Haberlin & Ezard
[2021] FedCFamC2F 232
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haberlin & Ezard [2021] FedCFamC2F 232
File number(s): TVC 1190 of 2020 Judgment of: JUDGE BOWREY Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – Parenting – undefended hearing – where the Father has demonstrated an unwillingness to engage in proceedings – consideration of the children’s best interests. Legislation: Education (General Provisions) Act 2006 (Qld)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Federal Court and Family Court of Australia Act 2021Cases cited: Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Tate & Tate [2000] FamCA 1040
Zane & Allen (2008) FLC 93-378
Division: Division 2 Family Law Number of paragraphs: 54 Date of hearing: 11 October 2021 Place: Townsville Counsel for the Applicant: Mrs Bassano Solicitor for the Applicant: MK Family Law Respondent: There being no appearance by or on behalf of the Respondent Counsel for the Independent Children's Lawyer: Mr Baston Solicitor for the Independent Children's Lawyer: Murray & Lyons Solicitors ORDERS
TVC 1190 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HABERLIN
Applicant
AND: MR EZARD
Respondent
ORDER MADE BY:
JUDGE BOWREY
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Orders dated 20 April 2015 be discharged.
Parenting responsibility
2.The mother have sole parental responsibility in relation to the major-long term issues affecting the children, X born in 2010 and Y born in 2012 (“the children”), including but not limited to:-
(a)The children’s education (both current and future);
(b)The children’s health;
(c)The children’s religion and cultural upbringing;
(d)The names by which the children are ordinarily known; and
(e)Any changes to the children’s living arrangements which make it significantly more difficult for the children to spend time with either parent.
3.In exercising sole parental responsibility, the mother must keep the father informed at all times as to the major long-term issues in relation to the children and specifically:-
(a)Attempt to communicate to the father the decision to be made, should she be able to do so by forwarding an email to the father at an email address to be provided by the father and to be kept current by the father; and
(b)Inform the father of any final decision made within forty-eight (48) hours of the making of the decision by forwarding an email to the father at an email address to be provided by the father and to be kept current by the father.
4.These Orders operate as authority for all care providers (including but not limited to doctors, health professionals, counsellors) to provide any information concerning the children to both the father and the mother. However the father is restrained from providing any instructions to any medical or health provider not to proceed or withdrawing consent to any treatments authorized by the mother without the mother’s written agreement or order of the Court. Any costs incurred in obtaining any documentation from any care provider will be the responsibility of the parent making the request.
5.This Order is authority for the children’s school or day care to provide both the mother and the father with copies of all school reports, any other reports on the children’s progress and behaviour issues, school newsletters and parent letters within the guidelines of that organisation. The mother and father are to authorize the children’s school or day care to provide copies of such documents as required from time to time.
Living arrangements
6.The children live with the mother.
7.The children spend time with the father as agreed between the parties in writing.
8.The father shall not remove the children from any place the children have been placed by the mother, including but not limited to schools and extra-curricular activities without the mother’s written consent or order of the Court.
Telephone communication
9.The children have telephone communication with the parent they are not living with at all times as may be agreed between the parents in writing.
10.The children be at liberty to have telephone communication with the parent they are not living with at all reasonable times that they express a wish to do so.
Obligations of the parents
11.That each parent be restrained and injunction issue restraining them from:-
(a)Denigrating the other parent, their partner, and their family to or in the presence of the children. Both parents use their best endeavours to ensure that no other person denigrates the mother or the father or their respective partners and families to or in the presence of the children;
(b)using prohibited drugs or being under the influence of prohibited drugs in the presence of the children, or within forty-eight (48) hours prior to the children entering their care;
(c)Taking prescribed drugs in excess of the prescribed dosage in the presence of the children or while the children are in their care; and
(d)Exposing and/or subjecting the children to domestic violence.
12.The Independent Children’s Lawyer be discharged.
AND THE COURT NOTES THAT:
A.The Court was provided with a document signed by the Applicant Mother and the Independent Children’s Lawyer, containing the Orders which have been made.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Haberlin & Ezard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOWREY
This parenting matter was heard on Monday 18 October 2021.
