JACOBS & BERTHOLD

[2011] FamCA 425

FAMILY COURT OF AUSTRALIA

JACOBS & BERTHOLD [2011] FamCA 425

FAMILY LAW - CHILDREN – parental responsibility – meaningful relationships – father has involved children in the parental conflict – children suffering psychological and emotional harm as a result of exposure to parental conflict – father is unwilling to facilitate or encourage the children’s relationships with the mother – father has aligned children against the mother – father failed to comply with interim parenting orders – deterioration in eldest child’s relationship with mother – no communication between parents – past family violence – no evidence of current family violence – children exhibiting violent behaviour – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to mother

FAMILY LAW - CHILDREN – with whom children will live and spend time – children live with mother – where children aligned against mother – no contact with father for period of three months – spend gradually increased time with father

FAMILY LAW - PROCEEDINGS – father did not actively participate in proceedings

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

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Jacobs

RESPONDENT: Mr Berthold

INDEPENDENT CHILDREN’S LAWYER: Legal Aid, G

FILE NUMBER: NCC 2789 of 2009

DATE DELIVERED: 9 June 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 31 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, G

Orders

1. All previous parenting orders relating to the children C JACOBS-BERTHOLD, born … November 1997, T JACOBS-BERTHOLD, born … October 1999, and B JACOBS-BERTHOLD, born … December 2001, (“the children”) are discharged.

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

3. The children shall live with the Mother.

4. For a period of three (3) months following the date of these Orders, the parties are restrained from causing or permitting the children to spend time with the father.

5. Upon expiration of Order 4, for a further period of six (6) months or 10 contact sessions, whichever shall last occur, the parties shall take all reasonable steps to ensure that the children spend 3 hours of supervised time with the father at R Contact Centre at G (“the contact centre”), at such times as determined by the contact centre, but not more frequently than weekly and not less frequently than monthly, and for that purpose:

   5.1The parents must:

   5.1.1Contact the contact centre … within seven (7) days to arrange an appointment for assessment for suitability;

   5.1.2Attend the assessment;

   5.1.3Comply with any appointment made by the contact centre;

   5.1.4Comply with all reasonable rules of the contact centre; and

   5.1.5Comply with all reasonable requests or directions of the staff of the contact centre.

   5.2If the parents are accepted by the contact centre following intake assessment procedure, then such time is to be implemented by the mother delivering the children to the contact centre at the start of the children’s time with the father and collecting the children from the same place at the end of that time.

   5.3The parents shall each pay one half of the fees nominated by the contact centre for the provision of its service.

6. Upon expiration of Order 5, for a further period of three (3) months, the parties shall take all reasonable steps to ensure that the children spend time with the father from 9:00am until 5:00pm on Saturday, each alternate weekend.

7. Upon expiration of Order 6, for a further period of six (6) months, the parties shall take all reasonable steps to ensure that the children spend time with the father from 9:00am until 5:00pm on both Saturday and Sunday, each alternate weekend.

8. Upon expiration of Order 7, the parties shall take all reasonable steps to ensure that the children spend time with the father:

   8.1From 9:00am Saturday until 5:00pm Sunday, each alternate weekend;

   8.2For 3 hours on each of the children’s birthdays, if the children are not already spending time with the father, at such time mutually agreed between the parents, and if not agreed, from 10:00am to 1:00pm if the birthdays fall on weekends and from 4:00pm to 7:00pm if the birthdays fall on weekdays, commencing in 2013;

   8.3From 9:00am to 5:00pm on Father’s Day, if the children are not already spending time with the father, commencing in 2013;

   8.4From 3:00pm on Christmas Eve until 3:00pm on Christmas Day, commencing in 2012;

   8.5From 3:00pm on Christmas Day until 3:00pm on Boxing Day, in odd numbered years, commencing in 2013; and

   8.6At such other times as the parties agree in writing.

9. The children’s time with the father pursuant to Orders 5-8 inclusive is suspended between 9.00am and 5.00pm on Mother’s Day.

10. For the purposes of implementing the time spent by the children with the father pursuant to Orders 6-8 inclusive, the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the McDonalds Restaurant at W, NSW, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.

