Kearney & McMaster
[2023] FedCFamC2F 1081
•25 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kearney & McMaster [2023] FedCFamC2F 1081
File number(s): CAC 2574 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – Parenting – during final hearing the Father frequently indicated that if he could not revert to the previous equal time arrangement he would simply wait till his older children, on their own volition, moved back with him and his focus would remain on his two younger children from his current relationship till that happened – imprudent choices by the Father effectively to prioritise his younger children from one relationship over his older children with the Mother – inability for Father to see the importance for all of his children to have a relationship with him and with their siblings – significant allegations of family violence. Legislation: Family Law Act 1975 (Cth) ss. 60CA, 60CC(3)(a) – (m), 65DAA Cases cited: Bondelmonte v Bondelmonte (2017) 259 CLR 662
Collu & Rinaldo [2010] FamCAFC 53
F and S (2005) FLC 93-208
Fox v Percy (2003) 214 CLR 118
Godfrey & Saunders (2007) 208 FLR 287
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Isles & Nelissen (2022) 65 Fam LR 288
In the Marriage of Kress (1976) 13 ALR 309
Lee v Lee (2019) 266 CLR 129
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Partington v Cade (No.2) (2009) 42 Fam LR 401
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
Sigley v Evor (2011) 44 Fam LR 439
Vontek & Vontek [2017] FamCAFC 28
Zane & Allan (2008) FLC 378
Division: Division 2 Family Law Number of paragraphs: 146 Date of last submission/s: 21 April 2023 Date of hearing: 8 – 9 December 2022 and 3 February 2023 Counsel for the Applicant Mr G Howard Solicitor for the Applicant Parker Coles Curtis Counsel for the Respondent Ms S Baker-Goldsmith Solicitor for the Respondent JS Family Lawyers Independent Children’s Lawyer McGregor Family Law ORDERS
CAC 2574 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KEARNEY
Applicant
AND: MR MCMASTER
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
25 AUGUST 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All previous parenting Orders are discharged.
2.The Mother have sole parental responsibility for the children X (born in 2008) and Y (born in 2012) (‘the children’).
3.The Mother is to keep the Father informed, in writing via a parenting application, of any major long-term decisions regarding the children including, but not limited to, education, health and living arrangements.
4.The children shall live with the Mother.
5.Commencing immediately, Y shall spend time with the Father one day each alternate weekend from 9:00am to 5:00pm, unless otherwise agreed in writing between the parties.
6.Upon request by the Independent Children’s Lawyer at any time, but on no more than one occasion per calendar month over a 3-month period, the Father shall, within 48 hours of such request, undertake supervised urinalysis drug and alcohol screen testing (“the testing”):
(a)with such testing to occur at a pathology centre or other place approved by the Independent Children’s Lawyer and in accordance with the Australian/New Zealand Standard applicable to the procedure for the collection, detection and quantitation of drugs of abuse and alcohol in urine;
(b)the Father is to bear the cost of the testing; and
(c)the results of the testing, on each occasion, be forwarded, as soon as possible, to the Independent Children’s Lawyer and the Mother.
7.Upon compliance with Order 6, and receipt of results showing no illicit substance use or excessive alcohol use within a 3-month period, Order 5 is discharged and Y shall spend time with the Father each alternate weekend from 10:00am Saturday to 4:00pm Sunday.
(a)In the event the Father does not comply with Order 6 herein, Order 5 will remain in effect until such time as the Father can provide the Independent Children’s Lawyer and the Mother with results showing no illicit substance use or excessive alcohol use over a 3-month period.
8.Following the commencement of time arrangements in Order 7, the Father engage and complete 2 parenting courses from the following list:
(a)Keeping Kids in Mind; and/or
(b)Understanding the Impacts of Trauma on a Child’s Development; and/or
(c)Engaging Adolescents.
In the alternative, the Father provide evidence to the Independent Children’s Lawyer and the Mother of his enrolment and 6 months of attendance in the NN Program or a recognised Anger Management Course addressing the same issues and of similar duration.
9.Upon compliance with Order 8, and evidence provided to the Mother and Independent Children’s Lawyer, Order 7 is discharged and Y shall spend time with the Father each alternate weekend from after school (or 3:00pm on a non-school day) Friday until before school (or 9:00am on a non-school day) on Monday (or Tuesday if there is a public holiday).
(a)In the event the Father does not comply with Order 8 herein, Order 7 will remain in effect until such time as the Father can provide the Independent Children’s Lawyer and the Mother with evidence of his compliance with Order 8.
10.Following the commencement of the time arrangements in Order 9, Y’s time with the Father will increase to 5 nights per fortnight, being each alternate week from after school (or 3:00pm on a non-school day) Wednesday until before school (or 9:00am on a non-school day) Monday, unless otherwise agreed in writing, in the event the Father provides the Independent Children’s Lawyer and the Mother with evidence of the following:
(a)A Hair Follicle Test result covering illicit substances and alcohol use for the previous 3 months showing no illicit substances use or excessive alcohol use; and
(b)Completion of all 3 parenting courses listed at Order 8(a) – (b);
In the alternative, to Order 10(b):
(c)Completion of the NN Program.
11.In the event the Father does not comply with Order 10 herein, Order 9 will remain in effect until such time as the Father can provide the Independent Children’s Lawyer and the Mother with evidence of his compliance with Order 10.
12.X shall spend time with the Father during the times that Y is spending time with the Father in accordance with her wishes, or at any other times as agreed between the parties in writing.
School Holidays
13.Upon compliance with Orders 6, 8 and 10, the Father shall spend school holiday time with Y as follows:
(a)For one half of the Term 1, 2 and 3 NSW Gazetted school holidays being the first half in odd numbered years and the second half in even numbered years.
(i)For the purpose of Order 13(a), the first half of the school holidays commences at the end of the last day of the school term and concludes at midday on the Saturday of the school holidays unless otherwise agreed and the second half of the school holiday commences at midday on the middle Saturday of the school holidays and concludes at 4:00pm on the Sunday prior to the commencement of the new school term.
(b)For the Term 4 Summer/Christmas school holidays, unless otherwise agreed in writing, on a week-about basis commencing the first week in odd numbered years and the second week in even numbered years.
14.For the purposes of school holiday time, the time-with arrange in Order 10 is suspended and recommences on the first weekend of the new school term
Special Occasions
15.Y shall spend time with his Father on Father’s Day from 9:00am until 5:00pm if this day occurs on a day that the children would not be spending time with his Father as per these Orders.
16.Y shall spend time with his Mother on Mother’s Day from 9:00am until 5:00pm if this day occurs on a day that Y would not be spending time with his Mother as per these Orders.
Changeovers
17.Unless otherwise agreed in writing, changeovers that do not occur at the children’s schools shall occur in a public place and preferably facilitated by a third party.
Communication
18.Except in the case of an emergency, the parents shall communicate in relation to issues concerning the children’s care, wellbeing and development only via a parenting application.
19.In the case of an emergency involving either of the children when they are in the care of either parent, that parent shall contact the other parent as soon as practicable.
(a)For the purpose of this Order, both parents are to provide contact details to the other parent and advise of any change in these details within 24 hours of any change occurring.
20.Both children are at liberty to contact the parent that they are not currently spending time with at all reasonable times. The parent that they are with shall facilitate the children having this communication including but not limited to having access to a charged mobile device.
Medical
21.These Orders authorise the Mother and the Father to contact any treating health professional that the children shall attend upon to request relevant information regarding the children and for the health professional to release to either parent any such information that a parent may usually receive.
22.For the purpose of Order 21 the Mother shall advise the Father in writing within 7 days of the date of these Orders the contact details of all health professionals that the children may attend upon and advise the Father of any change or additions to these details within 48 hours of any change.
Education
23.These Orders authorise the Mother or the Father to contact any educational facility that children shall attend to request any relevant information regarding the children and for the educational facility to provide such information that a parent may usually receive including but not limited to school reports, notifications, photographs and newsletters. A copy of these Orders to be provided by the parents to the educational facility.
24.Both parents are at liberty to attend any school or extracurricular activity that the children may be involved in that a parent would usually be invited to attend UNLESS expressly advised by the school not to attend.
Travel
25.Pursuant to section 11(1)(b) of the Australian Passport Act 2005 the parents are authorised to apply and obtain passports for the children.
(a)The Mother is authorised to apply and obtain a passport for the children without the Father’s consent if this consent has been sought and after a period of 14 days the Father has provided no response or a refusal.
26.The passports of the children are to be held at the Court Registry in CITY B and be made available to both parties upon notice provided to the other party.
27.Orders 28 and 29 do not permit the Father to travel overseas with the children until the Father has provided evidence to the Mother of his compliance with Orders 6, 8 and 10 of these Orders.
28.Either parent shall be permitted to travel overseas with the children provided that they provide to the other parent not less than 21 days prior to the date of the departure, the following:
(a)A copy of the travel tickets showing the return date to Australia.
(b)Details of where the children will be staying while overseas.
(c)Contact details of where the children can be reached while overseas.
29.Pursuant to Section 65Y of the Family Law Act, either parent is permitted to remove the children from the Commonwealth of Australia for a period of up to 4 weeks per year.
Further Orders
30.Both parties are restrained from exposing the children to any Family Violence in accordance with Section 4AB of the Family Law Act 1975 (Cth).
31.Both parties are restrained from denigrating the other parent or a member of the other parent’s family in the presence or hearing of the children, or allowing any other person to do so, including via electronic communication or social media.
32.Both parties are restrained and prohibited from using illicit substances or exposing the children to other persons affected by illicit substances.
33.Both parties are restrained from consuming alcohol above the legal driving limit when the children are in their respective care.
34.Both parties are restrained from discussing ongoing court proceedings, or these court proceedings with either of the children or allowing any other person to do so.
35.It is requested the Independent Children’s Lawyer remain engaged for a period of 12 months, after which time they are hereby discharged.