The Applicant is Ms Haberlin. She was represented by Mrs Bassano of Counsel instructed by MK Family Law.
The Respondent is Mr Ezard. He did not appear.
The proceedings are about the children X born in 2010 and now aged 11 and Y born in 2012 and now aged 9.
Mr Wright of Murray & Lyons Solicitors was appointed the Independent Children's Lawyer (ICL) for the two children. He was represented at the hearing by Mr Baston of Counsel.
ORDERS
The orders made by the court in the present proceedings are as follows:
(a)Interim order dated 9 November 2020. It provided for a shared care arrangement for the two children and for there to be a child inclusive conference pursuant to section 11F of the Family Law Act;
(b)Interim order made by consent on 16 December 2020. It provided that the children spend time with the Father on Christmas Day 2020, that the Mother provide a list of counsellors who would assist the child X, that the children be represented by an ICL and that the Father's response material be filed, as well as providing for trial directions.
(c)Order dated 4 May 2021 which vacated trial listed for September and noted that the requirements of s. 102NA(2) of the Family Law Act would apply to any cross-examination.
(d)Order dated 3 August 2021 which issued new trial directions including that the final hearing commence at 10:00am on 18 October 2021. There were the usual orders about filing and service of trial material and parties not being able to rely on material not filed in accordance with the trial directions, except by leave of the court.
(e)Order dated 11 October 2021 which provided that the trial listed to commence on 18 October 2021 remain as listed and that the applicant Mother may seek to proceed with an undefended hearing on 18 October 2021, on the basis that the Respondent Father has taken no part in the proceedings
(f)Order dated 15 October 2021, allowing solicitors for the parties to copy documents which were produced pursuant to any subpoena.
EXHIBITS
There were three Exhibits tendered in the hearing which proceeded on an undefended basis on 18 October, namely:
(a)Exhibit 1 – Email from Father on 18 October 2021. I refer to this below.
(b)Exhibit 2 – Tender bundle of documents obtained by the ICL. I refer below to the Father’s criminal history.
(c)Exhibit 3 – Letter to the Father from the Department of Education dated 11 July 2018.
HEARING ON 18 OCTOBER – FACTUAL/PROCEDURAL MATTERS
As foreshadowed in the order made on 11 October referred to in 6(e) above, when this matter came before the court on 18 October the Father was not present. He had not filed material. As a result, Mrs Bassano on behalf of the applicant Mother sought to proceed on an undefended basis, to conclude the proceedings and to have a final order made.
The ICL supported the Mother's position.
The ICL provided a copy of proposed orders. Mrs Bassano advised that the Mother agreed with those orders. A document headed “Exhibit 1 Minutes of proposed ICL’s Orders” was signed by the Mother and by the ICL Mr Wright.
I should record by reference to the orders listed above, when the Father appeared in these proceedings. Details are as follows:
(a)On 9th November 2020, Ms Shuttleworth, Solicitor appeared as Friend of the Court on behalf of the Respondent Father;
(b)On 16th December 2020 the Father appeared by video on his own behalf;
(c)On 4 May 2021 there was no appearance by or on behalf of the Father;
(d)The 3 August 2021 order was made in Chambers;
(e)On 11 October 2021 there was no appearance by or on behalf of the Father;
(f)The 15 October 2021 order was made in Chambers.
PROCEEDING UNDEFENDED
Mr Baston of Counsel advised that the ICL Mr Wright has telephoned the Father on a number of occasions although he has not always been able to speak to the Father. Mr Baston advised the Court that recently, the ICL Mr Wright telephoned the Father and left a message for him, advising of the trial proceeding on 18 October and that the Father needed to file trial material.
