Gleeson and Audley

FAMILY COURT OF AUSTRALIA

GLEESON & AUDLEY

[2020] FamCA 662

FAMILY LAW – CHIILDREN – Best interests of the children – Where proceedings initially related to the care of eight children but two children reached the age of 18 by the time of final hearing – Where the mother seeks sole parental responsibility for children and that they live with her and spend no time with father – Where up until final hearing mother also sought an order to relocate with children to the United States – Where throughout proceedings mother maintained serious allegations of family violence perpetrated by the father and paternal grandparents towards her and the children – Where father vehemently denied allegations of family violence levelled at him and opposed mother’s relocation order – Where father alleged that since separation mother engaged in conduct to alienate him from the children – Where at various family consultant assessments the children expressed strong negative views about the father and expressed a desire to move to the United States and have no contact with the father – Where family consultant gave evidence that children’s reports of father’s abusive behaviour may have been shaped by both lived experience and influence from mother, as well as coloured by their desire to relocate overseas with the mother – Where at final hearing parties ultimately sought competing live-with orders and mother proposed as an alternative to positive orders for no time with the father that the children spend time with him in accordance with their wishes upon reaching the age of 16 if family violence not found – Where evidence corroborates father perpetrated family violence against mother and children but not to the extent alleged by mother – Where it is in children’s best interests to make orders largely in terms sought by the mother in the alternative, given the current state of the children’s relationship with each parent and the family consultant’s evidence of the deleterious effects and practical difficulties of making orders as sought by the father in light of the children’s strongly-held views.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA , 60CC, 61B, 61C, 61DA, 65D, 65DAC

G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT:

Mr Gleeson

RESPONDENT:

Ms Audley

INDEPENDENT CHILDREN’S LAWYER:

Walkden Law and Mediation

FILE NUMBER:

PAC

2977

2017

DATE DELIVERED:

12 August 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

21 - 24 October 2019, 28 - 30 October 2019, 16 December 2019, 16 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strik

SOLICITOR FOR THE APPLICANT:

David Perry Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Conte-Mills

SOLICITOR FOR THE RESPONDENT:

Phillip A Wilkins & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Walkden Law and Mediation

Orders

All previous orders are discharged.
The mother have sole parental responsibility for the children (“the children”):
a.Ms B, born … 2001;
b.V, born … 2003;
c.W, born … 2007;
d.X, born … 2009;
e.Y, born … 2011; and
f.Z, born … 2012.
The children live with the mother.
The children spend time with the father in accordance with their wishes upon each of them attaining the age of 16 years.
The mother is restrained from impeding the children from spending time with the father if they express a clear wish to do so upon turning 16 years of age.

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 Gleeson & Audley 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 PARRAMATTA

FILE NUMBER: PAC 2977 of 2017

Mr Gleeson

Applicant

And

Ms Audley

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the care of six of the parties’ children: two sons aged 14 and eight, and four daughters aged between 16 and seven (“the children”). The parties were also in dispute as to the parenting arrangements for another daughter and son but both had reached the age of 18 by the time of the final hearing. The parties also have two older sons in their 20’s (“the two adult sons”) who for some years had been estranged from the family.
Since around the time the father commenced proceedings in 2017 he has not spent any time with the children and has remained living with his parents (“the paternal grandparents”). He seeks orders that the children live with him and spend significant and substantial time with the mother and that the parties hold equal shared parental responsibility for the children.
Throughout the proceedings the mother has maintained that the father poses an unacceptable risk of harm to the children on the basis of serious family violence allegedly perpetrated by him, and other impairments to his parenting capacity relating to his substance abuse and his mental health. She proposes that the children continue to live with her and spend no time with the father. If I do not find that the father poses an acceptable risk of harm to the children, she proposes that once they have turned the age of 16 the children spend time with him as they wish.
Up until the final hearing the mother also expressed a desire to relocate with the children and her new partner (with whom she now shares two infant children) to the United States of America (“United States”). Although she no longer seeks orders to this effect, she seeks an order that the children’s names be removed from the Family Law Watchlist and orders permitting her to travel overseas with the children.
Members of the paternal family also had an interest in the parenting dispute as they were previously extensively involved in the care of the children. They also have not spent time with the children from around the time the father’s contact with the children ceased. While these paternal family members did not seek orders in the proceedings they indicated at final hearing that they would support the father in the care of the children and provide them with accommodation should orders be made as sought by the father.
The Independent Children’s Lawyer (“the ICL”) supports the mother’s position and proposed at final hearing that she have sole parental responsibility for the children and that they live with her. The ICL is of the view that weight should be attached to the children’s strongly-held views about the father that indicate their relationships with him are extremely fractured which presents insurmountable difficulties in facilitating any time with him.
The father also initiated property proceedings but the dispute was bifurcated due to an ongoing civil action relating his compensation claim which the parties agree must be resolved first.
The question for me to determine is which of the proposed parenting arrangements is proper having regard to the best interests of the children as the paramount consideration.

Background

The mother who is 38 and the father who is 41 met and began a relationship when they were teenagers. They began living together when they were very young and had their first child, a son who is now 23 (“the oldest son”) in 1996 when the mother was 15. Their second child a son now aged 22 (“the second son”) was born in the following year.
The parties married in … 1999 when the mother was 18 and the father 21.
The parties had eight more children over the course of their 20 year marriage.
In around 2001 to 2002 when the parties had four children they lived in the home of the paternal grandparents for about two years.
Later, in about 2003 the family again lived with the paternal grandparents for about 12 months.
During the periods of time that the family lived in the home of the paternal grandparents the father was not employed and was engaged to some extent in the care of the children. The parties dispute the extent of the father’s involvement in parenting but agree that the mother did not work on a full-time basis throughout the relationship and was the children’s primary carer.
From around 2003 the mother alleges that the father was physically and verbally abusive towards her and on various occasions towards the children. This is a matter of significant dispute in the proceedings and central to the various proposals, to which I will return.
Over the years of the relationship, reports of excessive physical discipline to the two adult sons were made to the Department formerly known as Family and Community Services (“the Department”).
Numerous other reports were received by the Department between early 2004 and mid 2007 concerning the children’s exposure to domestic violence. Other reports made during this period raised concerns about the family’s living conditions and neglect of the children’s basic needs. One report noted that the children presented as “dirty and unkempt” and that the house was “filthy” and “full of cigarette smoke”.
These reports include occasions in 2005 when Departmental officers visited the family home. The parties initially presented as “extremely hostile to caseworkers” and on some occasions refused them entry into their home. In the course of a safety assessment conducted by the Department at this time both parents conceded that they had used physical discipline on the children, particularly towards the oldest son. They were referred to various support services to address their primary concern being difficulties in the management of this child’s behaviour. While both parents acknowledged that alternative disciplinary strategies were more appropriate, it is reported that neither of them were willing to give verbal undertakings to cease using physical discipline.
The parties’ seventh child, another daughter was born in … 2007.
It is the mother’s case that the father continued to physically abuse she and the children as their family grew over the years. This alleged abuse was not reported to police though at times police did attend at the home.
By about 2010 the parents’ difficulties in managing the oldest son who was then about 14 had escalated. It appears that this son physically and verbally abused and threatened the mother, and harmed himself in the presence of the younger children. An Apprehended Violence Order (“AVO”) was obtained for the protection of the family which restrained this son from living in the family home. As a result, the oldest son became homeless for some time. The Department continued to have involvement with this child who lived from time to time in various forms of accommodation including a youth refuge and various placements as directed by Departmental officers. In about 2013 he appears to have obtained independent accommodation with the assistance of the Department.
The parties’ second son had also been involved with the Department after a report was made in 2012 that he had sexually abused another child from his school. It appears he was not charged and no further action was taken in relation to the matter.
In 2014 the father stopped working following a workplace accident in which he received a serious injury. As a result of the injury, the father was prescribed medication which the mother claims he misused, developing a “severe” addiction.
In early 2015 the parties’ second son left the family home after he was subjected to verbal abuse by the mother. He claims the mother referred to him as “just like [the oldest son]” and “junkie scum” (sic) after reports were made that he was using drugs at school. He was also homeless for a period of time before securing employment and accommodation.
On 28 December 2016 the mother travelled to the United States for two and a half weeks to visit a male friend she had met online. She told the father that the purpose of this trip was to merely visit the country with some female friends. During the mother’s overseas stay in the United States the children were left in the father’s care.
When the mother returned to Australia in January 2017 events took place that led to the parties’ separation, although differing accounts are given. According to the father the mother told him that their marriage was over and that she wanted to be with the male friend from the United States. He claims that she demanded that he leave the home and threatened to call police if he did not. The mother claims that the father demanded that she leave the home and then assaulted her.
There is no dispute that the mother contacted police who then applied for a provisional AVO against the father and charged him with assault. A final AVO protecting the mother from the father was later made in June 2017 effective for 12 months. The father was also placed on a good behaviour bond without conviction with respect to the assault charge.
The father did not return to the family home after January 2017 and has since lived with the paternal grandparents. It is also understood that from this time the father has had no contact with three of the parties’ children now aged 18, 17 and 15.
For some days following separation and despite the AVO restraining him from contact with the mother, the father continued to send messages to the mother attempting to reconcile with her. In some messages he made threats of suicide and attached graphic images which depicted his cut and bleeding wrists. Not long after these messages were sent the father also contacted the parties’ oldest daughter (no longer subject to these proceedings) via social media in an attempt to remain in contact with her and threatened that if she refused to talk to him “what will happen will be her fault”.
The next month the mother and the children commenced child and adolescent trauma counselling organised by a non-government agency.
Sometime shortly after separation the mother returned to the United States for about two weeks and left the children in the care of the parties’ oldest son who had briefly returned to live in her household. By this stage the mother had formed an intimate relationship with her male friend from the United States (‘the mother’s partner”).
In March 2017 the mother’s partner arrived in Australia and began living with the mother and the children in the family home after he was granted a tourist visa valid for 12 months. According to the father, the mother’s partner then sent a series of abusive messages to him via social media, demanding that the father stay away from the family.
The father spent time with some of the younger children on three further occasions in April 2017 before the mother stopped all his physical contact with them. On one of these occasions a brief conversation took place between the parties in which the mother expressed a desire to relocate to the United States with the children.
Around this time the children also stopped their contact with the extended paternal family, although the paternal grandparents made further attempts to communicate with them through text message.
The father continued to communicate with the children electronically until May 2017 when he claims that the mother stopped all their communication with him. He deposes that during his last telephone conversations some of the children told him of the mother’s plans to relocate to the United States and said that they did not wish to go.
In early May 2017 the father contacted the mother by way of a letter sent from his then solicitors proposing parenting arrangements for the children. A few days later the mother advised the father’s solicitors that she did not agree to the father’s proposal and that correspondence would be received from a solicitor instructed to act on her behalf. No correspondence was ever received by the father or his lawyer.
By this stage both of the two adult sons had turned 18, were living independently and had minimal contact with either parent as well as their siblings and the paternal family. The oldest son finally left following an altercation with the mother in mid-2017 and says he was also concerned about the mother’s parenting as well as her partner’s drug use and poor parenting capacity.
Sometime after the parties’ second son turned 18, he contacted the mother and spent time with her on one occasion. Following this meeting he refused to re-establish his relationship with her.
In June 2017 the father then commenced proceedings in the Federal Circuit Court seeking orders that the parties hold equal shared parental responsibility for the children and that the eight children who were then under 18 live with him and spend time with the mother each alternate weekend and for half of each school holiday. A Family Law Watchlist order was also sought along with orders relating to property.
The mother in her Response filed in July 2017 sought orders that she hold sole parental responsibility for the children and that they live with her and spend no time with the father on the basis of his alleged history of family violence and child abuse. She also sought orders restraining the father from approaching the children and permitting her to travel with the children outside of Australia.
On the same day the proceedings were transferred to this Court due to their complexity and an interim order was made placing the children on the Family Law Watchlist.
In September 2017 an ICL was appointed to the proceedings and the parties were ordered to attend upon a family consultant in the course of the Child Responsive Program.
On 10 October 2017 the family met with the family consultant. At the time of the assessment the children had spent no time with the father since separation and had continued to live with the mother and her partner. The mother at the time was pregnant with her first child with her partner and continued to propose that the children move to live in the United States with she and her partner.
In the course of their interviews with the family consultant both parties raised issues relating to family violence. In her Memorandum to Court dated 31 October 2017 (‘the 2017 Memorandum”) the family consultant evaluated that the father’s accounts regarding the issue of family violence in the parties’ relationship “was more suggestive of poorly managed conflict” while the mother’s description was “consistent with coercive and controlling violence”. The family consultant also noted that there was a “commonality in the children’s and [the mother]’s accounts of [the father]’s behaviour towards the children and [the mother]”, but that it was unclear whether these accounts represented “lived experiences or alignment with [the mother]”. The family consultant recommended that more understanding of the family violence issues was needed to determine whether it is in the children’s best interest to maintain their relationship with the father, particularly in the event they were to be permitted to relocate with the mother to the United States.
In … 2018 the mother gave birth to her eleventh child (“the children’s first half-sister”).
Despite having no contact with the children, the father and the paternal grandparents continued to send birthday cards some of which were returned or ignored by them according to the mother.
The family was assessed by the family consultant for the purposes of a Family Report on separate occasions in June 2018. At the time of the assessment no orders were in place in relation to parenting arrangements for the children. They remained in a household shared with the mother, her partner and their newborn daughter, and the mother proposed orders consistent with those sought in her Response. The father continued to live with the paternal grandparents and told the family consultant that he could not accommodate all the children for overnight stays but can accommodate “some of them”. He proposed that the children live with the mother and spend time with him each alternate weekend and half of the school holidays.

