Frost and Frost & Ors

FAMILY COURT OF AUSTRALIA

FROST & FROST AND ORS

[2018] FamCA 727

FAMILY LAW – CHILDREN – Parenting – Where the father was convicted of child sex offences and is currently incarcerated – Where the father seeks orders for shared parental responsibility and for communication with the children, as well as to spend time with them upon his release from prison – Where the paternal grandmother and aunt seek orders for time with the children – Where the mother opposes these applications and seeks that there be no communication other than letters, cards and gifts from the paternal family to the children – Where the mother is concerned about the children communicating with the father while he is in prison – Where there is a risk to the children grappling with exposure to differing views regarding the father’s incarceration – Where in the circumstances it is in the best interests of the children to put in place an arrangement that will support the mother as their primary carer – Where it is important to support the sibling relationship and different orders for each child may create a rift – Where it is ordered that the paternal family have no time and do not communicate with the children – Where it is ordered that the paternal family can send letters, gifts and cards to the children.

PRACTICE AND PROCEDURE – Intervenor – Standing – Application by the mother that the paternal aunt does not have standing to make an application for a parenting order – Consideration of s 65C(c) of the Family Law Act 1975 (Cth) – Where the children have had a relationship with the aunt over their lives but it is not a close relationship – Where the Court finds that s 65C(c) should not be interpreted narrowly and in the broad sense the aunt is a person concerned with the care, welfare and development of the children – Where the mother’s application is dismissed.

Family Law Act 1975 (Cth): ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65C, 65DAA

Aldridge & Keaton (2009) FLC 93-421
Goode and Goode (2006) FLC 93-286
KAM v MJR (Intervenor) (1999) FLC 92-847
MRR v GR (2010) 240 CLR 461
Valentine & Lacerra and Anor (2013) FLC 93-539

APPLICANT:

Mr Frost

RESPONDENT:

Ms Frost

INTERVENORS:

Ms K Frost & Ms Baker

INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

FILE NUMBER:

SYC

4759

2013

DATE DELIVERED:

13 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATES:

3, 4 & 5 April 2017; 17 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Katsinas

SOLICITOR FOR THE APPLICANT:

Just Defence Criminal And Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Humphreys

SOLICITOR FOR THE RESPONDENT:

Rebecca Bailey & Associates

COUNSEL FOR THE INTERVENORS:

Mr Bodisco

SOLICITOR FOR THE INTERVENORS:

Shelly Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

Orders

The following parenting orders are made in relation to the children, B born … 2004 and C born … 2008 (“the children”).
All previous orders are discharged.

Parental Responsibility

The mother have sole parental responsibility for the children PROVIDED THAT the mother will promptly inform the father in writing of any significant decisions affecting the long term care, welfare and development of the children.

Live With

The children shall live with the mother.

Cards, Gifts, Letters and Children’s Address

The father, Ms K Frost and Ms Baker are permitted to send to the children cards, gifts and letters and for this purpose, the mother is to keep the father informed of the children’s residential address PROVIDED THAT the mother may determine the appropriateness of providing such items to the children.

Restraint

Except as provided in these orders, the father, Ms K Frost and Ms Baker are restrained from approaching or contacting the children unless such contact is initiated by the mother.

Travel

The mother be permitted to travel with the children to Japan, or any other country other than one that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, for a period of not more than 10 weeks in any calendar year.
The mother shall give the father at least 21 days written notice of her intention to travel overseas, together with a detailed itinerary and confirming dates of travel and places of accommodation.
The mother shall retain possession of the passports of the children and have the sole responsibility for making any application to the Australian and Japanese authorities for the issue of passports for the children.

Counselling

The mother shall facilitate therapeutic counselling for the children to assist the children in coming to terms with their current circumstances and to provide assistance to them into the future, the mother to consult Ms Karen Gabriel for names of appropriately qualified therapists.

Administration

That all exhibits be released.

Notations

The mother shall consider future contact between the children and the father, Ms K Frost and Ms Baker having regard to the progress of the counselling facilitated under Order 10.
The parties acknowledge that one outcome of such counselling might be that one child might wish to spend time with the father and/or Ms K Frost and/or Ms Baker and the other child might not. Whether that is an appropriate outcome is to be determined by the mother.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4759 of 2013

Mr Frost

Applicant

And

Ms Frost
Respondent

And

Ms K Frost & Ms Baker
Intervenors

REASONS FOR JUDGMENT

Introduction

B is 13 years of age having been born in 2004 and his younger brother, C is 10 years of age having been born in 2008. Their parents are Mr Frost (“the father”) and Ms Frost (“the mother”).
In 2013 certain events occurred which have had a cataclysmic effect on the lives of the boys and their parents. In short, the mother had arranged to babysit for two young girls who were friends of the family. The girls said certain things to the mother on that occasion as a consequence of which she telephoned the Child Sexual Assault Hotline. The following day the father was arrested and placed in custody. Subsequently he was convicted of sexual offences against the girls and sentenced to a term of imprisonment.
The mother ended the parties’ marriage at that time and neither the father nor any members of his family have spent time with the boys since that time.
The father, his mother, Ms K Frost and his sister, Ms Baker, have made applications to the Court for orders which would enable them to have communication with the boys and to spend time with them.

