KHALIL & KHALIL

[2017] FamCA 1081

FAMILY COURT OF AUSTRALIA

KHALIL & KHALIL [2017] FamCA 1081

FAMILY LAW – CHILDREN – Parental responsibility – where the presumption of equal shared parental responsibility does not apply due to family violence perpetrated between the parties – where the parties’ relationship is too volatile for them to share the exercise of parental responsibility – where the residential parent must have exclusive parental responsibility for the children – Ordered the father shall have sole parental responsibility for the children

FAMILY LAW – CHILDREN – With whom a child lives – where it is not possible for the children to have meaningful relationships with both parents – where the children are strongly opposed to spending time with the mother – where there are concerns regarding the mother’s ability to maintain her sobriety – where the psychological harm of reversing the children’s residence is liable to exceed the harm they suffer by staying with the father – Ordered the children shall live with the father – where no orders are made for the children to spend time or communicate with the mother

FAMILY LAW – CHILDREN – Family violence – where both parties engaged in family violence and have criminal convictions for assaulting the other – where the children are at risk of serious psychological harm – where the mother is alleged to have sexually abused the youngest child

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

APPLICANT: Mr Khalil

RESPONDENT: Ms Khalil

INDEPENDENT CHILDREN’S LAWYER: Ms Fielden, Fielden & Associates

FILE NUMBER: NCC 322 of 2013

DATE DELIVERED: 18 December 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 27, 28, 29 & 30 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Picker

SOLICITOR FOR THE APPLICANT: John Byrnes & Associates

COUNSEL FOR THE RESPONDENT: Ms Ticehurst

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Graham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fielden, Fielden & Associates

Orders

1. All former orders in respect of the following children are discharged:

   (a)B, born … 2004; and

   (b)C, born … 2007.

2. The father shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.

3. The children shall live with the father.

4. The father is restrained from causing or permitting the removal of the children from the Commonwealth of Australia and, for that purpose, it is requested that the Australian Federal Police place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on that Watch List for the remainder of their minority.

5. The father is restrained from denigrating the mother 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 mother.

6. The father shall authorise and request the principal of any school attended by the children to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the children.

7. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.

8. Within seven days hereof the father shall cause the children to be delivered to the Senior Family Consultant of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Senior Family Consultant, the reasons for such orders.

9. 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.

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

11. Costs are reserved for 28 days.

12. Any and all other applications pursuant to Part VII of the Family Law Act are dismissed.

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 Khalil & Khalil 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 322 of 2013

Mr Khalil

Applicant

And

Ms Khalil

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant father and respondent mother are in dispute about arrangements for their two children and the division of their property under Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”).

2. The father commenced the parenting proceedings under Part VII of the Act in August 2016, but the property settlement dispute did not arise until the mother sought relief under Part VIII in March 2017. The property dispute is not yet ready for hearing so only the parenting dispute proceeded to trial in November 2017 and these reasons relate to only that aspect of the parties’ dispute.

3. For more than a year, the children have lived with the father and not seen or spoken with the mother. The parties each wanted both children to live with them and to exercise exclusive parental responsibility for them. Unfortunately, neither party countenanced the children having any meaningful relationships with the other party.

Short history

1. The parties’ vexed relationship began in about 1991 and finally ended in August 2016, though they endured several intervening separations and reconciliations.

2. Their two children were born in 2004 and 2007 and were respectively aged 13 and 10 years at the time of trial.

3. This is the second time the parties’ dispute over the children has descended into litigation. The first proceedings were commenced by the father in February 2013 in the Federal Circuit Court, after the mother took the children and fled to Queensland. The father successfully obtained location and recovery orders and so the mother and children returned to NSW. Those proceedings ended when final orders were made by the Federal Circuit Court in April 2014. By then, the parties were again living in the same house and, significantly, the orders were made with their consent. The orders provided for them to have equal shared parental responsibility for the children and, in the event they eventually ceased to live under the one roof, for the children to live with the mother and to spend substantial amounts of time with the father.

4. As it transpired, the parties continued to live under the one roof for two more years until August 2016, though there was no discernible improvement of their discordant relationship.[1] Their residential circumstances changed at that point when the father concluded the mother sexually abused the youngest child, following the child’s report of such an incident to him. According to the mother, the father refused to allow her to return to the family home and she has not seen or communicated with either child ever since.[2] According to the father, he was merely implementing a safety plan devised by the child welfare authority, following his report of the alleged sexual abuse for investigation.[3]

   [1] Mother’s affidavit, para 82

   [2] Mother’s affidavit, paras 7, 8

   [3] Father’s affidavit, paras 44-46

5. The father commenced these proceedings in this Court almost immediately afterwards in August 2016. With the parties’ consent, interim orders were made in November 2016. Those orders suspended all previous orders and, essentially, made provision for the children to live with the father and to spend supervised time with the mother. However, the children have never once spent time with the mother under those orders. The father asserted the children refused to do so despite his encouragement, whereas the mother suspects he discourages them from pursuing their relationships with her.

6. The parties’ stand-off over the failure to implement the interim orders continued until the trial in November 2017.

Proposals

1. The father sought the orders set out within the minute of orders he tendered,[4] which represented only slight alteration of the proposal set out in his Initiating Application filed on 29 August 2016. He wanted the children to live with him and for him to have exclusive parental responsibility for them. Aside from proposing an initial period of six months supervision of the children’s visits with the mother, he could not formulate any proposal for the children to spend time or communicate with the mother thereafter and left that decision entirely to the Court. The proposal was an artifice anyway, since he later admitted in evidence he did not believe the orders could be implemented because the children would refuse to submit to any orders that required them to spend any time with the mother.

   [4] Exhibit F1

2. The mother sought the orders set out within the minute of orders she tendered,[5] which similarly represented only slight alteration of the proposal set out in her Further Amended Response filed on 29 March 2017. She wanted the children to live with her and for her to have exclusive parental responsibility for them. However, while she had earlier proposed leaving the decision about the manner in which the children should spend time or communicate with the father entirely to the Court, she now proposed an order be made to expressly forbid it.

