Klyne and Klyne

[2017] FamCA 807

FAMILY COURT OF AUSTRALIA

KLYNE & KLYNE [2017] FamCA 807

FAMILY LAW – CHILDREN – With whom children live – Where the eldest child has no biological connection to the father – Where the mother aligned the eldest child against the father – Where the father does not seek the eldest child’s residence and the mother will likely contravene orders requiring him to spend time with the father – Where the father is disinclined to enforce orders against the mother – Where the mother will retain parental responsibility for the eldest child – Concluded no orders should be made regulating with whom he lives or spends time – Where the mother does not value the father as an important figure in the two youngest children’s lives – Where their continued residence with the mother risks destruction or impairment of their relationships with the father – Where the father is capable of providing satisfactory residential care for them and offers superior capacity to promote their social interaction – Ordered the two youngest children live with the father and spend time with the mother

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 65Y

Allesch v Maunz (2000) 203 CLR 172
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Mr Klyne

RESPONDENT: Ms Klyne

INDEPENDENT CHILDREN’S LAWYER: Mr Winder, Winder Lawyers

FILE NUMBER: NCC 1701 of 2014

DATE DELIVERED: 4 September 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 23 & 24 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Baker Love Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wilkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Winder Lawyers

Orders

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

   (a)B, born … 2005;

   (b)C, born … 2009; and

   (c)D, born … 2012.

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

3. C and D shall live with the father.

4. The parties shall take all reasonable steps to ensure that C and D spend time with the mother as follows, or as otherwise agreed:

   (a)During school terms, each alternate weekend from the conclusion of school and pre-school on Friday until the commencement of school and pre-school on the following Monday (or Tuesday if Monday is a public holiday), commencing on Friday 8 September 2017, but otherwise on the first Friday of each term.

   (b)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year.

   (c)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

5. Order 4 hereof is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period C and D will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

   (b)Between 10.00 am Sunday and the commencement of school on Monday on each Mother’s Day and Father’s Day weekends, during which periods C and D shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.

6. For the purposes of implementation of Orders 4 and 5 hereof:

   (a)The school holidays are deemed to commence at the conclusion of school on the last day of school term, are deemed to end at the commencement of school on the first day of the new school term, and the mid-point is noon on the day halfway between those first and last days;

   (b)The mother shall collect the children from school and pre-school when their visits with her commence at the conclusion of school and pre-school, return them to school and pre-school when their visits with her end at the commencement of school and pre-school, and otherwise exchange the children with the father at the McDonald’s Restaurant at Suburb E, NSW.

7. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that C and D communicate by telephone with:

   (a)The mother at 6.00 pm each Wednesday when the children are living with the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the mother’s calls on that number at that time.

   (b)The father at 6.00 pm each Wednesday when the children are spending time with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number at that time.

   (c)The parent with whom they are not then staying, on the children’s birthdays at 6.00 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose and the parent with whom the children are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.

8. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

9. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

10. Each party shall ensure the children’s attendance at all educational, sporting, cultural, and extra-curricular events in which the children are enrolled or in which the children are due to participate.

11. The mother shall authorise and request the principal of any school attended by B to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

12. The father shall authorise and request the principal of any school or pre-school attended by C and D to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.

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

14. The mother shall forthwith surrender to the father any passport she holds for either C or D and is restrained from applying for the issue of any new passport in respect of either C or D.

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

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

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

18. No order as to costs.

19. Any and all outstanding applications are dismissed.

Notations

(A)The mother shall retain parental responsibility for B pursuant to s 61C of the Family Law Act.

(B)No other orders are made to regulate with whom B lives, spends time, or communicates.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1701 of 2014

Mr Klyne

Applicant

And

Ms Klyne

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders for three children under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The two youngest children are those of the applicant father and respondent mother. They were born in 2009 and 2012 and, at the time of trial, were aged nearly eight years and five years respectively.

3. The eldest child was born in 2005 to the mother’s former relationship with another man. He is now 12 years of age. His biological father was joined as the second respondent to these proceedings but, as he did not thereafter actively participate in the proceedings, he was later discharged as a party. He is believed to live in the USA. The eldest child last saw his father in 2008 and now has no relationship with him at all. The eldest child regarded the applicant father as the paternal figure in his life.

4. The parties agreed the eldest child should continue to live with the mother, but they disputed all other aspects of the children’s care: the allocation of parental responsibility for them, with whom they would live, and the manner in which they would spend time and communicate with the non-residential parent.

