IDONI & SOHRAB - [2018] FamCA 1128

FAMILY COURT OF AUSTRALIA

IDONI & SOHRAB

[2018] FamCA 1128

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interest of a child – Where the parties are in conflict with respect to parental responsibility and with respect to the time the children shall spend with the mother – Where the mother seeks equal shared parental responsibility and equal shared time with the children – Where the father opposes the orders sought by the mother – Where the children have expressed their views to the family consultant – Where the family consultant does not support the mother’s proposal – Orders made ex-tempore.

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the mother seeks to adjourn the trial – Where the mother has not complied with trial direction orders – Where the father opposes any adjournment – Where the father seeks that the trial proceed on an undefended basis.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Andrew & Delaine [2009] FamCAFC 182
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Idoni

RESPONDENT:

Ms Sohrab

FILE NUMBER:

ADC

143

2013

DATE DELIVERED:

17 December 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:	The Family Law Project
COUNSEL FOR THE RESPONDENT:	Litigant in person

Orders

The mother’s oral application for the adjournment of the trial is dismissed.
All previous orders be discharged.
The father shall have sole responsibility for the children C born … 2007, Z born … 2010 and Y born … 2012 (“the children”).
That the children live with the father.
That the children spend time with the mother as follows:-
a.   Each Sunday from 10.00 am until 6.00 pm;
b.   On 25 December 2018 and each year thereafter from 10.00 am to 1.00 pm;
c.   Such further or other times as may be agreed between the parties.
Each of the parties be at liberty to attend the children’s school for functions and other events to which parents are usually invited SAVE AND EXCEPT that they use their best endeavours to ensure that unless it is their joint agreement to do so, any attendance in the classroom or at parent/teacher evenings will be scheduled at a time not to coincide with the attendance of the other party.
That each party is restrained and an injunction is hereby granted restraining each of them from:-
a.   assaulting, harassing, threatening, intimidating, abusing or denigrating the other, the other’s partner or any other member of the other’s family and from permitting any other person to do so;
b.   communicating with the other parent save as to any issue that relates to the children or their welfare and in that circumstance the parties will communicate via email, respectful text messaging, a communication book or by telephone if there is agreement to do so;
c.   facilitating the children attending upon any counsellor, therapist, psychologist, social worker or specialist health professional without the prior written consent of the other parent;
That to the extent that it is necessary, the father do authorise the children’s school to provide to the mother copies of school reports, newsletters, photographs (at the expense of the mother) and any such other information or other material as the mother may request from time to time.
That the parties advise the other forthwith of any attendance by the children upon a medical practitioner in circumstances of a medical emergency.

10. That the father advise the mother the identity of the children’s medical practitioner and do authorise the medical practitioner to provide to the mother any information as to the children’s medical health.

11. The mother be restrained and an injunction is granted restraining her from leaving the children or any of them in the sole care of Mr G.

12. That all matters be removed from the active pending list of cases

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 Idoni & Sohrab 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 ADELAIDE

