JEFFRIES & MAXWELL

[2015] FCCA 3025

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFRIES & MAXWELL [2015] FCCA 3025

Catchwords:
FAMILY LAW – Parenting – four children – dispute about parental responsibility and the nature and extent of the time the children should spend with the father – where the father was recently sentenced to a term of imprisonment for breaching an apprehended domestic violence order made for the protection of the mother and did not attend the hearing – undefended hearing conducted – where the father’s violence, cannabis use and attitude to employment make him a very poor role model for his children – where the 13 year old is already talking about the attractions of being on the dole and expresses no fear of juvenile detention – where the only appropriate orders are for the mother to have sole parental responsibility and for the children to live with the mother and spend no time with and have no communication with the father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 69VA

Registration of Births Deaths & Marriages Act NSW, s.19

Cases cited:
Mazorski & Albright (2007) 37 Fam LR 518

Applicant: MS JEFFRIES

Respondent: MR MAXWELL

File Number: NCC 2222 of 2013

Judgment of: Judge Terry

Hearing date: 12 October 2015

Date of Last Submission: 12 October 2015

Delivered at: Newcastle

Delivered on: 12 October 2015

REPRESENTATION

Counsel for the Applicant: Mr Graham

Solicitors for the Applicant: Hunter Family Law Centre Pty Ltd

The Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Mr Bates

Solicitors for the Independent Children’s Lawyer: Peter Hamilton & Associates

ORDERS

1. The children W born (omitted) 2002, X born (omitted) 2009, Y born (omitted) 2007 and Z born (omitted) 2003 (“the children”) shall live with the mother.

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

3. The children shall spend no time and have no communication with the father.

4. Pursuant to Section 69VA of the Family Law Act 1975 it is declared that MR MAXWELL is the father of Y born (omitted) 2007.

5. The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales for information about the identity of the father to be included on the child’s birth certificate.

6. The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the application of the mother referred to in Order 5 above is to do all acts and things to include information about the child’s father on the birth certificate of Y born (omitted) 2007.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2222 of 2013

MS JEFFRIES

Applicant

And

MR MAXWELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have before me an application for parenting orders in respect of four children: W, 13, Z, 12, Y, 8 and X 6. The issue in dispute is the nature and extent of the time children should spend with the father and the allocation of parental responsibility.

3. Orders were made in March 2015 listing the matter for trial in October 2015. The mother complied with the trial directions and has filed material for the trial. The father has not complied with the trial directions and has not filed anything for the trial and is not here today.

4. I am satisfied that it is appropriate to deal with the matter in the father’s absence. 

5. The father could not have been here today even if he had wanted to, because last Friday he was sentence to 12 months imprisonment with a seven month non-parole period for breaches of an ADVO made for the protection of the mother. He was arrested in July 2015 in relation to those charges and it would therefore also have been difficult for him to comply with the filing directions for trial. However it would not have been impossible, and he has made no contact with the court seeking an adjournment of the matter or seeking leave to appear today by telephone.

6. The mother commenced these proceedings in September 2013. The father has not complied with previous orders made by the court, and in particular has not complied with orders made on 17 November 2014 that he do some courses recommended in the family report. I do not consider that it would be fair to the children or the mother if I simply put the trial off and gave the father another chance to comply with orders and comply with trial directions.

7. These are parenting proceedings and there is nothing to stop the father bringing an application when he gets out of jail if he feels that he can demonstrate to the court that it should reconsider any order it makes today about his time with the children.

The orders sought

1. The mother sought orders as set out in her amended initiating application namely that she have sole parental responsibility for the children and that the children live with her. She also sought an order that the father’s name be included on Y’s birth certificate and a non-denigration order. 

2. At the beginning of the trial the mother asked the court to simply make no orders about the father spending time with the children but that would be inherently unsatisfactory. The absence of an order, as opposed to a no time order, would not prevent the father approaching the children at school and even taking the children away from school. It would not stop him speaking to them if he saw them in the street and trying to persuade them to go with him.

3. For reasons which I will explain fully in this judgment in my view that would be a very detrimental outcome for the children.

4. The court is not bound by the proposals of the parties and I flagged at the beginning of the hearing that an option was a no time order. At the end of the hearing both the mother’s Counsel and Counsel for the Independent Children's Lawyer said that they would not oppose the court making such an order.

