Khoury and Mills

[2013] FamCA 300

FAMILY COURT OF AUSTRALIA

KHOURY & MILLS [2013] FamCA 300

FAMILY LAW – CHILDREN – Relocation – parental responsibility – with whom the children shall spend time – father has a mental health issue as a result of a motor vehicle injury – father cannot control his angry outbursts – outbursts include violent threats – family violence – need to protect children from harm – minimal benefit to the children in maintaining a meaningful relationship with the father – supervised time – supervised telephone communication.

Family Law Act 1975 (Cth) ss 60CC, 61B, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence and Other Measures ) Act 2011 (Cth)

MRR v GR (2010) 240 CLR 461
Muldoon & Carlyle (2012) FLC 93-513
Sayer & Radcliffe & Anor [2012] FamCAFC 209

APPLICANT: Mr Khoury

RESPONDENT: Ms Mills

INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

FILE NUMBER: CAC 989 of 2008

DATE DELIVERED: 7 May2013

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 17, 18 September 2012
and 26 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Howard

SOLICITOR FOR THE APPLICANT: Elizabeth Fleming & Associates

COUNSEL FOR THE RESPONDENT:

Mr D Farrar (17 and 18 September 2012)

Ms D Isaacson (26 March 2013)

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

Orders

1. That the mother have sole parental responsibility for L Khoury, born … 2002, and M Khoury, born … 2005 (“the children”).

2. That the children live with their mother.

3. That the father’s application for an injunction to restrain the mother from relocating from the B area be refused.

4. That the father may communicate with the children by telephone as follows.

   (a)       Each Saturday at 6pm; and

   (b)       On each child’s birthday at 6pm

   unless the parties otherwise agree in writing. These telephone calls shall be on speaker phone, unless the parties otherwise agree.

5. For the purposes of facilitating Order 4 above, the mother shall facilitate and cause the children to telephone the father at the times specified in Order 4. If the father is unavailable or does not answer the call from the children at that time, no substitute call will be arranged or will occur. 

6. While the mother remains in the B area, the children shall spend time with the father for two hours on the first Saturday of each month (unless the parties otherwise agree) supervised by X Service in B.

7. The mother will, if the father continues to make his mailing address available to her, provide the father from time to time with a report about the children’s development and welfare.  The mother will also advise him as soon as possible of any serious medical matters relating to the children or any medical treatment they may be undergoing other than for routine childhood illnesses. 

8. The mother will authorise and direct any schools the children attend to provide to the father, upon his request and at his expense, copies of the children’s school reports or any other notices that may issue from the school about the children or their education.  The mother will provide to the father in writing details of the name and addresses of the school the children are attending. 

9. Otherwise all other parenting orders in relation to the children are discharged.

10. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders

11. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

12. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

13. The Independent Children's Lawyer is discharged upon the expiry of the appeal period.

14. The matter is removed from the pending cases list. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khoury & Mills 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 CANBERRA

FILE NUMBER: CAC 989 of 2008

Mr Khoury

Applicant

And

Ms Mills

Respondent

REASONS FOR JUDGMENT

Foreword

1. The dispute between the parties in this matter relates to the time that the children, L Khoury, born in 2002 (10½), and M Khoury, born in 2005 (almost eight), will spend with their father, the applicant, Mr Khoury (“the father”).  At all relevant times the children have been in the primary care of their mother, the respondent, Ms Mills (“the mother”). 

2. The litigation between the parties has been extensive, bitter and complicated by a move by the mother with the children to C in far north Queensland and her subsequent return to B on the New South Wales south coast to care for her sick mother.  The issues in the matter have also been seriously complicated further by the father’s mental health issues which appear, at least in part if not completely, to have been brought about by a motor vehicle accident which he had in April 1990.  As a result of the accident, the father suffered some damage to his frontal lobe and was diagnosed with “frontal lobe syndrome”[1], however the precise details as to the injury have not been the subject of detailed evidence. 

   [1] Exhibit ICL 3, 3.

3. The parties have been involved in family law proceedings in 2008. Final orders and reasons for judgment were delivered by Federal Magistrate Brewster (as his Honour then was) in December 2009. The father then commenced new proceedings in this Court in April 2011. Final hearing of the current proceedings took place over two days in September 2012. At that time, the mother was living in C, in far north Queensland, as a result of her unilateral decision to move away from B, on the New South Wales south coast, and her desire was to remain in C with the children. In early 2013, the mother returned to B with the children, although it is unclear whether this was a temporary or permanent move.  In March 2013, the matter was reopened, further evidence was adduced about that issue and another hearing took place.

The applications of the parties

1. Each party handed up a minute of the orders he or she sought at the final hearing in September. In March neither party sought to change those orders sought.

2. The father sought the orders set out below:[2]

   [2] Orders sought by the applicant father, filed in Court on 17 September 2012.

   a)The parties have equal shared parental responsibility for the children, except in relation to religious matters. The father will have sole parental responsibility for the children in relation to religious holidays.  

   b)The children live with the mother.

   c)The mother be ordered to return to the B area within 30 days of the date of the orders and she is to cause the children’s home to be in the B area and not outside the local Shire.

   d)The mother shall keep the father informed of the children’s residence at all times.

   e)The children will spend time with the father:

   i)every second weekend;

   ii)during the school holidays at such times as agreed between the parents and failing agreement, the children will spend time with the father during the first half of  the school holidays in odd-numbered years;

   iii)each “alternate Easter weekend”

   iv)on the father’s birthday and the children’s birthday; and

   v)Father’s Day

   f)Each party shall inform the other in writing if they intend to travel from the New South Wales south coast area.

   g)Each party shall keep the other informed of any change of contact number or residential address.

3. In support of his application, the father relied upon his affidavits filed on 19 April 2011, 6 February 2012, 13 March 2012, 4 May 2012, 17 September 2012 and 22 March 2013.

4. The mother sought the following orders:[3]

   a)The mother have sole parental responsibility for the children.

   b)The children live with the mother.

   c)The father be restrained from spending time or having any contact with the children.

   [3] Minute of orders sought by the respondent mother, filed in Court on 17 September 2012.

5. The mother relied upon her affidavits filed on 17 July 2009, 7 May 2012, 17 September 2012 and 7 March 2013. The mother also relied upon two affidavits dated 17 and 22 June 2012.