The observations made by the family consultant in her Report dated 31 August 2018 (“the 2018 Family Report”) were similar to those made in the 2017 Memorandum. In summary, the family consultant noted that the children appeared to have established and positive relationships with the mother and warm relationships with her partner, and “an extremely strained relationship” with the father and at that stage still did not want to spend time with him. It appeared from this Report that the significant dispute between the parties and the ambit of potential risk to the children revolved mainly around family violence allegedly perpetrated by the father. Other issues raised in the assessment concerned the father’s alleged abuse of prescription medication and each party’s mental health. It was also observed that given the parental conflict between the parties, it would be difficult for the mother to facilitate a relationship between the father and the children and for the parties to share parental responsibility. The family consultant at that time recommended that orders be made for the mother to have sole parental responsibility and for the children to live with her, and that should the Court find that the father perpetrated coercive and controlling violence and/or child abuse, the children spend no time with him.
In mid-2018 the mother began attending counselling sessions with a psychologist for a claimed diagnosis of post-traumatic stress disorder.
The parties attempted Family Dispute Resolution sometime in late 2018 but were not successful. By this time the oldest of the parties’ daughters had reached the age of 18.
At a court event before a Registrar on 4 December 2018 the parties and the ICL urged that the parenting matter be dealt with by way of final trial. The proceedings were subsequently bifurcated and trial directions made on 1 February 2019 with respect to parenting proceedings.
Although the circumstances in which the two adult sons reconnected with the father are unclear, by April 2019 both sons had filed affidavits in support of the father’s application in which they each denied the allegations made by the mother against him.
On 5 April 2019 the mother filed an urgent Application in a Case seeking orders that she be permitted to travel with the children to the United States for four weeks in July that year (corresponding to the children’s school holiday period), and that she be permitted to obtain passports for them without the father’s consent. At the time, the children remained on the Family Law Watchlist pursuant to orders made in July 2017.
The father opposed the mother’s application to take the children to the United States. It was his concern that she had sufficient financial resources to remain living there with the children and not return to Australia, and that her application was an attempt to continue to alienate the children from him.
At a court event in June 2019 the mother withdrew her application for travel overseas. The Court also noted that it may be appropriate for the children to engage in family therapy with an appropriately qualified mental health practitioner, with a view to improving their relationship with the father if possible. No orders were made to this effect and it does not appear that family therapy took place as suggested by the Court.
The mother claims that the decision to refuse the children overseas travel caused them significant emotional distress and low moods. By this time, the children had ceased attending trauma counselling. Between August and September 2019 the mother then engaged three of the older children in counselling sessions with different psychologists under a mental health program organised by the family’s general practitioner.

The hearing

The final hearing of the parenting matter commenced in October 2019. At this point in time, the mother was heavily pregnant with her twelfth child (the second of her new relationship).
Due to health complications suffered by the mother that required she attend hospital, the hearing on the second day was cut short at midday but resumed a couple of days later.
After cross-examination of the mother was completed her partner and the parties’ two adult sons who had filed affidavits in the proceedings were cross-examined together with the father, members of the paternal family, a family friend and finally the family consultant.
Of note, in the course of the final hearing the mother’s position changed in that she no longer sought orders that she be permitted to change the children’s residence to the United States and no longer proposed moving there herself. It had also come to light under cross-examination that the extended paternal family, particularly the paternal grandparents had played a significant role in the children’s lives prior to separation and sought to do so in the future, going so far as to offer that the children live in their home under some possible future parenting arrangement.
The father’s proposal had also changed since he had met with the family consultant for the purposes of the Family Report. At that time he had proposed that the parties equally share parental responsibility and that the children live with the mother and spend time with him each alternate weekend and half the holidays. He remained living with the paternal grandparents and told the family consultant that he could only accommodate some of the children staying overnight with him rather than all of them at one time. He was also adamant that it was not in their best interests to move to the United States.