AND THE COURT NOTES THAT:
A.Only upon notification being given to the parties of the date of the delivery of the judgment did the Father seek to provide information to the Court (without the Mother’s consent) including medical records and other matters. There has also been some indication that the Father was planning on providing this information anyway upon his return to the City B sometime next week, however, thus far there has been no Application before the Court to reopen the evidence.
B.An interim injunction order was made in the City B Magistrates Court in mid-2023 restraining the Father from viewing, accessing, disseminating and/or distributing the Mother’s medical records from Suburb C Medical Centre. Legal representatives for the Mother further advise that Order was made final on or about 22nd June 2023. Assuming this to be the case it would mean that the restraint was made on a final basis therefore any attempt by the Father to access or use medical material by the Mother would be in contravention of that Order.
C.In the circumstances outlined by the parties, unless and until there is a formal application before the Court, the matter is proceeding to Judgment as indicated and it is a matter for the Father as to what or how he proceeds with any Application thereafter.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
As with most family law matters in recent times, volatility and multiple issues are, regrettably, standard. How families generally, and children in particular, cope with the variety, frequency and severity of stressors and change in their lives is a constant dilemma and difficulty, all of which then gets “transferred” to the Court to address. Rarely, if ever, can a Court, after the event, “fix” any of the multiple, intractable and/or traumatic matters (both cause and effect) on display. Often the best the Court can do is provide some form of “palliative care”, not in the sense of imminent death, but in the sense of the Court becoming the legal or judicial equivalent of the hospital emergency department where various forms of triage are necessary, sometimes only modest care and treatment can be given and people are “transferred” for more intense therapeutic treatment elsewhere. And also like an emergency department, one case of extreme, and usually urgent, difficulty is quickly replaced by another.
Most of these general comments apply to the delicate and troubling parenting issues on display in the current parenting matter, which formally concern two children, the eldest of whom is now aged 15 years, and the youngest aged 11 years. Because of the age of the older daughter of the relationship, everyone agrees that she will continue to live with her Mother and spend time with the Father according to her wishes. Accordingly, the only issue to be addressed is the nature of, and qualifications to, the youngest child’s time with the Father.
For all of a number of layers of procedural complexity prior to the trial, and sometimes during it, which included the Father protesting (more than once) that he would effectively abandon his response to the Mother’s Application and “surrender” the children to the Mother and simply wait for them to grow up further and make their own decisions about “time with” arrangements, in many ways, the issues and qualifications may be summarised this way.
First, in 2018, the parties agreed upon an equal time arrangement in relation to both children, commencing in 2019. Secondly, the co-parenting relationship between the parents has declined markedly in recent years. Thirdly, one incident of family violence in particular involving the Father but which impacted upon [now] 11 year old Y was a relevant “trigger” for the 2018 Orders to be re-visited. Fourthly, a number of other instances of family violence have shown a degree of semi-regular volatility on the Father’s part, notably when under stress, fatigue and/or frustration of one kind or another. Fifthly, in my view, a central issue or feature of this litigation is that the regularly self-represented Father is his own worst enemy. His ability to self-regulate his emotions and responses was regularly on display during the attenuated hearing in December 2022 and equally in February 2023. He also showed a concerning lack of insight, or at least, a refusal to want to accept that any view, other than his own, was either reasonable or in fact better. His view and submissions alternated between, on the one hand, giving some allowance and showing some flexibility (e.g. while preferring to return to a shared care arrangement with the Mother, he accepted that, over a modest period of time, he would agree to a 5 nights per fortnight with him and 9 nights with the Mother), and on the other hand, taking a view that it was either “his way or the highway.” Often the latter was in the ascendancy. Easy or relaxed compromise was not part of his make-up or character. Regrettably, this was very much to his detriment, and in turn, of little assistance to the Court, and ultimately of no assistance to the children’s relationship with him. Indeed, there is an old Australian adage that says that someone would “prefer a fight to a feed.” In many respects, the Father fits this blunt comment, accepting that he doubtless loves his children, but it is always on his terms with little or no yielding to much sacrifice on his part, including to undertake various alcohol tests or parenting courses.
By way of further, preliminary comment, his roguish and regularly rough and tumble character is complemented by his partner, Ms D, who is both the Mother of his two younger children (E and F), and who owns the company that employs him. Ms D is quite the character in every sense of the word, as well as a genuinely, wonderfully loyal companion and supporter of the Father, even when she has been the brunt of some very difficult times with him. He is very fortunate to have Ms D in his corner.
For all of the twists and turns of the protracted trial, and the vagaries of the evidence (of which there was an abundance, albeit that it was more colourful than helpful), viewed objectively: (a) the Mother was not, and is not, running a “no contact case”; (b) the children want to spend time with the Father; and (c) the Father fudges and protests too much about the difficulties in complying with Orders, such as in relation to parenting courses and the like in circumstances where, in so many other matters, parents in much more dire circumstances bend over backwards to do anything to spend more time with their children.
For the reasons that follow, there shall be Orders whereby the Father’s time with his son Y will gradually increase until it gets to a 5:9 arrangement (5 nights per fortnight with him). But in order for this time to progress, he has to undertake some courses, and also alcohol testing. It is up to him whether he does so or not, but if he does not undertake the testing and other things, his time with Y cannot and will not progress. The ball is in his court. If he does not undertake the protective measures prescribed by the Court, one logical conclusion is that, most regrettably, the Father puts his interests above those of his children. Here I say “children” because what impacts his time with Y affects Y’s time with his younger siblings, E and F.
The Orders made by the Court today are in the children’s best interests, that is, the best interests of X and Y. The Orders, with some more, and some less, “tweaking”, largely follow those proposed by the Independent Children’s Lawyer (“ICL”). They are also in the best interests of all the siblings. They need each other. The question becomes whether the Father will prejudice/prioritise one group of his children against (or over) the other. He can characterise his actions anyway he wants. However, anything other than what is laid out here, especially playing and preferencing one group of his children over the other, is completely awry and inappropriate, and unfortunately, does not put the interests of the children first.
Orders sought by the Applicant Mother
The Applicant’s revised Orders sought were contained in the Minute of Orders Sought emailed to Chambers on 6th December 2022. An oral amendment was made during the Final Hearing and subsequently emailed to Chambers on 20th March 2023; the amended Minute of Orders sought were as follows (emphasis in original):
APPLICANT MOTHER’S MINUTE OF ORDERS SOUGHT
1.That leave be granted to the Mother to rely upon her affidavit in reply, filed on 2 December 2022.
2.That the Mother have sole parental responsibility for the children [X] born [in] 2008 and [Y] born [in] 2012 (“the children”).
3.Upon making any long term decisions relating to the children’s education, health or religious participation, but excluding in emergency situations, the Mother is to notify the Father of her decision in writing via the Talking Parents app.
4.That the children live with the Mother.
5.That the child [X] spend time with the Father in accordance with her wishes at times that the child [Y] is spending time with the Father as set out in these Orders.
6.That from the date of the Orders until the date the Father satisfies Orders 7 to 10 inclusive, the child [Y] spend time with the Father as follows:
a.For one two-hour supervised visit in December 2022, to be supervised by [G Contact Centre] or [H Contact Centre] (“the Supervision Service”);
b.For four, two-hour supervised visits each year in January, April, July and November, with the sessions to be supervised by the Supervision Service;
c.For one two-hour supervised visit each year on Father’s Day to be supervised by the Supervision Service.
7.That the Father’s supervised time with [Y] pursuant to Order 6 (a) to (c):
a.May include the children [E] and [F] in attendance, but must exclude any other person, except as agreed in writing by the parents and approved by the Supervision Centre;
b.Is to occur on a weekend day, at times nominated by the Supervision Service, or in the alternative if the parties agree in writing, it may occur on a weekday at times nominated by the Supervision Service;
c.The child [X] may elect to attend the visit, or not attend the visit, in accordance with her wishes.
d.The costs of the Supervision Service be payable by the Father.
e.The restraints upon the Father at Order 14 apply.
f.The Supervision Centre be authorised to suspend, terminate or cancel any visits between the Father and the children in the event of non-compliance by the Father with this Order and Order 14.
g.The Supervision Centre be authorised to suspend, terminate or cancel any visits in full or in part in the event either or both children express a wish to return to their Mother’s care.
8.That the Father enrol in and complete the ‘NN Program’ provided by the Domestic Violence Crisis Service, and Anger management program as may be agreed in writing with the Mother.
9.That upon completion of the Men’s Behavioural Change program and an Anger Management Course, the Father provide to the Mother documentary evidence of his completion of those programs.
10.That the Father arrange and provide appropriate hair samples to The Drug Detection Agency, [J Company] or such other drug testing agency as may be agreed between the parties necessary to complete hair panel (often referred to as hair follicle) testing, with the sample to be provided on a supervised basis and in accordance with Australian Standards for collection and testing on a supervised and chain of custody basis and provide an analysis and testing report addressing:
a.Use of alcohol and the extent of alcohol use by the Respondent Father;
b.Use of illicit and non-prescription drugs and extent of use of illicit drugs and non-prescription drugs by the Respondent Father;
c.To include, for the purpose of the hair sample, a sufficient sample (presuming it is available) to analyse and comment upon use of any drug or alcohol in the preceding 6-month period on a month-by-month basis and failing an available sample, for the maximum period that can be tested on the sample taken;
d.Pending provision of the above sample, the Respondent Father shall be and is hereby restrained from cutting or causing the cutting or removal of any hair from his person.
11.That the Father is to provide his hair follicle test results to the Mother within 7 days of receipt.