Relevant history

1. The parties met in July 2006, while the father was working in North America. The father returned to Australia permanently in October 2007 and the parties were married in Australia in 2008. The mother returned to North America in August 2008 to apply for a spousal visa, but returned to Australia in November 2008 and has been resident here ever since. She acquired Australian citizenship in August 2013, after the parties separated.

2. The parties separated in January 2013.

3. The mother’s desire to return to North America from since around the time of the parties’ separation has been a relatively constant distraction. She first raised the proposition with the father in 2012, before final separation,[1] but formalised the proposal in April 2014, after separation,[2] then retracted it in June 2014.[3]

   [1] Father’s affidavit, paras 26, 28

   [2] Father’s affidavit, paras 38, 212

   [3] Father’s affidavit, para 39

4. Nonetheless, the father was concerned the mother might change her mind again with little or no warning, so he commenced proceedings in the Federal Circuit Court of Australia, but only in relation to the two youngest children. That Court made final orders in November 2014 between the parties, with their consent, providing for the parties to have equal shared parental responsibility for the two youngest children, for them to live with the mother, and for them to spend substantial and regular time with the father.

5. Less than 12 months later, in October 2015, the father commenced fresh proceedings before the Federal Circuit Court of Australia, but this time in respect of only the eldest child. He was motivated to do so because of his apprehension the mother intended to take the eldest child back to North America to leave him there and return to Australia alone,[4] which was a variation of her earlier plan in 2012 and 2014. The mother opposed the father’s application in respect of the eldest child and she re-opened the litigation in respect of the two youngest children. Interim orders were made in December 2015 providing for the eldest child to live with the mother and to spend time with the father concurrently with the middle child. It was then noted the eldest child’s name remained on the airport watch list, preventing his departure from Australia.

   [4] Father’s affidavit, paras 44-57

6. Notwithstanding the existing orders made in November 2014 and December 2015, the mother returned to North America alone in early 2016 for a few months. She left all three children in the father’s full-time care from January until March 2016.[5] Upon the mother’s return to Australia, the children resumed residence with her. Although the two youngest children still visited the father, largely in accordance with the orders made in November 2014, the eldest child’s visits with the father petered out and the interim orders made in respect of him in December 2015 failed.[6] The mother’s contravention of those orders was later proven in November 2016.[7]

   [5] Father’s affidavit, paras 59-61

   [6] Father’s affidavit, paras 62-63, 177-178, 208, 225-271

   [7] Order 3 made on 18 November 2016; Father’s affidavit, paras 64-65

7. In the meantime, sometime after June 2016, the mother alleged the father was sexually interfering with the youngest child and so, in August 2016, the proceedings were transferred to this Court for determination.

8. In November 2016, the parties attended Court to determine any outstanding interim applications and to discuss the procedural progress of the proceedings towards trial. Orders were then made to formally dismiss the mother’s interim applications to discharge the former orders and effectively eliminate the father from the children’s lives,[8] following which she sacked her legal representative and, later that evening, delivered the three children and their belongings to the father’s home and left them. The children then lived with the father for about the next fortnight before they returned to live with the mother.[9] Since then, the two youngest children have continued to visit the father in compliance with the regime established by the orders made in November 2014,[10] but the eldest child has rarely seen him.[11]

   [8] Orders 1-3 made on 23 November 2016

   [9] Father’s affidavit, paras 66-97; Family Report, para 38

   [10] Father’s affidavit, para 98

   [11] Father’s affidavit, paras 271-272

9. The mother participated in the interviews with the Family Consultant in March 2017, but has not actively participated in the proceedings since the release of the Family Report. She did not appear at the Court event on 7 April 2017. Given the father foreshadowed his revised intention to seek orders for the two youngest children to live with him, the proceedings were adjourned and he was ordered to file and serve the mother with his Amended Application.[12] He did so, albeit several days late.[13]

   [12] Order 2 made on 7 April 2017

   [13] Notation A made on 28 April 2017

10. Once the proceedings were back before the Court on 28 April 2017, the mother was aware of the father’s new proposal for the three children set out within his Amended Application filed on 18 April 2017. Again, the mother did not appear, so the proceedings were fixed for trial in August 2017 and it was expressly noted the trial would proceed in her absence unless she took steps to re-list the matter before the Court.[14] The father was also ordered to file and serve the mother with the affidavits upon which he would rely at trial.[15] He did so.[16]

    [14] Notation A made on 28 April 2017

    [15] Orders 3-4 made on 28 April 2017

    [16] Affidavit of Mr F filed on 11 July 2017

11. A sealed copy of the orders made on 28 April 2017 was sent by the Court to the mother’s last known address, so she must have been aware of the impending determination of the proceedings. She also knew the nature of the father’s application in respect of the children and the evidence upon which he relied. Despite such knowledge, the mother did not re-list the proceedings for further procedural orders, nor did she appear at trial.

