Karlsson & Karlsson
[2022] FedCFamC2F 1604
Federal Circuit and Family Court of Australia
(DIVISION 2)
Karlsson & Karlsson [2022] FedCFamC2F 1604
File number(s): SYC 8036 of 2017 Judgment of: JUDGE M NEVILLE Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – parenting – final hearing – high conflict co-parenting relationship – whether presumption of equal shared parental responsibility is rebutted – relationship between adolescent children and father presently estranged – children’s views are strong and longstanding – where father contends parental alienation – where mother contends children’s views independently formed – weight to be placed on children’s views – whether any order can be made for time with father other than in accordance with children’s wishes – application for costs by Independent Children’s Lawyer – orders made for sole parental responsibility in favour of mother – orders that children spend time with father in accordance with their wishes – orders to facilitate mother obtaining travel documents for children and for children’s travel outside of Australia – order that father pay proportion of the Independent Children’s Lawyers costs in the fixed sum of $1,000 Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) pt VII, ss 60B, 60CC, 61C, 61DA, 65D, 65DAB, 65DAC, 65Y, 79A, 106A, 117
Cases cited: Dawson & Wright [2018] FamCA 266
Karlsson & Karlsson (No 2) [2020] FCCA 144
Picton & Alleva [2021] FCCA 10
Ralton & Ralton [2017] FamCAFC 182
Yapp & Wyndham [2020] FCCA 2122
Division: Division 2 Family Law Number of paragraphs: 247 Date of hearing: 28, 29 and 30 June 2021 Place: Sydney For the Applicant: The Applicant appeared in person For the Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Legal Aid NSW Gosford Family Law ORDERS
SYC 8036 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KARLSSON
Applicant
AND: MR KARLSSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE M NEVILLE
DATE OF ORDER:
14 december 2022
THE COURT ORDERS, on a final basis, THAT:
1.That the Mother have sole parental responsibility for the children, X, born in 2007, and Y, born in 2008 ("the children").
2.That the children live with the Mother.
3.The X and Y shall each spend time with the Father as agreed between the parties taking into account each child's views and wishes.
4.In the event either X or Y express a wish to spend time or communicate with the Father in the future, the Mother is to do all acts and things necessary to arrange such time and/or communication.
5.That pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children, X, born in 2007, and Y, born in 2008, are each entitled to have an Australian travel document including but not limited to an Australian Passport, and to give effect to this Order, the Mother is permitted to complete, sign and lodge any application for issue and/or renewal of each child's Australian passport, or any other document required to allow each child to travel outside the Commonwealth of Australia, without the need to obtain the Father’s consent.
6.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for each child upon application of the Mother alone in accordance with Order 5 hereof.
7.That for the purposes of section 65Y(1)(c)(ii) of the Family Law Act 1975, the Mother is permitted to take or send the children (or any of them) outside the Commonwealth of Australia without the need for the Father’s consent.
8.In the event that the mother requires the father to sign any document, deed, affidavit or instrument to record his consent to the children, or any of them, entering and travelling within any overseas country, including but not limited to Country L to which the mother is permitted to travel by virtue of these Orders, then within fourteen (14) days of service upon him of all such documents which require his signature to record consent for travel, the father must:
(a)Duly sign and execute each document as requested by the mother or her representative, including having all such documents witnessed by a qualified witness where required;
(b)Return all such documents in original form, duly signed, executed and witnessed, to the mother or her representative.
9.In the event that the father refuses or neglects to execute any document, deed or instrument requested of him by the mother or her representative pursuant to order 8, a Registrar of the Federal Circuit Court of Australia, Sydney Registry, is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign and execute all such documents, deed and instruments in the name of the father and to do all acts and things necessary to give validity and operation to such documents, deeds and instruments upon the Registrar first being provided with verification of such refusal or failure of the father by way of affidavit.
10.Within 28 days of the date of these orders, or such other time as may be agreed between the father and Legal Aid NSW, the father shall pay to Legal Aid NSW the sum of $1,000, being a proportion of the costs of the independent legal representation for the children unless granted an exemption by Legal Aid NSW.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Karlsson & Karlsson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE M NEVILLE:
Introduction
Ms Karlsson (formerly Ms Karlsson (“the mother”) and Mr Karlsson (“the father”) are the parents of Mr M, now aged 18 years (“Mr M”), X, presently aged 15 years (“X”) and Y, presently aged 13 years (“Y”).
The parties are in dispute about the children’s future parenting arrangements. The matter was listed for final hearing on 28 to 30 June 2021.
The Current arrangements and the Competing applications
The specific orders sought by each party will be set out in the schedules attached to these reasons, however, to provide some context at the outset of these reasons, the children’s current arrangements and the competing applications may be summarised as follows.
Since the parties separated on 15 December 2015, the children have lived with the mother. They spent some time with the father following separation, however, it was not regular or consistent. The children’s time with the father was hampered in part because his accommodation was too small for the children to spend overnight time with him, and in part because the father travelled frequently in 2016 and was overseas from early to mid 2016, for two weeks in late 2016, and from December 2016 to February 2017. Beyond those matters, each party was critical of the other party’s attempt to facilitate or exercise time and communication between the children and the father.
In late 2016, Y became resistant to spending time with and communicating with the father. She has remained steadfast in that regard and as at the time of the final hearing, she had not seen her father for over four years.
Mr M and X became resistant to spending time with and communicating with the father in early 2017. They, too, have remained steadfast in that regard, and as at the time of the final hearing, they had not seen the father for over four years.
All parties described the children’s relationships with the father as estranged.
The father commenced a new relationship in or around early 2016. The children were introduced to his new partner in May 2016 and appear to have spent time with her whilst she was in Australia throughout 2016. In 2016, the father told the children that he and his partner were expecting a child. In 2016, the father’s child – N– was born. Mr M, X and Y have not met their paternal sibling and, at the time of the final hearing, did not wish to do so.
The mother has not entered into a new relationship.
The mother and the Independent Children’s Lawyer seek orders that the mother have sole parental responsibility, that the children live with the mother and that they spend time with the father in accordance with their wishes. Each seeks orders to facilitate the issue of travel documents to the children and to facilitate the children travelling overseas with the mother.
The father sought orders that the parents have equal shared parental responsibility and that the children live in a shared care arrangement. He opposed orders being made for travel and sought that the children’s names be placed on the Airport Watchlist.
Principles to be applied and procedure to be followed
The Court’s power to make parenting orders is found at Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of that part, as set out at s 60B(1) are to ensure that the best interests of children are met by:
(a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects, as set out at s 60B(2) are that except when it is or would be contrary to a child’s best interests:
(a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.
Section 65DAB provides that when making a parenting order the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the best interests of the child.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
The presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility does not apply if there are reasonable grounds for the Court to believe that a parent has engaged in abuse of the child (or another child who was, at the time, in the parent’s family), or has engaged in family violence: s 61DA(2). The presumption may, otherwise, be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for their parents to have equal shared parental responsibility: s 61DA(4).
The legislation is clear that in determining what parenting orders ought to be made in relation to a child – including any order for parental responsibility – the best interests of the child are paramount.
The best interests of a child are to be determined by an examination of the factors as set out at s 60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out at s 60B of the Act.
The material relied on by the parties
In accordance with various procedural and evidentiary rulings made on 28 and 29 June 2021, I read and had regard to the following documents:
(a)Mother’s Case Outline Document, filed 28 June 2021.
(b)Father’s Case Outline document, 29 June 2021.
(c)Independent Children’s Case Outline Document, filed 25 June 2021.
(d)Initiating Application filed by the mother on 4 December 2017.
(e)Response, filed by the father on 22 January 2018.
(f)Mother’s affidavit filed 31 May 2021.
(g)Father’s affidavit filed 22 January 2018.
(h)Child Dispute Conference Memorandum, 30 January 2018.
(i)Child Inclusive Conference Memorandum, 6 April 2021.
In the days that followed the conclusion of the hearing, the father e-mailed my Chambers seeking to make further submissions. The Independent Children’s Lawyer and the mother did not consent to me receiving those submissions and, where the father had had ample time to prepare his evidence and submissions, I determined not to have regard to his further submissions.
Background
The following matters were uncontroversial or were established on the evidence before me.
The parties started to live together in 1997 and they married in 2001. Together, they have three children:
(a)Mr M, born in 2004;
(b)X, born in 2007; and
(c)Y, born in 2008.
The parties separated on 15 December 2015. The father moved out of the former family home into a one bedroom granny flat at an investment property that was then owned by the parties, and the children continued to live with the mother.
Two months later, in early 2016, the father departed for the Country O for work. He remained there until mid 2016. Whilst there, he formed a new relationship with Ms P. He informed the children about his new relationship over the telephone from the Country O in or around 2016, shortly before he returned to Australia. Ms P accompanied him on his return to Australia and the father introduced her to the children on or around mid 2016. By this time, the father and Ms P were expecting a child. The father informed the children of this in 2016.
All three children spent half of the school holiday at the end of term three, 2016 with the father. By November 2016, however, Y had become resistant to spending time with the father. She has refused to spend time with him since 3 December 2016.
In late 2016, the father travelled to the Country O to be present at the birth of his child. In 2016, the father and Ms P welcomed their child, N.
The father retuned to Australia in early 2017. Mr M and X spent overnight time with the father on his return and they both spent time with the father on or around Mr M’s birthday in 2017.
On 11 February 2017, there was an interaction between Mr M and the father at Mr M’s sports match. There is controversy between the parties about what occurred on this occasion and it will be discussed later in these reasons.
On 11 March 2017, there was an interaction between Mr M and the father whilst Mr M was doing community work. Again, there is controversy between the parties about what occurred on this occasion and it will be discussed later in these reasons. What is not controversial, however, is that Mr M refused to spend time with the father following this interaction. In April 2017, X followed suit.
In late 2017, the opportunity for the mother and the children to travel to Country L in 2018 presented itself. The father would not consent to the travel and so, on 4 December 2017, the mother filed the Initiating Application giving rise to these parenting proceedings. She sought discrete orders to facilitate the children’s overseas travel to Country L. In his Response filed on 22 January 2018, the father opposed the application for travel. He sought that the mother be restrained from removing the children from the Commonwealth of Australia, and that the children’s names be placed on the Airport Watchlist. He otherwise sought orders that the parents have equal shared parental responsibility; that the children live in a shared care arrangement; and ancillary orders clearly intended to regulate communication between the parties about the children, and to ensure that each parent has access to medical and educational information about the children.