12.That upon the Father complying with Orders 8 to 11 inclusive, and on condition that the Father’s hair follicle test result is negative for alcohol and illicit substances, the Father spend time with [Y] once each fortnight as follows:
a.On eight occasions for 3 hourly visits, with supervised changeovers to be conducted by [G Contact Centre] or [H Contact Centre] (“the Supervision Centre”) and with the time to be spent at a public place such as a park, public pool or shopping centre;
b.Then, for a further eight occasions on a Sunday from 12noon until 4pm on an unsupervised basis with the time to be spent at a public place such as a park, public pool or shopping centre;
c.Then, for a further eight occasions on a Sunday from 12noon until 4pm on an unsupervised basis and this time may occur at the Father’s residence;
d.Thereafter, on Sunday from 10am to 4pm and such other alternate or additional times that may be agreed between the parties in writing.
e.That the Father’s time with [Y] be suspended during the Christmas Festive period from 24 December each year until 1 January in the next year and in lieu of any time the Father would have spent within that period, he is to spend time with the children from 3pm to 7pm on Christmas Day except as otherwise agreed in writing between the parties.
f.That the Father may elect for [Y] to spend time with his half-siblings [E] and [F] on the birthdays of [E] and [F] for a period of two hours as agreed in writing between the parents and in the absence of agreement, from 4pm until 6pm;
g.The Father may attend at [Y]’s schools and extra-curricular activities as agreed in writing with the Mother.
13.That the Father’s time with the [Y] pursuant to Order 12.
a.Other than in relation to Order 12 (e) to (g), it is to occur on a weekend day, at times nominated by the Supervision Service where supervised handover is required. In the alternative if the parties agree in writing, it may occur on a weekday subject to the availability of the Supervision Service where required;
b.The child [X] may elect to attend the visits with the Father, or not attend the visits with the Father, in accordance with her wishes;
c.The restraints upon the Father at Order 14 apply.
d.That the Father pay any costs associated with the Supervision Service.
e.That the Father must return the children to the Mother’s residence at any time the children request to return to the Mother’s care. The Mother is not obligated to provide make-up time to [Y] in the event [Y] requests to return to her care but the parties may agree upon make-up time in writing.
f.That if the Father is to be absent for more than half of any time [Y] is to spend with him pursuant to Order 12 (a), (b) and (c) then that visit shall not proceed and is to be rescheduled by agreement between the parties;
g.That if the Father is to be absent for more than half of any time [Y] is to spend with him pursuant to Order 12 (d) then that visit shall not proceed and there is no obligation upon the Mother to provide make-up time. The parties may agree upon make-up time in writing;
14.That the Father by restrained by injunction from:
a.Consuming alcohol or illicit substances 24 hours prior to or during any occasion he is spending time with the children.
b.Indicating to the children that he prefers a different visitation arrangement with them or allowing any other person to do so on his behalf;
c.Accessing the children’s mobile phones or any other electronic smart device they have with them during periods the children are in his care or allowing any other person to do so on his behalf;
d.Discussing with the children the Court proceedings in this Court, any proceedings relating to Family Violence in which he, the Mother or the children are parties or protected persons, his criminal proceedings or allowing any other person to do so on his behalf;
e.Showing to the children any document filed in these proceedings or in the [City B] Magistrates Court proceedings filed on behalf of the Mother or allowing any other person to do so on his behalf;
f.Blaming the Mother for his criminal convictions or for the children’s care arrangements or allowing any other person to do so on his behalf;
g.Denigrating the Mother or the Mother’s family in the presence of the children or allowing any other person to do so including but not limited to alleging that the Mother has defamed him, has fabricated evidence against him and that she has committed perjury;
h.Engaging in family violence as defined by Section 4B of the Family Law Act while the children are in his care, or allowing any other person to do so.
AND IT IS NOTED THAT the Father is to take positive steps to ensure that no other person or agent engages in the behaviours restrained by Order 14, including removing the children from being in the presence of that person and returning the children to the Mother.
15.That without admissions, the Mother be restrained by injunction from:
a.Accessing the children’s mobile phones or any other electronic smart device they have with them during periods the children are in his care or allowing any other person to do so on his behalf;
b.Showing to the children any document filed in these proceedings or in the [City B] Magistrates Court proceedings filed on behalf of the Mother or allowing any other person to do so on his behalf;
c.Denigrating the Father or the Father’s family in the presence of the children or allowing any other person to do so;
d.Engaging in family violence as defined by Section 4B of the Family Law Act while the children are in his care, or allowing any other person to do so.
16.That changeovers are to occur at the Supervision Centre or where the Father’s time with the children is occurring pursuant to Order 12 (b), and where the Father’s time with [Y] occurs without supervision or supervised changeovers, then changeovers are to occur at the [Suburb K] shopping centre.
17.That the Father may communicate with [Y] on one occasion each week for not more than 30 minutes on Mondays 7:30pm by telephone or video call with the Mother placing the call to the Father’s mobile telephone number. The child [X] may elect to participate in the conversations with her Father at those times, or elect not to, in accordance with her wishes.
18.That the children be at liberty to communicate with the Mother at all times they are in the care of the Father, or any person the Father requests care for the children during his time with them pursuant to these Orders.
19.That the parents will use the ‘Talking Parents’ application to communicate with each other in relation to the children’s care, wellbeing and development.
20.That the Mother be granted leave to provide to Services Australia documents filed in these proceedings pertaining to the Father’s income, employment and financial circumstances for the purposes of seeking a change of assessment of child support for the children [X] and [Y].
21.That pursuant to Section 11(1)(b) of the Australian Passports Act 2005 passports are to be issued for the children [X] born [in] 2008 and [Y] born [in] 2012 (“the children”).
22.That both parties will do all things and acts to facilitate the children maintaining current passports including providing consent, verbal or written, for passports to issue for the children as requested by the Australian Passport office or by the Mother.
23.The Mother shall retain possession of the children’s passports.
24.That pursuant to Section 65Y of the Family Law Act the Mother be at liberty to travel overseas with the children for periods not exceeding four weeks in each calendar year, and these Orders are authenticated consent for the purposes of Section 65Y of the Act.
25.That the Mother notify the Father of her intention to travel overseas with the children and provide to him a copy of the return flight itinerary for their travel not less than 21 days prior to their departure. That in the event the Mother’s travel is to occur at times when the children are due to spend time with the Father pursuant to these Orders, then make-up time shall occur on a date nominated by the Mother.
26.These Orders authorise the Mother and the Father to contact any treating health professional that the children shall attend upon to request relevant information regarding the children and for the health professional to release to either parent any such information that a parent may usually receive save for in the event the child [X] does not consent to such information being provided to either parent.
27.For the purpose of Order 26 the Mother shall advise the Father in writing within fourteen days of the date of these orders the contact details of all specialist medical professionals that the children may attend upon and advise the Father of any change or additions to these details within 48 hours of any change.
28.These Orders authorise the Mother or the Father to contact any educational facility that children shall attend to request any relevant information regarding the children and for the educational facility to provide such information that a parent may usually receive including but not limited to school reports, notifications, photographs and newsletters. A copy of these Orders to be provided by the parents to the educational facility.
29.In the event of any dispute as to the interpretation, implementation or enforcement of these Orders (including any claim by a party that it should be varied) the parties shall first attend a Family Dispute Resolution Conference with an FDR practitioner agreed by the parties and comply with the Pre-Action procedures of this Court to make a genuine attempt to resolve the dispute
Orders sought by the Respondent Father
The Respondent’s Orders Sought were contained in a Case Summary Document filed 12 December 2022 after they had been amended on day two of the Final Hearing and handed up to the Court at this time; they were as follows (emphasis in original):[1]
[1] It might be noted here that, at various times during the Final Hearing, the Father was represented by Counsel, pursuant to a grant under s.102NA of the Family Law Act 1975 (Cth) (hereafter in these reasons “the Act”).
PROPOSED ORDERS SOUGHT BY THE FATHER
1.All previous parenting Orders are discharged.
2.The parents have equal shared parental responsibility for the children, [X] born [in] 2008 and [Y] born [in] 2012.
3.That [X] spends time with the parents in accordance with her wishes.
4.After the completion of the Anger Management course referred to in Order 7, the Father shall spend time with [Y] as follows for a period of 5 weeks:
a.From after school or 3pm Friday until 9am or before school on the Monday.
5.After the conclusion of the time referred to in Order 4, the Father shall spend time for a period of 5 weeks as follows:
a.From after school or 3pm Friday until 9am before school on the Tuesday.
6.After the conclusion of the time referred to in Order 5, Y] shall live with the with parents for a 7-day block period, from after school or 3pm on Friday until 3pm the following Friday.
COURSES
7.That within 14 days, the Father shall do all acts to enroll in an Anger Management course and forthwith provide the parties evidence of same.
8.That the Father engage and complete the following parenting courses within 12 months and at the next available date offered and forthwith provide the parties copies of the completion certificate:
a.Keeping Kids In Mind.
b.Understanding the Impacts of Trauma on a Child’s Development.
c.Engaging Adolescents.
SPECIAL DAYS
9.[Y] shall spend time with his Father on Father’s Day from 9am until 5pm if this day occurs on a day that the children would not be spending time with his Father as per these Orders.
10.[Y] shall spend time with the Mother on Mother’s Day from 9am until 5pm if this day occurs on a day that [Y] would not be spending time with his Mother as per these Orders.
11.On each of the children’s birthdays, with the parent who they are not currently not spending time with is to make both of the children available to spend time with the other parent as follows:
a.If the child’s birthday falls on a school day, from 3:00pm or after school until 9:00am or the start of school the following day.
b.If the child’s birthday falls on a day on which the child is not required to attend school for a period of at least four hours at a time agreed between the parties no less than 48 hours prior.
12.On [E]’s and [F]’s birthdays, the children shall spend time with the Father from 3pm afterschool until 9am the following morning or 10am until 5pm if the birthday falls on a weekend.