FILE NUMBER: ADC 143 of 2013

Mr Idoni

Applicant

And

Ms Sohrab

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Mr Idoni (“the father”) and Ms Sohrab (“the mother”) are in ongoing litigation in respect of the future parenting arrangements for C born in 2007, Z born in 2010 and Y born in 2012 (collectively “the children”).
The proceedings were commenced by the father in 2013 and reached a final hearing in April and May 2015 resulting in a judgment being delivered on 14 May 2015 with orders that provided for the parties to have equal shared parental responsibility and for the children’s care to be effectively shared in the sense that C was to live with the father and spend time with the mother and Z and Y should live with the mother and spend time with the father.
Those arrangements soon broke down and orders were made that placed the children in the primary care of the father, where they have been since 2016. As a result of the changed arrangements, the father filed an Initiating Application, amended on 31 August 2018. On 15 May 2018 all applications for final orders were listed for hearing before me to commence on 17 December 2018 as a primary listed trial.
The orders on that day did not provide for trial directions but set a trial date. Further consideration of the trial direction orders was adjourned to 28 June 2018. The reason for the further adjournment and the Court’s reluctance to set trial directions was because the mother indicated that she would wish to be represented and that she has had difficulty finding representation. There is a history of the mother being represented and then not and, on occasion the mother not attending at all.
An example is that the matter was listed on 26 April 2018 for a first day hearing. The order reflects that the father was represented and in attendance but that there was no appearance by the mother or her counsel. The proceedings were then adjourned to 15 May 2018 to enable the mother to have an opportunity to be represented. The mother appeared on 15 May 2018; the father appeared and the mother was not represented. The Court considered on the application of the mother, that because she still evinced a clear intention to seek legal representation it would be unwise for the Court to make trial directions if the mother was going to be represented, hence the adjournment until 28 June 2018.
By reference to that date, again, the father was represented and appeared. The mother did not appear. Orders were made that put in place trial direction orders. There were also orders made in respect of the arrangements for the children to live with the father and spend time with the mother. The proceedings then came before Registrar Paxton on 13 November 2018. On that occasion the mother appeared. The mother sought an extension of time on the basis that she was not able to obtain advice at that stage and that her documents had not been prepared. Time was extended by the Registrar for her to file her affidavit material in order to comply with order 3 of the orders made on 28 June 2018 to 4.00 pm on 5 December 2018.
The order contains an important notation, namely, that a date had been set for the parties to attend upon a family consultant pursuant to an order made under s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”). The order notes that the family report was to be released by 30 November 2018. By looking at the notes made by Registrar Paxton there is a reference to the status of the mother’s representation on that occasion and the note says that whilst the mother was representing herself, and that was clearly self-evident from the fact that she appeared on her own behalf, she indicated that she was in the process of obtaining legal advice.
The mother has not filed any answering documents and has failed to comply with each and every trial direction that has been made both by me and the Registrar. The matter comes on today with the father having complied. There is an Amended Initiating Application of 31 August 2018. There is a Trial Affidavit of 31 August 2018 and counsel has provided the Court with the courtesy of a Case Outline document. The mother appears today without any documents and no clear indication of when any answering documents or documents setting out her case are likely to be prepared.
The mother’s position was uncertain at the commencement of the proceedings but following discussion with the mother three options were suggested in terms of the procedural considerations that the mother might understand. The first option was that the mother might wish to make an application for an adjournment of the proceedings. The second option was that the proceedings would continue today but on an undefended basis. The third was that the proceedings would continue on an undefended basis but that the mother might be given a limited right of involvement, whether that be by way of cross-examination of the father and Ms P (“the family consultant”) or whether it be even more limited in terms of her ability to make submissions.
The mother indicated that she was ill-prepared to be involved in the proceedings to the point where she would be able to cross-examine the father. With respect to the mother I accept that that is probably a reasonable reflection as far as she is concerned in terms of her capacity to engage in the proceedings. However, even that option is limited further by the fact that the mother did not attend today with any papers at all and, after some uncertainty, it was generally understood that she had left her documents at home on the assumption, that matters that she would put to the Court would not be matters that would require her to have resort to those documents.
The father opposes the proceedings being adjourned for the reasons that I will come to momentarily. It was ultimately the mother’s position that she would seek an adjournment. Whilst there was some uncertainty as to her position, I considered it necessary that she should be given at least an opportunity to seek advice from her solicitor that she says she has been instructing now for some period of time about what has transpired and what other matters she may be advised would be relevant to an application for an adjournment.
Opportunity was given to the mother, but apparently her solicitor was either not in her office or not available to take her call. The first consideration is an application for an adjournment of the proceedings to enable her to be legally represented. The mother’s application is not supported by a formal application or an affidavit. In the ordinary course it may not be considered as essential that there be that level of formality in respect of an application for an adjournment. However, in this case, circumstances dictate that that should be the proper approach.
These proceedings have been before this Court in terms of the ongoing litigation between the parties since 2013. Certainly, since the final orders were made on 14 May 2015 and then the litigation being renewed from 2016, these children have spent the majority of their lives with a background of ongoing conflict between the parties. The mother has had more than six months to put her house in order and she concedes that on each occasion that the matter has come before me or before the Registrar, the focus has been upon ensuring that the mother understands that litigation of this sort is never in the interests of children but that, in any event, litigation needs to be brought to an end.
