HOWARD & LIPSCHITZ

[2014] FamCA 272

FAMILY COURT OF AUSTRALIA

HOWARD & LIPSCHITZ [2014] FamCA 272

FAMILY LAW – CHILDREN – Best interests – parental responsibility – with whom the children shall live and spend time – children have meaningful relationships with both parents – mother makes allegations of sexual abuse and neglect by the father – allegations unsubstantiated – children at risk of psychological harm in the care of the mother – presumption of equal shared parental responsibility rebutted – father to have sole parental responsibility – children to remain living with the father – temporary supervision of the children while spending time with the mother

FAMILY LAW – INJUNCTIONS – temporary order restraining the mother from attending the children’s school or residence – mother restrained from allowing the children any contact with her former partner, with whom she still lives

FAMILY LAW – PRACTICE & PROCEDURE – Adjournment – final hearing already delayed on two occasions – the need for finalisation of proceedings is greater than the need for adjournment – application for adjournment dismissed

FAMILY LAW – EVIDENCE – Admissibility – mother made recording of the father without his knowledge and consent – father objected to the admissibility in evidence of both the recording and a transcript of it – breach of State legislation – recording and transcript inadmissible

Evidence Act 1995 (Cth) s 138

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B, 69ZM, 69ZT

Surveillance Devices Act 2007 (NSW) s 12
Telecommunications Act 1997 (Cth)

Howard & Lipschitz [2013] FamCA 75
McKenzie v McKenzie (1970) 3 All ER 1034
Parker v Comptroller-General of Customs (2009) 252 ALR 619

APPLICANT: Mr Howard

RESPONDENT: Ms Lipschitz

FILE NUMBER: NCC 1528 of 2009

DATE DELIVERED: 30 April 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 31 March & 1 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Graham

SOLICITOR FOR THE APPLICANT: Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. All former orders relating to the children N, born … 2006, and G, born … 2007, (“the children”) are discharged.

2. The father shall have sole parental responsibility for the children.

3. The children shall live with the father.

4. Each of the parties shall take all reasonable steps to ensure that the children spend time with the mother as follows, or as otherwise agreed in writing:

   (a)Up to and including Saturday 2 May 2015, supervised for two hours on the first Saturday of each month;

   (b)Thereafter:

   (i)On the first weekend of each month, commencing at 5.00 pm on Friday and concluding at 5.00 pm on Sunday;

   (ii)From 5.00 pm on Saturday until 5.00 pm on Sunday on the Mother’s Day weekend each year, if that weekend is not the first weekend of the month; and

   (iii)For one week each year, commencing at 5.00 pm on the first Friday of January and concluding at 5.00 pm on the following Friday.

5. For the purpose of implementing Order 4(a) hereof:

   (a)The time spent by the children with the mother shall occur at and be supervised by staff at the Contact Centre” situated at Town F, NSW, or such other contact centre agreed between the parties in writing (“the supervisor”);

   (b)The parties shall forthwith register with, undertake all intake procedures required of them by, and comply with all reasonable directions of, the supervisor;

   (c)Leave is granted to the parties to furnish to the supervisor sealed copies of these orders;

   (d)The time that is to be spent by the children with the mother shall commence at the time designated by the supervisor;

   (e)The venue at which the time is to be spent by the children with the mother shall be designated by the supervisor;

   (f)The father shall ensure the prompt delivery and the collection of the children to and from the supervisor;

   (g)If an occasion on which the children are due to spend time with the mother is frustrated by the unavailability of the supervisor, illness of the children, or illness of the father, the time that the children were due to spend with the mother shall be made-up at another time as close to the original time as can be arranged; and

   (h)The mother shall pay all costs of the supervisor.

6. For the purpose of implementing Order 4(b) hereof, unless otherwise agreed in writing, the father shall cause the delivery and the mother shall cause the collection of the children at the commencement of the time to be spent with the mother at the Town G Railway Station, NSW, and the mother shall cause the delivery and the father shall cause the collection of the children at the conclusion of the time spent with the mother at the same place.

7. The mother is restrained from causing or permitting the children to be in the company of, or to communicate with, Ms E.

8. Pursuant to s 68B of the Family Law Act, the mother is restrained from entering upon or approaching within 100 metres of the following places without the written consent of the father until 3 May 2015:

   (a)The father’s residence; and

   (b)Any school attended by either child.

9. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

10. Each party is restrained from causing or permitting the children to hear any discussion by any person about past incidents or allegations of violence or sexual abuse pertaining to them or any member of their family.

11. Each party is restrained from denigrating the other 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 other.

12. Each party is restrained from permitting the children to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.

13. The father shall authorise and request the principals of any schools attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.

14. Leave is granted to the father to provide a sealed copy of these orders to the principals of the schools at which the children are enrolled.

15. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.

16. In the event of the mother or her nominee notifying either the police or a prescribed child welfare authority that either child has been or is the subject of actual or potential abuse, the mother shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

    (a)A copy of these orders;

    (b)A copy of these reasons; and

    (c)A copy of the reasons formerly delivered by the Court on 20 February 2013.

17. 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.

18. The Application-Contravention filed by the father on 8 March 2011 is re-listed for further procedural directions at 9.45 am on Monday 19 May 2014.

19. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1528 of 2009

Mr Howard

Applicant

And

Ms Lipschitz

Respondent

REASONS FOR JUDGMENT

Introduction

1. Just over 12 months ago, in February 2013, these parenting proceedings between the applicant father and the respondent mother were determined on only an interim basis. The children’s residence was reversed. Orders were made for them to live with the father instead of the mother, restrictions were placed on the nature of the children’s interaction with the mother, and the mother was restrained from allowing the children to have any interaction with her partner.

2. That result followed findings about the probable fabrication of child sexual abuse allegations against the father by the mother and her partner, their inducement of the children to believe such false allegations, and the inability of the children to enjoy and derive benefit from their relationships with the father if they remained in the care of the mother.

3. The proceedings were adjourned to enable assessment of the success of the new interim arrangements and an updated Family Report was procured.

