KEAT & VELDON

[2020] FamCA 817

FAMILY COURT OF AUSTRALIA

KEAT & VELDON [2020] FamCA 817

FAMILY LAW – PARENTING – With whom the children shall live and spend time – Where there are cross allegations of family violence – Where the children have been exposed to such violence – Where there are allegations that the father sexually abused the parties’ daughter – Where these allegations were substantiated and charges were laid, resulting in the father not spending time nor communicating with the children for two and a half years – Where the charges were later dismissed and the father was removed as a person causing harm by the Department of Communities and Justice – Where, thereafter, by orders of this Court, the father commenced spending time with the children graduating to each alternate weekend – Where this arrangement has successfully been in place for six months – Where shared care would expose the children to risk of harm – Ordered children live with the mother and spend time with the father each alternate weekend.

FAMILY LAW – PARENTING – Parental Responsibility – Where both parties perpetrated family violence towards each other and exposed the children to such – Where the presumption of equal shared parental responsibility is rebutted – Where the parties are not in the habit of co-parenting – Where the mother is the primary carer of the children – Ordered mother have sole parental responsibility – Mother to consult the father when decisions arise to be made and to inform him of decisions taken by her.

Family Law Act 1975 (Cth) ss 60CC, 61DA.

APPLICANT: Mr Keat

RESPONDENT: Ms Veldon

INDEPENDENT CHILDREN’S LAWYER: Virginia Taylor Lawyer

FILE NUMBER: NCC 2875 of 2017

DATE DELIVERED: 1 October 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 1 - 4 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Unrepresented

SOLICITOR FOR THE APPLICANT: Unrepresented

COUNSEL FOR THE RESPONDENT: Unrepresented

SOLICITOR FOR THE RESPONDENT: Unrepresented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Flintoff

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Virginia Taylor Lawyer

Orders

1. That all prior parenting orders in relation to Z born … 2010 and X born … 2012 (“the children”) are discharged.

Parental responsibility

1. The mother has sole parental responsibility for long term decisions relating to the children including, but not limited to, health, welfare, education and religious instruction.

2. The mother shall:

   3.1Notify the father, by email, of any non-urgent issue in relation to major decisions she intends to make regarding the children’s health (including medical, dental, and psychological treatment), prior to her exercising her sole parental responsibility for these decisions;

   3.2Provide the father with 7 days to respond to the notice in Order 3.1;

   3.3Consider any response the father has provided in accordance with Order 3.2 before making her decision;

   3.4Notify the father by email, as soon as reasonably practicable after making her decision in Order 3.3, of the decision she has made;

   3.5Keep the father informed, by email, of the names and practice details for all treating medical practitioners for the children (including doctors, medical specialists, dentists, psychologists, counsellors and allied health professionals).

3. The father is at liberty to contact the medical and other health practitioners who provide advice and treatment to the children, to obtain information about their progress and welfare, subject to the willingness of individual practitioners to speak to him.

4. Each party shall keep the other party informed of his/her current residential address and contact telephone number.

5. Each party shall notify the other by telephone call, as soon as reasonably practicable, of the children, or either of them being involved in an accident or emergency.

6. Subject to the direction of the principal of the school otherwise, each party is at liberty to attend events at school to which parents are invited or welcome to attend.

Residence

1. The children shall live with the mother.

Communication

1. Each party shall permit, at any reasonable time, the children, or either of them, to make contact with the other parent by telephone or electronic means and further shall allow the child or children privacy to speak to the other parent by not being present in the room where the children are communicating and by not being in a position to listen to what the children are saying.

Time with Father

1. The children shall spend time with the father as follows;

   (a)During Term Four in 2020 from Friday 4.00 pm to before school Monday on each alternate weekend; and thereafter, commencing in 2021 in all school terms from after school Friday to before school Monday on each alternate weekend.

   (b)During school holiday periods:

   (i) Commencing in 2021, for half of the holiday period at the end of Terms One, Two and Three commencing from the last day of the school term and concluding at 3.00 pm on the second Saturday of the holiday period.

   (ii) During the holiday at the end of term Four:

   In even numbered years, [commencing in 2020] from 3.00 pm on Christmas Eve to 3.00 pm on Boxing Day, and again from 3.00 pm on 10 January to 3.00 pm on 23 January;

   In odd numbered years, [commencing in 2021] from 3.00 pm on 27 December to 3.00 pm on 10 January.

   (c)On Father’s Day if the children are in the care of the mother from 9.00 am on Father’s day to the beginning of school on the day following;

   (d)On each child’s birthday, if the children are in the care of the mother, from the end of the school day to 6.00 pm (if a school day) or from 12 noon to 6.00 pm (if a non-school day).