11. The parties shall take all reasonable steps to ensure that the children communicate with the father by telephone each Sunday night between the hours of 7:00pm and 8:00pm, and for that purpose the father shall contact the mother on her landline or mobile telephone and the mother shall ensure the children are available to speak with the father, with all calls to be placed on loud speaker unless and until the mother has notified the father to the contrary.

12. Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

12.1By the father being able to send letters, cards, and/or gifts to the children, and

12.2By the mother promptly sending to the father any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.

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

2. Each party is restrained from using physical force upon the children when disciplining them.

3. The father is restrained from consuming alcohol in the presence of the children or for 12 hours before any period during which the children are in his care.

4. Each party is restrained from using any prohibited drugs whilst ever the children are in their respective care.

5. Each party is restrained from discussing these proceedings with or in the presence of the children or showing to the children any document connected with these proceedings.

6. The mother shall do all acts and execute all documents so as to ensure the children continue to attend counselling with an appropriate counsellor regarding the time spent by them with the father, the parental conflict, and the children's relationships with each of the parties, for as long as deemed necessary by the counsellor.

7. For the purposes of compliance with Order 18:

   19.1The mother shall promptly pay any reasonable fees of the counsellor;

   19.2The mother shall ensure that the children attend each occasion of counselling as the counsellor requests and comply with all reasonable requests of the counsellor in relation to the counselling.

   19.3Leave is granted to the mother to provide a copy of the Family Report, dated 17 February 2011, to the counsellor.

8. Each party is restrained from denigrating the other in the presence or hearing of the children, and each party shall do all things necessary to ensure that no third party denigrates the parties or either of them in the presence or hearing of the children.

9. In the event of any of the children being hospitalised or receiving medical attention, the party with whom that child is then living or spending time shall notify the other by telephone as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital, and if there is no answer, that party forthwith notify the other by text message.

10. Each party shall provide any medical practitioner, medical centre or hospital caring for the children with irrevocable authority permitting the release of information to the other party about the condition of the children.

11. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all of the children’s school reports, merit cards, any written material pertaining to the children’s academic and extra-curricular activities, and school photograph order forms.

12. Upon expiration of Order 7, the parties shall both be entitled to attend all events involving the children including:

    24.1    Sporting events;

    24.2    Extra curricular activities that allow for parental attendance; and

    24.3School functions and events that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;

13. The Independent Children’s Lawyer shall meet with the children as soon as possible following the making of these Orders to explain the Orders to the children, and for that purpose the mother shall comply with all reasonable directions by the Independent Children’s Lawyer.

14. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

1. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period or compliance with Order 25, whichever is the later.

1. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Jacobs & Berthold is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2789 of 2009

Ms Jacobs

Applicant

And

Mr Berthold

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that best meet the needs of the three children born to the applicant mother and respondent father. The children are now between 13 and 9 years of age.

2. The parties have vastly divergent views about the manner in which the children should be raised and their difference of opinion has caused conflict between them. Regrettably, the children have become caught in the controversy and they are emotionally disturbed by it. The eldest child in particular has been affected. She is openly supportive of the father, to the detriment of her relationship with the mother, and has assumed an inappropriately adult-like role within the father’s household.

3. There is little question that the children are securely attached to both parties and are generally physically safe with each of them. However, the present interim parenting orders are not the subject of regular compliance and the ad hoc alternative is perpetuating conflict and causing dissatisfaction. Change is necessary. The real issue in the case is identification of the parenting regime that is most emotionally advantageous to the children in the mid to long term.

Background

1. The parties commenced cohabitation in October 1983.

2. Three children were born to their relationship, namely:

   a)C, born in November 1997;

   b)T, born in October 1999; and

   c)B, born in December 2001.

3. The parties ended their relationship on 22 September 2007, at which time the mother and eldest child vacated the family home and began living at a property owned by the maternal grandmother. On 30 May 2008 the mother moved into alternate accommodation at the same property, where she remains.

4. The parties were initially able to consensually arrange the movement of the children between their households, which arrangement was assisted by the parties’ participation in mediation in November 2007.

5. The father was not in gainful employment but the mother continued her employment with RailCorp. The children stayed with the mother at times structured around her work shifts and the maternal grandmother assisted the mother with the children.

6. An arrangement developed whereby the two boys lived with the parties for equal time on a weekly rotation, and the eldest child stayed with each party as she pleased.