4. These reasons explain the final orders made in respect of the children, but it is necessary to read these reasons in conjunction with the reasons delivered in February 2013 when the interim orders were made (Howard & Lipschitz [2013] FamCA 75) because the two sets of reasons collectively explain the final resolution of the parties’ dispute.

Recent history

1. There is no need to repeat the family history antecedent to the interim orders made in February 2013. Pursuant to those orders, the children were delivered into the father’s care and they have lived with him ever since.

2. There was some delay in the resumption of the children’s relationships with the mother because the contact centre nominated to supervise the children’s visits with the mother would not assist the family. The parties therefore made arrangements to use an alternate contact centre.[1] The children began fortnightly supervised visits with the mother in late April 2013.[2]

   [1] Notations A-B made on 15 April 2013

   [2] Family Report, paras 6-7

3. Further interim orders were made in September 2013 once the updated Family Report became available. The orders improved the children’s interaction with the mother by expanding the time they would spend with her, dispensing with the need for supervision, and making provision for their communication by telephone.[3] The parties acknowledged that those orders were implemented unreMrably up until the final hearing.

   [3] Orders 1-8 made on 18 September 2013

4. The injunction imposed in February 2013 precluding the mother from allowing the children to have any contact with her partner (“Ms E”) remained in force and the father had no reason to believe that order was breached, at least up until October 2013 when he filed his first affidavit.[4]

   [4] Father’s first affidavit, para 26

5. The children are now aged seven and six years respectively.

Adjournment application

1. Only days before the resumption of the final hearing on 31 March 2014, the mother filed an Application in a Case seeking an adjournment of the final hearing to a date after June 2014. The foundation for the adjournment application was the evidence contained within the shorter of the mother’s two affidavits filed on 27 March 2014 (comprising 13 paragraphs) and another unsworn statement prepared by her.[5] The father opposed the adjournment application but did not object to the mother’s reliance upon that evidence.

   [5] Exhibit 1 on the adjournment application

2. The application was heard and determined by its dismissal on the first day of the final hearing, which decision these reasons now explain. The arguments advanced by the mother for the adjournment were not as compelling as the need for finalisation of the proceedings.

3. It is pertinent to explain the history of this litigation to place the mother’s adjournment application in context.

4. The parties began their litigation over the children many years ago but settled their dispute by final consent orders, made in October 2010. Regrettably, those orders were fundamentally breached by the mother only months later and so these proceedings were commenced afresh by the father in early 2011 and have remained live ever since.

5. The proceedings were listed for final hearing in February 2013. The mother failed to file any affidavit evidence in readiness for the hearing. The proceedings were not then concluded and only interim orders were made, for reasons published at that time.

6. The proceedings were again fixed for final hearing in December 2013, but the hearing could not proceed because the mother was unwell, precluding her attendance at Court.[6] In any event, in clear contravention of procedural orders, the mother again failed to file any affidavit evidence in readiness for the hearing.[7] The mother filed an Application in a Case on 27 November 2013, just days before that final hearing, seeking an adjournment, but it became unnecessary to decide the application because of the mother’s condition and so the interlocutory application was adjourned with the substantive proceedings.[8] The final hearing was adjourned until 31 March 2014.

   [6] Notation A made on 4 December 2013

   [7] Order 17 made on 18 September 2013; Notation B made on 4 December 2013

   [8] Orders 1 and 2 made on 4 December 2013

7. The mother’s most recent Application in a Case, filed on 27 March 2014, again just days before the final hearing and again seeking an adjournment of the final hearing, superseded her former undetermined Application. She simultaneously filed two affidavits – one in support of the adjournment application and the other containing her evidence for the final hearing. 

8. The proceedings have therefore been listed for final hearing on three separate occasions over the past year. On the first two of those occasions the mother failed to file any evidence at all. On the third occasion the evidence upon which she wished to rely was available. After years of conflict, at least the children and the father, but perhaps also the mother, would derive benefit from finalisation of the litigation. The mother’s reasons for further adjournment of the final hearing therefore needed to be sound.

9. The father filed an Amended Initiating Application on 20 February 2014, about five weeks before the final hearing. The document signalled the father’s change of proposal about the children’s continuing interaction with the mother. Instead of them spending time with the mother on two weekends each school term and for half of the school holidays, the father proposed an injunction precluding the children from spending any time with the mother at all. The change in his proposal was caused by the mother recently assisting the children to make further allegations of their sexual abuse by him, which allegations were investigated but unsubstantiated by the authorities.

10. The mother deposed she did not receive the father’s Amended Application until 13 March 2014, even though it had been served some time before. The father’s amended proposal surprised her because she regarded it as a “major departure” from his former proposal in respect of the children. The mother formerly filed a Response on 23 October 2013 acknowledging her agreement to the father’s prior proposal about the amount and frequency of time the children should spend with her, thereby confining their dispute to only the allocation of parental responsibility for the children and the perpetuity of an injunction precluding the children’s interaction with Ms E.

11. The mother objected to the father’s new proposal and wanted time to seek legal advice about it. Significantly, she deposed that she only wanted legal advice about the father’s new proposal; not legal representation at the hearing.

12. The implication that the mother had not been able to procure legal advice was not correct. It is clear she was able to obtain legal advice about the proceedings when she desired it. She engaged a lawyer to prepare her Application in a Case and supporting affidavit on 27 November 2013, seeking an adjournment of the final hearing on the first occasion. She engaged the same lawyer to prepare her Application in a Case and two affidavits on 27 March 2014, seeking an adjournment of the final hearing for a second time. Plainly, the mother has been able to procure advice from that lawyer as and when desired.

13. In any event, it is far from clear what prejudice flows to the mother even if deprived of the advice she desired. She was under no misunderstanding about the meaning of the father’s amended proposal. The mother openly acknowledged to the Court in September 2013 that the children must continue to live with the father,[9] which position she endorsed when she filed her Response on 23 October 2013. The father’s amended proposal only re-opened the parties’ dispute about the extent of the children’s future interaction with the mother. She had several weeks to consider her position in that respect before the hearing started and in that time she filed an affidavit containing the evidence upon which she wished to rely. She also retained the right to cross-examine both the father and the Family Consultant about the father’s new proposal.