Time with mother

1. On Mother’s day if the children are spending time with the father on that weekend, time with the father shall conclude at 9.00 am on Mother’s day.

2. On each child’s birthday, if the children are in the care of the father, from the end of the school day to 6.00 pm (if a school day) and from 12 noon to 6.00 pm (if a non-school day).

Changeovers

1. To implement time in Orders 10-12 above, on all occasions when changeover is not provided to occur at school, then it shall take place at McDonald’s restaurant at Lisarow.

Restraints

1. The parents are restrained by injunction from:

   14.1Speaking badly about the other parent in the presence or hearing of the children or permitting a child or the children to remain in the presence or hearing of a third party doing so;

   14.2Discussing the family law and criminal proceedings with the children;

   14.3Showing the children documents relating to the family law and/or criminal law proceedings;

   14.4Questioning the children about what happens in the other parent’s home, or permitting the children to be questioned about this by a third party;

   14.5Filming or recording one another and/or the children at changeovers;

   14.6Leaving the children alone at home without supervision, until the younger child is not less than  12 years of age, and appropriate arrangements can be put in place for the children’s supervision and care;

   14.7Communicating with one another in any manner except in writing, or as permitted by these orders, unless otherwise agreed, with such agreement to be recorded in writing;

   14.8Changing the children’s primary school from M School;

   14.9Discussing the criminal proceedings in 2019, involving allegations made by Z, with a medical practitioner treating Z.

The ICL

1. The ICL shall meet with the children at a time and place [including by electronic means] mutually convenient to the ICL and the mother, to explain the orders to the children and to answer any relevant questions which either or both may have.

2. The parties or either of them may provide a copy of these orders and reasons to the presiding magistrate at the hearing of the Application of the mother for an Apprehended Violence Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2875 of 2017

Mr Keat

Applicant

And

Ms Veldon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders concerning two children, Z aged 10 years and X aged eight years.

2. The parties met in Country N in 2007. The father was 43 and the mother was 20 years of age. They maintained a relationship by the father regularly travelling from Australia to visit the mother.

3. The parties’ first child was born in mid-2010 in Country N. When the child was about six months old, the mother and child moved to live in Australia with the father in his home in the J Area of NSW.

4. In mid-2012 the second child was born.

5. In 2015 the parties and the children travelled to Country N and the parties were married there. There is a dispute over whether the marriage is registerable in Australia.

6. The marriage was made increasingly unhappy by fractious argument and verbal and physical abuse of each party by the other. Police were regularly called to the house by one of the parties or by neighbours.

7. In September 2017 the marriage ended when the mother moved with the children out of the family home. The mother did not tell the father where she and the children were living.

8. The mother withheld the children from the father resulting in the father not seeing, nor communicating with the children for over two years.

9. During the period following separation the mother made a number of reports to Family and Community Services (now the Department of Communities and Justice (“DCJ”)) regarding disclosures to her by Z of sexual abuse by the father.

10. Sexual abuse allegations were referred for further investigation and substantiated by DCJ.

11. The matter was referred to police.

12. In 2017 the child was interviewed by JCPRP (formerly JIRT) and again in 2018.

13. The father was charged with two offences.

14. In 2017 the father was listed as ‘a Person Causing Harm” on the DCJ database.

15. There was a hearing in the Local Court in 2019. The child, Z, gave evidence.

16. In 2019 the charges were dismissed.[1]

    [1] Exhibit 15.

17. A Magellan Report issued on 25 October 2019 included this statement:

    (The father) has been listed as PCH (person causing harm) on the DCJ database following substantiated allegations of sexual abuse. (The father) is therefore considered to pose a risk to the safety of any child in his care.

18. In late 2019 the father made a request to the Federal Attorney General for a review of the outcome of assessments by DCJ. The finding of actual harm was reviewed by DCJ. Two reviews were undertaken. Both reviews found insufficient information to support the finding of actual harm. Both reviews concluded that there was sufficient information that the father posed a risk of significant harm to the subject child.

19. Retrospective to March 2020 the father was removed as ‘a Person Causing Harm’ by the DCJ from their records.

20. Since 26 March 2020, when interim parenting orders were made by the Court, the father has spent time with the children on a graduating basis culminating with each alternate weekend from 4.00 pm Friday until commencement of school Monday.

The Parties

The Applicant – Mr Keat

1. The applicant father is currently 56 years of age. He is in employment and lives in the J Area of New South Wales (“NSW”).

2. The father has a romantic relationship with Ms D.  Ms D is the primary carer of her two children aged 12 and 18 years. Ms D and her children live in Sydney.

