KHALILI & CHATHA

[2014] FamCA 1047

FAMILY COURT OF AUSTRALIA

KHALILI & CHATHA [2014] FamCA 1047

FAMILY LAW – CHILDREN – Interim parenting – how much time should the children spend with the father – should the time be supervised or unsupervised – time the children should communicate with the father – children’s wishes – best interests of the children

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAC

Dieter & Dieter [2011] FamCAFC 82
G & C [2006] FamCA 994
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
McCall & Clark (2009) FLC 93-405, 41 Fam LR 483, [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Khalili

RESPONDENT: Ms Chatha

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 991 of 2010

DATE DELIVERED:

9 October – Orders

25 November – Reasons

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 October 2014

REPRESENTATION

SELF-REPRESENTED LITIGANT: Mr Khalili

SELF-REPRESENTED LITIGANT: Ms Chatha

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Truong of Legal Aid NSW

Orders

1. By consent, orders are made in accordance with paragraphs 1, 2, 5, 6, 7, 9 and 10 of the minute of order document proposed by the Independent Children’s Lawyer as follows:

   (1)That order 3 of the Court Orders made on 16 May 2012 be suspended.

   (2)The child, S, born … 2000 spend time with the Father in accordance with his wishes.

   (3)The father have telephone communication with the children on Monday, Wednesday between 7:00pm and 7:30pm to be facilitated by:

   a.The mother providing the father with the telephone numbers for him to call; and

   b.The father telephoning the children; and

c.The mother making the children available to speak to the Father.

(4)For the purpose of the children's time with the father pursuant to these orders, unless otherwise agreed by the parties in writing, changeover shall be as follow:

a.At CatholicCare Children’s Contact Service at Suburb N ("CCCS"); and

b.Where CCCS is unavailable to facilitate changeover, at X Contact Service at Suburb P (“XCS”).

(5)Both parties shall:

i.Within 48 hours contact CCCS on … to obtain relevant application forms for the provision of changeover service.

ii.Within seven (7) days complete application forms and send them to CCCS;

iii.Attend the Intake / assessment organised by CCCS

iv.Comply with any appointment times made by CCCS

v.Comply with all reasonable rules of CCCS

vi.Ensure that the children attend all appointments arranged at the request of CCCS

vii.If CCCS following its intake procedure is unable or unwilling to provide changeover service then both parties shall contact XCS to organise the first available Intake/assessment for the purpose of using XCS as contact changeover.

(6)Unless specified in these orders or agreed by the parties in writing, for the purpose of the children's time with the father pursuant to these orders, the parties shall be responsible for delivering the children to and collecting the children from changeover location; and shall do all acts and things necessary to ensure that no member of the parties' extended families are present at or in the vicinity of changeover location.

(7)That for the purposes of communicating information between the parties the mother and the father shall:

a.Communicate by telephone matters of an urgent nature; and otherwise

b.Communicate by email.

1. The children B, Y and H spend time with their father as follows:

   (a)For a period of eight (8) weeks commencing on Saturday 18 October 2014 each alternate Saturday from 11.00 am to 3.00 pm

   (b)For a period of eight (8) weeks commencing at the expiry of the eight (8) week period referred to in 2(a) above each Saturday from 11.00 am to 3.00 pm.

   (c)After a period of eight (8) weeks referred to in 2(b) above each Saturday from 9.00 am to 4.00 pm.

2. The father is at liberty to spend time with the child H at H’s pre-school A Kindy one afternoon a week with such time to be at the discretion of the Director of A Kindy for so long as H remains enrolled at A Kindy provided that the father gives the Director of A Kindy at least 30 minutes’ notice and the father’s time with H at A Kindy concludes prior to 3.00pm. 

3. Each parent shall pay half of the fees nominated by the CCCS or XCS for the provision of the changeover service.

4. Both parents shall:

(a)Enrol themselves and the children in the UNIFAM "Keeping Contact" Program, at UNIFAM … or any other such program as may be regarded appropriate by UNIFAM … for the benefit of the children and

(b)Participate in such program, by completing each of the following steps:

(i)Contacting UNIFAM (…) within seven (7) days of the date of these orders to arrange an appointment for intake assessment.

