JALLOH & AKERELE

FAMILY COURT OF AUSTRALIA

JALLOH & AKERELE

[2014] FamCA 826

FAMILY LAW – CHILDREN – Where the mother seeks final parenting orders– Rice & Asplund – Where there are allegations of family violence– Where the children have not lived with the father for some time – Where supervised contact with the children has been attempted – Where the mother seeks sole parental responsibility – Where the father seeks that orders should be made on an interim basis – Best interests of the child – Where orders are made on an interim basis – Where both parents retain parental responsibility.

Family Law Act 1975 (Cth) ss 60CC, 61C(1), 65DAA(1)

In the Marriage of Rice and Asplund (1979) FLC 90-725

APPLICANT:

Mr Jalloh

RESPONDENT:

Ms Akerele

INDEPENDENT CHILDREN’S LAWYER:

Denise Kaiti of CBD Legal

FILE NUMBER:

PAC

4570

2010

DATE DELIVERED:

30 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Aldridge J

HEARING DATE:

1, 2 and 3 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

James Papas Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Obradovic

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Lee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Denise Kaiti, CBD Legal

Orders

That, pending further order of the Court, the children P Jalloh born … 2005 and C Jalloh born … 2007 are to live with their mother Ms Akerele (“the mother”).
That the mother will, within fourteen (14) days, appoint a person as an intermediary to receive cards and gifts from the children’s father Mr Jalloh (“the father”) and that the father be permitted to forward to the children, via the intermediary, appropriate cards and gifts.
That, pending further order of the Court, the father be permitted (without contacting the children) to attend at the children’s school to enquire as to the children’s progress and be entitled to attend all school functions and events to which parents are normally invited but is not to initiate contact with children.
That the father, at his expense, shall be entitled to receive copies of all school notices, reports and school photographs in relation to the children.
That the father be permitted to serve a copy of these orders upon the children’s school.
That the mother is not permitted to change the names of the children either formally or informally and the children are to retain their names P Jalloh and C Jalloh.
That within fourteen (14) days of the child P attaining the age of 11 years, each parent is to take all steps necessary to arrange and attend a family mediation conference.
That until further order each party, Mr Jalloh a male born …1973 and Ms Akerele a female born … 1968 their servants and/or agents be and are hereby restrained and, irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the said children P, a male born … 2005, and C, a female born on … 2007 from the Commonwealth of Australia until 5.00 pm on 5 October 2016.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children P, a male born … 2005, and C, a female born on … 2007 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the childrens’ names on the Watchlist for the said period, or until the Court orders its removal.
That the matter is stood over for directions at 9.30 am on 5 October 2016.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4570 of 2010