3. The household of the father consists of himself only, with Ms D a regular visitor, sometimes with her younger child.

The Respondent – Ms Veldon

1. The respondent mother was at date of trial 33 years of age. She is now in paid employment as a healthcare professional. She lives in the J Area of NSW.

2. The father believed the mother to be in a domestic relationship with Mr F. The mother and Mr F acknowledged a short romantic relationship which became a friendship only, at the request of the mother. I accept their evidence about that.

3. The household of the mother usually consists of herself and the two subject children.

The Trial

1. The trial was listed for four days commencing 1 September 2020.

2. Both parties were present at Court. Neither party was represented by solicitor or counsel. Solicitors for the father had filed a Notice of Ceasing to Act in April 2020 and solicitors for the mother in May 2020.

3. The Independent Children’s Lawyer (“ICL”) was present at Court. The ICL had briefed counsel who appeared by TEAMS.

4. The trial concluded within the allocated time.

5. Having heard the submissions on behalf of the ICL and the mother, the father asked for the opportunity to make submissions in writing. The other parties raised no opposition.

6. A direction was made for the father to file any written submission on which he relied by 14 September 2020. Those submissions were filed within time.[2]

The Applications

[2] Exhibit 23.

The father

1. In 2017, by his Initiating Application to the Federal Circuit Court, the father had proposed sole parental responsibility for himself and residence of the children with him.

2. Over the following three years his position changed, including to an equal shared time arrangement.

3. In May 2020 the father foreshadowed a further change of position by an Application in a Case seeking interim orders for residence. That application was dismissed on the basis that trial dates three months ahead had been allocated.

4. On 24 August 2020 the father filed an Amended Initiating Application seeking sole parental responsibility, residence with him and time for the children with the mother each alternate weekend, half school holidays and special days.

5. As part of his written submissions, and without leave, the father provided a further amended version of the orders sought by him. His proposal was week about equal time with the mother moving back to live near him, or if she was not willing to move, residence with him.

The mother

1. By her Amended Response filed 6 May 2020 the mother sought sole parental responsibility, residence, and for the children to spend time and communicate with the father as agreed between the parties.

2. The mother also sought certain restraints on both parties, and orders governing international and interstate travel arrangements for the children.

3. In her Case Outline the mother proposed orders which if made would give the children substantial and significant time with the father.

4. When asked by me on the first day of trial about her change of position, the mother cried and responded that she had proposed those orders because she feared that one of the recommendations of the Single Expert, namely change of residence, would be implemented if she did not.

5. The mother reverted to seeking the orders in her Amended Response.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father – Mr Keat

   (a)Amended Initiating Application filed 24/08/2020;

   (b)Affidavit of father filed 14/03/2020;

   (c)Affidavit of Ms D (the father’s partner) filed 14/03/2020;

   (d)Written submissions by the father filed 14/09/2020;

   The Respondent Mother – Ms Veldon

   (e)Amended Response filed 06/05/2020;

   (f)Affidavit of mother filed 23/03/2020;

   (g)Affidavit of Mr F (friend of the mother) filed 28/08/2020;

   Reports

   (h)Single Expert Report by Dr H dated 12/02/2020;

   (i)Magellan Report dated 25/10/2019.

Oral Evidence

The father

1. The father presented as frustrated and angry. The proposition was put to him that he was very angry about the allegations relating to Z. The father denied it:

   It’s not fair to say that. I’m not bitter, I’m not angry. The health and well-being of my children is all I care about.

2. Those are the words of the father but in my view they do not represent his true position.

3. The mother left the father without notice taking the children with her. The father successfully defended himself against criminal charges relating to alleged sexual assault of the parties’ daughter. He has battled with the DCJ over the characterisation of himself as a person causing harm to children and has prevailed.

4. The father remains deeply aggrieved by his experiences of the past three years. He is entitled to think and feel whatever he does. However the problem for the children is that the father has been unwilling or unable to contain his emotions and opinions.

5. The mother has been and still is fearful of the angry reactions of the father. She also feels anger towards him. She remains uncertain about his conduct with Z, concerned that he favours her over their younger child even if there was no assault.

6. Tendered into evidence were two brief videos[3] made on the mother’s telephone. The mother was walking, the father was riding his bicycle beside her. The incident took place shortly before separation in 2017.

   [3] Exhibit 6, items 2 and 3.

7. The context was that the mother had left the home at night after an argument and was walking away. The father left the children in the house alone in order to pursue and insult the mother. The father was spitting out vitriolic remarks swearing at her, belittling her, denigrating her family, telling her she did not belong in Australia, “Go back to Country N.”

8. The father in oral evidence acknowledged his own conduct as terrible. He could hardly have done otherwise. It was.

9. These parental feelings of fear by the mother and mutual anger have caused the children to be fearful, angry and upset themselves.