7. The time spent by the eldest child with the mother fluctuated over time. In September 2008 the time amounted to about 5 days per fortnight. By July 2009 the time had decreased to about 3 days per fortnight, and by September 2009 the eldest child ceased spending any time with the mother. That was the impetus for the mother to commence these proceedings. She filed her Initiating Application on 2 November 2009.

8. The eldest child then recommenced spending time with the mother. In January 2010 that time amounted to about 3 days per fortnight.

9. Interim parenting orders were made by the Court with the consent of the parties on 15 March 2010, essentially providing for:

   a)The parties to have equal shared parental responsibility for the children (Orders 1.1, 1.2, 1.30);

   b)The two youngest children to live or spend time with the mother for equal time on a weekly rotation (Orders 1.4, 1.6);

   c)The eldest child to live or spend time with the mother for 4 days/nights and 2 other evenings per fortnight (Orders 1.4, 1.5);

   d)The children to live or spend time with the father at all other times (Orders 1.4, 1.7);

   e)The parties to cause the children to participate in psychological counselling (Orders 1.19, 1.20); and

   f)The children to communicate regularly with both parties (Orders 1.21, 1.22)

10. The mother alleged that those orders were regularly contravened by the father. In particular, the eldest child did not spend time with the mother as required by the orders, and the father failed to diligently facilitate the attendance of the children for psychological counselling.

11. The relationship between the mother and eldest child continued to vacillate. By June 2010 that child was spending time with the mother for 6 days per fortnight, and by August 2010 the time reached up to 8 days per fortnight, but by September 2010 the time was back down to 3 days per fortnight. From 28 November 2010 until 1 January 2011 the eldest child only interacted with the mother by infrequent telephone communication. The time spent by the eldest child with the mother throughout January, February, and March 2011 was patchy and inconsistent.

12. The Family Consultant met with the parties and children for the purposes of preparation of her Family Report on 15 February 2011. The Family Report was released to the parties shortly afterwards, the contents of which influenced the parties’ attitude to the future conduct of the litigation.

13. The mother recognised that the opinions of the Family Consultant were broadly supportive of her position and moved to file an Amended Application on 21 March 2011, in which she proposed parenting orders reflecting the recommendations of the Family Consultant.

14. Conversely, the father did nothing and effectively resiled from further participation in the proceedings.

15. The matter came before the Court for trial on Tuesday 31 May 2011.

Proposal of the independent children’s lawyer

1. At the commencement of the trial the Independent Children’s Lawyer announced to both the parties and the Court that she had reached a concluded view about the orders that should be made in respect of the children. A Minute of Orders was produced and tendered.[1] Her proposal was that the mother should have sole parental responsibility for the children, that they live with her, and that they spend dramatically curtailed time with the father.

   [1] Exhibit ICL1

2. The Independent Children’s Lawyer relied upon the evidence of the Family Consultant contained within her Family Report.

3. Because the Family Consultant had not seen the orders proposed by the Independent Children’s Lawyer, she was furnished with a copy of the exhibit and cross examined briefly upon its contents.

4. The Family Consultant embraced the orders proposed by the Independent Children’s Lawyer, which she regarded as wholly consistent with her opinions and recommendations.

5. Otherwise the Family Consultant adopted the contents of her Family Report, annexed to her affidavit affirmed on 18 February 2011.

Proposal and evidence of the mother

1. The mother was self-represented at the trial. She had intended pressing for the orders set out within her Amended Application filed on 21 March 2011.

2. However, upon production by the Independent Children’s Lawyer of her Minute of Orders, the mother adopted the orders proposed by the Independent Children’s Lawyer in preference to those in her Amended Application. There was not really any great disparity between the two proposals.

3. In support of her case the mother adduced the following evidence:

   a)Her affidavit filed on 19 April 2011;

   b)The affidavit of Ms J filed on 19 April 2011; and

   c)The affidavit of Mr N filed on 19 April 2011.

4. Neither the mother nor her witnesses were cross examined. The father chose not to do so and the Independent Children’s Lawyer took no issue with their evidence.

Strategy of the father

1. The father was also self-represented at the trial. He objected to the orders proposed by the Independent Children’s Lawyer and also those earlier proposed by the mother in her Amended Application. Despite his opposition, the father chose to disengage from the proceedings.

