KEATON & MAHONEY

[2012] FamCA 658

FAMILY COURT OF AUSTRALIA

KEATON & MAHONEY [2012] FamCA 658

FAMILY LAW – CHILDREN – family violence – best interests of the children – where priority is given to the safety and protection of the children against family violence – where the father was found to be constantly abusive towards the mother and children – where the children were exposed to family violence throughout the parties’ relationship and following separation – where injunctions were made restraining the parties from permitting the children to spend time with the father – where the mother has sole parental responsibility – where parenting orders only made provision for written communication between the children and father once every three (3) months – where children’s residence is not disclosed to the father – where there were family violence orders in place for the protection of the mother and children against the father – where convictions were recorded against the father for breach of those apprehended domestic violence orders

FAMILY LAW – CHILDREN – scope of jurisdiction to make parenting orders – the Court has no power to compel parties to do any act or thing independent of their parental responsibilities and their care of the children – where the Independent Children’s Lawyer and mother sought orders regarding attendance at therapeutic counselling

FAMILY LAW – JURISDICTION – power of the Court to restrain the institution of future proceedings – where the Court declined to make such an order

FAMILY LAW – PRACTICE AND PROCEDURE – undefended hearing – where the father discontinued the whole of his case – where the orders proposed by the mother and Independent Children’s Lawyer were aligned with the recommendations of the Family Consultant and the father was not deprived of procedural fairness

Evidence Act (Cth) ss 140, 160
Family Law Act 1975 (Cth) ss 21, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA 65DAA, 65DAC, 65DAE, 65LA, 68B, 118

Allesch v Maunz (2000) 203 CLR 172
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Marriage of L & T (1999) 25 Fam LR 590
Marriage of Paskandy (2005) 33 Fam LR 509
McCall v Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Northern Territory of Australia v GPAO (1999) 196 CLR 553
Vlug v Poulos (1997) FLC 92-778
Williams v Spautz (1992) 174 CLR 509

APPLICANT: Mr Keaton

RESPONDENT: Mr Mahoney

INDEPENDENT CHILDREN’S LAWYER: Catherine Henry Partners

FILE NUMBER: NCC 2388 of 2011

DATE DELIVERED: 10 August 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 6 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr T. Bates

SOLICITOR FOR THE RESPONDENT: Peter Hamilton & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr S. Rugendyke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Catherine Henry Partners

Orders

1. All former orders relating to the following children are discharged:

   (a)       R, born … July 2001;

   (b)       L, born … March 2005;

   (c)       T, born … March 2005;

   (d)       C, born … March 2006; and

   (e)       H born … March 2009.

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

3. The children shall live with the mother.

4. The parties are restrained from causing or permitting the children to spend any time with the father.

5. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:

   (a)       The mother’s residence; and

   (b)       Any school attended by any of the children.

6. The parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the children no more frequently than once every three months, and

   (b)       By the mother promptly sending to the father:

   i)Written acknowledgement of receipt of the father’s written communication, and

   ii)Any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father.

7. For the purposes of implementation of Order 6 hereof:

   (a)The mother shall, within 7 days hereof, obtain and thereafter retain a post office box or alternate address to which the father may send written communication;

   (b)The mother shall, within a further 7 days, notify the father of the post office box or alternate address by sending written notification to his current residential address; and

   (c)The father shall thereafter keep the mother informed in writing of the address to which mail directed by her to him may be sent.

8. The mother is restrained from causing or permitting the children to refer to the father by any name other than “Dad”, or some like derivative.

9. The mother is restrained from denigrating the father in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the father.

10. The mother is restrained from causing or permitting the infliction of corporal punishment upon the children.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

12. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

13. Costs are reserved for 28 days.

14. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2388 of 2011

Mr Keaton

Applicant

And

Ms Mahoney

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The five children of the applicant father and respondent mother have been subjected to horrendous domestic violence, which was the principal issue in the litigation.

2. There was complete concurrence between the mother, Independent Children’s Lawyer and Family Consultant about the outcome of the proceedings. They uniformly proposed excision of the father from the children’s lives, other than for intermittent written communication to preserve a rudimentary link between the children and the father which will enable the possible later revival of their relationships with the father.

3. The trial proceeded on an undefended basis due to the father’s voluntary withdrawal from the proceedings, most likely because of his realisation the Court would accede to the joint proposal of the mother and Independent Children’s Lawyer in the face of such compelling evidence.  