10. For example, in January 2020 the father appeared without notice at the school which both children attend. The children had seen him in the previous month for interview by the Single Expert. Other than that there had been no contact for more than two years. Had he thought about their situation, the father would not have arrived unannounced with Christmas presents in the school playground. Z ran away, X accused the father of breaking his mother’s telephone.

11. The father seems to have expected the children to have been excited to see him and grateful for the presents. He was upset and indignant when things did not go that way.

12. The incident led, quite predictably, to an application by the mother for an Apprehended Violence Order (“AVO”). That application is yet to be finally determined. After the conclusion of this trial a hearing date in L Town Local Court was fixed for 22 February 2021. The mother forwarded that information to this Court, as she had been asked to do.[4]

    [4] Exhibit 22.

13. The father’s own words about the incident reveal his self-righteous anger and lack of insight. They are contained in the father’s document[5] of 7 May 2020 forwarded by him to the Local Court and tendered in these proceedings.

    [5] Exhibit 4.

14. At one point in that document the father concedes that on that day in the playground he said to the mother “I am going to have you put in jail for making my daughter hate me”. The father justified his actions and statements in a variety of ways including these:

    Firstly I am within my rights to inform a person who has coached my daughter to lie to police and who herself has lied to police in statements made….that I will be prosecuting Ms Veldon….

    I will also state truthfully that Ms Veldon badgered me by waving her middle finger at me when she saw me outside the school.

15. The father referred to the mother as “a dangerous person”. The mother has acknowledged that she has in the past hit and kicked the father, she would say in defence of herself. The father is not in my view fearful of the mother to any extent. Rather he is resentful that the mother has been believed by police over him at times and has gone “unpunished” in his view for bringing allegations about him which did not lead to conviction.

1. His comment during cross-examination by counsel for the ICL captures his attitude:

   It’s only rightfully human to want justice from the system.

2. The father has not undertaken any of the parenting courses recommended by the Single Expert. He has missed the opportunity to understand the perspective of children caught up in a struggle between their parents.

3. For instance the father asked his partner to take a little video of himself and the children during observations with the Single Expert. Dr H agreed to it, the father having explained that he had no recent photos of the children and “just wanted something to take with me”. Later the father sent the video to the children’s school to prove that he enjoyed a good relationship with them and that what third parties had said about him was not true.

4. The father made submissions about his own future conduct as follows:

   On a final note I have come away from the final hearing with clear intentions to ensure the children experience positive co-parenting, as they deserve and need to see their parents interacting amicably and in an adult manner, which in turn and sets a good example for them to follow.

5. He went on to refer to short civil discussions about parental issues having already taken place since the trial.

6. If I accept the father has a present intention to behave differently towards the mother that is a positive sign for the future.

7. If the parties have spoken to each other at changeovers, calmly as parents, that too may mean that the children will feel safer in the company of both parents at once.

8. However the Court must consider the evidence before it and make decisions based on what has happened not what might happen differently in future. Caution is necessary.

Ms D

1. Ms D was an impressive witness, thoughtful and open.

2. Her description of easing the tension for children at changeovers showed her understanding of their predicament. She described the children usually walking slowly to the car, head down, their mother watching, sometimes filming.

3. Ms D said they were fine once they were in the car and she “kept it light, played games, just relaxed them.”

4. The children met Ms D for the first time at the interviews in December 2019. The children enjoyed her company and were enthusiastic in their statements to the mother about Ms D.

5. Ms D is an experienced parent with children aged 18 and 12 years. She lives with her children in Sydney and is on friendly co-operative terms with the father of those children.

6. Since the interim orders began, the mother and Ms D have been open and friendly with each other, with no animosity from either.

7. Ms D brings many benefits for the children including guidance and practical help to the father and warmth and fun for the children.

8. It is likely that the mother is grateful for her involvement, just as the father is.

The mother

1. The mother was a co-operative but passive as a participant in the trial. She chose not to cross examine the father, his partner or the Single Expert. She made no submissions.

2. The mother had the benefit as did the father of hearing counsel for the ICL cross-examine all parties and make thorough and detailed submissions.

3. I consider that the mother having put forward her affidavit, prepared by a solicitor, made a decision to be present at trial and to accept the decision of the Court.

4. During cross-examination the mother made appropriate concessions. She accepted that complaints made by the children to her, about the father, on return from spending time with him, might not be accurate.

5. She also accepted that the children might be having a good time with the father although she found it hard to believe. It is understandable. Her own experience of the father before she separated from him, was ever increasingly unpleasant.

6. She was open about continuing to believe what Z told her about being abused by the father and also agreed that she does think Z is at risk of being sexually abused in the father’s home.

