Firman & Doud
[2023] FedCFamC1F 289
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Firman & Doud [2023] FedCFamC1F 289
File number(s): MLC 11775 of 2019 Judgment of: STRUM J Date of judgment: 19 April 2023 Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – With whom the children live or spend time with – Best interests of the children – Where neither biological parent has spent time with the children in over 3 years – Where the biological mother lives overseas and the proceedings are undefended by her – Where the children currently live with a third party, their former step-grandmother – Where the children are 14 years of age and have expressed a strong wish to remain living with the third party – Historical allegations of family violence – Where it is in the best interests of the children to give substantial weight to their views – Children to live with third party and spend time or communicate with biological parents in accordance with their wishes. Legislation: Australian Passports Act2005 (Cth) s 11
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 61DAA, 69ZT
Cases cited: Goode v Goode (2006) FLC 93-286; [2006] FamCA 1346
M v M (1998) 166 CLR 69
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Mallory & Mallory [2019] FamCAFC 221
Mazorski v Albright [2007] FamCA 520
Division: Division 1 First Instance Number of paragraphs: 120 Date of hearing: 28 November 2022 – 2 December 2022 Place: Melbourne Counsel for the Applicant: Mr Thistleton Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: The First Respondent did not participate Counsel for the Second Respondent: Ms Chia Solicitor for the Second Respondent: Clark Family Lawyers Counsel for the Independent Children’s Lawyer: Mr Clarke Solicitor for the Independent Children’s Lawyer: Robert Halliday and Associates ORDERS
MLC 11775 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIRMAN
Applicant
AND: MS DOUD
First Respondent
MS NAKKEN
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
STRUM J
DATE OF ORDER:
19 April 2023
THE COURT ORDERS THAT:
1.All extant unexecuted orders be discharged.
2.Save as provided by order 3, the applicant father, MR FIRMAN, and the second respondent, MS NAKKEN, have equal shared parental responsibility for the twin children X and Y, both born 2008.
3.Notwithstanding order 2, the second respondent have sole parental responsibility in respect of the children’s:
(a)health;
(b)education; and
(c)migration and residence status in Australia -
AND she keep the father informed of the exercise of her sole parental responsibility in relation thereto from time to time.
4.Pursuant to order 2(c), for the purposes of s 11 of the Australian Passports Act 2005 (Cth), the second respondent be and is hereby authorised to do all acts and things necessary to obtain and/or renew the children’s passports without the consent of the father or the first respondent mother, MS DOUD.
5.The children spend time and communicate with the father and the mother in accordance with their wishes.
6.The father and the mother each be at liberty to send letters, cards and gifts to the children on no more than 6 occasions per annum and the second respondent facilitate the receipt thereof by the children.
7.The father and the second respondent advise and keep each other advised in writing of his/her current mobile and land-line (if any) telephone number, email address and postal address.
8.The second respondent promptly advise and keep advised the father of:
(a)the school(s) or like educational institution(s) and any extra-curricular activities attended by the children from time to time; and
(b)any serious illness or injury suffered by the children.
9.Notwithstanding any other provision of these orders, the father and the mother be and are hereby authorised:
(a)to obtain from the children’s school(s) or like educational institution(s) and extra-curricular activity providers, at their own expense, copies of all newsletters, photograph applications, photographs, reports, notices and other correspondence and information usually provided to parents;
(b)to communicate with the children’s school(s) or like educational institution(s) and extra-curricular activity providers, including through the Compass application, in writing, by telephone or by personal attendance, in relation to the children’s progress -
AND, for the avoidance of doubt, such school(s) or like educational institution(s) and extra-curricular activity providers be and are hereby authorised to provide same to, and to communicate with, the father and the mother.
10.Each of the father, the mother and the second respondent, by themselves, their servants and agents be and are hereby restrained from:
(a)abusing, rebuking or denigrating the other(s) in the presence or hearing of the children (or either of them); and
(b)discussing these proceedings with or in the presence of the children (or either of them) or showing them any documents filed in or relating to these proceedings–
or permitting or abiding any other person doing so.
11.Within 28 days of these orders, the Independent Children’s Lawyer meet with the children, together with Ms B, Child Court Expert/Family Consultant, to advise the children of, and explain to them, these orders.
12.Upon the later of:
(a)28 days from the date of these orders; or
(b)compliance with order 11–
the appointment of the Independent Children’s Lawyer be discharged.
13.Pursuant to s 68Q of the Family Law Act 1975 (Cth), to the extent that these orders are inconsistent with any existing family violence orders, these orders shall prevail.
AND THE COURT NOTES THAT:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Firman & Doud has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
This case involves the future parenting arrangements (using that term loosely) for twin children, X (a young woman) and Y (a young man), born in Country C in 2008, who are now 15 years of age and in Year 9 at D School. Thus, whatever orders I make regarding them will be of relatively short duration, as they will attain the age of 18 years in 2026 which, ordinarily, should be the commencement of their final year of school.
The principal protagonists in this dispute are the children’s biological father, Mr Firman, who is the applicant, and Ms Nakken, who is the second respondent. Ms Nakken is not a blood relative of the children; rather, she is the mother of the father’s former, second wife, Ms E.
The children have lived solely with Ms Nakken since mid-2019 and effectively have not spent any time or had any meaningful contact with either of their parents since then.
By their respective amended application and response filed for trial, the father and Ms Nakken sought (in summary) competing orders for sole parental responsibility and that the children live with him/her and spend time with the other. Further, the orders sought by them at trial were set out, in the case of Ms Nakken, in a minute of orders to similar effect, contained in her Outline of Case document and, in the case of the father, in a minute (also to similar effect) contained in the court book, as well as in a further minute styled “alternative orders sought by the father”, which was tendered at trial. In that latter minute, he seeks, in the alternative, that the children live with Ms Nakken and that time with him be reintroduced, over 12 weeks, to the point where they spend four hours with him each alternate Sunday. Ms Nakken’s case is substantially supported by the Independent Children’s Lawyer.
The children’s biological mother, Ms Doud, is the first respondent. She has not participated in these proceedings and they are undefended by her.
FACTS
Evidence at trial was given by the father, Ms Nakken and the Court Child Expert/Family Consultant, Ms B, each of whom was cross-examined. Somewhat surprisingly, evidence was not given by Ms E at trial, notwithstanding the role she has played and continues to play in the children’s lives, as she lives with Ms Nakken and the children. Ms E was present in court with Ms Nakken during the course of the hearing and thus clearly would have been available to give evidence.
This is not a case in which the credit of the father and Ms Nakken, of necessity, looms large. Whilst there are a number of facts in dispute between them, the resolution thereof is of limited, if any, relevance to the outcome of this case, which can substantially be determined on the uncontested facts. However, as a general observation, I prefer the evidence of Ms Nakken, who presented as a forthright witness, who has sought to do, and has done, for the children what neither of their biological parents has done for nearly four years. The explanations given by the father for his inaction during this time ring hollow, for the reasons which I explain below. In closing submissions, counsel for the father conceded that Ms Nakken was an impressive witness who does not seek to separate the children from their biological parents and who displayed no rancour towards them. I agree.
That said, both the father and Ms Nakken gave evidence through Country C language interpreter and I acknowledge that giving evidence through such an intermediary may make it more difficult to assess their demeanour and the quality of their evidence in its manifold aspects.
The father was born in Country C in 1984. He is neither a citizen nor a permanent resident of Australia. Apparently, with the assistance of an immigration lawyer, he has applied to the Department of Home Affairs for permanent residency for the children and himself and, perhaps unsurprisingly, the Department has deferred its decision pending the outcome of these proceedings.
The children’s mother was also born in Country C and, it appears, she presently resides there.