2. The father previously filed a Response on 24 November 2009, shortly after the proceedings were commenced by the mother. He has not since filed any document indicating any change to the parenting orders he proposed at first instance. He considered that the children should live with him and spend time with the mother at their individual discretion. He made no proposal about the allocation of parental responsibility.

3. The father failed to file any affidavit evidence in accordance with the procedural orders made on 15 March 2011 in readiness for the trial. The last affidavit filed by the father was filed with his Response on 24 November 2009.

4. When asked, the father confirmed that he did not wish to give any evidence, did not wish to adduce any evidence from any other witness, and did not intend to ask any questions of the Family Consultant, the mother, or any of the mother’s witnesses. He simply did not intend to actively participate in the proceedings. The corollary of that decision was that all of the evidence adduced by the mother and given by the Family Consultant was unchallenged.

5. During an adjournment the father absented himself from the Court precincts and did not return. He was not present when oral evidence was taken from the Family Consultant and final submissions were made.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. 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).

1. 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).

2. 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).

3. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or 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 legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

4. 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 spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

5. 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.

6. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Children’s best interests – primary considerations

1. The children have a good relationship with the father.[2]

   [2] Family Report, par 112, “evaluation 3”

2. The children also have a good relationship with the mother,[3] although it is common ground that the children have treated her disrespectfully and that the eldest child’s relationship with the mother has suffered from some degree of impairment. The reasons for that will be discussed below.

   [3] Family Report, par 114, “evaluation 3”

3. No contention was made to the effect that the children would not benefit from perpetuation of their meaningful relationships with both parties. A critical question is how the meaningful relationships with both parties may be preserved whilst simultaneously promoting the children’s best interests, given the evidence about their exposure to psychological harm by the father’s conduct.

4. The mother reported to the Family Consultant being the victim of high levels of family violence perpetrated by the father during cohabitation, which was often witnessed by the children. She alleged being spat on, hit, kicked, throttled, and having had her hair pulled.[4] For his part, the father did not deny the perpetration of violence by him, but contended that it was also committed by the mother. He also implicitly admitted that the violence occurred in the presence of the children, because he contended that the children could corroborate his allegations of violence against the mother.[5]

   [4] Family Report, par 16

   [5] Family Report, pars 16, 36

5. The exposure of the children to such family violence is verified by independent records examined by the Family Consultant. The violent incidents between the parties were sufficiently serious to warrant police intervention on at least two separate occasions.[6]

   [6] Family Report, par 36

6. However, there is no evidence of family violence occurring between the parties since September 2009.[7] Given the passage of time and that the parties now barely even communicate with one another, I infer that the children are unlikely to be exposed to further family violence between them in the future. There is no evidence of family violence presently occurring in either party’s household.

   [7] Family Report, par 17

7. Both parties have previously inflicted corporal punishment upon the eldest child. A consensual interim order was made on 15 March 2010 restraining the parties from punishing the children in that manner and, so far as the evidence goes, the parties have complied with that order.[8]

   [8] Family Report, par 18

8. Although abuse and family violence certainly occurred in the past, I am not satisfied that there is any existent need to protect the children from harm caused to them by exposure or subjection to abuse, neglect or family violence.

Children’s best interests – additional considerations

1. The children have expressed different views about the parenting regime under which they should live.

2. The eldest child told the Family Consultant that there was “no way” she would stay with the mother if the Court ordered her to do so and that she wants to live with the father for “100% of the time”.[9]

   [9] Family Report, par 96

3. Although the eldest child is 13 years of age, I accept the Family Consultant’s evidence that she lacks the maturity to have any real weight attributed to her views.[10] In any event, the representations of the eldest child are not entirely consistent with her behaviour, suggesting that she feels some degree of pressure to indicate a preference for the father. When observed by the Family Consultant, the eldest child laughed and chatted with the mother and was open to the idea of spending time with the mother at the mother’s partner’s farm.[11] The eldest child’s comment to the Family Consultant that “Mum is only doing this to hurt Dad”[12] is redolent of her immersion in the parental conflict by the father, either deliberately or through insightless inadvertence.