7. The mother did not consider that her own fears and beliefs were part of the explanation for the children’s complaints.

8. The situation of the mother is difficult. She relied on the advice and assistance of caseworkers in the Refuge. They were there to help her, there was no reason to do otherwise. When the matter was investigated by JIRT as it then was, the allegations were substantiated. That was powerful confirmation for the mother of criminal activity by the father, namely abuse of the child.

9. After the child and herself gave evidence, the Local Court found quite decisively that the father was not guilty of the charges or any wrongdoing.

10. The mother has stayed firm with the advice and her own inclination to believe the child.

11. In March 2020 the mother changed her position before the Court and proposed unsupervised time with the father.

12. Orders were made accordingly although not for the shared care the father wanted.

13. To the great credit of the mother she has complied with the orders for the past six months and the children have enjoyed their time. The observations of the Single Expert in December 2019 accurately predicted that the relationships would be easily restored and that both children missed their father, especially Z, and both wanted time with him.

14. The mother is an intelligent person and a capable parent. Despite the turmoil of the past three years the mother has found stability especially through work which she had longed to participate in throughout her marriage. She greatly enjoys interaction and friendship with colleagues including her boss. She has made friends and created an independent life.

Mr F – friend of the mother

1. Mr F provided an affidavit days before the trial.

2. Through his affidavit Mr F informed the Court that he is 56, the father of two adult daughters both of whom have children.

3. Mr F lives with his elder daughter and her three young sons. His younger daughter lives nearby with her daughter. His mother also lives locally. Mr F sees and assists the mother and children almost every day. He very regularly drives the mother to and from work and takes the children to school. He stays at the home with the children when the mother is working night shift.

4. Mr F was present when the father arrived at the children’s school in January 2020. The unexpected presence of the father startled the mother and unsettled the children. I am confident that the calm presence of Mr F was a stabilising factor for the mother and the children during that incident.

5. Mr F has been present at most changeovers since interim orders were put in place in March 2020. Again he has been a stable and kind presence for the children and there have been no untoward incidents at changeover. This is to the credit of the father and Mr F. Mr F stated he did it for the children. I accept his evidence about that.

6. I consider that Mr F has brought a beneficial influence to the lives of the children himself, and through their inclusion in his extended family.

The Single Expert – Dr H

Family Therapy

1. The Single Expert very strongly recommended that the parties be ordered to attend family therapy.[6]  His reasons for that recommendation could not be and are not, criticised by the Court. The benefits to the parties of a successful intervention by an experienced relationship counsellor therapy were outlined by the Single Expert in his report and amplified in his oral evidence.

   [6] Single Expert Report dated 12/02/2020, par 105.

2. Nothing could be more beneficial for the children than if both parents actively wanted to “resolve their relationship conflict”, to effect personal change, to learn to behave differently, to make parenting decisions respectfully and to reject physical and verbal aggression as a tool to prevail over the other.

3. Nevertheless an order will not be made. There are several reasons.

4. On 4 March 2020 the parties put forward orders to be made by consent in relation to restraints on conduct and methods of communication. Included in that suite of orders was provision for the parents to attend at a named organisation for Family therapy probably in response to the recommendation in the Single Expert Report.

5. Therapy did not take place and each parent blamed the other and/or the organisation for that failure. I take that into consideration.

6. It is not the primary reason.

7. The Court would have no way of knowing whether the parties attended Family Therapy and if they did, whether there had been a benefit for them or the children.

8. There is a real risk that one party would fail to attend, leading to conflict as has already happened, or that both parties would attend to avoid adverse consequences of breaching an order but with no wish to participate. Each party is confident that the other party is responsible for all that has gone wrong.

9. The impulse or wish of a person to understand themselves and change is what informs participation in therapy, not compulsion.

10. If the parties together or singly wish to undertake therapeutic family counselling they are free to do so.

What a child says

1. The Court raised with Dr H the difficulty for the mother of knowing what to believe in relation to allegations by Z.

2. The Single Expert endorsed an approach, postulated by the Court, of the mother not presuming that Z (or either child) was lying, and not presuming that a child was telling the truth. Rather the approach could be when a child made worrying statements, to keep an open mind and consider all possible explanations in context.

3. The Court is confident that the mother has the capacity to take that approach.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

Parental Responsibility

1. There is a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.[7]

   [7]Family Law Act 1975 (Cth), s 61DA.

2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.

3. In this matter there is ample evidence of family violence being perpetrated by each parent on the other during the relationship and of the children being exposed to that violence. There was also an incident, at the children’s school post-separation.

4. The presumption as a result does not apply.

5. The mother was the primary carer of the children during the marriage and continued that role after separation. Her care of the children has been at least adequate. The father raised complaints about diet for X and some other minor matters. The Single Expert assessed the children as well cared for which accords with my own view of the evidence.