Background

1. The parties met in B in New South Wales in January 1996 and began to live together in 1996.  Their relationship was by all measures a stormy one but the parties lived together in the mother’s words “on and off” until the father moved out permanently in September 2004[4]. 

   [4] Mother’s affidavit, filed 7 March 2013, [8].

2. There were then proceedings between the parties about the children[5].  These resulted in a number of different orders including final orders on 2 December 2009. Those final orders provided for the parties to have equal shared parental responsibility, for the children to live with the mother and spend supervised time with the father.

   [5] Application for final orders (father) FMC - 20 June 2008

3. The father did spend supervised time with the children, however, that frequency of the time was irregular.  From about November or October 2009, the father engaged with the P Program and organised for Ms N to supervise his time with the children. Ms N continued to supervise after the orders were made.  However, because of Ms N’s limited availability, the father’s time with the children was irregular.  At times the father would see the children for two hours each week for four weeks in a row and at other times the father would not see the children for six weeks in a row[6].  

   [6] Father’s affidavit, filed 19 April 2011, [18] and [19].

4. During the Christmas school holidays in 2009/2010, the father’s brother supervised some time between the father and the children, however this occurred on only about three or four occasions[7].

   [7] Father’s affidavit, filed 19 April 2011, [21].

5. In about early March 2011, P Program ceased its supervision after the father had an argument with Ms N[8].  The father then commenced these proceedings in April 2011.

   [8] Father’s affidavit, filed 19 April 2011, [26].

6. On 13 October 2011 I made interim parenting orders that the children live with the mother, who would have sole parental responsibility for the children.  The father could speak to the children by telephone, provided he did not call the children before 5 pm and on no more than three occasions each week.  The children would also spend supervised time with the father for about two hours a week.

7. The father states that after these orders were made, the relationship between him and the mother improved.  The mother would bring the children to the father’s home and leave them in the father’s care, unsupervised.  The older child sometimes stayed overnight with the father, however the younger child did not.[9]

   [9] Father’s affidavit, filed 6 February 2012, [2] and [3].

8. In December 2011 the mother relocated with the children to C in Queensland.  The circumstances relating to this move are highly in dispute.  The parties agree that they had discussed a move to Queensland for what the father apparently thought would be a “fresh start”.  The father asserts that the parties agreed they would only go to Queensland when they “had both organised stable accommodation in Queensland near each other.”  He further states that the mother agreed she would assist him in finding accommodation.[10]  The father insisted in his evidence that he felt the move would be to the Gold Coast whereas the mother says she always intended to move to the far north coast although she was going to travel through the Gold Coast with the children to attend the theme parks there.  She regards the father’s recollection of the “arrangements” as viewed by him through rose-coloured glasses. (My words not hers.)

   [10] Father’s affidavit, filed 6 February 2012, [7].

9. On the mother’s version of events, the parties agreed that the mother would relocate to C first and the father would relocate soon after, once he had arranged the sale of furniture and vehicle repairs.[11]

   [11] Mother’s affidavit, filed 17 September 2012, [46].

10. The mother left employment in B to go north.  The father has not been in employment relevantly for many years.  In fact he has been on a disability pension since his accident.  His ability to move was (and is) complicated by his lack of funds.  This also complicates any prospect of his spending any time supervised or unsupervised, with the children if they are living in C. 

11. After the mother relocated, the father made the decision not to relocate.  He claims this is because he had originally planned to move only to the Gold Coast, not far north Queensland.  Furthermore, his mother (living in Sydney at the time) had fallen ill and he wanted to be near to her.

12. The mother claims that she was not aware of the father’s decision not to relocate until she heard the father’s solicitor advise this in Court.[12] 

    [12] Mother’s affidavit, filed 17 September 2012, [47].

13. While the mother and children lived in C, the children had some telephone contact with the father.  The mother asserts that the father was verbally abusive during those telephone calls and the children were frightened.[13]  However, it is not clear how frequently those telephone calls occurred.

    [13] Mother’s affidavit, filed 17 September 2012, [41]-[43].

14. In June 2012 the mother indicated to the Court that she intended to return to the B area in August 2012.[14] However in late August 2012, the mother informed the Court that she had changed her plans and intended to stay in C with the children.

    [14] Orders, 12 June 2012.

15. The matter then proceeded to hearing in September and, as explained above, was reopened in March this year because the mother had moved back to B.  The mother’s return to New South Wales was brought about by the onset of complications in her mother’s illness (multiple sclerosis).  She deposes[15] that her mother advised her on 14 December 2012 that she would need to go into a nursing home.  While the mother had been in Queensland her father had died.  Although the mother has a sister, the sister was not at that point participating in the care of her mother and the mother felt obliged to return to look after her mother and to at least arrange her mother’s transition into a nursing home.  She moved with the children back into her mother’s home (which is where they were living before she went to Queensland) and has been there ever since. 

    [15] Mother’s affidavit, filed 7 March 2013, [15].

16. On 25 February 2013, after the Court had been informed of the mother’s return to the B area, I suspended the orders of 13 October 2011 which provided for the father to have telephone contact with the children.  The mother was also restrained from relocating from the B area until further order.

17. On 8 March 2013, the matter was reopened and set down for a further day of hearing on 23 March 2013.  I also made an order for the children to spend time with the father for one hour on 16 March, supervised by X Service.

Relevant law in parenting cases

1. The Family Law Act 1975 (Cth) (“the Act”) was amended in 2011 by the Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 (Cth) (“the amending Act”). Those amendments affect the provisions that apply in parenting matters. The amending Act stipulates that certain amendments, which are relevant in this matter, “only apply in relation to proceedings instituted on or after commencement.”[16] The amendments relevant to this matter did not commence until 7 June 2012.[17] These proceedings were instituted on April 2011, therefore the relevant amendments do not apply to this matter. When I make reference to the Act, I refer to the provisions as they were before the amendments.

   [16] Family Law Legislation Amendment (Family Violence and Other Measures ) Act 2011 (Cth), Sch 1, item 45.

   [17] Family Law Legislation Amendment (Family Violence and Other Measures ) Act 2011 (Cth), s 2.

2. Under the Act, I am obliged, when making a parenting order, to 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.[18]  In this regard, “parental responsibility” means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”[19] Hence, equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility, as defined in s 61B, and is not a presumption about the amount of time a child spends with each parent[20].