   [5] Exhibit M1

3. The Independent Children’s Lawyer did not begin the trial with any formative proposal. Prior to the commencement of final submissions, the Independent Children’s Lawyer tendered a minute of the orders she proposed.[6] In effect, she proposed the mother should have sole parental responsibility for the children and they should live with her, subject to her restraint from consuming alcohol while the children are in her care. The Independent Children’s Lawyer furthermore proposed that there be an embargo upon any interaction between the father and children for three months, to help ease the establishment of their new residence with the mother, after which time they would spend time with him on alternate weekends and for parts of school holidays.

   [6] Exhibit ICL2

Evidence

1. The father relied upon his affidavit filed on 28 July 2017.

2. The mother relied upon:

   (a)Her affidavit filed on 21 June 2017; and

   (b)The affidavit of Mr D filed on 8 August 2017.

3. The parties and the Independent Children’s Lawyer also relied upon the following two documents prepared by the Family Consultant:

   (a)The Memorandum dated 21 October 2016; and

   (b)The Family Report dated 17 March 2017.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. 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 the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (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 significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, 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). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. In the first proceedings, concluded in early 2014, the children were reported to have positive relationships with the mother,[7] but curiously, when the Family Consultant conferred with the family in October 2016 in these proceedings, she noted there was “significant dispute” between the parties as to whether or not the children had positive relationships with the mother prior to their separation some months before in August 2016.[8] By October 2016, the children had only been separated from the mother for a couple of months, but were already highly critical of her in discussions with the Family Consultant.[9] The Family Consultant was aware of the mother’s belief in the father’s alignment of the children against her and also of his denial of doing so.[10] She considered the dispute was “extremely complex” and the parties’ allegations against one another of misconduct were not necessarily mutually exclusive.[11]

   [7] Family Report, para 55

   [8] Memorandum, para 14

   [9] Memorandum, paras 15-24

   [10] Memorandum, paras 36, 37

   [11] Memorandum, paras 35, 38

2. Following the initial consultation, the Family Consultant considered it was “imperative” for the Court to gain an “independent assessment of the children’s relationship[s] with the mother”, since it was important for them to have the opportunity to “re-build their relationship[s]” with her.[12] Inferentially, if the children’s relationships with the mother needed to be re-built, the Family Consultant must have accepted the relationships were already seriously deteriorated, though she remained open-minded about whether the deterioration was caused by the father’s alignment (as the mother contended) or by the children’s realistic estrangement from the mother due to their adverse experiences with her (as the father contended).

   [12] Memorandum, para 39

3. The Family Consultant was later ordered to prepare a Family Report, given her recommendation for more thorough assessment of the quality of the children’s relationships with the mother. She conferred with the family again in March 2017, but the situation was as bad as she feared. In October 2016, both children said they did not wish to see the mother at all, even under supervision.[13] In March 2017, the eldest child was so inconsolable about the prospect of her re-introduction to the mother that the Family Consultant decided against it. The youngest child was not so demonstrative, but he was also opposed to any re-introduction with the mother.[14] Both were insistent they did not want to see her “ever again”.[15] Consequently, the Family Consultant decided not to observe the children in the mother’s company.

   [13] Memorandum, para 23

   [14] Family Report, paras 89-98

   [15] Family Report, paras 15, 98

4. The children’s resistance to restoration of their relationships with the mother was not feigned and reserved only for demonstration to the Family Consultant. They actively resisted compliance with the interim orders to which the parties agreed in November 2016. In the presence of the Independent Children’s Lawyer at her school in December 2016, the eldest child became distressed and began vomiting at the prospect of being forced to spend time with the mother.[16] The children’s alarm was also on display when the mother tried to see them at their counsellor’s rooms.[17] The mother knows both children do resist compliance with the orders,[18] though she attributes their attitude to the father’s covert encouragement for them to resist any contact with her. The eldest child even now refuses to exchange text messages with the mother,[19] which is significant, because she would probably be able to do so surreptitiously without fear of discovery by the father if she really wanted.

   [16] Family Report, para 13

   [17] Father’s affidavit, para 68

   [18] Family Report, para 14

   [19] Mother’s affidavit, para 118

5. The only available inference is that the children’s resistance to the mother is genuine. It is neither a fabrication nor a figment of the father’s imagination but, of course, it could still be a product of his deliberate or inadvertent exertion of pressure upon them to reject the mother, as she honestly believes. The children’s vehement rejection of the mother does not of itself answer the underlying conundrum about why they harbour such an adverse attitude towards her but, importantly, it does make quite plain the practical impediment to any orders which would require them to live or spend time with her.

6. The only logical conclusion to reach is that, even if the children do still regard their relationships with the mother as being meaningful, they do not currently derive any benefit from those relationships at all, so s 60CC(2)(a) of the Act becomes intrinsic to the determination of the litigation. More particularly, can the children’s relationships with the mother be successfully restored so they are able to derive the benefit they desirably should from those relationships?

7. On that precise issue, the Family Consultant shrewdly observed:[20]

   …it does not seem possible for the children to have ongoing and meaningful relationships with both parents.

   [20] Family Report, para 19

8. The parties recognised that fact to be uncontroversial, because neither could formulate any realistic proposal for how the children could spend time or communicate with the non-residential parent.

9. The mother ultimately sought an order (assuming the children live with her) expressly precluding them from spending any time with the father at all,[21] because she honestly believes he would work assiduously to undermine their residence with her to try and win them back. Most probably, she is correct. She could only therefore protect herself and the children against that eventuality by thwarting the children’s interaction with the father.

   [21] Exhibit M1, Order 4

10. As for the father, he admitted in evidence that (assuming the children live with him) his express proposal for them to spend supervised time with the mother for the next six months[22] would never work. He was obviously right, because he has not been able to successfully implement the interim orders, which already require the children to spend supervised time with the mother, for the past 12 months. He faintly implied the interim parenting orders were undercut by a family violence order made by the State court against the mother to protect the children after an incident at the family home in December 2016, but the terms of that family violence are consistent with the interim parenting orders.[23]

    [22] Exhibit F1, Order 3

    [23] Exhibit M2

1. Anyway, even if orders were made in accordance with the father’s proposal and the first six months of supervised visits could unexpectedly be implemented, he had no idea what would happen thereafter. He certainly made no proposal about it. He honestly believes the children are in danger in the mother’s care, either because she might sexually abuse them or because they will be exposed to her aberrant behaviour when intoxicated. Because he honestly holds those fears, he cannot genuinely support them spending any time with her.