6. For that reason and because the parties are not in the habit of consulting and compromising, the mother should be in a position to make decisions about the welfare of the children and that order will be made with provision for input from the father and advice of decisions taken.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. There is a benefit to the children in maintaining a relationship with both parents. Both children want that and have expressed it to the Single Expert.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. Both children have been exposed to family violence. Throughout their lives until the parents separated the children heard loud, angry and yelling arguments between the parents, saw physical confrontations, watched more than once as their mother left the home after a fight.

2. By leaving the home and moving into a refuge the mother ensured her own safety. As a result of the move the children were no longer living in an atmosphere of threat, violence and uncertainty over what might happen next. That was a benefit.

3. The cost to them was the loss of their home including the relationship with their father, an abrupt change of schools, broken friendships, loss of pets and an obligation to stay silent about where they were living and why.

4. The Single Expert noted the findings of social science research about the harm done to children exposed to family violence.[8] There is a need to protect the children from exposure to any further family violence. I accept that their transition to healthy adolescence depends on it.

   [8] Single Expert Report dated 12/02/2020, par 94.

5. Given the history, being present with both parents at the same time represents a risk of harm.

6. The children live with the mother and should continue to do so for the sake of the stability in their attachment to her and in their education.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. In interview in December 2019, Z was open to seeing more of her father, expressed sadness and distress about not being able to see her cats, and indicated that she would like to be able to return to her family home again in the future.

2. Given the number of JIRT interviews and the ordeal of giving evidence in Court it is apparent that Z does not blame her father for those things having happened.

3. X was more cautious but still pleased to be re-united with his father.

4. The interim orders have been in place for six months and have worked well for both children. The regular presence of the father’s partner and sometimes one or both of her sons has been a benefit.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. Both children were found by the Single Expert to have a strong and positive attachment to the mother.[9] She cares for them well. “Ms G is considered to be entirely capable to retain the majority care of the children at the present time” [10]…[the Single Expert going on to recommend restoration of time with the father ultimately progressing to equal time, shared care.]

   [9] Single Expert Report dated 12/02/2020, par 99.

   [10] Single Expert Report dated 12/02/2020, par 111.

2. The father was observed to have a positive but slightly damaged bond with the children.[11] Given ongoing time together the expert evidence points to that damage being repaired.

   [11] Single Expert Report dated 12/02/2020 par 100.

3. There is no member of the mother’s family in Australia.

4. There was no evidence from members of the father’s extended family.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The father has at all times wished to be fully involved in the lives of the children. To the extent that he has not been involved in decision making and did not see or communicate with the children for two and a half years that was not his choice.

2. The mother has generally made good decisions for the children but has not wanted the father to be any part of decisions taken.

3. Since time and communication began in March 2020 each parent has made decisions without prior consultation with the other; the mother because she has become used to doing so, the father because he is trying to make up for lost time.

4. One example of this is the father arranging for a dentist to remove X’s loose tooth. The mother was following the advice of X’s dentist to wait for the tooth to fall out naturally.

5. Either course was arguably proper. The problem for X was being the object of parental struggle for authority. Text messages flew between them. Each became angry and offended by perceived lack of respect.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father appears to have provided well enough for the children until separation. The mother then left the family home with the children. The father has continued to live in it.

2. To date there has not been an application by the mother for adjustment of interests in matrimonial/de facto property nor for spouse maintenance.

3. That fact aggravates the failure of the father to meet his obligations to maintain the children. He has not paid anything to the mother for the support of the children.

4. The Court is satisfied that this was a deliberate decision by the father and not a passive response to not knowing where the mother and children were living. The father was asked during this trial whether he thought it was right not to pay child support. He agreed that he thought that way.

5. I note that during his interview by the Single Expert in December 2019 the father is reported to say “That he has been very willing to pay child support but all the communication has been cut off.”[12] The Single Expert pointed out that the father could register for Child Support despite the break in communication. The father expressed his intention to “register with the CSA immediately.”

   [12] Single Expert Report dated 12/02/2020, par 59.

6. The father did not do so. It is apparent that he had no intention to do so and was paying lip service to what the Single Expert had recommended. The Single Expert quite literally groaned when he was told during oral evidence of the failure of the father in that regard.

7. On 26 March 2020 as part of the reasons given for interim parenting orders made at that time, this Court noted the allegation of the mother that there had been no financial support from the father since separation. The Court stated “it is possible for either parent to obtain an assessment of Child Support and even if the mother were to resist receiving child support, it could be paid into an account for the future.”