   [18] Family Law Act 1975 (Cth), s 61DA(1).

   [19] Family Law Act 1975 (Cth), s 61B.

   [20] Family Law Act 1975 (Cth), s 61DA(1).

3. That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who is a member of the parent’s family or engaged in family violence.[21] Family violence means “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”[22]

   [21] Family Law Act 1975 (Cth), s 61DA(2).

   [22] Family Law Act 1975 (Cth), s 4.

4. The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child’s best interests.[23]

   [23] Family Law Act 1975 (Cth), s 61DA(4).

5. In determining what is in the child’s best interests, I must have regard to the factors set out in s 60CC of the Act. Those factors are divided by the Act into “primary considerations”[24] and “additional considerations”[25].

   [24] Family Law Act 1975, s 60CC(2).

   [25] Family Law Act 1975, s 60CC(3).

6. If the presumption of equal shared parental responsibility were to apply, I am obliged then to consider whether the child should spend equal time with each of the parents[26] or substantial and significant time as defined in the Act.[27] In determining whether a child should spend equal or substantial and significant time with each parent, I must have regard to the best interests of the child as the paramount consideration and also have regard to whether it is reasonably practicable for the child to spend such time with each parent.[28]

   [26] Family Law Act 1975 (Cth), s 65DAA(1) and 65DAA(2)

   [27] Family Law At 1975 (Cth), s 65DAA(3).

   [28] Family Law Act 1975 (Cth), s 65DAA(5).

7. This matter is, to some extent, a relocation matter.  The mother currently lives in B and although her current orders sought do not explicitly seek an order to be permitted to relocate to C, her evidence is that she intends only to reside in B temporarily and that she would like to move back to C.  It is therefore necessary to consider the legal principles relevant to a relocation matter.

8. The pathway for making a determination in relocation matters has been explored in MRR v GR[29], Muldoon & Carlyle[30] and Sayer & Radcliffe & Anor[31].

   [29] (2010) 240 CLR 461.

   [30] (2012) FLC 93-513.

   [31] [2012] FamCAFC 209.

9. The case law makes it clear that the principles to be followed in determining the best parenting orders in a relocation matter are, in summary:[32]

   d)The question of whether a parent should be permitted to relocate should not be the focus of the Court’s inquiry as to the parenting orders that would be in the children’s best interests.

   e)The Court must consider each proposal in the context of what is in the best interests of the children, by reference to s 60CC factors.

   f)If an order is made for equal shared parental responsibility, taking into account ss 60CC and 61DA, the Court must consider whether equal or substantial and significant time are in the children’s best interest based on the s 60CC findings. If an order for whether equal or substantial and significant time is in the children’s best interests, whether such an order is reasonably practicable, taking into account the matters set out in s 6DAA(5).[33]

Best interests of the children

[32] Sayer & Radcliffe & Anor [2012] FamCAFC 209, [33]-[38], [47]; Muldoon & Carlyle (2012) FLC 93-513, [87]-[91].

[33] Family Law Act 1975 (Cth), ss 65DAA(1) and (2).

Primary considerations

1. In this matter I will first consider the need to protect the children from risk of physical or psychological harm and then consider the benefit to the children of having a meaningful relationship with each parent.

Section 60CC(2)(b)

1. The main concern here is the need to protect the children from risk of physical or psychological harm from being subjected to or exposed to family violence on the part of the father.

2. As mentioned above, the father has been diagnosed with frontal lobe syndrome and the symptoms have been described as including “disinhibition, sensitivity to insult, anger”[34].

   [34] Exhibit ICL 3, 3.

3. There have been allegations in this matter that the father has, when angry, had uncontrollable outbursts, some of which include violent threats to the mother and to the children. Some of the violent outbursts are detailed in the mother’s affidavit:

   20.Approximately on 6 September 2004, I came home from work and started playing with [the child L] on the floor with his toys. For an unknown reason, the Applicant entered the room and started kicking and punching me, in front of [L]. I grabbed [L] and started running towards our car …

   …

   33.Approximately late 2007 I received a phone call from DOCS informing me that the [father] had phoned a legal firm … requesting assistance with access to the children and when the secretary advised that the firm could not assist, he told her that he was going to chop [the children’s] heads off. The secretary has then contacted the Police who have in turn, contacted DOCS [sic].

   …

   43.The last time I spoke with the [father] was in early July 2012 when I had stopped him speaking with [the children] about a week earlier. The [father] phoned my mobile and asked to speak with [L]. I told him that the last time he spoke with [L] he abused him and made him cry and that I would like it if he apologised to him. He then started yelling at me calling me names such as slut and other profanity that I could not understand because he was yelling so loud [sic].

4. The father himself “acknowledges that he loses control when faced with adversity.” He  informed the Family Consultant from Canberra that “I’ll go off my head – it’s just anger – I say stuff – I open my mouth and stuff comes out of my mouth”[35]. The father also acknowledged to the single expert, Dr H, that he “can get angry and [go] from ‘0 to 100 in no time, depending on the situation’”[36].

   [35] Exhibit J1, 6.

   [36] Exhibit ICL 3, 7.

5. The Family Consultant in Canberra experienced first-hand the father’s angry outbursts during a telephone call with the father. She states “[d]uring [the father’s] tirade of abuse, comments were included along the line of turning [the mother] and others to dust.”[37] It would appear then, that the father’s outbursts can contain an element of violence.

   [37] Exhibit J1, 7.

6. I observed during Court proceedings that there were occasions where the father had, to use the term used by his son L and by Mr T, “gone off”.  In addition, Mr T acknowledged that in the some twenty sessions that he has had with the father the father has ventilated his frustration and anger on a number of occasions.

7. It is evident that the children have witnessed the father’s angry outbursts. The evidence of L, his son, with whom everyone accepts he has a strong affinity, also points to the fact that the father is unable to control his emotions or anger and will give rise to this orally at least seemingly no matter what the circumstances, no matter what the consequences and potentially without much thought as to how it might affect the children. 