13.That the parties shall spend time with the children during the Easter and Christmas period as follows:
a.In even years, with the Father from 3pm on 20 December until 3pm on 27 December;
b.In odd years, with the Mother from 3pm on 20 December until 3pm on 27 December;
c.In odd years, with the Father from 3pm 27 December until 3pm on 3 January;
d.In even years, with the Mother from 3pm on 27 December until 3 January;
14.That for the Easter period, the children shall spend time with the parents as follows:
a.With the Father in odd years from 3pm Easter Thursday until 9am on the Tuesday.
b.With the Mother in even years from 3pm Easter Thursday until 9am on the Tuesday.
15.That for the purposes of Order 14, any other time the children spend with the parents pursuant to these Orders shall be suspended.
CHANGEOVERS
16.For the purpose of these Orders, all changeovers shall occur at McDonalds, [Suburb L] where changeover does not occur at the children’s school.
COMMUNICATION
17.Except in the case of an emergency the parents shall communicate about issues involving the children’s care, wellbeing and development via the Talking Parents App.
18.In the case of an emergency involving either of the children when they are in the care of either parent, that parent shall contact the other parent forthwith and in any case within 24 hours of the incident occurring. For that purpose of this Order, both parents are to provide contact details to the other parent and advise of any change in these details within 24 hours of any change occurring.
19.Both children are at liberty to contact the parent that they are not currently spending time with at all reasonable times. The parent that they are with shall facilitate the children having this communication including but not limited to having access to a charged mobile device.
20.The mother and father shall inform each other in writing in the event that either of them is incapable of caring for the children or either of them for a period greater than 24 hours, and shall offer the other parent the opportunity to care for the children or either of them for a period of the other parent’s incapacity and the parent being offered the care of the children shall respond as soon as reasonably practicable and in any event no less than one hour prior to the commencement of the care period.
MEDICAL
21.These Orders authorizes the Mother and the Father to contact any treating health professional that the children shall attend upon and request relevant information regarding the children and for the health professional to release to either parent any such information that a parent may usually receive.
22.That for the purpose of Order 21, both parents shall advise the other parent in writing within seven days of the date of these orders the contact details of all health professionals that the children may attend upon and advise the other parent of any change or additions to these details within 48 hours of any change.
23.That both parents are required to follow any recommendations made by the children’s treating medical practitioners and provide the children with any prescribed medication, as directed by the children’s treating medical practitioners.
EDUCATIONAL
24.That within 14 days, the Mother shall provide to the Father all details of the children’s current enrolments and future enrolments.
25.That the Mother shall list [Mr McMaster] as the Father of the children on any application for enrolment at any school the Mother proposes the children attend and in doing so, shall direct and authorise the school to email the Father copies of all school reports for the children at the email address of [the father].
26.These Orders authorise the Mother or the Father to contact any education facility that the children shall attend and to request any relevant information regarding the children and for the educational facility to provide such information that a parent may usually receive including but not limited to school reports, notifications, photographs and newsletters.
27.That each of the parties to request that any school or other education facility that the children attend when communicating with the parents, are to ensure that both parents are included in all communications.
28.That the Father’s solicitor shall be at liberty to provide to the children’s school, a copy of these Orders.
29.Both parents are at liberty to attend any school or extracurricular activity that the children may be involved in that a parent would usually be invited to attend.
30.That neither party shall enrol the child in an extra-curricular activity which would occur during the other parent’s time with the child without the consent of that parent.
RESTRAINTS
31.Both parents are restrained from exposing the children to family violence in accordance with Section 4AB of the Family Law Act.
32.Both parents are restrained from denigrating the other parent or a member of the other parent’s family in the presence or hearing of the children or allowing any other person to do so, including any electronic communication or social media.
33.Both parents are prohibited and restrained from using illicit substances or exposing the children to any persons affected by illicit substances.
34.Both parents are restrained from consuming alcohol above the legal driving limit when the children are in their respective care.
35.Both parents are restrained from discussing ongoing Court proceedings, or these Court proceedings with either of the children or allowing any other person to do so.
36.That either parent is restrained from relocating the children’s primary residence from the [City B] region without the other parent’s written consent or Court Order.
TRAVEL
37.That neither parent shall be permitted to apply for a passport for either of the children until the time pursuant to Order 6 commences and thereafter, the following shall apply:
a.Pursuant to section 11(1)(b) of the Australian Passport Act 2005 the parents are authorised to apply and obtain a passport for the children.
b.Either parent shall be permitted to travel overseas with the children provided that they provide to the other parent not less than 21 days prior to the date of the departure, the following:
i.A copy of the travel tickets showing the return date to Australia.
ii.Details of where the children will be staying while overseas.
iii.Contact details of where the children can be reached while overseas.
c.Pursuant to Section 65Y of the Family Law Act, either parent is permitted to remove the children from the Commonwealth of Australia for a period of up to 4 weeks per year.
OTHER
38.That the Independent Children’s Lawyer is hereby discharged.
39.These Orders are inconsistent with the Family Violence Orders made by [City B] Magistrates Court and these Orders shall prevail.
NOTATION
A.The Anger Management course is currently scheduled to commence on 7 February 2023 and conclude on 7 March 2023.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer’s Orders sought were contained in the Amended Minute of Orders emailed to Chambers on 24th February 2023 subsequent to the Final Hearing, but which had been generally identified in the course of the hearing; they were as follows (emphasis in original):
It is ordered that:
1.All previous parenting orders are discharged.
2.The Applicant Mother, [Ms Kearney], (the Mother) shall have sole parental responsibility for the children [X] born [in] 2008 and [Y] born [in] 2012 (The children).
3.When making any major long term decisions regarding the children, except in the event of an emergency involving the children, the Mother shall advise the Father in writing, which may include SMS, any decisions in relation to the children’s;
a)Education
b)Health
c)Living Arrangements.
4.The children shall live with their Mother.
5.The [Y] shall spend time with his Father, [Mr McMaster] (the Father) as follows;
a)Upon the Father providing to the Mother
i)A Hair Follicle Test result covering illicit substances and alcohol use for the previous 3 months showing no illicit substances use or excessive alcohol use, and;
ii)Evidence of his enrolment and the first two months of attendance in the [NN Program] or a recognised Anger Management Course addressing the same issues and of similar duration
[Y] shall spend time with his Father once a fortnight for a period of not less than three hours at a supervised contact centre on days and times as advised by the contact centre in consultation with the parents. The Father to pay the costs of the supervised visits. These visits may include [E] and [F] and any other person as agreed in writing by the parents and approved by the Supervision Agency.
6.Upon the Father providing to the Mother evidence of his ongoing attendance in the course as prescribed in Order 5, Order 5 is discharged and [Y] shall spend time with his Father each alternate Sunday from 10am until 3pm for a period of 3 months. For the purpose of this Order supervised changeover shall occur at a Supervision centre.
7.Should the Father fail to comply with Orders 5 and 6 all time is suspended until the Orders are complied with.
8.Upon the Father providing to the Mother evidence of his successful completion of the course as prescribed in Order 5 [Y] shall spend time with his Father;
i)each alternate weekend from after school Friday until Before school Monday each alternate weekend during the School Term time.
ii)For one half of the Term 1, 2 and 3 NSW Gazetted school holidays being the first half in odd numbered years and the second half in even numbered years. For the purpose of this order the first half of the school holidays commences at the end of the last day of the school term and concludes at midday on the Saturday of the school holidays unless otherwise agreed and the second half of the school holiday commences at midday on the middle Saturday of the school holidays and concludes at 4pm on the Sunday prior to the commencement of the new school term.
iii)For the Term 4 Summer/ Christmas school holidays unless otherwise agreed [Y] shall spend time with his Father on a week about basis commencing the first week in odd numbered years and the second week in even numbered years.
i)For the purpose of Order 8 i) is suspended and recommences on the first weekend of the new school term.
9.[X] shall spend time with her Father during the times that [Y] is spending time with the Father if she wishes to do so or at any other times as agreed between the parents in writing.
10.For the purpose of these Orders should the Father be unavailable to care for the children for half of the time as set out in these Orders the time shall not proceed and may be rescheduled as agreed in writing by the parents.
Special Days.
11.[Y] shall spend time with his Father on Father’s Day from 9am until 5pm if this day occurs on a day that the children would not be spending time with his Father as per these Orders.
12.[Y] shall spend time with his Mother on Mother’s Day from 9am until 5pm if this day occurs on a day that [Y] would not be spending time with his Mother as per these Orders.
Changeover.
13.For the purpose of these orders all changeovers shall occur at supervision centre and then at the [Suburb K] shopping centre. Once the time commences and concludes on a school day then the changeover shall occur at the school on a school day.
Communication
14.Except in the case of an emergency the parents shall communicate about issues involving the children’s care wellbeing and development via the Talking Parents App.
15.In the case of an emergency involving either of the children when they are in the care of either parent, that parent shall contact the other parent as soon as practicable. For the purpose of this order both parents are to provide contact details to the other parent and advise of any change in these details within 24 hours of any change occurring.
16.Both children are at liberty to contact the parent that they are not currently spending time with at all reasonable times. The parent that they are with shall facilitate the children having this communication including but not limited to having access to a charged mobile device.
Medical.
17.These Orders authorise the Mother and the Father to contact any treating health professional that the children shall attend upon to request relevant information regarding the children and for the health professional to release to either parent any such information that a parent may usually receive.
18.For the purpose of Order 23 the Mother shall advise the Father in writing within seven days of the date of these orders the contact details of all health professionals that the children may attend upon and advise the Father of any change or additions to these details within 48 hours of any change.
Educational.
19.These Orders authorise the Mother or the Father to contact any educational facility that children shall attend to request any relevant information regarding the children and for the educational facility to provide such information that a parent may usually receive including but not limited to school reports, notifications, photographs and newsletters. A copy of these Orders to be provided by the parents to the educational facility.
20.Both parents are at liberty to attend any school or extracurricular activity that the children may be involved in that a parent would usually be invited to attend UNLESS expressly advised by the school not to attend.
Further Orders.