The children’s parents commenced a relationship in Country C in 2007. They separated there in 2012, following which the mother moved to Country F to work. The children, who were then about four years of age, remained in the father’s care. Certainly in recent years, the mother has had little contact (physical or otherwise) or involvement with them.
In Country C in about 2015, the father met and re-partnered with Ms E. Ms E, who is also of Country C background, is an Australian citizen and was visiting there at the time. After her return to Australia, they maintained a long distance relationship. They were married in Country C in 2016. There are no children of that relationship. However, Ms E has a son by another relationship, G, born in 2018, during her relationship with the father. It appears that, at one stage, there was a suggestion that G was the father’s child, but that has transpired not to be the case.
Ms E is the daughter of, and together with her son, G, lives with, Ms Nakken. Ms Nakken was born in Country C in 1973. She is a permanent resident of Australia. In addition to Ms E, she has a son, Mr H, who is (or at the time of trial was) aged 19 years.
After her marriage to the father, Ms E returned to live in Australia, where she commenced a visa sponsorship application for the father and the children. Subsequently, she returned twice to visit Country C, where the father and children remained.
In 2017, Ms Nakken visited Country C and met the father and the children there.
In early 2019, the father and the children were granted temporary visas, with Ms E as their sponsor. They arrived in Australia in early 2019 and commenced to reside with Ms E and Ms Nakken. It appears that the mother consented to the children’s relocation.
The father’s evidence (at [12] of his trial affidavit filed 21 October 2022) is that:
Soon after we arrived in Australia the children were enrolled in [J School] and appeared to quickly adjust to life in Australia. The children are intelligent and hardworking and want to further their studies. After a few weeks in Australia, they told me that live [sic] especially the education system was much better in Australia.
In or about mid-2019, Ms E travelled to Country C to visit her maternal grandmother (that is, Ms Nakken’s mother) there, who was unwell. The father’s evidence is that, on the day of her departure, Ms E told him that their marriage was “over”, that she would be away for three months and that, on her return, she did not want him still to be residing at Ms Nakken’s home.
The father’s evidence is that, at or about that time, Ms Nakken similarly told him that he was no longer welcome in her home, that she required him to leave and that, if he attempted to return, she would allege to the police that he had raped her.
This is denied by Ms Nakken. Her evidence is that the father wished to return to Country C permanently.
Insofar as the father said, in cross-examination, that Ms Nakken “forced” him to return to Country C, including by reason of her alleged threat, and that he was uncomfortable leaving the children in her care and was concerned for their safety, I do not accept same. I do not accept that she threatened him; she had no reason (and no reason was demonstrated) to want to retain the children in her care. She is not their grandmother and her daughter’s marriage to him had seemingly come to an end. As she said in cross-examination by counsel for the father, she is a mother herself and does not want the children separated from their biological parents. Rather, I find that, at not inconsiderable cost to herself, she has altruistically taken upon herself the care of the children when neither of their parents was willing or able to do so. The cost to which I refer is not only, or even mainly, financial; singlehandedly, she has housed and cared for the children since mid-2019, when they were 11 years of age.
In or about mid-2019, the father travelled to Country C, leaving the children in the care of Ms Nakken. She paid for his one-way ticket there. She says this was so because he had told her that he would not be returning to Australia. He alleges that she told him she could not then afford also to purchase tickets for the children and that she would do so a week later but that, in the result, she did not do so. She denies this, deposing that he effectively abandoned the children in Australia with her. Important as this issue may be for the parties, for the reasons that follow, the resolution thereof, after nearly four years, is of far less relevance to the children and their best interests.
The father asserts that the children were distressed by his departure without them; that, whilst he was away, Ms Nakken did not allow the children and him to communicate; and that, when the children did not join him in Country C, he decided to return to them in Melbourne.
Ms Nakken’s evidence is that the children’s distress was, rather, due to the possibility, for immigration reasons, that they might have to leave Australia and return to Country C, given that their father had done so. She deposes that they told their local priest, when taken to him by the father shortly prior to his departure, that they were happy and settled in Australia and did not want to leave. No evidence was adduced from the priest to that effect (or at all); however, given the passage of time since then and until trial (over three years), for the reasons which follow, little turns on this. However, I note that it is surprising that neither the father nor Ms Nakken saw fit to adduce evidence from the priest, given their respective conflicting versions of what transpired with him.
The father returned to Australia the following month, landing in Brisbane, and about a week late he arrived in Melbourne. Ms Nakken’s evidence is that his return was entirely unexpected.
The following day, he attended unannounced at the children’s school, in the company of a third party, and briefly saw them. His evidence is that this brief reunion proceeded well but that, when he returned to the school a few days later, he was informed by staff that he required a court order. Ms Nakken’s evidence is that the children were traumatised by his unexpected reappearance and feared he would remove them from Australia to Country C.
It is common ground that the children have remained in Ms Nakken’s care since the father’s departure from Australia in mid-2019 and that, save for their brief encounter at school late the following month, the father has spent no time with them, and had no involvement with them or their parenting, since then. The children were then aged 11 years; they are now aged 15 years.
The father asserts that Ms Nakken has alienated the children from him over the ensuing three and a half years. Ms Nakken asserts that it is the father’s actions that have alienated them from him, including by reason of his return to Country C without them, their fear that they might be required to leave Australia due to their unresolved status here and family violence inflicted by the mother and him upon them and. She deposes that the children have disclosed to her that they were subjected to beatings by their parents in Country C and, further, that she witnessed the father using excessive discipline on the children in Australia, including the father hitting X on the chest multiple times with a kitchen utensil in early 2019. However, in closing submissions, counsel for the father conceded that no finding is needed as to why the relationship between the father and the children broke down in mid-2019 and that whether Ms Nakken alienated the children from him or he, by his own actions, alienated them from himself, makes no difference. The fact of the matter, he conceded, is that the children do not want to see him at present.
On 18 October 2019, these proceedings were instituted by the father. A Child Inclusive Conference memorandum was prepared, dated 18 December 2019, which recommended that, in the interim, the children continue to live with Ms Nakken and spend professionally supervised time with him. Orders to that general effect were made by the Court that day. However, shortly thereafter, Covid-19 intervened and the contact centre, at which supervised time was to occur, was unable to complete the intake until in or about late 2020. By that stage, the children (then aged nearly 13 years) refused to participate and, on 4 November 2020 and 3 December 2020, orders were made for family therapy.
The father deposes that, subsequently, in or about early 2021, K Organisation advised that family therapy was not indicated at that stage, given than the children “expressed a clear wish they do not want to be responsible for or involved in the resolution of the circumstances before the court and want no further interruptions to their current routine” and that their opinion was “considered to be genuine and not as a result of pressure or coercion by the adults in their life” (at [37] of the father’s trial affidavit).
Ms Nakken annexes to her trial affidavit an undated letter from K Organisation, which she similarly deposes to having received at that time, after the children and she participated in separate intake assessments, advising that “[a]fter careful consideration, [K Organisation] has decided that family counselling is not indicated at this stage”.
The father’s case, in summary, is that Ms Nakken and Ms E have alienated the children from him and undermined his role as their father. He relies, in part, on the Child Inclusive Conference memorandum, prepared over three years ago.
Many, if not most, of the allegations made in these proceedings by each of the father and Ms Nakken are historic in nature and predate the institution of these proceedings in October 2019. However, since then, proverbially, much water has passed under the bridge. By reason of the effluxion of time, namely, over three years, the children have progressed from their pre‑teen years to their mid-teen years, largely in the shadow of Covid-19, and have spent no time and had no other form of contact with the father nor, it appears, with the mother. Further, neither of their biological parents has had, or actively sought to have, any input in or involvement with any aspect of parental responsibility for them. However, the children appear to have flourished in Ms Nakken’s care. Notwithstanding the father’s complaints, other than filing his Initiating Application in October 2019, in which he sought both final and interim orders, relevantly, for sole parental responsibility for the children and that they live with him, which he subsequently amended in January 2022, albeit to similar effect, he has done little to advance his case, either in or out of the Court. It must be acknowledged, however, that the intervention of Covid-19 unfortunately has had some role to play in this state of affairs.
