HOBBES & HOBBES AND ANOR

[2019] FamCA 173

FAMILY COURT OF AUSTRALIA

HOBBES & HOBBES AND ANOR [2019] FamCA 173

FAMILY LAW – CHILDREN – Best interests – With whom the children spend time and communicate – Where the first respondent is the mother of both the children –– Where the applicant is the biological father of the youngest child – Where the second respondent is the biological father of the eldest child – Where there is no challenge to the children’s primary residence with the mother – Where both children have meaningful relationships with the applicant and the second respondent and treat them both as their “fathers” – Where interim orders provide for the children to spend time with the applicant for two hours each alternate weekend at a contact centre – Where the applicant’s alleged sexual abuse of the youngest child is unsubstantiated – Where the children currently spend time with the second respondent every third weekend – Where the applicant sought orders for the children to spend five consecutive nights with him each alternate weekend – Where the mother, the second respondent and the Independent Children’s Lawyer sought orders for both children to spend time every third weekend with each father, subject to a gradual increase to that regime for the applicant – Where the evidence does not demonstrate the children are at unacceptable risk of harm with the applicant – Where the Family Consultant recommends a graduated increase in the duration of the children’s visits with the applicant – Where the second respondent’s work commitments prevent him from spending substantial and significant time with the children – Where the orders provide for the children to spend every fourth weekend with the second respondent – Where the children’s time with the applicant is expanded from one day each fortnight to four consecutive nights every fourth weekend – Where the children to communicate by telephone with the applicant and the second respondent on one occasion each week.  

FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility for the eldest child applies between the mother and the second respondent – Where the presumption of equal shared parental responsibility for the youngest children does not apply because of past family violence by the applicant against the mother – Where the relationship between the mother and the applicant is too volatile for them to share parental responsibility – Where the mother shall have sole parental responsibility for the youngest child.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC(2), 60CC(3), 61B, 61DA(2), 61DA(4) 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

APPLICANT: Mr Hobbes

FIRST RESPONDENT: Ms Hobbes

SECOND RESPONDENT: Mr Lennox

INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

FILE NUMBER: PAC 512 of 2018

DATE DELIVERED: 25 March 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12, 13 & 14 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Lo Schiavo

SOLICITOR FOR THE APPLICANT: SCB Legal Pty Ltd

COUNSEL FOR THE FIRST

RESPONDENT:

Ms L Ticehurst

SOLICITOR FOR THE FIRST

RESPONDENT:

Virginia Taylor Partners

THE SECOND

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Williams

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

Orders

1. All former orders related to the following children are discharged:

   (a)X, born in 2010; and

   (b)Y, born in 2013.

2. The first and second respondents shall have equal shared parental responsibility for X.

3. The first respondent shall have sole parental responsibility for Y.

4. The parties shall take all reasonable steps to ensure both children spend time with the applicant:

   (a)From 9.00 am until 5.00 pm on Saturday 30 March, Saturday 13 April and Saturday 27 April 2019;

   (b)From 9.00 am on Saturday 18 May until 5.00 pm Sunday 19 May 2019;

   (c)From 5.00 pm on Friday 14 June until 5.00 pm on Sunday 16 June 2019;

   (d)From 5.00 pm on Thursday 11 July until 5.00 pm on Sunday 14 July 2019;

   (e)From 5.00 pm on Thursday 8 August 2019 until the commencement of school (or 9.00 am if not a school day) on Monday 12 August 2019, and for the corresponding four-night period commencing at 5.00 pm every fourth Thursday thereafter;

   (f)For two separate periods of seven consecutive days each calendar year, not less than four months apart, subject to:

   (i)The first such period not commencing before 1 September 2019;

   (ii)The provision of no less than two months written notice to the mother;

   (iii)The applicant’s written confirmation to the mother that he will be on annual leave during the seven days the children spend with him;

   (iv)The nominated weeks excluding Christmas Day; and

   (v)The nominated weeks not clashing with the time due to be spent by the children with the second respondent pursuant to Order 6;

   and

   (g)From 9.00 am on 26 December until 9.00 am on 27 December each year.

5. For the purpose of implementing Order 4, the parties shall exchange the children at McDonalds Restaurant at Suburb D NSW.

6. The parties shall take all reasonable steps to ensure both children spend time with the second respondent:

   (a)From 5.00 pm Friday until 5.00 pm Sunday every fourth weekend, commencing on Friday 5 April 2019;

   (b)For two separate periods of seven consecutive days each calendar year, not less than four months apart, subject to:

   (i)The provision of no less than two months written notice to the mother;

   (ii)The second respondent’s written confirmation to the mother that he will be on annual leave during the seven days the children spend with him;

   (iii)The nominated weeks excluding Christmas Day; and

   (iv)The nominated weeks not clashing with the time due to be spent by the children with the applicant pursuant to Order 4

   and

   (c)From 5.00 pm on 23 December until 5.00 pm on 24 December each year.