8. The child L, as reported by the Family Consultant in C, said this about his father’s telephone calls to him (I quote this in full because it is, in my opinion, a very significant insight into L’s personality and his views and the dilemma in which he finds himself.)[38]:

   [The child L] explained that his father rang Monday, Wednesday and Friday nights. He said this frequency was not too often or too little.  He said “I’m the main one that talks to him.  [M] usually doesn’t want to”.  [L] did not think this made it hard to be the only person.  He said they spoke mainly about “the wrestling and how we love each other”.  [L] said when he is on the phone with his father “I am praying he won’t go off.  I really don’t like that”.  [L] spoke with his head down.  [L] recalled that his father “asks me questions I sort of don’t know…sort of about mum”.  He said his father asks him “the food that we eat” to “make sure we don’t eat pork or bacon”.  [L] was asked how many times recently had his father ‘gone off’ while on the phone.  [L] said “it can strike at any second.  You don’t know” when it will happen.  He said that when this happens “you have to try to end the conversation”.  He said normally “when he goes off I listen.  I let it end and I try to make it all good”.  [L] explained that saying “time goes fast” and “it’s not that long till I see you” is generally effective.  [L] reflected that “I just don’t want to make him upset.  I’m just scared of it”.  [L] said he tries to talk about “happy things” with his father such as “wrestling” and “what he’s doing and how he feels”.

   [Emphasis added]

   [38] Exhibit J2, 2.

9. At the time of that report L was nine years and eight months of age.  At the time of the interview the father was over 43 years of age. 

10. The child M said the following in relation to her telephone calls with the father:[39]

    … “I pretty much don’t talk to him” because “I don’t have much to say and he doesn’t have much to say except “I love you and I miss you and stuff”. [M] said [L] “mainly talks” to her father. [M] had noticed that “sometimes [L] is sad” after a phone call because “dad tells him not that good things”. When queried about what were not good things, she said “not nice things”, “threatens us and stuff”. [M] said she knew this because “sometimes I over hear” and “sometimes [L] tells me”. [M] thought that “I’m worried sometimes” after the phone call. …

    [39] Exhibit J2, 3.

11. Both the Family Consultant in Canberra and the Family Consultant in C expressed the opinion that L’s experiences of his father’s anger have caused him to focus on avoiding topics that upset his father. The Family Consultant in Canberra said:[40]

    It would appear from [L’s] comments that he has been witness to his father’s out of control states and is mindful to avoid upsetting his father. It is likely that, when with his father, [L] is vigilant of [the father’s] state of mind, which is a substantial burden for a sensitive nine year old child. Consistent with an individual with frontal lobe damage, [the father] seems unaware of the impact of his behaviour on the children.

    [40] Exhibit J1, 6.

12. The Family Consultant in C had similar views in relation to how interaction with the father might affect L:[41]

    … While [L’s] phone contact with his father does not promote his emotional development nor his ability to regulate his own emotion (because he is focused on regulating others), it may also be the case that this is such a significant family role for [L] that a complete removal of it may be a crushing loss of identity and self esteem.

    At his current developmental age, this ‘other-focused’ role that [L] assumes means he presents as cooperative, compliant and polite. If this position remained a strong feature in [L’s] life (from too much time with his father), he has an increased risk of adolescent depression and possible social isolation from his peers. Furthermore, in adulthood the risk of immature personality development may also be increased (e.g. anger when others don’t acknowledge and need him or alternatively he may avoid other’s normal requirements for his cooperation).

    [41] Exhibit J2, 4.

13. It is clear from this evidence that the father has uncontrollable bursts of anger, sometimes with violent overtures, and that these have occurred in the presence of the children. The Family Consultant’s evidence leads me to conclude that exposure to these outbursts could cause the children significant harm. Not only do they cause the children to be worried, but they could have long-term effects for the children as well.

14. In this context, that I have sympathy for the mother’s not wanting to live close to the father. He is unable to control or regulate his emotions and he also seems incapable of understanding limitations imposed by orders.

15. In his most recent evidence the father commented, without any apparent appreciation of the significance, that he had breached an AVO by driving past the mother’s house.  He acknowledged it was a breach but felt that he needed to do it anyhow.  His inability to control his behaviour even in Court suggests that any restrictions imposed on him are not likely to prevent a further outburst of frustration or anger. 

16. Although the father has been attending Mr T on a regular basis I am not convinced that this attendance did not have, at least in part, a forensic purpose.  It also does not appear that the treatment is likely to have any effect on a condition which might be the result of a physical injury.  Mr T’s report about the “improvement” of the father over the period of him seeing him was in my opinion disingenuous.[42] 

    [42] Transcript, 18 September 2012, 16.

17. Mr T stated that he had seen a “mild improvement in the father’s psychological state:[43]

    Over the period he has been consulting you, have you detected any change or improvement in his psychological state?‑‑‑Yes.  I’ve seen a mild improvement on how he deals with –deals with his emotions and how he’s been dealing with this situation, like being able – you know, with the custodial situation.

    [43] Transcript, 18 September 2012, 2-3.

18. However, upon further questioning, it would appear that this was not, in fact, the case:[44]

    And this year, when he hasn’t seen his children at all‑ ‑ ‑?‑‑‑Yes.

    His angry outbursts have been more frequent?‑‑‑Yes, that’s correct.

    And did that deteriorate even further after July when he stopped having telephone time with his children?‑‑‑Yes.

    HIS HONOUR:   So, I’m sorry, just so I’ve got it right.  So he has improved since you first saw him or not?‑‑‑His presentation has fluctuated.  Overall there has probably been mild improvement but ‑ ‑ ‑ 

    If he has increased in his angry outbursts in recent times, then how has he demonstrated he has improved?‑‑‑Well, we’re talking about different reports from different time periods.

    No, well I’m talking about your comment earlier on – that overall he had improved over the time you’ve been seeing him.  What is it that you – if he has improved – if he has increased his outbursts this year because of his frustration of not having time with his children or talking to them, in what way has he ‑ ‑ ‑ 

    …

    THE WITNESS:   Well, as I said earlier, he has improved in how he’s dealing, you know, the actual – he’s avoiding his emotional responses less, he’s bottling up less is what I was getting to as the main thrust of the improvement.

    [44] Transcript, 18 September 2012, 16-17.

19. These comments may be commendably loyal to his patient but fail to convince me that there has been any appreciable improvement in the father’s behaviour.  This is not necessarily the father’s fault, however this is not about what is fair for the parents but rather what is in the best interests of the children.[45]

    [45] Family Law Act 1975 (Cth), 60CA.

20. I am satisfied for the reasons above that there is a need to protect the children from harm as a result of exposure to family violence on the part of the father. I am satisfied that his conduct, detailed above, falls within the definition of family violence.