2. The Family Consultant maintained her view the dispute was “complex” because both parties contributed to the fracture of the children’s relationships with the mother.[24] She realised that, regardless of with whom the children live, they will most probably not have any relationships with the non-residential parent.[25] Although the Family Consultant seemed inclined to attribute most blame to the father for the cause of that predicament, the attribution of blame did not change the probability of the underlying fact. Given the positions adopted by the parties, the inability of the children to enjoy relationships with the non-residential parent seems virtually certain.

   [24] Family Report, para 113

   [25] Family Report, para 114

3. That raises the question about the utility of making orders which attempt to reverse the children’s residence, because two unappealing outcomes looked probable. Either the children will eventually settle into residence with the mother and then reject the father to alleviate the pressure he exerts upon them to owe their loyalty to him, or alternatively, their loyalty to the father is now too fortified for them to successfully transition to residence with the mother and they will abscond back to the father.

4. In the first instance, little would then have been achieved, besides the transference of the children’s allegiance to the mother at the father’s expense. They will still be allied with the residential parent and denied meaningful relationships with the non-residential parent.

5. In the second instance, the unsuccessful attempt to change the children’s residence would cause them considerable emotional torment and most probably lead to another bout of litigation, either to enforce the new residential orders (at the mother’s instigation) or to review and again reverse the residential orders to correlate with the reality of the children’s loyalty to the father (on his application).

6. Although the Family Consultant considered either of those alternatives to be the most likely, she posited a hybrid possibility: the youngest child settling in with the mother, but the eldest child absconding to the father.[26] During her cross-examination, the Family Consultant said she was reasonably confident the youngest child would submit to orders requiring him to live with the mother, but she was most unsure about the eldest child, because she is much more headstrong and expresses her support for the father much more forcibly. The Family Consultant envisaged the possibility of the eldest child resisting orders to live with the mother, staying with the father, and deepening her anger with the mother for “taking” the youngest child from her and the father.

   [26] Family Report, para 116

7. Arguably, it would be a much worse outcome for the siblings to be split between the parties. In instances of high parental conflict, of which this case is a clear example, the best interests of siblings are usually most ably served by them living together so they can offer each other mutual support to more easily weather the emotional tempests created by their parents. Significantly in this case, on several occasions, the Family Consultant observed the way in which the youngest child reacted to the eldest child’s cues and endorsed her views.[27] The Family Consultant said in cross-examination the youngest child was “strongly influenced” by the eldest child. Most likely, the youngest child tacitly relies upon the eldest child to help him deal with the emotional crisis caused by the parties’ intense conflict.

   [27] Memorandum, para 13; Family Report, paras 89, 99

8. The children would undoubtedly benefit from having meaningful relationships with both parents, but they are unable to do so. Whether they live together or separately, their relationships with their residential parent will effectively foreclose their chance of having relationships with the non-residential parent.

Section 60CC(2)(b)

1. The evidence adduced by the parties was designed to enable findings to be made about the iniquitous behaviour of the other, though their attempts to resurrect antiquated complaints for strategic advantage were thwarted. The parties agreed to final orders in April 2014, which orders enshrined their mutual substantial and unconditional involvement in the children’s lives, so any dissatisfaction about one another’s antecedent conduct must have merged in their agreement that such an arrangement reflected the children’s best interests at that point in time.

2. With the parties’ attention focussed on the more recent events which motivated their mutual desire to review the past orders, the two issues to emerge, at least in so far as s 60CC(2)(b) of the Act was concerned, were the instances of mutual family violence and the mother’s alleged sexual abuse of the youngest child. The father admitted the only catalyst for his institution of these proceedings was his belief in the mother’s sexual abuse of the youngest child.

   Family violence

3. The parties’ relationship was an unhappy one, despite its longevity. As the Family Consultant correctly observed, the past occurrence of family violence between the parties and the children’s exposure to it were acknowledged facts.[28] The only dispute concerned who was the worst culprit, but there were two reasons why it was difficult, if not pointless, to apportion overall guilt: first, both parties have criminal convictions for assaulting the other, which convictions are immutable proof of their violent conduct, and second, both parties’ veracity was impeached, so their conflicting versions of past violent incidents comparably lacked reliability.

   [28] Family Report, para 106

4. The father lacks reliability as a witness because:

   (a)He denied to the Family Consultant that he consented to the interim parenting orders made in November 2016,[29] when he clearly did. His lack of consent only pertained to the identity of two supervisors,[30] not the remainder of the orders. There was no misunderstanding, because the Family Consultant confirmed in cross-examination that the father denied he consented to all of the interim orders;

   (b)He admitted to the Family Consultant he lied in the evidence he gave in criminal proceedings about an incident between the parties in April 2016, albeit he was purporting to try and protect the mother;[31]

   (c)He denied he was “violent or abusive”,[32] even though his conviction for assaulting the mother in January 2013 proves he must have been;

   (d)He gave inconsistent accounts about the duration of the mother’s past periods of abstinence from alcohol consumption, variously alleging it was for no more than one month,[33] for more than a year,[34] and for many years;[35]

   (e)The police independently concluded, in April 2016, he was coaching the children to make false allegations of violence against the mother;[36]

   (f)The versions he gave to the police of past violent incidents within the family home were occasionally contradicted by the eldest child, when she was so young and guileless that her version of events was probably reliable. For example:

   (i)The eldest child told the police in December 2011, when she was only seven years of age, that she saw the father scratch his own face and try to blame the mother for the infliction of that injury;[37] and

   (ii)The eldest child told the police in January 2013, when she was only eight years of age, she was not hit by the mother as the father alleged.[38]

   [29] Family Report, para 12

   [30] Notation B made on 23 November 2016

   [31] Family Report, para 58

   [32] Father’s affidavit, para 58

   [33] Father’s affidavit, para 59

   [34] Father’s affidavit, para 39

   [35] Family Report, para 22

   [36] Family Report, para 61

   [37] Family Report, para 40

   [38] Family Report, para 44

5. The mother also lacks reliability as a witness. She made numerous inconsistent statements about her misuse of alcohol, though the examples of her dishonesty were arguably not as egregious. Her dishonesty is still significant though because her alcohol consumption was integrally related to her past violent conduct. In October 2016, she told the Family Consultant her use of alcohol was only occasional after 2012, but that she was entirely abstinent after August 2016.[39] She contrarily told staff of the child welfare authority only a month before, when interviewed in September 2016 in relation to the sexual abuse allegations, that she did not consume alcohol at all following her rehabilitation in 2010.[40] In fact, her statements to the child welfare authority and/or Family Consultant were false, because she undoubtedly:

   (a)Was found lying on the floor of the family home, in October 2011, heavily intoxicated and was taken to E Town Hospital;[41]

   (b)Was admitted to E Town Drug and Alcohol Unit for five days, in October 2012, for detoxification;[42]

   (c)Was involuntarily detained by ambulance officers and presented to the E Town Hospital, in February 2014, intoxicated with suicidal ideation (following her false allegation to the police that her self-inflicted injury was caused by the father);[43]

   (d)Only a month later, in March 2014, falsely reported to the Family Consultant in the first round of litigation that she had been abstinent from alcohol for the preceding 13 months;[44]

   (e)Was engaged with AA under the supervision of a child welfare caseworker in 2014;[45]

   (f)Was observed by police to be heavily intoxicated when they attended the parties’ home, in October 2014, to settle their dispute;[46]

   (g)Presented to F Hospital, in March 2016, having consumed alcohol and complaining of her assault;[47] and

   (h)Presented to E Town Hospital, in May 2016, possibly intoxicated and suicidal.[48]

   [39] Memorandum, para 28; Family Report, para 25

   [40] Memorandum, para 29, Annexure, page 5 of 5

   [41] Memorandum, Annexure page 2 of 5; Family Report, para 38

   [42] Family Report, para 41

   [43] Memorandum, Annexure page 1 of 6; Family Report, para 53

   [44] Family Report, para 54(ii)

   [45] Memorandum, Annexure page 2 of 5

   [46] Family Report, para 56

   [47] Memorandum, Annexure page 2 of 6, page 5 of 5; Family Report, para 57

   [48] Memorandum, Annexure page 1 of 6; Family Report, para 64

6. The father was convicted of assaulting and intimidating the mother in January 2013 and the mother was convicted several times between 2010 and 2016 for assaulting the father and contravening family violence orders. Both parties are currently defending further prosecutions for misconduct towards the other:[49] the father in relation to an incident in March 2016[50] and the mother in relation to incidents in April 2016[51] and December 2016.[52]

   [49] Family Report, paras 28-29, 43; Mother’s affidavit, para 71

   [50] Mother’s affidavit, paras 30-31, 86; Family Report, para 6

   [51] Mother’s affidavit, paras 96-98; Family Report, para 6

   [52] Mother’s aff, paras 24-29, 111-112; Father’s aff, paras 54-56; Family Report, para 6

7. Numerous family violence orders have been made in the past, governing interaction between the parties, but only one is now current.[53] It is an interim order protecting the mother from the father, relating to the incident between the parties in March 2016, the proceedings in relation to which are still pending before the State court and are contested by the father.

   [53] Family Report, para 6; Exhibit M3

8. Incontrovertibly, both parties perpetrated family violence against the other on many occasions. In the relatively recent past, although the parties maintain different versions of the events, they engaged in violent confrontations in October 2014,[54] March 2016,[55] April 2016,[56] May 2016,[57] August 2016,[58] September 2016,[59] and December 2016.[60] Their conduct on those occasions assumed various forms, ranging across overt physical violence, threats of violence, heated argument, profane verbal abuse, and smouldering resentment. The police were often summoned, sometimes by concerned neighbours, to quell disturbances between them. Regrettably, the children often witnessed such incidents and have been gravely disturbed by their experiences.

   [54] Family Report, para 56; Father’s affidavit, para 40

   [55] Family Report, para 57; Father’s aff, paras 42-43; Mother’s aff, paras 30-31, 86-93

   [56] Family Report, para 58; Mother’s affidavit, paras 96-98

   [57] Family Report, para 64

   [58] Family Report, para 65; Mother’s affidavit, paras 32-40

   [59] Mother’s affidavit, paras 107-110

   [60] Family Report, para 84; Mother’s aff, paras 24-29, 111-112; Father’s aff, paras 54-56

9. The eldest child pitifully told the Family Consultant in March 2017, when she objected to seeing the mother:

   I just wanna live happily [sic]

10. Evidently, to say such a thing, she must not have felt as though she was able to live happily in the maelstrom of her parent’s conflict. Although she was not then spending any time with the mother (as she wanted), she knew the mother wanted to restore their relationship and the spectre of that outcome hung over her in this unresolved litigation.

11. Most likely, the children realise they are unable to enjoy happy, stable, and secure lives while ever both parties remain actively involved in their lives, fighting for parental supremacy and control. The parties are incapable of mutual, respectful engagement in the management of the children’s future. If they both remain involved, their acute conflict will probably continue to poison the family milieu. There has been some respite since the last incident in December 2016, in relation to which the mother was prosecuted,[61] but the respite is only due to the parties having had nothing to do with one another. They have not been meeting to exchange the children, as they continue to flout the interim orders made in November 2016. The mother does not want to disclose her residential address to the father because she still fears being victimised by him, so her worry about family violence has not subsided.[62]

    [61] Mother’s affidavit, paras 24-29, 111-112

    [62] Mother’s affidavit, para 106

12. The children’s continuing exposure to family violence between the parties is likely to cause them serious psychological harm, if it has not already done so. They require protection against such actual or prospective harm, which can only really be guaranteed by the effective elimination of one parent from their lives for the remainder of their minority.

    Alleged sexual abuse

13. On or about 17 August 2016, the youngest child told the father the mother had “touched” and “tickled” him on and around the groin and genitals. He believed the youngest child’s report to be truthful, considered the mother’s conduct was sexually abusive, and immediately reported the allegation to the police for investigation. The police then notified the child welfare authority.