7. For the purpose of implementing Order 6, the parties shall exchange the children at the McDonalds Restaurant at Suburb B, NSW.

8. The parties shall take all reasonable steps to ensure the children communicate privately by telephone with:

   (a)The applicant each Tuesday at 6.00 pm, for which purpose the applicant shall telephone the children on the telephone number provided to him by the first respondent and the first respondent or second respondent shall ensure the children are able to receive the applicant’s calls on that number at that time.

   (b)The second respondent each Wednesday at 6.00 pm, for which purpose the second respondent shall telephone the children on the telephone number provided to him by the first respondent and the first respondent or the applicant shall ensure the children are able to receive the second respondent’s calls on that number at that time.

9. The first respondent shall authorise and request the principal of any school attended by the children to provide to the applicant, at the applicant’s expense, copies of all school reports and school photograph order forms relating to the children.

10. The applicant is restrained from attending the children’s schools other than for the purpose of ceremonies and events to which the parents of students are ordinarily invited.

11. Each party is restrained from denigrating the others in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the others.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

14. Costs are reserved for 28 days.

15. Any and all other outstanding applications are dismissed.

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 Hobbes & Hobbes and Anor 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 NEWCASTLE

FILE NUMBER: PAC 512 of 2018

Mr Hobbes

Applicant

And

Ms Hobbes

First Respondent

And

Mr Lennox
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders for two children, now aged eight and six years.

2. The first respondent is the mother of both children.

3. The applicant is the biological father of the youngest child, while the second respondent is the biological father of the eldest child.

4. Both children live with the mother and their primary residence with her is not under threat. The contest is over the extent to which the children should spend time and communicate with the two fathers and the manner in which parental responsibility for the youngest child should be allocated.

Short history

1. The eldest child was born in 2010, shortly after the applicant and the second respondent ended their relationship, though they have commendably maintained a cooperative parental relationship ever since. Until now, they have not needed any parenting orders made in respect of the eldest child.

2. The mother and the applicant commenced cohabitation in 2012 and finally separated in January 2017. There was at least one earlier separation. The youngest child was born during their relationship in 2013.

3. Upon their separation, the children lived between the mother and the applicant in a shared care arrangement, but spent every third weekend with the second respondent. That regime continued until September 2017, when the mother and children moved from Sydney to Area D with the consent of both fathers. For the next few months, the children lived primarily with the mother, but spent rotating weekends with the mother, the applicant and the second respondent.

4. In January 2018, as a consequence of comments made by the youngest child, the mother formed a belief the applicant had sexually abused her and so decided to sever the children’s interaction with him. The mother interrogated the youngest child about it, which interrogation was video-recorded. The allegation was reported to the NSW Joint Investigation Response Team (“JIRT”), who interviewed the youngest child and found the allegation unsubstantiated. The mother did not relinquish her fear of the abuse and so insisted on the applicant being supervised with the children.

5. The applicant was dissatisfied with that arrangement and so he commenced these proceedings in February 2018. One day later he attended the youngest child’s school to take her away for the weekend, without notice to the mother, but then detained her. He and a friend then interrogated the youngest child about the sexual abuse allegation. The eldest child remained in the mother’s care.

6. Shortly afterwards, interim orders were made by the Federal Circuit Court of Australia restoring the youngest child to the mother’s care. The proceedings were transferred to this Court for determination, given the allegations of sexual abuse.

7. More interim orders were made in May 2018, once the proceedings were before this Court, formalising the children’s visits with the second respondent every third weekend and making provision for both children to spend time with the applicant under professional supervision at a contact centre for two hours each alternate weekend. Those orders continue to apply.

8. Presently, the mother and the children live with the maternal grandmother in  Area D. The mother is not employed outside the home. The applicant lives in Town E and he is employed on a full-time basis. The two homes are about 45 kilometres apart and the road journey takes about 40 minutes. The second respondent lives in shared accommodation in Sydney, but spends every third weekend with the children at his parent’s home in Town F.

Proposed orders

1. The applicant sought the orders set out in the Minute of Orders he tendered just prior to the commencement of final submissions.[1]

   [1] Exhibit A7

2. He wanted to equally share parental responsibility for the youngest child with the mother. His proposal for the children to spend time with him and the second respondent was a relatively complicated regime of rotating and split weekends, school holidays, and a multitude of other special occasions. In essence, he wanted the children to eventually spend five consecutive nights with him each alternate weekend during school terms.

3. The mother, the second respondent and the Independent Children’s Lawyer proposed broadly similar suites of orders in respect of the children – assuming a finding was made that the applicant poses no material risk of harm to the children. The mother and the Independent Children’s Lawyer tendered separate Minutes of Orders,[2] though the Independent Children’s Lawyer noted her Minute failed to expressly provide for the gradual escalation of the children’s time with the applicant, which she intended would apply in accordance with the Family Consultant’s evidence.[3] The second respondent did not tender any Minute of Orders, but said he supported the Independent Children’s Lawyer’s proposal.