   [10] Family Report, “evaluation 2”

   [11] Family Report, par 114

   [12] Family Report, par 97

4. The middle child indicated to the Family Consultant a wish to retain the current equal time arrangement,[13] but that sentiment seems to be only a simplistic manifestation of his wish not to be compelled to choose between his parents.[14]

   [13] Family Report, par 100

   [14] Family Report, par 106

5. The youngest child enjoys his time with both parties, but told the Family Consultant that he would choose to live with the father if compelled to make a choice.[15] However, he does not wish to be placed in that predicament.[16]

   [15] Family Report, pars 107, 111

   [16] Family Report, par 108

6. As with the eldest child, I accept the Family Consultant’s opinion that the two youngest children are insufficiently mature for their views to carry weight in the determination of appropriate parenting orders.

7. There is little evidence about the children’s relationships with members of the paternal family. However, it is clear that the two younger children have a very close relationship with the maternal grandmother,[17] and the children are reasonably fond of the mother’s partner.[18]

   [17] Family Report, pars 109, 114

   [18] Family Report, pars 95, 114; Affidavit of Mr N, par 33

8. There is a significant issue in the case about the willingness of the father to foster the relationships between the children and the mother. The mother harbours an honest belief that the father has deliberately set out to align the children with him and against her, whereas the father denies the accusation and asserts that the children’s disrespectful behaviour towards the mother is a product of the mother’s treatment of them.[19] The evidence lends credence to the mother’s perception being more accurate. Several examples suffice to demonstrate the way in which the father undermines the mother.

   [19] Family Report, pars 12, 33, 72

9. The father has discussed with at least the eldest child his alleged belief in the mother’s exaggeration about a serious medical condition from which the mother apparently suffered. The father’s opinion is that the mother is exaggerating her complaint in order to “emotional[ly] blackmail” the eldest child.[20] There is no reasonable basis to doubt the accuracy of the diagnosis of the mother’s medical condition and so the father’s conspiratorial involvement of the eldest child in his beliefs and theories could only possibly serve to influence the child against the mother.

   [20] Family Report, par 20

10. The father conceded at a Court event prior to the commencement of the trial that he may have discussed with the eldest child the mother’s prior termination of a pregnancy. There seems little doubt that he did, given that the mother reports being taunted by the eldest child with snide comments about “kill[ing] my brother”.[21] The most likely purpose served by the father’s discussion of such a topic with the eldest child would be to induce in the eldest child diminished respect for the mother.

    [21] Family Report, par 21

11. The father has told the eldest child that he will not attend her wedding if the mother were present.[22] Such comments insidiously force the eldest child to choose between her parents, in the knowledge that she cannot have a healthy relationship with both.

    [22] Family Report, par 73

12. The problem is only compounded by the father’s partner denigrating the mother to the children, referring to her as “a whore”,[23] and the father telling the children that he intended to “shoot” and “bash” the mother’s partner.[24]

    [23] Family Report, par 77

    [24] Family Report, par 85

13. Irrespective of the reason for it, the eldest child has occasionally demonstrated some reluctance to spend time with the mother. The father simply regards the eldest child as sufficiently mature to make that decision for herself. He refuses to utilise his influence as a parent to persuade the child to spend time with the mother in accordance with the interim parenting orders.[25]

    [25] Family Report, par 24

14. The most that the father has done to encourage the eldest child’s relationship with the mother is to tell that child that she needed to spend time with the mother “because of the Court orders”[26] – not because it would be beneficial for her. The imputation is obvious, and would likely have been obvious to the child – the only reason she should see the mother is because the Court ordered it to happen. The eldest child could not have helped but conclude that the father was perfectly content not to compel her to spend time with the mother. The inference was all the stronger by reason of the father’s collection of the eldest child from the mother’s home without the mother’s knowledge or permission when the child was meant to be spending time with the mother.[27] The father was clearly empowering the child to make her own decisions and thereby abdicating his parental responsibility. In light of those circumstances, if the father honestly considers that his efforts to encourage the child have been a fulfilment of his obligation to comply with parenting orders, as he said to the Family Consultant,[28] he is sadly mistaken.

    [26] Family Report, par 46

    [27] Family Report, pars 35, 75

    [28] Family Report, par 49

15. I impute that it suits the father for the eldest child to demonstrate a greater commitment to him than the mother, which is an adverse reflection upon his willingness to facilitate and encourage meaningful relationships between the children and the mother. The Family Consultant reached the same conclusion.[29]

    [29] Family Report, par 35, “evaluation 10”

16. I accept the Family Consultant’s evidence that the loyalty demands the father places upon the children, either overtly or covertly, has had a detrimental effect upon their relationships with the mother.[30] If that situation is allowed to continue unchecked the deterioration in the children’s relationships with the mother will only worsen. Ultimately the children would find themselves in the predicament of having to reject the mother to retain their relationships with the father.[31] That is a consideration of overriding importance in these proceedings.