(ii)Attending the Intake/assessment

(iii)Complying with any appointment times made by UNIFAM

(iv)Complying with all reasonable rules of UNIFAM

(v)Complying with all reasonable requests or directions of the staff of UNIFAM, including referrals to any other professionals and complementary services.

(c)Take all steps to ensure that the children are able to participate in any program counselling or therapy as recommended by UNIFAM … including ensuring the children attend at each such session.

(d)Both parents shall equally be responsible for the fees nominated by UNIFAM for the provision of the program.

1. The application of the father is, otherwise, dismissed except to the extent that it is in accordance with the orders made.

2. The application of the mother is, otherwise, dismissed except to the extent that it is in accordance with the orders made.

3. Short Reasons for my decision will be published in due course.

1. Pursuant to section 62G (2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

Directions in relation to the matters to be addressed made in Chambers:

(a)The benefit to the children of having a meaningful relationship with both of the children’s parents;

(b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the children may be exposed to and the impact both in the short term and long term in the event that the children are exposed to abuse, neglect or family violence;

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

(d)The nature of the relationship of the children with:

(i)each of the children’s parents; and

(ii)other persons (including any grandparent or other relative of the children);

(e)The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

(i)either of the children’s parents; or

(ii)any other child or other person (including any grandparent or other relative of the children including sibling or step sibling) with whom the children have been living

including an assessment of the nature of the children’s present and prospective attachments in terms of the orders sought by each of the parties;

(f)The capacity of:

(i)each of the children’s parents; and

(ii)any other person (including any grandparent or other relative of the children)

to provide for the needs of the children, including emotional and intellectual needs and any circumstances that may diminish that capacity;

(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the family reporter thinks are relevant;

(h)The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;

(i)Any other fact or circumstances that in the opinion of the Family Reporter is relevant.

1. The proceedings be relisted no less than seven (7) days after release of the Family Report.

2. The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

3. Following release of the Family Report and prior to the re-listed directions date each of the parties is to file and serve a minute of final orders sought by them as to parenting and both parties are to be in attendance in person on the re-listed directions date.

4. Leave is granted to the Independent Children’s Lawyer to issue such subpoenas as she regards as appropriate.

1. Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice in respect of any matter the Independent Children’s Lawyer regards as appropriate by arrangements with my Chambers.

1. Order 9 of Orders dated 31 October 2012 by Federal Magistrate Halligan and continued until further order on 5 December 2012 by Order 1 of that date, which provides for both parents to have equal shared parental responsibility for the children, is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalili & Chatha 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 PARRAMATTA

FILE NUMBER: PAC 991 of 2010

Mr Khalili

Applicant

And

Ms Chatha

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 9 October 2014 I made interim parenting orders and indicated that I would publish my Reasons at a later date. These are those Reasons.

2. This matter concerns the interim parenting arrangements of the four children of Mr Khalili (“the father”) and Ms Chatha (“the mother”). The children are S who is aged 14, twin girls B and Y who are aged eight and H who is four years old (“the children”).

3. The parties were married in 1994 and were divorced in May 2010.The mother has extended family who live in Egypt and the Middle East but the parties lived in Sydney for the duration of their marriage.

4. Through this application for interim parenting orders the father seeks to spend more time with his children. The mother opposes the application.

5. The only issue to determine in the interim hearing is how much time, if any, the children should spend with the father.

Background

1. The parties were married in 1994. The child S was born in 2000 and the twins, B and Y, were born in 2006. The date of separation is unclear, with the mother saying it occurred initially in August 2008 and on a final basis in August 2009. Both parties have family in a Middle East country and the family visited and lived for a short time in that country, from time to time following separation.

2. On 13 May 2010 the parents divorced, though no parenting orders were made.

3. In September 2010 the mother and children went to the Middle East and the father visited them from October 2010 to May 2011. The children and the mother remained there until January 2012, and when they returned to Australia they resided under the same roof as the father at the former family home.

4. The mother then returned to the Middle East in March 2012 for five nights, and left all children in the father’s care. This is the only time the father has had full time care of the children since separation.