Non appearance of the father

1. The proceedings were commenced by the father in September 2011.

2. In October 2011 the Court directed the preparation of a Family Report and the parties and children conferred with the Family Consultant in December 2011.

3. Because of the seriousness of the issues at stake between the parties, as revealed and elaborated in the Family Report, orders were made in February 2012 to expedite the trial.

4. The father and his solicitor attended Court on 5 April 2012 when procedural orders were made listing the matter for trial, but that was the last involvement of the father in the proceedings. For reasons which remain unexplained, on 4 July 2012 the father’s solicitor filed a Notice of Ceasing to Act, on 2 August 2012 the father filed a Notice of Discontinuance, and the father failed to appear at Court for the trial on 6 August 2012.

5. It is a fundamental principle of natural justice that parties should be afforded a reasonable opportunity of appearing and presenting their case, but being afforded the opportunity and making use of it are different things. The father was able to participate in the trial had he wished, but he voluntarily decided not to. If a party discards the opportunity to be heard, as was the case with the father here, there is no miscarriage of justice by continuation of the trial. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

Proposal and primary evidence of the mother

1. The mother abandoned the orders set out within her Response filed on 18 October 2011 and instead proposed orders in accordance with the opinions and recommendations of the Family Consultant. Such orders provided for her to have sole parental responsibility, for the children to live with her, and for the children to have no interaction with the father other than occasionally in writing.

2. The mother attempted to file an Amended Response in the registry shortly prior to the commencement of the trial, but it was rejected because of her failure to comply with procedural orders.[1]

   [1] Order 4 made on 5 April 2012

3. The mother served upon the father an unsealed copy of the Amended Response upon which she wished to rely,[2] but it is probable the letter and enclosed document did not reach the father in advance of the trial (s 160 Evidence Act (Cth)). Ordinarily that may give rise to concern about whether the father had been denied procedural fairness, but not in the circumstances of this case. The mother’s fresh proposal was consistent in all respects with the opinions and recommendations of the Family Consultant, as set out in the Family Report, a copy of which has been in the hands of the father and his former lawyer for many months. The father must have therefore been aware the Court might ultimately make orders in accordance with that evidence and he chose to withdraw from the proceedings notwithstanding.

   [2] Exhibit M1

4. In support of her proposal the mother relied upon:

   a)Her affidavit filed on 20 July 2012;

   b)The affidavit of her brother, Mr U, filed on 24 July 2012; and

   c)The Family Report dated 15 December 2011.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer proposed that the mother have sole parental responsibility for the children, that the children live with the mother, and that they spend no time with the father. The Independent Children’s Lawyer envisaged that the father could communicate with the children in writing once every three months. The proposal of the Independent Children’s Lawyer was consistent with the recommendations of the Family Consultant and the ultimate parenting proposal of the mother.

2. The Independent Children’s Lawyer revealed the orders he proposed in his Case Outline document, which although mailed to the father, would probably not have reached him in advance of the trial. However, for the same reasons explained in respect of the mother’s proposal, the father was not thereby denied procedural fairness.

3. The Independent Children’s Lawyer did not adduce any separate evidence.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court has discretion within the parameters of Part VII of the Act to determine the appropriate parenting orders.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the children – primary considerations

1. There can be little doubt the children all enjoy close and loving relationships with the mother from which they derive benefit. So much is obvious from the Family Consultant’s observations of the children with the mother[3] and the positive comments the children variously made to the Family Consultant about the mother.[4]

   [3] Family Report, par 59

   [4] Family Report, pars 45-58

2. The available evidence implies only that the children have a very strained relationship with the father. The elder children stridently opposed any suggestion that they meet with the father even under the supervision of the Family Consultant, about which they appeared genuinely distressed, and they made critical comments about the father.[5] The eldest child was even anxious that the father lived in relatively close proximity to them.[6]

   [5] Family Report, page 2, pars 45-58

   [6] Family Report, par 49

3. In such circumstances it is only possible for the Court to infer the children do not presently enjoy meaningful relationships with the father, but the Court is obliged to consider more than the existing state of those relationships. Section 60CC(2)(a) of the Act requires the Court to prospectively consider whether the children will derive benefit from meaningful relationships with the father in the future if those relationships can be rejuvenated (see McCall v Clark (2009) FLC 93-405 at [115]-[122]). The answer to that question is inextricably linked to the evidence of abuse and family violence committed by the father, which the Court must also consider pursuant to s 60CC(2)(b) of the Act.