   [2] Exhibits M1, ICL1

   [3] Family Report, paras 202, 213

4. Generally speaking, the mother, the second respondent and the Independent Children’s Lawyer all proposed: the mother and the second respondent equally share parental responsibility for the eldest child; the mother have exclusive parental responsibility for the youngest child; and the children should together spend every third weekend with each father, subject to a gradual increase to that regime in respect of the applicant, plus some additional time in school holidays and on some special occasions.

Evidence

1. The applicant relied upon his affidavit filed on 6 February 2019, but only a selection of the annexures were separately tendered in evidence.[4] None of those exhibits proved to be important.

   [4] Exhibits A1-A5

2. The mother relied upon:

   (a)Her affidavit, filed on 1 February 2019; and

   (b)The affidavit of her sister, Ms G, filed on 18 May 2018.

3. The second respondent did not file a trial affidavit because of the general consensus between him, the mother and the Independent Children’s Lawyer about the time both children could spend with him and his allocation of equal shared parental responsibility for the eldest child.[5]

   [5] Notation D made on 6 February 2019

4. The parties and the Independent Children’s Lawyer also relied upon the following documents prepared by the Family Consultant:

   (a)The Memorandum, dated 8 May 2018; and

   (b)The Family Report, dated 27 August 2018.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests – primary considerations

Section 60CC(2)(a)

1. There was no dispute about the quality of the children’s relationships with the mother. They will maintain their residence with her.

2. Nor was there any contest about the quality of the children’s respective relationships with the applicant and the second respondent, though only the biological relationships are pertinent, due to the confinement of s 60CC(2)(a) of the Act to the consideration of relationships between children and their “parents”. The applicant is not the eldest child’s parent. Nor is the second respondent the youngest child’s parent. Nevertheless, the children treat both the applicant and the second respondent as their “fathers” and the non-biological relationships are still an important consideration, albeit pursuant to s 60CC(3)(b)(ii) of the Act. The Family Consultant witnessed the loving relationships enjoyed by both children with both fathers.[6] None of that evidence was the subject of any dispute.

   [6] Family Report, paras 146, 154, 158, 163, 164

Section 60CC(2)(b)

1. Despite making various criticisms of the mother, the applicant did not contend the children needed protection against any harm they could suffer from subjection or exposure to abuse, family violence or neglect whilst in her care. The fact he proposed the children continue to live with the mother was eloquent proof of his acceptance of their safety and sustenance when with her.

2. Conversely, the mother contended the children need protection against harm they are liable to suffer from subjection to sexual abuse by the applicant, which risk she asserts arises from the youngest child’s disclosures in January 2018.

3. In January 2018, the youngest child and her cousin (Z) were both four years of age. They were playing together at the maternal aunt’s home. Events then unfolded as follows.

4. The maternal aunt walked into the room in which the youngest child and Z were talking. Z then said to the maternal aunt:

   Mum, [the youngest child] just said sometimes her daddy’s doodle goes in her mouth.

5. The maternal aunt then turned to the youngest child and said:

   Can you tell me what you just told [Z]?

6. The maternal aunt described the youngest child as then looking hesitant, worried and scared, but she then replied:

   Sometimes I fall out of my bed…Sometimes daddy’s doodle goes in my mouth.

1. The youngest child then confirmed the “daddy” to whom she was referring was the applicant, not the second respondent.

2. The youngest child was staying the night at the maternal aunt’s home and so the maternal aunt delayed speaking to the mother about the revelation until the next morning.

3. Upon being told, the mother took the youngest child into another room so they could speak privately. The mother then video-recorded two conversations she had with the youngest child. The video footage of those conversations was tendered in evidence.[7] The mother conceded in cross-examination the youngest child did not confirm any impropriety by the applicant during her interrogation. In fact, despite the mother’s leading questions, the child actually denied any sexual abuse by the applicant.

   [7] Exhibit A6

4. The mother still reported the matter to the child welfare authority helpline and arrangements were subsequently made for the youngest child to be interviewed by JIRT officers. The mother deposed that, as they arrived at the venue for the formal interview, the youngest child said to her:

   You’re going to make me talk about daddy. I don’t need to, he said he’s not going to do it in the new house, only the old house.

5. The mother considered that comment to be significant, because the father moved from one house to another only a month before in December 2017.

6. Neither the recording nor the transcript of the JIRT interview was adduced in evidence, but the Family Consultant inspected the “JIRT records”. She reported the youngest child made no disclosure of sexual abuse and appeared protective of the applicant during the JIRT interview. Most importantly, the youngest child expressly denied the applicant had ever “sexually touched” her or that she had ever “sexually touched” him.[8] The parties acknowledge the JIRT officers concluded that the sexually abusive nature of the youngest child’s disclosures to Z and the maternal aunt were unsubstantiated and so no further action will eventuate.