Mr Jalloh

Applicant

And

Ms Akerele

Respondent

REASONS FOR JUDGMENT

These proceedings concern the children P born in 2005 who is nine years old and his sister C born in 2007 who is aged seven years (“the children”).
Mr Jalloh (“the father”) seeks orders that an appropriate counsellor be appointed to attempt a reintroduction of the children to him. He has not seen them for some years. The children’s mother Ms Akerele (“the mother”) opposes that order and seeks an order that the children not spend time with the father. She seeks an order for sole parental responsibility.
In his amended initiating application filed in the then Federal Magistrates Court of Australia on 25 January 2011 the father sought orders that the children live with their mother and that they spend time with him for two hours a week followed by a staged increase in the time that the children spent with him leading eventually to the children spending each alternate week from 6.00 pm on Friday until 6.00 pm Sunday with him.
By the time the hearing commenced before me on 1 September 2014 the father had significantly modified the orders that he sought. He sought that there be no order as to parental responsibility but the children continue to live with the mother. He then proposed that the children spend time with him for two hours each weekend supervised at a contact centre for six months and thereafter each alternate Saturday from 9.00 am until 6.00 pm, unsupervised.
In the event that the Director of the contact centre determined that supervised time could not or should not take place or continue, the father sought an order that the parents and the children undertake family therapy with a view to assisting the children and the parents to have the children spend time with the father.
After hearing the evidence in the proceedings, and in the course of submissions, the father again modified his position and sought the following orders:
1.The children live with the mother.
2.There be no order as to parental responsibility.
3.There be no order as to the time the children are to spend with the father.
4.There be an order that the father be permitted to send letters and photos and the mother facilitate the receipt of the letters and photos and gifts and that he be permitted to send text messages and emails to the children.
5.The mother keep the father advised of her address, the children’s address together with their email address and telephone numbers. The father was to be permitted to be a friend of the children on their Facebook pages.
6.The mother not change the children’s names.
7.The father receive school reports and photos from his expense and he be entitled to serve the school with this order.
8.That 14 days after [the child P] turns 11 the parents do all things necessary to attend a family mediation conference.
9.That the mother be prevented from removing the children from Australia and that the children be placed on the Departures Watch List up until 5 October 2016.
10.The matter be stood over to 5 October 2016.
In response the mother accepted that the proposed orders 6 and 7 should be made but otherwise she still sought the order that she have sole parental responsibility and that there be an order that the children not spend time with the father.
The Independent Children’s Lawyer, who had originally proposed orders for there to be an attempted therapeutic reintroduction of the children to their father via a counsellor, generally supported the orders proposed by the father but did not support aspects of all of them.
Thus, the major issues for determination are whether orders should be made now on a final basis as sought by the mother or on an interim basis, as sought by the father, with a view to the consideration whether or not a reintroduction of the children to the father should be attempted, being deferred for at least two years.
This tension arises out of two matters that emerged from the evidence. The first is that since the parents separated in 2008 the children have spent limited time with the father and have not seen him at all since mid-2012. They maintain they have a strong objection to spending time with him. On the other hand, the Family Consultant expressed the opinion that it would be in the long term best interests of the children to have some relationship with the father, that such a reintroduction should be undertaken by and controlled by a qualified therapist, and that such a reintroduction was not likely to be successful at the present time but might be more successful when the children were a couple of years older.
The father was born in African country A in 1973 and was educated to the equivalent of Year 12 in high school. He worked there as a panel beater and an electrician’s labourer. He came to Australia in 1994 and now works as a tradesman. He formed a relationship in 1995 which lasted until 2002. Two children were born of that relationship R, who is now aged 15, and L who is 13. L has an intellectual disability and requires particular personal care and medical attention.
Since May 2008 the father has had the full time care of R and L after they were placed in his care by the Department of Family and Community Services.
In January 2011 the father met Ms U and was married to her in late 2012. Their son J was born in early 2012. Ms U’s daughter, aged nine, from a previous relationship of hers, spends time with her most weekends and on school holidays.
The mother was born in African country B in 1968. She said that her father was particularly violent including being violent to her step mother. (The mother was raised by her step mother believing her to be her birth mother). Her father was a policeman and in about 1991 he was shot and killed. In that year the mother left Country B and found her way to a refugee camp in African country Y where she remained until 1999. The conditions in the camp were unsafe, particularly for women. The mother described it as the most terrible period of her life.
The mother arrived in Australia in July 1999 and became an Australian citizen in 2001. The parents met in 2001 and began a friendship. It was some time before the father told her he was in a relationship and had two children. Nonetheless in early 2002 the parents started living together and in October 2002 they commenced living together in a rented unit at Suburb F. They stayed there until 2005 when the father purchased a house at Suburb R. At all times the father worked as a tradesman. Until a few months before the child P was born the mother worked as a healthcare assistant.
The parents separated on 18 August 2008. On that day an Interim Apprehended Violence Order was made for the mother’s protection. She and the children moved to a women’s refuge where they stayed for some months.
On 19 September 2008 a Final Apprehended Violence Order was made with the mother and the children being protected persons. One year later the mother requested an extension of that order and on 14 October 2009 it was extended for a further two years.
On 27 September 2010 the father filed his initiating application.
On 16 June 2011 interim consent orders were made providing for the children to live with the mother and that the children spend time with their father supervised by the mother and a support person at McDonald’s each Saturday. This occurred for some six weeks. On the second occasion the children spent time with the father the child C cried in the car on the way to McDonalds and said “I want mummy”.
A month later C was behaving the same way saying “I want mummy” and P said to the support person “I already saw dad last week. I don’t want to see him today”.
The father’s view was that C was a little hesitant to be with him but P was warm and comfortable with him. He said the children and he enjoyed each other’s company.