4. The parties began their cohabitation in late 2000 and endured numerous separations before they finally separated in August 2010.[7]

   [7] Mother’s affidavit, pars 3-4; Family Report, pars 19-20

5. During the course of cohabitation the mother and children were physically assaulted by the father on dozens of occasions.[8] The mother gave uncontradicted evidence of several serious instances as examples.

   [8] Mother’s affidavit, pars 13-14

6. In January 2006, when the mother was pregnant with the parties’ fourth child, the father became aggravated by the older children crying. In that state of aggravation he kicked the mother in the stomach and then repeatedly punched her in the side.[9]

   [9] Mother’s affidavit, pars 15-17

7. In April 2007, when the mother was again pregnant, the father became enraged because the mother refused his request to fetch him a cigarette. The father grabbed the mother by the throat, held her up against a wall and said “I am going to kill you”. He then punched the mother in the head about ten times, punched her in the stomach, and kicked her. She fell to the ground and the father kicked her whilst she lay on the ground. The father finished the assault by yelling at the mother “You are a piece of shit. I don’t want any more kids”. The mother retreated to the bathroom and her pregnancy miscarried. She wrapped the foetus in a tissue with the intention of driving herself to the hospital. As she left the home with the foetus and the four other children she had the following conversation with the father:[10]

   Mother: I am going to the hospital. I think I just lost the baby.

   Father: It’s not my fucking problem.

   [10] Mother’s affidavit, pars 18-26

8. As a consequence of that incident the maternal grandparents assisted the mother and four children to vacate the family home and move into their home, but the parties reconciled about three months later as a consequence of the father’s intimidation of the mother.[11]

   [11] Mother’s affidavit, pars 27-29

9. The father’s violent oppression of the mother was frequently witnessed by the children. In their presence the father called the mother profanely derogatory names and openly often said “I’ll kill you and the kids”.[12]

   [12] Mother’s affidavit, pars 50-52

10. The father’s reprehensibly violent conduct was directed against the children as well as the mother. The mother alleged the children were assaulted and verbally abused on almost a daily basis.[13] Frequently the father employed cruel punishment of the children, forcing them to stand for prolonged periods facing walls and the boundary fence.[14] The mother and maternal uncle gave vivid examples of the father clashing the twins’ heads together, striking the eldest child repeatedly on the top of the head, and twisting the eldest child’s ears.[15] The mother and children individually reported to the Family Consultant how the father used belts and an electrical cord to whip the children as a form of discipline.[16]

    [13] Mother’s affidavit, pars 31-32

    [14] Mother’s affidavit, par 47

    [15] Mother’s affidavit, pars 32-35; Affidavit of Mr U, pars 2-6, 9

    [16] Family Report, pars 34, 46, 54

11. The father conceded to the Family Consultant that the elder children “copped a wooden spoon and a kick up the bum” from him,[17] but that is a trivialisation of his brutality. I accept the opinion of the Family Consultant that the father’s discipline of the children was “abusive and unacceptable”.[18]

    [17] Family Report, par 22

    [18] Family Report, par 60

12. The father often sated his violent rages by the destruction of property. The father has punched a hole in the wall of the family home and smashed personal chattels, including a child’s cot. The mother said such incidents occurred on dozens of occasions.[19]

    [19] Mother’s affidavit, par 42-43, 49, 104

13. The parties’ separation in August 2010 was attended by the making of a family violence order protecting the mother and children against the father for a period of 12 months.[20] The order was sought by police on the mother’s behalf.