The mother’s position has been one of recognition of those basic principles and it is clear that the Court has given the mother every opportunity to be heard. The principle is not that the proper administration of justice can only be served if a party is heard; it is that a party must be given an opportunity to be heard. What they do with that opportunity is a matter for them. The position in which the Court finds itself is one of increasing difficulty in terms of the lack of resources available. As the litigants in this Court would understand I am the only judicial officer in this Registry that is able to hear and determine cases at first instance.
A trial date is a highly sought after prize for parties involved in litigation where, demonstrably, they are not able to resolve their differences in respect of the arrangements relating to their children. The children have an entitlement and a right to have the litigation resolved and the conflict between the parties determined in circumstances where the parties are not able to do so. When a matter is given a primary listing, it is something that should be jealously guarded and properly utilised.
In his case, the Court was keen to ensure that the mother had every opportunity to either explore and obtain legal representation and if not then to have sufficient time to be able to garner and gather her thoughts sufficient for her to put forward to the Court the orders that she seeks in respect of the ongoing arrangements for these three children and also the reasons why her parenting proposals should gain support from the Court. As discussed, the mother has had more than six months to do so.
It may be that the mother’s presentation belies a more involved explanation, but it appears that the mother has done little or nothing in respect of the preparation of this matter, whether it be by exploring all possible avenues for legal assistance and/or ensuring that her case is properly prepared in expectation of today’s date.
If this matter is not reached today, the proceedings would have to be adjourned. At present I am listing matters in July 2019. Those matters in July that have worked their way to the point where they are entitled to have a first day hearing and to be given a trial date. There is no reason why the parties in this case would, or could expect, some priority.
To some extent, it does not prejudice or affect the father because the orders that are currently in place provide for the children’s primary care to be with him and for there to be time with the mother as may be agreed between the parties. That has regulated the arrangements for quite some time. To some extent, the prejudice of any adjournment impacts on the mother. Presumably, she seeks orders that are different to those that either are currently in place or that the father seeks by way of final orders. It is then reasonable that the mother should be more invested with the matter than appears by the submissions that she makes in support of the application for an adjournment.
The mother did not attend the family consultant’s appointment on 16 November 2018. On 13 November 2018 the mother attended before Registrar Paxton. The Registrar’s notes of that attendance recall that the mother was exploring legal aid and I am satisfied that, on that occasion, the focus was on this trial to commence on 17 December 2018. There is no note of the mother indicating the status of her discussions with her solicitor and, more relevantly, there is nothing to suggest that the mother could or would reasonably anticipate not being able to attend the family consultant’s appointment because of what now appears to be her incarceration.
I do not know the reasons why the mother was incarcerated. I have no idea what it was about nor the circumstances in which she spent, according to her, the next three weeks in prison. Presumably, it was the end of a criminal charge or charges that had been previously pending. The mother tells the Court that there are no further criminal proceedings and for the moment I accept what she says but I am not satisfied as to the circumstances by which she was not able to attend the family consultant’s report where, on 13 November 2018, it would have been reasonable for her to have indicated to the Registrar and to the father’s solicitors that there was potentially a problem looming on 16 November 2018.
Even if all of that is capable of proper explanation, what cannot be explained is why the mother has simply done nothing since 15 May 2018. In terms of applications for legal aid, the mother acknowledges that she was aware of the urgency by which she needed to pursue an application for legal aid in order for that status to be determined so that she can then decide and organise how she would represent herself if her application is unsuccessful. Again, I repeat, it seems that the mother simply has done nothing.
To the extent that an application has been filed, I accept the mother’s position which, at best, suggests that an application for legal aid was filed two weeks ago and not before. The mother’s presentation belies the importance of her setting out with some clarity what her circumstances are and explaining why it is that she apparently did nothing in respect of an application for legal aid or the instruction to any solicitor.
I am not satisfied that I should make any finding other than that the mother has done nothing in respect of the preparation of this matter or that she has proffered any reason for the delay and any basis upon which she now asks the Court to adjourn the proceedings. I am not satisfied that if I were to adjourn the proceedings for the period that the mother says, which is a month or two, that there would be any different position presented before the Court. The history of the mother’s lack of energetic engagement in the proceedings are matters which would and should have promoted the mother to put before the Court in unequivocal terms exactly what has been happening to her.
The concerns that I have raised are concerns that find favour now in the principles as set out in the decision of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. That case was decided nearly 10 years ago and, if anything, the circumstances in which the Court was asked to consider when an application for adjournment should be granted and the juxtaposition between issues relating to the proper administration and management principles and how they should be weighed have become more acute. Their Honours found that the pressure on courts caused by the great increase in litigation dictate that in the interests of the whole community, litigation should be conducted efficiently.
Their Honours also found that it is not simply a matter of a costs order as a panacea but, rather, that case management must be given proper weight. It is true that their Honours considered that case management was not an end in itself and that there must be a balancing or a weighing up of the proper administration of justice but, at [30], their Honours sum up the position in the following terms:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of the interlocutory discretions of the kind referred to by rule 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for an adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