5. The mother filed an Initiating Application in the Federal Circuit Court in April 2012.

6. Final parenting orders were made in the Federal Magistrates Court in May 2012, on an undefended basis as the father was not present. The father says that he was unaware of these proceedings. These orders provided for the children to reside with the mother, who had sole parental responsibility for them and for them to spend time with the father as arranged between the parents. The mother was also permitted to remove the children from Australia at her discretion. It does not appear that the Federal Magistrate was aware that the parties and the children were continuing to live at the same premises at the time these orders were made.

7. The father commenced proceedings, in October 2012 seeking various orders including that the children’s names be placed on the Airport Watchlist.

8. The May 2012 orders were suspended in October 2012.  Interim orders were made for the children to live with the mother, and for the parents to equally share parental responsibility for the children. The children’s names were also ordered to be placed on the Airport Watchlist.

9. The mother and children left the family home in November 2012 and the father saw the children as arranged between him and the mother. The arrangements tended to be for short periods of time and were irregular.

10. The father amended his parenting and property application in April 2013, but did not press for interim orders for specified time with the children at that stage.

11. In May 2013 interim orders were made by consent, including an order that the parents enrol the children in the Unifam Anchor program and facilitate the children participating in it. The children only saw a counsellor through this program on two occasions in June and July 2013.

12. On 9 June 2013 there was an incident outside the mother’s residence between the mother and the father and police were called. There is a dispute as to the details in relation to this incident, though there appears to be no dispute that a provisional apprehended domestic violence order (“ADVO”) was made for the protection of the mother and the children. When the ADVO matter was listed in the Local Court on 9 August 2013, the mother did not attend.

13. On 18 February 2014 following an interim hearing in the Federal Circuit Court the matter was transferred to the Family Court. The arrangements for the children to spend time with their father as agreed between the parents, as I understand it, were to continue. The mother says the children last spent time with their father on 28 December 2013.

14. The father says he has continued to spend time with the children on an ad hoc basis. He says the last time he saw his eldest son was on 27 April 2014, when all children went to dinner with the him.  The last time he saw his twin daughters was on 19 September 2014 at their school, and he last saw his youngest child at his pre-school on 29 September 2014.

15. The family participated in a CAPIA (Children and Parents Intake Assessment) on 3 July 2014. The Family Consultant interviewed the mother, the father and the three older children separately, and observed play room interaction with the three younger children and the father.

16. In August 2014, the parties finalised their property proceedings.

17. The father seeks orders that the three younger children spend regular time with him. He proposes that the children spend time with him overnight after school each alternate Friday until Saturday 5:00pm and from after school on a Thursday until 6:30pm on the alternate week. He further proposes that the three youngest children spend half of the school holidays with him and have regular telephone communication three nights per week. The father does not seek orders in relation to the eldest child, S.

18. The mother seeks that the arrangements in relation to the children’s time be similar to those made in May 2012. She continues to seek that she have sole parental responsibility for all children and that they all live with her. She proposes that the father spend time with the eldest child according to his wishes and that the other children spend four hours per month with the father. She anticipates that if the father does not demonstrate a sufficient commitment to a more regular regime that the time should be reduced to only four visits per year. The mother also seeks that the children’s names be removed from the Airport Watchlist.

19. At the hearing the Independent Children’s Lawyer’s position was that it was in the best interests of the children to spend time with their father, but they needed some intervention to support this reintroduction of time. Many of the interim orders sought by the father were ultimately agreed to by the mother as is indicated by the fact that many of the orders were made by consent. The only matters in dispute were the time that the three younger children were to spend with their father, the circumstances of the youngest child’s contact with his father and participation in the Unifam program.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the children are met in particular ways, including:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

3. The principles underlying these objects include:

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Framework for interim applications

1. In Dieter & Dieter[2], the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. In this matter a Family Report has not yet been prepared and it will be many months before a final hearing would be expected to be listed. On the mother’s proposal the children would have very limited contact with their father which is likely to endure for a considerable period of time.

   [2] [2011] FamCAFC 82

2. Goode sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.

3. In addition to the uncontested facts, in accordance with the decision of SS & AH[3], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [3] [2010] FamCAFC 13

1. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[4], a decision of the Full Court citing Deiter & Deiter.