The father was late on a number of occasions and very late on one occasion. The father explained this as being him unexpectedly held up as he had ordered a special cake for P’s birthday and had to wait for it to be finished.
On 29 August 2011 further interim consent orders were made again providing that the children live with the mother and that:
The children spend time with the father each Saturday from 11 am until 5 pm, changeover to be facilitated by [Ms W] at McDonalds until the family completes intake at [K] Contact Centre.
At about this time the family was accepted into the K Children’s Contact Service. The following appears from the Service’s records. Neither party disputed the accuracy of the records.
The first changeover at the K Children’s Contact Service occurred on 10 September 2011. The Service’s records for that date indicated that the children were talkative with the father.
On 17 September 2011 P told the service worker that he did not want to go with the father and had been crying at home. No issues were noted when the children saw their father or were returned by him.
On 24 September 2011 the children greeted the father at the door with smiles.
On 8 October 2011 P stated that he had a “bad feeling” about going with the father but nonetheless no issues were noted upon collection or return of the children by the father.
On 29 October 2011 P said that he did not want to see his father anymore but nonetheless left happily with his father. On return, the children happily showed the case worker the toys the father had brought for them.
Matters proceeded in this vein until 28 January 2012 when the contact did not take place due to the illness of the children. On 4 February 2012 the mother told the service worker that she was concerned C did not want to come today and that C had been upset and vomiting from anxiety during the last week.
The records note that when the father arrived C began crying. When her father tried to pick her up she stiffened her body and became more distressed and crying loudly and consistently despite the father’s attempts to pacify her. When P was advised that C would not be spending time with her father that day he said that he was not happy to go with the father and the visit was cancelled.
On 11 February 2012 C was still distressed. It was suggested to the father that it might be preferable to try supervised contact. The father agreed as he did not want to distress the children and he did not want to lose his connection with the children. When informed that there would be supervised contact at the centre P said “Yes that is good” but C protested by saying “No”.
On 25 February 2012 the father and P seemed to get on well playing together but C remained aloof and said “Stop it” every time the father tried to talk to her. Although she played with him for a short time, towards the end of the visit when he tried to pick her up to say goodbye she said “No, go away”.
On 3 March 2012, again the father and P got on well but every time the father tried to speak to C she began to cry and raised her voice until she was screaming. Towards the end of the visit the service worker noted that there had been a positive interaction between the father and C.
The visit on 10 March 2012 seemed to go well with both children playing with their father and talking to them to each other. Both children gave their father a cuddle and a kiss at the end of the visit.
On 16 March 2012 the mother expressed concern to the service that C was displaying unsettled behaviour at her home during the week and was considering whether to continue “forcing” C to attend the visits. At the visit on 17 March 2012 C remained aloof from the father often saying “No” when he attempted to speak to her or engage her in an activity.
When she saw the father on 24 March 2012 C said “No, no” and played inside whilst P and the father played outside. During the course of the morning C began vomiting and, as her mother was coming to collect her, P said that he would go as well. Thus the visit ended early.
On 27 March 2012 the Service wrote to each of the parents saying:
However, we have been providing the supervised contact for 6 weeks now and [C] has said ‘no’ each week, being visibly distressed at times during the contact or refusing to join in. Father agreed on Saturday 24th March, that the visits were not helping the relationship between [C] and himself. [as per original]
It was agreed that P would continue to spend time with his father at the Service but that the time would not be supervised. C would not attend.
The time P spent with his father seemed to go well until 28 April 2014 when P informed the workers that he did not want to see his father. He greeted his father and kissed him on the top of his head and then said that he did not want to see his father today. After about twenty minutes P got teary and the father called the supervisor saying that, as the child was getting upset, he would go.
On 5 May 2012 the records note that P said to the father “Mum said I can go swimming in the big pool if I go home”. Nonetheless P spent time with his father that day.
On 12 May 2012, according to the notes, P said to his father that his mother said if he comes home he could go to the shops to buy a game. On arrival he had told the workers that he did not want to go with his father that day because his father had lied. This was apparently a reference to promises that the father had made to P to show him the father’s new baby and to buy him some games. The promises were not kept.
The mother’s version as to whether she told P this, or not, is unknown because neither the 5 May nor 12 May entries were raised with the mother during the course of the hearing.
On 16 June 2012 P did not want to have anything to do with his father and wanted to play his hand held electronic game. He said “I don’t want to see you again”. The father then left but gave the worker a birthday present intended for C. The child P said “Mum does not want me to take that present”.
After the father had left P told the case worker that he did not want to give C the gift “because he would get into trouble from his mother”.
On 31 October 2012 a final hearing commenced in the then Federal Magistrates Court. The matter was adjourned after the first day and interim consent orders were made for the children to attend family therapy with a view to re-engaging with the father.
On 22 October 2013 those orders were modified by further interim consent orders providing for the children to spend three sessions with the father in the company of a Family Consultant and thereafter at the K Children’s Contact Service.
The first such visit with a Family Consultant was scheduled for 21 March 2013. The father did not attend believing the appointment was scheduled for the following day.
The second visit took place on 4 April 2013. How that visit occurred is best taken from the notes of the Family Consultant. They state:
The children were in childcare when the Father was introduced to them. [P] did not acknowledge him and [C] screamed at her father and cried and was unable to be calmed, even after the mother had been brought in. The Family Consultant ended the session after about thirty minutes.
The third session did not go much better. It was described thus:
The children were playing with their mother in the play room, when the Father was introduced. [P] cried and [C] screamed that they did not wish to see their Father. The children settled back into playing the game when their Mother remained in the room. Towards the end of the session, the children allowed him to join in the game nominating letters in a simplified word game similar to “Hang Man”.
The children have not spent any time with the father since.
On 31 October 2012 Federal Magistrate Henderson, as she was then known, fixed the matter for hearing for three days to commence on 19 August 2013. On the first day of the hearing the matter did not proceed and was transferred to the Family Court of Australia.