Nevertheless, on 3 December 2020, Judge Riley ordered, inter alia, that, by 4pm on 4 December 2020, Ms Nakken advise the father of the current and future school enrolments for the children and that:
this order shall act as authority for the applicant father to directly liaise with [X] and [Y’s] schools and health providers to obtain updates and reports regarding [X] and [Y] and, until further order, the applicant father be restrained from discussing anything with [X] and [Y’s] schools other than matters relating to their welfare and education.
There is no suggestion that Ms Nakken did not comply with, or that the father sought to avail himself of, this order. The father confirmed in cross-examination that he had the assistance of an interpreter at Court on 3 December 2020. There was no suggestion that he did not understand the orders that were made. However, thereafter he at no stage sought to avail himself of any of the benefits available to him under that order, neither in relation to the children’s education or their health. The unchallenged evidence is that he never even asked Ms Nakken for any of these details.
One of the primary issues in this case, and a reason for which each of the father and Ms Nakken purports to seek sole parental responsibility, is the children’s residence status in Australia. On 3 December 2020, Judge Riley also ordered, inter alia, that:
The applicant father, through his solicitors, keep the second respondent step maternal grandmother and the independent children’s lawyer advised of any developments in relation to the visa applications of the applicant father, [X] and [Y] by providing copies of any communications to or from the Department of Home Affairs regarding those visa applications within 24 hours of the communication being received or sent.
It appears that no such information was forthcoming until the father filed his trial affidavit on 21 October 2022. As referred to above, with the assistance of an immigration lawyer, he has applied for permanent residency for the children and him. Annexed to his trial affidavit (and admissible by reason of s 69ZT of the Family Law Act 1975 (Cth) (“Act”)) is a letter from that lawyer dated 19 October 2022 which addresses the current migration status of the children and him, the immigration legal process and the potential avenues for appeal in the event the Department of Home Affairs were to refuse their applications. The lawyer, Ms L, states that the father and the children would be entitled to seek review of a decision to refuse their applications by the Administrative Appeals Tribunal. Upon lodgement of a review application, they would be granted bridging visas to remain lawfully in Australia whilst the review application is pending. She estimates the likely timeframe for the finalisation of the application to be between approximately two to five years, during which time the father and the children “should remain holders of valid bridging visas” (emphasis added). Further, in the event they were unsuccessful, Ms L advised that possible further avenues of redress available to them would include an application for judicial review to Division 2 of this Court (with, apparently, an estimated processing time of two to four years) and/or an application for ministerial intervention (with an estimated processing time of six to 12 months). Ms L makes the following comments regarding matters affecting not only the father’s, but also the children’s, migration status:
•Given that the primary applicant’s dependent children are currently secondary applicants on his […] visa, any decision to refuse the primary applicant a visa will result in consequent refusal of the secondary applicant’s [sic] visa applications.
•Any future onshore visa options for the parties may be subject to statutory limitations and the parties meeting the relevant visa criteria. In addition, where the secondary applicants are minors under 18 years of age, any independent visa applications will have additional Public Interest Criteria requirements that will need to be met such as for example parental consent and/or legal orders stating who shall have the right the [sic] determine where the minors may reside.
Ms Nakken deposes that, as a result of the father withholding information about the children’s visa status (until 21 October 2022), she has encountered a number of difficulties with the children in her care, including when enrolling the children into their current school and the children not being eligible for Medicare and other government subsidies, resulting in additional out-of-pocket expenses for her. Further, X won a scholarship at school, due to her high grades. According to Ms Nakken, this would have included money for tutoring, school expenses and school equipment. However, she deposes that due to the uncertainty with her visa status, X was unable to enjoy the benefits of the scholarship. Why this was so remains unclear.
Ms Nakken deposes to having obtained legal advice, in or around late 2019, that, given her status as a permanent resident of Australia, she would be able to apply for permanent residency for the children, provided she has an order from the Court for sole parental responsibility for them. She adduces no corroborative evidence to this effect or as to the likelihood of success of any such application. However, unsurprisingly, it does not seem inconsistent with the tenor of Ms L’s advice, namely that the children’s prospects are related to the person (or persons) who has (or have) parental responsibility for them.
On either case, as counsel for the father said in closing submissions: “Everyone is in furious agreement that the children should stay here”.
Ms Nakken also deposes that there has been no communication between the father and her since the commencement of the proceedings, in October 2019. This is not disputed by the father, although the reason therefor is not agreed. Simply put, his case is that Ms Nakken has endeavoured to shut him out of the children’s lives. On the evidence, I do not find that to have been the case. As counsel for the Independent Children’s Lawyer submitted in closing submissions, upon the father’s departure for Country C in mid-2019 without the children, Ms Nakken stepped into the breach and has done, in counsel’s words, the “right thing” by them since then.
Neither of the parents has paid child support or provided any other financial support for the children since mid-2019. They have been entirely supported, financially and otherwise, by Ms Nakken. Indeed, she deposes to having received a text message from the mother, in about early 2020, advising that she “shouldn’t expect a cent” from either of them. She deposes that, during the first Covid-19 lockdown, the children only had one computer to share between them, which caused a number of difficulties with their schoolwork. Although the father initially indicated that he would provide a second computer, it was not forthcoming and it was left to Ms Nakken to purchase.
In cross-examination, the father confirmed that, since late 2019, after his return from Country C, he has not provided even one dollar of child support to Ms Nakken, nor a gift of even one dollar or the value thereof to the children. He said that he did not have the opportunity to do so. That is fanciful. Notwithstanding, he has been able to purchase a motor vehicle for himself and to send money to his family in Country C. As recently as two weeks prior to the trial, he sent the sum of $800 to Country C and he estimated that, in the first 11 months of 2022, he had sent approximately $5,000 to Country C. The father is clearly a man of limited financial means; however, his failure to provide any financial support for, or gifts to, his children, no matter how limited, reflects poorly upon him.
Ms Nakken does not presently have a Medicare number or card for the children. Her evidence is that, for about four to six months preceding November 2020, she was able to obtain Medicare benefits for the children. Otherwise, she has been solely responsible, inter alia, for their healthcare costs. She suggested that, with an order for sole parental responsibility for the children, she would be able to obtain a Medicare card for them or to add them to her card.
Ms Nakken’s evidence is that, whilst she seeks an order for sole parental responsibility in respect of the children and that they live with her, she would not oppose that children spending time or communicating with the father, if they wish to do so. She proffered that it is in their best interests to maintain contact with their parents and that, if the children are happy to do so, she would be happy too. She seeks safety, security and stability for them. Further, she said (and I accept) that she would not oppose the father’s attendance at parent/teacher interviews, school and extra-curricular events, his receipt of school photos (at his expense) or his access to their school’s “Compass” application.
EXPERT EVIDENCE
The expert evidence is this case was comprised of the Child Inclusive Conference memorandum to the Court, dated 18 December 2019 and prepared by Family Consultant Ms M (to which I have referred in passing above), and a more fulsome and more recent family report dated 24 January 2022, prepared by Child Court Expert/Family Consultant Ms B.
For the purpose of the Child Inclusive Conference memorandum, the father, the mother, Ms Nakken and the children were interviewed. I note this appears to be the only occasion on which the mother has had some minimal involvement in these proceedings, albeit tangential. Ms M was not called for cross-examination. She reported (inter alia), albeit in late 2019, that:
(a)There was then uncertainty about the father and children’s status in Australia.