   [4] [2013] FamCAFC 182

2. In Deiter the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

3. In this case both parents raise matters which are disputed by the other parent, and which relate to a risk of harm to the children.

4. The mother asserts that the father is aggressive and violent towards her and the children. Although some of the violence the mother alleges against the father towards herself and the children predates the previous parenting orders, she makes some allegations of more recent violence. In particular, the mother says there was an incident in June 2013 where she was dragged 20 metres with her arm in the father’s car in the course of a changeover and as a result an ADVO was made for her protection.

5. The mother says that the father has stalked her and the children to find out their new address. On 18 September 2013 the father attended the mother’s new residence, and the mother called the police. The police were also called to the mother’s premises on 13 October 2013, but the father had left by the time they arrived. The mother does not allege that there was a violent incident on these occasions and seems mainly to be concerned about the way in which the father obtained her address.

6. Allegations of family violence in the mother’s affidavit are very general and contain little detail. Much of the complaint during the course of the marriage is directed against the paternal grandparents rather than the father. In relation to the incident on June 2013, the mother annexes a patient report from an after hours GP clinic which indicates that on examination, there was a circular red bruise on her mid upper arm. In my view, this evidence seems inconsistent with the suggestion that the mother was dragged 20 metres by a moving car. The mother does not dispute that she did not attend the Local Court for the AVO proceedings. In her affidavit she says she “totally refused” to attend court and take the eldest child, who was sick, with her and advised police that as she had final orders the father had no reason to come to her residence uninvited. It appears that she was suggesting to police that the ADVO was no longer required.

7. In my view, the mother’s allegations of violence are not particularly significant or widespread and do not seem to be supported by reliable evidence. The mother appears to suggest that she did not need an ADVO order for her protection.

8. The father contends that the mother proposes to remove all children from Australia and take them to the Middle East to settle. He also contends that she has formed a relationship there. The mother disputes these contentions. The father says that he is concerned that if the mother were allowed to remove the children from the Airport Watchlist that she would go overseas indefinitely and he may never see his children again. The mother says despite the fact that she holds a dual passport, none of her children do and therefore they cannot permanently reside anywhere other than Australia.

9. The evidence relied upon by the father in relation to his allegations is a series of emails which appear to be exchanged between the mother and a person in the Middle East. In those emails the mother expresses concern that her ex-husband will not let her take the children out of Australia and, in this context says.

   That way we can all be in [the Middle East] with all 8 kids between us and it would be fantastic with all those little hands and headaches… We spend the rest of our lives together with our kids between us and I promise you that your kids ARE my kids because they are a part of you.

10. Further, in her interview with the Family Consultant the mother commented that, working overseas, she could provide the children with a “fantastic lifestyle”. The Family Consultant said that the mother also impressed as somewhat self-focused in relation to the impact on the children of any overseas relocation.

11. While I do not make a final determination in relation to the mother’s intention to relocate overseas, in my view, there is a real risk that if the children’s names are removed from the Airport Watchlist the mother may take them overseas and not return. Given that the Middle East country is not a signatory to the Hague Convention, having the children returned to Australia would be virtually impossible. In these circumstances there would be a very severe impact upon the children’s relationship with the father if this were to occur.

Should the Court make an order in respect of parental responsibility?

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the child. Currently there is an order for joint parental responsibility for each of the children, which the father wishes to continue. The mother seeks sole parental responsibility for the children.

2. The May 2012 orders gave the mother sole parental responsibility for all four children. In October 2012 the orders then provided for both parents to have equal shared parental responsibility. The mother has consistently maintained that she seeks sole parental responsibility for all children. The father seeks equal shared parental responsibility.

3. In Goode & Goode, the Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC.  The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly.  On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

4. Under s 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in the case of abuse or family violence, which for the reasons given earlier, in my view, does not apply. When the court is making an interim order, the court may consider that it would not be appropriate in the circumstances for the presumption to apply.