12. The mother told the Family Consultant she did not believe her views about the children’s future would be taken seriously,[17] but she cannot expect her views to be taken into account and given any weight if she refuses to engage with the litigious process by explaining her position in evidence and making herself available for cross-examination. The only inference presently available is that she has no intention to participate in the determination of proper orders for her children, in which event she must accept the Court’s decision made in her absence. Her decision not to participate is apparently entirely voluntary and her withdrawal from the proceedings only served to emphasise the concern expressed about her by the father.

    [17] Family Report, paras 110-111

13. While it is a fundamental principle of natural justice that parties should be afforded the reasonable opportunity to appear and present their case, being given the opportunity and making use of it are two different things. If a party eschews the opportunity to be heard at trial, knowing full well the case will be heard and determined regardless, as occurred with the mother here, justice does not miscarry. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

14. Although the mother abandoned interest, the proceedings remained contested between the father and Independent Children’s Lawyer, as they could not agree upon the orders that should be made for the children.

Proposals

1. Given the mother’s failure to appear and prosecute her last proposal, set out within her Amended Response filed on 29 June 2016, it was ignored. Any past affidavits she filed were also ignored, since she was not available for cross-examination on her evidence.

2. The father pressed for the orders set out in his Amended Application, filed on 18 April 2017, which differentiated the eldest child from the two youngest children. In respect of the two youngest children, he proposed that he have sole parental responsibility for them, that they live with him, and that they spend time with the mother on alternate weekends, during school holidays and on other special occasions. In final submissions, the father conceded his proposal in respect of the eldest child was difficult to sustain, so he abandoned any application to share parental responsibility for him, but he maintained his application for the child to spend substantial amounts of time with him.

3. The Independent Children’s Lawyer began the trial foreshadowing his proposal for different orders from those proposed by the father, but did not file a minute of orders until the evidence was closed.[18] His ultimate proposal in respect of the two youngest children was very similar to the father’s proposal but, in respect of the eldest child, he proposed that no order be made regulating the child’s interaction with the father. The father and Independent Children’s Lawyer agreed the eldest child should remain living with the mother and she should have parental responsibility for him.

   [18] Exhibit ICL1

Evidence

1. The father relied upon:

   (a)His affidavit filed on 7 July 2017;

   (b)The affidavit of his partner, Ms G, filed on 7 July 2017;

   (c)The affidavit of the paternal grandmother filed on 7 July 2017; and

   (d)The affidavit of the youngest child’s pre-school director, Ms H, filed on 7 July 2017.

2. The father and Independent Children’s Lawyer also relied upon the Family Report, dated 17 March 2017, upon which the Family Consultant was cross-examined.

Legal principles

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

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

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

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

4. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. The eldest child’s residence with the mother was not under any threat. His relationship with her is important, which the father realised. As the Family Consultant observed, the mother is the only biological parent he knows and he is primarily attached to her.[19] Even though the eldest child historically enjoyed a meaningful relationship with the father, from which he surely derived benefit, they are not biologically connected. In the absence of paternity, the past nature of the eldest child’s relationship with the father is not a primary consideration under s 60CC(2)(a) of the Act and could only be an additional consideration under s 60CC(3) of the Act.

   [19] Family Report, para 71

2. The relationships between the two youngest children and the father are in a different category. They are biologically connected, their relationships with him are meaningful, they derive benefit from those relationships, and they should not be deprived of that benefit. The benefit the children derive from those relationships is just as important as the benefit they derive from their relationships with the mother.

Section 60CC(2)(b)

1. As earlier mentioned, these proceedings were transferred to this Court due to an allegation the father sexually abused the youngest child. The father denied it, both to the Family Consultant[20] and in evidence.[21] He feels the allegation was vexatious. There are sound reasons to doubt the integrity of the mother’s allegation and accept the father’s denial of any impropriety.