21.Both parents are restrained from exposing the children to family violence in accordance with Section 4AB of the Family Law Act
22.Both parents are restrained from denigrating the other parent or a member of the other parent’s family in the presence or hearing of the children or allowing any other person to do so, including any electronic communication or social media.
23.Both parents are prohibited and restrained from using illicit substances or exposing the children to other persons affected by illicit substances.
24.Both parents are restrained from consuming alcohol above the legal driving limit when the children are in their respective care.
25.Both parents are restrained from discussing ongoing court proceedings, or these court proceedings with either of the children or allowing any other person to do so.
26.Pursuant to section 11(1)(b) of the Australian Passport Act 2005 the Mother is authorised to apply and obtain a passport for the children without the Father’s consent if this consent has been sort and no response or a refusal has been obtained from the Father 14 days after the consent was sought.
27.The Mother is permitted to travel overseas with the children provided that the Mother provides to the Father not less than 21 days prior to the date of departure;
a)A copy of the travel tickets showing the return date to Australia.
b)Details of where the children will be staying while overseas.
c)Contact details of where the children can be reached while overseas.
28.Pursuant to Section 65Y of the Family Law Act the Mother is permitted to remove the children from the Commonwealth of Australia for a period of up to 4 weeks per year. These Orders serve as Authorised Consent for the purpose of Section 65Y
29.The ICL is discharged.
Applicant Mother’s Oral Evidence
The Applicant Mother’s oral evidence confirmed her initial Application in this Court included an Order that would enable her to relocate to Town N with her partner at the time. However, this relationship ceased in late 2021. Accordingly, the Order seeking sanction to relocate was unnecessary to consider.
The Mother confirmed she currently engages in therapeutic counselling approximately once per month. The Mother subsequently conceded she had not put any evidence before the Court about her therapeutic counselling.[2]
[2] T 18.
The Mother was asked about her concerns regarding Y and X in the care of Ms D, the Father’s current partner. The Mother advised she had been informed by X that Ms D would divulge things to the Father that X had allegedly not said which would lead to X being reprimanded by the Father. The Mother conceded that it had been the case that X would play the Mother and the Father against one another when she was younger, including making a claim to the Father that the Mother had smacked X in the face when she had not.[3]
[3] T 19 – 20.
The Mother was taken to an incident report from Y’s school which showed Ms D signing Y out of school after he had been injured. When asked whether the Mother had any problem with Ms D caring for Y as a guardian, the Mother retorted that she did not think she had a choice if Y was in the care of the Father. It was pointed out to the Mother that she had not sought an order in 2017 precluding Ms D from having contact with the children, however the Mother again responded that she did not think it was her choice.[4]
[4] T 20 -21.
The Mother was asked whether she deemed the incident in late 2020 between Ms D and the Father to be an isolated incident. The Mother responded that it was not, because police had been called to the Father’s residence on two other occasions due to an argument between Ms D and the Father. The Mother subsequently conceded she had also had the police attend her house for similar arguments. The Mother further conceded she had no evidence of any other incidences of physical violence between the Father and Ms D.[5]
[5] T 21.
The Mother was taken to various incident reports regarding Y’s behaviour provided by his school. It was suggested to the Mother there had been a significant series of behavioural incidents for Y, particularly in the last year. The Mother acknowledged the incident reports and conceded Y had been suspended from school in relation to one of these incidents.[6]
[6] T 24 – 25.
The issue of family violence between Ms D and the Father was again canvassed by Counsel for the Father. The Mother was asked whether, other than the late 2020 incident, if she was aware of any other incidents of family violence between the Father and Ms D. The Mother advised she only knew of the reports provided by the children regarding arguments between Ms D and the Father. The Mother conceded she was not aware of anything to the ‘level’ of the late 2020 incident.[7]
[7] T 29.
The Mother was asked if she believed the parties had difficulty co-parenting. The Mother agreed with this, and offered that in order to improve this relationship, co-parenting needed to be child focused rather than insulting or antagonising. The Mother also agreed that in order to focus on the children, contact between the parties should be kept to a minimum.[8]
[8] T 29.
The Mother was asked questions about her family violence Application filed in August 2022. It was acknowledged by the Mother she had indicated on the form that the Father had breached an FVO against Ms D. Although the matter did not proceed to trial, the Mother advised it had been her understanding that the FVO had still been ‘breached’.[9]
[9] T 33.
Questioning moved to the incident in late 2020. The Mother confirmed Y had been visibly shaken up when she collected him from the police station following the incident. The Mother also confirmed Y had attended approximately 4 sessions of counselling through M Counsellors following the incident. The Mother was asked whether, like her decision to cease the shared care arrangement following the late 2020 incident, she had similarly ceased X’s time with the Father for a period of 6 weeks in about June 2017. The Mother retorted that the parties did not have a shared care arrangement in 2017, but conceded Orders did not provide for the Mother to retain X in her care for a period of 6 weeks.[10]
[10] T 35.
Simply to interpose here, the factual detail of the late 2020 incident, which involved a somewhat intoxicated Father assaulting Ms D, resulted in the Father’s arrest. Y was in the Father’s house when the physical contest between the Father and Ms D took place, which resulted in Ms D leaving the residence. The details of the incident were set out in the Australian Federal Police Statement of Facts (this recorded the Father’s 5 charges), which became Exhibit M3, and in the “AFP Record of Evidence-in-Chief Interview” with Y, dated late 2020, which became Exhibit BA1. To say that this was a concerning incident for everyone, but especially Y, is an understatement. Ultimately, however, the charges against the Father did not proceed because Ms D wrote to the Magistrates Court, effectively pleading that the matter not proceed.
The Mother was asked her opinion of the shared care arrangement that had previously been in place between the parties. The Mother advised she did not think it had been working well as the children did not appear settled when moving between the parties’ households. The Mother was also taken to a care and protection report from March 2016 whereby she subsequently conceded she had no concerns about the children in the Father’s care at this time.[11]
[11] T 36.
Questions returned to the late 2020 incident. The Mother confirmed she had unilaterally ceased the children’s time with the Father. While the Mother advised in her Affidavit that the children did not ask for contact with their Father, the Mother conceded it was possible the children had not asked for contact because she had already told them there would be none. The Mother confirmed that she had been concerned the children would normalise the behaviour demonstrated in the late 2020 incident including physical violence. The Mother again conceded there was no evidence that the late 2020 incident was any more than a ‘one-off’ isolated incident.’[12]
[12] T 37 – 38.
The Mother acknowledged that she and the Father have different parenting styles, providing that she believed she held more compassion for the children and their individual needs. When asked whether perhaps the Father was simply stricter and imposed more boundaries with the children, the Mother advised she could not answer. When pressed by the Court, the Mother conceded the Father was stricter than the Mother in her household.[13]
[13] T 38.
The Mother was asked about an incident in September 2020 in which X had been told to catch the bus by the Father after school. The Mother acknowledged that, at that time, the Father had been trying to encourage X to push her boundaries but she had received a phone call from X in which she was upset. The Mother confirmed that after this incident, X refused to return to the Father’s care as X was afraid the Father was angry. Nevertheless, upon returning to her Father’s care shortly after the incident, X did not report any incidents or concerns regarding the Father.[14]
[14] T 39 – 40.
The Mother was questioned regarding an incident at the Magistrates Court in mid-2022. The Mother had explained in her Affidavit that Ms D had verbally abused the Mother at Court when attending for FVO proceedings. The Mother conceded Ms D was a loud person by nature, but disagreed that Ms D had spoken to the Mother in her normal tone.[15]
[15] T 41.
The Mother was also asked about a report she made to police regarding the Father having breached the FVO the Mother held against him. The Mother confirmed the Father had attended Y’s first day of pre-school. The Mother conceded there were no Orders preventing the Father from attending the preschool, nor was he required to obtain the Mother’s approval to attend Y’s first day. Nevertheless, the Mother advised there was a protection Order in place, and she had subsequently reported the breach to police. It was acknowledged the police had found no breach had taken place as the Father had taken reasonable steps to avoid coming into contact with the Mother.[16]
[16] T 44 – 45.
The Mother was also taken to an incident in July 2021 deposed to in her Affidavit whereby she recalled seeing a specific motor vehicle while visiting her former partner in Town N. The Mother conceded she did not see who had been driving the motor vehicle, that O Company have multiple vehicles, and the vehicle could have been in Town N for a purpose unrelated to the Mother.[17] “O Company” is the company/business of Ms D.
[17] T 45.
The Mother was taken to paragraph 158 of her Affidavit which referred to Y advising the Mother he had concerns about getting into trouble at the Father’s house because he was not accustomed to the rules. In particular, Y had disclosed he had been reprimanded as he wanted to play on the Xbox while his brother, E, and his sister F, were playing it. The Mother conceded this was not something that gave her concern about the Father’s or Ms D’s parenting abilities, although advised Y had been concerned.[18]
[18] T 49 – 50.
Regarding X, the Mother expressed (at paragraph 164 of her Affidavit) that X was concerned about her contact with Ms D. The Mother asked whether, perhaps, Ms D had merely been attempting to keep X involved with her half-siblings. The Mother disagreed, advising that X had been told by Ms D that the Court proceedings were the Mother’s fault and the reason X had not been spending time with the Father. It was suggested to the Mother that X could actually be playing the Mother against Ms D and the Father. The Mother disagreed as she did not see what benefit X would have in causing more tension. [19]
[19] T 50 – 51.
As part of the Mother’s Orders Sought, she proposed that the Father should undertake a behavioural course, ‘NN Program’ which required in-person attendance over a 30 week period. It was suggested to the Mother that given the Father’s role as the primary stay-at-home parent for his two younger children with Ms D, it would likely be challenging for the Father to engage in such a course. The Mother disagreed, saying that she thought this would not be unreasonable, and further disagreed this would be onerous on the Father.[20]
[20] T 59 – 60.