14. Staff of the child welfare authority moved swiftly to interview the child on 18 August 2016. The Family Consultant discerned some inconsistency between the father’s report of the youngest child’s disclosure and the youngest child’s own description of the incident during his formal interview, but the gist of the complaint was the same.[63] He contended it happened several times. The mother later submitted to an interview by staff of the child welfare authority in September 2016 and, while she denied the allegations of sexual abuse, she admitted she may have tickled him around the groin when he was much younger.[64] She gave evidence-in-chief to the same effect.[65]

    [63] Family Report, paras 66, 68, 108

    [64] Family Report, para 74

    [65] Mother’s affidavit, para 61

15. The child welfare authority did not substantiate the alleged sexual abuse and did not consider there was sufficient evidence to establish the commission of a criminal offence, but later notified both parties it did substantiate the “risk” of sexual abuse.[66]

    [66] Family Report, paras 69, 77; Mother’s affidavit, para 63

16. The evidence was insufficiently strong to permit any factual finding in these proceedings that the mother sexually abused the youngest child. Indeed, no such finding was even sought, so the father’s absolute belief in the mother’s sexual abuse of the youngest child was not vindicated. However, there were some disconcerting features of the evidence which do merit close attention. In particular:

    (a)There was no dispute the youngest child did actually complain to the father in August 2016 in terms to the effect that the mother approached him in bed, put her hand down his pants, and touched him on and around his genitals. Regardless of whether it was wise to do so, the father recorded the youngest child’s complaint to verify it;[67]

    (b)When the youngest child made the complaint, he was aged nine years: old enough to know his genitals were private, old enough to know the relatively serious implications of the allegation he made about the mother’s invasion of his privacy in that way, and probably mature enough to withstand any coercion by the father to concoct and adhere to an entirely false story;

    (c)The youngest child independently repeated the story to the staff of the child welfare authority and, while he was uncertain about when and how often it occurred, the gist of his story remained consistent;

    (d)The youngest child also later independently repeated the story to his counsellor;[68]

    (e)The mother knew the staff of the child welfare authority concluded the child genuinely “did not like” whatever she did to him;[69] and

    (f)The mother admitted tickling the youngest child around the “groin area” and “pelvis”, which was at least consistent with the child’s report.

    [67] Exhibit ICL1

    [68] Family Report, para 86

    [69] Mother’s affidavit, para 61

17. Inferentially, the mother meant she tickled him intentionally as an incidental part of a normal, healthy, tactile relationship between a parent and infant, but did not do so for her sexual gratification. Significantly, she asserted she tickled him in that way “when he was three” and “years ago”. If true, such incidents with such a young child would be much more innocuous, but acceptance of the mother’s evidence depends upon her characterisation as a credible witness and the constraints upon her veracity have already been addressed. That is not to say all of her evidence is inherently incredible, but it cannot be accepted without careful consideration.

18. The youngest child and the mother plausibly harbour quite different, but honest, impressions about what occurred between them: his impression being sinister and her impression being innocent. The evidence implies the youngest child reported to the father that the mother told him, at the time of the incident, it occurred by accident.[70] If she did so, her apology for accidently touching his genitals could have been either genuine remorse or merely a ruse to excuse the sexual molestation. The problem is that the boundaries of sexual propriety involved in such play between a parent and child are liable to be blurred if, for example, the child is older than mere infancy when it occurs, the adult actually tickles the child’s genitals and not merely around the child’s abdomen, the incident occurs furtively with no other family members present, or the fondling is not accompanied by the participants’ mutual laughter and appreciation that it is only a game. The evidence was scant about such attendant details.

    [70] Exhibit ICL1

19. The evidence tends to preclude the summary rejection of the youngest child’s allegations as bald fabrication, given the mother’s admission about the occurrence of some generically similar incident in the past and the child’s assertion of the mother’s apology. Most likely, some incident did occur (more than once) between the mother and youngest child which caused him to genuinely feel violated, but whether he objectively had good reason to feel that way is another question altogether. The available evidence does not capably answer that question. The mother may have acted improperly, but that would be a damning conclusion to reach on relatively sparse evidence.

1. Even if the mother did over-step the mark of good-natured play with the youngest child in the past, she is unlikely to ever do so again. The furore the youngest child’s complaint against her caused in this litigation is more than enough deterrent to her repetition of such behaviour. The child’s experience of the immediate remedial response to his complaint by both the father and the child welfare authority is also a lesson to him about how his complaints of impropriety against adults will be formally reported and seriously investigated. The exhaustive evaluation of the issue in this litigation has been a salutary experience for all concerned.

2. In such circumstances, the children probably do not need any protection against harm they are liable to suffer through subjection to sexual abuse by the mother. The risk of its occurrence is not unacceptably high.

3. However, that does not mean the issue between the mother and youngest child has no bearing upon the outcome of these proceedings. Importantly, the youngest child’s alleged experience of the mother touching him on or around his genitals at some time in the past, which he did not like and he now knows caused a furore which spread beyond the confines of the family, are factors which probably incline him against restoration of his relationship with the mother.

Children’s best interests – additional considerations

1. The mother’s past misuse of alcohol was an issue of serious interest in the proceedings. There is no doubt she misused alcohol in the past, despite her attempts to minimise the fact.

2. In October 2011, the eldest child found her prostrate on the floor, unable to be roused. The child, who was then still only seven years of age, was so alarmed she rang 000 for help. When the mother was roused and somewhat coherent, she conceded she was alcoholic and repeated her wish to die.[71] Subsequently, at least up until 2016, her continued misuse of alcohol resulted in her admissions to hospitals and alcohol rehabilitation facilities for treatment, even as an involuntary patient on one occasion in 2014. The mother was impelled to admit in cross-examination that all of her alcohol consumption after parenting orders were first made between the parties in April 2014, up until those orders were suspended in November 2016, occurred in breach of an injunction.[72]

   [71] Family Report, para 38

   [72] Order 1.16 made on 16 April 2014

3. The mother told the Family Consultant that “alcohol only really became a problem for [her] in 2010 and again in 2012”,[73] but during cross-examination she said she did not believe she has had “a problem with alcohol since 2010”. Aside from the inconsistency, those statements were gross trivialisations of her problem.

   [73] Family Report, para 25

4. The mother submitted to tests in October 2016,[74] December 2016,[75] and January 2017,[76] which returned negative results for alcohol misuse, suggesting she significantly moderated her alcohol consumption during late 2016. But she has not been completely abstinent. She admitted in cross-examination she has consumed alcohol on a few occasions since October 2016 which, for someone like her who has such a marked history of alcohol misuse, dangerously risked causing her relapse. Such episodes of casual drinking worried the Family Consultant, who considered the mother should be permanently abstinent as a pre-condition to the children living with her.[77] If she could not abstain from all use of alcohol, knowing it was such an issue of concern in these proceedings and that the Family Consultant considered her abstinence to be integral to the success of her application for the children’s residence, it at least suggests she lacks the necessary conviction to overcome her reliance upon alcohol.