Applications

The father seeks the following orders:
·the children live with the mother;
·while the father is imprisoned the children communicate with him as follows:
-   the mother to make the children available to speak to the father by telephone on at least one occasion per week for three minutes with each child or for no longer than six minutes with both;
-   the mother is to encourage and facilitate telephone contact between the children and the father;
-   the mother is to provide to the children all correspondence sent by the father to them;
-   the mother is to encourage and facilitate correspondence from the children to the father; and
-   the mother shall forward to the father’s Correctional Centre all correspondence by either or both children to him.
·at all times the mother inform the father of the residential and postal address of the children and the landline and mobile telephone numbers at which they can be telephoned;
·the mother immediately notify the father of any change to the children’s residence or postal address or their living arrangements;
·within 14 days of receipt of any medical or hospital report, school report or correspondence, notice, report or correspondence from any government department relating to one or both of the children, the mother cause a copy of such to be sent to the father;
·if the mother proposes to take the children from their current residential address for more than seven days she notify the father in advance of the address where the children will be and the relevant contact telephone numbers to enable the father to telephone the children at that address;
·the mother ensure that the children have displayed in their respective bedrooms at all times a photograph of the father;
·the parents have equal shared parental responsibility for the children or alternatively the parents have parental responsibility for the children in accordance with the following:
-   the mother and father have shared parental responsibility for the children in relation to long term issues about the following:
ochanges to the children’s names;
ochanges to the children’s living arrangements;
othe children’s education.
-   the mother have sole parental responsibility for the children in relation to long term issues about:
oreligion, cultural upbringing; and
ochildren’s health.
On the condition that,
othe mother contacts the father in writing and provides her views about any such issues;
othe father contacts the mother in writing and provides his views about any such issue;
othe father and mother make a genuine effort to come to a joint decision about any such issues;
oif no agreement is reached then within 14 days the mother makes the final decision and advises the father in writing of the decision.
·upon the father’s release from prison and while on parole the children spend time with him in accordance with their respective wishes subject to any condition imposed by Parole and this Court.
The father also sought that the current orders in relation to international travel by the children continue. These are as follows:
1.      The children … be permitted to travel with the mother to Japan and/or other countries which are signatories to the 1980 Hague Convention on the Civil Aspects of International Child Abduction for a period of not more than 10 weeks in any 12 month calendar period.
2.      The children’s passports are to be held by the Registrar of this Court to be released to the mother from time to time on the mother satisfying the Registrar that the conditions of these orders (and in particular notice to the father and the lodgement of security) have been satisfied.
3.      The mother shall give to the father at least 21 days’ notice in writing of her intention to travel overseas together with a detailed itinerary confirming dates of travel and places of accommodation.
4.      Twenty-one days prior to any travel, the mother shall lodge $10,000 in her solicitor’s trust account and if she is not represented at the time, a solicitor’s trust account nominated by the father.
5.      In the event the mother remains out of Australia with the children for more than 14 days, after the date she is due to return to Australia, the father is at liberty to apply to the court for the release of the sum of $10,000 for the purposes of the father taking all necessary steps to bring about the return of the children to Australia.
6.      The mother shall have the sole responsibility for making any application to the Australian Passport Office, Department of Foreign Affairs and Trade in relation to issue of passports for the children.
The Independent Children’s Lawyer (“ICL”) seeks orders to the following effect:
·the mother have sole parental responsibility for the children provided that she will promptly inform the father in writing of any significant decisions affecting the long-term care, welfare and development of the children;
·the children live with the mother;
·except as provided in these orders, the father, the paternal grandmother and the paternal aunt (“the paternal family”) be restrained from approaching or contacting the children unless such contact is initiated by the mother;
·the paternal family be permitted to send to the children cards, gifts and letters and, for that purpose, the mother is to keep the father informed of her residential address provided the mother may determine the appropriateness of providing such cards, gifts and letters to the children;
·the mother be permitted to travel with the children to Japan or any other country other than a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, for a period of not more than 10 weeks in any calendar year;
·the mother retain possession of the passports of the children and be entitled to renew those passports from time to time;
·the mother facilitate therapeutic counselling for the children to assist the children in coming to terms with their current circumstances and to provide assistance to them in the future, the mother to consult Ms Karen Gabriel for names of appropriately qualified therapists.
The ICL also seeks notations as follows:
·the mother will consider future contact between the children and the paternal family having regard to the progress of the therapeutic counselling facilitated under the previous order; and
·the parties acknowledge that one outcome of such therapeutic counselling might be that one child might wish to spend time with the paternal family and the other child might not. Whether that is an appropriate outcome is to be determined by the mother.
The mother seeks orders to the following effect:
·she have the sole parental responsibility for the children and inform the father in writing of any significant decision she makes regarding the long-term care, welfare and development of the children;
·the children live with the mother;
·the father (and the paternal grandmother and the paternal aunt) be permitted to send to the children letters, cards and gifts via the address provided by the mother and the mother shall provide such items to the children provided that in her opinion such items are not inappropriate or likely to cause distress to either child;
·otherwise the father (and the paternal grandmother and paternal aunt) are restrained from approaching or contacting the children;
·the children be permitted to travel with the mother to Japan and/or other countries which are signatories to the 1980 Hague Convention on the Civil Aspects of International Child Abduction for a period of not more than 10 weeks in any 12 month calendar period;
·the children’s passports are to be held by the mother;
·the mother shall have sole responsibility for making any application to the Australian authorities and the equivalent Japanese authorities for the issue of passports for the children;
·the mother shall give the father at least 21 days written notice of her intention to travel overseas, together with a detailed itinerary confirming dates of travel and places of accommodation; and
·all outstanding applications be dismissed.
The paternal grandmother and the paternal aunt seek orders to the following effect:
·that the children spend time with them for four visits for two and a half hours on Friday, Saturday and Sunday every six weeks (or less frequently if the Court considers it more appropriate), such contact to be supervised by L Group in Town P;
·thereafter, the children spend time with them one weekend every twelve weeks (or longer if the Court considers it appropriate) for a period of six months from Friday afternoon to Sunday afternoon in the Town T Local Government Area;
·thereafter, the children spend time with them for the first week in each school holiday period from Sunday to the following Saturday;
·they be responsible for the travel costs for the children travelling from Sydney to Town T and return; and
·they communicate with the children by telephone each Wednesday between 7.00 pm and 7.30 pm.