The issue in this case is even more acute than might be considered by way of the general reference to the matters raised in Aon Risk Services. This case involves a parenting consideration and whilst it is not that the test is the best interests of the child the authorities indicate clearly that the interest of children are factors which should be taken into account. There are many authorities, in particular the decision of Rice & Asplund (1979) FLC 90-725, that make it clear that whilst the best interests test does not apply to an application for an adjournment, the likely detrimental effect of unresolved litigation on children must be given serious consideration.
In this particular case, I consider that there has been no explanation forwarded by the mother to explain her entire lack of compliance nor, indeed, anything put before the Court which would suggest that if the proceedings were adjourned, the situation upon the resumption of the trial would be qualitatively different to that which is now presented. For those reasons I dismiss the mother’s oral application for an adjournment of the trial.
By Amended Initiating Application filed 31 August 2018, the father seeks the following parenting orders in respect to the children:
(1) That the father have sole parental responsibility for the children;
(2)That in the event of any decision that regards the long-term care, welfare and development of the children, the father will provide the mother with written notice and information at least seven days prior to that decision being made and the mother shall have seven days to provide the father with any input; and
(3)That the father will make the decision with consideration to the mother’s input and advise the mother of the said decision;
(4) That the children live with the father;
(5)That the children spend time with the mother at times as may be agreed, and in default of agreement, each Sunday from 12.00 noon to 4.00 pm or otherwise ordered;
(6)That the mother is restrained from bringing the children into contact with [Mr G].
I am told by the father’s counsel that the final orders sought by the father no longer seek an order of restraint in respect of Mr G, but rather that the mother shall ensure that the children are not left in Mr G’s care in her absence.
Following further discussion, the father’s position is that there is no impediment to the mother having appropriate involvement with the children’s school and being able to receive information, school reports and school notices from the school nor indeed in respect of any attendance by her at events to which the parents of children are normally invited by the school.
It is however the position of the father that whilst he has no objection to the mother’s involvement with the school, it would be preferable if both he and the mother in terms of parent-teacher evenings did not attend on the same day and time.
The mother’s position is more complicated. Orders have been made earlier that provided for this matter to proceed on an undefended basis with the only evidence to be considered by the Court is the father’s trial affidavit and the Family Report as prepared by Ms P (family consultant) dated 30 November 2018. The mother has not filed any trial affidavit material. The most recent incantation of the orders that she seeks is contained in her Amended Response filed 1 March 2017. The mother seeks the reinstatement of orders made on 14 May 2015. It is the position of the mother today that she recognises that order is no longer appropriate in terms of the interests of these children going forward but that she is hoping that the parties can reach some private agreement in respect of the parenting of these children and that the time that the children will spend with the mother will be about equal to ensure that these children have input from both their mother and their father.
There is a long and involved history in this case. The father was born in 1980. The mother was born in 1981. The parties were married in 2006 and were finally divorced in March 2013.
The father filed proceedings in this Court on 6 June 2014. The mother filed her Response on 4 July 2014 and following the hearing in April and May 2015, orders were made that the parties have equal shared parental responsibility for the children, that as and from the commencement of the 2016 academic year, the children shall live with the parties on a week about basis from the conclusion of school Friday to the conclusion of school on the following Friday.
There were a range of other orders that assisted in the parenting of the children. Special occasions were nominated and dealt with and handovers were also arranged. The orders provided at that stage for the children to attend the S Primary School. The orders provided that the parties be at liberty to attend kindergarten, school or early learning functions to which parents are usually invited, save and except that they would use their best endeavours to ensure that unless it is their joint agreement to do so, any attendance in the classroom or at parent-teacher evenings will be scheduled at a time not to coincide with the attendance of the other party. An order in these terms will be made.
To the extent that there is any issue relating to the children’s school requiring an authority to release information to each of the parties, I propose to make that order. The orders also provided that each party be restrained and injunction granted restraining each of them from various behaviour towards each other and it seems to me there is no good reason why those orders should not endure.
The early background to the parties’ relationship and their early engagement with the children are matters that are set out in my Judgment delivered on 14 May 2015 and I do not propose to repeat those matters. One of the features in respect of those proceedings has been the use by each of the parties of illicit drugs and each of them have made appropriate admissions in that regard. The father’s position is that since the making of those orders and certainly perhaps even at a time earlier than that, consistent with his desire to present an appropriate parenting image to the children, he has desisted from the ingestion of any illicit drugs or other substances and indeed I think he also indicates that his alcohol intake has also significantly modified.
As far as the mother is concerned, the findings of the Court in 2015 was that each of the parties had been involved in illicit drug use, although there was some confidence then that the mother’s position, similar to that of the father, was intended to be one of abstinence. A second issue that loomed large and represented an important aspect of that judgment was the mother’s involvement with partner Mr G. The judgment notes that Mr G has an extensive criminal history. One of the unfortunate aspects of the interaction of the parties in 2015 and the involvement of Mr G is the mother’s involvement with him in attending at the home of paternal grandfather and seeking to take C from his care.