The evidence

1. I have read the mother’s affidavit and amended application. A Child Dispute memorandum prepared on 5 December 2013 and the Family Report released on 12 June 2014 were marked as exhibits in the proceedings.

2. The mother gave some updating evidence in the witness box about her current relationship, Y’s paternity, the children’s school attendance and the fact that counselling has been organised for W who is quite distressed that the father has gone to jail.

3. I want observe in passing – and this is not the mother’s fault or her Counsel’s fault and his instructing solicitor is not here – that the mother’s trial affidavit is extremely slight given the serious issues in the case. I have had this happen in other cases recently and it is my hope that greater attention will be paid in future to providing a better affidavit in proceedings which involve issues of the nature of the issues in this case.

4. I have also read the affidavit filed by the father earlier in the proceedings.

Background

1. The mother and father commenced a relationship in 2001 when the mother was 17 and the father 30. Their eldest child, W, was born on (omitted) 2002 when the mother was on my calculation about two weeks shy of her 18^th birthday. 

2. The parties have four children, W born on (omitted) 2002, Z born on (omitted) 2003, Y born on (omitted) 2007 and X born on (omitted) 2009.

3. The parties had an on-off relationship until late 2009 and continued an intermittent sexual relationship until late 2011. Until the end of this period the children lived with the mother.

4. There was a dispute about the care arrangements for the children in 2012/13. The father alleged that W and Z lived with him, and the family consultant said that perhaps there was a week about arrangement in place. I cannot make findings about the exact living arrangements for W and Z in 2012 and for most of 2013.

5. In September 2013 the mother applied for a recovery order in respect of W and Z. In her supporting affidavit she raised concerns that the children were not attending school, that they had been seen roaming the streets late at night and that the police who visited the father’s home to do a welfare check found it so filthy and unhygienic that they told the father that he could not stay there with the children.

6. On 8 October 2013 I made an order that all four children live with the mother and pending further consideration spend no time with the father.

7. The mother had sought an order that the children spend supervised time with the father although she was content at that stage for the time to be supervised by family members, and on 29 November 2013 an order was made for the children to spend supervised time with the father for three hours per week with the supervisor being the maternal grandmother. 

8. A child inclusive child dispute conference was conducted on 5 December 2013. The family consultant who interviewed the children suggested that if supervision was to occur it should be done by somebody independent. He suggested that a full Family Report be prepared and that some drug testing occur and that further subpoenas be issued.

9. On 9 December 2013 the father’s time was suspended. 

10. On 19 February 2014 an order was made for the preparation of a Family Report and the report was released on 13 June 2014.

11. On 7 November 2014 comprehensive orders were made which included orders by consent that the father enrol in and complete a six week parenting after separation course, a surviving adolescence course, and a taking responsibility program or a facing up program.

12. It was also ordered that the father submit to drug testing and that the children spend time with the father at (omitted) Children's Contact Centre and that he be restrained from spending time with the children outside of that supervised time.

13. No supervised time took place for a considerable time and I can still see the father sitting there at the bar table telling me that he was not going to comply with that order and was not going to have supervised time with his children. 

14. The mother took part in the intake procedures at (omitted) and in May 2015 she was advised that a spot had become available. She contacted the father and an arrangement was made for him to spend some time with the children at (omitted); by then he had agreed to see the children there.

15. However in late July 2015 the father rang the mother and verbally abused her in vile terms. The mother reported the call to police and the father was arrested for breaching an ADVO and has been in custody ever since.

16. The only time the father has spent time with the children for a long while is those brief visits at (omitted) between May and July 2015.

The mother

1. The mother lives in (omitted) with the children. She is an (occupation omitted) and has been for a considerable time. 

2. The mother recently formed a relationship with a man who lives in (omitted). Her partner is in court now and the mother told me a little bit about him this morning. 

3. The children are all enrolled in local schools.

4. The mother does not have a criminal record and has a good working history. She said that she had occasionally used cannabis in her life but not recently. She has done all the drug tests she has been requested to do and has not tested positive for cannabis use on any occasion.

The father

1. The father is currently jail. I am not sure which jail he is in and he may be moved around so identifying the jail probably would not help me.

2. The mother raised numerous concerns about the father in her material and the first of those concerns was about violence. 

3. The mother said that the father began to behave aggressively toward her in about 2006. She said that she would sometimes leave the home on weekends because of his aggression but would then go back to him.