5. At this interim stage, there are many critical facts relating to the children’s best interests which are unknown or in dispute. I am also not satisfied that the parents would be capable of making decisions jointly given the approach taken in these proceedings and the Family Consultant’s assessment that the parents are engaged in a toxic level of conflict, that was unlikely to abate. For these reasons I make no order for parental responsibility for the children. Equally, in my view, it would be inappropriate to provide one parent with sole parental responsibility for all children. On 31 October 2012, Federal Magistrate Halligan (as he then was) made an order that the parents were to have equal shared parental responsibility of all children until 4:00pm 5 December 2012. That order was then continued indefinitely on 5 December 2012. Therefore, I make an additional order discharging that order which currently provides for equal shared parental responsibility.

6. So far as other orders are concerned, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.

Section 60CC considerations – What order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

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

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. Although the expression “meaningful relationship” is not defined in the Act, it has been held by the Full Court that the interpretation of a meaningful relationship being a relationship that is “significant” or “important” is correct.[5] The Full Court has also approved the view that “ the enquiry was a prospective one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.[6]

   [5] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [6] McCall & Clark (2009) FLC 93-405, citing Bennett J in G & C [2006] FamCA 994

4. There is no dispute in this matter that the father played some role in the children’s lives prior to the parenting orders made in May 2012 though there is a significant dispute as to the extent of that role. In my view, the children will be advantaged by having a meaningful relationship with each of their parents. The order proposed by the mother allows for the younger three children to spend very limited time with their father that would not, in my view, support them having a meaningful relationship with their father. The alternative proposed by the mother is that the previous arrangement continue, that is parental agreement about the father’s time with the children continue. This arrangement also, in my view will not support the children having a meaningful relationship with their father. The mother presented to the Family Consultant as unwilling to facilitate the children’s relationship with the father, though she did appear willing for this to occur if she did not have to come into contact with him directly.

5. The Child Responsive Program Memorandum indicates that the eldest child and the twin girls expressed negative views about their father. However, the girls’ views are, in the view of the Family Consultant inconsistent with their actions when she observed them with their father, and it is possible that they have been influenced by their mother or their older sibling, S, who is aligned with the mother. The Family Consultant noted initially that B “would be happy [to] never”, see her father again but later conceded she enjoyed going to the buffet dinner with her father and siblings. Y said that she didn’t “want to spend much time with dad”, because “he forces me to come with him.” In the playroom it was observed by the Family Consultant that both girls were comfortable with their father and did not act in a hostile manner, which would be expected given their statements.

6. The Family Consultant identified that the girls both had some capacity for a relationship with the father. This would be dependent upon the father acting in a child focused manner and the mother being supportive of such a relationship.

7. The children would benefit from a meaningful relationship, with regular time with their father, but given that the children have spent little time with him recently and the girls expressed some negativity, it will take some time and therapeutic support for that relationship to develop and, in my view it is premature for the children to spend overnight time with their father. The Family Consultant recommended that the younger three children should spend some short periods of unsupervised time with the father so as to attempt to re-establish the parent/child relationship, and foster a meaningful relationship.

8. The other primary consideration is the need to protect children from physical or psychological harm from being subjected to abuse, neglect or family violence. As previously explained in these Reasons the mother claims that the father perpetrated physical and emotional violence towards her. She says that it has affected the children, who were also victims of his emotional abuse. As also noted these allegations are disputed by the father. Having regard to their general nature and the absence of any reliable evidence, I do not attach weight to these allegations in this interim application, especially in light of the limited nature of the time sought in the father’s application.

9. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

(a) any views expressed by the children and any factors underlying their views

1. The Family Consultant was of the view that the eldest child held an entrenched view and that he was unlikely to reconsider a relationship with his father. Regardless of the reason for this view, given his age, I attach significant weight to it in relation to spending time with his father.

2. I attach little weight to the twin eight year old girls views’ that they did not want to see their father, given their age, the Family Consultant’s observations of inconsistent behaviour with their father and the possibility that their views have been influenced by their older sibling. The child H was too young to express a view

(b) the nature of the relationship of the children with each of their parents, and other significant persons

1. As noted, in the Family Consultant’s assessment, the eldest child appears to have totally rejected his father and it would be unlikely for him to reconsider his relationship with his father, given his age and dismissive presentation. The twin girls were observed to have a comfortable relationship with the father and they did not act in a hostile manner, which may have been expected given their comments to the Family Consultant about neither wanting to spend much time with their father.