    [9] Order 15 made on 18 September 2013

14. The mother did not complain about her lack of legal representation in her affidavit. That grievance was only revealed to the Court during oral submissions. It was, however, an unpersuasive factor. The mother has been without legal representation for large stretches of the litigation. She was not legally represented at the hearing in February 2013 and was then permitted to use Ms E as a “McKenzie friend” (see McKenzie v McKenzie (1970) 3 All ER 1034). She was thereafter in receipt of a grant of legal aid but, as the mother explained in her affidavit filed on 27 November 2013, it was revoked in October 2013. The mother was informed of her right to appeal that decision, but there is no evidence she ever did, so the prospect of her securing a fresh grant of legal aid if the hearing was adjourned was remote.

15. The mother asserted she had some saved funds she could use to pay for legal representation, but she conceded such funds were insufficient to compensate the father for his legal costs that would be thrown away if the hearing was adjourned. By imputation, her saved funds were not likely sufficient to secure her own representation at any future hearing.

16. After the revocation of her grant of legal aid in October 2013 the mother consulted a new lawyer on 19 November 2013. It was that lawyer who prepared the documents for her use in these proceedings in both November 2013 and March 2014. There was no explanation offered for why that solicitor was not present to represent the mother if she desired representation at the hearing, particularly if she had some saved funds to pay for representation.

17. The father is not in receipt of a grant of legal aid. The cost of his legal representation in the proceedings has been a considerable impost, especially since the case was not finalised at final hearing in either February 2013 or December 2013. He was ready for final hearing on both those occasions, and again on 31 March 2014. The financial prejudice to him caused by yet another adjournment could not be cured by ordering the mother to pay his costs thrown away because the mother is impecunious. She said she could not afford it.

18. The mother additionally deposed she had not had sufficient time within which to inspect documents produced in answer to subpoena issued by the father, but the failure to inspect documents produced on subpoena was her choice. She was at liberty to attend the Court before the final hearing to inspect the documents at any time after the material produced pursuant to subpoena was released for inspection.

19. Even though the mother’s home is far away from the registry she could have arranged inspection of the documents if she wanted. The mother did not apparently have any trouble engaging a solicitor at Town H – far away from her home in Hay – to prepare documents for her use in the proceedings. The documents that lawyer prepared in November 2013 and March 2014 were executed by the mother at Town H on both occasions. If she was able to travel to Town H to see the solicitor she was feasibly able to travel to the registry in I City to inspect documents.

1. It was later revealed the mother has stayed with a friend in the J Region in the past in order to visit the children more easily.[10] She confirmed in cross-examination she could stay with that friend when necessary. There was no explanation offered for why she could not have stayed at her friend’s home to reduce the cost and effort involved in attending the registry to inspect the documents in advance of the final hearing.

   [10] Mother’s affidavit, para 22

Proposal and evidence of father

1. The father pressed for the orders set out within his Amended Application filed on 20 February 2014, although he modified his proposal in some respects during final submissions.

2. In essence, the father proposed that the children continue to live with him and that he have sole parental responsibility for them.

3. He proposed that the mother be eliminated entirely from the children’s lives, but in the alternative, he proposed the time they spend with her be constricted both as to frequency and duration and that supervision be imposed, either permanently or temporarily.

4. The father maintained his proposal for a permanent injunction restraining the children’s contact with Ms E, even though the permanent injunction he formerly proposed in his Amended Application filed on 27 September 2013[11] was omitted from his Amended Application filed on 20 February 2014.

   [11] Order 9

5. The father relied upon his two affidavits filed on 24 October 2013 and 20 February 2014.

Proposal and evidence of mother

1. The mother’s proposal changed complexion during the hearing. She abandoned the proposal contained within her Response filed on 23 October 2013. Although she led the Court and the father to believe for the last six months since September 2013 that she agreed the children should live permanently with the father, her position changed. When giving evidence during cross-examination on the first day of trial the mother said she was unsure whether the children should continue living with the father. On the second day of trial she informed the Court she believed the children should instead live with her, which view she formed overnight as a consequence of her perception of the father’s dishonest evidence during his cross-examination on the first day.

2. The mother proposed that the parties share parental responsibility for the children and that the children should spend time with the father, without supervision, each alternate weekend and for half of school holiday periods.

3. The mother relied upon:

   (a)The longer of her two affidavits filed on 27 March 2014 (comprising 58 paragraphs); and

   (b)The unsworn statement she produced on the first day of final hearing, which she later verified on oath and which was Mred as an exhibit.[12]

   [12] Exhibit M1 (formerly Exhibit 1 on the failed adjournment application)

4. At the commencement of the hearing the mother also sought leave to call her adult son as a witness in the proceedings. The mother’s application was misconceived and was therefore refused for several reasons.

5. The mother anticipated her adult son would give evidence of his sexual abuse by the father, which allegations were historical and related to a period of time years ago when the parties cohabited. Firstly, such evidence was available to the mother prior to the last hearing in February 2013 and she did not call it. Secondly, the belated introduction of such evidence would have caught the father by surprise and hindered his efforts to refute it. Thirdly, it was uncontentious that such allegations had previously been reported to and found unsubstantiated by authorities. Fourthly, at the time the application was adjudicated, the mother proposed that the children should continue to live primarily with the father, so attempting to adduce evidence in an effort to prove the children were at unacceptable risk of sexual abuse in the father’s care was futile. Even if the mother had revealed at that point it was her application for the children to live with her instead, the evidence remained irrelevant because she still proposed that the children spend unsupervised time with the father on alternate weekends and for half of school holiday periods.

6. The mother also tried to tender either an audio recording of conversations she overheard between the father and the children on 16 October 2013 or a document which purported to be a transcript of the recording. The mother referred to the recording in her affidavit.[13] The tender of either the recording or the transcript was the subject of objection by the father. The objection was pressed on several grounds, but it is only necessary to explain the ground upon which the objection was sustained.