The best indication of the Father's attitude to the proceedings is shown in his email on the morning of the trial, namely at 6:34am on Monday 18 October 2021. It is Exhibit 1. The email is addressed “To whom it may concern” and reads as follows:
Ms Haberlin is a toxic and vindictive ex spouse who would stop at nothing to destroy a man's life and reputation by any means given available to her, it took 12 years for the australian family law courts to see my ex wife Ms B was beating me and our four children , 12 years before we were liberated from that hell and i was granted custody of C , D , E and F. I dont trust Ms Haberlin and i do not trust the australian courts to see through her manipulations in time to make the right choice. I will accept whatever time that Ms Haberlin has allocated for me to see X and Y without prejudice and when the children come of age they can make up their own minds . I will not engage in this sick and twisted process nor subject any of my children to it willingly again as long as i live and if the courts dont like it they can feel free to deport me back to City G, Country H.
There is a protection order in place where the Mother is the aggrieved and the Father is the respondent. There have been a number of breaches of the protection order by the Father and he has been charged and has appeared in the Magistrates Court, as a result of those breaches.
The Father has not engaged in the proceedings. As referred to in the previous section of this judgment, he appeared initially but has not appeared when this matter has been before the court this year. Further, the Father has not complied with court orders and directions about preparation for trial including the filing and service of his documents. The Father has not filed or served any documents.
Section 67 of the Federal Court and Family Court of Australia Act 2021 which is found under Division 4 – Case Management provides as follows:
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Section 67(2) includes the following objectives in reaching and applying the overarching purpose:
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload; and
(d) the disposal of all proceedings in a timely manner.
In my view, in proceedings where one party has failed to appear or be represented in court and has failed to comply with court orders including trial directions, it is necessary for the administration of justice and to deal appropriately with the Court’s workload, to not delay a case because of the failure of a party to appear in court and to attend to the necessary tasks leading up to a trial.
Part 10.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 deals with defaults by a party to proceedings. Rule 10.27 deals with orders which may be made on the default of a party.
Rule 10.26 says that for the purpose of Rule 10.27, a respondent is in default if the respondent fails to, amongst other things:
(a) give an address for service;
(b) file a response;
(c) comply with an Order of the Court in the proceeding;
(d) file and serve a document required under these Rules;
(f) do any act required to be done by these Rules; or
(g) defend the proceedings with due diligence.
I have left out sub-rules (e) and (h) as they do not apply in the current proceedings.
It will be seen from the Respondent Father's defaults, that he has done little if anything to comply with the Rules of this Court and/or with specific orders made in this case.
Rule 10.27 provides that the Court may make Orders upon the default of a party. Rule 10.27(2) provides that if a Respondent is in default, the Court may:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b)give judgment or make any other order against the respondent; or
(c)make an order referred to in paragraph (b) to take effect if the respondent does not take a step ordered by the court in the preceding, in the time limited in the order.
In my view, Rule 10.27(2)(b) can apply in this case, namely that the court can give judgement and orders sought by the Applicant and against the Respondent. In particular, this means making a parenting order in favour of the applicant Mother.
Mrs Bassano referred me to the case of Zane & Allen (2008) FLC 93-378. In that case, the Court noted that the explanatory guide issued with the relevant rules at that time, stated that a court may order that a hearing or trial proceed, because of the respondents failure to comply with a rule or order, as if a response had not been filed in the court. The Court may make orders set out in the application on being satisfied by evidence that the orders should be made.
I would mention that in this case, the Mother's amended initiating application and affidavit both filed on 28 September 2021, provide for the court significant evidence about the children and the benefits to them of making Orders in favour of the Mother.
The Full Court in the case of Tate & Tate [2000] FamCA 1040 held as follows:
It is not for litigants appearing in person or otherwise, to pick and choose which orders they will or will not obey or when they may condescend to comply with them. Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis. That is not only because it is contemptuous of the court orders. It is also because it works injustice to the parties who do comply and unfairness to that myriad of litigants waiting to have their matters dispatched as soon as the Court can hear them.
In my view, the comments by the Full Court in Tate are important. Further, it must be for the benefit of children that litigation between parents is brought to an end, based on appropriate evidence and as efficiently as possible. The court has limited resources to hear a large number of matters. Unnecessary time spent on a matter in which a party has not complied with court orders nor attended in court, means that other matters cannot be dealt with. This creates an unjust situation for other litigants.