2. The Family Consultant observed the father and the youngest child to have a good relationship. She observed that H appeared comfortable with the father and was enthusiastic about spending time with him.

3. The Family Consultant recommended that the younger three children should spend short periods of unsupervised time with the father to re-establish the parent/child relationship.

(c) extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the child

1. Prior to separation, it is assumed that the parents made decisions jointly involving the children’s long term needs, despite the mother suggesting that the father has “never been involved in the children’s lives” to the Family Consultant.

2. In May 2012 the mother was allocated sole parental responsibility for the children and made decisions accordingly. Since October 2012, despite the mother and father having joint parental responsibility, due to the poor levels of communication and cooperation between the parents there is no evidence that they have jointly made long-term decisions for the children.

3. The mother has consistently sought sole parental responsibility and the father has consistently sough joint parental responsibility.

(ca) extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. The father has paid child support for the children since October 2012. The mother has been primarily responsible for their care.

(d) likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent

1. The father’s proposal is that the children spend one night per fortnight and one afternoon after school per fortnight with him. This is not likely to have a large impact on the children’s current circumstances and this is a short period of time to be separated from the mother. As previously indicated in these Reasons I am of the view that overnight time is premature given that the children need to rekindle their relationship with their father. Despite the mother’s submissions that any separation of the children from her would be detrimental to them, I am of the view that limited daytime contact in the Orders made is not likely to have a negative impact on the children. In light of the Family Consultant’s assessment of the very high levels of conflict, which is “highly likely to negatively impact on the children’s well-being both in the short and long term”, it is in the children’s best interest for changeovers to not involve direct contact between the parents.

2. The mother’s proposal includes removing the children’s names from the Airport Watchlist. Although she says she has no intention to remove the children from Australia for any other purpose than a holiday, as indicated, I am concerned that there is evidence to suggest that she has an intention to reside in the Middle East. This could result in a virtual severing of the relationship between the children and their father. As previously indicated, this would not be in the children’s best interests

(f) Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs

1. The Family Consultant described the father as “an assertive person who was somewhat intense in his interpersonal style”, which he claimed was due to the level of anxiety about the matters before the court. The Family Consultant also was concerned that the father had a rigid interactional style with the children, which she felt may have contributed to their rejection of him, and that he presented as somewhat self-focused during the playroom observation. She did not however suggest that there were significant concerns about the father’s parenting capacity such that it would not be in the children’s best interests to spend time with him and overall recommended that unsupervised time commence immediately.

2. The Family Consultant also had concerns about the mother’s affect and said that she presented in a somewhat dramatic and inauthentic manner. There was some concern that the mother was attempting to influence the Family Consultant to view that the father was exposing the children to risk of harm or a concern arose that the mother was unable to determine the actual severity of events that affect the children. If this were the case the Family Consultant opined that a court may conclude that the mother’s views would be destructive for the children’s psychological well-being. The Family Consultant also said that the mother impressed as somewhat self-focused with regard to the impact on the children of any overseas relocation. (The children overall expressed the view that they would prefer to remain in their current routine rather than move overseas again.)

3. The high level of conflict between the parties and the likelihood of a negative impact upon the children’s well-being both in the short and long term gives rise to concerns about both parent’s capacity to meet the children’s emotional needs. Despite having consented to orders for the children to participate in the Unifam Anchor program, the parents and the mother in particular, seem to have regarded compliance with that order as optional. For this reason, a further order has been made for the children’s participation in a Unifam program, so that it is clear to the parents that this program is being put in place to assist the children in the very difficult position in which they are placed.

(j) and (k) Family violence

1. As previously discussed in these Reasons, following the 9 June 2013 incident, police issued a provisional ADVO to protect the mother and the children. The mother failed to appear when the matter was in Court, and seems to imply in her affidavit that she no longer needed a final order.

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred.  Having regard to both the primary considerations and the additional considerations set out in s  60CC and in light of the history of the matter, I am of the view that it is in the children’s best interests to spend more regular time with their father.

2. The orders made are set out at the forefront of these Reasons.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 October 2014.

Legal Associate: 

Date:  25 November 2014