Background

The father was born in 1960. He is currently 58 years of age.
The mother was born in 1973 in Japan. She is currently 44 years of age.
In 1998 the parents commenced a relationship.
In January 2000 the parents commenced cohabitation in Country U.
In late 2000 the parents were married in Country U. Thereafter the father returned to Australia and the mother moved to Japan.
In mid-2001 the mother obtained permanent residence status in Australia and moved to live with the father thereafter. They initially lived in the Town M area until they relocated to Town P in January 2002 for the father to take up employment in that area. After approximately six months the mother commenced full-time employment at Town P.
In late 2001 the parents had a marriage ceremony in Australia.
In 2002 the father was diagnosed as having anxiety and depression and placed on anti-depressant medication.
In 2004 B was born. The mother took one year of maternity leave then returned to work on a part-time basis.
In 2005 the father acknowledged that he had a dependence on alcohol.
In 2008 the parents and children spent six weeks in Japan with the mother’s family.
In 2008 C was born. The mother took two years of maternity leave.
In 2009 the father completed a non-residential program at the Y Service for eight to 10 weeks for the treatment of alcohol abuse.
In 2010 or 2011 the father sought treatment at a residential program at the Z Service for a period of three weeks. The father acknowledges that his alcohol dependence improved after this program but he continued to relapse from time to time.
In December 2010 the parents and children travelled to Japan to spend Christmas with the mother’s family.
The paternal grandmother last saw the children in approximately October 2012.
In December 2012 the parents and children travelled to Japan to spend Christmas with the mother’s family.
From five years of age the children each participated in Japanese school each Sunday in Suburb N.
In 2013 the father was charged with child sexual offences. The father was taken into custody.
In 2013 the parents separated. The father has not seen the children since this time.
Later in 2013 the father was released on bail and commenced residing with the paternal grandmother in Town T.
In June 2013 the children stopped attending Japanese school.
In July 2013 B was interviewed by the Joint Investigation Response Team in relation to the father’s criminal case. He became a witness in the criminal proceedings but was not called to give evidence at trial.
In July 2013 the mother and children moved out of the family home to rented accommodation to enable the home to be sold.
On 19 August 2013 the father commenced these proceedings in the Federal Circuit Court in relation to parenting and property issues.
On 23 October 2013 the proceedings were transferred to this Court and an Independent Children’s Lawyer (“ICL”) was appointed.
In 2014 the mother was involved in establishing a Japanese school in the Town P area which B and C commenced attending each Saturday.
On 13 March 2014 orders were made by consent requiring the mother to deliver the children’s passports to the ICL. The passports were not to be released by the ICL without the written consent of both parents or by further order.