In late 2013 the mother and children on the one hand and the father on the other hand separately attended Catholic Care Social Services for counselling.
For reasons not disclosed in the evidence the counselling stopped after a number of visits.
There was an issue between the parties as to whether this attempt in fact constituted therapeutic counselling with a view to reintroduction. The evidence does not enable me to say whether it was or it was not.
The matter was listed for hearing before the Family Court of Australia on 7 May 2014 but the matter was not reached.
In determining what order ought be made in relation to the children the court is to regard the best interests of the children as the paramount consideration. In determining what is in a child’s best interest the court is to have regard to the matters set out in s 60CC of the Act.
The first of two primary considerations is the benefit to the children of having a meaningful relationship with both the child’s parents. This consideration is not of the child having a meaningful relationship with both the child’s parents but of the benefit to the child of having such a relationship.
The mother has been the children’s primary carer for all of their lives and their sole carer since August 2008. The children are clearly closely attached to her and have a meaningful relationship with her which is of benefit to them.
The child P was three when his parents separated. Despite some early difficulties about him commencing to spend time with his father in 2011, which is not surprising given his age and that he had not seen his father for nearly three years, he and his father seemed to establish some form of tentative relationship. They seemed to get on well for some time.
Two Family Reports were prepared in this matter. In the first dated 27 January 2012 the Family Consultant recorded:
54.During their time together, father and son shared games and activities, in a rather passive yet relaxed and respectful fashion. There did not seem a great deal of spontaneous emotion, yet [P] did not appear uncomfortable. [The father] asked them a number of (appropriate) questions about his friends, church, etc, to which the boy gave polite monosyllabic responses.
55.At the end of the session, [P] gave his father a kiss on the cheek when invited. He then returned casually to his mother in the waiting room.
The Family Consultant opined:
63.[The child P’s] relationship with [the father] appears to be developing, in line with the lack of contact for several years. During the observation session, there was no indication of the boy refusing to interact with his father and it seemed likely that their relationship will grow with time.
It is important to note that this view was expressed having regard to the Consultant’s view that the mother stridently criticised the father and had a negative view of him.
At the time of the second Family Report dated 16 May 2013 P did not want to see his father. He believed his father had told lies to him and had sworn at him (“shut up”). He was adamant that he did not want any further contact with his father and could not state anything positive with him.
The Family Consultant concluded that the mother had exerted influence on P’s perceptions of the father even if she had not actively sought to do so. He said:
55.Until they are older and more mature, it is considered that the children’s attitudes towards [the father] will largely be determined by the attitude of [the mother].
The question therefore is whether the mother is influencing the children’s perception of the father or is there some other reason for their behaviour and rejection of him.
The mother denies taking any such step. She points to the series of consent orders that have been made which have attempted to give the children time with their father and to facilitate a reintroduction of them to him. She rightly points to the fact that she has complied with those orders. She enrolled the children in the Rollercoasters course which they completed. This, it is submitted, indicates that she has taken positive steps to have the father involved in the children’s lives for their benefit and thus inconsistent with her negatively influencing the children against the father.
All this is true, however, there are other matters to be taken into account.
In her oral evidence she said that the children were not safe when they are with the father and that when they come back from seeing him they are stressed. When asked why she thought the children were unsafe with the father, she repeated that they came back stressed and that he is a violent person. The mother claimed that the children tell her that he yells, screams and swears at them. She said words to the effect “They don’t say much but their face is very sad”.
When it was suggested that with supervised contact the children were safe the mother replied that she did not believe that because they are still anxious and uncomfortable and therefore at risk.
The mother added that she did not know why the father just did not leave them alone and that, if he loved them, he would leave us alone.
When pressed, the mother added that she did not believe that the father was a good father or had good parenting skills, that he was not an acceptable parent, that she did not believe any time would be a good time to re-establish a relationship between the children and the father and that she will have nothing to do with him. She thus has a very negative view of him.
I have already referred to the statements made by P to the case workers at the K Children’s Contact Service that he would be rewarded if he did not spend time with his father.
At the time of the second Family Report in May 2013 P was saying that he wanted no more contact with his father and could not state anything positive about him. His conversation was described by the Family Consultant as immature and accusative and he continued to perceive his mother as good and his father as bad.
When asked by the Family Consultant why he did not want to see his father P said that his father had sworn at him. The best he could offer was that the father had said “shut up”. P then went on to say that his father had told him lies which was apparently about P feeling disappointed that the father had not bought him games that he had promised at some time in the past.
This is consistent with the father’s evidence that P told him he was a bad man. There is no reason not to accept that evidence of the father as it is consistent with what P was telling others.
It was the mother’s case that the child was of this view because of the family violence he had witnessed as a child.