    [20] Mother’s affidavit, pars 45-46

14. The order seemingly had little effect upon the father, as he continued to stalk, harass, threaten and verbally abuse the mother, often in the presence of the children.[21]

    [21] Mother’s affidavit, pars 53-59, 65-68

15. Despite the family violence order, the mother endeavoured to retain some form of interaction between the children and the father. In early September 2010 she allowed them to visit the father at a park under her supervision.[22] The father was seemingly not content with that arrangement because on 29 September 2010 he absconded with the children and refused to return them to the mother. The following day when the mother approached the father’s home to retrieve them he assaulted her. He punched her in the face and spat on her in the presence of the children.[23] The mother consulted a doctor about her injuries.[24]

    [22] Mother’s affidavit, par 96.1

    [23] Mother’s affidavit, pars 56-62, 96.2

    [24] Mother’s affidavit, par 114, Annexure H

1. In January 2011 the father telephoned the mother and said to her “I am going to kill you. I am done with all this shit. Pay back is a bitch. I don’t care if I go to gaol”.[25]

   [25] Mother’s affidavit, pars 69-71

2. In February 2011 a friend of the father approached the mother at her home, threatened her and smashed the glass in her front door, for which he was charged with the offence of “malicious damage”. The children were all present at the home and were understandably alarmed and distressed by the incident.[26]

   [26] Mother’s affidavit, pars 120-122

3. In April 2011 the father telephoned the mother and said to her “I’m coming to kill you tonight slut”.[27]

   [27] Mother’s affidavit, par 74

4. In August 2011, after the existing family violence order expired,[28] the mother and eldest child were harassed by the father and his friend. Thereafter the police issued another provisional family violence order for the protection of the mother and eldest child against the father.[29] That family violence order was extended by the Court on an interim basis on 1 September 2011[30] and ultimately transformed into a final order of 12 months duration on 16 July 2012.[31] It is the last in a long line of such orders.[32]

   [28] Mother’s affidavit, par 78

   [29] Mother’s affidavit, pars 79-85

   [30] Mother’s affidavit, par 89

   [31] Mother’s affidavit, par 115, Annexure I

   [32] Mother’s affidavit, par 112

5. In January 2012 the father drove past the mother and said to her “I am going to kill you, you fucking dog”.[33]

   [33] Mother’s affidavit, par 93

6. The father was charged on various different occasions with assaulting the mother and breaching the family violence orders.[34] The evidence is unclear about the outcome of the prosecutions, but at least some of the prosecutions failed.[35] That does not mean the mother’s allegations in instances where the prosecutions failed were untrue – simply that they were not proven beyond reasonable doubt. However, this Court only need reach conclusions from the evidence on the balance of probabilities (s 140 Evidence Act (Cth)) and her unchallenged sworn allegations against the father in these proceedings are probably truthful and accurate. Of the convictions recorded against the father,[36] this Court can be, and is, comfortably satisfied about his guilt.

   [34] Mother’s affidavit, pars 44, 64, 72, 98-99, 113

   [35] Mother’s affidavit, pars 64, 114

   [36] Mother’s affidavit, pars 100-101

7. The father minimised the occurrence and effects of domestic violence when he discussed the issue with the Family Consultant. He said the children had been exposed to domestic violence “on occasions” which would have affected them “quite a lot”, but he could not elaborate any further.[37]

   [37] Family Report, par 21

8. The father denied to the Family Consultant that he had been abused as a child, disavowed any mental ill health, and did not believe he had any “anger issues” to resolve.[38] In such circumstances, there is no obvious explanation for why the father has behaved so abusively towards the mother and children and no obvious remedy to correct his errant behaviour.

   [38] Family Report, pars 16, 24

9. It is little wonder, therefore, that the mother has now found new rental accommodation for herself and the children, the location of which she wishes to keep secret from the father.[39] The mother is aware she failed the children by remaining in the relationship with the father, which exposed them to domestic violence and abuse for so long.[40] She is now intent on not repeating her mistakes.

   [39] Mother’s affidavit, pars 146-150

   [40] Family Report, par 38

10. I am satisfied there is a need to protect the children from both physical and psychological harm caused by exposure or subjection of the children to abuse and family violence perpetrated by the father. In fact, the need to do so is an overwhelming consideration and completely negatives the objective of ensuring the children enjoy meaningful relationships with the father. The opinion of the Family Consultant must surely be correct when he observed:[41]

    There appears to be little evidence at this point in time to support the father spending time with the children currently, even in a supervised setting…

    [41] Family Report, par 63

Best interests of the children – additional considerations

1. At least the three eldest children clearly expressed their wish not to have any interaction with the father. They are scared of him, which is understandable in light of the abuse they have suffered and the violence they have witnessed.[42]

   [42] Family Report, pars 45, 50, 51, 54, 56

2. The eldest child is barely 11 years of age, so one must be cautious reposing inordinate weight in the views of the children, but their views must carry some weight because they are consistent with their experience of the father.