In May 2014 the mother was informed by her family in Japan that her father had been diagnosed with cancer with a terminal prognosis. She then sought the father’s consent to travel with the children to Japan. But it became necessary for the mother to seek this Court’s permission for the children to travel to Japan.
The father’s criminal trial was conducted over four days in 2014. The father pleaded not guilty. The mother was called as a witness and gave evidence.
In 2014 the father was convicted.
On 28 July 2014 consent orders were made permitting the mother to travel to Japan with the children for six weeks from 1 August 2014 to 30 September 2014, and a further period of one week for the purpose of attending the maternal grandfather’s funeral on the provision of 48 hours’ notice by the mother to the father. The orders provided for the ICL to release the children’s passports to the mother. The following day the mother’s solicitor requested the release of the passports.
In July 2014 the maternal grandfather died. The mother was unable to attend the funeral. This was very distressing for her. C’s Japanese passport had expired and the mother was most concerned to obtain a passport for C. The father declined to sign a passport application. Ultimately the Australian Passports Office issued an Australian passport for C on the basis of the consent orders.
From 10 August to 30 September 2014 the mother and children travelled to Japan.
In late 2014 the father was sentenced to 11 years imprisonment with a non-parole period of 5.5 years.
In late 2014 the Crown lodged an appeal against the father’s sentencing but later withdrew that appeal in May 2015.
In October 2014 the mother received a text message from the boys’ aunt Ms Baker on behalf of the grandmother requesting a visit from the boys and suggesting the mother send them by aircraft to Town T. The mother did not think it was in the children’s interests to do so.
On 1 December 2014 the police conducted a welfare check on the mother and children at the request of the paternal grandmother.
In April 2015 a divorce order was made. It became final in May 2015.
On 26 April 2015 the police conducted a welfare check on the children and the mother at the request of the paternal grandmother.
On 13 May 2015 the mother and father settled financial issues between them by consent.
On 20 August 2015 the mother filed an Application in a Case seeking orders that she be permitted to travel to Japan with the children from time to time.
On 26 August 2015 at 11.00 pm the police conducted a welfare check on the mother and children at the request of the paternal grandmother.
On 19 September 2015 the paternal grandmother and aunt filed an Application in a Case seeking leave to intervene in the proceedings.
On 21 September 2015 the mother’s application to travel to Japan was heard by Justice Watts.
On 30 September 2015 Watts J delivered judgment and made orders permitting the mother to travel to Japan and any other Hague Convention country for not more than 10 weeks in any 12 month period, on the basis that she give the father 21 days’ notice of her intention to travel including an itinerary, together with a deposit of $10,000 into her solicitor’s trust account as a bond.
On 18 November 2015 orders were made granting leave to the paternal grandmother and aunt to intervene in the proceedings.
Over the 2015/2016 Christmas holidays the mother travelled with the children to Japan holidaying there for several weeks.

Credit

The Father

The father appeared by video conference link from prison. He was articulate and responsive to questions during cross-examination. The father conceded that he had a longstanding difficulty with alcohol abuse and has attended rehabilitation clinics for his condition.
I was not confident at all times that the father was being accurate in describing the quantity of alcohol imbibed by him, including on the occasion of the offences, in 2013.
The father is adamant that he is innocent of the child sexual offences of which he is convicted. Somewhat curiously, in my view, he conceded that he accepted the verdict of the jury on the evidence presented during the trial. This position taken by the father makes it very difficult to accept his evidence in its entirety and I am unable to do so.

The Mother

The mother made many concessions. She was quite responsive to questions. On numerous occasions I had the impression that she was struggling to articulate what she was thinking in response to the question.
But I had the clear sense that she was a truthful witness.

Ms Baker

Ms Baker is the boys’ paternal aunt. Ms Baker appeared to have some difficulty in listening to the questions during cross-examination. Numerous of her answers were not responsive to the question. To her credit, she did make some concessions.
When Ms Baker was reminded of certain entries on her Facebook page, which on one interpretation could be regarded as being highly critical of the mother, Ms Baker hastened to say that wasn’t the case. Ms Baker revealed that she had been adopted by Ms K Frost and that the relevant entries represented a ventilation of frustration and disappointment directed towards her biological mother. I accept this explanation and that these Facebook entries were not directed at the mother.
Generally I accept the evidence of Ms Baker.

Ms K Frost

Ms K Frost is the father’s mother. She is 88 years of age.
It took a little time for Ms K Frost to settle into the role of witness. Upon settling down, Ms K Frost was articulate and responsive in her answers to questions. I found her evidence to be most helpful.
I regard Ms K Frost as a witness of the truth.

Ms J

Ms J is the family consultant who has prepared a Children & Parents Issues Assessment dated 27 May 2016 and a family report dated 13 March 2017.
Ms J gave her evidence in a professional manner. When I refer to her evidence I accept that evidence.

Child sexual assault

The mother said in her affidavit that in 2013 she was babysitting her friend’s two daughters aged nine and seven years. The mother noticed that when the father arrived home he smelt of beer and had bottles of beer in his bag. He continued to drink alcohol.
After the mother had returned home from taking the boys to sport her friend’s two daughters were delivered to the parents’ home. The mother spent the evening preparing the meal and tidying the kitchen area. The mother thought that the father was in his room where she said he would usually go to drink alcohol.
During the evening the girls came to the mother and informed her that the father had touched them in a sexually inappropriate way. The mother took the girls home immediately and informed their parents what they had said to her. After speaking with her sister, who is a social worker and a nurse, the mother rang the Child Sexual Abuse Hotline.
The police attended the home the following day and removed the father. The mother attended a police interview that day. The mother believed the children at all times regarding the allegations they made against the father. The mother decided that day that her marriage was over.
The father was charged with child sexual offences.
The parties’ child, B, was interviewed by police and became a witness in the police case. He was not called in the trial.
The father was remanded in custody and released on bail by the Supreme Court of New South Wales in 2013.
The mother arranged counselling for B through school and at Town O Hospital.
The father is serving sentences and will be eligible for parole in late 2019.