I made certain findings in respect of that incident which were not complimentary of the mother and Mr G. Mr G was called to give evidence and I was satisfied that there was some substance to the father’s concerns that at that time the children may well have been exposed to a domestically violent environment, that is, that there was evidence that could go to the children being at risk of exposure to family violence as between the mother and Mr G. The mother was reluctant to accept that she had been assaulted by her partner and it was her position at the time to deny that Mr G displayed aggressive physical conduct.
It is notable that I found that the mother’s denials were unconvincing. I referred to [58] of the father’s trial affidavit which spoke of his concern as to the mother’s continued relationship with Mr G. The Court had the advantage of hearing from Mr G and certain observations were made that suggested he did have some level of insight in respect of his conduct and his behaviour and he agreed, at the very least, that what had happened in terms of his attendance with the mother on the home of the paternal grandfather in March 2015 had escalated to a level that was inappropriate, particularly in circumstances where the three children were involved. He was also frank in admitting his earlier criminal history and his admission is recorded in my judgment at [212], where he said that his behaviour left a great deal to be desired. The mother was pregnant with her first child with Mr G and as matters have transpired, there are now two children of that relationship.
There is some uncertainty as to the status of those children. There appears to have been some proceedings in the Youth Court, presumably by reason of an application, that the children are in need of care and were at risk in the care of either the mother and/or the mother and Mr G. The two children were taken into care and I am told by the mother that those proceedings will be resolved on 21 December 2018. She anticipates that those children will be returned to her care.
There is no evidence to assist the Court in understanding either why the children were first taken into care or what has happened to them and, whether the mother’s hope that at the end of this week the children will be restored to her is a forlorn hope or whether it has substance. In any event, I was satisfied, in respect of Mr G that orders could be made which, effectively, provided for the shared care of the children.
The 14 May 2015 orders did not produce the result that was intended. There were allegations and counter allegations and ultimately an application was filed which required intervention in terms of orders necessary to protect the children. On 30 June 2016, upon the father’s application and noting that the mother was represented by the duty solicitor, orders were made which suspended the operative orders of 14 May 2015, adjourned the proceedings to 21 July 2016, and during the period of the adjournment, the children were to live with the father.
The children were to spend time with the mother as agreed between the parties or as ordered by the Court. Paragraph 5 of that early order required the mother to file and serve a response and an affidavit to the very serious allegations that the father had made in respect of his understanding of the mother and Mr G’s further criminal offending and other issues that were confronting the mother in terms of her circumstances.
On 21 July 2016, the mother appeared in person. The operative provisions of the final orders made 14 May 2015 were further extended and, again, the mother was ordered to file and serve an affidavit responsive to the father’s affidavit of 10 June 2016.
The father made serious allegations that he was concerned about the children’s health, safety and welfare whilst they were in the mother’s care. He alleged in [19], that Mr G was the perpetrator of physical violence against the child, Z and had shaken him. The Family Violence Unit of SAPOL were investigating the circumstances in the mother and Mr G’s home and that the mother had been living for the past eight weeks or so in an undisclosed location in the Suburb T area in housing arranged through a domestic violence service as a result of:
…yet another assault on her by [Mr G].
Mr G was placed in custody, released on 24 May 2016 and was subsequently re-arrested and returned to custody on 3 June 2016. At the date of the affidavit, it was the father’s belief that Mr G was in custody. In particular, at [25], the father sets out what he says has occurred since the making of the orders. Generally, the tenor of the assertions by the father is that there has been persistent and ongoing domestic violence by Mr G perpetrated against the mother and that she had sought further assistance via domestic violence shelters and other agencies.
As a result of her refusal to acknowledge the violent conduct of Mr G, he had been released from custody. The father also alleged that the mother had been charged with criminal offending, including an assault against C and making off without payment. That each of them, that is, the mother and Mr G, were attending various criminal courts in and around the metropolitan area of Adelaide and the father made the general assertion that the living arrangements that the mother provided for the children, together with Mr G, were, in his words “transitory and involved hotels, domestic violence shelters and other accommodation”.
The father’s affidavit was comprehensive and I accepted at the time that the father was doing the best that he could. The answer to the matters raised by the father invited a response by the mother as to her personal circumstances. It could not be said that the mother was unaware that as a result of the matters raised by the father the Court was uninterested in her circumstances, those of Mr G, and whether the multitudinous allegations made by the father, all of which had the potential for serious adverse impact upon the children, had substance. Hence the various orders made that the mother file and serve a response and an affidavit to the allegations made by the father on 10 June 2016.
That issue was again highlighted on 13 September 2016 when Registrar Paxton made an order extending the mother’s time to comply with order 4 required the mother to file an affidavit. Further time was given to the mother on 24 January 2017 and again on 1 February 2017 when the mother reappeared this time represented by counsel. The mother was again represented by counsel on 3 February 2017 and again further time was allowed for the mother to file an amended response and an affidavit in support.