   [20] Family Report, para 36

   [21] Father’s affidavit, para 298

2. First, there was uncontested evidence of the mother’s willingness to fabricate allegations of sexual abuse against the father for forensic advantage. In October 2015, shortly after the father commenced proceedings against the mother in respect of the eldest child, which she found objectionable, she said to him:[22]

   Why are you doing this? I could make something out of [the youngest child’s] rash [around her genitals]

   [22] Father’s affidavit, para 57

3. Second, assuming the allegation she later made against the father was not fabricated, the evidence of sexual abuse, at its highest, was confined to the mother’s suspicion. She told the Family Consultant she considered the youngest child had been “touched in some way” simply because she had “redness on her pubic area”.[23] There could have been numerous innocent explanations for that.

   [23] Family Report, para 54

4. Third, the mother acted inconsistently with the allegations. She filed a Notice of Risk in the proceedings in June 2016, which made no mention of any risk of sexual abuse. She did not bring the allegation to the Court’s attention until August 2016, but then in November 2016 she took the children to the father and left them in his permanent full-time care. Even though he relented and allowed them to return to the mother’s primary care about two weeks later, it is inconceivable she would have abandoned the children with him if she genuinely believed they were at risk of harm by subjection to his sexual abuse. The Family Consultant said in cross-examination that, when she conferred with the mother in March 2017, her presentation was inconsistent with any true belief in the past allegations of sexual abuse. The mother’s failure to participate in these proceedings implied she does not genuinely believe the abuse occurred and does not even genuinely fear its occurrence.

5. Lastly, the Family Consultant independently formed the impression the mother’s past allegations were false and merely demonstrated she was “clutching at straws” to exert control over the children’s future.[24]

   [24] Family Report, para 115

6. The evidence did not suggest the children need any protection at all against the risk of harm by subjection to sexual abuse.

Children’s best interests – additional considerations

1. It was implicitly accepted in these proceedings that the parties have comparable capacity to satisfy all of the children’s physical and intellectual needs. The contest was really only in respect of their capacity to satisfy the children’s emotional needs. The father contended he had a superior parenting capacity in that regard and, hence, the two youngest children should live with him instead.

2. However, since the two youngest children have, for the last three years, lived primarily with the mother and spent substantial amounts of time with the father in adherence to final orders made with the parties’ consent in November 2014, the father needed to address the rhetorical question: why should the working arrangement change? His answer was convincing. While the mother has generally complied with the interim parenting orders, at least in respect of the two youngest children, her willingness and ability to continue supporting their relationships with the father once this litigation ends is in serious doubt for several reasons.

3. Most importantly, the mother does not value the father as an important figure in the children’s lives. When she conferred with the Family Consultant, she was ambivalent about whether the children would benefit from having relationships with him.[25] Despite the elapse of more than four years since separation, the mother’s vitriol has not subsided. Her hatred for the father and everyone connected with him is palpable. She recently referred to the father’s current partner in text messages as “thing”, “dog”, and “animal” and she said more generally of the paternal family:[26]

   I wish for you and all your family and family members to die a slow and painful death!...You are the devils from the pits of hell!

   [25] Family Report, para 24

   [26] Exhibit F1

4. While the mother has not yet aligned the two youngest children with her against the father, she undoubtedly caused the eldest child’s alienation from the father. In cross-examination, the Family Consultant said she considered the mother was “trying hard” to align the eldest child, in which case the process must be deliberate rather than inadvertent. The eldest child once regarded the father as the paternal figure in his life and they formerly enjoyed a close and loving relationship, but the mother ruined it. Her motivation for destroying their relationship can only be the subject of conjecture, though the fact of its ruination is not. The eldest child is now unrealistically negative about the father, told the other two children he hates the father, and told the Family Consultant he did not want to spend any time with him, which she advised was characteristic of a child who has been aligned with the dominant parent.[27] The Family Consultant considered the mother exerted an “enormous amount” of pressure on the eldest child to remain united with her in the conflict she peddles with the father.[28]

   [27] Family Report, paras 70, 71, 81

   [28] Family Report, para 126

5. Given the mother’s willingness to destroy the eldest child’s relationship with the father, it is easy to envisage how she may well be motivated to achieve the same objective in relation to the two youngest children. The father is concerned the mother has already started that process with the youngest child.[29] Such concern is elevated because of her apparent deep hatred for the father, her erratic behaviour, and the inducement for her continued compliance with the Court’s orders will end when this litigation concludes.