Standing of paternal aunt to make an application

There was an issue about whether Ms Baker, the boys’ paternal aunt had standing to make an application for parenting orders. It was submitted on behalf of the mother that she did not have standing to make such an application. This is on the basis, it is submitted, that she is not a person concerned with the care, welfare and development of the children. It is submitted that Ms Baker had no prior involvement with the care, welfare and development of the children and being not otherwise concerned with the children’s care, welfare or development has no standing to bring her application.
Section 65C of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
In KAM v MJR (Intervenor) (1999) FLC 92-847 Burr J held (at 85,929) that the words in s 65C(c) of the Act “person concerned with the care, welfare or development of the child” imposes a threshold test, this being a test to be determined on the individual facts and circumstances of each case.
It is submitted that Ms Baker has never cared for the children apart from when they have been left with her or the paternal grandmother, probably on no more than two or three occasions. It is submitted that the aunt has never been involved in the children’s health, education or any other aspect of their day to day or long term care and development.
I note that Ms Baker has known B since he was a few months old. At this time, Christmas 2004, she had travelled to Town P where the parents were living, with her husband and their son, C, as well as the paternal grandmother. They stayed at Town P for approximately a week and saw the family every day.
Ms Baker has known C since he was a few weeks old. At this time the parents visited the grandmother and the aunt’s family at Town T.
Over the years up until October 2012, which was the last time Ms Baker saw the children, she would spend time with them when the parents took the children to spend a week or so with the paternal grandmother, initially at Town M and later at Town T when the grandmother moved to live there in 2006. The boys know Ms Baker’ son, Q, their cousin, and they have enjoyed playing with him.
At Easter 2006 the parents and B stayed with Ms Baker and her husband in their home for at least a week.
The pattern of Ms Baker’ involvement with the boys has been a couple of times per year over the relevant years up until 2012. She also had a few telephone conversations with them over the years but those were infrequent because the boys were young.
In my view, there is no question that the boys have had a relationship with the aunt over their lives until the parents separated. But it is not a close relationship. C appeared to enjoy seeing Ms Baker with his paternal grandmother during the interview by the family consultant.
I do not accept that the words in s 65C(c) “person concerned with the care, welfare or development of the child” ought to be interpreted in the somewhat narrow manner submitted on behalf of the mother. In my view, in a broad sense, Ms Baker is a person concerned with the care, welfare or development of the boys as their aunt. She knows them and has been involved with them and vice versa. They have been in one another’s company regularly, but not frequently, over the years. They have a relationship although not a close one.
In all the circumstances, in my view, Ms Baker is able to satisfy the requirements in s 65C(c) of the Act.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the 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; and
·Protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
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 (s 60CA and s 65AA). That this is so also in the case of a person interested in the care, welfare or development of a child such as Ms Baker in this case has been made clear by numerous authorities, including Valentine & Lacerra and Anor (2013) FLC 93-539 and Aldridge & Keaton (2009) FLC 93-421. In the latter case, at [75] and [79], the Full Court said as follows:
75. While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child's best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
· the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
· the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
· that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child's best interests.
In determining what is in a child’s best interests, s 60CC of the Act sets out specific criteria which must be considered.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Subsection 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Subsection 61DA(2) of the Act provides in effect that 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 abuse of the child or another child member of the parent’s family or if they have engaged in family violence.
Subsection 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, the mother seeks an order that she have the sole parental responsibility for the children. The father opposes any such order and, as also indicated above, seeks to retain at least some parental responsibility for the children.
As I have said, the father is in prison having been found by a jury to be guilty of serious sexual crimes against two young girls who were guests in his home at the time. As such, he was in a position of authority and responsibility in relation to the girls. Instead of protecting them, on the basis of the jury’s finding, he violated them. In my view, there are not many more serious departures from proper adult behaviour in relation to children than what the father has been found to have done. And this finding was on the criminal standard of proof, namely, beyond reasonable doubt.
Notwithstanding the father’s abuse of the young girls, in my view, the presumption of equal shared parental responsibility applies. This is because the exception in s 61DA(1) applies only if the child the subject of the abuse is a child of the abusive parent or is a child who at the time was a member of the parent’s family. The two young girls who were abused by the father were friends of the father’s family not members of it.
For the following reasons, however, in my view, the presumption is rebutted in this case on the basis that it would not be in the interests of the children for the mother and father to have equal shared parental responsibility for them.
The reality of the father’s incarceration is that he is not directly available to his children in any sense. He is unable to observe them going about their lives, let alone participate as parent in their lives. He will not be taking responsibility for them, assisting them, guiding them or providing good modelling to assist in their proper development. He is unable to provide for them physically, emotionally or financially.
On the other hand, since separation, the mother has found herself to have been thrust into the position where out of necessity arising from the consequences of the father’s behaviour, she has had to make all parenting decisions in relation to the children. She has had to do this against a background involving shock at the breakdown of her marriage and what she properly regards as occurring in shameful circumstances. She has a sense of guilt that she let down the girls, their parents and the boys in not keeping closer watch on the father in circumstances where she knew he had a serious problem with alcohol. She has had the ongoing very challenging demands of sole parenting of the boys who were bewildered and, to an extent, traumatised by the breakdown of their previously settled family life and the behaviour of their father.
There has been no communication between the parents since separation. There appears to be a sense of frustration about this on the part of each of them. The mother would have liked the father to have endeavoured to explain his behaviour on the night of the offences to her. He has not. On the other hand, the father would have liked the mother to have involved him in decisions about the boys. But the mother made it clear that any prospect of speaking with the father was too painful for her. She said that she was exhausted by all the circumstances confronting her as sole parent to the boys and that just thinking about the father caused her the pain of being confronted with the awful reality of what had occurred.