Taking into account the legal issues involved and the facts of this case, it is my view that the Father apparently ignoring this Court and the orders it has made, the Father's view about these proceedings as evidenced by Exhibit 1 and the need for the Mother and the children to have security about parenting matters, mean that the hearing should proceed undefended.
RICE & ASPLUND
The children X and Y are subject to an order of this Court. On 20 April 2015 a consent order was made as a final order, which provided in its principal paragraphs as follows:
(a)The Mother and Father have equal shared parental responsibility for the major long-term issues for the children.
(b)The children live with each parent on a week about basis with changeovers on a Friday afternoon.
(c)Each parent be given the opportunity to care for the children if the other parent is not available, prior to anyone else being given that opportunity.
(d)Provisions about school holidays, Christmas, Easter and birthdays.
(e)The children and parents being at liberty to phone the other at all reasonable times.
(f)Restraints against the parents using excessive physical force on the children, consuming alcohol to excess or drugs and against denigrating either parent to or in the presence of the children.
As a result of the final order made in 2015 the principles set out in Rice & Asplund (1979) FLC 90-725 apply. Mrs Bassano submitted that there has been a significant change in the circumstances for the children since then, to justify the making of a further order now
I note that when the 2015 order it was made, X would have been just over 5 and Y was only 3.
It seems from the evidence there have been a number of significant changes in the children's circumstances since the 2015 Order. These changes are more than the usual position that the children were not at school when the first order was made (it seems that X may have been in prep) whereas the girls are now at school. Among the issues to be considered are
(a)The Father is the subject of a Family Violence Protection order dated 16 April 2019 in which he is the respondent. The order is in force until 15 April 2024.
(b)The Father has been charged with a breaches of the domestic violence order on a number of occasions and has been convicted.
(c)The parenting arrangement between the parents has broken down. No doubt the Father's breaches of the domestic violence order in addition to his behaviour when the order was made 2 years ago, have been a cause of that break down.
(d)The Father took X out of school for about two months to travel.
(e)X has lost the sight in one of her eyes. On the Mother's evidence, the Father is at least partly responsible for this tragedy for X, given that he was obstructive with respect to hospital treatment and medical treatment generally, for X.
(f)The Father has ceased spending time with the children. X has not spent time with the Father since Christmas 2020 and Y has not spent time with the Father since June 2020.
(g)The Father has been extremely hostile to the children's school. Clearly, this is not in the children's interests. I refer to this in more detail below.
(h)The ICL supports the making of further orders for the children.
Mrs Bassano referred me to various cases which have considered the Rice & Asplund principle including when it may or may not be applied. Justice Warnick made the point in SPS & PLS (2008) FLC 93-363, that a determination about the relevant principle is not simply a technical one. His Honour said:
When the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination ‘on the merits’. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reasons such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
Ten years later in Marsden & Winch [2009] FamCAFC 152, the Full Court approved Justice Warnick’s comment, noting that children should not be the subject of endless litigation, with the hope that a Court decision will result in at least a reasonable period of stability of those arrangements as ordered and freedom for the parents as well as the children, from the stressful and conflictual effects of litigation. Nevertheless, the Court accepted that significant changes can occur which do require a court to reconsider decisions previously made. As always, the best interests of the children should be the paramount consideration.
In my view, the best interests of these two children support and indeed require, the making of further orders.
FATHER'S CRIMINAL ISSUES
The first few pages of Exhibit 2, being the tender bundle provided by the ICL, show the Father's criminal history. A summary is as follows:
(a)The Father appeared before the Town J Magistrates Court on 23 October 2013, in relation to a number of charges arising from incidents in late 2012 and early 2013. These included breaches of a Domestic Violence Order, contravention of a Domestic Violence Order, breach of bail and possessing dangerous drugs. A conviction was recorded on all charges.
(b)The Father appeared before the Town J Magistrates Court on 15 October 2014. The charges which relate to that year, include multiple charges of contravention of a Domestic Violence Order. The Father was convicted on all charges.
(c)The Father appeared in the Magistrates Court on 27 February 2019. He was charged with breaching a prohibition on entering premises, on two occasions namely 30 and 31 January 2019. The Father was convicted on both charges.