(b)The children alleged that their parents were “beating” them in Country C, using hands to smack them, and a belt to hit X, on the back multiple times. Further, they alleged that, on one occasion in Australia, the father threw an unidentified item at X; that Ms Nakken told him not to do so again; and that, thereafter, the father did not physically discipline them again. Ms M reported that, as a result of their physical discipline, the children were resentful of their parents and fearful that they would do so again.
(c)The father talked about feeling unhappy in Australia due to his poor relationship with Ms E and Ms Nakken and his inability to secure employment.
(d)The father and Ms Nakken both referred to arguments and differences of opinion about “whether to stay in Australia or return to [Country C]”. It is unclear, on the face of the memorandum, whether that was on the part of the father or Ms Nakken. However, from the totality of the evidence, I am satisfied that this is a reference to the father.
(e)The father appeared to have experienced moments of emotional dysregulation due to his unhappiness and perceived restrictions on where he lived. He told Ms M that “he accepted that the children wanted to stay in Australia”.
(f)Concerningly, Ms Nakken appeared to Ms M to prioritise Ms E’s and her role and relationship with the children above their relationships with their parents.
(g)Equally concerningly, Ms Nakken reported that she had shown the children contents of affidavit material and shared with them accusations made by the father about her but that she did not perceive this as inappropriate.
(h)The father and Ms Nakken provided similar descriptions of the children, “indicating their level of involvement and interest in them” (I would add, up to that stage, in late 2019).
(i)The father and the mother proposed that the children live with the father “as they have done so for the majority of their lives so far” and that the father presented as distressed about his separation from the children. On the other hand, Ms Nakken appeared to rely on the children’s choices of living arrangements.
(j)Turning to those arrangements:
Both children were resolute in their views about their living arrangements, that being with [Ms Nakken]. They expressed disdain for their parents and their use of physical discipline. They felt “lied” to, as they made references to their father’s paperwork.
(k)The children presented to Ms M as “generally quiet”; X as sullen and teary and Y as more talkative.
(l)They felt rejected by the father’s (alleged) comments to them, in mid-2019 when he left for Country C, that they were no longer his children. However, they indicated that there were times of laughter and happiness in Country C, when they lived there with their parents.
(m)In Ms M’s opinion, the children presented as over-empowered. It seemed to her that Ms Nakken might have placed doubts in them about their parents and that their views might have been influenced by exposure to the adult conflict, including the father and Ms Nakken’s discussions with their priest, and the children’s reading of affidavit material.
(n)Further, the children presented to Ms M as:
… somewhat protective of [Ms Nakken] [sic]. They spoke positively about her and her efforts to support them financially with the move to Australia. They did indicate that their father and stepmother attended to their needs prior to [Mr Firman’s] departure to [Country C]. The children appeared to mimic [Ms Nakken’s] [sic] views about their stepmother’s role in their lives and are awaiting her arrival [in late] 2019.
(o)The children were firm in their views not to live with the father or spend time with him. They reported feeling distracted at school when he attended their and felt pressure to call their mother. Whilst both children liked Country C, they “had big smiles about living in Australia, and they want to stay here”.
(p)When Ms M briefly observed the children with the father:
Neither child greeted their father. [X] made no eye contact and told him she did not want to see him. [Y] verbally and physically declined his father’s attempt to greet him and told [sic] he did not want to see him. [Y] asked to leave the area which he did with his sister. Both children were crying. [Mr Firman] was crying and ased [sic] what he had done wrong.
(q)After the observation, the children told Ms M that “they had a lack of trust in their father being genuine and feared being reprimanded them [sic] as a result of recent circumstances.”
Ms M identified the issues for the children as being:
•The children have experienced interrupted relationships with their mother, extended family members in [Country C], their stepmother, and now their father. [Ms Nakken] [sic] appears to be the most recent constant person in their lives. She appears to provide a maternalistic, nurturing role for them. Although [Ms Nakken] [sic] reported being supportive of children [sic] living with their father if they chose to, she also reported difficulties helping them with this transition if they showed distress.
•There is great mistrust by the children of their father and mother. They need time to re-establish trusting relationships.
For reasons, at least partly, beyond the father’s control (i.e. Covid-19 and his consequent inability to spend supervised time with the children pursuant to the orders made by Judge Riley on 18 December 2019), the relationship between the children and the father, and their trust in him, has not been re-established.
In the circumstances, Ms M recommended (inter alia) that:
(a)the children live with Ms Nakken in the interim and spend professionally supervised time with the father, with a view to progressing to unsupervised time and an eventual return to living with him;
(b)the children recommence telephone contact with the mother;
(c)no physical discipline be used on the children and that they not be exposed to adult views or information, including Court material.
As referred to above, orders to that general effect were made on 18 December 2019, in particular, that the children continue to live with Ms Nakken and spend professionally supervised time with the father.
Whilst Ms M’s Child Inclusive Conference memorandum raises some matters of concern regarding Ms Nakken, it was nearly three years old by the time of trial and those concerns were, to my mind, counter-balanced, if not overshadowed, by the father’s inaction in that time.
More than two years after that memorandum was prepared, the Family Report in these proceedings was prepared, albeit some 10 months prior to trial. No party sought that the Family Report be updated for trial, and sensibly so in the circumstances.
Ms B noted, inter alia, that whilst the children reported, at the Child Inclusive Conference, that they were subjected to physical “beatings” by their parents in Country C, they did not disclose abuse by any of the parties during their interviews for the Family Report.
In relation to the father, Ms B reported (inter alia) that:
(a)He presented as an “unreliable historian, providing inconsistent detail to the filed material, minimising his responses to [Ms B’s] questions regarding the children’s lived experiences and externalising blame to the children for his inconsistent narrative”.
(b)The father detailed attending the children’s school, upon his return from Country C in mid-2019, with others to assist him to “talk to” the children, dismissing Ms B’s suggestion that the children may have been fearful, stating “that’s because she changed them”, referring to Ms Nakken. He acknowledged that the children “freaked out” about seeing him and would not communicate with him, only asking “why [are] you doing this” to them. He acknowledged that he did not make contact with Ms Nakken or Ms E before attending the children’s school.
(c)The father asserted that the children’s current views were manufactured, due to Ms Nakken and Ms E influencing them. He reported that he “only came back to Australia” for the children and that he is “sad the children have grown up and now don’t want” him. He told Ms B that he plans to remain in Australia, even if the children remain with Ms Nakken, because there is “no reason to return back” to Country C.
(d)The father conceded that Ms Nakken currently assists the children “with all their educational and daily needs and that they are stable in her care”. He was unable to detail his engagement with the children’s daily needs, such as their schooling or health care.
In relation to Ms Nakken, Ms B reported (inter alia) that:
(a)She appeared to be a mildly unreliable historian, whose narrative at times was distorted. I interpolate here that, although not put to Ms B in cross-examination, that may have been attributable to language factors.
(b)In relation to the children’s narrative about being inappropriately disciplined by their parents, when in their primary care, she stated that she only became aware thereof when these proceedings commenced and that, when she visited them in Country C, they did not display distress in the parents’ care or detail any fears.
(c)She described the children as “good” students and reported being saddened about the possibility of the children returning to their father’s care, due to her fears of them being returned to Country C.
As to the relationships between the parties, Ms B reported that the current relationship between the children’s father and mother, as parents, is limited. Further, the relationship between the father and Ms Nakken is one of “reduced trust” and appears to be impacted by their individual goals. She opines that “[t]he parties’ communication and ability to navigate conflict is currently poor, however, this is likely to be due to a cultural overlay and the current dispute…”.
In relation to X, Ms B reported that:
(a)She appeared to have increased maturity for her age and stage of development; her speech and narrative were clear; and she displayed emotions congruent with her expressed views, including strong negative emotions towards the father as her parent and towards her current unstable residence circumstances.