The Family Consultant’s evidence

During the assessment interviews for the 2018 Family Report the children had been observed with the mother, her partner and their half-sibling, but were not observed with the father “due to their extreme reluctance”. Despite the family consultant encouraging the children to participate in such an observation, they were all adamant they did not want to see the father and it was decided that it could not be forced.
It had been the mother’s position that it was in the children’s best interests for her to have sole parental responsibility for them and that they live with her in the United States and spend no time with the father as they had flourished since the parties’ separation and she had no confidence that the father had the capacity to change his abusive behaviour. In opposition to the mother’s proposal to relocate with the children, the father said that the children were blinded by the excitement of the idea “of moving to the United States” and that he would agree for them to visit the United States for a holiday “only if there were a legal means of ensuring that they return”.
When the paternal grandparents were interviewed they told the family consultant that they were “there to help not hinder”. The paternal grandmother described her relationship with the mother as “friendly” and recalled the periods of time the family lived with them during which time the paternal grandparents assisted the parties in the care of the children.
Overall ongoing risk factors relating to family violence and abuse, child safety and wellbeing, and concerns relating to alcohol and substance use and mental health were noted by the family consultant in her assessment of the family.
The family consultant observed that the relationship between the parties appeared to be characterised by “mistrust and some acrimony”. She noted that the mother in particular showed “severe distress and fearfulness at the thought of seeing [the father] in Court and stated a desire to have no communication with him”.
Consistent with her initial observation in October 2017, the family consultant noted that the mother’s accounts of family violence at the hands of the father was consistent with “a coercive and controlling typology of family violence”. The family consultant explained the characteristics of this type of violence and outlined the detrimental impact on children who are exposed to it.
The family consultant also opined that if the Court determines that the father did not perpetrate coercive and controlling family violence, then it is of concern that the children may be exposed to false representations about the father by the mother which could further distance the children from him and “lead to poorer relationships between him and the children than those which currently exist”.
The family consultant had also commented that the children on interview “all appeared strongly aligned with [the mother] and some of their fears and uncertainties may be associated with identification with [the mother] and a desire to protect her”, noting in particular one of the parties’ daughters who displayed an attitude and distress that “may be mirroring the mother’s distress”. The family consultant concluded that if the children’s accounts of the father’s behaviour towards them have veracity, then their aversion to spending time with him may be “appropriately protective of themselves”.
The family consultant’s observation of the children with the mother and her partner was that they all have “warm and trusting relationships with the mother and an apparently warm relationship with [the mother’s partner]”. The family consultant noted that the mother’s partner “appeared attentive to the children” and the younger children seemed to speak confidently with him. Another son is also described by the family consultant as enjoying the mother’s partner’s company.
Given the children’s reported relationships with each parent, and as it appeared in the course of the assessment the parties were then not in dispute that the children remain living with the mother, the family consultant recommended that the children live with the mother.
The family consultant also considered the parties’ proposals for time with the father. She noted that the mother’s proposal that the children spend no time with the father is “considered to be appropriately protective of the children”, should the Court find that he perpetrated coercive and controlling family violence and/or child abuse. In these circumstances she noted that the children’s stated aversion to spending time with the father would be understandable and “weight may be given to their preferences”. She also opined that the risks in this proposal would be the children’s loss of identity and relationships with their father and the extended paternal family, but that the advantages are:
…[A]n increase in [the children]’s physical and emotional safety through their lack of exposure to possible family violence and/or child abuse and the benefit of living with a parent who is not burdened by the imperative of facilitating time with the other parent whom she believes poses an unacceptable risk to the children’s safety.
When considering the parties’ proposals in the event it is found that the father did not perpetrate family violence and/or child abuse, the family consultant stated that it may be possible for some of the children, particularly those still at primary school, to spend time with the father in line with his proposal at that time. It was recommended that a family program such as ‘Keeping Contact’ would assist in this occurring given the children’s stated fear of their father and the mother’s reluctance to facilitate their time with him. The family consultant then recognised the possible advantages for children in spending time with the father as “developing an improved relationship with him, as well as formation of their identities”. She also opined that the children may benefit from increased contact with the father’s extended family including the paternal grandparents but that this may need to be balanced against the risks to the children if they were to spend time with the father if he has perpetrated coercive and controlling family violence and/or child abuse, since their physical and emotional safety may be at risk.
The family consultant also recommended that the mother hold sole parental responsibility for the children in light of the issue of family violence. She considered that it would be “extremely difficult, if not impossible” for the mother to be able to communicate with the father regarding the children. She was concerned that this may place the children at further risk of exposure to parental conflict. She also considered that even if it was determined that the father did not perpetrate family violence, it is appropriate that the mother have sole parental responsibility since she may nevertheless find it extremely difficult to communicate with the father in a manner which would allow joint decisions to be made regarding the children.
Before being cross-examined at final hearing, the family consultant was advised of some of the oral evidence in the proceedings that appeared to suggest that family violence and child abuse may not have occurred as alleged by the mother and appeared to challenge the family consultant’s opinion concerning the current state of the children’s relationships with the father. This included the evidence of a family friend including that as recently as Christmas 2019 some of the children had told her that they missed their father.
The family consultant confirmed that her recommendations were based on the alternatives that the Court may find that family violence and child abuse did or did not occur. She then opined that while the recent evidence given “weighs the balance towards there not being family violence and child abuse” she considered that the children’s evidence “was sufficiently disparate to…make it unlikely that it was specific coaching”. She further added that if the evidence is that family violence and child abuse did not occur, “it would suggest that there has been substantial alienation” which she thought was “obviously concerning”.
When asked to elaborate on the concept of alienation and why it gives rise to concern the family consultant said:
…alienation is the influencing of children in such a way that [the children] are prevented from having the relationship with the other parent that they might otherwise have had. In extreme cases, the children can be rendered extremely frightened of the other parent, and made so that a relationship with the other parent becomes almost impossible. The mechanisms of this can be coaching and scripting of the child, but can be more subtle.
The family consultant then confirmed that alienation itself is regarded as a form of child abuse since it effectively denies the child’s relationship with the other parent which can in turn impact their ability to manage relationships in later life and have a “profound effect on their mental health”.
The family consultant also opined that the mother “presented as genuine” in being a person who believed all the things that had happened to her, and in particular being the victim of serious violence throughout the whole of the parties’ relationship. It was the family consultant’s opinion that if it were found that there had not been family violence and/or child abuse or there was no unacceptable risk that such may occur, the mother’s capacity would “certainly [be] very concerning”. She said that it would certainly call the mother’s mental health into question and added that “probably the most alarming thing for the children is, sort of, living a lie”. She then opined that the harms of the children of believing particularly very negative things about one parent that are not true include that the children will find it difficult to perceive reality and “get through life in a reasonable fashion”. She also noted that a grossly false interpretation of the world affects a child’s relationships and mental health.
Under cross-examination the family consultant briefly considered the different parenting proposals and maintained the opinion she had given in her report. She remained of the view that it would be “extraordinarily difficult” for the adolescent children to spend time with the father but this may not be the case for the younger children.
The family consultant also considered the mother’s proposal that if the father is not found to pose an unacceptable risk of harm to the children they live with her and spend time with the father in accordance with their wishes when they reach the age of 16. The family consultant highlighted how relationships formed with a parent in adulthood differed to those formed as a child “growing up with that parent”. She opined that there is a risk that if there is alienation, the children by the age of 16 are so alienated that they would not want to, or would not seek to have a relationship with their father. In the event the mother’s case of unacceptable risk of harm to the children posed by the father is found, the family consultant stated that there is no benefit to children from having any relationship with the father and that such a proposal would possibly risk traumatising the children.
In the forgoing circumstances, and as the family consultant had observed that the children’s views were closely aligned to the mother’s desire to move overseas, I ordered that the family (including the paternal grandparents) attend upon the family consultant for the purposes of an addendum report. This report was to focus on matters arising from the changed circumstances including the children’s views relating to the mother’s current application and the father’s application that they live him. The family consultant was also to observe interactions between the children, the father and the extended paternal family which had not occurred in the course of the earlier assessment.
The last day of hearing occurred on 16 March 2020. By this time, another of the parties’ children had reached the age of 18 and the mother had given birth to her twelfth child. On the final day of hearing the family consultant was further cross-examined with respect to her addendum report and each of the parties made their final submissions before judgment was reserved.

The 2019 Addendum Family Report

On 1 November 2019 the family met with the family consultant and the addendum Family Report (“the 2019 Report”) was released to the parties on 4 December 2019.
On this date the mother was observed explaining to the children the change in plans to move to the United States and each child was then interviewed separately by the family consultant.
The father, the paternal grandparents and the paternal aunt were also observed with the children on this occasion in circumstances where the paternal family expressed the intention at final hearing that they would all be involved in the care of the children in the event the children are ordered to live with the father.
When the mother was observed informing the children that both she and her partner “have decided that it is better for everyone to stay in Australia”, the family consultant noted that the children “did not seem overly dismayed by this”. The family consultant opined that it is possible that the length of time between their initial great enthusiasm and the present, has meant that they had “already accepted remaining in Australia as a real possibility”.
Again, the family consultant noted that the children appeared to have a close and warm relationship with the mother and noted that they all spoke positively about her and approached her “for comfort and reassurance”.
The family consultant observed all of the children to be anxious to some extent about seeing the father. She explained that there is a possibility that the anxiety experienced by the children reflected the mother’s anxiety, related to complex trauma they may have experienced living with their parents, stemmed from the length of time that has lapsed since spending time with the father, or had been triggered by events that represent past occurrences that have taken place within “dynamics of secrecy, shame and power imbalance”.
All of the children were reluctant to enter the room to be observed with the father and in the course of the assessment had very little positive engagement with him. One child exited the room at an early stage of the meeting and refused to go back in, another needed to be persuaded to re-enter the observation room and as a whole the children did not welcome the father’s efforts in showing them affection and reassuring them that he loved them.