   [29] Family Report, para 42; Father’s affidavit, para 176

6. The mother’s instability is objectively demonstrated by her reaction to events in November 2016. She was dissatisfied by the orders made at Court on 23 November 2016, so she sacked her solicitor and took the children to the father’s home and abandoned them there – apparently permanently. The eldest child was distraught by his perceived abandonment by the mother and the two youngest children were confused.[30] The mother must have known they would react that way, but she did not desist from such an impulsive reaction. She prioritised her own needs above the children’s. Over following days, she wrote to the children’s school directing the staff to direct all future enquiries about the children to the father,[31] she informed the Child Support Agency the father had 100 per cent care of the children,[32] and she consulted her general practitioner for help, who noted she was anxious, teary, exhibiting depressed mood, finding it difficult to cope, and lacking support from family and friends. She was prescribed medication and referred for counselling pursuant to a mental health plan.[33] Although the children returned to live with the mother about two weeks later, there was no evidence to suggest her psychological state is any more stable now than it then was then. For all that is known, she may act that way again at any time when feeling overwhelmed.

   [30] Family Report, para 40

   [31] Exhibits F4, F5; Family Report, 56; Father’s affidavit, para 69

   [32] Family Report, paras 39, 56; Father’s affidavit, para 77

   [33] Exhibit F2

7. When the mother met with the Family Consultant in March 2017, her hostility was on open display.[34] In cross-examination, the Family Consultant elaborated how the mother was resentful and angry, which was obvious from her lack of eye contact, her body language, and her tone of voice. The Family Consultant tritely observed the children were likely to pick up on those cues and their knowledge of the mother’s hostility towards the father was liable to mould their reactions to him. The Family Consultant said the mother was simply unable to appreciate the problem from anyone’s perspective other than her own. Her lack of empathy for the children’s predicament, being stuck in the middle of the parental conflict, was a serious flaw in her parenting capacity.

   [34] Family Report, para 47

8. The prospect of the mother making further allegations of impropriety against the father also looms large. The father remains concerned she is prone to make false allegations,[35] which concern is not unreasonable, since the Family Consultant also thought the mother’s “resentment, hostility and rigidity” was likely to cause more conflict and possibly more allegations of sexual abuse.[36] The mother was resistant to the Family Consultant’s suggestion the youngest child’s past genital irritation could perhaps be explained benignly[37] and two separate medical examinations of the youngest child in May 2016[38] and January 2017[39] did not deter the mother from thinking the worst. She obviously lied when she told the Family Consultant in March 2017 she did not take the youngest child to the doctors in relation to the possibility of her sexual molestation.[40] Rather ominously, the mother told the Family Consultant:[41]

   Once this Court case is over [the alleged sexual abuse] will happen again

   [35] Family Report, para 37

   [36] Family Report, para 29

   [37] Family Report, para 55

   [38] Exhibit F3

   [39] Exhibit F8

   [40] Family Report, para 54

   [41] Family Report, paras 55, 114

9. Quite apart from the spectre of further emotional upheaval for the children if they remain living with the mother, the father offers the superior capacity to ensure the children’s wider social integration. While living with the mother, they are socially isolated. They do not participate in any extra-curricular activities and do not socialise with peers outside school hours, either at their home or their peers’ homes.[42] The mother is anxious about the children’s exposure to experiences over which she cannot exercise close control. For example, in the youngest child’s pre-school enrolment form, the mother instructed she could not participate in any controlled exposure to live animal demonstrations or performances by external performers at the pre-school.[43] By comparison, the father actively promotes the children’s social integration through sport and cultural activity.[44]

   [42] Family Report, paras 63, 84, 123

   [43] Exhibit F7

   [44] Family Report, para 122

10. The eldest child asserted he did not wish to spend any time with the father,[45] though the Family Consultant doubted that truly represented his desire and was more likely the product of the pressure he feels to support the mother.[46] She may well be right, but since he will continue to live with the mother and will be the subject of her influence, there is little chance he will revise his attitude. His view must be accorded weight, even if it is disingenuous.

    [45] Family Report, para 70

    [46] Family Report, para 126

11. The two youngest children want to spend time with the father and remain living with the mother.[47] They are too young and immature to understand the long-term implications of their stated views, so no weight is reposed in them.