   [74] Exhibit M4

   [75] Mother’s affidavit, Annexure Q

   [76] Exhibit M5

   [77] Family Report, paras 115, 120-121

5. The mother was resistant to the idea that the children’s estrangement from her was explained, even in part, by her past misuse of alcohol and misconduct in the children’s presence. If she truly believed the children’s estrangement from her was entirely unrelated to her own behaviour then she lacks insight, which is a manifestation of her impaired parenting capacity. On the other hand, if she realised the connection but falsely disavowed it, then she failed to fully accept responsibility for her past behaviour and her contrition is incomplete. She eventually conceded in cross-examination the children’s apprehension about her might be related in some way to her past behaviour, but the concession had to be tediously extracted from her.

6. As the Family Consultant observed, the children’s estrangement from her is not entirely due to the father’s conduct. She contributed to the predicament by her misuse of alcohol and her aberrant behaviour around the children.[78] That conclusion is amply borne out by the evidence of incidents such as the following:

   [78] Family Report, para 113

   (a)In 2011, the eldest child needed to call 000 for help when she found the mother unresponsive on the floor of the family home;

   (b)In 2013, the eldest child complained to staff at her school of being hit by the mother;[79]

   (c)In early 2013, the mother fled with the children to Queensland and kept them away from the father and their home for several months. The children have continued to express their anxiety to their school counsellors about being abducted by the mother again;[80]

   (d)In March 2014, the children were interviewed by staff of the child welfare authority and both spoke of their worry about the mother, either about her drinking alcohol or injuring herself;[81]

   (e)In May 2014, the father summoned an ambulance for the mother, who was observed by officers to be distracted and confused. She admitted she “snapped” and the children witnessed her behaviour that night;[82]

   (f)In October 2014, police were called to a domestic disturbance between the parties, where they heard the children crying and pleading with the mother to go to sleep. The police needed to forcibly remove a knife from the mother’s possession and restrain her with handcuffs, of which the children were presumably aware if they were in the house;[83]

   (g)In April 2016, the eldest child reported to her school counsellor that the mother smashed a window, a door, and a phone, to which disturbance the police were summoned. The mother was taken away in an ambulance;[84]

   (h)In December 2016, several months after the parties’ separation, the mother attended the family home knowing the father was not there. She must have suspected the children were inside with a minder (as they were) and she frightened them by demanding entry to the home. The mother denied committing any offence, but she was later charged and convicted of breaching a family violence order by attending the home.[85] Later, in May 2017, a family violence order was made protecting both children from the mother for a period of 12 months,[86] which family violence order arose out of the incident in December 2016.[87]

   (i)The children also later learned the mother clandestinely attended the family home on a second occasion in December 2016, only a couple of days after the preceding incident, at which time she removed items of property from the home.[88]

   (j)In May 2017, the mother defended her criminal prosecution before the State court and her counsel cross-examined the eldest child (presumably on instructions), who was a prosecution witness, about the unreliability of her evidence. She did so even though she told the Family Consultant only two months before there was “no way” she would allow it to happen because she realised how “horrible” it would be for the eldest child.[89] When informed of those facts, the Family Consultant said she was “very concerned” about the mother’s decision.

   [79] Family Report, para 51

   [80] Family Report, paras 62, 73, 79

   [81] Family Report, para 55

   [82] Family Report, para 64

   [83] Family Report, para 56

   [84] Family Report, para 62

   [85] Family Report, para 84

   [86] Exhibit M2

   [87] Mother’s affidavit, para 11

   [88] Family Report, para 85

   [89] Family Report, para 84

7. Those incidents exemplify why the children have good cause to be wary of the mother and explain, at least in part, their estrangement from her. Their personal experience with her includes her drunkenness, her abduction of them, their exposure to the possibility of their own or the mother’s physical injury, her unpredictability, and her implied criticism of them for siding with the father.

8. Notwithstanding the mother’s shortcomings, she truly believes the father undermines the children’s relationships with her. The father denied alienating the children from the mother,[90] which denial he repeated in cross-examination. Most probably, he believes it, but he is mistaken. The evidence strongly implied his conduct does impair the children’s relationships with the mother and, as she contended, it probably does not matter whether his conduct is deliberate or inadvertent because it produces the same results: the children’s resistance to any interaction with the mother and their consequent estrangement from her.

   [90] Father’s affidavit, para 69

9. The Family Consultant was unsure whether the father’s alignment of the children with him and against the mother was passive or active,[91] but his presentation in cross-examination suggested his conduct is most probably the product of his thoughtlessness about the repercussions, rather than him plotting to destroy the children’s links with the mother. He was unsophisticated and obviously lacked insight. For example:

   (a)The children know he is strongly opposed to them spending time with the mother because they disbelieved he would ever agree to court orders for them to spend time with her.[92] In truth, he is strongly opposed to them spending time with her, because of his worry about her alcohol consumption and his belief in her sexual abuse of the youngest child, but the children could only be aware of his strong feelings either because he told them how he feels or they inferred it from his demeanour. Either way, he involves them in the parental conflict and effectively forces them to choose an allegiance with one party. He is unable to shield the children from his feelings.

   (b)The father filmed the youngest child’s report in August 2016 about being touched by the mother on or around his genitals. He involved both children in the process and informed them he was filming the disclosure “for evidence”, which they must have known meant evidence to incriminate the mother. He made them his accomplices in his litigious battle with the mother.[93] He was focussed on obtaining evidence to prove the mother’s sexual assault and was oblivious to the tension he created between the children’s loyalties to both parents. However, it should be noted the mother also filmed the children for the purpose of acquiring evidence, which she admitted in an affidavit she affirmed in February 2013 and to the Family Consultant in October 2016,[94] about which the Family Consultant was understandably critical.[95]

   (c)On several occasions, the father invited the police to take statements from the eldest child to corroborate his version of domestic disturbances between the parties, which cast her as his ally and pitted her against the mother. On one occasion in May 2017, the father even allowed the police to compel the eldest child’s attendance at court under subpoena to give evidence against the mother for her prosecution for criminal offences.[96] He also presently intends to call the eldest child to give evidence in his defence of the pending criminal prosecution against him in relation to the incident between the parties in March 2016, about which the Family Consultant said she was “very concerned”. Winning litigation against the mother is more important to him than the emotional consequences for the eldest child.