Following their observation with the father, the family consultant noted that the children with the exception of the younger two, were “highly aroused and anxious” and requested their mother’s presence. The family consultant recorded that the children were vocal in their belief that the father had “lied” and were dissatisfied that he had not acknowledged any past behaviour.
When the father was interviewed after his observation with the children he told the family consultant that he felt the children were “holding back a lot”. He remained of the view that the hostility displayed by the older children was “all about the United States”. With respect to the younger children he felt he made “inroads” with them, but expressed concern that the older children were “absolutely convinced” about events that he maintains had not occurred such as him locking them out of the house. He added that the three year gap has been a major impediment to his relationships with the children.
The family consultant assessed the father to present himself as “somewhat victimised” and “appeared anxious to justify himself and negate the children’s expressed experiences”. The family consultant acknowledged that the observation would have represented a difficult situation for the father but was concerned that he focused on vindicating himself, possibly to the exclusion of displaying interest in the children. For example, the family consultant noted that when the youngest son recounted something about his teacher, the father “appeared to see this as an opportunity to maintain that he wanted to do something but was not allowed” rather than showing interest in the child’s experience. The family consultant noted that “while this could be a response to the children’s accusations, and possibly accusations levelled in the course of court proceedings, it did not appear particularly appropriate in the context of seeing the children for the first time in nearly three years”.
Counsel for the mother raised this issue in cross-examination and asked the family consultant whether she considered that the father did not engage with the children in a “child-focused manner”. The family consultant answered:
I did predicate this with saying that this was a very difficult experience for him and one in which he could not necessarily comported himself in a more therapeutic manner because he would feel that he couldn’t accede on any of the points that the children made…and he was subject to a lot of accusations from the children…however I would have preferred that he really talked less about himself and [the mother] and focused more on perhaps what the children were doing and what they were interested in at the time.
The family consultant thought it “of prime importance” that the children’s present circumstances are “stable and free from abuse or the possibility of abuse”.
While the mother in her interview acknowledged that the family had “good times as a family”, none of the children spoke of these times and were more elated about current outings and activities. The family consultant did note that there appeared to be “some softening” of the younger children’s stance towards the father.
The family consultant considered the possibility that some physical punishment occurred in the context of a “generally equable and reasonable family life” and that the children’s reactions as touched upon earlier in these Reasons, had been mediated by a desire to go to the United States, an alignment with their mother or a disappointment in father’s parenting capacity, such that “negative experiences have been privileged over more generally positive experiences”. The family consultant further opined that negative experiences tend to invite a “more powerful emotional response” and in this way, may be better remembered.
Consistent with her views on alienation the family consultant said that if it is found that abuse did not occur it is possible that the younger children could spend a significant amount of time with the father to the exclusion of the mother and their older siblings and limited time with the mother be later introduced. She recommended that if the Court finds that the father poses no risk to the children, a program such as Keeping Contact may assist in the reinstitution of his relationships with the younger children. She also maintained her view that it appears unlikely that the older children would be able to reconcile with the father and opined that it may be in their best interests to be given the opportunity to make their own decisions regarding time with the father.
When cross-examined, the family consultant stressed that an arrangement whereby the younger children live with the father would involve a significant weighing exercise. She stated that the advantages of the younger children having a relationship with their father must be weighed against the “severe” disadvantages of having these children separated from the mother to whom they are primarily attached, and separated from their older siblings to whom “they are very close”. She also said that it was her impression that the children are very attached to each other and that the older children seemed to have played a “caretaking role” of the younger children which she opined is not unusual in larger families. She added that on interview the children also appeared “very attached” to their younger half-sibling and were looking forward to their half-sibling who was soon to be born.
Counsel for the father again asked the family consultant for view on a proposal that would see the four younger children live with the father. The family consultant maintained that her “real concern” was that the younger children were “very attached” to the mother and the older children and stated that she perceived such attachment to be a “healthy attachment”. She further added that such an arrangement would be “extraordinarily traumatic” for the children and ultimately was of the view that regardless of what the Court found none of the children should live with the father.
The family consultant opined that the older children would find it difficult to help facilitate the younger children’s relationship with the father and support this arrangement. It was her impression that:
…[The older children] are generally obedient children and if they were firmly instructed they would attempt to follow those instructions, however, I think the prevailing mood in the family and their particular feelings would probably infiltrate to the younger children.
The family consultant then considered a proposal whereby the children spend time with the father as agreed between the parties. The family consultant said that while her impression of the mother is that of a “good mother” who would “try for the children’s sake” to reach agreement with the father, the mother’s strong reluctance to involve herself in any way with the father will “prove difficult”. She further explained that one effect this would have on the children is that they would sense the mother’s difficulty which can in turn influence their later relationships with the father. She says ‘anxiety’ in particular is “easily transmitted”.
The family consultant was asked to consider whether the mother had the capacity to facilitate a child’s time with the father if that child were to express the desire to spend time with him. The family consultant recalled that the mother was generally agreeable to this occurring and recalled the children stating on interview that the mother “said we can see dad if we want to”. The family consultant also highlighted one child’s statement to the father at the November 2019 assessment that “the Judge says we have a right to see you. Mum’s not stopping anybody – she asks us”.
Elaborating on this proposal, the family consultant said it would be possible but the difficulty would be the communication between the parents that would need to occur at some point. She suggested that although she did not canvass this with the mother, a better alternative would be that the mother contact a third party who would act as an intermediary between the parties. She also held this view with respect to changeovers if time with the father were to occur.
The family consultant was asked about the hostility shown by the children towards the father in their recent assessment, such as questioning him about his ongoing denial of his past behaviour. She was asked whether she considered this occurred because they were being observed or whether it would likely continue in the future. The family consultant confirmed that it would be a “continuing difficulty” and explained that it was a reason why she did not recommend that the older children spend time with the father.
In relation to the children’s relationship with the paternal family, the family consultant stated that “none of [the children] give an account that suggested it was an important part of their lives”, particularly the older children. When asked about time the younger children could spend with the paternal family, the family consultant again opined that the advantages of having those relationships must be weighed against the disadvantages.
The family consultant holds tertiary qualifications in social studies, social work and health science. Prior to assuming her role as a family consultant (a position she has held for around three years) she worked as a senior clinician at D Hospital and for some years was employed by E Service as a coordinator in their intensive behaviour intervention service, and later managed their wellbeing (counselling and behaviour) program. Over the years she has also engaged in professional training and development in relation to child-related issues including youth mental health first aid, assault response, child protection and behaviour management. She holds memberships with various professional bodies.
The family consultant met with family members on three occasions over three years and observed the children with each of the relevant adults. She was cross-examined extensively on two occasions and in my view reflected thoughtfully upon her opinions and made some concessions and changes which she justified and explained. She was not challenged in any significant way about the factual basis for her opinions nor were her expertise and experience brought into question. For these reasons I accept the opinions and recommendations of the family consultant and attach significant weight to them.

The Matters In Dispute

Although there are many factual matters in dispute between the parties, very few ultimately require resolution for the purposes of this hearing in part due to concessions made at trial, evidence revealed by cross-examination, and the way in which each party’s case was run.
For example, it was a significant issue in dispute between the parties whether there were risks posed to the children in the mother’s household arising from her partner’s alleged substance abuse. The father had raised concerns that the mother’s partner was a heavy user of cannabis but the mother’s partner denied this when interviewed by the family consultant in 2018. It was the mother’s evidence that her partner was not a drug user and she firmly denied under cross-examination ever observing him use drugs in the family home.
The parties’ oldest son deposed in his affidavit to observing the mother’s partner use cannabis “on a daily basis” and under cross-examination said that he purchased the drug for the mother’s partner each week and that they smoked it regularly together. It was also this son’s evidence that the reason he left the mother’s household was because she became upset with him after he refused to obtain drugs for her partner on one particular occasion. Under cross-examination the mother’s partner ultimately conceded that he purchased drugs himself using family funds (being income from welfare payments) and had purchased drugs from the parties’ oldest son on a number of occasions. Although in this manner, the issue of drug use by the mother’s partner was ultimately not a matter in dispute, the mother’s oral evidence denying awareness of it is in my view significant when considering her credit which is a matter to which I will return.
Other issues that were in dispute between the parties but fell away in the course of the proceedings, and ultimately did not require resolution, include contentions about the father’s current misuse of prescription medicine and alleged impairments to his mental health. Although there was some competing historical evidence concerning these matters at the final hearing no evidence was adduced to corroborate the assertion that the father’s mental health is currently impaired. There is likewise insufficient evidence in relation to the mother’s contention that he currently misuses prescription medicine and no findings in relation to these matters were sought in final submissions.
Other matters which do not require resolution about which there had been considerable dispute relate to the exact circumstances in which the mother formed a relationship with her new partner and the extent to which the father was involved in the day to day care of the children when the relationship was intact.

The central issue – family violence

The central issue in dispute between the parties, and which is highly weighty in the view of the family consultant, relates to family violence.
The mother’s case is that the father perpetrated significant family violence against she and the children throughout the relationship which has caused serious harm to the children and provides an explanation for the state of their relationships with him.
The mother maintains that the nature of family violence she experienced at the hands of the father involved physical and sexual abuse, verbal aggression and controlling and coercive behaviour, and that the children were also subjected to physical violence and psychological abuse.
Counsel for the mother seeks on her behalf that I make positive findings as to the various incidents of the father’s abusive behaviour deposed by the mother and submits that the complaints made by the children of the father’s behaviour in the course their interviews with the family consultant generally support the contention that the family were victims of family violence.
It is the ICL’s position that the evidence will only support a positive finding that the father abused the mother at the time of separation and used excessive physical discipline towards the children throughout the parties’ relationship. Counsel for the ICL submitted at final hearing that these instances of violence suggest that the father poses an unacceptable risk of harm to the children.
The father has at all times denied that he perpetrated family violence towards the mother and the children. In the course of final oral submissions counsel for the father appeared to suggest at first that there was sufficient evidence only for me to find that the father used excessive physical discipline on at least one of the children. Ultimately, it was submitted on the father’s behalf that it was probable that I would find that family violence had occurred but not to the extent alleged by the mother.

Is the father a perpetrator of family violence or does he pose a risk of harm on this basis?