3. The father’s attitude towards the responsibility of parenthood was and remains sadly lacking for reasons other than the appalling history of family violence and his shameful contravention of family violence orders.

4. He continues to attend the children’s schools, despite the terms of the existing family violence order, oblivious to or disdainful of the effect of the order.[43]

   [43] Mother’s affidavit, pars 141-144

5. Nor does the father pay any child support for any of the children.[44] A responsible parent would help financially maintain his or her children, notwithstanding the deterioration of relationships with the other parent or the children.

   [44] Mother’s affidavit, par 151

6. In the past, the father isolated the mother and children from family and friends,[45] dominated control of the family’s finances, often squandering the family income on alcohol, drugs and gambling,[46] and refused to permit any of the children to participate in sport or extra-curricular activities.[47]

   [45] Mother’s affidavit, pars 102-105

   [46] Mother’s affidavit, pars 106-109

   [47] Mother’s affidavit, pars 129-130

7. The children do now participate in sport and extra-curricular activities[48] and are happy, contented and settled with the mother.[49] The children have not spent any time with the father since about September or October 2010[50] and his only insight into his estrangement from the children is that the twins “could feel abandoned by him”.[51] He did not apparently mention the other three children in that context.

   [48] Mother’s affidavit, pars 131-140

   [49] Mother’s affidavit, par 111

   [50] Family Report, par 26

   [51] Family Report, par 25

8. Any change to the parenting regime which re-introduces the father into the children’s lives will likely deleteriously affect them, just as the mother and Family Consultant fear.

9. I accept the Family Consultant’s opinion that the father demonstrated minimal insight into his behaviour and how the conflict between the parties caused harm to the children.[52]

   [52] Family Report, par 27

10. As a practical consideration, the father’s residential accommodation is unsatisfactory for the children. He lives in a two bedroom cabin in a caravan park that he shares with an adult male friend.[53]

    [53] Family Report, pars 5, 8

11. There remains some concern on the part of the Family Consultant that the children refer to the father by his first name rather than by the term “Dad”. That could only occur at the mother’s direction or with her acquiescence. I accept the opinion of the Family Consultant that the mother’s failure to correct the children is not in their best interests and they should be compelled to refer to the father by reference to his parental title rather than by his first name.[54] An order is made requiring the mother to rectify that anomaly. An additional order is made compelling the mother to protect the children from exposure to denigration of the father.

    [54] Family Report, par 13

Parenting orders

1. The finding of gross domestic violence means that the presumption of equal shared parental responsibility does not apply (s 61DA(2)).

2. The mother has been exercising parental responsibility for the children since separation and there can be no debate that the children will continue to live with her. In such circumstances it is inevitable the mother should be allocated sole parental responsibility for the children.

3. It is therefore unnecessary to consider the children living for equal time with the father, or alternatively, the children spending substantial and significant time with the father.

4. As the Family Consultant observed, “a shared care or equal time arrangement for the children with each of their parents is unlikely to ever be a possibility in these proceedings”.[55] In light of that opinion and the unchallenged evidence adduced by the mother, there can be no question that the father poses too great a risk to the physical and psychological welfare of the children to permit them to spend any time with him. It is appropriate in the circumstances to impose an injunction restraining the children’s interaction with the father and another injunction restraining the father from attending at or near the mother’s residence and the children’s schools.

   [55] Family Report, par 11

5. Allowing for the risk posed by personal interaction between the children and the father, the Family Consultant considered that occasional written communication should occur,[56] and the mother and Independent Children’s Lawyer both adopted that idea. I accept that evidence and orders are consequently made providing for the father to correspond periodically with the children in a manner that will not reveal the residential location of the mother and children. The communication will only serve the purpose of keeping the children in intermittent contact with the father so that they may more easily develop their relationships with him if they choose to do so when they are adolescents or adults.

   [56] Family Report, pars 63, 65

6. The mother and Independent Children’s Lawyer proposed that the mail be transacted through the mother’s legal representatives, but I reject that idea. It unnecessarily ties the mother to lawyers for administrative rather than legal services. The orders require the mother to set up a post office box or alternate address to which the father may direct his mail to the children. If the mother chooses her lawyer’s address as the alternate address that is a matter for her.