   [8] Family Report, para 173

7. In this litigation, the mother accepted the evidence was insufficiently strong to support a positive finding that the applicant sexually abused the youngest child in the manner the child alleged or implied. Nonetheless, she contended the possibility that such sexual abuse occurred is sufficiently disturbing to justify a finding that the applicant poses an unacceptable risk of harm to both children. She contended the only way to satisfactorily avert the risk is to ensure that any future personal contact between the applicant and the children is professionally supervised in a contact centre, as currently occurs under the prevailing interim orders.

8. The applicant denied the evidence was sufficient to support a finding that he poses a risk of harm to the children (for any reason) and, at least to that extent, the Independent Children’s Lawyer agreed with him.

9. The evidence does not support a finding that the children are at unacceptable risk of harm by reason of their subjection to sexual abuse by the applicant. The unreliability of the youngest child’s disclosures and the credibility of the applicant’s denial preclude such a finding.

10. Several aspects of the evidence undermine the veracity of the youngest child’s disclosures.

11. First, male genitalia was not a foreign concept to the youngest child, so her discussion of it could not, of itself, have been a surprise to the mother. The child’s familiarity with the concept of male genitalia and her comfort discussing it is evident from her use of terms like “doodle” and “penis”. She referred to “doodle” in her conversations with Z and the maternal aunt and, during the subsequent video-recorded interrogation, the mother introduced the topic to the child by asking about the applicant’s “penis”. The mother would not have used that word unless she believed the child understood its meaning. The language the child used when discussing the applicant’s genitalia in January 2018 was language she had heard and used before. The common use of such language to describe male genitalia in the mother’s home is exemplified by the eldest child’s use of the word “doodle” to report an unrelated incident months before in March 2017.[9]

    [9] Mother’s affidavit, para 37

12. Second, the youngest child’s conversation about genitalia has not been accompanied by any sexualised behaviour. Her disclosures to Z and the maternal aunt would be more worrying if she was then acting, or has since acted, in a sexualised way, as that would tend to suggest she has actually experienced some form of sexual behaviour – either as a witness or as a participant.

13. Third, it must be accepted as probably correct that the youngest child told both Z and the maternal aunt words to the effect that “sometimes [the applicant’s] doodle goes in [her] mouth”, but the fact she said it does not mean her representations were true. Circumstances surrounding the revelation leave room to reasonably infer the youngest child might have mischievously said such a thing to shock her cousin. Having said it, the revelation spun out of her control. Z reported it to the maternal aunt, who in turn reported it to the mother, who in turn reported it to the authorities. The maternal aunt said the child was hesitant, worried and scared when asked to repeat the allegation. She inferred the child felt that way for fear of being in trouble for having done something wrong,[10] but it may just as easily have been for fear of having told a lewd lie. When the mother interrogated the child the next morning, she protested against the mother’s idea to report the allegation to “other adults”. The mother may think she protested because she was fearful of the secret getting out and the applicant learning she betrayed his confidence, but it might just as easily be because the child did not want the lie perpetuated and disseminated more broadly. The child’s protests were repeated more than a week later when the mother took her to the JIRT interview. The child’s protest that the applicant would not repeat any misconduct in his “new house” was probably designed to re-assure the mother that it was unnecessary to take the complaint any further. It is not more evidence to inculpate the applicant.

    [10] Maternal Aunt’s Affidavit, para 7

14. Fourth, the mother conducted her video-recorded interview with the child effectively as an interrogation. That is not to say she deliberately set out to frame the applicant for the child’s sexual abuse, but she certainly honestly believed the abuse occurred and she expected it would be confirmed. In cross-examination, with the benefit of hindsight, the mother agreed it was unwise for her to have interviewed the child and that the questions she asked of the child were unfair, because they implied the answers she expected to receive.

15. Fifth, despite the implicit pressure exerted by the mother’s leading questions, the youngest child resolved to disavow any sexual impropriety by the applicant. She was initially very reluctant to be drawn into any discussion of her revelations the day before to Z and the maternal aunt about the applicant’s penis sometimes being in her mouth. However, when she realised the mother was insistent about their discussion of it and her resistance was futile, she engaged with the questions, but she recanted the initial version. For example, she said:

    (a)She rolled out of bed onto the applicant and her mouth was only “near” his “private area”;

    (b)The applicant was clothed and his penis was “in[side] his pants” (in which event it was impossible for the applicant’s penis to penetrate her mouth);

    (c)The applicant’s penis did not come near her;

    (d)The applicant’s penis did not go “in anywhere” (in which event there was no penetration of any kind);

    (e)The applicant did not do anything to her “private area” or her mouth;

    (f)She has never even seen the applicant’s “private parts”; and

    (g)The applicant has never asked her to keep secrets.

16. Significantly, during cross-examination, the maternal aunt confirmed that when immediately confronted about her disclosure to Z, the youngest child told her that the applicant was clothed when she alleged she fell out of bed onto him.