The parenting application was returned before Judge Henderson (as her Honour then was) on 30 January 2018 and orders were made permitting the children’s travel to Country L with the mother. Further case management orders were made, including an order that the parties attend a Child Dispute Conference. An Independent Children’s Lawyer was appointed to represent the children’s interests.
When the matter returned to court on 18 May 2018, orders were made, by consent, that the children be enrolled in the Q Program, offered by R Centre. After the children’s return from the Country L trip in June 2018, they started in the Q Program and were engaged in that program from July 2018 to February 2019.
In late 2019, arrangements were made for the Independent Children’s Lawyer to meet with the children to obtain a statement of their views and wishes. To facilitate this process, the father was to write to a letter to each of the children and – if no party objected to the content of the letters – the letters would be provided to the children by the Independent Children’s Lawyer prior to the statement being taken.
The father wrote to the children, but there was controversy about the content of those letters, which will be discussed later in these reasons. The letters were not provided to the children and the Independent Children’s Lawyer met with the children on 26 November 2019 and took a views and wishes statement from each of them.
On 30 July 2020, I allocated final hearing dates. I listed the matter for three days commencing 28 June 2021 and made directions for the filing and service of trial affidavits. The parties were in dispute on that occasion about whether orders should be made for the preparation of a Family Report, or for the parties and the children to attend a Child Inclusive Conference. For reasons given on the day, I determined that a Child Inclusive Conference was preferable to a Family Report and I made directions to facilitate the allocation of conference dates close in time to the final hearing dates.
On 31 March 2021, the father delivered letters to each of the children, leaving them on the doorstep of the mother’s home. This was done without prior notice and without the consent of the mother or the Independent Children’s Lawyer. The mother was not home when the letters were left. She arrived home in time to intercept the letters addressed to X and Y. Mr M had, however, opened the letter addressed to him prior to her arrival.
The Child Inclusive Conference occurred on 1 April 2021 and a report was prepared and released to the parties.
I conducted a readiness hearing on 18 June 2021. The father did not appear. As his trial affidavit had not been filed, I extended time for him to file it to 23 June 2020. I made orders and directions that in the event the father did not appear and, or, did not file affidavit material in compliance with the directions, the matter may proceed undefended. I directed the Independent Children’s Lawyer to notify him of the outcome, which she did on 19 June 2021.
On 25 June 2021, the father emailed to my Chambers an unfiled document entitled “Costs Application”. He filed no trial affidavit or case outline document in relation to the parenting proceedings.
The hearing commenced on 28 June 2021. Before getting underway, a number of preliminary applications were determined. Specifically:
(a)On 28 June 2021, the father made an application to adjourn the final hearing. For reasons given on the day, that application was refused.
(b)On 29 June 2021:
(i)I heard the father’s application that I recuse myself. For reasons given on the day, that application was refused.
(ii)I heard the father’s application for leave to amend his Response. For reasons given on the day, that application was refused.
(iii)I heard the father’s application for leave to rely on his affidavit filed on 22 January 2018 and his affidavit made and served on 29 June 2021. For reasons given on the day, I granted leave to the father to rely on his affidavit of 22 January 2018 and I refused leave in relation to the affidavit made and served on 29 June 2021.
(iv)I heard the Independent Children’s Lawyer’s application to proceed undefended. For reasons given on the day, I granted that application and determined the matter would proceed by way of submissions on the evidence.
After reflecting on the way in which the undefended hearing was to proceed, and after hearing from each of the parties on the issue, I then made further orders as to the way the undefended hearing was to proceed, namely:
(a)If required, each of the mother and the father may be cross-examined;
(b)Cross-examination would be restricted to matters arising on the affidavit evidence before the court; and
(c)Each party would have 45 minutes to ask any questions in cross-examination and each party would have 30 minutes for submissions.
The father required the mother for cross-examination. The father was not required for cross-examination by any party. Cross-examination occurred and closing submissions were made 30 June 2021.
When considering the background matters to the parenting dispute, it warrants mention that throughout the time that the parenting proceedings were on foot, the parties were simultaneously engaged in litigation about property matters (including a costs dispute) and, or, they were in conflict about the implementation of property orders made, by consent, on 29 June 2016, 23 February 2017 and 4 September 2017. On 18 June 2018, the father filed an application pursuant to section 79A of the Act, seeking to set aside a property order made by consent on 4 September 2017. That application was summarily dismissed on the mother’s application on 29 January 2020 and the father’s application for leave to appeal that decision was refused on 25 August 2020.
The way in which the parties put their cases
The Independent Children’s Lawyer
The Independent Children’s Lawyer contends that the children have clearly expressed their views that they do not wish to spend time with or communicate with the father and they will refuse to do so, even if court orders are in place. She contends that the children’s views are strong and long-standing. Given the matters they reported during the Child Inclusive Conference, the Independent Children’s Lawyer contends that their views have been thought through and are based on their lived experience of the father and, given their ages and stages of development, weight should be placed upon each child’s views.
Where the children’s views include a refusal to spend time with the father – even if court orders are made – the Independent Children’s Lawyer contends that any order for time between the children and the father would be doomed to fail. She contends that it is important that any orders made are realistic and are capable of being implemented because – in part – if the children resist and the mother insists that time occur in accordance with court orders, then it is likely to cause stress and tension in the relationships between the children and the mother.
The Independent Children’s Lawyer contends that the father lacks insight into any role he may have played in the breakdown of his relationships with the children, instead, blaming external factors including the mother, the Independent Children’s Lawyer and the court. She contends that the children perceive him as blaming the mother and that the father’s evidence and submissions reveal a reasonable basis for the children to have formed that view.
The Independent Children’s Lawyer contends that there is, quite simply, no realistic proposal other than that advanced by the mother and the Independent Children’s Lawyer.
The mother
The mother contends that it has been over four years since the children last spent time with the father. She contends that the children do not wish to spend time with him, and that she has not coached or coerced their views. Rather, she contends, the children have formed their own views based on the things they have seen and heard and based on their own interactions with the father.
She contends that the relationship between herself and the father is so poor that it could not support or sustain an equal time or shared care arrangement. Nor, she says, could it support an order for equal shared parental responsibility as the father seeks. She contends it is in the children’s best interests that she have sole parental responsibility because she has been the children’s primary carer, providing a stable home environment and meeting their needs on a day-to-day and longer term basis well. She says that she has, effectively, exercised parental responsibility alone and that there have been no expressed concerns about her decision making capacity and that they are doing well in her care.
The mother contends that the father lacks the insight necessary to repair his relationships with the children and whilst he has continuously blamed her for the children’s estrangement from him, he fails to acknowledge the impact of his own behaviours in creating that situation.
The mother contends that the father is a litigious person, likely to return to court in the event that orders are not followed. Where the children’s resistance to spending time with the father is long-standing and strongly held, she contends that it is not likely that she would be able to implement any order for time, other than an order for time in accordance with the children’s wishes. If any other order was made about time with the father, she contends it is likely that the matter would return to court, which would be adverse to the children’s best interests.
The father
The father contends that the submissions made by the mother and the Independent Children’s Lawyer about his insight are remarkable and unjustified. He contends that he has never claimed to be a perfect parent, but that he was a good and loving father to the children, actively involved with them in their younger years.
He contends that there are serious risks of harm to the children, with lifelong consequences, if they do not have a relationship with each parent. He contends that since separation, the mother has consistently frustrated the children’s relationships with him, thwarting all attempts at time and communication from 2016 onwards, including – but not limited to – making false allegations of abuse, arranging fun events for the children that conflicted with their time with him, not answering the telephone when he called and failing to have the children call him.
The father contends that the mother has refused to engage in any form of cooperative co-parenting and has never had any intention of engaging in meaningful co-parenting. He contends that she has refused to engage with him about parenting plans and parenting arrangements, she has shut down his attempts at mediation and family dispute resolution, and that unless orders are made that require her to involve him in parental responsibility, she will not do so.
The father contends that prior to separation he was a loving and involved parent to all three children and that since separation, the mother has engaged in a campaign of parental alienation – asking the children intrusive questions, spying on them and turning them against him. To the extent that the children are now resistant to spending time with him, he contends that the mother has caused or created that situation.
As I understand his position, unless orders are made for time and communication, his relationship with the children will have no hope of repair, and the children will be irreparably harmed by the loss of that relationship, both now and later in life.
Determining the children’s best interests: The evidence
A child’s best interests are determined by consideration of the matters set out at s 60CC of the Act.
Section 60CC(2) provides that the primary considerations are:
(a)The benefit to the child of having a meaningful relationship with each parent; and
(b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The Act is clear that of the two primary considerations, the Court is to give greater weight to the need to protect the child. In this case, no party contended that there was a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Section 60CC(3) sets out the matters to be considered in addition to the primary considerations, although not every factor will be relevant in every parenting dispute. In this case:
(a)Whilst there was some controversy about the extent to which the father had met his child support obligations, no party submitted – and the evidence does not suggest – that the matters at s 60CC(3)(ca) are relevant to the determination of the children’s best interests.
(b)No party submitted, and the evidence does not suggest, that there is any practical difficulty or expense of the children spending time with or communicating with the father and so the matters at s 60CC(3)(e) are not relevant to the determination of the children’s best interests.
(c)No party submitted – and the evidence does not suggest – that the matters set out at s 60CC(3)(g), namely the maturity, sex, lifestyle and background of the children or of either of their parents, and, or any other characteristics of the children are relevant to the determination of the children’s best interests.
(d)Given that the children are not Aboriginal children or Torres Strait Islander children, the considerations at s 60CC(3)(h) are not applicable to the determination of their best interests.
The Act does not mandate the order in which the factors set out at s 60CC(2) and s 60CC(3) must be considered. Having regard to the issues in this case, I have approached discussion of the s 60CC factors by examining the following themes:
(a)The children’s relationships with their parents and other important people;
(b)The children’s views and the weight to be given to them;
(c)Parental capacity and participation (including the capacity of each parent to meet the children’s needs, the extent to which each parent has taken the opportunity to spend time with, communicate with and participate in decision making for the children, and each parent’s attitude to the responsibilities of parenthood);
(d)The likely effect of a change in the children’s circumstances.
(e)Any family violence and the need – if any – to protect the children.
(f)The impact of further litigation and whether it is preferable to make the order that is least likely to lead to the institution of further proceedings.