There was some criticism of the mother’s parenting in the aftermath of the events which brought about separation. I shall refer to this below. But in my view the mother has behaved generally in a responsible and admirable manner as the boys’ only available parent in extremely difficult and challenging circumstances.
As I have said, there has been no communication between the parents since separation and this is unlikely to change. The father cannot be directly available to the children. There has been no contact between the boys and the father for more than five years, brought about by the father’s incarceration and also B’ view that he does not wish to have contact with the father. The mother has been parenting the children very well.
In all these difficult circumstances, in my view, the best interests of these children will be served by their mother having sole parental responsibility for making decisions about them.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in subsections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in subsection 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations I shall return to discuss those below.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Subsection 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

The mother described B as a sensitive and mature child. He was the school captain in 2016.
The family consultant said that B is “a very impressive boy” and “a bright boy who is mature for his age”. She said that B would like the adults to resolve their dispute rather than have the Court impose orders to do this.
B is in a very difficult position because he was in the room with the young girls at the time the offences were perpetrated. It is unclear exactly what he saw. But he appears to regard himself as having some responsibility, or perhaps guilt, that he has been to some extent involved in the circumstances which have resulted in his father becoming incarcerated.
The family consultant said that B said that he would not be comfortable visiting his father because first “it is a gaol” and second because he did not want to see his father. She said that B was concerned that his father would not accept responsibility for what he did to the girls.
B confirmed to the family consultant that he did not wish to read or respond to his father’s letters. He said that they made him feel sad.
B informed the family consultant that he really did not want to see his grandmother and aunt. He also has a sense that the grandmother and aunt do not respect him and the mother. But the family consultant thought that he might be amenable to seeing them if something could be sorted out between the adults about this. The family consultant said that B remains protective of his mother. He said that he would not feel comfortable about seeing them unless his mother felt comfortable.
The family consultant said that B said that if he was to spend time with the grandmother and aunt it would possibly be better if that time was supervised.
Having noted these primary considerations at this point I shall return to discuss these below.
C agreed to participate in an interview with his grandmother and aunt although the family consultant said that he was somewhat cautious about seeing them without B being present. The family consultant said that at interview C appeared to be comfortable in their presence and appeared to enjoy their attention. The interview concluded with C giving them a hug goodbye.
The family consultant said that C was open to the possibility of seeing his father in the prison.

Subsection 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

Relationships between the children and their father

There is no issue that prior to separation the children enjoyed close and loving relationships with the father.
The father has not conceded that he actually perpetrated the offences of which he has been convicted. This continues to have a very serious effect on his relationships with the mother, with his own mother, with his sister, Ms Baker, and particularly with B.
The family consultant said that the father, during his interview by her for the report, professed his innocence. But she said that at the (earlier) interview for the Children & Parents Issues Assessment the father said that he accepted the jury’s verdict.
This matter of the father protesting his innocence appears to be a significant matter standing in the way of B being able to continue to have a relationship with his father. The family consultant said that B informed her that his father “did the wrong thing and he is not admitting it” and that he was “dismissing what I am saying and what everyone else is saying”.
The family consultant said that B said that he is not really feeling “good at all” about his relationship with his father. She had some discussion with him about the complex emotions associated with having mixed feelings about loved ones. The family consultant said that B confirmed that he still “sort of” loves his father.

Relationships between B, his grandmother and his aunt

Before the relevant events, B had a reasonably loving relationship with his grandmother and aunt. His relationships with them are now strained. He does not wish to see them and considers them to have behaved in a manner which is disrespectful to the mother and to him. He appears to consider that whereas they should have supported the mother they regard her to have been responsible for the father’s situation because she made the complaint to the girls’ parents and to the police.
B informed his mother that he did not wish to see the grandmother and aunt because they could not accept that the father had committed the offences of which he has been convicted. He has the view that they trust his father more than they trust his mother.