21. The father is unable to control his outbursts and those outbursts cause the children to be frightened and distressed. Exposure to the father’s unpredictable behaviour can also have long-term consequences for the children, in particular L. For these reasons, any contact the children have with the father, either by phone or in person, should be regulated by having safe-guards in place, e.g. a supervisor, so that the children have more “peace of mind” and do not carry the burden of trying to regulate the father’s emotions, as L does.

22. This determination affects the decision I should make in this matter.  If I conclude the only time that the children might reasonably spend with the father for their own safety is supervised time then this will affect my consideration of the benefit the children may derive from having a meaningful relationship with their father – or for that matter whether there is a benefit to the children in having a relationship with their father.

23. It was alleged by the father that the children may be at risk of harm as a result of associating with Mr S, who the father believes to be a violent man.

24. Subsequent to her move to Queensland the mother commenced a romantic relationship with a man called Mr S in June 2011.  She says that relationship ceased in August 2012.[46]  He was a high school friend of the mother and they continue to be “friendly”.  The mother speaks to Mr S once a week and about once or twice a month Mr S spends time with the children and the mother.  It appears their usual pastime is to go fishing together[47].

    [46] Mother’s affidavit, filed 7 March 2013, [32].

    [47] Mother’s affidavit, filed 7 March 2013, [33].

25. The father does not wish the children to be in contact with Mr S because he believes Mr S to be a violent man.  After the mother moved to Queensland, the father called her in an attempt to speak to the children.  The father alleges that during one such call, Mr S got on the telephone and abused the father, saying “you are going to be swallowing cock”.[48]  The father reported that Mr S was the mother’s former boyfriend.  The father further says that the mother told him Mr S was violent to her during the relationship and punched her in the face.  This caused the father to be concerned that the mother’s association with Mr S may expose the children to violence.[49]

    [48] Father’s affidavit, filed 6 February 2012, [15].

    [49] Father’s affidavit, filed 6 February 2012, [24].

26. It was put on the father’s behalf that Mr S was in Queensland as some sort of fugitive from a warrant for his arrest in New South Wales.  I was not able to get to the bottom of that allegation but, in any event, when the mother returned to B Mr S accompanied her she says (and I accept) as a driving companion.  In relation to Mr S I accept the mother’s evidence that the relationship between them finished in August 2012, at least on an intimate level, and, while they remain friends they have not resumed that intimate relationship.  In this regard I accept the mother’s evidence in her affidavit of 7 March 2013 and reject the father’s assertion that L told him “Mum and [Mr S] and me and [M] are living at Grandma’s house”[50] Whether his recollection of what L said was right or not, I accept that Mr S is not, and has not been, living with the mother. 

    [50]Father’s affidavit, 22 March 2012, [10].

27. I do not consider there is a need to protect the children from harm as a result of exposure to contact with Mr S. There is no satisfactory evidence that Mr S has engaged in child abuse or family violence.

Section 60CC(2)(a)

1. The precise wording of s 60CC(2)(a) is important. It is not a primary consideration that the children have a meaningful relationship with both parents it is whether or not there is a benefit to the children in having a meaningful relationship with each parent. 

2. The report from the Family Consultant in C is particularly revealing about some of the difficulties associated with the children’s relationship with their father.  In her final paragraph she says:

   At his current developmental age, this ‘other-focused’ role that [L] assumes means he presents as cooperative, compliant and polite. If this position remained a strong feature in [L’s] life (from too much time with his father), he has an increased risk of adolescent depression and possible social isolation from his peers. Furthermore, in adulthood the risk of immature personality development may also be increased (e.g. anger when others don’t acknowledge and need him or alternatively he may avoid other’s [sic] normal requirements for his cooperation).

3. These paragraphs indicate that even at a comparatively young age, L is finding himself forced to cope with an adult who was not behaving as an adult might be expected to behave. The father has caused distress and worry to L without apparently being able to either appreciate that he was doing so or prevent himself from doing it. 

4. The child M’s relationship with her father is necessarily more remote.  I have no doubt that the father thinks that he would like to have a relationship with M.  He has however demonstrated no capacity to do so.  His comments in Court that he did not know if he could have a relationship with his daughter are extraordinary even allowing for the emotional pressure under which the father must have been when he gave that answer.

5. Having expressed those views, however, it is to be conceded that since the children have returned to New South Wales and have spent time with their father, (even on their mother’s report) the children appeared to have enjoyed that time.  We are however talking about very limited time. The children have spent time with the father for two hours on one occasion, supervised by X Service. Even during that period it seems that the father has very little understanding about what he might do with the children and has contributed nothing in any of his affidavit material as to his aspirations for their future or for their long term care. 

6. He is unable to contribute in any way financially to their wellbeing and, given his difficulties with his disability or his personality or both, it is difficult to envisage that he could participate in any meaningful way in physical parenting of the children for extended periods on a day-to-day or even less frequent period. 

7. These factors, combined with the father’s outbursts and the effects those outbursts have on the children, mean that in practical terms, with reluctance, I find that the benefit to the children in having a meaningful relationship with the father is minimal and is outweighed by the harm the children would suffer as a result of the exposure to his uncontrollable outbursts and threats. The benefit to the children of spending time with the father may be maximised if such time were supervised. This situation may change when they are older and are able to react with him as older adolescents or adults.  In particular, L’s shared interest with his father in wrestling may find some expression when L either approaches leaving high school or has left school. 

Additional considerations

Section 60CC(3)(a)

1. I have outlined above some of the views of the children in relation to speaking to the father on the telephone. M appears ambivalent, while L appears to be apprehensive about whether or not the father will “go off”.

2. In relation to spending time with the father:[51]

   [L] proposed that if he returned to [B] that he should spend “two hours” on a Sunday, and two hours “after school” on Monday and Tuesday. He thought on school holidays he should spend the “first weekend of holidays” at his fathers. On the Christmas holidays “maybe the first two weekends of the Christmas holidays” but “then it goes back to normal” indicating the two hours after school “I’m sure he’d be happy”.

   [51] Exhibit J2, 2-3.

3. The Family Consultant’s evidence was that “[L’s] proposals of time with his father if he returned to [B]is a combination of his wishes and also the amount of time his father might be satisfied with.”[52] I accept that evidence, particularly in light of the Family Consultant’s evidence that L is focused on keeping the father happy during telephone calls and regulating the father’s emotions rather than his own.