Questions by the ICL commenced with regard to Y’s behavioural issues at school. The Mother explained various emails that were sent between the Mother and Y’s teacher discussing rectifying these behavioural difficulties. When asked whether the Father had been updated about the nature of these discussions, the Mother acknowledged she had not kept the Father up to date with what had been occurring with the school. The Mother confirmed she assumed the Father was receiving notification of things that she was receiving.[21]
[21] T 66 – 68.
Turning to X, the Mother confirmed that she had also had reports from the school about X’s difficulty focusing in class. The Mother again confirmed that she thought such communication would also go to the Father but she had attempted to address this issue with X by advising she would not be permitted to take her phone to school if the reports continued. The Mother conceded she had not followed through on this warning despite the reports continuing.[22]
[22] T 68.
The Mother confirmed that she was seeking an Order for sole parental responsibility, acknowledging she would also inform the Father of any major decisions. The Mother acknowledged that she would likely need to ensure information from the school was going to both parents if she were granted sole parental responsibility.
Questions were also asked by the ICL regarding the incident in September 2020. The Mother confirmed that she had not been told by Ms D that, at the time the children were to be in the Father’s care, he had been remanded in custody. The Mother confirmed that she had not been advised of this until she was informed by CYPS. The Mother acknowledged that the children had not contacted her to be collected during this time. The Mother advised she had attended with Y at the police station to provide his witness statement. The Mother further advised that she felt as if the Father and Ms D had not appropriately acknowledged what Y had experienced as they did not take ownership of what had occurred that night.[23]
[23] T 69 – 71.
The Mother advised that she did not believe Ms D could act protectively for the children, particularly because of how readily she had moved on from the incident. The Mother also confirmed her concern that further incidents would not be known to the Mother if police did not attend.[24]
[24] T 72 – 73.
The Mother acknowledged the lack of trust between herself, Ms D and the Father. The Mother said that in order to work towards building this trust the Father needed to acknowledge the need for change. The Mother confirmed that she was concerned for the children’s safety when considering the orders she was seeking.[25]
[25] T 73.
The Mother acknowledged that if the Father were to spend no time with the children, it was likely their relationship with him would slowly disintegrate. Nevertheless, the Mother confirmed that she would be supportive of the children and their feelings, and would recommend or support counselling for both of them.[26]
[26] T 74.
The Mother was a somewhat distantly engaged witness. The reasons for the modesty of her evidence were not completely clear. Certainly some part of her quieter demeanour and subdued engagement could be related to the rather combustible relationship with the Father from times past. Her general lack of enthusiasm in the giving of evidence, and somewhat regular, grander adverse claims against the Father, when pressed, proved to be not quite as clear, cogent or supported, as first claimed. I do not doubt that she seeks what is best for the children, and that she will generally support the children’s relationship with the Father, with or without much enthusiasm. She was not a poor witness by any means, but her very quiet manner and almost distant – at times – engagement, made it rather more difficult to engage with her, and therefore a little more problematic better to understand either events past, current circumstances, and future hopes for the children.
Oral Evidence of Ms P
Ms P provided oral evidence as the former solicitor of the Father having sworn an Affidavit on 29th August 2022. In that Affidavit, she relevantly deposed to the following:
…
2.I was acting for the Respondent Father, [Mr McMaster] pursuant to a S102NA Legal Aid grant. This grant was received by my office on 11 August 2022.
3.On 26 August 2022, I was present at the Federal Circuit and Family Court of Australia, [City B] registry for the Interim Hearing in this matter.
4.I received a call at 9:35am from the Father’s partner, [Ms D]. I could hear a voice that I identified as [Mr McMaster]. During this phone call, [Mr McMaster] stated “fuck the system, kill the bitch”.
5.Immediately after concluding this phone call, I disclosed the threat to [Ms MM] who was appearing as Counsel for the Father.
6.[Ms MM] and formed the view that we were obligated to disclose the threat as it was a direct threat that we believed to be credible.
7.[Ms MM] and I informed the Security Officer at the Federal Circuit Court of Australia, [City B] registry of the threat first. We then disclosed the threat to Mr Howard, of Counsel for the Mother; [Ms OO], Solicitor for the Mother; and [Ms PP], the Independent Children’s Lawyer.
Ms P acknowledged the significant decision she had made to disclose to the Mother’s lawyers the contents of a phone call she had with the Father. Ms P advised that she had made such disclosures in accordance with Rule 9.2 of the Legal Professional Rules which permitted disclosure to prevent imminent serious physical harm to another person. Ms P advised she was confident with what she had heard, and that she had heard no one else on the phone other than Ms D and the Father.[27]
[27] T 62 – 63.
Questioning from Counsel for the Father confirmed Ms P had only been acting for the Father for a period of 16 days and had never met or seen the Father face-to-face either in person or by videoconference. Ms P disagreed that Ms D mostly addressed Ms P during phone calls with both the Father and Ms D. Ms P disagreed that the alleged threat contained in her Affidavit was said by someone other than the Father. Ms P also denied they she had not spoken to the Father a sufficient number of times to be able to confidently identify his voice.[28]
[28] T 64 – 65.
Oral Evidence of Mr Q
Mr Q, from the law firm that represents the Mother, affirmed an Affidavit on 18th November 2022 regarding events in May 2022 at City B Magistrates Court. Relevantly, the substance of Mr Q’s Affidavit was as follows:
…
2.[In] May 2022, I attended the [City B] Magistrates Court for a Pre-Hearing Mention for Family Violence matters between [Ms Kearney] (one of the protected persons) and the Respondent Father in these proceedings, [Mr McMaster]. [Ms R] was also present and appeared on [Ms Kearney]’s behalf.
3.Ms Kearney and I were sitting in the gallery of the Court observing the matter. I was sitting to [Ms Kearney]’s left closer to the door. Following [a] Deputy Registrar having the matter called and then making orders listing the matter for hearing, [Ms R] returned to the gallery and sat on [Ms Kearney]’s right.
4.Following the orders being made, [Mr McMaster]’s partner, [Ms D], left the Court room. [Ms Kearney] had previously identified [Ms D] to me.
5.Whilst she was leaving the Court room, [Ms D] pointed and yelled at [Ms Kearney] saying words to the effect that ‘using me to run your agenda makes me sick’. I observed [Ms D] to point aggressively at [Ms Kearney] while she said this.
6.[Mr McMaster] quickly followed [Ms D] out of the Court room.
7.[Ms Kearney], [Ms R], and I remained in the Court room for some time to allow [Mr McMaster] and [Ms D] to leave the premises.
Mr Q confirmed he had been sitting in the gallery with the Mother observing the matter. Mr Q advised he had heard Ms D speaking to the Mother, although had not spoken to her prior to hearing her make this comment but did not believe Ms D was using a ‘normal speaking level’.
Mr Q acknowledged Ms D was in the process of exiting when the comment was made to the Mother.
To state the obvious, the evidence of Ms P and Mr Q was extremely serious. This “incident” led to further Orders in City B Magistrates Court. The Father’s general response to the account of these witnesses was certainly to down-play it and to deny that he was the person who made the grave threat. In the face of the evidence of the two professional lawyers, including his own at the time, the denial and explanation were unimpressive. It may have been that, not for the first time, the Father was stressed, frustrated or similar. Volatile emotions do not justify in any way such grave and deeply concerning threats.
Applicant’s sister’s Oral Evidence
Ms S affirmed an Affidavit in the proceedings on 18th November 2022.
Ms S was asked whether she had previously raised any concerns with the Mother about anything arising from changeovers of the children that she assisted with. Ms S confirmed she had not. Ms S further confirmed that she experienced no difficulties when she undertook the changeovers prior to the incident in late 2020.[29]
[29] T 84.
Ms S confirmed that she had received a call from the Mother in July 2021 advising she had seen the Father drive past in his motor vehicle. Ms S conceded that the Mother did not advise she had seen the Father’s face, nor that she had seen the driver.[30]
[30] T 85.
Ms S was also asked about the bus incident of September 2020. Ms S acknowledged it to be important to encourage children to test their boundaries, but advised she thought, given the anxiety from which X suffers, there were other options for doing this.[31]
[31] T 86.
Similar to the Mother, Ms S attested to the children being unsettled when changing between houses in the shared care arrangement previously in place between the parties. Ms S acknowledged, as she said she herself had experienced this with her own partner’s children, that there is often a settling period following the back and forth between houses. Ms S conceded this settling behaviour in X and Y was nothing beyond, or anything that should give rise to concern.[32]
[32] T 87 – 88.
The ICL took Ms S to an incident recounted in her Affidavit from 2004. Ms S explained that the Father had arrived at the Maternal Grandparent’s house on Christmas Day angry after the Mother had left him at home. Ms S advised that the Father had threatened to damage the parties’ house at the time. Ms S conceded she had not, at any other time, personally witnessed similar incidents from the Father, although has been contacted by the Mother in similar situations.[33]
[33] T 88 – 89.
Ms S’s evidence did not take many, indeed any, matters very much further.
Respondent Father’s Oral Evidence
On the first day of the Final Hearing in December 2022, during matters of housekeeping, and to understand better the Father’s position at trial, the Court addressed the Father directly to ascertain his understanding of the position of the Mother and the ICL, as well as the recommendations by Ms T, the Family Report Writer. The Father acknowledged the recommendations made by Ms T, but advised he would not accept less than a shared-care arrangement with X and Y as he did not intend to take time away from his other children with his current partner, Ms D, in order to spend time with X and Y on a gradual basis. The Father explained that he believed it would be ‘only a matter of time’ before the older children self‑placed in his care given their ages.
Nonetheless, after a brief adjournment, Counsel for the Father advised that he remained “open” to an Order which allowed for a graduated transition of the children back into his care, however it remained a ‘deal breaker’ if this transition did not ultimately end with a shared-care arrangement.
The Father’s oral evidence commenced on the second day of the Final Hearing.
The Father confirmed that he had not spent time with X and Y since September 2020, except for their time together during the Family Report interviews.[34]
[34] T 102.