8. The father did not act on either suggestion.

9. In March 2020 the father began spending time with the children in accordance with the orders. Far from acknowledging his failure to assist the mother to feed, clothe and educate the children by providing some money, the father expected the mother to pack a bag with all the children would need during their time with him at weekends. He sent a list of requirements.

10. In his oral evidence the father was critical of what was sent “I don’t like the clothes they come in. I would prefer nicer clothes.”

11. His solution was to buy “nicer clothes” for them, but only to be worn when they were with him.

12. In my view this was part of a conscious strategy to let the children know how much better things were for them at his house, their former family home. He did not conceal his distaste for the children living in “Housing Department or some accommodation arranged by the Refuge”.

13. I am supported in this view by the further evidence of the father that he has, this year, bought each of the children a Nintendo Games machine at $459 each, together with five games for each child at $50-$100 per game. He has bought both children a new bike.

14. The potential consequences are humiliation for the mother, who cannot afford such luxuries and the risk that the children will think less of their mother and more of their father because of his financial largesse with them directly.

1. I consider that the father has failed in his obligation to maintain the children for the three years since separation of the parties.

2. The fact that the mother has been unwilling to apply for Assessment of Child Support does not in any way ameliorate the significance of the father not making his own application for assessment nor simply providing money to the mother for the children.

3. It is a matter I take into account both in relation to the father failing to meet the financial and the emotional needs of the children.

4. Shared care akin to equal time would expose the children in a most harmful way to the consequences of the father’s conduct in this regard.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The father proposes that the children return to living in the former family home with him either full time or on a week about shared care basis.

2. The father does not have a present intention to move from Suburb B where he lives. There is no reason why he should.

3. He considers that the mother should move back to the Suburb B area and live close to him in order to facilitate shared care. There is no reason why the mother should do that.

4. The father also proposes that the children attend the nearby school, K School, which Z was attending in 2017 when the parties separated. X had not yet started school at that time.

5. Such changes would be likely to adversely affect the children.

6. The children have been at their present school, M School, for almost three years. X started in kindergarten there.

7. The assumption of the father that Z could pick up where she left off with former friends and academically is founded in optimism, not reality.

8. The father was critical of the proposal of the ICL for the children to start alternate weekends with him from school on Thursdays:

   Deliver them to school on Fridays and pick them up again on Fridays is a four hour turn around on Fridays. This is not in the best interests of the children and would be impossible for anyone to hold down a job in this country under that schedule.[13]

   [13] Exhibit 23, page 3, par I.

9. There is an hour’s drive between the two households. Alternate weeks of travelling one hour each way to and from school is, I agree, an imposition on the children. A two hour drive morning and afternoon to deliver and collect children from school is impracticable for the transporting parent.

10. Shared care is not practicable. There is no basis in the evidence for compelling the mother to give up her current residence and the employment that she both loves and needs, to live near the father.

11. The least disruptive course for the children is for them to remain in the primary care of their mother, to continue at the school which they attend and to spend time with the father as they have been doing from Friday to Monday each alternate weekend.

12. Holidays can start to be introduced over the coming Christmas holiday period.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. The order for mid-week communication with the father having the right to call the children, has led to some difficulties for the children.

2. The children have reached an age where they can enjoy telephone calls and electronic communication. They should be able to contact the other parent at any reasonable time. An order is made to that effect.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Tendered into evidence by the father[14] was a conversation between himself and X where he directed the child to repeat a story about his mother having said she was going for a walk but “she lied she was going to Suburb B Club.”

   [14] Exhibit 7.

2. The father asked the child whether the father had told him to say it. The response NOOO which went on for a few seconds, revealed how uncomfortable the child was. Given the propensity of both parents to record, X probably knew that was happening.

3. The father put X in a position of telling a ‘bad’ story about his mother. He would quite likely worry about getting into trouble or his mother getting into trouble because of what he said. The father was using a directive no-nonsense tone with him.

4. I conclude that the father was giving priority to proving his case over the feelings of his son.

5. In other respects the father does have the capacity to meet the needs of the children. His judgment has undoubtedly been affected by the events which have embroiled him in the past three years.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are a ten year old girl and an eight year old boy. Z is academically bright and has enjoyed success at school. She was learning piano and could probably continue to learn that instrument or another one. The father has a piano and the mother does not. The decision about learning piano or any other musical instrument will be a matter for the mother based on the child’s needs and on financial practicability.

2. X is a less confident child who has probably relied on his sister to help him cope with the hostility between the parents.

3. Culturally the children are connected to Australia and Country N.

4. The mother is a Language P speaker. Her evidence was that the father would not agree to the children learning that language during the marriage. She cried as she stated that the children were unable to speak to her family members in her country of origin.

5. The mother chose not to ask the father any questions by way of cross-examination so this matter was not put to him.

6. If it is the case that the father discouraged the learning of language P by the children, that is to deny them knowledge of and access to their maternal family and the mother’s country of origin.

7. One or both children is likely to want to travel to Country N in the future to understand more about their extended family there.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The mother did move out of the family home and into a refuge without prior notice to the father. The evidence suggests that the father would not have agreed to the children living with the mother if she moved away, in a refuge or at all.

2. Allegations of sexual misconduct by the father in relation to Z were raised on her behalf and initially substantiated. Later the charges were dismissed without reservation.

3. The mother continues to be ambivalent about the behaviour of the father.

4. That she agreed to shared parental responsibility and a graduation to shared care during the interview process with the Single Expert suggests to me that the mother was complying with what she perceived the Single Expert was asking her to do.

5. It is likely that the mother was subsequently reassured by refuge caseworkers and lawyers telling her that she was not compelled to take that course, that it could be a matter for a Court to decide. She withdrew her agreement reached in the interview.

6. Unsurprisingly the father was frustrated and disappointed. He thought there had been a break through to joint parenting and felt tricked.

7. Z attended on the school counsellor. A note from the school counsellor addressed “To whom it may concern” was tendered into evidence.[15] The note included statements made to the school counsellor about the interview process with the Single Expert, which were quite wrong.

   [15] Affidavit of mother filed 23/03/2020, Annexure EX-R1 page 27.

8. The uninformed criticism of the process by the school counsellor did not assist the children, the parties or the Court although the mother may have thought they did.

9. It is possible that the children did complain to the mother about the observations of themselves with the father and Ms D. It is possible that they did not complain at all and that Z observed her mother to be distressed and was trying to help her. It is not clear.  

10. The mother proposed orders in this trial based on her stated fear of losing residence of the children if she did not.

11. Importantly she has been compliant with interim orders determined by this Court and I am satisfied will continue to be compliant.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. Each party reports a volatile relationship. They each allege the other perpetrated physical, psychological and verbal family violence. Police were called a great many times over the ten years of their relationship in Australia.

2. In February 2014, police advised the parties to seek counselling. They did not.

3. Tendered into evidence[16] was a video recorded by the mother of an abusive, unrelenting argument between the parties interspersed with X complaining about how his mother was preparing food for him. The child appeared oblivious to his parents shouting and hostility. That fact strongly suggests that he was well used to such open conflict.

   [16] Exhibit 11.

4. The mother also alleges financial control by the father.

5. During the relationship, after the elder child started school, the mother wished to enter the paid workforce. The father was opposed to her doing so. He wanted the mother to be at home full time with the younger child. The mother was not willing to obtain employment over the father’s opposition.

6. The father provided the mother with a personal allowance of $200 per week. The evidence of the mother is that she received the money but was not permitted to shop without the father being with her so she was not able to spend the money freely.

7. Taken together with the evidence of the father himself that the mother bought the children’s clothes at charity shops, I conclude that the father tightly controlled the income which he earned, in terms of the mother’s use of it, and successfully dissuaded the mother from obtaining money of her own through employment.

Any other fact or circumstance that the court thinks is relevant

1. The ICL proposed that each parent give the other first option to care for the child when a parent is unable to do so.

2. The parents were not asked about such an arrangement.

3. The proposal likely arose from the mother sometimes working night shifts and the children having been left at home for 15 minutes or so while Mr F drove her to work.

4. The father became aware of this practice and was understandably concerned.

5. The mother now accepts, having been spoken to by caseworkers from DCJ, that the children are too young to be left alone at night even for a few minutes. The children are now taken out of bed for the return car trip with Mr F to drop off the mother at work.

6. The mother is working on obtaining her driver’s licence. Success with that will solve the problem of night time disruption for the children.

7. I consider that the parents should of course be free to ask for help from each other but that it should not be mandatory. Both parents have people willing to assist who are well known to the children.

8. Shift changes and illness are part of the management obligations of caring for children.

Conclusion

1. The parties have been through three tumultuous years. The orders made are designed to maintain stability for the children by continuing the current orders whilst gradually introducing holiday time for the father and children.

2. Order 4 provides for the father to speak to treating practitioners subject to their willingness to speak to him. Order 7 provides for the parties to attend events a school subject to direction otherwise by the principal of the school. The parties are thus reminded that as between themselves they have those entitlements but the orders do not bind third parties in the same way.

3. The Court is conscious that the application for an AVO applied for in January 2020 is still outstanding, to be heard in February 2021.

4. For that reason an order is made to enable the parties to provide these orders and reasons to the presiding magistrate.

5. Orders are made accordingly.

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 1 October 2020.

Associate:

Date: 1 October 2020