(b)She detailed a lived experience of historical instability in her parenting and living arrangements, which stabilised in Ms Nakken’s care. Whilst she described her life in Country C as “good”, she detailed her life in Australia as “happy”. She explained that she likes Australia because, inter alia, she has opportunities for schooling here. She detailed being thankful to be living with Ms Nakken and Ms E, appearing to value them as the people who have provided her with her current stability, in contrast to her father who she said is “trying to ruin everything”. She described Ms E as a “good person”, who is “kind and caring”.
(c)She explained that the breakdown in the relationship between her father and Ms E caused her great confusion, as she was unable to understand why he would “risk” their “opportunity” in Australia. She reported that she felt “disappointed” when the father decided to leave Australia because if he had chosen to “stay, everything would be fine now”.
(d)She reported being worried when the father attended her school “with other men” [sic], thinking that he was trying to kidnap Y and her, because he was “forcing [them] to go” with him.
(e)She stated that she does not want to see the father or to spend time with him, preferring to continue living with Ms Nakken. She explained that the father “swore on his life” that coming to Australia would be a good thing and that she is angry with him for trying to “ruin” their current stability. She also explained, in insistent tones, that she wants nothing to do with him and that her anger with him will not change.
(f)She detailed a poor relationship with her mother, having reduced memory of her in Country C. She reported that she sometimes had contact with her after immigrating to Australia, which ceased due to her pressuring the children to live with the father. She explained that, even if the mother came to Australia, Y and she would want to remain living with Ms Nakken. She reported no desire to spend time with her parents or extended family, stating that her experience of her family had been hurtful.
(g)She detailed a desire to “have everything over”, so that she can “not be distracted” in her educational goals. She described herself as a diligent student, with increased goals to succeed, and a kind person with “many friends”.
(h)She acknowledged engaging in therapeutic support in the past and a willingness to engage in the future with the well-being coordinator at school, if needed. She reported no ongoing negative emotions at the time of the report with regard to her current living arrangements, save for being “worried about going back”.
(i)She detailed a continued connection to her Country C culture in Australia, enjoying engaging with others to share food and described her cultural values as being “kind and loving”.
In relation to Y, Ms B reported (inter alia) that:
(a)He presented as being congruent with his age and stage of development; however, his narrative was unstructured and his confidence in being able to describe his needs was lower than that of his sister. He provided a narrative that was consistent with hers; however, his use of language and descriptions appeared to be his own. His emotional responses appeared congruent with the topic, save for having reduced positive emotions to describe his parents.
(b)At the commencement of the interview, he said, with urgency, that he “wants nothing to do with” his father and is angry with him for “doing this to us”, referring to the risk of changing residence and leaving Australia. He said that his relationship with his father is “over” and that he wants to stay with Ms Nakken “forever”. Ms B reports that his “pressured tone and insistence was noted as heightened, with [Y] conceding that he is frustrated by the current situation”.
(c)He described the last time he saw his father, at school, as a negative experience, explaining that he came to the school “with a lawyer” and “tried to kidnap” his sister and him, causing them to be scared and confused. Y stated that, when X and he refused to go with their father, he told them “not to call him father”. He explained that he has refused to spend time with the father because “he will take us” and he “is not our father now”.
(d)He detailed his past experience in Country C, his parents’ marriage and his immigration to Australia briefly, appearing to find it difficult to discuss these matters. He explained that “this time has passed” and that he is happy now that he has come to Australia. He compared his life between the two countries, contrasting the differences in his basic needs of housing, schooling and opportunity, as opposed to relationships and a connection to family.
(e)In describing his relationship with his mother, he used an “indifferent tone” and explained that it had “been a while [since they communicated] as usual”. He reported having inconsistent contact with her before coming to Australia and that, since being here, he feels that she has betrayed X and him, by siding with their father. He explained that he believes this because “she says bad stuff about us” and that, if she were in Australia, she would tell them to live with the father. He detailed having reduced affection for his parents, stating that he does not “want them anymore” and describe them as an “embarrassment”.
(f)He provided a positive account of his current living arrangements with Ms Nakken and her family. He explained that he is happy, loves school and maths and has three close friends. He reported that his goal is to succeed with the “opportunities” available to him in Australia.
(g)He stated that, although he has an expressed view of wanting no contact with his father, he is willing to “leave the door open” to future contact, “if it’s a must”.
(h)Similar to Y, he reported a continued connection to his Country C culture and stated that he is proud of it.
Ms B notes that, due to the Covid-19 restrictions, at the time of the preparation of her report in early February 2022, observations of interactions between the children and the parties were not undertaken. However, “[g]iven the children’s positional view and reports about [Mr Firman], this is not viewed as a limitation for the current Report”.
In relation to her evaluation of the dispute:
(a)Ms B opines that, although there are repeated allegations of family violence involving the father, Ms Nakken and Ms E between early and mid-2019, but inconsistencies in the narrative about this period of time, “it is clear that [Mr Firman] supported the children to be in [Ms Nakken’s] residence and primary care, irrespective of his relationship with [Ms E]”.
(b)She reports that the father agreed that “[Ms Nakken] has provided a stable home for the children since they arrived in Australia, attends to all their daily needs and supports them in the[ir] educational goals”.
(c)As such, she opines that “it would be important for future Orders to ensure the children to remain stable in their living arrangements with [Ms Nakken]”.
(d)Ms B notes that, prior to coming to Australia, the children reported a lived experience of instability in their care arrangements for a significant period of time and detailed reduced parenting engagement from both their father and their mother, during the marriage and after separation. She reports that the father confirmed that the children were cared for by his family and housekeepers and that he detailed reduced engagement in the children’s basic care needs following his marriage to Ms E, leaving a large proportion of the daily parenting tasks to her and to Ms Nakken following their immigration to Australia.
(e)Ms B reports that:
70.… Notwithstanding a clear cultural overlay with regard to the role of a father in parenting in [Country C] and the differences in roles in marriages, it is clear that the children did not view [Mr Firman] as an engaged parent who provided them with their daily needs, instead being a parent that was present in the absence of their mother. As such, their current expressed view to stay with [Ms Nakken] is likely to be provided in fear that they will not have their daily needs met by [Mr Firman], given their memories of him as a disengaged parent.
(f)She further reports that the children’s narratives explained a clear focus on their primary needs of where they live, with their secondary needs of affection, love and attachment being a limited focus, likely related to their cultural family ecology. She opines:
72.… This is demonstrated through the children’s strong positional views about education being a primary need over biological family attachments and their current view that a care taking role can be performed by any family member or community member, as long as their primary needs are met. Notwithstanding the different cultural lens, the children’s meaningful relationships are therefore currently limited in that they only view their parents as being primary providers and given that both [Mr Firman] and [Ms Doud] have not been instrumental in creating a stable environment, the children have determined them as not relevant in their lives. This was evident in the way they spoke about feeling betrayed by [Mr Firman] for potentially impacting their current arrangements and their narrative about [Ms Doud] being inconsistent in providing for them.
(g)In the circumstances, Ms B opines that, “[m]oving forward, given that the children’s understanding of relationships is overshadowed by their need to ensure their primary needs are a priority, it would be important for the children to have opportunity for ongoing therapeutic support to ensure they develop relationship skills as they transition across the lifespan.”
(h)Further, she opines that, should it be determined that the children live with either of their parents, which she describes as “an Order which has reduced viability”, the children are likely to have further instability and their emotional wellbeing is likely to be impacted.
(i)She describes the children’s expressed views not to spend time with their father as being “directive and clear” and remaining consistent since the Child Inclusive Conference in December 2019:
74.They both detailed plans to “runaway” [sic], should the Court not support their views or understand their significant dislike of [Mr Firman]. Given their reduced relationship skills as a consequence of their lived experiences and age, it is likely that pressuring them to spend time will not be of benefit. As such an Order that enables [Mr Firman] to step up and be an engaged parent remotely would be of benefit. This can be achieved by [Mr Firman] being able to engage in communication about the children’s educational and medical information, and by having opportunity to send cards or gifts to the children on significant days; assisting the children to repair their view of him as a parent and assist them with developing relationship skills.