17. Sixth, the youngest child expressly denied any sexual impropriety by the applicant during her formal JIRT interview and the JIRT officers were satisfied that her disclosures to family members were unsubstantiated.

18. Lastly, the only evidence of the applicant’s misconduct was the youngest child’s disclosures to Z and the maternal aunt, which she later recanted to the mother and JIRT officers. The mother confessed she had no reason to suspect the applicant as a sexual risk to the children before the youngest child’s revelations in January 2018.[11]

    [11] Family Report, para 66

19. There is also the applicant’s evidence to consider. His denial of any sexual impropriety with the youngest child was compelling. He willingly went to the police to enquire about the allegations made against him,[12] which is hardly compatible with him harbouring any consciousness of guilt. He denied his sexual misconduct, both to the Family Consultant and in evidence, and he credibly withstood cross-examination on the issue.

    [12] Applicant’s affidavit, para 52

20. Given the mother’s failure to substantiate the alleged risk of harm posed to the children by the applicant as a consideration under s 60CC(2)(b), the quality of the youngest child’s relationship with the applicant rises to prominence as a consideration under s 60CC(2)(a) of the Act.

Best interests – additional considerations

1. Not all of the additional considerations prescribed by s 60CC(3) of the Act were engaged by the evidence. By the time of final submissions, the only factors submitted by the parties and the Independent Children’s Lawyer to be material were the children’s incapacity to cope with anything approaching their shared care between the mother and the applicant (s 60CC(3)(d)), the children’s views (s 60CC(3)(a)), the applicant’s lack of insight (ss 60CC(3)(f), 60CC(3)(i)), and the applicant’s past commission of family violence (s 60CC(3)(j)).

2. Given the finding that the applicant does not pose an unacceptable risk of harm to the children, the quality of their relationships with him requires the immediate dispensation of professional supervision and the expansion of the time they spend with him. The Family Consultant recommended the expansion should be graduated,[13] the reason for which she explained in cross-examination was to accommodate the anxiety of both the mother and the children. While the applicant was prepared to countenance some graduation, he wanted to accelerate it and increase the duration of their visits to five nights each fortnight (exclusive of school holidays and special occasions). On the balance of probabilities, neither child could cope with an eventual arrangement under which they spend that much time with the applicant away from their primary residence.

   [13] Family Report, paras 202, 213

3. The mother and the applicant shared the children’s care for the period of about nine months immediately following their final separation in January 2017 and they adopted the same form of regime during an earlier period of separation in 2016. The youngest child suffered from enuresis and she was referred to a psychologist in 2016 with separation anxiety and temper tantrums, which conditions the Family Consultant attributed to the shared care arrangement.[14] The child’s enuresis and temper tantrums endured after she was abducted by the applicant and returned to the mother in February 2018.[15] While the applicant may feel the child’s anxiety is related to her separation from him, as the Family Consultant opined, it is instead more likely related to her exposure to the conflict between the mother and the applicant and the apprehension she experiences about her exchanges between them. The shared care arrangement was unsuitable for the children.[16] As the Family Consultant said in cross-examination, shared care regimes may not even be developmentally suited to children when their parents have a cooperative working relationship, but such regimes rarely work without such cooperation, and the mother and the applicant do not enjoy a cooperative relationship.

   [14] Family Report, paras 71, 191, 193

   [15] Family Report, para 183, 193

   [16] Family Report, para 191

4. The eldest child was also referred to a psychologist in 2016 to deal with her anger and separation anxiety.[17] Overlaying her anxiety is some form of developmental delay, which the Family Consultant considered could impede her ability to cope with change and any lack of stable routine. The eldest child was cognitively assessed by her school counsellor in November 2018 to be in the “low average” range,[18] which the Family Consultant said in cross-examination raised her concern about the child’s ability to cope with a shared care regime. The applicant conceded during his cross-examination that the eldest child’s cognitive deficits meant it was important for her to have structure and routine in her life.

   [17] Family Report, para 191

   [18] Exhibit M2

5. The Family Consultant maintained her view that neither an “equal time” arrangement,[19] nor any shared care arrangement approaching equal time, would be appropriate for the children. I accept that opinion evidence. The time the children spend with both fathers should be more confined, to extended weekends at most, but the confinement should not be such as to impinge the valuable relationships the children enjoy with both fathers.

   [19] Family Report, para 194

6. The children certainly expressed to the Family Consultant their desire to see more of the applicant, but that is in the context of them presently spending only two hours per fortnight with him at a contact centre.[20] Neither child expressed the need to see more of the second respondent,[21] which is understandable since they currently see him every third weekend. The children’s young ages and relative immaturity must mean their views carry little overall weight, which the applicant acknowledged during final submissions.