    [47] Family Report, paras 76, 79, 82

12. The mother is not employed outside the home and is available to care for the children at all times.[48] The father is not as readily available to the children due to his employment,[49] but he has the support of his partner and the paternal grandparents, with whom the children are close.[50] The mother does not have such external support.[51]

    [48] Family Report, para 12; Father’s affidavit, para 2

    [49] Family Report, para 11

    [50] Family Report, paras 17, 19, 83

    [51] Family Report, para 18

13. The parties both live in suburban Newcastle. Their homes are only about five kilometres apart, separated by a drive of only 10 minutes duration.[52] Save for the need to avoid the chance for the children’s exposure to the parental conflict, there is no practical difficulty or expense involved in the children’s movement between the parties.

Conclusions and orders

[52] Family Report, paras 8-10

The eldest child

1. The father does not presumptively share parental responsibility for the eldest child because he is not his parent (s 61DA(1)). The father initially sought that he and the mother be vested with equal shared parental responsibility for the eldest child but, given his assertion the parties’ conflict was too virulent to permit their shared parental responsibility for the two youngest children, he was obliged to concede the same argument must apply in respect of the eldest child. Consequently, during final submissions, he abandoned his application for equal shared parental responsibility in respect of the eldest child and conceded the mother would retain parental responsibility for him.

2. The mother and the eldest child’s biological father each have parental responsibility for him (s 61C), which responsibility they may exercise independently. In the continuing absence of the eldest child’s biological father, the mother will exercise parental responsibility for him and no order is needed in these proceedings to that effect.

3. Nor is there any need to make an order about with whom the eldest child lives. The mother will make that decision as an incident of her parental responsibility for him, which authority empowers her to decide all aspects of his care (s 61B). As the eldest child ages and matures, he will decide for himself where and with whom he lives. He may choose to resume his relationship with the father when he acquires sufficient maturity to exercise judgment independently from the mother.

4. The father sought an order compelling the mother to ensure the eldest child spends substantial amounts of time with him – comprising six nights each fortnight during school terms, periods of school holidays, and other special occasions. The evidence plainly demonstrated the child’s interests would be promoted by that level of interaction with the father, but the acknowledgement of that hypothetical fact must be distinguished from reasonable expectation that such a regime could be imposed and satisfactorily enforced. The father said in cross-examination his proposal in respect of the eldest child was designed to help recover their relationship so it could be “just like old times”, but the evidence proved his hope to be misplaced.

5. By orders made in December 2015, the eldest child was obliged to spend the same amount of time with the father as the middle child. That occurred for only a few months until March 2016, but hardly at all since. The father successfully prosecuted the mother for contravening the orders without reasonable excuse, but it made no difference. At about that time, she imploded emotionally and abandoned all three children in his care for two weeks, but once they returned to her primary care she continued to flout the orders in respect of the eldest child. Save for the eldest child’s isolated visit earlier this year, to coincide with the birthday celebration arranged by the father for the youngest child, the eldest child has not seen him at all. As the Family Consultant said, if the mother does not value the psychological connection which previously existed between the eldest child and the father then, in the absence of their biological connection, their relationship is liable to perish.

6. In view of that history and the Family Consultant’s opinion, the prediction of the mother’s future contravention of the orders proposed by the father in respect of the eldest child is easily made. If orders of the sort proposed by the father were made and, as expected, were repeatedly breached then he would be confronted with only two options. He could ignore the mother’s continuing breach, in which event it would have been pointless to make the orders at all. Alternatively, he could prosecute her for the breaches, but he already knows she is undeterred by any sanction imposed for breaches of orders and will likely continue to breach them anyway. In cross-examination, he admitted his disinclination to enforce orders against the mother again. In either case, nothing would be usefully achieved. Making orders for the eldest child to spend time with the father would likely be futile.

7. The only remedy for the mother’s intransigence would be to make an order for the eldest child to live with the father, but that was not his application. He is not the child’s father and, as the Family Consultant observed, the eldest child has “already lost one parent”, implying he should not lose the other.

1. In the circumstances, there is no feasible option but to make no order regulating the future interaction between the eldest child and father. The father eventually conceded in cross-examination he saw some merit in that outcome and the Family Consultant said that would be the best for the eldest child.

2. For the sake of clarity, it should be understood the father is aggrieved by that outcome, though by the end of the trial he seemed resigned to the reality. He still loves the eldest child and wishes they could recover the meaningful relationship they once had. The father’s generosity of spirit is evident from the way he still welcomes the mother’s adult son within his family.[53] It is a pity the mother does not value the father’s contribution to her older sons. There is no doubt the eldest child would derive emotional advantage from recovery of his relationship with the father, but the circumstances of his residential situation with the mother are insoluble by Court order at this point.