4. The mother gave details of four specific occasions when the father seriously assaulted her. 

5. In 2006 the father hit her repeatedly and she had bruises for two weeks.

6. In 2007 after Y’s birth, the father hit her across the face after an argument. 

7. In 2009 after X’s birth the father pushed and shoved her and she fell to the floor. The mother moved out and an ADVO taken out for her protection. 

8. While the mother was away from the home the house was broken into and things were either smashed or stolen and holes were stabbed in possessions and it was certainly the mother’s view – and it is very difficult to conclude otherwise – that it was the father who was responsible for that.

9. The mother said that on that occasion the father also removed $1,000.00 from her Keycard although he ultimately gave it back.

10. On 1 April 2013 there was a most serious incident and I cannot understand why the father was not charged over it. The father drove his car at the mother. She tried to jump out of the way to avoid a collision, landed with her left foot on the wheel arch of the car as it was coming toward her and was hit by the car.

11. The mother was taken to hospital and remained there for a week. She required surgery and had a plate put into her wrist. 

12. The mother has been subjected to some quite serious family violence by the father and I rather suspect, given the incident which led to the father being arrested in July 2015, that there is probably a lot she is not telling me and perhaps she does not want to remember in terms of verbal abuse. 

13. The father’s violence to the mother is not the whole extent of his violent behaviour.  His brother and his mother have also had ADVO’s against him.

14. There was an issue in January 2015 apparently of some firearm charges but until I get the police records I am not too sure what that was all about. 

15. Part of the reason that I am concerned that there may be a lot the mother is not telling me is not only because of the call in July 2015 which led to father’s arrest but because the family consultant said as follows in the family report:

    At times, Mr Maxwell was cooperative and communicative but at other times he was clearly upset, angry and belligerent. For example, when he was asked what parenting arrangements he thought would be best for the children, Mr Maxwell stated “doesn’t matter what I want…I could tell you anything you wanted to hear… I’m nothing now… it doesn’t matter what I say – youse (sic) will just do what she (Ms Jeffries) wants”. There were many other occasions when Mr Maxwell avoided answering questions by repeating criticisms of Ms Jeffries, the Family Law Court, the police and the broader judicial system. When Mr Maxwell did provide direct responses to questions asked of him, his responses were clear and well thought out.[1]

    [1] Family Report paragraph 29

16. The father is someone who can be verbally aggressive, physically aggressive and extremely unpleasant. On occasions during these proceedings he adopted a belligerent and uncooperative attitude in court. 

17. Another concern about the father is that he has not worked for a considerable time and his attitude to work is filtering through and affecting W who is now in his teens. The mother said in the witness box that when she asked W recently what he wanted to do when he left school he said that he wanted to sit at home on the dole.

18. Another concern about the father is his criminal convictions. The family report writer itemised the father’s convictions which began with one for possessing cannabis and drug equipment in 1989. There was another cannabis charge, common assaults in 2006 and 2009 and numerous convictions on various occasions for contravene AVO’s.

19. Yet another concern about the father is his chronic cannabis use.

20. The mother said that she found out very soon after she commenced a relationship with the father that he was a chronic cannabis user. She said that he continued to smoke cannabis throughout the time that she had any association with him.

21. It is highly likely that the father continued to use drugs up to close to when he went to jail if not right up to then. He did not do many of the drug tests which were requested of him. One of those he did do had a positive reading for cannabis. Another one had low creatinine which always creates a concern because that can be the result of people consuming copious quantities of water in order to dilute the cannabis in their urine.  The father did to be fair produce two clean results in 2015 not long before his arrest.

22. The family report writer also mentioned that the father regularly used prescription pain killer medication.  Whether that is an issue of concern I cannot say. It raises a query but the father is not here to be cross-examined about it so I cannot make any findings about that. 

23. In summary there are numerous concerns about the father:  his violence, his lack of a good employment history, his convictions and his chronic cannabis use.

The children’s best interests

1. Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and I must take into account the matters in s.60CC(2) and (3) of the Family Law Act in order to determine the children’s best interests. 

2. I intend to start with the additional considerations rather than starting with the primary considerations. 

3. The first of the additional considerations is any views of the children and the weight to be given to those views.

4. There is evidence about the children’s views in the Family Report. 

5. W told the Family Report writer that he wanted to live half with each of his parents.

6. Z said that he missed his father a lot and wanted to live with both parents and mentioned living week about. 

7. Y said that she wanted her family to get back together, not an uncommon view of a child of her age, and X, who was five at the time of the interviews, did not express a view.

