conditions. There is a short window for his parents to have any role in decisions about his medical treatment as a matter of law.

3. The parents are not able to communicate effectively.  In order to exercise parental responsibility for X, they would need to be able to communicate effectively between themselves, and X, to make decisions affecting his health.  It is impossible to imagine how this could work for timely decisions to be made for him.

4. X is of an age where he will be involved in all decisions made regarding his health, other than in an emergency when decisions will be made by medical practitioners.  The ICL suggested that the father have access to medical information for X.  I do not understand that a doctor would share that information, if X did not wish them to.  When I raised this issue during submissions no clear answer was forthcoming from the ICL, or anyone else.  I do not propose ordering equal shared parental responsibility for X.

5. As regards the girls I do not propose ordering equal shared parental responsibility as the parents are not able to communicate in order to reach timely decisions.  There are no current issues requiring decisions about education, and neither have any chronic medical condition requiring decisions about treatment.

Conclusion

1. The children have lived separately by agreement between their parties.  The situation they find themselves in now is not ideal, but has been in place for years.  The children are all mature with firm views as to where they live. The parties need to support the children in spending time together. 

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate:

Date: 7 December 2020