Turning then to those matters.
The children’s relationships with their parents and other important people
Because the mother contends that the current state of the children’s relationships with the father is a consequence of their experience of him, and because the father contends it is the product of a campaign of parental alienation, I consider it is important to consider the children’s relationships with each parent before turning to a consideration of their views.
With the mother
There was no dispute that throughout the relationship, the mother was the children’s primary carer. The father attributed this, in part, to his work taking him away for travel frequently.
During the Child Inclusive Conference, each child reported positively about their relationship with their mother.
Mr M described a close and mutually loving relationship. He described his mother as “level headed” and measured in her disciplinary responses, describing her as “firm, but fair”.
X described his mother’s parenting style as more moderate and relaxed (in contrast to his father’s parenting style) and said his mother “talks” to him about what he has done wrong and how he might have better managed a situation.
Y told the Family Consultant that her mother did not discuss the father with her and did not portray him in negative terms. She reported that her mother had encouraged her to attend time with the father.
Because the children have refused to spend time with the father for over four years now, the mother has been the parent to whom they have turned to have their day-to-day and longer term needs met for most of their lives, more so since separation than before it. Each spoke positively about her in this regard.
I am satisfied that the children’s relationships with the mother are close and loving. I am satisfied that each child’s relationship with the mother is significant, important and valuable to them.
With the father
Although in his affidavit the father gave evidence that the mother had been the children’s primary carer, he deposed that throughout the relationship, he was an active and involved parent, sharing many interests with the children, including taking them to sports.
The Family Consultant described the children’s relationships with the father as “presently estranged”. There was no dispute between the parties that this was the case. The mother contended that the estrangement had occurred because the father’s behaviour toward the children, in effect, drove them away from him. The father contended it had occurred as a consequence of the mother’s deliberate alienation of the children from him.
In his affidavit, the father deposed that the speed at which his relationships with the three children broke down at the end of 2016 could only have been the product of a concerted campaign of alienation. To understand the father’s contentions in this regard, it is useful to consider the events that occurred throughout 2016 from the children’s perspective.
Events from separation in December 2015 until February 2017
At the time of separation, the father moved out of the former family home. The mother and children continued to live in it. The mother deposed that from separation in December 2015 until February 2016, the children spent ad hoc time with the father. The father gave no particular evidence about the time the children spent with him during that period, other than to say that he had moved into a small, one-bedroom cabin at the rear of a jointly owned rental property which was unsuitable for the children to stay in overnight.
In 2016, the father departed Australia for the Country O. He was away from early 2016 until May 2016 – a period of about three months. The father deposed that he continued to contact the children by FaceTime each day. Although the children may have been accustomed to the father travelling frequently for work, at this time, they had just experienced the breakdown of their family unit and he was absent from them.
The father met his current partner, Ms P, in the Country O in early 2016. In mid 2016, he told the children, during a FaceTime call that he had started a new relationship.
When the father returned from the Country O in mid 2016, Ms P came to Australia with him. He introduced the children to her in mid 2016.
It was not controversial that the children spent no overnight time with the father until July 2016, when the father appears to have made more suitable accommodation arrangements. Thereafter, whilst the mother contends the arrangements were “ad hoc” and the father contends that the children spent time with him “generally each weekend (though the days would vary)”, on any account, it appears that arrangements for time between the children and the father were not regular or consistent.
In 2016, eight months after the parents had separated and just three months after the children had met Ms P, the father informed the children that he and Ms P were expecting a child. Also in 2016, the father departed Australia for the Country O again.
Whatever difficulties the parents had making regular and consistent parenting arrangements, those difficulties amplified around the time the pregnancy was announced. The mother deposed that the father was inconsistent and regularly late to spend time with the children, and the father deposed that the mother was uncooperative and made it difficult for him to see the children. He deposed that his attempts to make FaceTime calls to the children went unanswered, and that the mother refused to respond to his requests to make arrangements for the calls to be made. No matter who is right – or whether the truth lies somewhere in between – arrangements for time between the children and the father appear to have been irregular and inconsistent and fraught with difficulty.
Although the father gave no specific evidence about it, it appears uncontroversial that the children spent a week with him during the school holidays that occurred at the end of term three, 2016 – that is in September/October of that year. The photographs annexed to the father’s affidavit suggest that Ms P was in Australia at that time and I infer she was present throughout the children’s time with the father.
The mother deposed that all three children complained to her about the state of the father’s house at the time; that X called her in tears asking to come home; and that the children reported to her that X had had a conflict with the father, locked himself in the bedroom and that the father blamed Mr M for it. The father gave no evidence about these matters and the mother was asked no questions about it during cross-examination.
In late 2016, the father told the children that he was travelling to the Country O. He deposed that he said to them:
I won’t be able to be here for Christmas, I need to go to the [Country O] for the baby’s birth. I love you very much. I have to be at the baby’s birth. There is only one birth, but there will be lots of Christmas. I am not replacing you. I love you very much.
Clearly, the father must have been alive to the possibility that the children were struggling with their circumstances, otherwise there would have been no need to reassure them that they were not being “replaced”. No doubt these words were intended to reassure the children that they were loved, but it is impossible to know how the children – who were still quite young at the time – heard and perceived them.
In late 2016, the father took Y to a sporting event. That was the last occasion on which she spent time with him. Less than two weeks later, he departed for the Country O and was away until early 2017.
Events from early 2017 to the commencement of the proceedings on 4 December 2017
Upon his return, he spent overnight time with Mr M and X almost immediately. Y declined to join. He saw Mr M and X on or around Mr M’s birthday in 2017. Thereafter, Mr M became resistant to spending time with or communicating with him.
The father deposed that he spoke with Mr M on 6 March 2017 and that Mr M challenged him, saying “You’ve done all these horrible things to us…you’re not paying child support; you cancelled mum’s car insurance; you sent mum a Parenting Plan which was stupid and it requires her to sit by the phone for two hours every night and doesn’t let her go out at night at all; you started nasty court proceedings”. The father deposed that he could hear Y in the background, saying “We’re not supposed to talk about this”.
The father continued to attempt to call the children. He deposed that on 26 March 2017, Mr M told him “we don’t want to talk with you”. X gave the father the same message in early April 2017. The father continued to try to call the children daily until late April 2017 and after a month of his calls going unanswered, he ceased calling.
The mother deposed that the father attended Mr M’s sports match in February 2017 and at Mr M’s community event in March 2017 and, on each occasion, insisted he go home with him. When Mr M refused on each occasion, the father became angry, started shouting and was physically intimidating toward Mr M. She deposed that during the incident, two friends of hers who were present intervened upon seeing Mr M’s distress.
The father gave no evidence about either incident. To the extent that there is any evidence about his view on the matter, it appears in the Child Dispute Conference memorandum of 30 January 2018. The Family Consultant reported that the father conceded that his relationship with Mr M was, at times, somewhat strained. She considered that the father “portrayed Mr M as a particularly defiant adolescent, and this reportedly sometimes required him to redirect Mr M, and ensure he behaved appropriately”. The father went on to report that the mother had a tendency to enable Mr M’s behaviour, and that she would be critical and verbally abusive of him when he attempted to discipline Mr M.
The father addressed the matter during submissions. He challenged the mother’s account of events, submitting that he recalled the incidents, but that the mother had blown them out of proportion. He was critical of the mother for having filed affidavits given by four of her close friends about the work incident, but not relying on them at hearing. He submitted that he had never been physically intimidating toward Mr M, and that to the extent it was contended he had been verbally abusive, he said “every parent will discipline a child at some point”. He said he was certainly upset on the day, and visibly so, but that he was not mad at Mr M and he did not verbally abuse or intimidate him.
The father submitted that the source of the conflict at the community work was that the mother had specified one of her friends would take Mr M home. He construed this as a further attempt by the mother to restrict his time, and he described it as controlling behaviour by her.
It is impossible to now determine what occurred at either the sports match or the sports event, particularly where the father gave no evidence about the matter and where the affidavits from the mother’s friends were not relied on at final hearing. Whether events occurred as the mother contends, or as the father contends – or whether the truth of the matter lies somewhere in between – it is clear that on each occasion, there was conflict between the father and Mr M. The conflict occurred at Mr M’s extra-curricular activities and I have inferred that his friends and teammates were likely to have been present. The father became upset and attempted to discipline Mr M.
There is no evidence that the father gave consideration to the way Mr M might have experienced his father’s discipline either at the time it occurred or at the time of the final hearing. During the Child Inclusive Conference, Mr M described the father as having “rocked up” in an agitated state saying “It’s my weekend and you’re coming with me!” Mr M told the Family Consultant he was “mortified” by the incident. If the father had read that or reflected on it, it was not evident from the submissions he made.
It is not controversial that following the events of March and April 2017, Mr M and X stopped engaging with the father.
It will be recalled that these proceedings began over a dispute that erupted in mid-2017 about the mother’s wish to take the children to Country L for a family gathering and a holiday and the father’s refusal to give his consent for the travel. The extent to which the children were aware of the possibility of a trip is unknown, but the mother deposed that the father’s refusal of consent to allow the travel caused her and the children great distress.
Discussion of events leading up to the commencement of the proceedings
During the period December 2015 to April 2017, Mr M was aged 12 to 14 years, X was aged nine to 11 years and Y was aged seven to nine years. Standing back and looking at the children’s – rather than the parents’ – experience at the time:
(a)The children experienced the breakdown of their family unit in December 2015. The father left the former family home and the children’s time and communication with him was not consistent or regular, and did not include overnight time.
(b)The father had departed for the Country O in early 2016 for a three month trip. In mid 2016, before his return, they learned that he had father had formed a new relationship with Ms P. This news was delivered over FaceTime, and to the extent that the children were – on the father’s evidence – surprised and a little upset, he was not physically present to provide them with any comfort.
(c)Within two weeks or so of learning the father had embarked on a new relationship, he introduced Ms P to them.
(d)Three months later, the children learned their father was having a baby with Ms P. At or around the time they received the news, the father travelled to the Country O for two weeks and was again absent.
(e)The children spent school holiday time with him in September/October 2016. About six weeks later, they learned that the father would be away for Christmas – the first time since separation.
(f)In late 2016, he departed for the Country O again and was gone from their lives for two months.
(g)When the father returned in early 2017, Ms P and baby N came with him.
It is important to remember that whilst separation can be difficult for parents, it is extraordinarily difficult for children. Whatever changes and uncertainties parents are dealing with, children are dealing with those changes and uncertainties too – at a time in their lives where they may not have the maturity or skills to manage their own feelings of stress, distress, sadness, anger or grief.
Here, when X and Y’s family life as they knew it came to end, and without having any say in the matter, they were required to adjust to new living arrangements; to deal with the loss of the ebb and flow of contact with each parent; and they quickly had to come to terms with the fact that their father had embarked on a new relationship. Within a period of 12 months, they had to adjust not only to their parents’ separation but also to the introduction of a new partner and a new baby. These are enormous changes to expect children to cope with, and having regard to the children’s ages and stages of development, it would be naïve to expect that they would have a view, not only about the effect of their parents’ circumstances, but the cause of it.
It is impossible to lose sight of the fact that in the background to all of these changes for the children, the parties themselves were engaged in what seems to have been relentless litigation and, or conflict about their property arrangements. The history of those disputes is set out in the judgment on the mother’s application for summary dismissal of the father’s application for section 79A relief: Karlsson & Karlsson (No 2) [2020] FCCA 144.
It is fair to say that each party was significantly vexed by their property dispute. Where the children were living with the mother throughout the property proceedings which appear to have commenced in June 2016, it is difficult to envisage that even with the best will in the world, she would have been able to completely shield the children from her own views about the father and the property conflict. Even if she said nothing to the children, it is possible that they overheard things or accessed documents without the mother’s knowledge that caused them to become aware of aspects of the property dispute; or that one of them did so and the three of them discussed it amongst themselves.
This is not to say that the only source of information available to the children was the mother. During the Child Inclusive Conference interviews, all three children reported that when they did spend time with the father, he discussed the parental conflict with them and each perceived him as “blaming mum”. The father did not deny that he had done so, nor, however, did he accept it.
Events occurring after the parenting proceedings were underway
The father wrote to the children at Christmas 2017. Whilst there are many comments in those letters where the father affirms the children and expresses love to them, they also contain references to the parenting dispute and implied criticism of the mother. In the letter written to Mr M, he expressed his sadness and disappointment about Mr M having turned away from him, but said he understood that it was “the result of a deliberate effort to separate us”. He suggested Mr M “google parental alienation”. To X and Y, he wrote that he was “fighting to get this madness fixed” and “I’m not going to try to buy your love by playing ‘who can buy the biggest present’”.
When the father had the opportunity to write to the children in November 2019, he sought to raise the parental conflict in those letters. He referred to the impossible situation he would be placed in if orders were made that the mother have sole parental responsibility, and told the children that he was unable to afford to live in Property A after his house was sold.
The significance of the letters written at Christmas 2017 and in November 2019 lies not in whether the children read them, but in revealing the father’s mindset about what he thought they should know. It is clear from those letters that whilst he wanted to let them know he loved them and wanted a relationship with them, he also wanted them to know that the mother was to blame for the situation they were in.
None of the children presently appear to attach significance, value or importance to their relationships with the father. I cannot conclude that the children presently have a meaningful relationship with the father.
Having regard to all of these matters, whilst the children’s relationship with the father is presently estranged, I cannot conclude that it is as a consequence of parental alienation. Nor can I accept that it is a consequence solely of the father’s own making. It appears that each child has been exposed to and affected by the parental conflict (including conflict before separation) and each has done the best they can to make sense of these circumstances.
The children’s views and the weight to be given to them
Because Mr M is now beyond the reach of court orders, my focus is on X and Y’s views. This is not to say that Mr M’s views are not relevant. I consider that the views he expressed – particularly during the Child Inclusive Conference – are relevant to shining a light on a number of matters and for that reason they warrant inclusion in these reasons.
X and Y’s views as reflected through the Independent Children’s Lawyer
The children’s interests have been represented throughout the proceedings by the Independent Children’s Lawyer who has taken a proactive role in meeting with and interviewing the children to inform them about court processes and obtain their views.
Meeting in April 2018
On 8 May 2018, the Independent Children’s Lawyer wrote to each party to advise that she had met with the children on 20 April 2018.[1] She informed the parents that during the meeting, each child struggled to find a positive expression about spending time with the father or the prospect of doing so in the future. Mr M and X were, reportedly, completely opposed to spending time with the father. Y was described as being “nearly as adamant” as her siblings. The children reportedly raised issues about the father’s anger, about him shouting at them, and about him not taking them to their sporting events.
[1] Mother’s trial affidavit, 31/05/2021: Ann W19.
Statement of views and wishes, November 2019
As adverted to in the background matters, the Independent Children’s Lawyer canvassed the children’s views on 26 November 2019. At this time, X was aged 12½ years, and Y was aged 11 years. A copy of the statements prepared following that interview was annexed to the mother’s affidavit.[2]
[2] Mother’s trial affidavit, 31/05/2021: Ann W22.
X’s statement was brief. It was as follows:
I met with [the Independent Children’s Lawyer] today and we talked about whether I would like to make a written statement and I thought I would. It is OK for [the Independent Children’s Lawyer] to type it for me. I am telling her what to write.
About dad, I don’t want to start seeing him again. If I change my mind I will tell my mum.
I just remember him always shouting.
Y’s statement was somewhat more expansive. It was as follows:
I met with [the Independent Children’s Lawyer] today. We talked about my wishes and views and why we should give them if we wanted to. I found out why we should do it and the reasons and the reason why mum was seeking a sole parental responsibility order, and [the Independent Children’s Lawyer] asked me whether I wanted to see dad. I said it was OK to do a statement and she typed it for me as I said it.
I’m happy living with mum and I don’t really want to change that.
Things are going well. We just started [sports] again. [X] is about to go to his new school. I’m going into Year 6 next year. Everything is pretty good right now, and there is nothing that I would like to change.
I don’t really want to communicate with dad. He wasn’t the best parent. We didn’t do much with him and we were usually always late to things. He usually swore and raised his voice a lot and we started to stop seeing him and started living with mum. Dad got angry but we were happy living with mum and stayed that way.
Mum has always encouraged us to communicate with dad. We’ve been the ones to say no, and not her. She is not the one saying we shouldn’t see dad. If I changed my mind in the future and wanted to communicate with dad, I know that mum would be happy to help me do that.
The Child Inclusive Conference
All three children were interviewed by the Family Consultant as a part of the Child Inclusive Conference that occurred on 1 April 2021.
X: aged 13 years and 11 months
During the Child Inclusive Conference, X recalled that when he was younger, his father sometimes played with him. He remembered his father as having worked a lot, sometimes working late and sometimes spending time away from the family home due to his work commitments. He reported that his mother had been the parent who was generally responsible for taking him to medical appointments and extra-curricular activities. He had some recollection of his father having done so, but observed that it was “a few times, but not as much that I remember”.
When thinking about the time of his parents’ separation, X told the Family Consultant that he remembered in the months leading up to it, his parents fought loudly. He described his father as “swearing and shouting”. He said sometimes the father shouted at him and his siblings.
X spoke of the time he had spent with his father in negative terms. He was critical of the state of the father’s residence. He described the father as generally unengaged. His comments conveyed the impression to the Family Consultant that he had found his father’s behaviour stressful at times. By way of example, the Family Consultant observed X’s comment that his father tended to “constantly blame mum” for his circumstances. X found this upsetting.
X reported to the Family Consultant that he had not spent time with the father for about four years, but that he had seen his father at the beach. When asked about the times he had seen his father at the beach, he told the Family Consultant “I don’t talk to him, but yeah, it’s a bit weird”.
The Family Consultant recorded X’s views as follows:
(a)He would not participate in family therapy, even if court ordered. He was reported to have asserted that he is an adult, and capable of determining for himself whether he has a relationship with his father.
(b)He would not comply with any court order to spend time with his father.
(c)He wanted his father to leave him and siblings alone.
The Family Consultant described X as “friendly, polite but somewhat shy”. He told her that his views were “all (his) own ideas” and that he was not concerned about his parents’ possible responses to his comments in interview.
At the time of the Child Inclusive Conference, X was aged almost 14 years. He was in Year 8. The Family Consultant expressed no concern for X’s ability to form and express his views.
Y: aged 12½ years
When invited to comment on family life before her parents’ separation, Y told the Family Consultant that she could not recall much. She considered this was because she was quite young at the time of the separation. She had some memory of the father having been away for work at times and that she had memories of her father working late. She had little memory of her father playing with her much, but allowed for the possibility that he may have. Like X, she recalled that it was her mother who took her to appointments and activities. Again, she allowed for the possibility that the father did so and that she simply did not remember it.
When reflecting on life after her parents’ separation, she said that she recalled that her father had spent an extensive period overseas following the separation and that he had quickly re-partnered and had had a child.
Y remembered spending time with the father after separation. She reported that the mother had encouraged her to attend for time with the father for a considerable period. She said that when she spent time with the father, she felt uncomfortable because of the home’s physical environment. She commented that her father was “always blaming” the mother for his circumstances and that he would discuss the conflict about financial matters with her and her siblings. The Family Consultant considered that Y agreed with her siblings’ portrayal of the father as authoritarian. She referred to him as “angry”.
When asked about participating in family therapy, Y told the Family Consultant she was unwilling to attend under any circumstances. She said she had no interest in being reintroduced to her father or in spending time with him. Y asserted she is not a young child. She expressed her view that it is inappropriate that she be forced to engage in a process she does not believe in.
At the time of the Child Inclusive Conference, Y had no interest in meeting her paternal sibling, N. She was open to the possibility of considering this when she is an adult.
When invited to give a message to the court, Y said she would not follow a court order to attend family therapy or to spend time with the father. When asked if she had a message for the father, she rolled her eyes, said she had no message and said that she would like her father to “let it go”.
At the time of the Child Inclusive Conference, Y was aged 12½ years. She was in Year 7 at school. The Family Consultant described her as “polite and respectful”, but observed that it had been somewhat difficult to engage her. The Family Consultant formed the view that Y considered her involvement in the Child Inclusive Conference process was “utterly deplorable”.
The Family Consultant expressed no concern for Y’s ability to form and express her views. She observed that during the interview, Y reported that her mother did not discuss the father with her and that the mother had not described him poorly to her. She reported that the mother had not influenced her decision to stop spending time with the father.