Relationships between mother, grandmother and aunt

There is no question that prior to the tragic events of 2013 the mother and grandmother enjoyed a close and supportive relationship. I have referred above to the regular visits made between the family homes. Even though the grandmother lived at Town T, the parents and children would visit her or she would visit them usually two or three times each year for approximately a week each visit. On most occasions when the family were visiting the grandmother in town T the aunt and her family would either visit or the parents and children would have a meal at their home.
These relationships continued to be supportive for a short while after the father was charged with the offences. But the mother found certain developments challenging.
The father commenced these proceedings in the Federal Circuit Court in August 2013 during the period between his initial incarceration and commencement of the trial when he was living with his mother at Town T on bail. The last time the children had seen the grandmother was in September or October 2012 when they were seven years and four years of age. It appears that the last time the children saw the aunt was in October 2012.
The children had a telephone conversation with the grandmother in approximately mid-2013.
The grandmother and aunt have felt a sense of frustration that they have not been able to communicate with, or spend time with, the children since the father was charged with the offences. The mother regards them to have been “very aggressive and pushy in their approach to [her]”.
In October 2014 the mother received a text message from the aunt who was writing on behalf of the grandmother. The text message pointed out that two years had passed since the grandmother had seen the boys and she suggested that the mother put them on an aircraft to Town T Airport so that she could meet them at the other end and spend time over a weekend. This text message arrived the day after the mother and children had returned from Japan. The mother informed the grandmother that she thought the boys were too young to fly by themselves to Town T. She informed the aunt and grandmother that she would be more than happy to pick the grandmother up from the airport if she wished to travel down to see the family.
The mother indicated that she did not want the boys to travel to Town T in circumstances where the grandmother had spent limited time with them over the years and in the context of the boys having been what she described as “traumatised by the events that had occurred”. The mother also informed the Court that she did not trust the grandmother and aunt.
The aunt subsequently replied saying that the reply was on behalf of the grandmother. The text indicated that the grandmother did not accept that the boys were too young to travel in the manner suggested. The text also asked how the mother could feel comfortable having the grandmother staying in her home after what the mother had written in her affidavit about the grandmother. The text message went on to indicate that in Australia there are grandparents’ rights at law and informed the mother that she would be pursuing such rights through this Court. The mother informed the Court that she regarded this reply as being somewhat dismissive and threatening.
In late 2014 the mother received an email from the aunt one week after the father had been sentenced to imprisonment. The aunt informed the mother that it was not fair that she was keeping the boys from their father and from seeing her and the grandmother.
In December 2014 the mother was invited to attend mediation with the aunt which she agreed to participate in and the mother undertook the intake processes. The mediation process was discontinued by the mediator on the basis that she considered it would not be appropriate to continue.
Unfortunately things took a turn for the worse in December 2014 so far as the relationships between these parties were concerned. The aunt had requested the police to make a welfare check on the children. On this occasion the mother was able to satisfy the police by telephone that there was no need for them to do a home visit. But the mother found this to be upsetting, unsettling and intrusive. She said that she was annoyed, surprised and shocked by the aunt’s behaviour in this regard.
On the other hand, the aunt said that she was worried about the welfare of the children in circumstances where she had endeavoured to make contact with the mother by text message but did not receive a response. She said she did not know what else to do. She said that there had been severe storms in the mother’s area and she and the grandmother were worried about the family’s welfare.
Some months later in April 2015 two police officers in police uniform arrived at the mother’s home. The officers informed the mother that the grandmother had asked them to check on the welfare of the children. The mother said that she felt embarrassed and harassed by this, especially in circumstances where the children had friends at home at the time.
Several months later again, in late August 2015, the mother was awakened by two police officers knocking on her door and shining torches at approximately 11.00 pm. B also awoke and was scared. The police informed the mother that they had been requested by the grandmother to undertake a welfare check. The mother said that B was upset and angry and asked “Why do they keep doing this?” The mother said that the following day B recommenced counselling which he had not required for the previous six months or so. The mother said that she was very distressed by the visit.
The mother said that at no time previously had the grandmother or aunt questioned her parenting ability and commitment to providing proper care for the children. The mother said that she feels appalled and harassed by the aunt and grandmother. She said that the attendances by police at her home have been confronting, humiliating, frightening and upsetting, especially in the context of the police having been very much involved with the family during the course of the father’s criminal proceedings.
The mother said that she did not want to leave the children, who have been through so much, with the grandmother or the aunt whom, as I have said, she finds to have been aggressive, condescending and hurtful towards her. She said that they have been undermining her parenting. She said that the children hardly know them.

Subsection 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

Since separation all contact between the parents has ceased. As indicated above, the mother has made all decisions concerning the parenting of the children and they have spent no time with their father, grandmother or aunt.
In all the difficult circumstances following the father’s arrest, he has had no opportunity to participate in making decisions about the children.