Family violence towards the mother

As early as the genesis of their relationship, the mother deposes to experiencing “domestic violence” at the hands of the father. She describes being only 14 at the time the relationship began and that the father aged 17 pressured her to have a baby against her will. In cross-examination the mother adopted the term “reproductive coercion” to describe her contention that she did not have a choice in having the first and subsequent children with the father.
According to the mother’s affidavit the father began to physically and verbally abuse her and on occasions the children from about 2003 (when the parties had four children aged seven and under).
On one such occasion when the mother was pregnant with the fifth child and living with the paternal grandparents, she deposes to the father repeatedly throwing her to the ground which caused her to suffer vaginal bleeding. According to the mother a paternal aunt called police to attend the home after the father refused to take her to the hospital, accusing her of being “dramatic”. When cross-examined the paternal aunt confirmed that she had contacted police because her own daughter who was present in the family home became frightened at the “yelling” and “the commotion” resulting from an argument between the parties.
In his affidavit the paternal grandfather deposes that he witnessed an argument between the parties in around 2003. On this occasion he recalls the mother later telling the father that she was leaving him and the father telling her not to be “silly” and picking up a garbage bag containing the mother’s clothing. The paternal grandfather deposes that the mother tried to forcefully grab the garbage bag from the father and as a result lost her balance and fell to the ground. He then says he assisted the mother to her feet and told the parties to stop arguing. When cross-examined about this incident the paternal grandfather stated it was a “vivid” memory for him as he became “very upset with [the parties] arguing with the kids in the house”. He explained that he was livid “because the [parties’] yelling and screaming…might have been scaring the kids inside”. He added that he also “didn’t appreciate the arguments inside my own home” and also confirmed that this was a “very rare event”.
Although the mother claims she attempted to leave the father on various occasions she maintains that he made threats of suicide if she did so. There is evidence that on one occasion in 2004 the father presented to hospital after taking medication in an attempt at suicide after the mother threatened to leave him. The mother says in her affidavit that she attempted to leave the father on this occasion after he repeatedly struck her across her face “so hard that [she] saw stars”.
On another occasion just before the birth of the parties’ sixth child in 2005 (at which time it appears the parties were no longer living with the paternal grandparents), the mother deposes that the father “punched the wall and slapped [her] across the face”. She says that for three weeks following this incident the father returned to live with the paternal grandparents while continuing to attend the family home and displaying controlling behaviour towards her such as prying into her personal affairs on her computer.
The paternal grandfather denies attending the family home to collect the father after the father punched a wall or slapped the mother.
The mother deposes that at some unspecified time during the parties’ relationship the paternal aunt told her that she too had been the victim of physical and sexual abuse perpetrated by the father. The mother deposes that during the periods of time the family lived with the paternal grandparents the paternal aunt lived away from that home to prevent her own daughter from coming into contact with the father.
The paternal aunt deposes that she was not ever the subject of “any form of sexual abuse or any other inappropriate physical behaviour by the father” which she maintained under cross-examination.
It is the mother’s case that the father’s abuse progressively worsened throughout their relationship and later included him subjecting her to sexual abuse as a “form of punishment”. She deposes that aside from “forcing himself” onto her and making unwelcome sexual advances, the father on occasions demanded that she “sit naked in front of the webcam to strangers [on an online platform] while he watched”. She further deposes that this was such a regular occurrence that she eventually “stopped showing resistance” and complied with the father’s request to engage in such behaviour for about six months. The father specifically denied that he demanded that the mother engage in the online platform. He deposed in his affidavit that he was aware that the mother accessed the website with some of her friends and she herself “thought it amusing”. When challenged by the father’s counsel about this issue during cross-examination, the mother said she could not recall whether she, the father and one of her friends had together laughed about the nature of this online platform.

The mother deposes that on some occasions police attended the home as a result of complaints made by neighbours but that on these occasions she did not report the abuse to police as she was “petrified” of the father and feared that the violence would worsen. During cross-examination the mother clarified that the neighbours had contacted police to attend the family home on various occasions as a result of “lots of screaming, crying, things being thrown and concern for [the mother and children]’s welfare…” When asked to explain what had happened the first time police attended the home, the mother said she could not remember that occasion since her “complex PTSD” made it difficult for her to recall things “in a specific way”.
According to police records produced on subpoena (Exh 15), on one occasion in mid-2006 police attended the family home “for a domestic argument”. Both the mother and father were not at the location and police spoke to the paternal grandmother who was recorded as a witness to the argument. It is recorded that the paternal grandmother told police that the parties had an argument over living arrangements but that “it had not become violent”. The parties shortly after arrived home and when interviewed by police it was established that “[the parties] had been involved in an argument but no offence had occurred”. No further action was taken by police but concerns were recorded “as to the amount (sic) of people living at the location”, which at that time consisted of the paternal grandparents, the parties and their six children and the paternal aunt and her daughter.
When cross-examined the mother acknowledged that in the early stages of her relationship with the father she had the opportunity to report her allegations of violence to any authority “just not the will”. She reiterated that she did not make reports as she “was terrified and conditioned not to say anything”. It was then suggested to her that she did not make reports against the father as she wanted her relationship with the father to continue. The mother replied that around the time she was 14 years old it was what she “thought” she wanted. When questioned about when she formed the view that she no longer wanted to remain in a relationship with the father she said:
Ultimately, as the abuse intensified over the years, I realised… I wasn’t living a normal life, and that probably happened in my late teens and early 20s. I started to realise what I had been worried about, all the things that… had been happening to us and myself and DoCS coming around all the time and police. These things weren’t normal… and I also realised I didn’t see a way out. So I guess in my late teens and early 20s I realised that perhaps I was in a really terrible position and I didn’t know what to do.
Under cross-examination the mother also adopted the position that she could not return to her own mother to escape the father’s alleged abuse because she had been “conditioned from a very young age [by the father] not to go back to her”. She claims that the father told her words to the effect of “[the maternal grandmother] doesn’t love you…she doesn’t want to be around you”. The mother then went on to say:
That’s what domestic violence looks like. You start to believe that you’re the problem and so you try to just make yourself very small and keep…your head above water. That’s what it looks like.
In a similar vein, when asked why she did not report the various incidents of abuse to her treating doctors, the mother stated “it’s just the way conditioning and domestic violence works. I didn’t feel I could tell anyone, not a doctor, nobody”.
The mother claims that some assaults towards her occurred in the presence of the children, while other times the father would “lock the children outside [the home]” by way of punishment towards her. During the latter occasions, she says the children were denied food and water.
Throughout the relationship the mother also deposes to constant berating from the father including referring to her as a “fucking bitch” “fucking slut” “whore” and making violent threats towards her such as “give me reasons why I shouldn’t just kill you now. Convince me”. She recounts one particular occasion when the father went into a “fit of rage” and yelled in the presence of one of the children “your mother is a whore. We are getting a divorce… you fucking bitch. Why should I stay with you? You should be on your hands and knees begging me to stay with you”. She also deposes to hearing the father use similar derogatory language towards the children.
As a result of some episodes of abuse the mother deposes to contacting the paternal grandparents who she says offered little assistance and “downplayed” the father’s abuse. She recalls that on one occasion after seeking such help the paternal grandfather told her “it’s not great that that happens to you but you will go through rough patches in every marriage”. Following another alleged episode of the father’s abusive remarks and behaviour, the mother deposes she contacted the paternal grandparents crying and hoping that they would be able to calm the father down. When the mother pleaded with the paternal grandfather to attend the home, she says he responded “I don’t know what I can do”. The father then allegedly took hold of the phone and began swearing at his father before signalling the mother to end the conversation. The mother then told the paternal grandfather everything was okay and the paternal grandparents did not attend the family home.
The paternal grandfather gave evidence of being contacted by the mother in about mid 2016 in response to the father being argumentative. It is his evidence that he continued to talk with the mother on the phone for approximately one hour and although he offered numerous times to attend the family home to assist the parties the mother repeatedly told him not to do so. Under cross-examination he stated that during his telephone conversations with the mother, the mother did not raise any concerns about the father being “angry or in a mood”. He also described as “horrendous” the suggestion that the paternal grandparents were well aware that the father was violent towards the mother and children and tolerated it, turned a blind eye to it and normalised it. He maintained that he witnessed a few arguments between the parties but “no great violence”.
The paternal grandmother also gave evidence that the parties would on occasion argue about “silly things like most married couples would”. She also denies ever observing the father to be abusive to the mother and the children and maintains that the father was a “loving father to the children as a well as a husband and friend to [the mother]”.
The mother also deposes to the father engaging in controlling and coercive family violence when he became “paranoid and obsessive with [her] every movement” to the point that she was required to send him a photo evidencing her location. She says his constant questioning and harassment made it difficult for her to maintain social relationships. She also alleges that he restricted her ability to work additional hours of part-time work, requiring her to first ask him for his permission otherwise heated arguments would result. The mother provides no time frame for this alleged conduct.
During cross-examination the mother also told the Court that for the most part of their relationship the father controlled the family’s finances. She said she often needed his approval to use family funds to engage in family activities with the children.
The mother says that following the father’s workplace accident in 2014, little changed in relation to his abusive behaviour except that he now did not have the ability to sexually harm her. She says that between 2014 and 2016 her best friend witnessed the specific incidents of abuse she alleges. This friend did not provide an affidavit in the proceedings.
When interviewed by the family consultant in 2018 for the purposes of the Family Report, the majority of the children made reports of witnessing abuse perpetrated by the father against the mother.
The oldest daughter reported to the family consultant occasions she heard a “whacking sound” when the father sent the children outside and he remained inside with the mother. She also reported that the mother appeared “too scared to fight back” and that she wanted to “step in for mum” but was “too scared about being hit herself”. She further reported hiding in her bedroom and crying as a result of the “pain and sorrow” the family was experiencing.
Another daughter told the family consultant that in the past the parties went away for days and upon their return she noticed bruises on the mother. She also recounted witnessing the father “choke mum and slam her into a wall” and him calling the mother “every minute when she was working” and “beat[ing] her when she came home”.
A younger son of the parties said in his interview that the mother “copped most of it for us” and reported a time he had woken at night to the father “yelling at the mother and grabbing and hurting her”.
Two other daughters also reported occasions when the mother was hit by the father and occasions when the mother would scream “don’t bring the cane”, referring to the father using the cane as an implement with which to hit the mother. It was also said that the mother often cried after being hit by the father.
While the two younger siblings did not report witnessing the father abuse the mother, they recalled occasions where he was “rude” to the family and the youngest child in particular noted that “everyone hated him”.
Throughout the proceedings the father has maintained that he has not engaged in any acts or behaviour that fall within the definition of family violence against the mother, as alleged by her.
In his trial affidavit the father denies ever engaging in emotional, physical and sexual abuse of the mother, making threats to kill her or engaging in controlling and coercive behaviour towards her. Other than in relation to the circumstances leading to the parties’ separation, the father does not provide alternative accounts for any of the incidents or specific events deposed to by the mother in his affidavit as it is his case that they did not occur.
The father maintained his position under cross-examination. He denied being abusive towards the mother with the exception of some of his behaviour during the period of their separation.
Counsel asked the father about a chain of messages he had sent to the mother following their separation in which he is seen to be apologetic towards her by saying things such as “sorry for everything I have done” “I promise to be a different man” “I will give my life just to prove how sorry I am” “Please believe in me. I will never let you down again. I swear it” and “I wish I wasn’t such a fuckup”. The father explained that he had solely apologised for “drilling her about the interaction she was having with [the mother’s partner] while over in the United States” but later said that his messages were just an attempt to placate the mother at the time and get the relationship back together.
At trial the father’s counsel tendered a media article (Exh 4) in which the mother describes the father in a very positive light, thanking him for his support. When cross-examined about her apparent happiness towards the father in the article, the mother stated:
That’s correct, except obviously that’s what domestic violence looks like. It’s very much so what’s happening outside versus what’s happening inside.
The parties’ two adult sons gave evidence denying the mother’s allegations of the father’s abusive conduct towards her.
In his affidavit the older of the two adult sons deposes that while there were arguments between the parties which were “heated”, he did not ever observe any physical altercation between them. He also deposes that he did not observe the father to act in a controlling manner towards the mother.
The younger of the two adult sons also recalled arguments between the parties but only described the parties yelling at each other.
An affidavit of a family friend was also relied upon by the father. This witness deposes to the conduct of the parties that she had observed over a number of years she had been close to the whole family. While this witness acknowledges in her affidavit that after the father’s arrest the mother complained to her about the domestic violence she had experienced at the hands of the father, she denied seeing any abuse perpetrated by the father or the paternal grandparents in the years she had known the family. This friend deposes that she never felt “scared or unsafe” in their company and recalled that when she visited the family prior to separation, the mother “seemed happy”. Her evidence was unshaken under cross-examination.