   [53] Family Report, para 100; Father’s affidavit, para 213

3. Given, for the foreseeable future, the eldest child will remain in the mother’s residential care and his interaction with the father will not be regulated, his name should be removed from the Airport Watch List. The interim order that authorised addition of his name to the Watch list is discharged.

The two youngest children

1. As parents of the two youngest children, the presumption of equal shared parental responsibility for them applies to the parties (s 61DA(1)). No evidence adduced at trial rendered the presumption inapplicable (s 61DA(2)), but it is rebutted because the evidence demonstrated the children’s best interests would not be served by such an order (s 61DA(4)). Regrettably, the parties are too conflicted to be able to share parental responsibility in the manner demanded by law (s 65DAC).

2. The Family Consultant observed there was a “cultural divide [between the parties] that is causing a great deal of conflict [between them]”.[54] The mother barely communicates with the father[55] and, when she does, it is characterised by bitter enmity.[56] The Family Consultant’s speculation that the allocation of exclusive parental responsibility to the residential parent was probably the only practical alternative was undoubtedly correct.[57] Her ultimate recommendation when the Family Report was compiled, for the parties to share parental responsibility, was designed as a salve to avoid escalation of the conflict and to minimise the risk of the mother taking unconscionable advantage of holding exclusive parental responsibility,[58] but such an order would inevitably fail.

   [54] Family Report, para 28

   [55] Family Report, paras 39, 44

   [56] Exhibit F1

   [57] Family Report, paras 44, 129

   [58] Family Report, paras 129, 131

3. The mother agrees she cannot share parental responsibility for the children with the father.[59] In the youngest child’s pre-school enrolment form, she wrote:[60]

   My ex-husband and I have different views…We almost always do not agree on many things.

   [59] Family Report, para 58

   [60] Exhibit F6

4. The father also believes it is impossible for the parties to share parental responsibility.

5. The only rational conclusion open is that the party with whom the two youngest children live should be vested with exclusive parental responsibility for them. In the face of that conclusion, s 65DAA of the Act is not engaged.

6. The two youngest children should live with the father. Their continued residence with the mother risks destruction, or at least impairment, of their valuable relationships with him. The mother dislikes the father intensely, does not value his role in the children’s lives, and seems intent on fomenting conflict with him, which the Family Consultant said in cross-examination she thought the father tried to avoid. While he artfully minimises the opportunity for the mother to manufacture conflict, he cannot shield the children from it indefinitely. They are already aware of the parental conflict and the mother’s dislike of the father. The eldest child tells them he hates the father and they must wonder why he does not visit the father with them. The pressure will likely build, as it did with the eldest child, to align with the mother in the conflict she perpetuates with the father and their eventual rejection of the father is the most likely way they will find to alleviate the pressure she exerts.

7. The father is capable of providing satisfactory residential care for the children. In reality, the mother knows that to be true. She told him in 2012 and 2014 of her formative plans to return to live in North America with the eldest child, leaving the two youngest children in his care. In November 2016, she passed all three children to the father, expecting them to live permanently with him, though she changed her mind soon after. Her suggestion to the Family Consultant he cannot care for them adequately or keep them safe was nonsense.[61]

   [61] Family Report, para 59

8. Of course, there are countervailing considerations which suggest the two youngest children should remain living with the mother, but they do not weigh as heavily as the factors which dictate the change of residence.

9. The children have always lived primarily with the mother, so the reversal of residence will be a significant change for them. The Family Consultant said in cross-examination it would be a “huge adjustment”, but she considered they would cope with it. Her conclusion withstands the test of logic, since the children already spend six nights of each fortnight in the father’s care, so moving to live primarily with him does not change the balance too profoundly.

10. The children’s residence with the father will also mean they no longer share a common residence with their half-sibling, as the eldest child will continue to live with the mother. Their separation is less significant to the two youngest children, given their reports to the Family Consultant that they are upset by the eldest child’s unwarranted criticisms of the father and do not miss him when they spend time with the father without him.[62] The eldest child will probably miss living with his younger half-siblings more acutely because he will then live alone with the mother. However, the benefit gleaned by the two younger children carries more weight than the detriment he alone will suffer. He is about to broach puberty, so he would soon start to spend less time with the younger children, even if they continued to share a common household. The children will still see each other reasonably regularly.