   [52] Exhibit J2, 4.

1. M expresses a stronger negative view about spending time with the father:[53]

   She said “I don’t really like seeing dad that much. Sometimes mum forces me”. She said she could remember some fun things she had done with her father but “mostly not really fun. He watches wrestling with [L] and makes me play by myself. I say ‘I don’t want to’ and he says ‘too bad’.”

   [53] Exhibit J2, 3.

2. I accept this statement is a genuine reflection of M’s views on spending time with the father. 

3. Their views about where they want to live I find to be ambivalent also. L appears to enjoy the B school better than the C school as he was experiencing some bullying behaviour at the C school. In Queensland, L also expressed a great deal of empathy for his mother in relation to her difficulties with employment. M had a much easier time adapting to life in Queensland.[54]

   [54] Exhibit J2, 2-3.

4. In B the children have the advantage of attending the school they attended before they went to Queensland and returning to the friends that they had before they went to C.  I note, however, that L said to his father apparently that he had made new friends.  It is likely that wherever they are living with their mum will probably work for them.  I note from the Family Consultant’s memorandum:[55]

   [L] said he was closest to his mother (“she’s special”)…

   [55] Exhibit J2,  2

5. Given the insight, sensitivity and maturity demonstrated in his other comments it seems to me that this indicates that L would probably prefer to see his mother content and happy than otherwise.  However, this is an extrapolation from the evidence rather than any direct evidence and I am not prepared to make a finding to that effect.  I rest on the proposition that the children’s views about where they might want to live are ambivalent. 

6. Both of the children have implicitly indicated to the Family Consultant in C affection for and a desire to see (more frequently) their grandmother.  Each of the children had in the course of that report nominated that their father was not a person with whom they were most closely associated[56]. 

   [56] Exhibit J2, 2 and 3.

Section 6CC(3)(b)

1. It appears that L and the father have a friendly relationship. However, it is common ground that the father and L share an interest in wrestling – apparently mainly by watching it on television. However, as I have commented above, the Family Consultant’s evidence would indicate that it is a relationship where L, in many respects, takes on adult roles. The possible consequences of that have already been discussed.

2. It is common ground that the father does not have as close a relationship or, possibly, any serious or significant relationship with his daughter.  This appears from the memorandum from the Family Consultant where M indicates that she rarely speaks to her father and the Family Consultant concludes that her relationship with her father is a “vicarious” one.  At that point the Family Consultant recorded that:[57]

   [M]’s disinterest is [sic] seeing her father appeared genuine.

   [57] Exhibit J2, 3.

3. When she was asked whether she could remember some fun things she had done with her father,  she said she did, but:[58]

   “mostly not really fun. He watches wrestling with [L] and makes me play by myself. I say ‘I don’t want to’ and he says ‘too bad’.

   [58] Exhibit J2, 3.

4. In addition, in Court the father had expressed his difficulties about spending time with M.  This is reflected in a comment that I put to Mr T (the father’s psychologist):[59]

   …He indicated yesterday in his evidence that really he didn’t think he would be able to have time with his daughter – it was really his son that was the principal focus of his attention.  Does that show that he has control and principles about dealing with his daughter?‑‑‑Well he doesn’t have a connection with a daughter because he hasn’t been able to spend any time with her.  I think he is hurt that he hasn’t – that he doesn’t have a connection with her and ‑ ‑ ‑ 

   Why do you think that?‑‑‑Because he’s – because that’s my impression from seeing him over 20 sessions  ... 

   [59] Transcript, 18 September 2012, 13-14.

Section 60CC(3)(c)

1. The father, properly, accepts that the children should live with the mother.

   The mother has, in the past, facilitated time and telephone contact between the father and the children. However, given the father’s outbursts I have sympathy for why the mother terminated the children’s calls with the father while they were in C. To the mother’s credit, she has cooperated with orders that require her to make the children available for supervised time on a very limited basis with him in B.

Section 60CC(3)(d)

1. If the children lived in far north Queensland, they would be separated from the father, their maternal grandmother and further away from their paternal family, who live near Canberra. The father would unlikely be able to afford to travel regularly to Queensland so the children’s contact with him, if any, would be limited to telephone or electronic communication. While they are members of his family, it is not necessarily the case that separation from them will have significant adverse effects on the children.

2. The child L said he was:[60]

   Closest to his mother (“she’s special”), and then he had a “big group” of people who the next special person [sic]. These were his “Nan”, “Grand dad”, “other Grandad (referring to the maternal grandfather), “Nan’s sisters”. He said following this group, his father was next …

   [60] Exhibit J2, 2.

3. The Family Consultant in C said that the father’s role may be “such a significant family role for [L] that a complete removal of it may be a crushing loss of identity and self-esteem.”[61] I take this evidence in combination with what L says about his father. L’s statement does not indicate the father is one of the people he is closest to. Therefore, I infer that separation from the father, as L experienced when he first moved to Queensland, will not have a significant adverse impact on him. However, a “complete removal”, i.e. no telephone contact, may lead L to feel a loss of identity and self-esteem.

   [61] Exhibit J2, 3.

4. The child M’s views, expressed above, indicate that the father is not a significant attachment figure in her life and it is unlikely she would experience significant adverse effects as a result of separation from him.

Section 60CC(3)(e)

1. If the mother lived in C, there would great practical difficulty and expense in the children seeing the father. This is amplified by the fact that neither party has stable employment. The father has indicated that he could not and would not be able to travel to C.  When the mother came from C to B she came by car and the petrol money was supplied by her mother.  It is unlikely that she would be able to afford to travel regularly (even by car) between Queensland and Canberra.  Even if she were, it would be unreasonable to expect so much road travel from the children on a regular basis. 

2. If the mother remains in B, there is some difficulty in how the father would spend time with the children because there is some dispute about how frequently X Service could conduct supervision of the children in B. X Service operates out of a town which is relatively close to B. It might be thought that X Service could supervise time between the father and the children fortnightly. However, this is in fact not possible as they are only in B once a month.  The mother seeks that any time the father has with the children should be in B as she has limited financial circumstances and has been living on her savings since she returned to New South Wales. 