8. However children cannot necessarily make the best decisions for themselves. It is for the adults to make decisions for children and this is particularly a case where I cannot place weight on the children’s views.

9. The next relevant consideration is the nature of the children’s relationship with each of their parents. 

10. The mother has a good relationship with the three younger children. She may also have a good relationship with W overall but W has been quite verbally abusive to the mother recently on her own admission. In my view this can only be the result of exposure to the father’s attitude to the mother and his behaviour toward her and it is very sad. 

11. All of the children related well to the father during the family report interviews. The Family Report writer said as follows:

    The children were formally observed with Mr Maxwell and the paternal grandmother. All four children were obviously very pleased to see their father and welcomed him with a spontaneous hug. Mr Maxwell was also obviously very pleased to see each of the children and was appropriately affectionate with them.

12. I draw from this that the children would not be upset or resistant if I made an order that they spend some sort of time with the father.

13. In relation to financial support the mother is supporting the children at the moment. She works as an (occupation omitted). There was no evidence that the father was paying any child support.

14. I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the children or communicate with the children or participate in decision-making about the children.

15. The father has had opportunities to spend time with the children supervised but has not been willing to take up those opportunities. For a long time he expressed an attitude during these proceedings along the lines that if an order was made for him to spend supervised time with the children at a contact centre he was not going to do it, although ultimately he did take part in some visits there.

16. I must have regard to the likely effect of any change in the children’s circumstances. 

1. An order that the children spend no time with the father will result in a significant change for them in terms of what has happened during their lives to date, but I cannot make a finding about the likely effect of that change at the moment. I intend to weave that into the conclusion at the end of the judgment after I have made findings about the rest of the s.60CC (2) and (3) matters.

2. I must have regard to the practical difficulty and expense of the children spending time with a parent.

3. That is not applicable generally, although while the father is in jail it will be very difficult for the children to spend time with him except if they go to the jail where he is incarcerated, and I do not know where that is going to be.

4. I must have regard to the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs.

5. Y and X, the younger two children who have been the least exposed to the father’s behaviour, are doing very well and the mother is doing a very good job of parenting them.

6. Z and W are not doing so well. They have been significantly exposed to the father’s violence, drug use, lack of discipline and antisocial behaviour during their life and this has impacted on them and may have grave implications for their future.

7. There is an exceptionally concerning passage in the mother’s most recent affidavit – and I am grateful to the mother for being frank about these things – about an occasion in April 2015 when W and Z were caught shoplifting. She recounts a conversation they had with a police officer in which the police officer said to W, “What do you want to do when you get older?” and W replied “Nothing, sit on the dole, enjoy myself”. The police officer said “If you get caught again you could go to Juvie. What do you think about that?” and W replied “It would be all right. I would get fed and I would get clothes.”

8. The mother is not responsible for what has happened to these children in terms of the example she has set them or the way she has parented them on a day-to-day basis, but the fact that they have been extensively exposed to their father throughout their lives – which has been with the mother’s agreement up to a certain point, at least until September 2013 – has caused them harm.

9. If I have a criticism of the mother it is that it is highly regrettable that these children were exposed to the father’s behaviours and attitude for so long.

10. Absent that, the mother has done and is doing a good job parenting the children. She is trying very hard to turn things around for them and since proceedings started in September 2013, she has been consistent in wanting the father to spend only supervised time with the children and has been consistent in turning up for court events and remaining engaged with the proceedings.

11. I know the mother wants a good outcome for the children and I know that she is doing her best.

12. There is nothing good to say about the father’s parenting capacity.  I have concerns about his self-discipline, housekeeping standards, cannabis use, violence and refusal to accept responsibility for his violence.

13. The Family Report writer noted that although the children were happy to see the father there were some problems in his interaction with them. The father could not help making comments about things like their haircuts and he said the following to them: 

    I don’t want to be a burden on you kids. If you want to go and live with your mother, you can.[2]

    [2] Family Report paragraph 59

14. The Family Report writer noted that not surprisingly the children all looked confused about this comment and did not respond. Such comments are sometimes called emotional blackmail.

15. The father clearly lacks the capacity to provide for the needs of the children, including their intellectual needs, because there was evidence that W and Z were missing school when they were with him, and their emotional needs.