The father’s assault of the mother at the time of the parties’ separation

The only occasion on which the father agrees he was violent towards the mother occurred at the time of the parties’ separation.
On the mother’s evidence when she returned from her brief holiday in the United States, the father collected her from the airport and immediately began to argue with her. She then deposes that he made threats including “I’ll go back and knock it out of you”. Once they arrived home the mother says the father demanded that she leave the family home before proceeding to grab her and squeeze her arm “so hard that [she] was in pain”. She then says the father choked her around her neck before attempting to “drag [her] out of the house”.
The father’s account of this incident is that when the parties made their way home from the airport the mother told him that their marriage was over and that she wanted to be with [mother’s partner]. She demanded that he leave the house voluntarily or she would have the police remove him and have him “done for assault”. In response to the mother’s suggestion that the marriage was over, the father says that when they arrived home he “attempted to have a conversation with her”, during which the mother immediately became aggressive and abusive and began yelling. He then deposes that in an attempt to speak to her he “grabbed her by the arm”. After pulling away from the father, the father says the mother telephoned police and “made an allegation that I had assaulted her”.
According to police records produced on subpoena and court records (Exh 1 and Exh 2) the events that led to the father’s arrest occurred on the morning of 14 January 2017. The facts tendered on sentence in the father’s criminal proceedings state that the mother had just returned from an overseas trip, and in the course of the car journey from the airport the parties engaged in a heated argument. During this argument the father told the mother “I’ll go back and I’ll knock it out of you”. Upon arriving home, the father demanded that the mother go into the bedroom which she refused to do out of fear that she may not be allowed to leave. The parties then continued to argue and the father told the mother to leave the home numerous times which she refused to do. The father then grabbed hold of and squeezed the mother’s arm and shortly after asked the mother to give him a hug and told her everything would be okay. After the mother refused to hug the father, he clenched his fist and swung it towards her. He continued to hold the mother by her arms and attempted to pull her towards the front door. After realising that the mother was uncooperative, the father let go of one of the mother’s arms and grabbed her by the neck. He then dragged her out of the house while yelling “get out of the house”. Police were then contacted by the mother.
According to sentencing facts, when police arrived at the family home they saw “red marks on both of [the mother’s] arms and her neck” and observed the father at the front door yelling out to her that they were getting a divorce. Police noted that they obtained a video recorded statement from the mother but that at the time of obtaining photographs of her injuries, her red marks had “faded”. A provisional AVO was made protecting the mother.
Police records indicate that the father was charged with common assault and intimidating the mother with the intention of causing her to fear physical or mental harm. On 14 June 2017 he was found guilty of both offences but not convicted. He was placed on a good behaviour for a period of two years and the AVO against him protecting the mother was made as a final order for a period of 12 months.

Was the father abusive towards the children?

It is the mother’s case that the children including the four who are now adults were subjected to years of excessive discipline by the father which is tantamount to physical and psychological abuse.
The mother deposes that the father was particularly violent to the older of the two adult sons from when he was a young child and until his adolescent years due to issues with his behaviour. The mother alleges that on one occasion the father repeatedly punched this son’s head until his hand was “extremely bruised and swollen”. Reports were made to the Department regarding bruising on this son, and the younger of the two adult sons, as early as 2002, and it was noted in departmental records that the older son had disclosed he was hit by the father “with a belt all over his body”.
According to police records produced on subpoena (Exh 15) police attended the family home in April 2004 in response to a report described as “child/young person at risk”. The father is reported to have told police that he had been yelling at the older of the two adult sons and that because this son was misbehaving “he had to be smacked”. Police then interviewed the son in the father’s presence as the father declined to allow the son to be interviewed alone. In his interview with police, the son reported that “dad slapped me across the face, and then punched me in the tummy”. Whilst recounting these events, the father is reported as “interrupting” the interview with the words “he moved, I went to hit him on the shoulder. I didn’t mean to hit him in the face. I also hit him on the bottom. I did not punch him in the tummy, as I know he has stuff in there”. The police then noted there were no visible injuries on the child.
A few days later it is recorded that the mother contacted police and told them that this child “suffers from some sort of mild Attention Deficit Disorder and makes up things”. It is then noted that both parents were told by police that should they wish to physically discipline their children “they are only allowed to do so from the waist down. Hitting the children across the face is not acceptable”. It is further recorded that the father explained to police that when he smacks the older of the two adult sons “[this son] throws himself on the ground and this is the reason for him hitting [the son] across the face instead of the arm”. Police noted that they considered the father’s actions as “lawful chastisement”.
According to Department records produced on subpoena (Exh 12) Departmental officers attended the family home in 2005 in response to concerns that both parents had difficulties managing the behaviour of the older of the two adult sons. On interview, the father admitted to hitting this son with a belt around the bottom of his legs but no mark or bruising was observed by caseworkers on this occasion.
In his affidavit filed 17 April 2019 the older of the two adult sons denies that the father acted in a physically inappropriate manner towards him and the other children, and specifically denies being punched repeatedly by the father. Under cross-examination this son maintained that the father did not ever use a belt to hit him and only ever administered a “little smack”. He told the Court that he only recalled being smacked on his backside and that “it didn’t happen too often”. When asked by the ICL about the father’s admission recorded in Department documents that the father had hit him with a belt, the son responded:
I find it odd… he has never been a very violent man even when he slapped me…he was always very hesitant and would always use it as a last resort sort of thing and that’s why it was so rare. He was more about taking the Xbox off you or PlayStation or… go sit in the corner over there…and think about [what] you’ve done…and then he would talk to us and stuff…