   (d)The father has shared information with at least the eldest child about the family’s financial circumstances, which is the only way she could have known to send a text message to the mother imploring her to agree to extension of the home loan.[97] Even if the father did not tell the mother he treats the children like adults, as she alleged he did,[98] that is how he tends to treat them.

   (e)The father asserted he had and always would comply with court orders, which was a breathtakingly audacious claim, given his failure to implement the interim orders made in November 2016 on even a single occasion. When challenged with that obvious inconsistency, he protested he had done everything he possibly could to ensure the children would spend time with the mother as those orders required, but they simply refused. He seemed not to appreciate the bizarre incongruity between, on the one hand, his agreement to those orders because he thought they were made in the children’s best interests and, on the other, his inability to convince the children they should comply with the orders and spend time with the mother because that would be best for them. Either he did not try his best, or alternatively, his best was nowhere near good enough. In the first instance, his parenting capacity is diminished because he does not realise the benefit to the children of having loving relationships with the mother. In the second instance, his parenting capacity is diminished because he cannot coax the children to do what he thinks is best for them.

   [91] Family Report, para 113

   [92] Family Report, para 15

   [93] Exhibit ICL1

   [94] Mother’s affidavit, page 47 (para (ee)); Memorandum, para 24

   [95] Family Report, para 100

   [96] Father’s affidavit, paras 54-55

   [97] Mother’s affidavit, para 115

   [98] Mother’s affidavit, para 116

10. In all likelihood, the progressive galvanisation of the children’s estrangement from the children and the mother is the product of both parties’ conduct, just as the Family Consultant hypothesised. The father’s conduct effectively impelled the children to choose allegiance with him over the mother in order to alleviate the stress they feel from his involvement of them in the parental conflict, while the mother’s histrionic and unpredictable behaviour over many years made that decision so much easier for them.

11. There are two current family violence orders that must be considered.

12. The first is an interim order which protects the mother from the father. It was made by the Local Court of NSW on 20 October 2017. The contested application to make the order final is next listed before the State court on 19 December 2017.[99] The order is expressed to be subject to the operation of any order made by this Court about the parties’ contact over the children, so there is no potential inconsistency between the family violence order and parenting orders. The parties’ compliance with orders made by this Court will not be frustrated by the father’s compliance with the family violence order.

    [99] Exhibit M3

13. The second is a final order which protects the children from the mother. It was made by the Local Court of NSW on 29 May 2017 and is operable until 28 May 2018.[100] The order is expressed to be subject to the operation of any order made by this Court about contact between the mother and children, so the parties’ compliance with orders made by this Court will not be frustrated by the mother’s compliance with the family violence order. However, the order precludes the mother from attending the children’s place of residence, so if parenting orders are made requiring the children to live with the mother, there will be a clear inconsistency. Alternatively, if orders are made for the children to live with the father, the mother can still comply with the family violence order.

    [100] Exhibit M2

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply due to the family violence perpetrated between the parties (s 61DA(2)). The parties’ relationship is far too volatile for them to share the exercise of parental responsibility for the children. They are unable to courteously consult one another, make a genuine effort to compromise, or negotiate an eventual joint decision, which features are intrinsic to the successful implementation of an order for equal shared parental responsibility. The residential parent must have exclusive parental responsibility for the children, which reality was recognised by both parties and the Independent Children’s Lawyer.

2. It is only necessary for the residential parent to have exclusive parental responsibility for the children in respect of all “major long-term issues” related to them, as that term is defined in the Act (s 4(1)). In the unexpected event that, in future, the children do spend some time with the non-residential parent then that parent should retain parental responsibility for less significant decisions which need to be made during visits.

3. As to the question of the children’s residence, the Family Consultant said in cross-examination there were “concerns around both parents”, which endorsed the view she expressed in the Family Report.[101] Each party could assemble evidentiary support for their appointment as the residential parent but, on balance, the children should live with the father. The reasons which motivate that outcome are, in summary:

   (a)Orders to that effect will preserve the status quo which has existed since the parties’ separation in August 2016. The children would not be required to adjust to any changes and the chance of further litigation over the children would subside.

   (b)The children are strongly opposed to the idea of spending time with the mother even under supervised conditions, so it may be surmised they would be violently opposed to orders requiring them to live with her. Even if that situation was created entirely by the father’s alignment of the children against her, the decision now confronting the Court is not influenced by any need or desire to punish the father for his foolishness or turpitude in orchestrating that situation. The guiding principle is the obligation to make orders that serve the children’s best interests. If orders commonly serve the children’s best interests and reward the father for his alignment of the children, it is entirely coincidental. Any orders forcing the children to live with the mother would surely be productive of enormous emotional upheaval for them.

   (c)The mother is no better placed to meet the children’s physical needs. The father feeds, clothes, and accommodates them satisfactorily. While the mother arguably has superior capacity to meet the children’s emotional needs, the differential is not so obviously great as to warrant the emotional upheaval entailed by reversal of their residence.

   (d)If orders were made for the children to live with the mother it is likely the children would resist it, either by refusing to leave the father or by absconding back to him. Both parties live on the Central Coast of NSW in relatively close proximity, so it would not be too difficult for them to abscond. According to the Family Consultant, there is a greater chance the youngest child would submit to such an order and stay with the mother once he moves to live with her, but that opinion remains only a theory. She might be right, but she could equally be wrong. Even if she is right, the chance of the eldest child submitting to such an order is slight. Since the youngest child relies so heavily on the eldest child, there is every reason to suspect he would follow her lead and either stay with or return to the father. Alternatively, if he stays with the mother and the eldest child stays with or returns to the father, the children will then be separated. That would be deleterious for both children because the rift between the parties would expand to include them. The mother said in cross-examination she thought it would not take the children “too long” to settle into residence with her, but that was most likely an expression of her hope rather than expectation.

   (e)If the children remain living with the father, the youngest child will not need to confront the mother and reconcile their unresolved differences over his allegations about his sexual abuse by her. The Independent Children’s Lawyer submitted the children would likely be submitted to relatively constant re-enforcement about the sexual abuse allegations if they remain living with the father, but there was no sound evidentiary platform for that submission. The father denied mentioning the incident to the children at all after the incident ceased to be topical in August 2016, which evidence seemed genuine, and no reason was advanced as to why that portion of his evidence should be rejected.