16. I must have regard to the children’s maturity, sex and background.

17. There is nothing I can say under that heading which is not taken up in comments under some of the other headings. 

18. I must consider any family violence and this is a serious issue in this case. 

19. The father has been physically violent to the mother and he has been violent to other family members.

20. I suspect that the father’s verbal abuse of the mother has been more extensive than the mother revealed in her very brief affidavit because the father is simply unable to control his behaviour, even in the face of knowing that acting out in certain ways is almost certainly going to land him in jail.

21. An example of this occurred on 21 July 2015 when the mother and father had a conversation to following effect:

    Father:Cunt, you are a hopeless mother, the kids are all going to hate you when they grow up.

    Mother:You are not supposed to ring me, I’ll record it and give it to the police.

    Father: Cunt, think I give a shit? You have half an hour to get your arse home, so you get W home so he doesn’t roam the streets. You’ve got half an hour if you’re not home that’s when I’ll really go off, I don’t give a fuck I’ll go back to gaol.

    Ms Jeffries:You are not allowed to come near me stop ringing.

22. This resulted in the father being arrested and jailed.

23. The father is an appalling role model for the children in terms of modelling violence and uncontrolled and abusive behaviour and this has had its impact on the children. The mother said as follows:

    I do not allow W to go out to parties, or to hang around with his friends late at night unless (sic) it is an organised and supervised event at my house or one of his friend’s houses. When W requests to go to parties or stay out late and I refuse to allow him to go, W has said words to me to the following effect:

    “Dad used to let me go out!”

    “You are a bitch, you don’t let me do anything.”[3]

    [3] Mother’s affidavit paragraph 27

24. I must consider whether it is preferable to make the order least likely to lead to further proceedings. 

25. It is not possible in this case to make such an order for reasons which will become clear.

26. I must have regard to any other relevant matter.

27. A relevant matter is that the mother is not opposed to the children seeing paternal relatives, so even if an order is made that the children spend no regular time with the father or no time at all they will still be able to maintain a connection with their paternal family because of the mother’s connection with them and her attitude to the children maintaining that connection.

28. I will now return to the primary considerations and they are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence. 

29. The second consideration takes precedence over the first pursuant to s.60CC (2A).

30. The evidence suggests that it will not be possible for the father to have a meaningful relationship with these children, in other words, a relationship which is significant, valuable and important to them.[4]

    [4] Mazorski & Albright (2007) 37 Fam LR 518

31. There is nothing to suggest that the father is a person of value to the children in terms of being a good role model, a contributing member of the community and a person who is respectful to authority and respectful to the children’s mother.

32. Z and W are at risk as a result of their past interaction with the father. They are not set up to be contributing members of society.

33. It is not possible to identify a benefit to any of these children in having a relationship with the father and it is not possible to see a chance of them having a meaningful relationship with him.

34. There is a very high likelihood of the children being exposed to family violence if they spend unsupervised time with the father. There is nothing to suggest that he would show any compunction about exposing them to family violence if something upset him and he decided to fire up.  He has not done the perpetrator’s course which he agreed to do last November. He has exposed the children to significant harm as a result of his behaviour toward the mother and his attitude to other people in society.

35. The father can be warm to the children and they reacted well to him at the family report interviews and he has not abused them directly. However in my view the children would be at unacceptable risk of exposure to family violence if they spent unsupervised time with the father.

36. There was also nothing to suggest the father had overcome his addiction to cannabis. If he has been using cannabis since he was a teenager, which seems likely, it will not be an easy for him to beat the habit and the fact that he has returned a couple of clean drug tests recently does not mean that he has overcome his cannabis problem.

37. Given the extent of the father’s past cannabis use there is a risk the children will be neglected in his care as a result of that as well.

Parental responsibility

1. The presumption of equal shared parental responsibility does not apply given the father’s violence. The mother sought an order for sole parental responsibility and that is the only order I could make. 

2. The father is not someone that the mother can ring up and have a general discussion with about issues concerning the children. She is more likely to get a mouthful of abuse if she tries than to get a constructive response from the father. 

Conclusion

1. Viewed from one perspective this is quite an easy matter.  The father is an exceptionally poor role model for the children. There is no sign that he recognises that. There is no sign that he is likely to do anything about his behaviour. There is an extremely high risk that as a result of exposure to the father’s behaviour, W is going to end up either on the dole or in jail or both alternating, and if keeping the other children from the father saves them from going in that direction then that should be the outcome.