   [20] Family Report, paras 146, 158, 162

   [21] Family Report, para 161

7. The mother contended, and I accept, certain aspects of the applicant’s behaviour betrayed his lack of insight, which bears upon his capacity to prioritise the children’s emotional needs above his own and raises concern about his attitude to the responsibilities of parenthood. Hence, his parental role should be subservient to that played by the mother. Several examples illustrate the point.

8. He maintained that the mother’s response to the youngest child’s disclosure of possible sexual abuse was unreasonable. He seemed to assume that, because he denied the allegation, the mother should have shelved her worry and unconditionally accepted the truth of his denial. He seemed not to appreciate that a responsible parent in the mother’s position would not have summarily dismissed a daughter’s clear complaint that her father’s penis was occasionally in her mouth. It would have been gravely irresponsible for the mother not to have taken such an allegation seriously.

9. Once the allegation was made, the mother instructed her solicitors to correspond with the applicant’s solicitors explaining the nature of the allegation and why she was acting to temporarily suspend the children’s interaction with him.[22] With little apparent thought for the consequences, the applicant shortly thereafter drove from Sydney to Area D to collect the youngest child from school and take her back to Sydney, where he detained her. His explanation for such conduct was merely that there were no parenting orders in place to prevent him doing so and, according to preceding weekend rotations, it was “his weekend”. The unresolved sexual abuse allegation did not deter his rash decision. A sensible parent applying only a modicum of forethought would not have acted as he did. In cross-examination, the applicant said, in retrospect, he regrets having abducted the youngest child in that way, but that was the first time the mother had heard such a concession from him. To have maintained the righteousness of his conduct until well into the trial reveals an incapacity to objectively appreciate the mother’s perspective. As the Family Consultant said, his behaviour was “antagonistic and inconsiderate”.[23]

   [22] Applicant’s affidavit, para 50

   [23] Family Report, para 197

10. Having detained the youngest child in Sydney (until he was later compelled by a recovery order to return her to the mother), the applicant caused or allowed the youngest child to telephone the mother to inform her she wanted to live with him instead and to enrol at a new school. He said in cross-examination he put no pressure on the child to do so. Rather, he said he gave her a choice and she chose him. Assuming the applicant was being truthful, his inability to understand how a four year old child was then merely reacting to the pressure she perceived he was exerting upon her to demonstrate her allegiance to him is alarming. His failure to appreciate how he was prioritising his own emotional needs to have the child live with him, regardless of her making an objectively credible complaint of his sexual abuse of her which was still in dispute, above the child’s emotional needs to maintain her primary residence with the mother and her sister is astonishing. His failure to appreciate the mother’s understandable loss of trust in him as a consequence is just as mystifying.[24]

    [24] Family Report, para 92

11. When the applicant commenced these proceedings in February 2018, he filed a Notice of Risk enumerating the various ways in which he contended the children were at risk while living with the mother. Of course, his maintenance of those criticisms of the mother was wholly inconsistent with his proposal for the children to live primarily with her, or at the very least, live with her for substantial periods in a shared care arrangement. He maintained those criticisms up to and during the trial. His trial affidavit was replete with such criticisms, which were gratuitous and entirely unnecessary.[25] They included her laziness, her psychological fragility, her inability to keep a clean house, her neglect of the children’s nutritional needs, her inability to keep the children safe from strangers, and her failure to properly supervise the children. The mother was not challenged about any of those allegations, but they were not withdrawn. They were left to fester and poison the relationship between the mother and the applicant. What is the mother to reasonably think, other than that those allegations represent the applicant’s true feelings about her?

    [25] Applicant’s affidavit, paras 69-80

12. The applicant also began the trial contending the mother alienated the children from him. Although he abandoned the contention during his cross-examination, it was a theme of his prior discussions with the Family Consultant[26] and the evidence he filed. As the Family Consultant pointed out, the applicant was misconceived.[27] The mother could not have been damaging his relationships with the children given: the excellent state of the children’s relationships with him, her acknowledgement the children love the applicant and enjoy spending time with him,[28] her encouragement of the children to speak with the applicant on the telephone, her inclusion of the applicant on school enrolment forms for both children,[29] and her willingness to abide by the Court’s orders once the thorny issue of the alleged sexual abuse of the youngest child is settled by findings.[30]

    [26] Family Report, paras 49, 87

    [27] Family Report, paras 87, 196, 203

    [28] Family Report, para 59

    [29] Family Report, paras 174-175

    [30] Family Report, paras 38, 52, 56, 72

13. Just as he did with the Family Consultant,[31] the applicant presented during the trial as a person lacking the capacity to reflect upon the children’s experiences and to assume responsibility for his own parental behaviour. By comparison, the mother has good insight into the emotional needs of the children.[32]

    [31] Family Report, para 201

    [32] Family Report, para 203

1. Occasional family violence was an incident of the domestic relationship between the mother and the applicant, though there was some dispute over its severity. The mother did not use the evidence of family violence to try and curtail the time the children should spend with the applicant, since she accepts the children will not be exposed to family violence when visiting him. Rather, she only sought to employ the evidence to influence the allocation of parental responsibility for the youngest child (s 61DA(2)(b)), and additionally, to partly explain her lack of trust in the applicant and her desire to minimise any future interaction with him. Given the limited use to which the evidence was put, it is unnecessary to delve into much detail. Suffice to say, the applicant admitted conduct which, on occasions, certainly amounted to family violence (s 4AB). Examples are when he punched a wall above the mother’s head in 2015, when he surreptitiously used the mother’s passcode to gain access to her mobile telephone and read her private correspondence in January 2017, and when he physically wrestled the mother to try and take away her keys when she was attempting to separate from him in January 2017.