   (f)If the children remain living with the father, the eldest child will not need to confront the mother and reconcile the unresolved disparity between their versions of events in respect of the violent or hostile confrontations that occurred in March 2016 and December 2016, about which the eldest child has already given or will likely give evidence in pending criminal proceedings. The mother believes she lied and the eldest child is most probably aware of the mother’s belief.

   (g)There is some residual concern about the mother’s ability to indefinitely maintain her sobriety. She will be under some pressure to diffuse the children’s resistance if they are ordered to live with her and, if she relapses under that stress, her intoxication will prevent her from affording the children adequate care.

   [101] Family Report, para 112

1. The reasons which militated against the children’s continuing residence with the father and instead favoured their move to live with the mother were, in summary:

   (a)If the children remain living with the father, they will likely remain aligned with him and they will not likely recover their relationships with the mother for the remainder of their minority. The Family Consultant catalogued the long-term psychological sequelae the children could suffer as a result of living exclusively with the father, who will continue to role-model an immature and unhealthy attitude to the management of intimate relationships. They might experience intense guilt for rejecting the mother, their self-esteem may suffer, and eventually even their relationships with the father may be impaired because they regret the way in which they were unduly influenced by him to reject the mother. The Family Consultant pitched those psychological consequences as possibilities rather than probabilities, but the risk of such outcomes still remains significant.

   (b)The mother seemed to have more cognitive flexibility than the father. She did not appear to think in such concrete terms. She seemed to be more capable of understanding problems from different perspectives when confronted with alternate theories. She gave the impression she would be more sensitive to the children’s emotional needs. Her opposition to the children’s continuing relationships with the father seemed less implacable than the father’s opposition to their continuing relationships with her. She appeared to have some extra insight into how the children are emotionally wounded by the acute parental conflict.

   (c)The mother lives within several kilometres of the children’s schools, so if they moved to live with her they would not need to face the extra adjustment of changing schools and meeting new friends. That would help ease any residential transition.

   (d)Given the father’s impaired literacy, the mother is better equipped to cater to the children’s intellectual needs, particularly as they advance through secondary school.

   (e)The Independent Children’s Lawyer (but not the mother) contended the eldest child was becoming “parentified” in the father’s home but, to the extent that was a valid inference rather than a mere theory, it was barely stronger an inference (if at all) than that the father gave the eldest child domestic chores which were commensurate with her age and maturity.

2. In a qualitative sense, the former factors outweighed the latter factors in the balancing exercise. In essence, the mother argued the children’s residence should be reversed without further delay in order to break the cycle of the father’s alignment of the children against her, but in truth the status quo is now too entrenched too reasonably permit it. The psychological harm caused by trying to reverse the children’s residence, which would almost certainly ensure they have no further contact with the father, is liable to exceed the harm they suffer by staying with the father and continuing not to see the mother.

3. Given orders will be made for the children to live with the father, who will also then have sole parental responsibility for them, attention must turn to whether orders should be made regulating the time the children spend or the manner in which they communicate with the mother.

4. The father proposed the children spend (an undefined amount of) supervised time with the mother over the next six months, without being able to propose what would happen thereafter.[102] He admitted he did not think those orders could be successfully implemented, even if made, so the orders would be superfluous. Making the orders would only likely lead to more litigation, which this trial was designed to prevent. It will be remembered that the mother’s reciprocal proposal was for an injunction to restrain the children from spending any time with the father if the children live with her. Both parties realised that orders providing for the children to spend time with the non-residential parent are unlikely to work. Their predictions are validly based on their experience of the interim orders made in November 2016 not being implemented on a single occasion.

   [102] Exhibit F1, Order 3

5. The mother’s unwillingness to disclose her residential address presents another impediment to the success of any orders that make provision for the children to spend time with her. How could the parties practicably share the children’s care if the father does not know where they spend time with the mother? Even if the father never has reason to attend the mother’s home in respect of the children’s needs, the children would still know the mother’s address and be placed in the impossible position of the mother expecting them to keep her address secret from the father.

6. No orders are made specifying the time the children should spend with the mother, because the father will probably either be unwilling or unable to implement them, just as has occurred with the interim orders over the last 12 months. If orders were made for the children to spend time with the mother, but were contravened as expected, she would have two alternatives. Either she would ignore the breach and not try to enforce the orders, which means making them in the first place was pointless, or she would institute further litigation to enforce them, in which case the cycle of litigation will not end. This trial was their opportunity to put an end to their dispute. They each had the chance to capitulate, by acknowledging the children could and should have loving relationships with both of them, regularly spending substantial amounts of time with the non-residential parent, but they each chose to run their case on the basis the children should not have any contact with the non-residential parent. They each took a chance on being favoured as the residential parent, knowing the adverse personal consequences for them if the evidence fell in favour of the other.

7. No orders are made for the children to communicate with the mother, for the same reasons. Neither the parties nor the Independent Children’s Lawyer sought communication orders anyway.

8. Since the orders do not require the children to spend time or communicate with the mother, at which outcome she will be understandably distraught, provision is made for her to obtain reports about the children’s academic progress and their annual photographs directly from their schools, which process the father will be obliged to facilitate. Even though the mother will not be able to engage directly in the children’s lives, she still loves them and would presumably want to know how they are progressing and to have current photographs of them.

9. The orders require the parties to keep each other informed of their contact details, in case their emergency contact about the children is required. It might even be the case that, in time, the father feels as though it would benefit the children to spend some time with the mother. He would need to know how to contact her for that purpose.

10. The father is restrained from causing or allowing the children to hear any denigration of the mother. No sensible opposition to such an order could be maintained.

11. The father admitted in cross-examination he would submit to an injunction precluding him from allowing the children’s removal from Australia. The mother is fearful he may take the children and move overseas. It seems highly unlikely, but if that is not the father’s intention and he does not oppose the injunction sought by the mother then there is no harm making it.

12. The mother sought an injunction against the father under s 68B of the Act,[103] but she contended in submissions it was for the benefit of the children, not her, and it was only sought if the children were ordered to live with her. It is not therefore made.

    [103] Exhibit M1, Order 6

13. The father is required to present the children to the Senior Family Consultant at the Court to ensure they receive an independent and age-appropriate explanation of the orders and the reasons for the orders. That way they will be spared any distorted explanation from the father.

14. Most regrettably, the orders set out at the commencement of these reasons are those that most capably meet the children’s best interests.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 December 2017.

Associate

Date:  18 December 2017