   [13] Mother’s affidavit, paras 43-52

7. The mother conceded she made the recording of the father without his knowledge. The surreptitious recording was unlawful pursuant to State legislation (s 12 of the Surveillance Devices Act 2007 (NSW)). It may have also been unlawful pursuant to federal legislation (Telecommunications Act 1997 (Cth)), but it is unnecessary to decide.

8. The Surveillance Devices Act (NSW) is an “Australian law”, as that phrase is defined in the dictionary within the Evidence Act to be “a law of the Commonwealth, a State or a Territory”. The subject evidence (whether it be the recording or a transcript of it) was obtained in contravention of the State legislation. Consequently, the evidence should not have been admitted unless the desirability of its admission outweighed the undesirability of its admission (s 138(1) of the Evidence Act 1995 (Cth)).

9. Even though these are “child-related proceedings” as defined in the Family Law Act 1975 (Cth) (“the Act”) (ss 4, 69ZM), the application of s 138 of the Evidence Act is not excluded by the Act (s 69ZT(1)).

10. In determining the admissibility of evidence pursuant to s 138(1) of the Evidence Act, the Court is obliged to consider a series of inclusive features (s 138(3)). Two of those features were decisive of the voire dire, warranting determination that the contested evidence was inadmissible.

11. Firstly, the evidence was not particularly important in the proceedings (s 138(3)(b)). The mother submitted the only purpose for the tender of the evidence was to prove the father yelled and swore at, or in the presence of, the children on 16 October 2013. Such evidence was not of overall importance because:

    (a)While it may prove the father yelled and swore at, or in the presence of, the children on 16 October 2013, it would not of itself prove he did so either frequently or on other occasions. An occasional lapse in parental propriety, as may have occurred for the father on 16 October 2013, does not demonstrate he is thoroughly unsuited to parenthood.

    (b)The mother gave direct evidence that she overheard the father referring to the eldest child as a “fucking little shit” anyway.[14] She was not challenged about the truth or accuracy of that evidence. Hence, there was no need to rely upon either the recording or the transcript to prove that part of the father’s disrespectful treatment of the eldest child on that occasion.

    (c)The mother acknowledged the children could live permanently with the father or, as she later contended, they could still spend substantial amounts of time in his unsupervised company. A single episode of intemperate behaviour by the father with the children could hardly be decisive of whether the children live with the mother instead of the father, particularly in the face of much more significant issues about the children’s physical and emotional safety. Even if it could, it was irrational to complain about the father’s behaviour, manifest from the recording or transcript, when the mother was still content for the children to spend large tranches of their lives with the father.

    (d)The mother considered the evidence would prove the father’s denials of such behaviour during his cross-examination were untruthful. It is feasible the evidence might have tended to prove the father knowingly gave false evidence during cross-examination by denying such behaviour as would otherwise be proven by the evidence, but even his proven mendacity on that issue would probably not affect the acceptance of his other evidence. There was little else upon which the parties gave disparate evidence, so the need to prefer the evidence of one over the other barely arose. The credibility rule (Part 3.7 of the Evidence Act) was inapplicable.

    [14] Mother’s affidavit, para 51

12. Secondly, the mother’s contravention of the law was deliberate (s 138(3)(e)). That is to say, the act of recording the father surreptitiously was deliberate, not that she consciously set out to breach the law. The mother’s ignorance of her conduct being in breach of the law lessens the degree of culpability, but does not expunge the culpability or the need for the deterrent effect of evidentiary exclusion. The mother admitted she recorded the conversations in the father’s household for about 2 hours and 45 minutes that evening.[15] She did so without alerting the father to the fact of her recording. The only reason she would not have done so, or abstained from immediately confronting him about the alleged impropriety of his behaviour with the children, was her knowledge she was acting deviously or slyly by making the recording.

    [15] Mother’s affidavit, para 52

13. Once established that the evidence was obtained improperly or in contravention of an Australian law, the party pressing for the admission of the evidence over the ordinary requirement of its rejection bears the onus of persuading the Court to exercise discretion in favour of admission (see Parker v Comptroller-General of Customs (2009) 252 ALR 619 at 626). The mother, who sought discretionary admission of the evidence, could not persuade the exercise of such discretion in light of the above circumstances.

14. The mother was again permitted to rely upon Ms E as her “McKenzie friend” to assist in her conduct of the hearing.

Applicable legal principles

1. It is probably quite unnecessary to remind the parties of the legal principles which guide the outcome of these proceedings, since they were informed of those principles in the reasons delivered in February 2013. Nevertheless, repetition cannot hurt.

2. Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).

3. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

4. 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 with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

5. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (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 major long-term issues (s 65DAE).

6. However, 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 that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

7. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, 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).

8. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. It was uncontentious that the children enjoy meaningful relationships with both parties from which they do and will derive benefit. The orders must strive to preserve those relationships so far as is consistent with preservation of the children’s physical safety and emotional security.

Section 60CC(2)(b)

1. With varying degrees of commitment, the mother raised allegations of both sexual “abuse” and “neglect” of the children during the hearing.

Alleged sexual abuse

1. The past allegations of sexual abuse against the father, made directly by the children and reported indirectly by the mother and Ms E, were found to be spurious (see Howard & Lipschitz at [76]-[78], [91]-[92]). The propensity of the mother and Ms E to adversely influence the children’s attitudes against the father was a principal reason for reversing the children’s residence in February 2013 (see Howard & Lipschitz at [84]-[86], [89]-[93], [108]).

2. Throughout the former hearing the mother ardently adhered to her belief in the truth of the sexual abuse allegations against the father (see Howard & Lipschitz at [107]). Unfortunately, there is considerable doubt about whether the reasons then published by the Court for reaching conclusions about the unreliability of the children’s past representations of sexual abuse and the need to remove the children from her care caused the mother to review or moderate her belief.