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

For a long time the father did not pay any child support for the boys. But I understand that approximately 15 months after separation the Child Support Agency deducted arrears of child support from an account which the father had established. The father then paid child support in accordance with the assessment until the completion of the criminal proceedings at which time he was incarcerated. This was in July 2014. Since then the father has not paid any child support.

Subsection 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 either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

The tragedy of the father’s imprisonment for these boys is that they have no current relationship with their father. As indicated above, B is angry and frustrated with his father because he regards his father as not taking responsibility for the offences of which he has been found guilty. B appears to regard this as being most disrespectful to his mother and, as indicated above, B is very protective of his mother.
It is clear from the mother’s evidence that the separation of the father from the children, their knowledge that he is in prison and the circumstances of his conviction for offences against their friends have made things very difficult for the children. She said they have been affected emotionally and psychologically. I accept this.
In relation to the boys’ separation from their grandmother and aunt, I have the view that prior to the parents’ separation the boys had a good relationship with both their grandmother and, to a lesser extent, with their aunt. They have not had any contact with either now for some years, the effect being that they do not have a close relationship currently with either.

Subsection 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

The father’s incarceration has presented an enormous practical difficulty for the boys. The mother is strongly opposed to having to take them to visit the father at the prison which she finds completely overwhelming and unacceptable. Clearly the father’s incarceration is affecting, in a substantial way, maintenance by the children of a relationship with their father.

Subsection 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

The Mother

The mother is the children’s primary parent. It is common ground that notwithstanding the incarceration of the father and the challenging circumstances this has created for the boys, they are doing very well. B was school captain in 2016. He is a talented young musician and has commenced his secondary education H School.
The father said that the mother is a good mother as did his mother, Mrs Frost.
There was some criticism of the mother by counsel for the father. In summary, this was that over the last four years since the father was initially incarcerated she has not provided an opportunity for the boys to visit him, that she has not provided any document which would suggest how the boys are going at school or what their state of health is, and notwithstanding that one of the boys had a brief hospitalisation, the mother did not report this to the father. When an explanation was sought by the father’s counsel for the mother’s behaviour in this regard she said that it was because there was no communication between her and the father and from past experience she thought that he did not take responsibility for his actions.
When similar questions were raised at an earlier stage of cross-examination seeking explanation for why the mother had not sent any information about the boys to the father, she responded that it was not a priority at that time in her life. She indicated that if she did this she felt she would have to start talking about how she felt, the trauma and how she felt about the father. She said that she did not choose not to send information but she just did not think to do it.
The sense I had of this was that the mother was struggling to manage particularly the psychological and emotional dynamics in the context of the huge family upheaval which the father’s behaviour had brought about. The mother had chosen as the priority to do all those things necessary to prioritise the parenting task. This was attending to the boys’ day to day needs. I infer that for the mother to think anything about the father would awaken complex issues, how she felt about her relationship with the father and emotional matters which she preferred not to have to spend energy on because she needed to concentrate on parenting the boys in the difficult circumstances which had arisen for her and them.
The family consultant said that in her view, although there were some things which the mother could have done better, the mother has “done a pretty good job” in difficult and complex circumstances.

The Father

The father has a long-standing problem of alcohol abuse. He has attended rehabilitation programs for this condition at the Y Service in 2009, as indicated above, and subsequently in 2011 at the Z Service.
He was convicted of a mid-range PCA offence in 2002 and did not inform the mother about this.
Prior to the birth of B there was an argument between the parents about the father’s drinking. The mother attended the police but she informed them that she did not wish her complaint to be formally acted upon as she was concerned about the effect this might have on his employment.

The father also sought an order that the mother ensure that there is displayed in the children’s bedroom a photograph of the father. I do not propose to make such an order. The family consultant said that there would be an artificiality about this and thought it could be counter-productive. The mother said that she would find this to be distressing and I accept this in the difficult and complex circumstances of what has occurred. The mother said that she has maintained photo albums and photo books for the children which include photos of the father and them all as a family. She said that the children have looked through them since separation.
The remaining issue is that the father seeks an order that prior to any international travel by the children the mother lodge $10,000 in her solicitor’s trust account to secure the children’s return to Australia. The father is concerned that given the mother’s family reside in Japan and the children are also Japanese citizens the mother might abduct the children to Japan.
The mother has assured the Court that she has no intention of relocating the children’s residence to Japan. She said that she and the children are well settled in Australia, that she has her job at the University and many friends in her area, that the children are doing well at their schools and she would not wish to disrupt their lives in Australia. The mother also said that she is in some financial difficulty having spent most of the approximately $50,000 she had remaining from the proceeds of sale of the former matrimonial home, much of it on legal costs in these proceedings. She said she would find it difficult to deposit $10,000 as sought by the father.
I accept the mother’s assurances about her life in Australia and that she has no intention of relocating to Japan. I also note that Japan is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. I am not persuaded that it is in the children’s interests to require such a surety.

I certify that the preceding two hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 September 2018.

Associate:

Date: 13 September 2018

[2018] FamCA 727

13 September 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Standing

Remedies

Procedural Fairness