(d)The Father appeared in the Town J Magistrates Court on 8 February this year. The charges relate to June and July last year, with respect to three contraventions of a Domestic Violence Order. The Father was convicted on all charges.
As I have referred to above, the co-parenting relationship has broken down. The Father has breached or contravened family violence order orders on many occasions. He seems to have no regard at all for Court orders.
DEALINGS WITH SCHOOL
Exhibit 3 is a letter addressed to the Father from the Deputy Director-General of State Schools in the Department of Education, dated 11 July 2018. It is a very concerning document. The letter refers to allegations that the Father behaved inappropriately while on the premises of the K School on 10 May 2018. This is the school X and Y attend. The letter has with it copies of statements and other documents which support the matters referred to in the letter.
Without detailing every issue about the Father’s behaviour on 10 May 2018, it included:
(a)The Father was observed to be very agitated, red in the face and waving his arms around wildly. He yelled at one of the teachers “if you ever raise your voice at my daughter again I'll have you in court” and “It is child abuse, you won't accept it, I'll see you in court” and “You think this is angry, you haven't seen anything yet”;
(b)The Father motioned towards the school office and said to the teachers “I'm not scared of you and I'm not scared of that mole in the office” in reference to the principal;
(c)When this incident was taking place, there were a number of young students either in the classroom or entering the classroom;
(d)The Father's voice was so loud that a teacher two classrooms away came to X’s classroom where this incident was occurring, concerned about what was happening;
(e)Shortly after, the Father entered the school office and demanded to see the principal. He yelled at an office staff member “where is that stupid whore of a principal? I want to speak to that bitch now. I want to speak to the fucking mole of a principal”.
(f)When asked to calm down, the Father became further agitated, repeatedly swearing, pointing his finger at the staff member and displaying aggressive and intimidating behaviour.
(g)The behaviour by the Father continued in an aggressive and abusive manner, to the extent that a parent with children in the school office had to be asked to do step outside because her children appeared to be very frightened.
(h)One of the staff members was accused by the Father of giving him a “look” and he said “don't you fucking give me that look”
(i)When the deputy principal intervened saying that the Father's behaviour was not appropriate, the Father said to the deputy principal in a threatening manner “Do you want to take me on Mr K, bring it on and I will fucking nail you”.
The letter from the Department of Education goes on for several pages including that on 10 November 2017 it is recorded as part of the Father’s completely unacceptable behaviour to K School, that the Father said to the business manager “this is fucking disgusting, if you ever send any of my children to the office without me knowing it, heads will fly in that school and I am fucking serious”.
In the end result the Department of Education issued a direction to the Father pursuant to s. 341 the Education (General Provisions) Act 2006 (Qld), prohibiting the Father from entering the premises of K School for one year.
Mr Baston of Counsel submitted and I agree, that notwithstanding in recent years there have been many reports of bad or very bad behaviour by parents, it is extremely rare for the Department of Education to write to a parent with a very detailed complaint and to ban a parent from the school his or her children attend.
In short, the Father's behaviour towards the staff of K School in the presence of parents and young children, was disgraceful.
PARENTAL RESPONSIBILITY
The existence of the current protection order which is in force until April 2024 combined with the Father's breaches of that order, rebut the presumption of equal shared parental responsibility.
Although the order made by consent in 2015 gave the parents equal shared parental responsibility for the children, I intend to discharge that order. Given the evidence of family violence by the Father and his unwillingness to comply with the relevant protection order, it is now not in the interests of the children that the Father shares parental responsibility for making decisions about them, with the Mother.
LIVING ARRANGEMENTS
With the presumption of equal shared parental responsibility being rebutted, the Court may consider, that there not be a shared living arrangement such as such as the one contained in the 2015 Order. In my view, it is not in the children's interests for there to be an order that they live with the Father. As referred to above, the Father's family violence, disregard for a protection order and behaviour including at the children's school, does not support his having an active parenting role including as a residence parent, in the lives of these children now.
Further, the children have not spend time with the Father for a considerable period, namely from mid-2020 for Y and since Christmas 2020 for X.