3. The mother gave evidence at the final hearing about the children making further allegations of their sexual abuse by the father. The mother alleged the children made further allegations about the father “many times” after February 2013 and she responded by telling them “I do not want to hear it at all”.[16] Even if she responded in that way sometimes, she did not always do so, because in January 2014 she took the children to police to enable them to make further allegations against the father.

   [16] Mother’s affidavit, para 39

4. The children were visiting the mother on 28 January 2014 in Sydney. The eldest child was apparently resistant to return to the father. The eldest child said to the mother:[17]

   But mum, dads still touching me. I want it to stop. (sic)

   [17] Exhibit M1, para 7

5. The mother alleged the eldest child approached a train station attendant – a complete stranger – to inquire about where to find a police officer to help him, without her overt or tacit assistance. Once directed to the nearest police officer, the mother alleged she guilelessly followed the eldest child and then told the police officer whom he approached:[18]

   My son wants to see you, not me. (sic)

   [18] Exhibit M1, paras 7-9

6. When it was established the eldest child rather than the mother was there to personally consult the police officer, both children then made complaints of their abuse by the father to the police officer.

7. There are, however, discrepancies in the evidence about what conversation then transpired between the police officer and the two children.

8. Relevantly, the mother’s version of the conversation that ensued between the officer and both children was as follows:[19]

   [19] Exhibit M1, para 9-10

   Eldest child:      My dad smokes pot.

   Officer:             Anything else you want to tell me?

   Eldest child:      Dad plays with my doodle and bum and lays on top of

   me, and touches my sister too.

   Officer:             That would be heavy! How long for?

   Eldest child:     Two minutes, two hours.

   …

   Officer:             Have you got something you want to tell me?

   Youngest child: Dad pinches [me] (lifting her leg up) there and there.

9. The police officer to whom the complaints of abuse were made apparently contacted the NSW Department of Family and Community Services (“the Department”) to report the complaints. The Department’s file, produced pursuant to subpoena, significantly records the following excerpts of the police officer’s version of the event:[20]

   (a)The eldest child repeatedly said “Daddy touched me on the doodle” and “I don’t want to live with him”;

   (b)The eldest child displayed no emotion when reporting that complaint and it was as if “he was reading from a book”;

   (c)It “appears” as though the mother “may be coaching” the children; and

   (d)The youngest child reported “Daddy lays on top of me and that he is naked and he touches me on the legs. He pinches me”.

   [20] Exhibit F1

10. The contemporaneous file records of the Department probably give a more reliable factual account of what the children reported to the police officer than the recollections of the mother set out in her affidavit sworn some two months later.

11. Irrespective of the discrepant evidence about what the children precisely reported to the police officer, it is clear both children alleged to the police officer that they were abused in one form or another by the father.

12. Significantly, the allegations made by the children to the police officer that day were made in the mother’s presence. She escorted the children to the police officer. Even though she disavowed any interest in speaking with police and professed it was the eldest child’s desire to speak with the officer, the children would likely have imputed that their complaints against the father were made with her sponsorship. The opinions of the police officer set out within the file records of the Department about the lack of veracity of at least the eldest child’s report of sexual abuse is therefore valuable evidence, because those opinions contextualise the bare facts of the children’s representations.

13. It was uncontroversial that the conveyance of the children’s complaints to the Department resulted in the children being interviewed by officers of the NSW Joint Investigation Response Team (“JIRT”) at school after they returned to live with the father at the conclusion of their holiday visit to the mother. Those interviews of the children, which notably occurred in the absence of the mother, failed to substantiate the allegations of abuse against the father.

14. The mother admits JIRT officers then contacted her and told her the father had not “touched the children…in any inappropriate way”.[21] In cross-examination the mother confirmed the JIRT officers had not merely concluded there was insufficient evidence to substantiate the children’s allegations, but rather, had positively concluded the father did not sexually abuse the children.

    [21] Mother’s affidavit, para 38

15. JIRT officers advised the father in similar terms. After informing the father that both children had been interviewed, one of the officers told the father “you won’t hear from us again, we are not going to proceed with the case”.[22]

    [22] Father’s second affidavit, paras 18-19

16. The allegations of sexual abuse made against the father by the children in January 2014, or for that matter at any time since the children moved to live with the father in February 2013, are unsubstantiated on the available evidence. Just as the allegations antecedent to the last hearing in February 2013 were not proven, either as to the probability of actual past abuse or the unacceptable risk of future abuse, nor is any abuse or the unacceptable risk thereof demonstrated since February 2013.

1. Importantly, in direct answer to a question posed to the mother in cross-examination about whether she believed the father had sexually abused the children the mother said “No”. She additionally said she knew that at least the eldest child “makes things up”.

2. Her evidence was somewhat surprising because it was inconsistent with the way she conducted the litigation. She went to the trouble of adducing evidence about the children’s repeated complaints of their sexual abuse by the father, she sought permission to call her adult son as a witness to attest to his past sexual abuse by the father, and she cross-examined the father in a way that implied she still harboured concern about the father’s past or future sexual abuse of the children.

3. Because she conducted the case in a manner contrary to her evidence, on numerous occasions thereafter in the trial the mother was asked again about her belief in the allegations of sexual abuse. On each occasion the mother affirmed her belief that the children’s reports of their sexual abuse by the father were false, so there could be no doubt about the clarity of her stated position on the issue.

4. Such circumstances permit only two conclusions. Either:

   (a)The mother’s evidence was truthful, in which event the children’s past or prospective sexual abuse by the father was not really an issue in the case at all, and the mother’s inexperience and naivety were the explanation for her contrary conduct of the case; or

   (b)The mother’s evidence was false and her true belief in the allegations of sexual abuse against the father may be imputed from the manner in which she conducted the hearing.

5. The latter alternative has obvious implications for the emotional security of the children into the future. If the mother truly believes the children have been sexually abused, or are at risk of such abuse, by the father then the children are likely to infer the mother’s genuine belief from her verbal and non-verbal cues. They may have already drawn that inference. That may be the explanation for why the children repeatedly make such complaints to her. They realise the mother is a receptive audience and making reports of that nature to her is perceived by them as pleasing her or demonstrating their loyalty to her.