    [30] Family Report, “evaluation 3”

    [31] Family Report, “evaluation 3”

17. By comparison, there is no doubt about the mother’s willingness to facilitate and encourage the relationships between the children and the father. She has vainly attempted to make the equal time parenting regime a success, and has convincingly told the Family Consultant that she genuinely desires the father’s co-operation with the children.[32]

    [32] Family Report, pars 80, 82, “evaluation 10”

18. The father’s attitude towards the responsibility of parenthood is unsatisfactory. His impaired attitude is demonstrated in the numerous ways he has flagrantly disobeyed Court orders made on 15 March 2010, which orders were made with his consent.

19. First, the father told the children of his intention to abandon them if he does not achieve the orders he desires in this litigation. He told them that, in those circumstances, he would “pack up and travel around Australia rather than staying around to be a ‘2 day a fortnight Dad’”.[33] He confirmed to the Family Consultant that he would likely do exactly that,[34] and even told the mother that he would simply have nothing more to do with them and “just shut them out”.[35] The father’s discussion of the proceedings with the children in that way clearly offends the interim orders, which restrained the parties from so doing. Understandably, the mother is concerned how such news would affect the children emotionally, but the father seems oblivious to the consequences. If the father makes good on his selfish threat then the children will be deprived of their meaningful relationships with him, but that will not be the fault of anyone but the father.

    [33] Family Report, par 22

    [34] Family Report, par 57

    [35] Family Report, par 81

20. The father also belligerently flouted the interim orders by consuming alcohol while the children were in his care. Not only did the father concede the breach, he brazenly asserted that he does and will continue to consume alcohol irrespective of Court orders to the contrary.[36] Although he sees no harm in drinking alcohol “in moderation”, there is an inherent problem in the differing perceptions of the parties. The mother honestly believes that the father consumes alcohol to excess.

    [36] Family Report, pars 23, 32, 35, 50

21. The father also failed to attend and complete a post-separation parenting program, as ordered.[37]

    [37] Family Report, pars 25, 60

22. The father also occasionally failed to ensure the children’s attendance at counselling, thereby failing to comply with the interim orders and causing the mother to incur cancellation fees.[38] The children are aware of the father’s view that “the counsellor talks crap”.[39] The father has declined to enforce the attendance of the eldest child, who he alleges refuses to attend.[40] That is another example of the father empowering the eldest child to make decisions which exceed her level of maturity. The father’s attitude is a great pity because at least the youngest child finds the counselling sessions valuable.[41]

    [38] Family Report, pars 14, 35

    [39] Family Report, par 110

    [40] Family Report, par 51

    [41] Family Report, par 110

23. The father tends to view his role as a parent as one which invests him with entitlement rather than obligation and responsibility. He told the Family Consultant:[42]

    “… I raised [the children] and gave everything up for them so I should be the one who gets to keep them.”

    [42] Family Report, par 57

24. The father seems quite unconcerned about ensuring the children have limits placed around them. The father discusses adult issues with the children and permits the eldest child to have a dangerously seductive relationship with an older teenager.[43] The father also fails to supervise the children closely.[44] The mother is genuinely apprehensive about, as she perceives it, the father’s excessively permissive approach.[45] Her apprehension is seemingly well founded because even the father’s partner is surprised by the father’s failure to impose reasonable boundaries around the children, particularly the two youngest children.[46]

    [43] Family Report, pars 37, 55, 74

    [44] Family Report, par 38

    [45] Family Report, par 30

    [46] Family Report, pars 62-64

25. By comparison, I accept that the mother has the capacity to meet the children’s “emotional, psychological and physical” needs[47] and demonstrates a proper attitude towards the responsibilities of parenthood.

    [47] Family Report, “evaluation 8”

26. Child support was paid, apparently in accordance with Child Support Agency assessments, by the mother to the father. Previously the mother made child support payments greater than the assessed amount.[48]

    [48] Family Report, pars 8, 31

27. The orders are capable of easy implementation. Both parties live within reasonably close proximity on the Central Coast of NSW.