(j)Relevant to the competing applications for sole parental responsibility, Ms B reports that the parties’ adult relationship was observed to be poor, due to the propensity for them to be dispute-focused, rather than focused on the needs of the children. Accordingly, it is likely that their ability to navigate communication around the children’s needs is significantly reduced and therefore consideration should be given to granting sole parental responsibility to Ms Nakken.
In the circumstances, Ms B recommends that, in the absence of any evidence to the contrary (and there was none):
(a)Ms Nakken should have sole parental responsibility for the children and the children should live with her.
(b)The children should be at liberty to determine both the time (if any) that they spend with their father and their communication (if any) with their mother and him.
(c)The father and the mother should be given the opportunity to be actively engaged parents by having access to the children’s educational and medical information and being permitted to send gifts and cards to the children for significant events.
(d)Any time the children spend with either of their parents in the future should occur transitionally and be “scaffolded” by the children having therapeutic support to assist with building a healthy future relationship with them.
(e)The children should be referred for therapeutic intervention, by a referral from their general medical practitioner, following finalisation of their immigration matter, to assist with them developing relationship skills and exploring the impact of their lived experience on their future relationships.
(f)The parties, in particular, the father and Ms Nakken, should be restricted from having direct contact to ensure that there is reduced risk of the children being exposed to conflict.
Ms B was only briefly cross-examined. She acknowledged that there is an incongruity between the short period of the father’s absence from Australia in mid-2019 and the children’s sense of abandonment by him. However, she said that his return to Country C, whilst in the result brief, nevertheless was the “straw that broke the camel’s back”. Further, she said that now, nearly four years later, the proverbial “horse has bolted” and that, at this stage, it matters not why the children are alienated from their biological parents.
She said that the minute of “alternative orders sought by the father”, namely, that the children live with Ms Nakken and build up to spending four hours per fortnight with the father, is no better than his original proposal, namely, that they live with him. That is because they have had no relationship with him since mid-2019 and do not want to spend any time with him.
Whilst Ms B’s family report is dated 23 March 2022, she interviewed the children for the purpose thereof on 7 February 2022. She opined that, whilst the children were compliant when she saw them, with the passage of time until trial at the end of 2022, they were likely to have become more headstrong.
Of concern, Ms B described the children’s rejection of the father as maladaptive and said that this may be an impediment to healthy relationships and lead to superficial relationships in the future. However, she confirmed that, at this late stage, an order for therapeutic counselling will be ineffectual; the children will not participate.
In cross-examination, unlike in her family report, Ms B was not supportive of the father (together with the mother) being denuded of all parental responsibility for the children and such responsibility being vested solely in Ms Nakken, who has no biological ties with them. She ventured that this may convey to the children and to Ms Nakken a “proprietorial sense”. Rather, for the remaining three years until the children attain the age of 18 years, she suggested that Ms Nakken might be vested with sole parental responsibility for certain aspects of the children’s welfare.
Whatever orders are made, Ms B was of the opinion that they should be explained to the children by the Independent Children’s Lawyer and her.
In circumstances where Ms B saw the children and authored her report in February and March 2022 respectively, and the trial before me commenced at the end of November 2022, in closing submissions, counsel for the Independent Children’s Lawyer informed that Court that on 22 October 2022, the Independent Children’s Lawyer interviewed the children by video‑conference and that they made it clear that their wishes accord with the recommendations of Ms B.
ORDERS SOUGHT
As summarised above, at trial, the father primarily relied upon his amended Initiating Application filed nearly a year earlier, on 21 January 2022, as well as the minute of orders to similar effect included in the court book, in which he relevantly sought that he have sole parental responsibility for the children (upon notice to and consultation with the mother, but not Ms Nakken); that the children live with him; that they spend time with the mother in accordance with their wishes; and that they spend time with Ms Nakken as deemed appropriate by the court. However, at trial, after I asked his counsel what orders he sought in the event I did not make an order that the children live with him, the minute of “alternative orders sought by the father” was tendered. In summary, in the alternative, he seeks to spend time with the children, initially for a period of 12 weeks, each alternate Sunday, for a minimum of three hours, professionally supervised and at his expense. Thereafter, he seeks to spend time with them each alternate Sunday, from 12 noon until 4pm. Further, he seeks to communicate with them each Saturday, between 4pm - 5pm and that he be at liberty to send cards, letters and gifts to them.
There is an air of unreality, certainly in respect of the primary orders, and even the alternative orders, sought by the father, given the age of the children and the undisputed strength of their wishes. He said in cross-examination that, even if I were to accede to his alternative application that the children live with Ms Nakken and spend only four hours per fortnight with him, he nevertheless still sought sole parental responsibility for them. In the circumstances, I find the father’s answer incomprehensible. Counsel for the father did not re-examine him as to why he seeks that order but, in closing submissions, he conceded that if his client were only to spend four hours per fortnight with the children, his application for sole parental responsibility would be untenable.
When I asked the father, in the course of his evidence how, in the circumstances, he envisaged that a residence order in his favour could work, he responded that it was because they had previously lived with him (namely, prior to mid-2019) and that they love each other. When I asked him, relevant to both scenarios, what he would do if they tried to run away from his care, he said that he had not thought about that and that he did not know what to say by way of answer. Again, in closing submissions, counsel for the father responsibly submitted that, although the father does not concede residence in favour of Ms Nakken, he (namely, counsel) could not pursue such an order.
By the minute of orders in her Case Outline, Ms Nakken seeks that she have sole parental responsibility for the children; that the children live with her; that they spend time and communicate with the father in accordance with their wishes; that they communicate with the mother in accordance with their wishes; that the parents be at liberty to send letters, cards and gifts to the children on no more than four occasions per year, which she will convey to the children; that she advise the father and the mother of any serious illness or injury suffered by the children; and that the children’s school and extra-curricular activity providers be authorised to provide to the parents, at their own expense, copies of all reports, notices and applications for photographs in relation to the children and to communicate with the parents with respect to the children’s progress. Further, she seeks an order that, for the purposes of s 11 of the Australian Passports Act2005 (Cth), she be authorised to do all acting things necessary to obtain and/or renew the children’s passports without the written consent of either of their parents.
The orders sought by Ms Nakken in terms of the children’s living arrangements and any time to be spent, or contact to be had, by them with their parents are substantially supported by the Independent Children’s Lawyer. Whilst the Independent Children’s Lawyer’s minute of proposed orders (annexed to his case outline document) contains an order that Ms Nakken have sole parental responsibility for the children, in closing submissions, counsel briefed by him submitted that if such an order were made, it should be confined to medical, educational and migration matters, and should otherwise be shared equally between the father and her. Further, in respect of any matters for which Ms Nakken may have sole parental responsibility, the Independent Children’s Lawyer submits that she should be required to consult with the father but thereafter make the ultimate determination.
If the Court accedes to Ms Nakken’s proposal, which accords with the children’s unequivocal and, I find, genuine wishes, the reality, at least at present, is that they will likely not have the benefit of any involvement by either of their biological parents in their lives. Prima facie, that would be contrary to the objects of Pt VII of the Act and the principles underlying those objects. In particular, I refer to s 60B(1)(a)-(d) and s 60B(2)(a)-(e). However, those objects and principles, whilst informing the consideration of the orders to be made in any particular case, are nevertheless the servants of s 60CA which provides that, in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. As the Full Court said in Maldera & Orbel (2014) FLC 93-602 at [75], s 60B:
…does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
LEGISLATIVE PATHWAY
Taking into account the evidence, as I have accepted it or found it to be, I turn to consider it within the legislative framework for determining parenting orders set out in Pt VII of the Act.