Mr M’s views
Mr M recalled that before the parties separated, his father sometimes travelled on business. He said that his father was involved in parenting tasks “a bit” and that his mother took on a majority of the parenting tasks. He described that when he was ill or injured as a younger child, he would seek comfort from both parents, but more so from his mother. He did not attribute this to any lack of care or concern by his father but rather, because – in his view – it was more of a “mother thing”.
Mr M reported that after his parents separated, he spent time with the father whenever he wanted, but that “as time got away” he just did not want to. He expressed that – from his perspective – the physical environment at the father’s home was not good. He also described a number of incidents with the father that he found reprehensible. This included an incident where his father attended his sports match in an “agitated” state and said to Mr M “It’s my weekend and you’re coming with me”. Mr M described having felt “mortified”.
From Mr M’s point of view, his present estrangement from his father has occurred as a consequence of his father’s behaviour. He asserted that his opinion had not been influenced by the mother.
At the time of the Child Inclusive Conference, Mr M was aged 17 years. He was in Year 12 and gave a positive account of school. He considered he was on track to achieve his desired HSC mark, and he intended to pursue psychology at T University upon leaving school.
The Family Consultant described Mr M as “friendly, articulate and intelligent”.
The account of his interview given by the Family Consultant conveys the impression that – at the time – Mr M was a mature 17 year old young person, who had reflected on his relationship with each parent and was able to articulate reasons for his resistance to spending time with his father. His commentary on his family’s circumstances was, in my view, balanced and nuanced. For example, he allowed for the possibility that his father had taken to him to more appointments and extra-curricular activities than he remembered; and to the extent that he recalled seeking out comfort more from his mother than his father, he explained that this was as a consequence of a natural preference to turn to his mother to have those needs met as opposed to a rejection of the father.
Conclusions about the children’s views
The children’s views as expressed through the Independent Children’s Lawyer’s letter of 8 May 2018 and in their statements of views and wishes prepared on 26 November 2019 resonate with the matters they discussed during the Child Inclusive Conference interviews. Sadly, X and Y do not wish to spend time with, communicate or pursue relationship with the father. I am satisfied, that the children’s views are long-standing and firmly held.
To the extent the father contended that the views that they held or expressed were the consequence of parental alienation, for the reasons already given, I am not satisfied that parental alienation has occurred as the father contends.
When I consider the matters Mr M reported to the Family Consultant, there is a resonance in the children’s accounts of their family life both pre and post-separation. There are, however, differences in the words used by each child and the things they reported on that satisfies me that they were not simply parroting a narrative given to them by the mother.
No doubt the children have been exposed to the parental conflict. Whilst I cannot determine the extent to which this has occurred in the mother’s household, I do not consider that the only possibility for that exposure was the mother’s household. The children expressed their perception that the father had discussed property issues with them or had blamed the mother in those discussions. The evidence and submissions before me satisfies me that the father holds those views presently and has done so for many years since separation. The letters written by the father at Christmas 2017 and in November 2019 satisfy me that he sought to convey those views to the children, and if he was prepared to convey them to the children in writing, it leads me to consider that he would have been prepared to convey them in his discussions with the children. I therefore accept the children’s accounts in this respect.
When I consider the children’s views and wishes statement provided to the Independent Children’s Lawyer in November 2019 and their comments during the Child Inclusive Conference interviews some 18 months later, it appears that both X and Y had matured and in April 2021, demonstrated a more nuanced understanding of their life experience. X was able to recall times when the father had taken him to extra-curricular activities or medical appointments and in this regard, he appeared to have been able to express a more expansive account of life before separation than in November 2019. Y was able to recognise that her lack of memory about the father playing with them or caring for them before separation may have been because of her age at the time.
These matters cause me to conclude that the children have thought about and reflected on their life experience and that they are not “stuck in a narrative”, incapable of changing their perspective. Given their ages and stages of development, I consider that significant weight should be placed on their views.
Parental capacity and participation
Each parent is critical of the other parent’s capacity to communicate effectively and co-operatively about the children (or at all). The mother is critical of the father’s insight into the children’s needs and she criticises him for being inconsistent and unreliable in spending time with and communicating with the children after separation. The father is critical of the mother for excluding him from having any input into decision making for the children, for completely frustrating his relationship with the children (including any attempts to mediate or negotiate about parenting arrangements), and for turning them away from him.
Evidence about communication about making arrangements for time between the children and the father
In her affidavit, the mother gave evidence that from July 2016 to December 2016, she predominantly communicated with the father via text message. She deposed that she kept him informed of the children’s schedules including weekend sports and some social activities.
She deposed that she regularly sought the father’s assistance to get the children to where they needed to be, because the children’s schedules often clashed. She deposed that sometimes the father made no response, and on other occasions, his responses were so delayed that she had already made alternative arrangements with other parents. She gave evidence that he would also respond that he could not assist due to his own commitments.
The mother deposed that despite being informed of the details of the children’s activities, the father would frequently arrive late, or that he would tell her he would be attending, but then would not arrive.
The father deposed that when he informed the mother that he had met Ms P, she made derogatory comments about both Ms P and the father. He deposed that she “begrudgingly” accepted the new relationship after several conversations. The father deposed that when he and Ms P announced their pregnancy, the mother started to thwart his attempts to spend time with the children, refusing to make them available for three weekends in a row in August 2016. He deposed that the mother made it difficult for him to contact the children via FaceTime and that his calls would go unanswered, or the mother would not reply to his requests to schedule a time to call.
The father deposed that he bought Mr M a second hand iPhone for his birthday in 2017 and that the mother subsequently told him it was not working properly. The father took it for repair. A few days after he had done so, he noticed a new phone attached through his iTunes account and the next time he spoke to Mr M, Mr M said that the mother had purchased him a new iPhone.
The father deposed that he instructed his solicitor to prepare a parenting plan in August 2016 and to send it to the mother. It was drafted and sent to the mother’s solicitor on 9 September 2016. A response was sent by the mother’s solicitor to the effect that the mother would not discuss the parenting plan unless and until the parties had attended formal mediation. He then made contact with U Counsellors to start the mediation process and intake interviews were scheduled for November or December 2016. The father deposed that in February 2017, he was told by U Counsellors that they could not advance the mediation process because the mother had not completed the intake procedures.
During cross-examination, the father asked the mother about her understanding of the law in relation to parental responsibility. She gave evidence that she was aware that there is a presumption, at law, that it is in the children’s best interests for their parents to have equal shared parental responsibility. She denied that – in the exercise of parental responsibility or otherwise – she made decisions about the time the children were to spend with him by herself.
The mother recalled a letter from the father’s lawyer sent on 19 August 2016 in which the father raised difficulties with spending time with the children over the preceding three weekends and seeking that alternative time arrangements be made to accommodate his impending overseas travel. The father proposed that X and Y spend time with him on the weekend of 20 to 21 August 2021.
The father put to the mother that she refused permission for the children to spend time with the father. She disagreed. She gave evidence that on the relevant weekend, the father collected Y on Friday afternoon and that Mr M and X were dropped to his house on Saturday evening. She gave evidence that within 30 to 45 minutes of their arrival, the father messaged her saying he had a lot of work to do and proposed that she collect them the following morning, earlier than had been agreed.
The father suggested that when he collected Y, she was “shoved out” and that he was denied the opportunity to say hello to Mr M or to X, who had previously said he had wanted to spend time with the father. The mother denied this, saying Mr M was not at home and that X did not indicate that he wanted to go with the father.
The father then put to the mother that for three to four weekends in a row around 19 August 2016, the mother refused to agree to make the children available to spend time with him. The mother could not recall. It is difficult, however, to accept the proposition put by the father when the photographs annexed to his affidavit include pictures of the father and, or the children (or some of them) date stamped 7 August 2016 and 14 August 2016.
The father asked the mother if she recalled conflict at or around the time that he and Ms P announced they were expecting a baby (which, it will be recalled, was in 2016). The mother recalled that at that time, the children were all attending activities and that the father felt it was imposing on his time with them. She believed it was in the children’s best interests to continue with those activities at the time.
She agreed that she received a draft parenting plan in late August 2016, exchanged through the parties’ solicitors. She was asked if she considered it. She said she did, but that she did not think it was appropriate for the children. She said it was drafted without prior consultation or discussion. She considered it was possible that she asked the father not to contact her directly and to communicate through solicitors at that time.
The father suggested to her that discussion about the parenting arrangements was initiated through the solicitors. The mother took issue with this, saying it was not a discussion, it was a draft parenting plan that was provided. The father suggested to the mother that the parenting plan was a starting point for discussion by negotiation and that he had sought her input through his solicitor. The mother’s response was somewhat equivocal. She replied that it may have been. She said that there was a requirement to attend mediation before being presented with a parenting plan. As I understood her evidence, she was resistant to discussing the parenting plan through lawyers in circumstances where mediation had not occurred.
The father asked her whether she had taken any step to attempt, or engage, in alternative dispute resolution. The mother replied she had not, and that that was a mutual position.
She recalled that she had been provided with an invitation to attend mediation in or around November 2016. She thought – but could not clearly remember – that she had attended an initial two hour class about post separation parenting, and, or a thirty minute intake interview.
Evidence about exercising parental responsibility
The mother gave little affidavit evidence about the way parental responsibility was exercised or the way in which major long-term decisions were made about the children.
The father gave no affidavit evidence of the way in which he sought to contribute to making long-term decisions about the children.
During cross-examination, the father asked the mother to offer any example of an effort she made or a time at which she sought his input into the exercise of parental responsibility after separation. The mother responded to the effect “I point out that I sought financial support and I consider that falls under the banner of parental responsibility”. Otherwise, she gave evidence that she had asked for his assistance to take the children to activities. She gave evidence that she sought the father’s consent to travel overseas with the children. She also gave evidence that in 2016 both X and Y were enrolled in a primary school that was a feeder school for the local high school, which did not require the father’s input. As I understood her evidence, there were no long-term major decisions such as religious or medical decisions that had been required.
Insight into the children’s needs
Elsewhere in the evidence, I have made reference to the father having sought to engage with the children during their time with him or in his letters to them about the parenting dispute. This does not appear to me to be a child focussed approach, and is likely to serve only to embroil the children in the parental conflict.
Conclusions
To the extent that the father may have sought to spend time with and communicate with the children from separation until early 2017, I am satisfied that the communication between the parents was poor at the time. It appears uncontroversial that by the latter half of 2016, the parents were communicating only through their lawyers. A parenting plan may be created after parties engage in mediation, but there is no legal requirement that parties engage in mediation to enter into a parenting plan. Mediation and pre-action procedures are required where parties seek court orders. There is nothing to preclude parents from engaging in negotiations through solicitors to make informal written agreements about parenting arrangements, and it appears a missed opportunity that it did not occur here.
However, given the father’s evidence about the quality of his relationships with the children and his attempts to spend time with and communicate with them, it is baffling why he took no step to initiate family law proceedings himself. He had a solicitor to assist him. The parties were already in court on property issues. He had sought – through his solicitor – to make parenting arrangements in 2016. And yet, no application for parenting orders was made until late 2017, when the mother sought to travel with the children. This, too, appears to have been a missed opportunity.
Whether the mother did, or did not, encourage the children’s time with the father; whether the father was, or was not, responsive to text messages about taking the children to activities; whether either party reached out to the other about decision making for the children are all matters that – whilst important at the time – are less significant today given the strength of the children’s views and their ages and stages of development. The evidence and submissions on this particular issue of parental capacity and participation lead me to the conclusion that whatever positive attributes each of them has, individually, as a parent, they cannot bring those attributes together in a co-operative and effective co-parenting relationship.
Each parent appears suspicious and unforgiving of the other. There is no evidence of effective communication between them at any time. I could find no evidence of anything upon which they agree. I am satisfied that there is no co-parenting relationship between the parties and the evidence does not identify that there is any therapeutic intervention or course that can remedy that.
The impact of change on the children
The orders proposed by the mother and the Independent Children’s Lawyer maintain, in effect, the parenting arrangements the children have become accustomed to. If those orders are made, there will be no material change in the children’s circumstances.
The orders proposed by the father – that is, a shared care arrangement – would see a seismic shift in the children’s circumstances. They would go from living with their mother to shifting between the parents’ respective households in a shared care arrangement. This is clearly contrary to their expressed views and I consider it would be disruptive and upsetting to them. I do not consider that the children would cope with such an arrangement.
Having regard to their ages, and stages of development, both X and Y are capable of “voting with their feet” and if required to spend time with the father against their wishes, I consider it more likely than not that they would take steps to return to the mother’s household, where they have lived day in, day out since separation.
Even when the question of orders for time less frequently than a shared care arrangement are contemplated, it would represent a significant shift in the children’s circumstances. Again, such orders would be contrary to the children’s views and, as the Family Consultant observed in the Chid Inclusive Conference memorandum, it is possible that any order for X and Y to spend time with their father would be futile and result in them experiencing further stress.
The Family Consultant opined that any order for time between the children and the father would render them vulnerable to a loss in self-esteem because they would come to perceive that their father and the court had not heard them, and that their wishes had not been respected. She opined that any order for time may only serve to cause the children to resent the father and, potentially, hinder any possibility that they may independently and voluntarily resume a relationship with him at some future point.
These matters cause me to consider that a change in the children’s circumstances such as that proposed by the father, or even a change whereby orders are made that they spend time with him for periods less than he proposes, would cause the children stress and has the capacity to harm any prospect that their relationships with the father may be healed in the future.
Any family violence and the need – if any – to protect the children
The evidence filed by each party and, or, the matters reported by each party during the Child Dispute Conference and the Child Inclusive Conference informs that each contends the other has engaged in family violence. The mother contends that the father was controlling and aggressive and the father contends that the mother was controlling and bullying.
It was not controversial that there are not – and have not been – any relevant family violence orders in place.
Notwithstanding the concerns raised by each party about the issue of family violence, this was not a case where either contended that there was a need to protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence.
Whilst both parties seemed to agree that there was no effective communication between them, neither attributed this to any history of family violence as between them.
The impact of further litigation
It seems that since the time of separation, the parents have been in conflict and dispute about both parenting and property matters, both inside and outside of the court system. X and Y have been exposed to that conflict and their comments to the Family Consultant suggest that they wish they had not been.
They have participated in interviews with the Independent Children’s Lawyer and with a Family Consultant and they have lived with an awareness that their parents are in conflict.
If the matter were to return to court, they would be in their mid to late teenage years. It is possible that if further court proceedings ensued, they would need to be consulted about their views either by an Independent Children’s Lawyer, or a Family Consultant, or both. Even if this did not occur, the evidence tends to suggest that they would come to learn of the proceedings.
I consider that further litigation would be damaging for X and for Y. Their comments during the Child Inclusive Conference suggest that it would anger and frustrate them. It would have the potential to distract them from study and their extra-curricular activities at an important stage in their lives.
I place significant weight on the need to make orders that are least likely to lead to further litigation.
Determing the children’s best interests: Discussion
The father referred me to two decisions in which the court observed the importance and benefit to children of having a relationship with each parent, and made orders to facilitate those relationships where it was evident to the court that a parent would not engage in co-parenting or allow a relationship to take place: Dawson & Wright [2018] FamCA 266 (per Cronin J) and Ralton & Ralton [2017] FamCAFC 182 (per Bryant CJ, Strickland and Aldridge JJ).
There is reference in each of those cases to the benefits to children of having a meaningful relationship with each parent and it is clear that in each of those cases, the parental conflict was high and the children’s relationships with a parent had broken down such that they were, effectively, estranged or at risk of becoming estranged.
Each case must, however, turn on its own facts. In Dawson & Wright, Cronin J was confronted with a factual matrix which included allegations of sexual abuse and his Honour was determining interim – rather than final – parenting orders. The factual matrix before me is different. In Ralton & Ralton, the Full Court was hearing an appeal on specific issues that occurred during a final hearing. Their Honours were not engaged in the same fact finding exercise which falls to a trial judge determining a matter at first instance.
Although the parties do not agree why the children became and have remained resistant to spending time with and communicating with the father, it is not controversial that for a period of over four years now, the children have refused to spend time with him. Their views are strongly held, they are long-standing and the children have each articulated why they have taken their respective positions. Even if they have sided with the mother against the father as a form of psychological defence (as considered possible by the Family Consultant), I am not satisfied that their views have been reached in a vacuum or as a consequence of parental alienation.
As children grow into adolescents, they begin to expect a greater say in the way they spend their time and the people with whom they spend it. This expectation grows as children move through their teenage years and as they approach adulthood when they become independent in the eyes of the law.
X is now aged 15 years and Y is 14 years. The Family Consultant observed that each of them appeared to want a greater degree of autonomy in determining the nature and extent of their relationships with the father and that at their ages and stages of development, their views would typically carry weight.
Support for the Family Consultant’s observation about the children’s desire for greater autonomy can be found in each child’s comments to the Family Consultant about their unwillingness to abide any court order that they spend time with or communicate with the father and, or, any court order that would involve them in family therapy; and in their expressed resistance to meeting their paternal sibling, N – each choosing to revisit that matter when they become adults.
In an ideal world, children would have good quality relationships with each parent. This is reflected in the objects and the principles of the Act, and in the need for the court to consider the benefit to the child of having a meaningful relationship with each parent as one of the two primary considerations in determining a child’s best interests.
Given the children’s strident views, however, if they are to have any relationship with the father, there will need to be significant repair of their present relationships. This is a process that will require time, and history would suggest that a therapeutic approach will be required.
Given the children’s comments that they will not attend for family therapy, even if court orders are made that it occur, it is unlikely that either of them would willingly attend the therapist’s room. They are too old to be physically brought to an appointment, and they are at an age and stage of development where it is unlikely that they could be encouraged or cajoled to attend against their wishes. But, even if the children could be directed to attend family therapy, court orders can only do so much. They cannot make a young person engage in any meaningful way with any therapist, nor can they make the young person take on any suggestion the therapist may offer or to respond to any invitation the therapist might make to them to open up about their thoughts and feelings.
These matters, then, cause me to consider that unless and until X and Y decide they want to spend time with or communicate with the father or to participate in family therapy, no order will succeed in changing their minds.
Furthermore, the Family Consultant opined that court orders for time and, or family therapy that are contrary to the children’s wishes may, in fact, do greater harm than good. She identified the potential for such orders to lead to resentment which, in turn, may stymie the children voluntarily reaching out to the father in the future.
What orders, then, should be made?
Where should the children live?
I am comfortably satisfied that the children should live with the mother. Any other order would be contrary to their long-standing and strongly held views.
What orders should be made about time and communication?
The mother referred me to the decision of Judge McNab in Yapp & Wyndham [2020] FCCA 2122 in support of her contention that a shared care arrangement requires parents to be able to exercise a high degree of co-operation. His Honour was considering there an application for interim orders, which is a different decision to that which I have to make and, in any event, his Honour was making orders in relation to a child aged around eight years of age. He did not have views and wishes expressed in strong terms by adolescent children as is the case here.
I do not consider that an order that time occur at a specified frequency or duration is in either child’s best interests. The evidence satisfies me that not only would the children resist such an arrangement, but it would also be harmful to them and would potentially cause even further damage to their relationship with the father both now and in future years.
There is no therapeutic intervention, parenting course or other support identified by any of the parties that causes me to consider that the children’s relationships with the father might be repaired or restored such that I could be confident that time might occur after certain pre-conditions have been met.
To the extent that the issue of family therapy was raised throughout the proceedings, I am satisfied that even if an order were made for it to occur, the children would resist it and that it may, in fact, do more harm than good to their future relationships with the father.
Recognising that the children are at an age and stage of development where they can “vote with their feet” it remains possible – if somewhat unlikely – that the children may alter their view and wish to spend time or communicate with the father. I am satisfied that if either of them wished to do so, they each feel comfortable communicating that to their mother and they each feel confident she would facilitate it. Even if she did not, they are old enough to take steps to reach out of their own volition.
The mother’s proposed orders for time are as follows:
(a)The children shall only spend time with the father as agreed between the parties, taking into account each child’s current views and wishes; and
(b)Should X and/or Y express a wish to spend time with or communicate with the father, then the mother will facilitate such time and communication as may be agreed between the parties.
The Independent Children’s Lawyer’s proposed orders for time are as follows:
(a)That X and Y shall each spend time with the Father as agreed between the parties taking into account each child's views and wishes; and
(b)In the event either X or Y express a wish to spend time or communicate with the Father in the future, the Mother is to do all acts and things necessary to arrange such time and/or communication.
The distinction between the competing positions is slight, but, in my view, important. The mother’s proposed form of orders restricts the possibility of time to occasions where it is agreed between the parents. To the extent that the children might express a desire to spend time with or communicate with the father to her, she is only required to facilitate that time if the parties agree about it.
The Independent Children’s Lawyer’s proposed form of order is, in my view, less restrictive (even if only slightly so) and places a stronger obligation on the mother to facilitate time and communication should the children express a wish for it.
In my view, the Independent Children’s Lawyer’s proposal is less restrictive of the children’s relationships with the father should they choose to re-engage with him, and for that reason, I consider that those orders better meet the children’s best interests.
Parental responsibility
Equal shared parental responsibility
The father seeks an order that the parents have equal shared parental responsibility. The mother contends that such an order is simply unworkable. The mother referred me to the decision of Picton & Alleva [2021] FCCA 10 in support of her contention that where parties are in high conflict, it is not in the children’s best interests that orders for equal shared parental responsibility be made. I reiterate the comments made earlier that each case must turn on its own facts. The Act requires me to presume that it is in the children’s best interests that their parents hold equal shared parental responsibility unless I am satisfied that there has been family violence, or unless the evidence satisfies me that that presumption should be rebutted.
Where an order is made that parents have equal shared parental responsibility and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, the order is taken to require:
(a)The decision to be made jointly by the parents; and
(b)Each parent to consult the other in relation to the decision to be made about the issue; and
(c)Each parent to make a genuine effort to come to a joint decision about that issue.[3]
[3] Section 65DAC.
Clearly, then, where an order is made for equal shared parental responsibility, it requires parents to exercise skills of listening and discussion and the capacity to compromise or change their views in light of the other parent’s opinion.
The co-parenting relationship here has none of those characteristics. I could find no evidence of any instance in which the parents were able to discuss and reach mutual agreement on any matter. I have no confidence that they could do so in relation to any long-term or major decisions concerning the children.
The parties’ affidavit material, including annexures; their comments made during the Child Dispute and Child Inclusive Conferences; and their submissions at hearing, were devoid of any positive comment made by one about the other.
Given the children’s ages and stages of development, it appears that there are low prospects of a decision being required in the exercise of parental responsibility. However, circumstances can change and I cannot exclude the possibility that X or Y may want or need to change schools, or that there may be a medical decision that must be taken.
If an order is in place that the parties have equal shared parental responsibility, there are two risks. The first is that the parental conflict would delay a decision being made for the children, and their educational or medical needs would go unmet for an unreasonable period of time. The second – and in my view more likely – risk, however, is that one of the parents would return to court and pursue further litigation. This, in my view, would be disastrous for X and Y.
For these reasons, I am satisfied that the presumption of equal shared parental responsibility has been rebutted by the evidence and that it is not in either X’s or Y’s best interests that such an order is made.
Is an order about parental responsibility required?
Under the Act, each parent of a child has parental responsibility, subject to any order of the court (see section 61C). Accordingly, there is not always a need to make an order for parental responsibility and here, if the orders are silent on the issue, then the parents would each have parental responsibility.
Whilst the prospects of a decision being required for either X or Y appear low, as identified above, there are risks to the children if a decision is required and the parental conflict gives rise to delay or prompts a return to court.
There has been no order in place about parental responsibility to date. Each of the children has been enrolled in and attended school and there is no evidence that their medical needs have gone unmet.
There have, however, been court proceedings on foot since December 2017. This decision will bring those proceedings to a conclusion. Ideally, the parties will not return to court. I reiterate my earlier observation that such an outcome would be disastrous for both X and Y and I place significant weight on this.
Because I consider that the impact of the children of a return to court by either parent on any issue is profound, I consider that it is in their best interests for an order to be made about parental responsibility to ensure that there is clarity for the parties and for any school, medical or therapeutic service provider about the way in which long-term major decisions for the children are to be made.
What order, then, should be made about parental responsibility?
The mother and the Independent Children’s Lawyer each seek an order that the mother have sole parental responsibility for the children.
Such an outcome is consistent with the children’s expressed views. It reflects their lived reality since separation. Where the children are to live with her, and where they appear happy, healthy, articulate and confident, I am comfortably satisfied that she is more than capable of making good decisions for the children.
Accordingly, I am satisfied that an order should be made that the mother have sole parental responsibility for the children.
Orders about travel
The mother and the Independent Children’s Lawyer seek orders that would permit the mother to obtain travel documents for the children and to take them outside of Australia.
Travel is a wonderful opportunity for children. At the time the proceedings commenced, the parties were unable to reach agreement on a proposed trip to Country L. Although the father had declined to give consent to the travel, citing concerns that the mother was a flight risk and that Country L was an unsafe destination, orders were made to enable the travel to occur. The mother and the children returned.
I am satisfied that whilst the mother has family in Country L, her life is here in Australia. She has maintained stable employment. She owns property. She has a network of friends. All of the children have been raised and educated in Australia. I can see no evidentiary basis for I the children’s names to be placed on the Airport Watchlist as the father seeks and so I decline to make those orders.
There is nothing in the evidence that causes me to consider that if the orders are made as sought by the mother and the Independent Children’s Lawyer, that she will remove the children from Australia permanently or for an unreasonably long period of time. If the opportunity for travel presented itself, I consider that there is no prospect that the father would give his consent for the children to travel with the mother and I consider that there is no prospect that he would sign any application for passports or other travel documents that are required. Unless an order is made for overseas travel, if the opportunity arose, it would require the mother to return to court to seek orders. I cannot countenance this as being in X or Y’s best interests.
For those reasons, I am satisfied that it is appropriate to make the orders for the issue of passport documents and for overseas travel as proposed by the mother and the Independent Children’s Lawyer.
The mother seeks an additional order that if she requires the father to sign any document, deed or instrument to record his consent to the children entering and travelling within any overseas country, that he be required to sign and execute such document (including having it witnessed if required) and return them to the mother within 14 days. In the event he fails or neglects to do so, she seeks that a Registrar be appointed pursuant to section 106A of the Act to undertake the task, upon being provided with an affidavit verifying the father’s refusal or failure to sign the requisite documents. She seeks an order that if she is required to obtain a Registrar’s signature, that the father pay her costs of doing so on an indemnity basis within 21 days of any written demand by her legal representative that he do so.
The mother submitted that this order is required because if she has the opportunity to travel to Country L, there is a requirement that she obtain the father’s consent before entering or travelling through the country, even where court orders are in place.
I consider that the orders sought by the mother in this regard are reasonable. Where I have no confidence that the father would give his consent for travel, I consider there is a risk that even if the mother were to seek his signature he may not comply with an order that it be given. In those circumstances, unless an order is made pursuant to section 106A of the Act, any plan to travel would be thwarted.
Insofar as the mother seeks the costs of such an application – if made – be met by the father on an indemnity basis, I am not satisfied that such an order should be made.
Whilst I accept that it may be necessary for the mother to invoke those provisions, the starting point for an order for costs is that each party bears his or her own costs, unless there are circumstances that justify the making of a costs order: section 117(1). When determining what order – if any – should be made about costs, consideration of the matters set out at section 117(2A) is required including, relevantly, the financial circumstances of the parties, their respective conduct, and whether the application was necessitated by a failure of a party to comply with court orders. Where I cannot predict all of the circumstances in which the mother might be required to invoke the order made pursuant to section 106A, nor the parties’ respective financial circumstances at an unknown future point, it appears to me that the order sought by the mother pre-emptively determines the costs issue.
During the course of submissions, the father sought to press an application that if orders were made permitting the children’s travel with the mother, that the same orders should be made in his favour. No evidence was led by him in support of his application. He gave no evidence of his connection to Australia or his intentions for overseas travel. No notice of the application was given to the mother or the Independent Children’s Lawyer of his intention to seek such an order. The evidence does not satisfy me that the children’s relationships with the father are presently such that it is in either of their best interests to travel overseas with him and I decline to make the orders he sought.
The father’s application for ancillary orders
The father sought a number of ancillary orders that:
(a)Each parent keep the other notified of the children’s contact details;
(b)Each parent keep the other informed if the children suffer a serious illness or injury, and each inform the other of significant medical, dental and therapeutic treatment provided to the children and that each parent be entitled to attend such appointments;
(c)Each parent be entitled to obtain information from the children’s schools about their educational information and progress;
(d)Each parent be at liberty to attend school functions and events and extra-curricular activities;
(e)Each parent be listed as an emergency contact person at the children’s schools;
(f)Prevent either parent from enrolling the children in activities that would impinge on the time the children spend with the other parent; and
(g)Restrain each parent from denigrating the other.
In relation to those orders:
(a)The letters sent by the father to the children have included his contact details. The children are all old enough to have mobile phones and should they wish to initiate contact with the father, I consider that they have sufficient information to enable them to do that independently. I do not consider an order is required in this respect.
(b)Where the children are resistant to spending time or communicating with the father, I consider that the orders he seeks about information being provided to him about their medical conditions (even if serious) and treatment, or about his attendance at their appointments, would be perceived as intrusive by the children and is not in their best interests.
(c)I consider that an order that the father be entitled to obtain information about the children’s educational progress is not consistent with their views about the relationship they wish to have with him. Having regard to the children’s ages and stages of development, I consider it is unnecessarily intrusive and is not in their best interests.
(d)An order that each parent be at liberty to attend school functions and events and extra-curricular activities also appears to be inconsistent with the children’s views about the relationship they want to have with the father. To date, there have been no orders to preclude the father’s attendance, but the father gave no evidence of having made any attempt to attend such occasions or events. I do not consider such an order is necessary now or that it would be in the children’s best interests that it be made.
(e)An order that each parent be listed as an emergency contact person at the children’s school would, in my view, be potentially harmful to the children. Where they do not wish to have communication with him, his attendance upon them in an emergency situation could be distressing to them.
(f)The orders made about time and parental responsibility obviate the need to make orders restraining either parent from enrolling the children in extra-curricular activities.
(g)Having regard to the extent to which the children have been exposed to the parental conflict to date, I consider that any order now seeking to restrain one parent from denigrating the other will serve no purpose.
The Independent Children’s Lawyer’s application for costs
An order is sought that the father pay the Independent Children’s Lawyer’s costs of $4,879, within 28 days, unless granted an exemption by Legal Aid NSW. As I understand the application, that sum represents half of the costs incurred by the Independent Children’s Lawyer throughout the proceedings. It covers the cost of disbursements and the cost of the attendance of the Independent Children’s Lawyer and her counsel at the final hearing.
The court may make an order for costs in favour of the Independent Children’s Lawyer in such proportion as it considers is just: section 117(3). It must not do so if, relevantly, it considers that a party would suffer financial hardship if the party had to bear a proportion of the Independent Children’s Lawyer’s costs.
The Independent Children’s Lawyer has played an important and valuable role in these proceedings. She has met with the children on a number of occasions, taking proactive steps to place their views before the court. She has actively engaged with each of the parents to explore the possibility of resolution of the proceedings. She acted as intermediary to assist the parents to agree upon letters to be sent by the father to the children, going so far as to engage with the father about the ways in which his letters might better open up channels of communication with the children.
Given that both parents were self-represented at the final hearing, counsel for the Independent Children’s Lawyer provided significant assistance to the court in making submissions about the legal principles applicable to the numerous preliminary applications that were made by the father and about the parenting matter.
The father appears to be a low income earner. The mother included evidence of Child Support Assessments that inform he has been in receipt of significantly reduced income since in or around 2016. To the extent that I have been able to find a dollar amount of his income in recent times, it appears in the letters sent by the Child Support Agency to the mother, annexed to her affidavit.
As I understand the evidence, there has been some variation in the quantification of the husband’s income for child support purposes because the husband has not submitted various tax returns. To the extent, however, that there is evidence about the husband’s taxable income for child support purposes, it appears to be contained in a letter written by the Child Support Agency to the mother on 23 March 2021. In that letter, they advised her of the child support payable by the father in the new child support period commencing on 1 May 2021. In that letter, they provisionally estimated the husband’s income at $52,638 based on the 2019 – 2020 financial year.
The father came to court unprepared to engage in the final hearing. He had filed no material in support of the parenting matter. Significant time was spent giving him the opportunity to make child care arrangements, prepare documents and submit them to the court. Significant time was spent dealing with applications made by him to rely on documents that were provided after the final hearing had commenced. The conduct of the hearing on 30 June 2021 satisfied me that had these delays not occurred, the matter would have completed in one day.
The Independent Children’s Lawyer forecasted her view about the difficulty in making parenting orders as sought by the father, in 2018. She provided the children’s views and wishes statement to each parent in 2019. In 2020, she wrote to the parties to express her view that the orders proposed by the father were not in either child’s best interests. The orders made reflect the concerns the Independent Children’s Lawyer has expressed for many years.
The work of the Independent Children’s Lawyer is funded through the taxpayer. Those funds are not without limit, and there are a large number of families who call on those funds. The father has been wholly unsuccessful, and given all of the evidence, including the Child Inclusive Conference memorandum, it must have been apparent to him that his prospects of succeeding on his application were poor.
I consider that these circumstances justify the making of an order for payment of the Independent Children’s Lawyer’s costs by the father.
Because the father is a low income earner, I consider that an order that he pay costs of $4,879 is likely to cause him financial hardship. If an order for costs in that amount was made against him, it would represent almost 10 per cent of his income, as provisionally estimated by the Child Support Agency in March 2021. His household includes not only himself, but Ms P and their child, N. Proportionally, ten per cent (or close thereto) of his income is significant and is likely to cause him some degree of financial hardship. I consider that an order that he pay the costs in the fixed sum of $1,000 is more appropriate having regard to the evidence available about his income. It represents about one per cent of the provisional estimate relied on by the Child Support Agency and it accommodates the possibility that the father’s income may, in fact, be less than the provisional estimate. Nothing in the evidence causes me to consider that his income would be greater than that estimate.
I am aware that the father may apply for a waiver of those costs, or seek to make an arrangement to pay those costs in instalments through Legal Aid directly should he be in receipt of no income at all.
Conclusion
For the reasons given, I consider that the orders made herein are in each of X and Y’s best interests.
I certify that the preceding two hundred and forty-seven (247) numbered paragraphs are a true copy of the Reasons for Judgment of Judge M Neville. Associate:
Dated: 14 December 2022
SCHEDULE ONE: Mother’s minute of order
1.That the mother have sole parental responsibility for Mr M, born in 2004 (“Mr M”), X, born in 2007 (“X”) and Y, born in 2008 (“Y”), (collectively “the children”) including but not limited to travel outside of the Commonwealth of Australia, education, religion and medical decisions.
2.The children live with the mother.
3.X and/or Y shall only spend time with the father as agreed between the parties, taking into account each child’s current views and wishes.
4.Should X and/or Y express a wish to spend time with or to communicate with the father, then the mother will facilitate such time and communication as may be agreed between the parties.
5.Pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children, MR M, born in 2004; X, born in 2007, and Y, born in 2008, are each entitled to have an Australian travel document including but not limited to an Australian Passport, and to give effect to this Order, the Mother is permitted to complete, sign and lodge any application for issue and/or renewal of each child's Australian passport, or any other document required to allow each child to travel outside the Commonwealth of Australia, without the need to obtain the Father’s consent.
6.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for each child upon application of the Mother alone in accordance with Order 5 hereof.
7.The mother be permitted to travel with the children outside of the Commonwealth of Australia pursuant to these Orders without the need to obtain the written consent of the father, and in this respect the mother will provide the father with appropriate notice of the travel and the relevant information regarding the travel.
8.In the event that the mother requires the father to sign any document, deed, affidavit or instrument to record his consent to the children, or any of them, entering and travelling within any overseas country, including but not limited to Country L to which the mother is permitted to travel by virtue of these Orders, then within fourteen (14) days of service upon him of all such documents which require his signature to record consent for travel, the father must:
8.1Duly sign and execute each document as requested by the mother or her representative, including having all such documents witnessed by a qualified witness where required;
8.2Return all such documents in original form, duly signed, executed and witnessed, to the mother or her representative.
9.In the event that the father refuses or neglects to execute any document, deed or instrument requested of him by the mother or her representative pursuant to order 8, a Registrar of the Federal Circuit Court of Australia, Sydney Registry, is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign and execute all such documents, deed and instruments in the name of the father and to do all acts and things necessary to give validity and operation to such documents, deeds and instruments upon the Registrar first being provided with verification of such refusal or failure of the father by way of affidavit.
10.Should the mother be required to invoke the provisions of order 9 subsequent to first giving the father not less than seven (7) days of her intention to do so, the mother’s costs of and incidental to having a Registrar sign and execute any document, deed of instrument in the name of the father shall be paid by the father on an indemnity basis and within twenty one (21) days from the date of a written demand for costs by the mother’s legal representative.
11.All outstanding parenting applications in relation to the children be and hereby are withdrawn and dismissed.
12.Each party bear their own costs.
SCHEDULE TWO: FATHER’S MINUTE OF ORDER
1.That the mother and father have equal shared parental responsibility for the children, Mr M born in 2004, X born in 2007 and Y born in 2008 ("the children").
2.That the children shall live with the mother and father in a shared care arrangement.
3.That the mother be restrained from removing them and/or causing or allowing the children to be removed from the Commonwealth of Australia.
4.That the Australian Federal Police place the names of the children, Mr M born in 2004, X born in 2007 and Y born in 2008 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the watch list until further Order of the Court.
5.Each parent shall facilitate all reasonable requests of the children to communicate with the other parent when in their care.
6.Each parent shall notify the other as soon as is reasonably practicable in the event of any serious illness or injury affecting the children or any of them whilst the children are in that parent's care.
7.Each parent shall keep the other advised of all significant medical, dental and other therapeutic treatment arranged for the children or any of them and each shall be at liberty to attend any and all such appointments and consult with any person providing such treatment directly.
8.Each parent shall keep the other advised of their residential address, landline telephone number and mobile telephone number and shall advise the other parent of any changes within 7 days of such changes occurring.
9.Each parent shall forthwith do all acts and things necessary to authorise any schools (or preschools) attended by each of the children to send directly to the other parent, at the other parent's expense (for the purpose of this Order a copy of these Orders is sufficient authorisation):
a.A copy of each child's school reports, as they become available.
b.A copy of each child's school photos, if requested and paid for by the requesting parent.
c.A copy of any notice or newsletters parents would receive from the school as they become available.
10.Each parent is at liberty to attend all functions and activities at the children's schools (or preschools) to which parents are invited as well as any extra-curricular, community, sporting or other activities in which the children or any of them is involved to which parents are invited to attend.
11.Each parent shall be listed with each child's school (or preschool) and before and after school care provider as a person to be contacted in the case of an emergency (for the purpose of this Order a copy of these Orders is sufficient authorisation).
12.The mother is restrained by way of an injunction from making any arrangements for the children which are likely to impact on the father's time with them.
13.Neither parent shall enrol the children or any of them in any activities that are likely to impact upon the other parent's time with the children without first obtaining the other parent's permission to do so.
14.Each of the parents is restrained by way of injunction from denigrating the other parent including by way of using electronic communication or social media including but not limited to Facebook, Twitter and the like.
15.Costs
SCHEDULE THREE: INDEPENDENT CHILDREN’S LAWYER’S
MINUTE OF ORDER
1.That the Mother have sole parental responsibility for the children, MR M, born in 2004; X, born in 2007, and Y, born in 2008 ("the children").
2.That the children live with the Mother.
3.That X and Y shall each spend time with the Father as agreed between the parties taking into account each child's views and wishes.
4.In the event either X or Y express a wish to spend time or communicate with the Father in the future, the Mother is to do all acts and things necessary to arrange such time and/or communication.
5.That pursuant to Section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children, MR M, born in 2004; X, born in 2007, and Y, born in 2008, are each entitled to have an Australian travel document including but not limited to an Australian Passport, and to give effect to this Order, the Mother is permitted to complete, sign and lodge any application for issue and/or renewal of each child's Australian passport, or any other document required to allow each child to travel outside the Commonwealth of Australia, without the need to obtain the Father’s consent.
6.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for each child upon application of the Mother alone in accordance with Order 5 hereof.
7.That for the purposes of section 65Y(1)(c)(ii) of the Family Law Act 1975, the Mother is permitted to take or send the children (or any of them) outside the Commonwealth of Australia without the need for the Father’s consent.
8.That within twenty eight (28) days of the date of these Orders the Father shall pay to Legal Aid NSW the sum of (dependent on whether matter concludes on Day 1, 2 or 3 of final hearing: $2,992.50 or $3,935.75 or $4,879), being the costs of independent legal representation for the children Mr M, born in 2004, X born in 2007, and Y born in 2008, unless granted an exemption by Legal Aid NSW.
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