28. There is no current family violence order in force. Such an order was formerly made in favour of the mother against the father in December 2007, shortly following separation, but the order expired after 12 months and was not renewed.[49]

    [49] Family Report, par 16, “evaluation 11”

29. The orders certainly entail changed circumstances for the children, to which they will need to adjust. It is unlikely the adjustment will be free of complications, particularly for the eldest child if her representations to the Family Consultant about disobedience of the orders are to be believed. That expected unsettlement of the children is a consideration that militates against any change of significance, but it is outweighed as a consideration by other features of the case, principally for reasons articulated by the Family Consultant at the very commencement of the Family Report, to which it is now convenient to refer.

Parenting orders

1. The whole of the Family Consultant’s opinions set out within the Family Report were prefaced with the following significant observation:

   The Family Consultant shares the mother’s concerns as to how the children may react should Orders be made for them to live with the mother and spend time with the father; however, the concerns raised with regards to the family violence, the father’s lack of judgment and poor parenting skills and overt attempts made by the father to align the children and to cause them to reject their mother would appear to place the children at risk of ongoing harm should they continue to live with the father. Given that the father appears to have demonstrated an ongoing non-compliance with orders, it is predicted that he will continue to behave in a similar manner in the future. It is therefore suggested that, despite suggestions that have been made by [the eldest child] to the effect that she will refuse to obey any order for her to live or spend time with the mother (or that she may self-harm if forced to comply) it would not be in [the eldest child’s] best interests to allow her to continue to live with the father, given her age and stage of development. It is acknowledged that this is a very difficult situation and that there is no degree of certainty as to how the children will cope with the proposed changes; however, it is the opinion of the Family Consultant that the situation does need to change in order to optimise the children’s prospects for the future.

2. The conflict between the parties is, in the opinion of the Family Consultant, and I accept, “deeply entrenched”.[50] The father affects no inclination to improve the situation.[51] The deteriorated state of their communication precludes the allocation to them of equal shared parental responsibility for the children. The parties would not be able to work co-operatively to resolve major long-term issues in the lives of the children. I am satisfied that the evidence rebuts the presumption of equal shared parental responsibility. In any event, the presumption would not apply by reason of the finding about the past occurrence of family violence.

   [50] Family Report, par 34

   [51] Family Report, par 52

1. Parental responsibility must therefore be allocated solely to one party, and the decision as to which party is inextricably linked to the determination of the party with whom the children should primarily live.

2. Because equal shared parental responsibility is not allocated to the parties the Court is not obliged by the Act to consider the residential alternatives of the children living for equal time with each parent or spending substantial and significant time with the non-residential parent.

3. The parties agree that the shared care arrangement has proven unsuccessful for the children.[52] In response to the parental conflict, the children have reacted unpredictably.

   [52] Family Report, par 11

4. The eldest child has taken on a role of confidante to the father and the role of parent to the younger siblings in the father’s household. The previously meaningful relationship between eldest child and the mother has waned by reason of the eldest child aligning herself with the father.[53] The same dynamic presents in the relationship between eldest child and the maternal grandmother.[54]

   [53] Family Report, pars 37, 105, 114; Affidavit of Ms J, par 30

   [54] Family Report, pars 91, 114

5. The middle child is somewhat depressed and has behaved unacceptably, both at school and generally.[55] He and the youngest child have each threatened one another with a knife and been violent to one another and the mother.[56]

   [55] Family Report, pars 11, 12

   [56] Affidavit of Ms J, par 13; Affidavit of Mr N, par 5

6. Each of the children have behaved disrespectfully to the mother. They use profane language both towards her and in her presence,[57] and have spat at her.[58] The father regards such disrespect as justified, simply on the basis that the mother “doesn’t do anything with them”.[59] The father’s partner also told the Family Consultant that she believes the mother “is the one creating a problem”.[60] The Family Consultant hypothesises that the children’s exposure to family violence has contributed towards their unacceptable behaviour.[61]

   [57] Affidavit of Ms J, pars 12, 26; Aff of Mr N, pars 5, 11, 13, 19, 24, 30

   [58] Affidavit of Ms J, pars 13, 26

   [59] Family Report, par 58

   [60] Family Report, par 65

   [61] Family Report, “evaluation 13”

7. The mother is the parent who has historically taken responsibility for the children’s academic progress, medical intervention, and attendance at sporting commitments.[62] Despite that history, the father proposed that he assume primary control of the children, telling the Family Consultant:[63]

   I want total control over everything and that way [the mother] will be forced to talk to me because if I have all the authority she will have to ask me to see [the children] rather than me having to ask her.