Objects of Part VII and principles underlying it
Section 60B(1) sets out the objects of Pt VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying these objects, which are that, except when it is or would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Children’s best interests – paramount consideration
Section 60CA provides that, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Section 60CC, the provisions of which I address below, sets out the matters the Court must considering in determining what is in the best interests of the child.
Presumption of equal shared parental responsibility
Section 61DA(1) requires the Court, when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, pursuant to s 61DA(2), the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or (b) family violence.
In this case, the presumption in s 61DA(1) does not apply, as on no party’s case is it proposed that the children’s mother retain parental responsibility for them; none of the father, Ms Nakken or the Independent Children’s Lawyer seek such an order, and the mother has not participated in the proceedings. Rather, there are competing applications by the father and Ms Nakken for sole parental responsibility for the children.
Consideration of children spending equal time with each parent
In circumstances where no order is sought or will be made for the parents to have equal shared parental responsibility, s 65DAA does not apply. Section 65DAA(1) otherwise would require me to:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Similarly, if an order for equal shared parental responsibility had been sought by and were made in favour of the parents but an order for the children to spend equal time with each of them were not made, s 65DAA(2) would require me to consider whether the children spending substantial and significant time with each of the parents would be in the best interests of the children and reasonably practicable and, if so, to consider making an order to provide for the children to spend such time with each of them.
However, in the circumstances of this case, in determining which of the competing applications of the father and Ms Nakken, in relation to parental responsibility and with which of them the children are to live and, conversely, to spend time, is in the children’s best interests, I turn to s 60CC of the Act.
Primary considerations
Section 60CC(1) relevantly provides that, in determining what is in the children’s best interests, I must consider the matters set out in sub-sections (2) and (3).
Section 60CC(2) sets out the primary considerations I must consider, being:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The former requirement will often be subject to the latter (cf. Mallory & Mallory [2019] FamCAFC 221; M v M (1998) 166 CLR 69).
Turning to the former of those two primary considerations, in Mazorski v Albright [2007] FamCA 520 at [26], Brown J held that “meaningful”, when used in the context of “meaningful relationship”, is synonymous “significant”, “important”, “of consequence” and “valuable to the child” and is a qualitative adjective, and not a strictly quantitative one.
In Goode v Goode (2006) FLC 93-286 at [44], the Full Court said:
The importance of s 61DA is that if the Court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for a consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the Court must consider making an order that the child spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the child spend substantial and significant time with each of the parents would be in the best interests of the child and not reasonably impracticable and, if so, must consider making such an order (see s 65DAA). Section 65DAA(3) explains the meaning of “substantial and significant time”.
The Full Court said at [72]:
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
In the present case, where no orders are sought to provide for the children to have a meaningful relationship with the mother, nor is there any suggestion that the children will have otherwise had such a relationship with her, and where, on the orders sought by Ms Nakken, nor would they have such a relationship with the father, I am acutely conscious of the need to consider any benefit to the children of having a meaningful relationship with their father. However, on the evidence, I am comfortably satisfied that they have not had such a relationship with him since, at least, mid-2019; that they do not presently have such a relationship with him; and that no orders I could make would promote such a relationship in the short to medium-term future, before they attain the age of 18 years in under three years’ time.
Whilst I am conscious of the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, I am not satisfied, to the requisite standard, that they have been subjected or exposed to abuse or family violence. Whilst it is alleged by Ms Nakken and not denied by the father and was reported by the children to Ms M in December 2019, no mention whatsoever thereof was made by either the children or Ms Nakken to Ms B, over a year later. However, on the evidence, I find that the children have been subjected to neglect by their mother, at least since their departure from Country C in early 2019, as well as by their father insofar as he returned to Country C without them in mid-2019 (albeit briefly, in the result) and by reason of his failure both to avail himself of the orders made on 3 December 2020 and to provide any financial support for them since mid‑2019.
Additional considerations
Having so found, I turn therefore to the additional considerations set out in s 60CC(3).
As to sub-paragraph (a), namely, any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views, this is a significant consideration in this case and one to which I give great weight. The undisputed evidence is that the children, who are now aged 15 years, are mature; that they wish to continue living with Ms Nakken, with whom they have lived for nearly four years; and that they do not wish to spend any time with the father. I find their wishes to be cogent.
As to sub-paragraph (b), namely (and in particular), the nature of the relationship of the children with each of their parents and with Ms Nakken, the evidence, as I have found it to be, is that the children have little relationship with their mother and, more relevantly, a poor relationship with their father. Conversely, it is uncontested, and I find, that they have a good relationship with Ms Nakken, who is the only person who has cared for them (and ably so) since mid-2019.
As to sub-paragraph (c), namely, the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time and communicate with them, I find that neither of the parents has taken these opportunities. Again, more relevantly, in the case of the father, I have noted his inaction in the course of these proceedings, notwithstanding their institution by him in October 2019. Whilst I acknowledge that, by reason of the children’s refusal to spend time with him, coupled with the difficulties in regard to supervised time by reason of the intervention of Covid-19, he nevertheless entirely failed to avail himself of the opportunities provided to him by the orders made on 3 December 2020.
As to sub-paragraph (ca), namely, the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child, neither of the parents has fulfilled (or even sought to fulfil) their obligations in this regard. Rather, the responsibility for maintaining the children has fallen entirely upon Ms Nakken, notwithstanding the absence of any obligation on her part to do so. Whilst there is no evidence of the mother’s financial circumstances in Country C, in the case of the father, he has been able to purchase a motor vehicle for himself. Further, he has sent money to his family in Country C; approximately $5,000 in the first 11 months of 2022 and including $800 as recently as two weeks prior to the trial. Whilst I have found that he is clearly a man of limited financial means, his failure to provide any financial support for, or gifts to, his children whatsoever, no matter how modest, reflects poorly upon him.
As to sub-paragraph (d), namely, the likely effect of any changes in the children’s circumstances, including particularly the likely effect on them of any separation from either of their parents or Ms Nakken, I am comfortably satisfied, on the evidence, that were I to order that the children now live with the father or, alternatively, spend defined time with him, such orders could in no way be said to be in their best interests and, in any event, would be unlikely to be given effect, given the children’s age and their wishes. Conversely, I find that, on the evidence, the effect on the children of any separation from Ms Nakken would clearly be a deleterious one, given their relationship with her and their happiness in her care.
As to sub-paragraph (e), namely, any practical difficulty and expense of the children spending time with and communicating with either parent, and whether any such difficulty or expense will substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis, in the case of the mother, whilst she lives in Country C, the more practical difficulty is that she does not seek orders to spend time with them and they do not wish to spend time with her. More relevantly, in the case of the father, the only expense would be that associated with his alternative proposal that the children spend professional supervised time with him for a minimum of three hours per week, over a period of 12 weeks. However, if I were to make such an order, his proposal is that he would pay for the cost of such supervision. The practical difficulty is that, on the evidence, the children do not want to spend time with him and will not do so, and the father has given no thought to what he would do if they ran away from him, as Ms Nakken deposes they have threatened to her.
As to sub-paragraph (f), namely, the capacity of each of the parents and Ms Nakken to provide for the needs of the children, including emotional and intellectual needs, I am satisfied that, of the two contenders for orders, it is Ms Nakken, rather than the father, who has the demonstrated and greater capacity in this regard. The children have thrived, including academically, whilst in her care. Whilst I am concerned by Ms B’s description of the children’s rejection of the father as maladaptive and her expert opinion that this may be an impediment to healthy relationships and lead to superficial relationships in the future, on the evidence, I do not find that this rejection is attributable to Ms Nakken, or at least primarily so.