Conclusions and orders

Parental responsibility

1. The mother and the second respondent agreed they should be conferred with equal shared parental responsibility for the eldest child. As her parents, they have an “excellent” working relationship.[33] The Independent Children’s Lawyer concurred. In the case of the eldest child, the presumption of equal shared parental responsibility applies and is not rebutted (s 61DA)

   [33] Family Report, para 133

2. The allocation of parental responsibility for the youngest child was controversial. In her case, the presumption of equal shared parental responsibility does not apply because the applicant undoubtedly engaged in family violence during his past relationship with the mother (s 61DA(2)(b)). The inapplicability of the presumption does not preclude an order being made to allocate equal shared parental responsibility, but the evidence must first demonstrate such an order would be in the youngest child’s best interests.

3. The mother lacks trust in the applicant for several reasons: her honest (though probably mistaken) belief in his sexual abuse of the youngest child; his abduction of the youngest child in February 2018; and his many baseless criticisms of her. The mother told the Family Consultant,[34] and confirmed in evidence during cross-examination, she doubted she could ever recover trust in the applicant. The applicant’s apparent belief that the mother should put that all behind her and simply now agree to the implementation of a shared care regime and to share the youngest child’s parental responsibility with him is facile.[35]

   [34] Family Report, para 73

   [35] Family Report, para 82

4. The Family Consultant adhered to her view that the breach of trust between the mother and the applicant precludes their cooperation, and hence, also an order conferring upon them equal shared parental responsibility for the youngest child.[36] Her concession that the parental relationship between the mother and the applicant “may” improve in the future, once this litigation is finalised, is an insufficiently secure basis upon which to allocate them equal shared parental responsibility. It would elevate hope over expectation. The mother shall therefore have exclusive parental responsibility for the youngest child.

   [36] Family Report, paras 135, 198

5. It is then necessary to consider the frequency and the amount of time the children should spend with the fathers. It is convenient to note at this point that the parties and the Independent Children’s Lawyer were all adamant the children should accompany one another on all visits to each father. Nobody envisaged the children would be split, save for the applicant, who made that proposal for the children each Father’s Day.[37]

   [37] Exhibit A7, Orders 23-24

Time with the applicant

1. During the trial, in asserted deference to the Family Consultant’s evidence that a shared care arrangement was unsuited to the children, the applicant reduced the amount of time he proposed that they spend with him. He began the trial seeking six nights per fortnight, but finished it by seeking five consecutive nights per fortnight, allowing for occasional clashes of weekends when the children would need to spend time with both fathers.[38] His proposal for five consecutive nights each alternate weekend is still tantamount to a shared care regime, which the Family Consultant disavowed.

   [38] Exhibit A7, Orders 5-6

2. In the Family Report, the Family Consultant recommended that, subject to graduation, the children should eventually spend three consecutive nights on alternate weekends with the applicant,[39] which she confirmed at one point during her cross-examination. However, that was in the context of her understanding that the contest was essentially whether the children should spend time with the applicant either every second or every third weekend. Importantly, other aspects of her evidence stressed her concern about the entrenched conflict between the mother and the applicant and the cognitive limitations of the eldest child.

   [39] Family Report, para 213

3. In this case, the children regard themselves as having three parents. Since the children must primarily live with the mother, the applicant cannot be unduly prioritised over the second respondent in their lives. Both fathers must be adequately accommodated. By the same token, the children’s need for stability and predictable routine cannot be sacrificed merely so all parents feel as though they see enough of the children. The paramountcy principle means the parents’ interests must yield to the children’s interests. Accordingly, the regime for the children cannot be allowed to become too fragmented, which would be the inevitable consequence of the adoption of the applicant’s elaborate proposal.[40]

   [40] Exhibit A7, Orders 5-30

4. The children’s sense of security and stability would be best enhanced by them spending every fourth weekend, rather than every third weekend, with each father. That will consolidate their primary residence with the mother and ensure they are only away from home every alternate weekend. The cycle would then be: the first weekend with the mother, the second weekend with one father, the third weekend with the mother again, and the fourth weekend with the other father.