   [62] Family Report, pars 15, 104

   [63] Family Report, par 57

8. Making orders that vest the father with “total control”, or even primary control, over the children would almost certainly result in the destruction of the children’s relationships with the mother. The mid and long term emotional repercussions for the children of such an outcome are untenable and cannot be permitted. I accept the Family Consultant’s analysis that the father’s parenting capacity is seriously deficient[64] and that the actual and potential psychological harm to the children caused through perpetuation of the current parenting regime mandates that the children must live with the mother.[65]

   [64] Family Report, “evaluation 7 and 8”

   [65] Family Report, “evaluation 4”

9. There is a risk that particularly the eldest child will rebel against an order requiring her to live with the mother, but I accept that she will benefit from such an outcome.[66] Once she is relieved of the pressure which is exerted upon her to express a preference to live with the father rather than the mother, I infer that she will settle in the mother’s household. That is at least the hope of the Family Consultant.[67] I accept the Family Consultant’s opinion that the eldest child should not be split from the two youngest children, just to sate her expressed desire to live with the father.[68]

   [66] Family Report, “evaluation 5”

   [67] Family Report, “evaluation 14”

   [68] Family Report, “evaluation 6”

10. The orders therefore provide for the children to live with the mother and for the mother to have sole parental responsibility for the children. I concur with the Family Consultant’s recommendations in that regard.[69]

    [69] Family Report, “recommendations I and II”

11. The question of significance then is the manner in which the children should spend time and communicate with the father.

12. The Family Consultant suggested that:[70]

    …it may be necessary for the Court to consider the option of no time or supervised time with the father in the future.

    [70] Family Report, “evaluation 15”

13. That was the proposal made by the Independent Children’s Lawyer, with the support of the mother. That proposal was to restrain any face-to-face interaction between the children and the father for a period of 3 months following the children’s commencement of residence with the mother. When appraised of that proposal, the Family Consultant effusively supported it as being consistent with her opinion.[71] I accept her evidence. Such a period of respite from the father’s antipathy will enhance the prospects of the children settling into the mother’s primary care.

    [71] Family Report, “evaluation 16”, “recommendation VI”

14. The Independent Children’s Lawyer and mother proposed that, following a finite three-month period during which there is no face-to-face interaction between the children and the father, the time spent by the children with the father should be re-introduced on a graduated basis, initially subject to supervision. The Family Consultant also embraced that proposal, agreeing also with the rate of graduation.

15. Orders are therefore made consistently with the proposals of the Independent Children’s Lawyer and mother and the evidence of the Family Consultant.

16. The orders provide for the children to communicate with the father by telephone on a weekly basis, and in writing, with immediate effect. That order also accords with the proposals of the Independent Children’s Lawyer and the mother.

17. I am satisfied that orders implementing that parenting regime will ameliorate the risk of the children’s exposure to psychological harm and will allow the children to rejuvenate their meaningful relationships with the mother. The orders also allow the father, if he complies, to maintain his meaningful relationships with the children. The children will benefit from that outcome.

18. The orders requiring the mother to ensure that the children attend counselling, as proposed, respond to the Family Consultant’s evidence.[72]

    [72] Family Report, “evaluation 17”

19. Order 18 proposed by the Independent Children’s Lawyer and mother is made in an amended form, so that the restraint upon use of prohibited drugs by the parties only applies when the parties have the children within their care. The Court lacks the power to make an unconditional final order in the form proposed.

20. I decline to make Orders 13, 20, and 30 as proposed by the Independent Children’s Lawyer and mother. The proposed orders are incapable of clear definition and could not reasonably be hoped to be enforced, in which case it is pointless making them. Nor is proposed Order 15 made, because it is merely a statement of aspiration.

21. The remaining orders made reflect those proposed by the Independent Children’s Lawyer and mother. There could be no sensible controversy about them. Many of those orders were made with the parties’ consent on an interim basis on 15 March 2010.

22. The orders set out at the commencement of these reasons reflect the children’s best interests.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 June 2011.

Associate: 

Date:  9 June 2011