Orders were made on 16 March 2017 which provided for the children to live with the father and spend time with the mother each Wednesday, Thursday in relation to C and Z; Thursday in relation to Y, and then on other occasions. Paragraph 5 of those orders require that the mother forthwith advise the father of all information received by her as to the status of Mr G in respect of his criminal charges and his incarceration. The matter was then transferred to the trial list.
Further orders were made on 15 May 2018 which again provided for the parenting arrangements in respect of the children, this time more limited to each Thursday and each Sunday and a further order that until further order the mother be restrained and an injunction granted restraining her from bringing the children into contact with Mr G and that in the event the mother failed to comply with those terms then the children’s time with her would be suspended.
On 28 June 2018, it was noted that the proceedings were listed for hearing on 17 December 2018 and trial direction orders were made but, importantly, that until further order the children were to live with the father and spend time with the mother as may be agreed between the parties. It is notable that on that occasion the mother did not appear either personally or represented by a solicitor or counsel.
What has not happened in all of the long history is that the mother has not filed an affidavit explaining the circumstances in respect of Mr G, his criminal proceedings or, indeed, her own personal circumstances.
The father does the best he can to set out what he understands are some of the issues that again confront the mother. To the extent that the mother appears today and given that I have given her leave to make representations but without presenting any evidence she has indicated that she does not agree with the some of the allegations made by the father.
The implication is that the father has promoted an environment whereby the Court has taken the view, wrongly, as far as the mother is concerned, that she does not present as a person either of sufficient stability to have either the primary parenting of these children or indeed to share the parenting and indeed, even further, that her environment with Mr G may present some risk for the children.
The father further alleges that in or around December 2017 he was informed by the police that the mother and Mr G had been on the run for the month of November and that they had been finally tracked down and arrested by the police and extradited from New South Wales to South Australia. The father says that he was advised by the police that they had their two children with them which resulted in an application by the Department of Child Protection to remove the children from the mother’s case.
I assume it is in respect of that application by the Department which the mother now seeks to reverse and about which she has some hope of the children with Mr G being restored to her care.
The father makes the point that since at least 16 March 2017, although I think it is reasonable to find that it goes back earlier than that, the mother has failed to provide the necessary information both in respect of her and Mr G.
The father says that the children have thrived in his care. At [40] he admits the children miss their mother and they ask when they will see her next and when they do, he says he contacts her and there has been more often than not some agreement as to the children spending time with her.
What concerns the father is the mother’s apparent unreliability in circumstances where the children have an expectation that they will spend time with her and for various reasons the mother cancels. A good example has been what has occurred over the last three or four weeks. The children have not seen their mother. It now appears that the reason for that is that she was incarcerated, having been released only relatively recently.
The result of the mother’s incarceration is that she was not able to attend at the family consultant’s appointment for the preparation of the family report on 16 November 2018 notwithstanding that some three days prior to that, she appeared before Registrar Paxton and did not advise either the father or perhaps, more importantly the Registrar of her impending incarceration. She says that she did not necessarily anticipate she would be incarcerated for three weeks and that it was a surprise to her. The mother presented as unreliable.
Whilst those are matters indicated to the Court from the bar table the obvious response is that it is a matter that is peculiar to the mother and it is only she who is able to assist the Court and the father, in better understanding her availability in respect of the children spending time with her and her personal circumstances generally.
It could not be said by the mother that the Court has not indicated an interest in her personal circumstances and those of Mr G, particularly where they relate to offending, the mother and/or Mr G being incarcerated, and the potential consequence and effect that that may have either directly on the children or may have in terms of the parenting arrangements that the mother would have put in place. If the children had been in her care for any period of time during the last three or four weeks it is difficult to understand what would have happened to them.
The mother had an opportunity to be full and frank in terms of her personal circumstances. She chose to remain silent and again, the children were adversely impacted by wanting to spend time with the mother and for reasons not explained to the father nor to the children, she was unavailable.
The father concedes that the children love their mother, that they enjoy spending time with her and that he would not wish to completely cease that relationship. He says he will continue to proactively negotiate time with the mother to see the children and allow for extended time when the mother’s behaviour is stable and shorter time when the mother’s behaviour is erratic.
Again, one of the issues of concern is the involvement of Mr G, but the father’s position now is perhaps more realistic and more accepting of the reality of the mother’s position. The mother has indicated that Mr G is a person of importance to her, that he is in her life, that there are two children from that relationship and realistically, her going it alone and keeping Mr G out of her life and out of her home environment is unrealistic and no longer appropriate.