In his oral evidence the Family Consultant said that because P was three at the time of separation it would be highly unlikely that he would have a specific memory of any family violence. It would be possible but improbable. He opined that, as the child could not give any indication to him of any specific memory, it was highly unlikely that P would have any memory of family violence.
In those circumstances, the Family Consultant suggested that the child was not just repeating what his mother had told him to say but that he had advanced to the stage where he believes the father is a bad man, has abused him in the past and is a danger.
The mother denied that she had so acted to instil such a view in P pointing, with some force, to the number of consent orders to which she had agreed, her unfailing compliance with those orders and the many attempts to have the children spend time with their father. All of this is true. It does not explain, however, the negative view that developed in P after he had started spending time with his father. For a while that time was progressing slowly but well. This is not consistent with the child having memories of family violence or a belief, at least in those early days, that his father was violent and a bad man. I accept the Family Consultant’s evidence that the child did not have such memories.
If P’s negative view of the father does not stem from memories of family violence when the family was together there must be some other cause. Given the mother’s vehement and persistent negative views of the father it is the obvious source of the negativity that the child now feels. Whether the mother has done so consciously or unconsciously, I find that P’s present negativity towards his father stems primarily from the influence of his mother.
Accordingly, the primary reason for P not continuing to develop a meaningful relationship with his father is not because the child and the father are not capable of doing so but because the influence of the mother upon the child prevents it. It follows, that in appropriate circumstances, if the influence of the mother could be challenged or minimised there remains a possibility of developing a relationship with his father. It appears that, at least at times P and his father got on well at contact and his father had things to offer which would be of value to him. Given the right surroundings and opportunities P could develop a meaningful relationship with his father.
In his oral evidence the Family Consultant opined that it is generally in the interests of children to have a relationship with both parents and that the long term effects of not having such a relationship could be a loss of self-esteem leading to insecurity and a possible rejection of the mother in this case.
Accordingly, if such a relationship could be developed between the child P and his father it is likely to be of benefit to him.
The child C is quite different. She was but one when the family separated. The Family Consultant said that she had not had the opportunity to develop an attachment to the father, he is a stranger to her and she is scared of him. C has never moved from that position. It is not entirely surprising given the view of her mother.
In those circumstances it is much more difficult to say she would benefit from a meaningful relationship with her father or that one is likely to develop. The Family Consultant’s evidence remains, however, that if she does not have a relationship of some kind with her father that lack of a relationship could lead to insecurity in her later life and cause her to reject her mother as a parent in due course.
The second primary consideration as to the need to protect the children from physical or psychological harm from being subjected to abuse, neglect or family violence.
The mother said that during the relationship the father often shouted at her and verbally abused her. On one occasion in 2002 he was said to have dragged her across a car park by her feet. She said that she and the father argued on almost a daily basis and that when they argued the father would scream and swear at her, kick her legs and pull her hair. On one occasion he painfully twisted her thumb. On occasions he would push her and hit her. She said that when the child P was approximately one year and eight months old on three separate occasions the father hit P on the head, once with his hand and twice with a shoe.
The father denies these events. He accepts that there were considerable arguments and that there was shouting and screaming by him but he says that this was in response to the shouting and screaming of the mother. I have already referred to the two Apprehended Violence Orders.
The mother asserts the violence and the father denies it. There is no evidence from any other source that enables me to determine whose evidence is more likely to be correct. I could not do so on demeanour based findings and it would be an inappropriate course to follow in any event. I cannot be satisfied that the violence alleged by the mother occurred.
The mother also alleged that the father was financially controlling towards her. There is some evidence of that but there is also evidence that the father was supporting his two children from a previous relationship as well as his new family and that money was tight.
Importantly, although the mother has said that the children are most unsafe with the father, she could give no evidence of any particular threat to the children other than saying that they tell her that he yells, screams and swears at them but they don’t say much. P did not raise any such issues with the Family Consultant. C refused to be interviewed for the second Family Report but did not raise these matters at the time the first Family Report was prepared.
The K Children’s Contact Service records contain many comments to the effect that the father was behaving and speaking in an appropriate way to the children in the face of difficult circumstances. On many occasions he voluntarily withdrew from the contact to avoid upsetting and stressing the children.
The Family Consultant said that he did not see anything that led him to have any concerns about the father as a parent.
The Notice of Child Abuse and Risk of Family Violence filed by the mother on 19 October 2012 did not refer to any events after 18 August 2008.
The father continues to have the care of the two children from his previous relationship and has a child from his subsequent relationship. The Family Consultant interviewed the two children of the previous relationship. The child R, who was 14 at the time of the interview with the Family Consultant in May 2013, lived for some time with the father and the mother. She could not recall any violent arguments between them. She said her view was that her father had done everything he could possible to make P and C feel at home but understood that it was not working. There is no suggestion that the father does anything other than care appropriately for R or L or for his new child.
In all of the circumstances, despite what were clearly loud and verbally violent arguments between the parents when they were living together, I am not satisfied that there is presently a risk to the children of physical or psychological harm from being with the father.
I understand and accept that the mother genuinely believes the children to be at such a risk. She, most understandably, views what has occurred in the relationship in the light of her earlier life. Thus she believes that most African men are violent. She certainly holds that view deeply about the father. That view of the father is, however, not reflected in the evidence.
There are a number of secondary considerations that need to be taken into account.
I have already described the close nature of the relationship of the children and their mother and the tenuous nature of their relationship with their father. There was no suggestion that the children had any significant relationship with any other family or friends. It was not suggested by the father that the children had developed any significant relationship with his children either by his previous marriage or his subsequent marriage.
Since separation in 2008 all decisions about the children have been made by the mother without any input from the father. Indeed they have not contacted each other indirectly or directly since separation.
For some time the father did not seek that the children spend time with him, but, for a number of years, he has persistently been seeking to spend time with the children. He has done so appropriately, invoking proper procedures rather than simply trying to thrust himself upon the children. Since 2010 he has taken every step reasonably available to him to try and establish a relationship with his children. It is true that he has been late to contact on a number of occasions however I accept his evidence that that was due to a number of matters including his long hours of work, his two children from the earlier relationship one of whom has special needs and a new child from his subsequent relationship. That was complicated by his new partner having some issues in relation to post natal depression.
The children have been maintained by their mother. The evidence was silent as to whether the father was assisting.
The father did not seek any significant changes in the children’s circumstances. He merely sought an attempt to re-engage with the children with a view to there being increased time with them at some stage in the future.
There is no practical difficulty and expense associated with the children spending time with their father. As can be seen both supervised and unsupervised time with the children was reasonably managed and maintained.
The father accepts that for the present the children should not spend time with him. He seeks however to maintain some form of relationship by the regular provision of cards and gifts. He also seeks to be able to communicate with the children by letter and by email. The Family Consultant’s opinion of that, which I accept, was that at this stage letter and emails between the father and the children were likely to be counterproductive given the children’s current attitudes.
For example, on 31 October 2013 the father wrote a caring and loving letter to the child P. It was headed to “For my best son [P]”. P crossed out the words “For my best” and wrote in “Your worst”. He wrote on the bottom of the letter “I don’t want to see you anymore! Leave me alone. I do not want to have any communications with you. Do you have problem or what. Listen you have your own children and I don’t want to be your child so leave me alone! Stop giving us presents that make us come straight to you. Bye [P]”.
It was the mother’s evidence that P did not wish to read the letter and threw it away. She said she recovered the letter but did not supervise the child when he wrote the reply. She said she did not know what P wrote. Whether that be so or not, P, in so writing, was expressing his views of the father held through the influence of the mother.
The child C wrote a similar letter although the date of it is not known.
In those circumstances contact via email and letter cannot, at the present, be supported.
It is necessary to have regard to the capacity of each of the child’s parents to provide for the needs of the children including their emotional and intellectual needs. Given there is no current proposal for the children to spend any time with the father this is not a consideration that carries significant weight. I have already expressed my finding that the father is an appropriate parent. The children are otherwise being appropriately cared for by their mother save that they are being influenced by her, as I have said, consciously or unconsciously, to adopt her views of the father and in that sense the mother would not appear to have the capacity to accept that the children could have a relationship with their father despite her view of the father.
The parents each clearly love their children and, save in respect of what I have already said in relation to the mother, behave responsibly as parents. The mother has consented to appropriate orders to try and reintroduce the children to the father and appropriately complied with them. The father has appropriately not sought to pursue that when that course was obviously stressing the children.
I have already discussed the issues of family violence. In the circumstances the orders for apprehended violence do not carry significant or decisive weight.
A consideration that is of particular importance in this case is whether or not it would be preferable to make an order that would be least likely to lead to the institution to further proceedings in relation to the children. The order that is proposed by the father leaves open further proceedings in relation to the children because the application is not finally being determined but rather the orders being made are of an interim nature only. The mother on the other hand seeks final orders.
If final orders are made the father could only appropriately commence further parenting proceedings if there were a change in circumstances that would justify reconsideration of the parenting orders. (In the Marriage of Rice and Asplund (1979) FLC 90-725 “(Rice & Asplund)”).

In two or three years’ time the children will be older and more mature. The child P at least will be better placed to deal with a therapeutic reintroduction to his father. Their present view of the father may have ameliorated somewhat by not being brought into close contact with their father against their will. Hopefully they will remain aware of their father and his presence, albeit remotely and from a distance. An attempt for a therapeutic reintroduction of the children to the father is more than likely to be successful then than now although it is impossible to say how much more likely it would be.
The Family Consultant proposed that any re-introduction to the children be undertaken and completely controlled by an appropriately qualified counsellor. It would be up to the counsellor to determine when, and if, there should be contact with the father. He envisaged that the process could take up to six months before the counsellor could determine whether contact should be attempted or the process abandoned. He was of the view that it probably would not be successful if entered into at this time saying at times he was ‘not optimistic” and at times he was “pessimistic”.
He was more hopeful of the process being successful in the future but could not say it would be successful. It might be more successful in the future were that the children may settle over the next few years and now be focused on the father and the mother’s negative feelings about him. Further, P will be 11. The Family Consultant said that generally children’s views are the most fixed between nine and ten and the chances of success will be better when he is older and more receptive to change. It is true that C will then be entering the difficult age but any attempted reintroduction is more likely to be successful with P than with her.
Whether circumstances that would justify a reconsideration of final parenting orders would occur over the next few years is difficult to determine and in therefore the better course is to keep open the possible of such an attempted reintroduction.
The basis of the decision in Rice & Asplund is that repeated and constant litigation involving the children is generally not in the children’s best interests. I have determined, however, that the children’s best interests in this case, will be served by not making final orders at this stage.
I have already found that it would be in the best interests of the children and particularly P if they could have a relationship with their father and in P’s case it would be of significant benefit to him. I also have found that there is a possibility that therapeutic reintroduction of P to his father might succeed but that the likelihood of that occurring at present is low and it is more likely to succeed in two or so years’ time. Even then I do not suggest that the chances of success would be high, in these circumstances it is worth considering.
The better course at this stage is not to make final orders but to make appropriate interim orders and to stand the matter over for two years as sought by the father. The issue of whether it is then worthwhile making an attempt for the reintroduction of the children can be considered. It may be that, in the circumstances, the father decides that it would not be in the children’s best interest to make that attempt. If the father then seeks such an order the Court will be able to consider whether such an order is appropriate in the light of the circumstances then exist.
I am satisfied that if the orders sought by the mother are now made the chance of that re-introduction will be lost. The view the mother holds of the father will prevent her from allowing him any place in the children’s lives and the children will be shut out completely from any chance of a relationship with the father until they become adults.

Section 61DA(1)

When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
If in the absence of an order each of the parents has parental responsibility pursuant to s 61C(1).
The mother submits that the presumption ought not apply because of the family violence. I am not satisfied for the reasons I have given earlier that there are reasonable grounds that the father has engaged in family violence or that the children are at risk of abuse in his care.
It may well be that in the future, if there is not to be an attempt at reintroduction to the children or such an attempt fails, that it would be appropriate to consider making an order for sole parental responsibility in favour of the mother. This is because at that time there would be no realistic likelihood of the children spending any time with the father until they turn 18. It would be difficult for him to have any meaningful involvement in their lives thus rendering equal shared parental responsibility inappropriate. However until that time it is appropriate for there to be no final orders. The father will thus retain parental responsibility. This may not mean much in practical terms given that in the next two years there are not likely to be any significant decisions to be made in respect to the children (although the possibility always remains), but it indicates to the children in particular that the father is a part of their lives. If an order for sole parental responsibility were made, in my view, it would shut the father out forever.
For the same reasons it is not appropriate to make the order as sought for the children not to spend time with the father. I accept that such an order falls short of a no contact order. This would, however, make it easier for the mother to shut the father out of the children’s life thus vitiating any future attempt to reintroduce the children to the father. The practical effect, in any event, is that the children will not be spending any time with the father. The father does not seek such an order that the children spend any time with him. He simply seeks to be able to maintain some contact from a distance. Thus the father will be able to attend school events but it will be prudent to restrain him from initiating contact with the children.
Given that there will be no order for equal shared parental responsibility the better view is s 65DAA(1) does not apply. However, the practical effect of the order is that each parent retains parental responsibility for the children. Neither of the parents seeks an order that the children spend time with the father. It is obvious from the above reasons the children spending time with their father would only cause them upset and distress, making it harder for there to be any time with the father in the future and it would not be in their best interests.
The other order of significant contention was whether or not there should be an order preventing either parent from removing the children from Australia and placing the children on the Airport Watch List.
There is no evidence that the mother proposes to travel or to remove the children from Australia. If as will be the case, both parents will retain parental responsibility, the mother could not apply for a passport without the assistance of the father. It is true that the mother could seek to illegally retain a passport and remove the children from Australia there is however no apparent reason why the mother should leave Australia. She has built a new life for herself here and realistically would have nowhere else to go.
On the other hand the making of such an order is likely to cause little harm in those circumstances. Such an order will be made.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 30 September 2014.

Associate:

Date: 30 September 2014

[2014] FamCA 826

30 September 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness

Jurisdiction

Standing