    [62] Family Report, paras 81-82

11. The Family Consultant originally recommended that the children remain living with the mother and continue spending substantial time with the father,[63] but in cross-examination she explained how she only made that recommendation in the context of the father merely opposing the mother’s attempt to restrict the time spent with him by the children and him not applying for the children to live with him.[64] She considered the father was trying to formulate a proposal that would avoid further parental conflict, rather than risk an escalation of the conflict by making a proposal he knew would inflame the mother. She sparely described the then existing parenting regime as “feasible” in the Family Report,[65] but when appraised in cross-examination of the father’s revised application to have the two youngest children live with him, she also revised her recommendation. She considered the children’s best interests would be served by them living predominantly with the father. The preponderance of the evidence pointed to that conclusion.

    [63] Family Report, para 133

    [64] Family Report, paras 22, 45, 46

    [65] Family Report, para 130

12. That leaves for consideration the amount of time the two youngest children should spend with the mother. Rather than simply reversing the current model, so the children would spend six nights each fortnight during school terms with the mother, the father proposed the time be much more restrictive. He proposed only two nights each alternate weekend during school terms. The argument he persuasively advanced was that an overall reduction from eight nights per fortnight (as the current residential regime provides) to six nights per fortnight (which would result from simple reversal of the current regime) would not allow for sufficient diminution of the mother’s influence over the children. The change needed to be more significant, though his case for reduction of the time to only two nights per fortnight was much less compelling.

13. Obviously, determination of where the line should be drawn on the continuum between two and six nights per fortnight is an intuitive decision informed by counteracting features of the evidence: the need to diminish the children’s exposure to the mother’s antipathy towards the father, but not by marginalising her involvement in their lives by so much that they risk lasting emotional disruption.

14. The Family Consultant said in cross-examination the mother should be much less involved in the children’s lives and was prepared to endorse the father’s proposal for their alternate weekend visits comprising only two nights, but the evidence did not objectively support such a pronounced change, particularly given her earlier evidence that the change of residence of itself would be a “huge adjustment”.

15. The Independent Children’s Lawyer proposed the two youngest children should visit the mother each alternate weekend for three nights, with the mother to collect them from school and pre-school on Friday afternoons and return them to school and pre-school on Monday mornings. The Family Consultant agreed that exchanges of the children at their school and pre-school could work better than exchanges at the parties’ homes, since the chance for their conflict would certainly be abated by that arrangement. In final submissions, the father said he did not wish to be heard against orders to that effect.

16. The father and Independent Children’s Lawyer both submitted for an immediate rather than gradual transition of the children’s residence from the mother to the father. The orders so provide.

17. An order is made for telephone communication between the two youngest children and the parties, despite the Family Consultant’s recommendation against it.[66] The order is potentially productive of further conflict between the parties, as the Family Consultant feared, but regular weekly communication will help the children adjust to the reversal of their residence. The order is sufficiently prescriptive that the father should be able to avoid any direct communication with the mother.

    [66] Family Report, para 135

18. The father and Independent Children’s Lawyer both sought an injunction restraining the parties from removing the two youngest children from Australia without the parties’ written consent or a Court order.[67] There is no need for such an injunction. The Act already makes such provision, in default of which criminal sanctions apply (s 65Y). The father has sole parental responsibility for the two youngest children so he will now decide.

    [67] Amended Application filed 18/4/17, Order 17; Exhibit ICL1, Order 15

19. The father and Independent Children’s Lawyer both sought an order about “first option” care for the two youngest children.[68] No such order is made. There is no need for it, but in any event, it was not the subject of any evidence or submission.

    [68] Amended Application filed 18/4/17, Order 7; Exhibit ICL1, Order 7

20. The remainder of the orders made either reflect the proposals of the father and Independent Children’s Lawyer or are self-explanatory and could not be the subject of reasonable objection.

21. The Family Consultant said in cross-examination the orders could usefully be explained by her to the children, perhaps in the company of the Independent Children’s Lawyer. An order to that effect is made, not merely a notation as the Independent Children’s Lawyer proposed.[69]

    [69] Exhibit ICL1, Notation B

22. The father abandoned his costs application against the mother.

23. The Independent Children’s Lawyer applied for costs orders against both parties but, when pressed, fairly conceded such orders were unjustified in the circumstances.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 4 September 2017.

Associate: 

Date:  4 September 2017