The Father was taken to his proposed Minute of Orders sought which appeared to indicate that the children would live with the Father and spend each alternate weekend with the Mother. The Father advised that this position was correct, given that his rationale was that he would seek the best possible Orders, even if this was not ultimately the outcome. The Father further provided that he thought the children needed to spend additional time with him given they had not done so for approximately two and a half years. There was further questioning regarding the Father’s proposal, however, after a little time, the Father stated that he was becoming confused.[35] After some back and forth, the Father confirmed that he would initially seek that the children live with him and spend three nights a fortnight with the Mother, before moving back to a shared care arrangement after approximately 12 months. It was suggested to the Father that this may be a way to seek revenge against the Mother for the previous two years; this was denied by the Father.[36]
[35] It is apposite to record here that the Father confirmed that he has difficulty in reading and writing. This may also indicate some difficulty in comprehension, especially in difficult situations, such as being under cross examination. Such learning difficulties, of course, are no criticism of the Father.
[36] T 103 – 106.
The Father was questioned regarding his proposition aired in Court the previous day whereby, in essence, he would ‘walk away’ from X and Y if the Court did not make Orders for him to spend substantial time with the children. It was suggested to the Father that a parent who loved their children would do anything to spend time with them, including completing appropriate courses. The Father acknowledged this, denying that he said he would not be doing any courses.[37] The Father conceded that such a decision would likely affect X and Y if he should choose to ‘walk away’ from them. The Father confirmed that he was willing to build up to a shared care arrangement gradually.[38]
[37] In this regard, I note that in the Father’s Minute of Orders Sought, he lists a number of parenting and related course he said that he would undertake.
[38] T 107 – 108.
Upon further questioning, the Father revealed he would not ‘walk away’ if the Court were to order the children to live with the Mother and spend time with the Father, for example, 5 nights a fortnight. However, should the Court order the children only spend 4 nights a fortnight with the Father, he would ‘walk away.’ When asked why he would be willing not to spend any time with the children, the Father advised he had to think about the impact on his children with Ms D, E and F.[39] In my view, this was both revealing and an unfortunate dichotomy, effectively placing one group of his children over another. Put another way, it hardly placed the interests of X and Y either above his own, and certainly quite lacked a focus on their best interests, not only in terms of their relationship with him, but also in their relationship with their younger siblings, E and F.
[39] T 109 – 110.
The Father was questioned regarding his Response material filed 30th March 2021. It was noted this was several months after the late 2020 incident and charges against the Father in relation to this incident were still pending at the time. The Father had sought that the children live with him, however, in the event the Father was not given primary care of them, the Father sought that they be removed from the Mother’s care and placed in alternative care until such time as the Court was satisfied either parent was capable of providing primary care. The Father confirmed the care arrangement which he was seeking in the alternative was for the children to be placed in foster care. The Father further confirmed that he deemed foster care to be a better outcome than remaining in the Mother’s care. The Father denied that this was sought as revenge against the Mother for the six months the Father had not seen the children. The Father said that the children had been ‘failing’ at school.[40]
[40] T 112 – 114.
The Father was taken to a number of Orders sought in his Response material filed 30th March 2021, most of which he now no longer seeks. It was again suggested to the Father that the Orders sought were a means to seeking revenge against the Mother because the Father had been angry or frustrated. The Father denied this, advising he was not angry at all and that his current position remained that the children should live in an equal time arrangement between the parties.[41]
[41] T 123.
The Father was taken to his Affidavit filed 30th March 2021 in which he advised that the Mother ‘has had multiple partners since separation, none of them long-term’. The Father was asked why he had felt this was important for the Court to know. The Father responded that he thought the children should not see partners ‘come and go’, but that he did not mean anything else by it.[42]
[42] T 126
In his trial Affidavit filed 22nd November 2022, the Father deposed that the Mother had failed to ‘exercise her time with the children on 16 occasions’ during 2015/16. The Father said that he thought it was important for the Court to know the Mother had missed these calls. The Father reiterated that he believed he was to put ‘everything’ in his Affidavit, which is what he had done.[43]
[43] T 127 – 128.
Various other matters were highlighted in the Father’s trial Affidavit which pointed to criticisms of the Mother. The Father basically confirmed his concerns when each point was raised, and reiterated that he found them to be important matters to bring to the Court’s attention.
The Father was questioned regarding his assertion that the Mother may be engaging in drug and alcohol misuse. He conceded that he had no evidence of this, but denied that he was making false accusations against the Mother in the hope of damaging her reputation.[44]
[44] T 131.
The Father said that he thought the Mother to be an appropriate carer for the children, but was nonetheless taken through various concerns he had raised in his trial Affidavit about the Mother’s alleged failure to properly supervise the children. The Father raised an incident where Y was bitten by a dog whilst in the Mother’s care. The Father reiterated that the Mother should have been ‘keeping an eye’ on Y and that it could have been avoided. The Father further said that it was the Mother’s fault and she should bear responsibility for this incident.[45]
[45] T 131 – 132.
The Father was asked questions regarding his criminal history and confirmed that, on two occasions, he pled guilty to assault and damaging property.[46] He said that he was charged with common assault and property damage after attending the Mother’s house in 2014 and punching a hole in the wall. Nevertheless, the Father said he believed that he had done nothing to justify a charge of assault. He said that he was told by the DPP that he had been charged with assault for yelling at the Mother.
[46] T 136 – 138.
The Father was then taken through the Mother’s version of events from the incident commencing in late 2014. This was so notwithstanding its somewhat historical import, which, it might be observed, was likely to be somewhat less cogent in its utility and/or force 8 years later. That said, as a significant incident of domestic violence, it was important to note it.
The Father said that the parties had separated by this point but he had not yet moved out. He confirmed that the children were asleep in the house at the time of the incident. The Father denied that he was intoxicated at the time of the incident, but conceded he had been drinking. The Father denied pushing the Mother and holding her against the wall, but again conceded he had punched the wall ‘four inches’ from the Mother’s head. The Father acknowledged he had said to the Mother ‘you’re lucky it wasn’t your head’. The Father confirmed that he had punched the wall out of frustration after the Mother had told him he would never see the children again.[47]
[47] T 141 – 140.
The Father denied he had pushed the Mother out of the house, but confirmed that he had locked the door once the Mother was outside. After further questioning, the Father also conceded that he had picked up the Mother, put her over his shoulder, and took her outside. Somewhat bizarrely, in my view, he said that he did not agree that this was assault. The Father said that he had done this because the Mother had been hitting him and he ‘had had enough of it’.[48] It might be said that the Father’s approach on this occasion had a certain primitive quality about it.
[48] T 140 – 141.
The Father was asked whether he considered the incident to be the Mother’s fault. He confirmed this was correct (in his view) as she had been sending him text messages, leading to the Father confronting the Mother and losing his temper. The Father confirmed that he regretted his actions, and that they were excessive and uncalled for.[49]
[49] T 143.
There are two dimensions or aspects to consider here. The first relates to general principle in parenting matters. The other relates to principle concerning the conduct of matters that run, in any relevant respect, on an undefended basis. In relation to parenting, I note the following outline which is taken from a range of earlier decisions.
In a number of respects, the concerns and observations that I have noted already in these reasons, and those recorded below, reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in the Court’s consideration of appellate intervention. Their Honours said (internal citations omitted; emphasis added):[66]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[66] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93], as well as the later comments by the High Court, by reference to Fox v Percy albeit in a different context and for different purposes, in Lee v Lee (2019) 266 CLR 129 at [55] – [56].
It is also important to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have due regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[67]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[67] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[68]
[68] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], admittedly in a different context to what is the situation in the present proceeding, where his Honour said (emphasis added):[69]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[69] Godfrey v Sanders (2007) 208 FLR 287.
Again noting that the current matter does not involve any “relocation” aspect, similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[70]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[70] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[71] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183].[72]
[71] McCall v Clark (2009) 41 Fam LR 483.
[72] Sigley v Evor (2011) 44 Fam LR 439.
Subject to what is said below, the repeated reference in the cases mentioned to the quality of a parent-child relationship is not relevantly dependent upon the quantity of the time spent between the two. Regrettably, the Father here seemed so often to be focussed at least as much, if not more so, upon ensuring the amount of time with the children rather than taking proper account of the quality of his relationship with them.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):[73]
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
[73] Sigley v Evor (2011) 44 Fam LR 439.
In addition to the principles already outlined, because of the unique and delicate issues in this matter, the following further principles should be noted.
First, in Bondelmonte v Bondelmonte, the High Court confirmed that as important as it is to have regard to a child’s views, they are but one of a range of considerations under part VII of the Act, nor is a Court bound to follow any such views.[74]
[74] Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34] – [35] and [43]. Of course, in considering a child’s views, the Court should also be mindful of potential consequences if Orders are made that are contrary to any expressed views of a child or children.
Secondly, it is also the case that issues of relevant “risk” can apply to situations that concern various kinds of pressure that are brought to bear on a child or children that does not otherwise constitute either physical or sexual abuse. Thus, In the Marriage of R, the Full Court said, at [177] – [179] (emphasis added):[75]
[177] For our part, we echo the view expressed by the trial judge of the serious nature of depriving the father of contact in circumstances where that appears to have been engineered by the mother, without any fault on the part of the father at all. This cannot be in a child's best interests.
[178] It also does not appear to us to be appropriate for a parent to be able to manipulate the family law system to such an extent that the other parent's hope of ever seeing the child again, rests upon the possibility that she may wish to seek him out in later adolescence or adulthood.
[179] We think that a Family Court would not be doing its duty if it were to simply give in to these sorts of considerations, except in the most extreme case and only then, when a positive determination is made that the welfare of the child requires it.
[75] In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230.