5. Although the applicant is employed on a full-time basis, he gave uncontradicted evidence of his flexible work hours which can be varied to accommodate his care of the children. Given such flexibility, there is no need to confine the children’s weekend visits with him to Saturdays and Sundays. He ordinarily finishes work early on Fridays so there is no reason he could not collect the children on Thursday evenings and return them to school on Monday mornings. His shorter work hours on Fridays and his sufficient proximity to the children’s school would allow him to deliver the children to and collect them from school that day. The children would then spend four consecutive nights with the applicant every fourth weekend, which is about one-half of his proposal, but not much less than the six nights per month countenanced by the Family Consultant.

6. While the applicant’s desire to spend more time with the children is understandable, the children will still maintain their loving relationships with him under that slightly curtailed regime. He could not point to any evidence which would suggest that four consecutive nights every four weeks was too little time to enable the children’s retention of their loving relationships with him. It is much more time than the four hours per month they presently spend with him at a contact centre, which regime has not diminished their love for him over the past year.

7. The orders introduce that regime between the children and the applicant on an escalating basis. The graduation does not correlate exactly with the Family Consultant’s recommendation, but there is no science to the rate at which the graduation should accelerate. It was an issue which attracted little attention in the evidence and final submissions.

8. The children should have the opportunity to spend some longer periods with the applicant, even if not during their school holidays, but that should be dependent upon him having some corresponding annual leave from work because he has no family or friends in the local area who can help him care for the children. Changing his work commitments when he has responsibility for the children every fourth Friday may not be problematic, but changing his clashing work commitments for periods of one week at a time may be quite different. Again, that was an issue hardly broached in the evidence or submissions. The orders will accommodate the potential for two such longer visits each year. The introduction of such longer stays is delayed for about six months while the graduation of weekend time escalates.

9. The applicant’s complicated proposal for the children’s routine to be frequently interrupted to enable them to spend time with him in school holidays, at Easter, on the children’s birthdays, on his birthday, on Father’s Day, for weddings and funerals, on ANZAC Day, and for other occasions he deems to be “significant family events” is rejected. Given the integral involvement of three interested parents in the children’s lives, their interests are promoted by elegant simplicity. If the parties later agree to introduce complication, that is a matter for them.

Time with the second respondent

1. The conferral of equal shared parental responsibility for the eldest child upon the mother and the second respondent invokes the application of s 65DAA of the Act. Nevertheless, the mother and the second respondent agree the eldest child cannot live with the second respondent for equal time, nor spend substantial and significant time with him. There are several reasons why: he lives in Sydney, several hours drive from the mother and children; he works full-time in Sydney and cannot easily reconcile his work commitments with his responsibility for the children; and all parties agree the two children should travel together to visit the fathers and there is no warrant for the youngest child to accompany the eldest child to either live with the second respondent or spend substantial and significant time with him at the expense of her own biological father.

2. The mother, the second respondent, and the Independent Children’s Lawyer all proposed that the children could spend time with the second respondent every third weekend from Friday afternoon until Sunday afternoon. However, during final submissions, each expressly acceded to the viability of an alternate arrangement whereby the children’s visits with him could instead be every fourth weekend. The large distance between the homes of the mother and the second respondent, together with the second respondent’s work commitments, preclude the expansion of the weekend visits beyond two consecutive nights.

3. Similarly, the children should have the opportunity to spend some longer periods with the second respondent, but that should likewise be dependent upon him having some corresponding annual leave from work. His parents live in the Town F region and he gave no evidence of any domestic help available to him in Sydney. As with the applicant, the orders will accommodate the potential for two such longer visits each year, but there is no need to delay the introduction of those longer periods, as for the applicant.

Miscellaneous orders

1. The changeover venues for the children were agreed between the parties. The orders reflect that agreement.

2. The mother was content for the applicant to telephone the children once per week, but he wants three telephone calls each week. In cross-examination he said two calls per week were not enough. Regrettably, resolution of this issue is relatively arbitrary because it was largely ignored during the trial. The applicant volunteered that he was satisfied the mother was encouraging the children to speak with him by telephone, so one call per week should be enough as an effective form of communication with the children. A comparable order is made in respect of the second respondent.

3. The applicant proposed orders enabling his attendance at the children’s school.[41] The mother agreed he could attend school events which are ordinarily attended by parents; just not whenever he feels inclined. An order to that effect is made. There is no need for such an order in respect of the second respondent because he has equal shared parental responsibility for the eldest child and is thereby entitled to attend the child’s school at will.

   [41] Exhibit A7, Orders 38-39

4. The remaining orders are self-explanatory and could not be the subject of reasonable opposition.

5. The applicant sought various orders in relation to the children’s travel.[42] No such orders are made for two reasons. First, the issue was not raised at all in the evidence. Second, the administrative issue of passports for the children and the potential for them to travel internationally are decisions which rest with the parties conferred with parental responsibility for them.

   [42] Exhibit A7, Orders 40-42

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 25 March 2019.

Associate:

Date:  25 March 2019