SECTION 60CC OF FAMILY LAW ACT
Section 60CA of the Family Law Act 1975 (Cth) says that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the Paramount consideration.
In determining what is in the child's best interests, s. 60CC requires the Court to consider the matters set out in sections 60CC(2) and (3).
The primary considerations in 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 subject to or exposed to, abuse and neglect or family violence.
In this case, the children have a meaningful relationship with their Mother. This will continue. The children have had a meaningful relationship with their Father although the evidence suggests that this relationship has been different for each girl. However, the Father has effectively withdrawn from that relationship during mid to late 2020 and since then. I am not convinced that the children should in any way be forced to maintain a relationship with the Father when he appears to be choosing not to have such a relationship, at the present time.
It is important to protect the children from physical or psychological harm. This includes protecting them from family violence. Given that the Mother has a protection order which the Father has continued to ignore and given the objective evidence from the Town J Magistrates Court about the Father's conviction on many occasions for contravening or breaching the family violence order, I do not see that the children can be protected from being subjected to family violence by requiring that they spend specified time with the Father.
Section 60CC(2A) requires the Court in applying the considerations set out in s. 60CC(2), to give greater weight to the consideration set out in s.60CC(2)(b), namely the need to protect the children, as referred to above. In this case, I find that the need to protect the children as referred to in ss. 60CC(2A) is of greater importance than the benefit to them of having a meaningful relationship with the Father. If I am incorrect regarding this, I am certainly of the view that at the present time and given the evidence about the Father's behaviour to the Mother and to the children's school in the last three years, that the need to protect the children is of great importance.
Additional considerations to be taken into account when making a parenting order are set out in s. 60CC(3). By reference to the paragraph numbers in that section and to the facts of this case, my view is:
(a)these children are mature enough to have a view about where they live. The Child Inclusive Conference memorandum following the conference on 14 December 2020, says that X wishes to live in the same house as her sister Y and that she was not “too worried” about whether she stays at either her Mother's or her Father's home. Y said that she is struggling with the time she was then spending with the Father, particularly given his living arrangements (spending time in tents) and her sense that she is required to keep secrets and engage in behaviour she felt was inappropriate. Neither child objected to the living with the Mother and they spoke warmly of her.
(b)I find that the children have a close and loving relationship with their Mother. The children have had at times a close relationship with their Father although that is not the case now.
(c)The Father has chosen not to participate in making decisions about long-term issues for the children. To the extent that education is a long-term issue for the children, I refer above to the very concerning behaviour of the Father at K Primary School. The Mother does spend time with the children (they live with her) and she makes decisions about them. I am not aware of the Father’s present support for the children.
(d)The likely effect of an order to be made now about the children circumstances namely that they should live with the Mother and she should have sole parental responsibility for them, will reflect the present position. This is that the children live with the Mother and do not have any contact with nor spend time with the Father. In an ideal world, the children would like to spend time with their Father and if he ceases his aggressive and abusive behaviour and attitude to the Mother, this could be of benefit to the children.
(e)There is no practical difficulty and expense for the children spending time with their parents subject to my comments in (d).
(f)I find that the Mother has the capacity to provide for the emotional and intellectual needs of the children. At present, I doubt that the Father has that capacity.
(g)The evidence supports the view that the Mother is mature in her parenting role and the children are mature appropriate to their ages.
(h)The children are not Aboriginal.
(i)The evidence supports the view that the Mother has an appropriate attitude towards parenthood including that she is protective of the children and has encouraged their development and education. This cannot be said of the Father.
(j)The Mother is the aggrieved in a Family Violence Protection order which has almost 2 years to run. The Father has breached that order on a number of occasions. The Father has been banned from attending at the children’s school because of his aggressive and abusive behaviour.
(k)See my comments above, including about the Father’s criminal issues.
(l)I do not know whether the Father may seek to litigate about the children and about the orders I will make, at some time in the future. That is a matter for him. In my view, the order handed to me on 18 October 2021 and signed by the Mother and by the ICL, is in the best interests of the children. That order shall be made.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bowrey. Dated: 22 October 2021
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