6. The youngest child recently made a statement to the father that, if true, unequivocally meant the mother told, or perhaps even convinced, her she was touched on the genitals by the father.[23] That is not the only piece of evidence that tends to suggest the children are inculcated with such a belief by the mother. Findings of fact were made to that effect in the former hearing (see Howard & Lipschitz at [84], [91]) and the police officer to whom the children were taken more recently in January 2014 made similar observations.[24]

   [23] Father’s second affidavit, para 20

   [24] Exhibit F1

7. The mother professed she had never coached the children to make allegations against the father, but the contrary is a difficult inference to resist. It was facile of the mother to insist she simply and disinterestedly took the children to the authorities to let them make their own allegations against the father. She asserted she bore a “duty of care” to do so.[25] In fact, she has no duty as a parent other than to raise healthy, happy children.

   [25] Mother’s affidavit, paras 34, 37, 54

8. It is unnecessary to reach any conclusion about whether the mother coaches the children. Regardless, the children’s willingness to continue making spurious allegations of their sexual abuse by the father and the mother’s belief in her duty to facilitate the children making official complaints of such abuse, in aggregation, create a significant danger to the children’s psychological stability.

9. As the Family Consultant explained, the multiplicity of the children’s formal interviews by police and JIRT officers over the last couple of years has created an emotionally abusive environment for them. He labelled it “systems abuse”, which he explained was a description for the children’s involvement in constant discussion and investigation about their alleged sexual abuse, potentially leading them to falsely believe in the truth of the allegations because their sense of reality is replaced by recollections moulded by repeated reminders of the allegations. Unsurprisingly, the Family Consultant asserted it was psychologically harmful for the children to acquire a false belief in their sexual abuse, or the risk of it. Such a situation is no less harmful than the children actually experiencing such abuse.

10. The mother’s evidence allows little room for confidence that the children will not continue to be exposed to those circumstances in her household. Anything short of her absolute and unequivocal rejection of future allegations by the children about their sexual abuse by the father is liable to induce in the children a belief that they should continue to make such allegations. The mother said she did not know how to handle that situation. Her asserted past attempts to brush off such allegations were insufficiently convincing to the children because they continued to make the allegations. Ultimately the mother did not have the strength of conviction to put a stop to it. She relented in January 2014 by accompanying the children to police to make further reports.

11. There is no satisfactory remedy for such a predicament other than to either eliminate the mother from the children’s lives or impose some form of supervision upon the children’s visits with her. The latter alternative is preferred to the former for reasons later discussed. Presently, for the purposes of s 60CC(2)(b) of the Act, it is sufficient to record that the children are not at risk of physical or psychological harm by reason of sexual abuse by the father. The risk of their psychological harm arises from the manner in which the mother handles their false allegations against the father.

Alleged neglect

1. The mother complained to the Family Consultant in August 2013 about the standard of the father’s care of the children. Her grievances related to the children’s clothing, hygiene, dentition, orthotics, and other aspects of their medical care.[26]

   [26] Family Report, paras 32(d)-32(h)

2. The father answered those grievances both to the Family Consultant[27] and in his affidavit.[28] The father contended the mother failed to advise him of any ongoing medical supervision of the children when they moved to his care in February 2013 and he has cared for them adequately since then in accordance with information at hand. He also alleged the mother had failed to keep the eldest child’s immunisations current, which he had since rectified.

   [27] Family Report, para 20

   [28] Father’s first affidavit, paras 24(f)-24(j)

3. The parties’ evidence was irreconcilable, but perhaps best explained by their different perceptions rather than dishonesty by one or the other. The mother challenged the father in cross-examination, but he forcefully adhered to his evidence. The mother was not challenged at all. Most likely the mother failed to provide the father with update medical information about the children at the time they moved to live with him and most likely the father has not been as diligent about some aspects of the children’s medical care as he should have been. The parties do not usefully communicate so they are unable to work on the children’s medical care and supervision co-operatively. As the Family Consultant observed,[29] that lack of co-operation does not reflect favourably on either of them, but it needs to be noted the father has had sole parental responsibility for the children since February 2013,[30] so he has not been obliged to consult with the mother.

   [29] Family Report, para 54

   [30] Order 2 made on 20 February 2013

4. Nevertheless, it seems reasonably plain that neither child is at risk of either physical or psychological harm through neglect by either party and so the evidence is not germane to s 60CC(2)(b) of the Act. The extent to which each party could improve their parenting performance in that regard is more properly a consideration under s 60CC(3) of the Act.

Best interests of children – additional considerations

1. Since moving to live with the father in February 2013 the children have settled well. The children both informed the Family Consultant of their contentment with the father and with living in his household.[31] The children were observed by the Family Consultant to be relaxed, comfortable, and happy in the care of the father.[32] The Family Consultant considered the children appear to have coped “extremely well with the enormous changes in their lives” since moving to live with the father.[33] The Family Consultant was not challenged about any of those observations or opinions and I accept them as correct.

   [31] Family Report, paras 39, 42

   [32] Family Report, para 43

   [33] Family Report, para 49

2. The mother alleged the children’s school performance deteriorated between February and June 2013 while they lived with the father.[34] That may be the mother’s impression, but there was no evidence to verify it. The Family Consultant was unable to speak directly with the children’s teachers,[35] but the school principal reported the children attend school punctually and are generally coping quite well.[36] The children spoke positively about school with the Family Consultant.[37] The father said the children’s reading was lagging when they began living with him, but now they are abreast of their peers. He also said he reads with the children and assists them with their homework every night. That evidence endorsed the contents of his affidavit.[38]

   [34] Family Report, para 32(i)

   [35] Family Report, page 3

   [36] Family Report, para 49

   [37] Family Report, paras 39, 42

   [38] Father’s first affidavit, paras 24(k), 24(n)

3. The children obviously miss the mother and wish to see more of her, but their desire to see more of her does not equate to their despair for permanent return to her residence. When the father conferred with the Family Consultant in August 2013 he said the frequency of the children’s inquiries about the mother had abated after an initial period,[39] but during cross-examination he said the children still ask after the mother on average of a couple of occasions each week. The Family Consultant said the father seemed to be “doing a good job” comforting the children about missing the mother.[40] Such evidence militates against the more extreme remedy of elimination of the mother from the children’s lives, mooted as a possibility in discussion of the evidence pursuant to s 60CC(2)(b) of the Act.

   [39] Family Report, para 12

   [40] Family Report, para 51

4. No other factors prescribed under s 60CC(3) of the Act were addressed as relevant to the outcome of the proceedings.

Conclusions and orders

1. The interim allocation of parental responsibility for the children solely to the father does not bind that decision on a final basis (s 61DB).

2. Although the presumption of equal shared parental responsibility applies, it is rebutted by evidence which demonstrates the allocation of parental responsibility in that manner would not be in the children’s best interests (s 61DA(4)). That is because the parties have pronounced distrust in one another and cannot communicate constructively.

3. There has barely been any communication at all between the parties since the children moved to live with the father in February 2013.[41] The father perceived some marginal improvement in the nature of the parties’ communication after February 2013, but he became pessimistic about the prospect of their future co-operation after reading comments attributed to the mother in the Family Report in August 2013.[42]

   [41] Family Report, paras 11, 31

   [42] Father’s first affidavit, para 32

4. Since interim orders were made in September 2013 permitting the children to communicate with the mother by telephone each week,[43] the parties have occasionally spoken during those telephone calls. The father contended they only occasionally spoke, and only then to vary changeover venues, whereas the mother alleged they communicated both before and after her conversations with the children on those occasions.[44]

   [43] Order 8 made on 18 September 2013

   [44] Mother’s affidavit, para 42

5. The father’s pessimism about the parties’ future co-operation would only have intensified in past months. The manner in which the parties conducted this litigation offers insight into the depth of their animosity.

6. The mother told the Family Consultant she wanted the children supervised with the father until she could “find out the truth”,[45] which was undoubtedly a reference to the “truth” about the allegations of the father’s sexual abuse of the children. The mother recently helped the children make more false allegations of sexual abuse against the father, she included the allegations in the statement she prepared and tendered into evidence, and she wanted to call her adult son as an additional witness to make similar allegations about his sexual abuse by the father. The mother also cross-examined the father and Family Consultant in a way which demonstrated the sexual abuse allegations remain at the forefront of her mind.

   [45] Family Report, para 35

7. The father resiled from his former proposal for the children to spend substantial amounts of unsupervised time with the mother. He instead proposed that the mother be eliminated from the children’s lives altogether because, in his view, she was “trying to put stuff into [the children’s] heads”. He is understandably angered by the perpetuation of false allegations of sexual abuse against him. Although it is the children who make the allegations, he attributes blame to the mother for creating the circumstances which allows that to occur. He was “astounded” the mother told the Family Consultant she believed the children should still be supervised in his company.[46]

   [46] Father’s first affidavit, para 24(p)

8. The Family Consultant only envisaged the allocation of equal shared parental responsibility for the children to the parties if the Court could be satisfied the parties “can be child focussed in their communication and co-parenting”.[47] The evidence falls far short of such satisfaction. Circumstances only permit one party to have parental responsibility for the children and that party must be the party with whom the children live.

   [47] Family Report, para 60

9. The children should continue to live with the father, consistently with the recommendation of the Family Consultant.[48] The father is obviously not a perfect parent, but perfection eludes most parents. He has now proven, for more than the past year, that he is a capable parent. The children are settled and happy in his care. Their needs are being satisfactorily met while living with him. The mother sensibly acknowledged there would be serious disruption for the children if their residence was reversed again and they were withdrawn from their current schools.

   [48] Family Report, para 57

10. Importantly, the children have been able to enjoy their relationships with the mother since living with the father because the father allows them to. That is in contrast to their former experience of residence with the mother, as she and Ms E strived to unjustifiably eliminate the father from the children’s lives.

11. Although the father’s primary proposal is now to eliminate the mother from the children’s lives, he argued such a result was well justified and not merely a spiteful tactic. I have little doubt he will still comply with Court orders that do not correlate with his primary proposal.

12. Even if it be accepted the mother does not actively urge the children to make allegations of their sexual abuse by the father, she undoubtedly creates, either deliberately or inadvertently, an environment in which the children are instilled with an expectation they can or should make such allegations. It is beyond argument that such an environment is psychologically unhealthy for the children. If the children continue to spend time with the mother in much the same way they have since the interim orders were made in September 2013, nothing will change. The emotionally harmful environment will be perpetuated. The question is how to solve the problem.

13. Ultimately, I am not satisfied complete annihilation of the mother from the children’s lives is the correct response. The children love her too dearly and her elimination from their lives would likely cause them serious bereavement and their idealisation of her.

14. Nevertheless, some form of response is needed to change the emotionally harmful environment for the children in the mother’s care. The mother’s fall-back proposal, which was for the children to spend unsupervised time with her each alternate weekend and for half of all school holidays,[49] is wholly unsuitable.

    [49] Family Report, para 36

15. Rejection of the mother’s fall-back proposal also entails rejection of the Family Consultant’s former recommendation for the children to spend substantial amounts of unsupervised time with the mother.[50] However, the Family Consultant made that recommendation in August 2013, in ignorance of the evidence about the children’s repetitious complaints of sexual abuse against the father which culminated in the further JIRT investigation in January 2014. When informed of those facts during cross-examination, the Family Consultant revised his recommendations. He resiled from his former recommendation and was instead open-minded about the alternatives posited by the father. He described the choice between elimination of the mother from the children’s lives and conditionally maintaining their interaction with her as a “delicate balancing act”.

    [50] Family Report, para 58

16. The preferable option is to curtail the amount of time the children spend with the mother and to impose formal supervision so that the nature of the mother’s interaction with the children can be independently monitored.

17. If the children’s visits with the mother are shorter and less frequent, she and the children are more likely to collectively concentrate upon the joy of being together rather than the perceived injustice of their living arrangements. The children will have an understanding their residence with the father is permanent and they should make the best of their time with the mother.

18. For reasons articulated by the Family Consultant in cross-examination, it is undesirable for the supervision of the children’s visits with the mother to be permanent. Inevitably, the invasion of privacy and artificiality of a supervised filial relationship will impair the children’s relationships with the mother.

19. For those reasons, the orders provide for the children to spend time with the mother in a contact centre for two hours once every month for the next year. Thereafter, the orders dispense with the need for supervision and moderately expand the time the children spend with the mother.

20. The temporary supervision is designed to give the children a reasonable period of respite from the circumstances in which they feel motivated to complain about the father. As the Family Consultant said in cross-examination, that will “assist the children to develop psychologically in a healthy way” so that they are less susceptible to the danger of “systems abuse”.

21. The Family Consultant was asked whether supervision for a period of two years would be appropriate but, without being any more specific, he ventured the hope that a considerably shorter period would suffice. The orders therefore arbitrarily adopt a period of 12 months.

22. The supervision will be provided by a contact centre in I City which the parties have used before. When supervision is lifted the parties must exchange the children at Town G Railway Station, which is another venue they have also used, unless they agree otherwise.

23. The orders restrain the mother from attending at or near to the children’s schools, without the father’s written permission, until such time as the requirement for supervision is lifted. That will prevent the mother from subverting the intention of the orders by attending at the children’s schools. Once the children resume spending unsupervised time with the mother she will be able to attend events at their schools, as the Family Consultant recommended.[51]

    [51] Family Report, para 62

1. There is no restraint upon the mother procuring from the children’s schools copies of their school reports and school photographs. An order requires the father to facilitate their procurement by the mother.

2. The parties are at liberty to provide sealed copies of the Court’s orders to the principals of the children’s schools, which will help eradicate any misunderstanding about the parties’ rights and obligations. That will cure the Family Consultant’s concern.[52]

   [52] Family Report, para 61

3. The mother should not be left in any doubt that should either she or the children continue to make unsubstantiated allegations of sexual abuse against the father, fresh proceedings would probably ensue and she would risk orders being made that eliminate her entirely from the children’s lives.

4. Because there is a chance that further allegations will be made, the orders require the mother to furnish the police and the Department with copies of the final orders, these reasons, and the reasons previously delivered on 20 February 2013 in the event further allegations are made against the father. At least then the authorities will investigate any fresh allegations in proper context.

5. The marginalisation of the mother in the children’s lives over the next year is ameliorated to some extent by orders providing for the children to communicate with her by telephone. Interim orders were made in September 2013 for the children to communicate by telephone with the mother each week and since then the children and the mother have done so on “almost all Wednesdays”.[53] Final orders to that effect are made, consistently with the Family Consultant’s recommendation.[54]

   [53] Father’s first affidavit, para 24(a)

   [54] Family Report, para 63

6. The orders do not make express provision either allowing or precluding written communication between the children and the mother. The mother invited an order expressly permitting it, but such an order is unnecessary. The father may make a decision, as an incident of his sole parental responsibility for the children, about the appropriateness and frequency of written communication between the children and mother.

7. An issue remained about the permanence of an injunction precluding the children’s contact with Ms E. Such an order was made on an interim basis in February 2013.[55] The reasons then pronounced by the Court expressly envisaged re-consideration of the need for that injunction to be made permanent (see Howard & Lipschitz at [129]).

   [55] Order 8(g) made on 20 February 2013

8. The nature of the mother’s relationship with Ms E is enigmatic. Even though the mother maintained she and Ms E were no longer romantically involved, they continue to live in the same house and the mother now receives Centrelink income as Ms E’s designated carer.[56] In cross-examination the mother said she was considering a residential move to the J Region area so she could be closer to the children. She was unsure if Ms E would move with her if she relocated. In circumstances where Ms E is apparently now only an unwell friend of the mother, it remains unclear why she accompanied the mother to her interview with the Family Consultant.

   [56] Family Report, paras 22, 24, 25, 59; Mother’s affidavit, para 6

9. The mother asserted she had complied with the interim injunction concerning Ms E. She told the Family Consultant she expected to be able to continue complying with the injunction if required, though she considered it was entirely unnecessary. She actually asked the Family Consultant to allow the children to see Ms E that day.[57]

   [57] Family Report, para 37

10. No evidence was advanced as to why it would be beneficial for the children to spend time in the company of, or to communicate with, Ms E. If the mother and Ms E only have a platonic friendship and they may soon live a long way apart, there seems no reason at all to re-introduce the children to Ms E. The reasons for the severance of the children’s interaction with her were plainly expressed when the interim orders were made in February 2013.

11. Leave was granted for Ms E to file an affidavit in the proceedings,[58] but she did not do so and was consequently not available for cross-examination. She must therefore have had no material evidence to offer about the benefits of her interaction with the children. Nor did the mother offer any such evidence.

    [58] Order 19(b) made on 18 September 2013

12. Instead of being a witness, Ms E was again the mother’s McKenzie friend, which role she took very seriously. She appeared largely responsible for the manner in which the mother conducted her case. Barely a question was asked or a submission was made by the mother that was not formulated for her by Ms E. At one stage Ms E even had to be admonished for signalling answers to the mother while she was under cross-examination.

13. The interim injunction precluding the children’s interaction with Ms E should be made permanent. It should also be expanded to preclude their communication with her, consonantly with the Family Consultant’s recommendation.[59]

    [59] Family Report, paras 59, 63

14. A final order is made perpetuating the parties’ obligation to ensure that no persons other than themselves are referred to by the names “Mum” and “Dad” by the children, consistently with the interim order[60] and the Family Consultant’s recommendation to that effect.[61]

    [60] Order 14 made on 20 February 2013

    [61] Family Report, para 65

15. The remaining orders are self-explanatory and were made on an interim basis. There was no complaint about their continuity and even if there was it would have been unreasonable.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 30 April 2014.

Associate: 

Date:  30 April 2014