Issues and assessment of “risk” (not necessarily relating to any physical or sexual abuse) may be relevant to a parent’s general parenting capacity.[76] In the current matter, to a significant degree, it is “parental capacity” that is a central issue, in particular the parenting capacity of the Father. In this regard, it is useful to record comments, now a little time ago, from the decision in Kress, where Goldstein J said, at 319:[77]
Given the overriding consideration of the welfare of the child, the court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
[76] Among other places, see the Full Court decision in Partington v Cade (No.2) (2009) 42 Fam LR 401 at [48] and [56]. Partington v Cade (No.2) must now be read in the light of the Full Court’s recent stern qualifying comments in Isles & Nelissen (2022) 65 Fam LR 288.
[77] In the Marriage of Kress (1976) 13 ALR 309.
This is very much the case here and the Court’s delicate task in the light of the troubling, discordant evidence of the parties, and notably the evidence of the Father being so problematic.
In relation to the conduct of “undefended hearings”, it is sufficient for current purposes to record the following from the Full Court decisions in F and S, and in Zane & Allan.[78]
[78] F and S (2005) FLC 93-208; Zane & Allan (2008) FLC 378.
In F and S, at [44] – [48], the Full Court (Bryant CJ, Kay and Holden JJ) said (emphasis added):
44. This was ultimately a trial concerning the welfare of a child. The Court was obliged to pay consideration to the material before it, hear argument if any was proffered and proceed on that material to make orders that met the statutory criteria laid out in Part VII of the Family Law Act 1975.
45. The rules of natural justice provide that a party is entitled to be made aware of the date when the trial will be heard and what is being sought at that trial. The Family Law Rules 2004 provide in Rule 15.04 that an affidavit may be relied on at a hearing or trial only if it is filed and served in accordance with the Rules or an order. Rule 15.07 requires affidavits to be filed 14 days before a pre-trial conference. Rule 15.14 provides that a party who wishes to cross-examine a deponent must at least 14 days before the trial give to the party who filed the affidavit a written notice stating the name of the deponent who is required to attend for cross-examination.
46. Whilst the Court has power to vary times and dispense with compliance of the Rules, ultimately such a process should be adopted where the dictates of justice make it appropriate. The non-appearance of a party at the hearing places the judge in a difficult position when indulgences are sought by the other party to rely upon material not served in accordance with the Rules or to otherwise seek some waiver of the Rules.
47. The party who appears is entitled to expect that the proceedings will be dealt with on the day they are fixed for trial…. In Buljubasic vBuljubasic [1999] FamCA 474, (1999) FLC 92-865, 25 Fam LR 371 at para 26 Lindenmayer J, with whom Finn and Warnick JJ agreed said:
"The business of the court would come to an end if people could simply stay away from the court on the listed date for hearing and be assured that their matter would not proceed in their absence, and effectively obtain an adjournment, without merit, merely because the court felt constrained not to proceed with the matter in their absence."
48. This expectation that the proceedings will go on in the absence of a party who chooses not to attend does not relieve the Court from its obligation to provide procedural fairness to the absent party.
In Zane & Allan, although in dissent in the result, May J’s observations regarding matters of principle regarding the conduct of a hearing on an undefended basis are completely orthodox, thus, at [141] her Honour noted firstly that there can be a distinction between matters that are wholly undefended and those where there is some defence and joinder of issues. To similar effect, was her Honour’s note at [210] and [211] from earlier decisions (underlined emphasis added; italics in the original text):
[210] The trial judge also quoted from the decision of Abbott and Abbott (1995) FLC 92-582 (Fogarty, Baker and Kay JJ), where the Full Court considered the nature of an undefended proceeding, at 81,774:
It appears to us that a proceeding will be treated as “undefended” where the respondent does not challenge or put in issue any of the components of the cause of action in question. The fact that the respondent is opposed to the Court making the order in question and/or wishes to defend the granting of the order which is sought does not make the proceedings defended if the issues raised by the respondent are irrelevant to the issues constituting the cause of action.
[211] In that decision, the Full Court also cited the decision of Lanceley and Lanceley (1994) FLC 92-491 (Barblett DCJ, Frederico and Lindenmayer JJ). In that case, their Honours considered the nature of an undefended hearing, and concluded at 81,104:
Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a “judgment by default” in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief. Nevertheless, the proceedings in such a case are clearly “undefended”, and it would be a misuse of language to describe them otherwise. They certainly could not be described as “defended”.
It remains the case, as the authorities record, that the Court retains a discretion to have regard to materials filed, or not do so at all, or only to some limited degree.
In my view, having regard to the principles outlined above regarding an undefended hearing, it cannot be said that the Father never engaged with the trial or the issues in dispute. He plainly filed material. He was cross examined for the entirety of the second day of the trial, and for a very short period on the third day. He has also filed detailed written submissions. As such, it would be inappropriate for the Court to completely ignore his evidence and/or his submissions. It will be given consideration and appropriate weight in all of the circumstances. The evidence of Ms D, on the other hand, which is no formal criticism of her, cannot be given much weight at all. Her unsworn comments from the witness box cannot be given the same weight had there been proper cross examination of her.
The final observation to record here is that, given the priority both under the Act and according to much authority, the Court’s protective responsibilities are quite to the fore here. I say that, less because of any formal risk to the children from the Father’s periods of volatility (although Y has witnessed it first hand, as recounted above), but simply because of the events set out in the course of these reasons, which attest to the Father’s periodic outbursts of aggression, domestic violence frustration and a degree of unpredictability when fatigued, frustrated or worse.
Consideration and disposition
Summarily, in the light of the evidence of the parties and earlier comments in these reasons, pursuant to s.60CA of the Act, the following should be taken as formal findings by reference, seriatim, to the legislative pathway in making Orders that are in the best interests of the children, X and Y. In this regard, recalling that all parties agree that, given X’s age, she will spend time with her Father in accordance with her “wishes” or view, what follows has a primary focus upon Y.
In quite general terms, the children wish to spend time with the Father. Given Y’s age (currently 11), it is difficult to place too much weight on his rather undeveloped views.
There is no dispute or challenge that both children have a good and close relationship with both parents. This is so regarding the Father notwithstanding that they have not spent regular time with him for a considerable period of time. Their relationship with Ms D seems to be reasonably close and supportive (on her part) albeit that there have been times of stress and strain.
For the general purposes of the considerations in s.60CC(3)(c), (ca), (f) and (i), I note that there is little doubt that the households of each parent are very different. The Mother’s is rather more relaxed; the Father’s is more rigid with some emphasis upon adherence to “rules”. Given the lack of “time with” between the children and their Father for some time, it is somewhat difficult to assess accurately how much relevant engagement or involvement he has (or has had) in either decision-making regarding the children, and/or regarding the fulfilment of his general parenting responsibilities. For some time, it is clear that his involvement, and time, with them (as already noted) has been quite limited and circumscribed. There is some general communication between the Father and the children recorded, for example, in Ms T’s Report, albeit via Zoom.
More troubling, also as earlier noted, is the fact that the Father stated more than once that if he did not “get” his wish to return to a shared care, or substantial “time with”, parenting arrangement, he would simply “walk away” from the older two children, concentrate on his younger two children, E and F, and wait for X and Y to self-place with the Father. This is genuinely very concerning. His parenting priorities were and remain either very simplistic and/or quite disordered. It would be effectively and actually playing off his older children against the younger children, which could lead to issues for all children in the future because of their dislocated relationship with their siblings. They could even form resentments against the Father for his actions. Generally, it also shows very limited insight into the hugely important sibling relationships between all of the children.
There are no relevant issues relating to expense or other difficulty for the purposes of s.60CC(3)(e).
The significant family violence issues have been traversed earlier in these reasons. Even if treated as having been somewhat “sporadic”, they are serious and concerning. In this regard, although I do not need to make any formal finding in relation to who actually made the threat to kill, as recorded in the evidence of Ms P noted earlier in these reasons, the fact that this specific threat has been made in the past, regardless of who actually made it, remains a matter of very significant disquiet and concern.
Conclusion
In general terms, the Orders proposed by the ICL regarding a gradual increase in the children’s time with the Father are generally, in my view, in the children’s best interests. That proposal shall be refined as follows.
In my view, Y should spend one day each alternate weekend with the Father (and his younger siblings) from between 9am and 5pm, unless otherwise agreed in writing between the parties, who shall communicate only via a parenting app. Changeover is to be in a public place and preferably done by third parties. The latter is a “suggestion” but should, if possible, as a risk reducing measure, be adopted.
Once the Father provides 3 “up to date” random drug and alcohol screens, over a period of 3 months, as requested by the ICL, then Y is to spend each alternate weekend with the Father (and his younger siblings) from 10am Saturday until 4pm Sunday.
Upon the Father providing evidence of completing 2 of the 3 courses he proposed in his Orders Sought, or no less than 6 months of the [NN Program] proposed by the ICL (with active attendance and engagement by the Father in it), Y’s time with the Father may proceed to each alternate weekend from after school on Friday until before school on Monday (or Tuesday if there is a public holiday).
Upon completion of all of the 3 course he proposed in his Orders Sought, or having completed in full the course proposed by the ICL, and having completed one hair follicle test that covers both alcohol and drugs for a period of six months, Y is to spend 5 nights per fortnight with the Father and 9 nights with his Mother.
Given the historical and current acrimonious relationship between the parents, the Mother is to have sole parental responsibility for the children, but is to keep the Father informed of any major long-term decision regarding the children.
There is to be no progression in Y’s time with the Father unless and until the relevant evidence of compliance with each step is provided to the Mother, the ICL and to the Court. As stated earlier, the ball is in the Father’s Court as to whether he will prioritise one group of children over another (which they will recognise either immediately or over time) or whether he will treat all of his children as his primary and paramount consideration.
Assuming that there is compliance with the Orders of the Court, the ICL is to be discharged 12 months after the date of these Orders. To state the obvious, while obviously not looking for extra things to do, the presence (even virtually) of the ICL is intended to be a safeguard – for everyone.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 25 August 2023
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