7. The Family Consultant considered the father should apologise to the children for his past behaviour and acknowledge to them his need for therapy in his letters.[57] The prospect of him doing so is remote, given that he appears to lack any real contrition for his past behaviour and fails to recognise the need for attitudinal change. The orders do not, and could not, precisely prescribe the content of the written messages of the father to the children.

   [57] Family Report, par 63

8. For abundant caution, an order is made restraining the mother’s use of corporal punishment upon the children. That is because the father alleged to the Family Consultant that the mother used such discipline in the past.[58]

   [58] Family Report, par 22

9. The Family Consultant recommended orders compelling the father’s attendance at counselling.[59] Apart from the father’s apparent disinterest in such therapy, the Court has no power to make such unconditional final orders (see Marriage of L & T (1999) 25 Fam LR 590 at [49]-[60]; Jacks & Samson (2008) FLC 93-387 at [200]-[227]).

   [59] Family Report, par 66

10. The Independent Children’s Lawyer proposed an order compelling the mother to continue her counselling, consistently with the Family Consultant’s recommendation,[60] but for the same reason, the Court has no power to make an order to that effect either.

    [60] Family Report, par 69

11. The Independent Children’s Lawyer also proposed an order compelling the mother to submit the children to counselling, again consistently with the Family Consultant’s recommendation.[61] There was no evidence that any of the children have so far received any counselling. The Independent Children’s Lawyer conceded the proposed order was barren of prescriptive detail, in light of which the proposal was refined to one which required the mother to submit only the eldest three children to counselling with a therapist designated by the Independent Children’s Lawyer for as long as that therapist deems necessary.

    [61] Family Report, par 69

12. I decline to make that order. The mother is invested with sole parental responsibility, just as she, the Independent Children’s Lawyer and the Family Consultant desired. She can decide, as an incident of such responsibility, whether and when one or more of the children undertake counselling. The Court has no evidence about other important considerations which would influence that decision, such as whether the proposed therapy could be obtained without cost to the mother, whose financial circumstances are very modest.

13. The Family Consultant recommended the father participate in a post-separation parenting program.[62] The Court does have the power to order his attendance at such a program (s 65LA), but it would likely be futile so I decline to make the order. If the father cannot muster the enthusiasm to participate in these proceedings, which resulted in the drastic restriction of his relationships with the children, ordering him to participate in such a program would serve no useful purpose.

    [62] Family Report, par 68

14. The Independent Children’s Lawyer sought an order restraining the father from bringing any further proceedings until such time as he had fulfilled certain conditions, consistently with the recommendation of the Family Consultant.[63] The statutory basis for the Court to make such an order was not explained and in the absence of comprehensive argument on the point I decline to make the proposed order.

    [63] Family Report, par 67

15. The Court has limited statutory power to make an order of the type proposed by the Independent Children’s Lawyer (s 118(1)(c)), but it should be exercised sparingly even when the circumstances for its invocation are present (see Marriage of Paskandy (2005) 33 Fam LR 509 at [63])

16. However, the Independent Children’s Lawyer’s proposal went further than the power conferred upon the Court by s 118(1)(c). He proposed the father be restrained from the commencement of further proceedings even though the current proceedings were not contended to be frivolous or vexatious, which is a pre-condition for the enlivenment of s 118.

17. This Court, as a superior court of record (s 21(2)), undoubtedly has an implied power to enable effective exercise of its jurisdiction (see Allesch v Maunz (2000) 203 CLR 172 at 187; Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 648; Williams v Spautz (1992) 174 CLR 509 at 518-519), but that power relates to control of proceedings already pending before the Court. There is considerable doubt about whether the Court has implied power to restrain the institution of proceedings in a broader context than is presently enabled by s 118 of the Act and the Rules (see Vlug v Poulos (1997) FLC 92-778 at 84,603-84,606).

18. The mother deposed that she wanted an order compelling the father to sign passport applications for the children, but no such order was formally proposed by her. I decline to make such an order. No submissions were made on the issue, no evidence was adduced of the need for the children to hold passports, and the mother can make decisions of that sort for the children as and when they arise as part of her sole parental responsibility for them.

I certify that the preceding seventy-seven paragraphs (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 10 August 2012.

Associate: 

Date:  10 August 2012