The Court, therefore, has to take the mother’s circumstances as it finds them and it is the father’s position that the best way to deal with that is for the parties to be able to work out their differences, but in that absence, there is a safety net which would see the children spending four hours a week with the mother without any restriction on Mr G other than that she is not to leave the children in his sole care. The mother objects to those orders and says that the children need significantly more time with her.
In respect of parenting considerations, the children currently spend time with each of the parties pursuant to the current orders which means that they live primarily and predominantly with the father and spend relatively limited time with the mother as the parties may agree. There is no evidence from the mother as to how that has worked in practice and whether the father’s assertion that he is generally kindly disposed to the mother in recognition of the relationship that the children have with their mother and that they love her or, indeed, whether as the mother suggests that the father is cavalier in the time that he permits the children to spend with their mother and that despite the children’s requests, he makes the final decision which usually means less time rather than more time.
The parties are not agreed as to parental responsibility. The father seeks sole parental responsibility with a further condition that he would consult with the mother in respect of major long-term issues. The mother’s position is that it should be equal shared parental responsibility. Section 60CA of the Act requires that I have the best interest of the children as the paramount consideration and that test is to be considered by the application of the objects of s 60B(1) and the underlying principles of s 60B(2). I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and in particular, the focus of the father to what he considers is the potential emotional and psychological harm and, indeed, potentially physical harm that may be occasioned to the children by remaining for long periods of time in the mother’s care, particularly in circumstances where the mother’s household involves Mr G. I propose to adopt the following approach:
(1)Give consideration to the proposals put forward by the father and the submissions by the mother as presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case, what is in the children’s best interests.
(4)Have regard to the primary consideration under s 60CC(2),namely, the benefit of the children having a meaningful relationship with both of the children’s parents and the need to protect the children from physical and psychological harm.
(5)Have regard to the additional considerations under s 60CC(3); and
(6)That the evidence adduced by the father and as may be gleaned from the family consultant’s report are to be considered against the backdrop of s 60CC(2) and (3) and if more weight is to be given to one or more of the matters raised, then this must be the subject of delineation and comment.
I turn then to the matters raised in the Family Report dated 30 November 2018. The recommendations of the family consultant is that the father should have sole parental responsibility for the children, but that in the event that the Court considers the parenting orders by way of parental responsibility should be equal and shared, then if the mother fails to respond or contribute to decision-making process within a specified timeframe, the father has the authority to execute the sole decision-making on that occasion. That is in response to the family consultant forming the view that there is a significant suspicion as to the mother’s preparedness to have a consistent and hands-on involvement with the children.
The family consultant was concerned as to the manner in which the report would be released to the mother and she recommends that a certain process be put in place following the release of the report. I do not have those concerns and I caused the report to be provided to the mother without the process that the family consultant considered might be necessary.
The family report is equivocal in relation to the outcome. It does not support the mother’s contention that there should be equal shared parental time and the family report also supports then the father’s position that the mother should be restrained by injunction from bringing the children into contact with Mr G.
Again, there was support for the Court to consider whether an order of injunction should be made in respect of the mother’s use of illegal substances either prior to or during a time that the children are with the mother. The concern of the family consultant was to provide assistance to the Court to make orders that would ensure the children’s sense of stability and security whilst also supporting the children’s relationship with each of the parties.
The report is a detailed document. It notes the father’s complaint that the mother is a poor decision-maker and in particular, her involvement with Mr G and other decisions that she has made which has resulted in their children being taken into care. It should be noted that the mother did not attend the report. That is unfortunate, but it is again, as I have found earlier this morning, a result of the mother’s decision that she would not advise the Court that it was likely that she would not be able to attend on 16 November 2018 by reason of her incarceration. A feature of the family consultant’s considerations, but also the orders that the father seeks and the orders that the mother would have the Court make, relate to matters of overnight time.
The father is opposed to the children spending overnight time with the mother, but he says it’s not just his own view but rather that the children do not want to spend overnight time with the mother. The father has re-partnered, and the father sets out that his home is a home environment wherein there is stability and that the children enjoy their time.
In speaking to the children, at [68] the following appears.-
[The family consultant] asked [C]: Do you understand why you are here?”. [C] responded, “Mum told us we were coming here…. couple of weeks ago”. [C] further informed that [the mother] had instructed her, “Tell her [the family consultant] the truth and that you want to live with me….when you go see [ the family consultant], just make sure you tell her you want to live with me instead of living with dad because that’s what you kids want”. The report writer noted that [C] seemed to recall very clearly what [the mother] had said to her on this occasion. [C] explained, “I feel like if we [the children] said to you [the family consultant] that we didn’t want to live with Mum that she [the mother] will get angry with us and she wouldn’t want to see us anymore”.
C was asked as to the time that she would wish to spend with the mother. She would like to spend more time with the mother on weekends but she does not wish to live with the mother nor, indeed, spend overnight time with her. She recalled that when she lived with mother she was always late for school, and a difficulty with spending overnight time with the mother is that C is not comfortable with Mr G.
She is recorded saying:
“I feel like if we see her [the mother] more than once a week more chance of us getting scared….and potentially hurt”. [C] explained this was because “in the past” [Mr G] had been violent at [the mother’s] home, “especially a couple of years ago”.
It is clear that C was a witness to significant family violence in the home of the mother and Mr G. She did, however, enjoy her time with her mother and she described her time on Sundays as “good”.
However, C noted “that on most occasions when they had arrived to spend time with [the mother], [she] was still asleep” and they would have to “knock on the door for a while”. Sometimes the mother would return to bed and the children would sit and watch Foxtel. Perhaps a statement beyond the child’s maturity in years is informative. C said, “I think she [the mother] should be awake and waiting for us”. C was complimentary of the time that she spends in the father’s home.
Z presented as a polite nearly 9 year old. Y, is 6 and a half years old. Z stated that he would like “a bit more time” with the mother and that there were “good things about spending time with her”. He enjoyed his time. He had lots of fun, “… but sometimes she’s a bit sleepy….well, most of the time”.
Y declared his wish to “have a sleepover with Mum”, whereas Z was not comfortable with sleepovers but he was happy to spend additional daytime in the mother’s care. Z and Y further explained that:
[Z] is not comfortable with sleepovers mainly because [Mr G] is present. The children recalled an occasion when [Mr G] “threw” [Z] on the bed. [Z] shared that he was very fearful on this occasion.
The recommendations of the family consultant are of assistance in terms of matters relating to parental responsibility and primary care but are of limited assistance in terms of the arrangements that the children should spend in terms of them seeing their mother.
I am obviously obliged to give significant weight to matters raised in a family report, and I do so, but it is also acknowledged that in the decision of Andrew & Delaine [2009] FamCAFC 182 the Court considered the treatment and the weight to be given to the recommendations of a family consultant, and their Honours confirmed that the ultimate decision still must be that of the trial Judge, taking into account the weight that should be given to a family report. I bring my own judgment to bear, I bring to account the matters raised in the family report and I give them weight, but, ultimately, is my distillation of the evidence before me that determines what the outcome will be.
Returning to the factors pursuant to s 60CC(2) and (3), I give weight to the meaningful relationship that the children are entitled to have with each of their parents. They have a clear relationship with their father. They reside primarily with him and have done so now for the last 2 and a half years. Their relationship with their mother is still an intact relationship, notwithstanding that it has not been regular and, in particular, over the last three weeks the mother’s incarceration has represented a cessation of the time.
Nonetheless, the matters recorded by the family consultant and spoken of by the children are matters that indicate the children love their mother and they want orders that ensure they maintain and have the ability to maintain a proper relationship with her.
I do not consider that the father is in any way against such a proposition, and the tension will be whether the orders he seeks are sufficient to be able to allow the children to maintain their relationship with the mother or whether, notwithstanding that important consideration, I should give more weight to the concerns that the father expresses in relation to the risk the children might be under in the mother’s home.
I am obliged to make orders that protect these children from harm. Whilst there is not a current allegation that the mother presents a physical risk to the children, there are concerns in respect of Mr G, not necessarily even in respect of his current presentation to the children, but rather that the children have indicated to the family consultant they have concerns with Mr G. They recollect and remember matters of serious and significant domestic violence and that each of the children, depending upon their age, have a slightly different perception of the mother’s home environment.
All is not routine in the mother’s home. It is not a normal or regular state of affairs that the mother should have been incarcerated of recent date for some three weeks, nor that she is on home detention and subject to specific rule and regulation as to what she can and cannot do and where she can or cannot go.
I am told by the mother that four months from now will see the conclusion of her home detention. What is missed in this matter, however, is not that I do not accept what the mother tells me from the bar table, but that the mother is resistant and reluctant to presenting any evidence before the Court which would explain with clarity her circumstances and those of Mr G.
It may be said that sunlight is the best antiseptic. If the mother had been full and frank with the father that she was not able to have the children for the last three or four weeks because of her incarceration and provided the reason why she was incarcerated, it may be that circumstances may have been different. The father is not against the children spending time with the mother and issues in respect of the mother’s criminal conduct and her behaviour have been before the Court, at least as far as them being presented by the father as an allegation. Notwithstanding those concerns, there has been a thread through this matter where the father generally has respected that the children love their mother and want to spend time with her.
What has been missing is the mother being prepared to be open and transparent with the Court in terms of her current circumstances. She has not filed any trial affidavit material and she was given six months to do so. She has not filed any affidavit material setting out the circumstances of her criminal offending and those of Mr G and it is only as a result of that which passed between the mother and I that the Court found out that she had been unable to attend the family consultant’s assessment by reason of her incarceration.
I am obliged to give weight to the wishes of the children. They can be gleaned not just from the father’s affidavit, although to be fair to him, he makes a proper concession that the children lover their mother, but also from the more detailed consideration of those wishes and perceptions as contained in the Family Report.
Each of the children approach their mother’s home with a different perspective. Y would wish to spend overnight time. Z would not, and C would like to spend more extended time during the day, but her concern is in respect of what might be described as the mother’s constancy in terms of her parenting and the fact that she simply dislikes the environment involving Mr G. The wishes assist the Court in the sense that each of the children want to spend time with their mother and that that time should be frequent and regular because they have an overarching love for her but C recognises that the mother’s lifestyle has at least in the past been dysfunctional and that her circumstances in terms of school and social engagement are matters about which are best served by remaining in the primary care of the father.
In this case the focus has been on the mother’s circumstances rather than those of the father, but I only have his evidence and when I cross-check and test his assertion of the arrangements that he provides in his home with those matters expressed by the children to the family consultant, there is a level of consistency. There is also a recognition and a maturity on the part of the children whereby they instinctively understand that their love and regard for their mother does not necessarily equal a decision that she is able to appropriately parent them in what might be considered the mundanities of life.
At this stage I do not consider that the mother is able to present an environment which would be conducive to shared care, nor that there is enough known about her circumstances that there could be any certainty that any orders that were made that required the mother to participate and have a significant and active parenting role with respect to the children could be given proper effect. Opportunity has been provided for the mother and no impediment has been put in her way in terms of her engagement with the children’s school.
The father’s evidence is that the mother has simply not engaged. I accept what he says. I reject the mother’s submission that for some reason she thought that she was in some way prohibited. A careful consideration of the orders going back to the 2015 orders make it clear that the mother has always had every open and proper opportunity to engage herself in the children’s schooling and education and she has not chosen to do so.
The Court must act cautiously in this case. It must make orders that reflect a number of differing issues: the relationship that the children have with the parties the need for the children to feel safe and be free of emotional, psychological or physical harm, but also that the children spend time with the mother so that as they develop – and perhaps as the mother develops – a different landscape may present itself.
I also have some confidence notwithstanding the matters raised by the mother that the father’s position is one that he respects his relationship with the children will very soon come under significant pressure if he does not fall in with what he clearly understands is a matter of interest to them, namely that they see their mother, spend time with her, because he acknowledges that the children love her. It is her dysfunction that has prevented what might be described as a more fulsome relationship being able to develop rather than any impediment that the father places in respect of that time.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 December 2018.

Associate:

Date: 21 January 2019