2. The father can be very loving toward the children. They were pleased to see him at the family report interviews. The two older children expressed a wish to spend equal time with him. Y wanted the family to be back together.

3. However I cannot place any weight on the children’s views and in my opinion no good could come of any of these children spending regular time with the father except perhaps for short periods supervised by a  professional supervisor, which would at least prevent him disrespecting the mother during that time.

4. The only thing I could safely do would be to order some short periods of professionally supervised time but long-term orders for supervision are very problematic. Contact centres will not offer long-term supervision and I cannot be sure about how long the father would agree to go to professionally supervised time. 

5. Given that the father is currently in jail and cannot have supervised time anyway my inclination in the matter – and, as I said, viewed from one perspective, it is an easy matter – my inclination is simply to make an order for no time.

6. The father can always come back later on, be proactive, put on an affidavit to indicate that he had changed and gained some insight into his own behaviour and the impact that it has had on the children in the past and then things might be different. 

7. I recognise that an order for no time is problematic, and that is because W and even Z may ultimately run away to the father when he gets out of jail.

8. The other reason the order is problematic is that the father can be loving toward the children, and Y and X are not opposed to seeing him, and there is always a risk with people like the father that if they come along and are charming on a particular day the other parent might agree to them spending time with the children, might feel sorry for them, might be sympathetic to the children’s wishes and might let some time occur.

9. If I make a no time order it may be difficult for the mother to keep the line with it. She might feel sorry for the father when he gets out, might agree to some time, might accept his promises that he is different and allow some time to occur.

10. However although a no time order is problematic because W and Z might run away to the father or the mother might feel tempted to not enforce it, in my view it is the order that I should make. I should make it because W is in trouble and Z may be in trouble and there is a possibility that Y and X will not end up the same way if I make a no time order and the mother complies with it.

11. I have made some critical comments about the mother allowing W and Z in particular to be exposed to the father’s behaviour but I do not want to be too critical of her. She was 17 when she formed a relationship with the father and not quite 18 when W was born. People sometimes make poor decisions at that time of their life and there are many, many positives about the mother.

12. The mother is working, she does not use drugs, she has no criminal convictions, and she has been consistent in pursuing these orders over a period of two years. She has reported the father to the police when he has breached ADVO’s and assaulted her. Unfortunately on the occasion when she was injured by the car the police do not seem to have followed up on that but the mother has reported the father to the police.

13. If I make a no time order and make it crystal clear to the mother that the court and society will support her if she says to the father, “No, these children are going to be damaged if they’re exposed to you”, Y and X at least might have a good future because the mother is there to set them a good example.

14. I do not know what is going to happen for W. If he followed the mother’s example then he would have a good future as would Z. However W is a boy. It is sometimes said that with teenage boys mothers need to step out of the way; they need their fathers. 

15. Unfortunately this boy does not have a father who can provide him with a good example, and I do not know how much influence the mother will be able to have, but if W was willing to follow the mother’s example he would have a good future.

16. Therefore although an order for no time is problematic in my view an order for no time and no communication is the only order I can make.

17. W needs counselling and that has already started through the school. 

18. The mother said in the witness box that W had expressed an interest in seeing the father in jail. She talked about how she had considered that issue but was concerned that if W saw the father in jail he might come to feel that jail was okay.

19. The mother obviously has some insight into this situation and if W is not exposed to the father and forced to look at the example the mother provides perhaps things will be better for him. 

20. I will deal briefly with the issue of the amendment of Y’s birth certificate. The father is not named as the father on Y’s birth certificate and the mother would like this amended.

21. Pursuant to s.69VA of the Family Law Act I can make a declaration that the father is Y’s father if I am satisfied that this is the case, and I sought some brief evidence from the mother earlier so that I could make that declaration and I will do so.

22. S.19 of the Births, Deaths and Marriages Act (NSW) provides that if any court of a State or Commonwealth makes a declaration of paternity then an application can be made to the New South Wales Registrar of Births, Deaths and Marriages for consequential amendments to be made to a birth certificate. As long as I make the s.69VA declaration and then an order under s.19(1) of the Births, Deaths and Marriages Act, the mother will be able to get the father registered on Y’s birth certificate as Y’s father.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date:  24 November 2015