As to sub-paragraph (g), the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other relevant characteristics of the children, I have already noted above the children’s undisputed maturity. As for the children’s background, culture and traditions, both the father and Ms Nakken, like the children, are of Country C background and members of the same church. In respect of each of the children, Ms B noted their continued connection to their Country C culture, of which they are proud, in Australia, whilst in the care of Ms Nakken.
As to sub-paragraph (h), it is inapplicable in this case; the children are manifestly not Aboriginal or Torres Strait Islander children.
As to sub-paragraph (i), namely, the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents, on the evidence and for the reasons detailed above, I am satisfied that neither of the parents and, most relevantly, the father, has demonstrated a dedicated, committed or responsible attitude in this regard.
As to sub-paragraph (j), namely, any family violence involving the children or a member of their family, as I have found above, I am not satisfied, to the requisite standard, that they have been subjected or exposed to family violence. Whilst there are historic allegations in this regard, including by the children to Ms M in December 2019, no mention thereof was made more recently to Ms B, in February 2021.
As to sub-paragraph (k), no family violence order applies presently applies to the children or a member of their family. Historically, Ms E, her son, G, and the children were protected persons named in an interim intervention order made in 2020 and a final intervention order made in late 2021, which expired in late 2022.
As to sub-paragraph (l), namely, 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 children, I am satisfied, on the evidence and for the reasons herein, that it would be preferable to make such an order and that the orders I propose to make, substantially in terms of the orders sought by Ms Nakken, in my view, will most likely achieve that outcome.
As to sub-paragraph (m), there are no other relevant facts or circumstances in this case.
ORDERS TO BE MADE
On the evidence and for the reasons above, I propose to make orders substantially in accordance with those sought by Ms Nakken, which also largely accord with those proposed by the Independent Children’s Lawyer.
I will make an order that the children continue to live with Ms Nakken, as they have done for nearly the past four years. That accords with their wishes, to which I afford considerable weight, given their age and maturity; with the recommendation of Ms B, which I accept; and with the proposal of the Independent Children’s Lawyer. The father’s primary proposal, namely, that the children live with him, although no pressed in closing submissions, was devoid of any reality or any acknowledgment by him of the facts of the case.
As to the time, if any, to be spent by the children with the father, his alternative proposal, namely, that after twelve weeks of supervision, they spend four hours per fortnight with him, is superficially more realistic than his proposal that the children live with him. However, it does not withstand scrutiny. The fact of the matter is that these mature, 15 year-old, children have clearly and unequivocally expressed a strong wish not to spend time with him, already not having done so for nearly four years. He was unable to explain to the Court how, in those circumstances, any order that the children spend defined time with him could work. Further, as Ms B opined in cross-examination, for these reasons, the father’s alternative proposal is, in fact, no better than his original proposal. Unfortunately, much as it is to be regretted that these children will have little chance, in the short to medium term future, to improve their relationship with either of their biological parents, an order that they spend defined time with the father will simply not be complied with by them at this stage in their lives and may lead to futile enforcement applications. I am satisfied that it is in the children’s best interests simply to make an order that they spend such time and communicate with either of their parents as they may wish and initiate.
In circumstances where the children will continue to live with Ms Nakken and only spend time with their parents in accordance with their wishes (if any) and where the father has failed to involve himself (or seek to do so) in any aspect of parental responsibility for the children, it is appropriate that she have parental responsibility for them. Further, on the evidence, it would seem, on balance, that she may be the better placed of the two to secure their ongoing residency in Australia, which they strongly seek.
As to whether Ms Nakken should have sole parental responsibility for the children simpliciter, or equal shared parental responsibility for them together with the father, I am troubled both by their inability to communicate and by the father’s inaction in this regard. However, I am also troubled by the prospect of neither parent retaining parental responsibility for them, especially in circumstances the children will not live or spend any defined time with either of them. I am conscious of the fact that the objects of Pt VII of the Act and the principles underlying them, set out in s 60B(1)–(2), are subservient to the directive in s 60CA to regard the best interests of the children as the paramount consideration in deciding whether to make a particular parenting order in relation to them. In particular, one of the objects of Pt VII, set out in s 60B(1)(a), is to “ensure that the best interests of children are met by… ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. There is nothing to suggest that the term “meaningful” should be interpreted differently in s 60B(1)(a) to its use in s 60CC(2)(a), namely, as a qualitative adjective, and not a strictly quantitative one. Further, the object in s 60B(1)(a) is expressly made subservient to the best interests of children by the proviso that such meaningful involvement should only be “to the maximum extent consistent with the best interests of the child”.
In the present case, as noted above, whatever orders are made, they will be of relatively short duration; less than three years. At trial, the likely issues which would require the exercise of parental responsibility were identified as being the children’s education and health, as well as their immigration status in Australia (including the obtaining of passports). Given the inability of the father and Ms Nakken to communicate, as well as his inaction in relation to the children in nearly the past four years, I shall confer sole parental responsibility upon Ms Nakken in respect of these discrete matters, provided she keep him advised of her exercise thereof. Otherwise, they will have equal shared parental responsibility.
The father, Ms Nakken and the Independent Children’s Lawyer all seek non-denigration orders, as well as orders restraining the father, the mother and Ms Nakken from discussing these proceedings with the children or showing them any documents in connection therewith. In the circumstances of this case, such orders are appropriate and I will make them. However, insofar as Ms Nakken and the Independent Children’s Lawyer seek orders that the parents and Ms Nakken be restrained, by themselves, their servants and agents from “insulting” the other parties, I am not prepared to make such an order. Absent any authority to the contrary, my attention was not drawn to any law that protects people from being insulted. Further, insulting and/or being insulted are highly subjective concepts; what may be insulting to one person may well not be insulting to another. Proving a breach of such a restraint, to the requisite standard of proof, may be nigh impossible. It is not the business of courts to protect people against insult, nor to make orders of questionable enforceability.
The father and the Independent Children’s Lawyer seek orders that each of the father and Ms Nakken keep the other advised of their respective telephone numbers, email addresses and postal addresses and, further, that Ms Nakken keep the father advised of the children’s schools from time to time, as well as any serious illnesses or injuries suffered by the children. Such orders are not opposed by Ms Nakken and are appropriate, especially in circumstances where she will have sole parental responsibility for such matters and the father is unlikely otherwise to become aware thereof.
Ms Nakken and the Independent Children’s Lawyer propose that the schools, as well as the providers of extra-curricular activities, at which the children attend from time to time, be authorised to provide to the parents, at their own expense, copies of all newsletters, photographs, reports and other information usually provided by them to parents, as well as to communicate with the parents, including by telephone or personal attendance or in writing. Such an order is appropriate and not opposed by the father and I shall make same.
The father seeks an order that he be at liberty to send cards, letters and gifts to the children. A similar order is sought by Ms Nakken and proposed by the Independent Children’s Lawyer, with the proviso that this be limited to no more than four occasions per year. In the circumstances of the case, including, in particular, the children’s wishes in relation to their parents, a limitation is appropriate. However, I shall impose a slightly more generous limitation of no more than six occasions per year, given that may be the only means by which the children’s parents may be able to be in contact with them and to repair their relationships.
Both the father and the Independent Children’s Lawyer seek an order under s 68Q. Such an order is not opposed by Ms Nakken and is appropriate and, accordingly, shall be made.
The father also seeks an order that the orders I make be explained to the children by the Independent Children’s Lawyer. Ms B suggested in cross-examination that she could also be involved in the explanation process. An order to this effect was not opposed by either Ms Nakken or the Independent Children’s Lawyer, is appropriate and shall be made, whereupon the appointment of the Independent Children’s Lawyer shall be discharged.
Orders will be made to give effect to these reasons for judgment.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 19 April 2023
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