These findings are consistent with the mother’s evidence that she had stopped using physical discipline with respect to the children “a long time ago” and to her credit I accept that by this stage she understood that this type of discipline was causing the children harm. It is also consistent with the father’s evidence that he felt some resentment about being the only parent who disciplined the children.
I am also satisfied on the basis of both parents’ evidence and the accounts given by the children to the family consultant that the father continued to use physical discipline by way of smacking the children up until the time of separation.
I am also satisfied that the father employed a technique of making the children stand in the corner with their hands on their head while speaking or lecturing them about their behaviour and at times this may have been excessive.
I am not satisfied however as to the mother’s allegations that the father continued to use excessive physical discipline such as using a belt to strike the younger children or hitting them in the face until the parties’ separation or that he engaged in some abusive activities for his own amusement as she alleges for the following reasons.
First, I consider it likely that mandatory reporters such as school authorities and doctors consulted from time to time would have observed injuries to the children’s bodies such as bruises and welts that the mother claims to have been caused by such treatment had they been present. I also consider it likely that the children, particularly as they grew older, would have reported this type of conduct to some authority as they each appear to be quite articulate and reasonably assertive to speak up for themselves.
The absence of any concern by various authorities about the children is to be contrasted with reports of excessive physical punishment and injury that was reported to the Department and observed by school authorities when the parties’ two adult sons were children.
I also consider it highly unlikely that the mother would have left the children in the care of the father for two periods as she deposes (being a holiday with her friends in 2016 and for two and a half weeks in 2017) if he had engaged in such serious physical abuse of the children. This is especially so as it had been the mother’s case that he was severely addicted to prescription medication and had mental health difficulties such that his parenting capacity was significantly impaired at this time. Although the mother did not pursue these last mentioned allegations in final submissions (which is curious in itself) I find it difficult to accept that the mother would have left the children exposed to so many risks in the father’s care had he behaved in such an abusive manner.
I consider issues relating to the mother’s credit and the other factors to which I attached weight in assessing the versions of each party’s evidence of family violence equally weighty when considering the allegations of abuse.
I am also not satisfied that the paternal grandparents engaged in physical abuse of the children as alleged, or that they were aware of and turned a blind eye to such abuse. The suggestion that the paternal grandfather had thrown one of the children down the hallway and that both grandparents had observed the other adult sons to be “thrown against a fridge” and rendered unconscious are in my view highly unlikely to have occurred. Once again it would be expected that a child would be severely injured by such conduct and it is not conceivable that the mother would not have sought medical attention if that had occurred. I considered the paternal grandfather’s evidence in relation to this last mentioned matter that it is “hideous” to suggest it occurred in his presence, and also note that this is consistent with the evidence of the paternal aunt that the paternal grandparents did not tolerate violence.
The observations in relation to exaggeration made earlier with respect to the mother’s allegations of violence towards herself also apply in relation to the allegations against the paternal grandparents. I also attach weight to the fact that only one of the children when interviewed (the son age 17) made allegations of physical violence against the paternal grandmother. The other children complained about the paternal grandparents’ rules or said that they were “rude” or that the paternal grandfather in particular tickled them in a manner that they did not consider funny and hurt them.
Although the children’s alignment with the mother related to the paternal family generally, when they were finally observed with the paternal grandparents in November 2019, although the children did not initially greet them, the family consultant did observe some positive interaction between them and the paternal grandparents and the paternal aunt and the two younger children appeared happy when hugged by the paternal family at that meeting.

The Law & Discussion

The Objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The Objects 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.
The Principles underlying these objects 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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

Best Interests Considerations

Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
The primary considerations (under s 60CC(2)) are:-
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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
The phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].
[1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[2] (2007) Fam LR 518
[3] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The word “meaningful” is qualitative rather than quantitative and the phrase has not been interpreted as requiring the court to craft orders to support an optimal relationship.[4] Further, in accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child (emphasis added).
[4] Godfrey & Sanders [2007] FamCA 102 at 36
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Neither the proposal of the mother nor the proposal of the ICL would foster the children having a meaningful relationship with the father, though the mother’s alternate proposal does leave open the possibility of the children or any one of them deciding to rekindle their relationship with the father after turning 16. So far as these last mentioned orders are concerned, I accept the opinion of the family consultant that relationships formed with a parent in adulthood differ from those formed as a child “growing up with that parent”. I also accept her opinion that if alienation has occurred and the children have come to align themselves with the mother without foundation there is a real risk that they will not want to or seek to have a relationship with the father in the future.
In final submissions, the mother’s counsel did not refer to this matter but said that she relied upon the Outline of Case filed on the mother’s behalf at the commencement of the proceedings. It is submitted on her behalf in the outline in respect of this matter that the children do not wish to have any relationship with their father.
The mother does not submit that the children do not receive a benefit from having a meaningful relationship with the father even though she contends that he poses an unacceptable risk of harm to them. It appears that her orders are based on the proposition that any benefit to the children in having such a relationships is outweighed by the need to protect them from harm arising from being subjected to abuse and being exposed to family violence. Her alternate proposal that the children have some time with the father if they so choose after they are 16 is only made in the event I do not find that he poses an unacceptable risk of harm.
Pursuant to the ICL’s proposed orders, there is no provision for the children to spend time with the father. Although the ICL does not propose an order that the children have no time with the father, the ICL’s orders would see the mother having sole parental responsibility for the children. In other words, there are no orders proposed by the ICL that foster the children having a meaningful relationship with their father.
Counsel for the ICL noted that there was no evidence to suggest that there was any prospect of the children expressing the view that they may wish to spend time with their father.
In final submissions, counsel for the ICL indicated that the ICL did not support the father’s proposal that the children live with him or any arrangement whereby they spend time with him beginning with periods of up to four hours supervised by a family member and leading to unsupervised and overnight time each alternate weekend and half of the school holidays after approximately 12 months.
In final submissions, the ICL did not specifically address this consideration though the general tenor of the submissions put on his behalf was that no order in relation to the children’s time with the father should be made on the basis that he poses an unacceptable risk of harm to the children and there is no practical proposal to mitigate that risk to an acceptable level.
For the reasons given I am satisfied that the father’s conduct did on at least one occasion amount to family violence towards the mother and his excessive discipline of the children amounted to physical abuse. However, I do not consider that there is no way to mitigate risk of harm posed by the father to the children on the basis that he may physically discipline them in a manner that will amount to physical abuse if he were to spend time with them.
I also do not consider that the children will not receive a benefit from having a relationship with their father.
None of the proposals under consideration will foster the development of the children’s relationships with the father in a manner that mitigates the risks he poses and is otherwise consistent with the children’s best interests. As I have explained, I do not consider that the mother’s proposal for the children to make their own decision in relation to contact with the father from the age of 16 is likely to foster their relationships with the father, and the ICL proposes no orders for the children’s time with their father.
The father’s proposal was very difficult to follow and the various versions appeared inconsistent with each other. Although even as late as final oral submissions it was said that he sought the orders in his Initiating Application (which included an order that the children live with him) it was also submitted that he relied upon a further “proposal” set out in a document marked as an exhibit (Exh 26) in the proceedings.
Exhibit 26 does not contain proposed orders, but is rather an outline of various stages of a parenting arrangement which would appear to see the children’s time with the father develop over time. The “proposal” appears to entail the utilisation of a contact centre for changeover for the children’s time with their father which initially is to be supervised by various people from the paternal household and curiously includes the mother and the parties’ oldest (now adult) daughter. The outline refers to the time being for a period of not greater than four hours, and that the arrangement continue for three to four months. The frequency of such contact is entirely unaddressed. Each of the further stages are described in even less specific terms such as “Stage 2 contact: more time, day time still supervised. Cut out drop off centre duration three to four months (six to eight)”.
In the course of final submissions it appeared to remain the father’s primary proposal that the children move to live with him and spend each weekend and half of the school vacation period with the mother (and that the parents equally share parental responsibility). Alternatively, if orders are made for the children to live with the mother, it is the father’s proposal that the children spend “as much time as possible” with him. It was conceded on his behalf that he had not articulated an actual alternate proposal.
The tenor of final submissions made on the father’s behalf was that the only way the children will have a meaningful relationship with the father is through orders that they live with him. It is the father’s contention that if I find there had been some level of family violence but not to the extent as alleged by the mother, there is still clearly a benefit to the children in having a meaningful relationship with him and the only way for that to happen is for orders to be made that they live with him. While I am of the view that there is no other suite of orders that foster the children having a meaningful relationship with the father, the other relevant matters as to the children’s best interests must be considered and this matter alone cannot be determinative.
The second of the primary considerations is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It was the view of the family consultant, particularly when the family were first seen by her in October 2017 and again in the 2018 for the purposes of the Family Report, that to a very large extent the questions of family violence and abuse of the children were the most critical, if not determinative matters in this dispute.
The family consultant set out in significant detail the harms to children associated with being exposed to family violence (and in particular coercive and controlling violence) and being subjected to child abuse. It remained her opinion throughout the proceedings that if I were to find family violence and/or abuse of the children proved as alleged by the mother, then the mother should exercise sole parental responsibility for them and that they should live with her and spend no time with the father.
The contentions of the mother and ICL are based upon this opinion expressed by the family consultant. It remained the mother’s position throughout the proceedings that she had been the victim of family violence as alleged to which the children had been exposed and that they had also been subjected to physical abuse by the father.
The ICL did not consider that the evidence was capable of supporting the mother’s contentions in relation to family violence (except in relation to the assault at the time of separation) but invited the Court to make findings that the father had abused the children as alleged. The ICL contended that the assault of the mother on one occasion and the abuse of the children were such that the father continues to pose an unacceptable risk of harm to the children.
For the reasons given I do not find that the father perpetrated family violence against the mother to the extent that she alleges though I am satisfied that he assaulted her at the time of separation in accordance with her account.
The one incident that I find proved is more consistent, in my view, with the family consultant’s description of behaviour which suggests poorly managed conflict rather than coercive and controlling violence.
So far as the physical abuse of the children is concerned, I am also satisfied for the reasons given that although it was harmful to the children and there is a need to protect them from this domain of harm, such harm could potentially be mitigated by appropriate orders that would also foster the children having a relationship with the father.
Unfortunately for the children, neither of the parties nor the ICL proposed any orders that would balance these two considerations. Although in the course of final oral submissions a general outline of a proposal on the father’s behalf appeared to be floated, it was vague and amorphous and had not been the subject of active consideration in the course of the proceedings.
Ultimately, each of the parents proposed competing “live with” orders. The mother’s proposal for the children’s time with father shifted and she softened a little, so that it is possible (though not likely) that the children may seek out a relationship with their father after the age of 16 and in this way it is possible that they will have some relationship with him and also be protected from harm.