Section 60CC(3)(f)

1. The capacity of the parents to support the children in their emotional intellectual and psychological development has been the subject of some consideration.  The mother has maintained her care of the children in difficult circumstances over a protracted period of litigation. History demonstrates and I accept the mother is capable of providing for the children’s physical, psychological and emotional needs.

2. Given that she has been almost the sole carer of the children particularly L’s views with their sensitivity and maturity reflect great credit on her ability as a parent. 

3. Although M tends not to be the focus of attention in many of the affidavits it is clear that she has grown up as an “outgoing, talkative and easy going” little girl.[62]  This again can only be to the credit of the mother. 

   [62] Exhibit J2, 3.

4. This is not to say in the context of this matter that the mother’s behaviour has always been flawless or altruistic.  Some of her actions are questionable, in particular her move to Queensland.  This was not as transparent as she would like to now make out.  Nevertheless, I have no doubt that she has placed the wellbeing of her children at the forefront of her considerations in a context in which she believes that the children’s father has a negative effect on their wellbeing. 

5. There was some evidence early in the proceedings that the father may not be able properly to supervise and care for the children if he were unsupervised.  (There was an incident about the children crossing the road in an unsupervised way when they were in his care)[63]. There remains also a serious concern that the father’s personality or disability in combination with his excessive use of marijuana (which is acknowledged by his psychologist and his doctor it appears) may bring about a situation where he is unable to direct his good intentions about the children in an appropriate way.  The father’s evidence about his consumption of marijuana even taken at its most conservative (its high point was, on his subsequently retracted evidence, 20 cones a day) may bring about a situation where he is unable properly to care for the children. 

   [63] Exhibit J1, 6.

6. It was put to Mr T[64]

   Well, if I tell you that he has given evidence in court, in these proceedings yesterday, that he takes between seven and 12 or smokes between seven and 12 marijuana cigarettes each day – its cones, sorry, cones each day and that he has that level of consumption has more or less been the same since about 1991?‑‑‑Mm.

   Do you have any familiarity with the effects of long term cannabis use?‑‑‑Yes, I have some familiarity.

   …

   Thank you.  It’s the case, isn't it, that – well, what do you understand to be the long term effects of frequent marijuana use?‑‑‑It can have some short term effects on memory.  It can – you know, it can affect mood so it can actually increase anxiety and movement stability in certain cases.

   [64] Transcript, 18 September 2012, 3 and 4.

7. The father seemed to show no signs of wanting to move away from his medication which he takes in conjunction with the marijuana.  He suggested that the use of marijuana was on the advice of his doctor.  I do not accept that evidence. 

8. There is also some evidence that the father does not properly feed the children when they are in his care.[65] However, those allegations were from 2009 and have not been dealt with in detail in these proceedings.

   [65] Mother’s affidavit, filed 17 July 2009. [13].

Section 60CC(3)(g)

1. The father is a Muslim, the mother is not.  She did not previously (when the proceedings were before me) express a strong view that the children should not be brought up under the guidance of Islam. However, the mother has recently expressed that she no longer wishes to have the obligation to raise the children as Muslims imposed on her.

2. There is no other cultural or religious influence related from the father’s background in evidence which should be the subject of further consideration.

Section 60CC(h)

1. Not relevant.

Section 60CC(3)(i)

1. I have commented about this above and have nothing further to add.

Sections 60C(3)(j) and (k)

1. I have commented above about violence.  There have been AVOs and there have been breaches of AVOs by the father.  These are important because they are an indication that, notwithstanding orders of courts, the father appears to be unable to modify or moderate his behaviour to refrain from activities which may impose fear or concern on other parties. 

2. These are factors which reinforce the proposition that it is not necessarily in the children’s best interests that they should have association with him. In particular, he would have to acknowledge, that as a role model to the children, his uncontrollable outbursts cannot possibly be an advantage to them or in their best interests.

Section 60CC(3)(l)

1. The parties in this matter have been in litigation since 2008. The children have been the subject of proceedings for five years. It is in their bests interests for this litigation to be brought to an end with final orders.

Section 60CC(3)(m)

1. The mother paid rent on her premises in C until February 2013 but that lease is now lapsed and she would have to find new premises if she returns to Queensland.  The future of her mother’s house is not clear.  The evidence about the necessity for its sale to enable the mother to be adequately accommodated in a nursing home is absent.  Her mother is in a nursing home and the mother’s evidence is that she expects that her mother’s house will have to be sold in order to “free up money to support [her mother] in the [nursing home]”[66]. It appears therefore, that if the mother were to remain in B, her accommodation situation is uncertain.

   [66] Mother’s affidavit, filed 7 March 2013, [25].

2. If the mother were to return to Queensland, her accommodation situation is also uncertain.  She would have to find accommodation all over again and that accommodation may not enable her to be conveniently located near to the school that the children previously attended.  She expressed[67] that she did not want to disrupt the children any more than she had and wanted them to return to school in C in Term 3. 

   [67] Mother’s affidavit, filed 7 March 2013, [23]

3. One of the difficulties the mother had in C, not only as reported by her but also commented upon by L[68], was finding adequate employment.  After working at a hotel and a cinema, the mother attended two interviews for potential jobs. She was waiting to hear back about the interviews.[69] The mother has been able to secure a temporary, part-time job in B.[70] On the evidence, it is unclear whether the mother’s employment prospects are better in Queensland or in New South Wales. The mother has been able to secure employment in both places.

   [68] Exhibit J2, 2.

   [69] Mother’s affidavit, filed 7 March 2013, [11].

   [70] Mother’s affidavit, filed 7 March 2013, [24].

Section 60CC(4)

1. I have made comments about the factors set out in this section and have nothing further to add.

Parental responsibility

1. This is not a matter in which it would be reasonable that there should be equal shared parental responsibility.  Any such presumption is effectively rebutted by the violence that occurred in the past and by the continued expression of violent language on the part of the father which, in my opinion, might properly fall within the definition of family violence.

2. Even if it were the case that the presumption were not rebutted because of family violence, this is not a matter in which it is even remotely feasible that the parents work together to cooperate on matters relating to the long-term or medium-term or even short-term matters relating to the children.  This is so irrespective of whether they are living in B or C. The mother does not wish to speak to the father because of the father’s previous threats. The parents are unable to work cooperatively for the benefit of the children and for this reason it is not in the children’s best interests for the parents to have equal shared parental responsibility.  

3. Therefore one parent should have sole parental responsibility.  In the circumstances of this matter, there can be no doubt that person should be the mother. She has been the children’s primary carer throughout their lives and she is their primary attachment figure.  I will make an order accordingly. 

4. The father sought sole parental responsibility as to the religion in which the children are raised.  I have commented above that the father is a Muslim and the mother is not. I have very little evidence about the father’s adherence to Islam apart from his reported concerns about the children’s diet, in particular, the possibility they might be eating pork.[71]  I cannot gauge how important the children’s religion is for him from the evidence before me and I see no basis for making an exception to the mother’s sole parental responsibility for this issue.  As she will have almost total care of the children (even if they are living in B) she should be able to determine the moral and religious upbringing of the children as well.

New South Wales south coast or far north Queensland

[71] Exhibit J1, 2.

1. There is no question in this matter that the children should live with anyone other than the mother.

2. In this matter the mother’s proposal is that she should be free to return to far north Queensland.  It is not obvious as to how she is going to get back to C in the short-term and when she gets to C it is not obvious what her circumstances would be – for example, where she would live, where the children would go to school, and where she would work. In relation to employment, however, the mother has shown in the past an ability to be able to obtain employment in C.

3. In B on the New South Wales south coast the mother currently has temporary part-time employment and it seems likely she would also be able to obtain employment in B in the future. She would also be close to her mother who is a person important to the children.  She is also closer to the paternal grandparents whom the mother is both supportive of and who she believes are people with whom the children should be associated.  This is evidenced in part by the fact that she was prepared to allow them to supervise the father for longer periods of time with the children. 

4. The situations in C and B are similar. Except, living in B would allow the children to live nearer to their extended family and, therefore, possibly enable them to spend more time with their extended family than they would if they were living in C. The child L also seems to have more friends in the B school. However, I am not satisfied that the children’s extended family members are sufficiently significant people in their lives as to impose an injunction on the mother to prevent her from living in the city she desires. Nor am I satisfied that L is so unhappy with his school in C that it would justify the imposition of an injunction on the mother. It is also unclear whether, if the mother returned to C, L would necessarily attend the same school there as he did previously.

5. If I had been able to determine that the children would derive more than a minimal benefit from spending time with their father, the comparison of C and B would probably have been concluded in favour of the mother being required to stay in B. However, for the reasons I have discussed above, I find that the benefit to the children of having a meaningful relationship with the father is minimal and is not enough to justify the imposition of an injunction on the mother’s freedom of movement.

6. While I am not convinced that the mother’s life will be any easier in C or that the children will have as much contact with their distant families, it does not seem to me that there is anything in the evidence that would justify my imposing an injunction upon her returning to C, or anywhere else for that matter, if she wanted to do so.  I do not propose to impose the injunction sought.

The time the children shall spend with the father

1. The child L has expressed a desire to spend some time with the father. However, I am not satisfied that L’s wishes are enough to outweigh the harm to the children in spending substantial, unsupervised time with the father. There is evidence that spending time with the father causes the children to be worried about whether or not he will have an angry outburst. And if there is such an outburst, there is evidence that the children become stressed and worried. There is also evidence from the Family Consultant that if he continues to have a role where he is regulating his father’s emotions rather than his own, this could lead to an increased risk of adolescent depression and possible social isolation. There has also been some question as to the father’s ability to care for the children, unsupervised. Taking these factors into account, I am satisfied that the children’s time with the father, whether it is in person or by telephone, needs to be supervised so that the children are not subject to the stress and worry that they have been in the past. Having a supervisor present means there will be a protective adult present if the father does have an outburst.

1. In this matter it is difficult not to have sympathy with each of the parents of the children.  I accept that the father probably does not want to be the way he is.  I accept however that he is the way he is – a person who is subject to uncontrollable bursts of anger in totally inappropriate circumstances and that these outbursts included, in many cases, quite violent threats.  The father and his psychologist both say that he does not mean these things and, while he expresses violent ideation, there is no legal record of the father carrying out the violence.[72]  Nevertheless, the constant repetition of violent threats reasonably would arouse fear in the children and in the mother.

   [72] Exhibit ICL 3, 4.

C

1. If the mother moves back to C, as she has indicated is her intention, the “time” the children spend with the father will be via telephone calls.  I am conscious of the allegations that the father has, on previous occasions, “gone off” while on the phone with the children and threatened to kill the mother. I can only imagine the level of distress that would cause a child. However, I am very conscious of the fact that for practical reasons (the father does not seem to write much to the children) telephone calls may represent the only method of communication the father might have with the children.  I am very reluctant to terminate that tenuous link. 

2. Accordingly, it seems to me that reluctantly I should accept the fact that the children should be encouraged by their mother and should initiate a telephone conversation to their father once a week, such telephone call to be made at a specified time (6 pm on Saturday). That call, however, will be placed on speaker phone so that the mother is able to observe the father’s conversation with the children and is able to terminate the call if the father becomes abusive or threatening.

3. If the father is not available to take the call at that time the call will not incur and he will not call back. 

4. I shall also make orders that require the mother to keep the father informed (if he keeps her informed of his address and contact numbers) of any serious illness that may affect the children and permit the father to make contact with the children’s school for the purposes of obtaining reports and other notices from the school. 

5. I make no orders regarding physical time with the father if the children live in C. It is unlikely the children will be able to spend regular time, or even irregular time, with the father in C because of the parties’ inability to fund regular travel between C and B.

B

1. If the children and the mother remain in B, they will live near the father. In those circumstances, it is reasonably practicable for the father to spend some time with the children, physically. Although the benefit to the children in continuing a relationship with the father is minimal, I see no reason why this should not take place if it is reasonably practicable. However, this should only take place in an environment where the children feel safe and there is a protective adult present to supervise in the event the father loses control. The children will spend two hours on one occasion each month with the father, supervised by X Service in. In my view, once a month is sufficient.

I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 7 May 2013.

Legal Associate: 

Date:  7 May 2013

Application for interim orders (father) FMC - 20 June 2008
FMC judgment - 2 December 2009
Application for final orders (father) FMC - 19 April 2011
Application for interim orders (father) FMC - 19 April 2011
FMC transfer to the FCoA - 18 July 2011
Application for final orders (father) transferred from the FMC and commences in the FCoA - 25 July 2011
Application for interim orders (father) - 6 February 2012

Application for interim orders (father) - 13 March 2012