Additional considerations: s 60CC(3)

Section 60CC(3) then sets out additional matters the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

Nature of the children’s relationship with each parent and other significant persons

Likely effect of a change in the children’s circumstances

Each of the children have expressed their views about spending time with the father in strong terms on each of the occasions on which they have been interviewed.
It is likely in my view for the reasons given earlier that the negative disposition of the children towards the father has been shaped by a combination of their lived experience and to some extent the influence of the mother, even if that influence has not been overt.
It is not unreasonable that the children have developed a negative attitude towards their father given that I have found they have been subjected to some physical discipline over the years which on occasions is likely to have been harsh and caused them psychological harm if not physical harm. Although I consider it likely that the mother also engaged in physical punishment of the older children and she even conceded that that was the case, those children are all now adults. In my view it is likely that the older four of the children who are the subject of these proceedings formed their views about the father as a result of their lived experience but the youngest two children have formed their views to a greater extent as a result of the influence of the older children and the mother.
It appears also likely that in the period immediately following separation the children were not so trenchantly negative about the father and it may have been possible to have resurrected and supported those relationships had both parents been willing and capable of doing so in a child focused manner and with the necessary therapeutic supports.
For reasons which are still unclear the father did not actively pursue a relationship with the children including through the initiation of parenting proceedings until six months after separation and even after those proceedings were instituted did not pursue interim orders for time with them. In the months that passed the mother and her new partner then formulated a plan for to move “as a family” to the United States. This plan was in my view idealised and never realistically able to be realised but the children came to see it as an exciting escape from their previous life and in this context their strong antipathy towards the father and extended paternal family developed.
Given that I am satisfied that at least the older children’s views have been formed as a result in part of their lived experience of the father, and given their ages, I accept the opinion of the family consultant that some significant weight should be attached to these children’s views.
I do not attach the same weight to the views of the two youngest children which are not expressed with the same force as the older children in any event.
Despite the strength of the children’s views I am not satisfied that their experiences of the father or other members of the paternal family are as negative as they portray. I am satisfied as to the accuracy of the evidence of paternal family members that the father was involved to some extent in raising the children and that in particular he cooked for them, a matter which the family friend said the children missed following separation.
I also consider that there are some prospects that as the children mature and after the dispute between their parents is resolved they may themselves seek out a relationship with the paternal family as the two adult sons have done. The mother’s proposal that the children spend time with the father in accordance with their wishes after they have turned 16 is preferable to her primary proposal that there be positive orders that the children spend no time with the father. In circumstances where there is no other proposal to support the potential rekindling of the children’s relationships with the father other than his proposal that they live with him, the mother’s alternate proposal is less detrimental to the children than an order for no time.
The family consultant was not challenged about her opinion which seems otherwise completely consistent with the evidence that the children’s primary attachment relationships are with their mother. There was also no challenge to her opinion that the children are particularly attached to their two older siblings still living at home and the two younger half siblings. They also appear to have a warm relationship with their stepfather. The current state of their relationships with the father and paternal grandparents is very strained.
The family consultant was cross-examined about the possibility that the children had been alienated from the father by the mother and she did give active consideration to this possibility and to the influence of the mother. Ultimately the tenor of the family consultant’s evidence was that the state of the children’s relationships and attachments were more a result of their lived experience than of the mother’s influence, though she did consider that influence was present.
Given these findings concerning the current state of the children’s relationships and the family consultant’s opinion, I consider that the likely effect on the children of moving to live with the father as he proposes would be emotionally devastating. Quite apart from practical considerations involved in actually moving the children from their current home and issues concerning the father’s parenting capacity, the nature of the children’s relationships and their views are highly significant in this regard.
According to the family consultant, some of the children displayed signs of being highly anxious even at the prospect of being observed with the father and paternal family. She had noted some softening of the younger children’s stance towards the father and felt that there were advantages to these children in particular in having a relationship with their father. Nonetheless, the family consultant said that these advantages must be weighed against the “severe disadvantages” of having the children separated from their mother to whom they are primarily attached and from their older siblings to whom they are close. Ultimately there was no proposal that would see the children separated and the only alternatives under consideration would see the children as a group remaining living with the mother or moving to live with the father.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

For reasons that have been explained, the father’s failure to pursue any application for time with the children earlier provided an opportunity for their negative views about him and the paternal family to become hardened and virtually impossible to shift. I accept the opinion of the family consultant about the nexus between the formation of the children’s views and the absence of the father from their lives, together with the mother’s proposal that the children move to the United States with she and her new partner. Even though that proposal changed and some doubt was cast upon the extent of the father’s violence by the time of the final hearing, the children seemed fixed in their opinions.
The family consultant had also recommended earlier in the proceedings that the parents participate in some programs to support the children in re-establishing their relationships with the father and paternal family and the Court also suggested that it was appropriate for the family to undertake family therapy. These matters were not pursued for reasons that have not been explained.
Although the mother’s position in not promoting the reestablishment of the children’s relationship with their father is consistent with her views about the risks he poses, it is not clear why the father has not been able to suggest or propose a realistic and tangible arrangement to support his role in decision making regarding the children and to spend time and/or communicate with them other than the proposal that they move to live in the paternal grandparents’ home with him.
The mother has been persistently available to the children and unilaterally made all the decisions in relation to their welfare since separation.

Capacity of each parent and other relevant person to provide for the children’s needs

Attitude to the children and responsibilities of parenthood demonstrated by each parent

It appears that the parents had an adequate capacity to meet the children’s needs when their relationship was intact, though they clearly struggled in meeting the needs of the two older sons and each of those sons left home at a young age and had to provide for themselves. Apart from lacking understanding in relation to the children’s developmental needs which is apparent in the tendency to resort to physical discipline, the children’s other basic needs appear to have been met.
Even though the father demonstrated an ability to meet the needs of the children when the mother went on holidays on two occasions in 2016 and 2017, each of these occasions was for a short period of time. He is untested in his capacity to care for six children together and seems to underestimate the difficulty he is likely to experience if they were to move to his household especially if they were emotionally traumatised due to the separation from their primary caregiver, their two adult siblings and their young half siblings.
Apart from deposing to having an aptitude for cooking which does not appear to have been challenged, the father gives no other evidence of skills he has demonstrated in meeting the needs of so many children. His attitude to physical discipline indicates a poor understanding of the children’s developmental needs and he was observed by the family consultant in November 2019 as somewhat self-centred. The father also has some level of physical disability from his workplace accident. He also concedes that he would require the paternal grandparents in whose home he proposes to continue living to assist with the care of the children.
The evidence suggests that the grandparents’ home is also very small and there would be some practical difficulty in accommodating and meeting all of the children’s needs given their ages if they were to live there.
While the children clearly have a close attachment to the mother, it would appear that she also has had some challenges in meeting the needs of so many children in her care. Currently she provides care for the six children who are the subject of these proceedings, two adult children who live at home and two infant children with her partner.
The mother also concedes that she has at times prioritised her needs to pursue a relationship with her partner over the needs of the children.
The mother appears to contend that her partner provides great assistance to her in the care of all of her children. It became clear in oral evidence that he has never assisted financially (nor has the mother worked for many years) and that the family are supported by welfare payments. In my view the mother and her partner exhibited a poor attitude to the responsibilities of parenthood in allowing significant amounts from those welfare payments to be diverted to the purchase of cannabis by the mother’s partner. The extent to which the use of cannabis by the mother’s partner may inhibit his parenting capacity is unknown as he was not honest about this matter when interviewed by the family consultant.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

I do consider that it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children as this litigation has gone on for a number of years and has left the children in a state of limbo.
In my view the arrangement that would be most likely to lead to the institution of further proceedings is that proposed by the father. I consider that there are real prospects that the children would be highly resistant to any attempt to have them move to live in the paternal grandparents’ home with the father especially if their two older siblings to whom they are closely attached and their two half siblings remain with the mother. I consider it less likely that there would be any further proceedings if the orders as proposed by either the mother or the ICL are made.

Conclusion

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[5] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[5] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The father seeks an order for equal shared responsibility for the children to enable him to be involved in the decision making in relation to the children. The mother seeks an order for sole parental responsibility for the children which is also proposed by the ICL.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
As I have found that the father has engaged in physical abuse of the children and family violence the presumption of equal shared parental responsibility does not apply. I must still consider whether it is in the children’s best interests for the parents to equally share parental responsibility as the father seeks such an order.
In relation to this issue I consider it weighty that the parents have not jointly made any decision in relation to the children since separation and there is no evidence that they have the capacity to do so. Further, the parents are extremely mistrustful of each other and each make serious allegations against the other. They have not communicated with one another in over three years and also have no prospects of doing so in the future. In these circumstances I do not consider that an order for equal shared parental responsibility is in the children’s best interests.
Having regard to all of the best interests considerations as discussed, I am of the view that most of the orders proposed by the mother as an alternative are in the best interests of the children.
I accept the views of the family consultant and attach particular weight to them for the reasons given. Although the family consultant could see some benefits and some possibility of the younger children having a relationship with the father, she could not see how this practically could be achieved especially given the state of the children’s relationships and the strength of their views. Further no other proposal was properly under consideration other than that the children live with the father or the mother.
As I have found that the views of the children have been shaped at least to some extent by their lived experience of the father and giving due weight to each of the best interests considerations, I am satisfied that most of the suite of orders proposed by the mother are in the children’s best interests.
I do not however make an order restraining the father from entering upon the children’s home or school or making contact with or approaching them as the mother seeks as there is no evidence to suggest that he may engage in such contact. The AVO made against the father for the mother’s protection expired some years ago and there is no evidence to suggest that he has engaged in any conduct of concern since that date.
I also do not propose making the orders sought by the mother that would enable her to travel internationally with the children and unilaterally obtain passports for them as such orders are broad and unfettered. They are not specifically limited to overseas holidays and if made could see the mother take the children from Australia for extended periods. In circumstances where she has a United States partner and has previously sought to live in the United States, a real risk arises that this may occur if such broad orders are made as she seeks.
The orders that I make are as set out at the forefront of these Reasons for Judgment.

I certify that the preceding three hundred and eighty two (382) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 August 2020.

Associate:

Date: 12 August 2020

[2020] FamCA 662

12 August 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction