KONSTANTINOV & AINSLEY

[2012] FamCA 951

FAMILY COURT OF AUSTRALIA

KONSTANTINOV & AINSLEY [2012] FamCA 951

FAMILY LAW – CHILDREN – where the children live with the father – where there is no provision for the children to spend time with the mother – where the father has sole parental responsibility - where the Court orders an injunction restraining the mother from approaching the children at school

FAMILY LAW – CHILDREN – Best interests of the children - where the children were exposed to a high risk of abuse, family violence and neglect in the mother’s care – where the children have a meaningful relationship with the father and feel safest in the father’s care - where the eldest child’s wish to live with the mother was given little weight – where the father demonstrated insight into the child’s needs and was willing and able to encourage ongoing relationships between the children and the mother - where the mother had voluntarily withdrawn from the children’s lives - where the mother had threatened to murder the children and kill herself  

FAMILY LAW – PRACTICE AND PROCEDURE – undefended proceedings – where the mother voluntarily withdrew from proceedings and the hearing proceeded on an undefended basis - where the mother had been granted procedural fairness

Family Law Act 1975 (Cth) ss 4, 60B, 61B, 60CA, 60CC, 61DA, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE and 68B

Allesch v Maunz (2000) 203 CLR 172
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Mr Konstantinov

RESPONDENT: Ms Ainsley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1693 of 2011

DATE DELIVERED: 19 November 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 14 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Mark Graham Solicitor

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

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

Orders

1. All former parenting orders relating to the children B, born … August 2000, C, born … January 2002, and D, born … April 2005, (“the children”) are discharged.

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

3. The children shall live with the father.

4. Unless otherwise agreed in writing, pursuant to s 68B of the Family Law Act, the mother is restrained from entering upon or approaching any school attended by any of the children.

5. Leave is granted to the father to provide a sealed copy of these orders to the principal of any school attended by the children.

6. 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.

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

8. Any and all outstanding applications are dismissed.

Notations

(A)There was no appearance by or on behalf of the mother at the hearing of these proceedings.

(B)The orders make no specific provision for the children to spend time or communicate with the mother, which is not intended to imply that such interaction should not occur. Whether the children spend time or communicate with the mother, and the circumstances under which that may occur, will be determined by the father as an incident of his sole parental responsibility for the children.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1693 of 2011

Mr Konstantinov

Applicant

And

Ms Ainsley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that should be made in respect of the three children born during the relationship between the applicant father and respondent mother.

2. The family history has been turbulent. Following separation the children lived with the mother, but they now live with the father.

3. The mother’s personal problems have seemingly deprived her of the capacity to properly engage either in the lives of the children or in the conduct of this litigation.

4. It was ultimately irresistible for the Court to make orders for the children to live with the father and for him to have sole parental responsibility for them, but to make no orders stipulating the nature of the interaction to occur between the children and the mother.

Background

1. The parties began their cohabitation in about late 1999 and finally separated in August 2008.[1]

   [1] Father’s first affidavit, para 4

2. Three children were born during their cohabitation; in August 2000, January 2002, and April 2005.[2]

   [2] Father’s first affidavit, para 5

3. There is some uncertainty about whether the father is the biological father of the eldest child, but the child is treated by the parties as a child of their relationship and he has had no interaction with the man believed to be his biological father, whose whereabouts are unknown.[3] Consequently, the potential biological father was never joined to the proceedings as a party.

   [3] Family Report, para 5

4. The children remained living with the mother after the parties’ separation, but spent time with the father as negotiated between the parties over ensuing years, which negotiations were not always cordial and intermittently interrupted the children’s relationships with the father.[4]

   [4] Father’s first affidavit, para 6

5. The mother severed the children’s interaction with the father in December 2010.[5] That followed the mother’s report to police that the father had assaulted the eldest child.[6] The father denied the allegation, which police concluded was maliciously made by the mother and took no further action.[7] The father was reluctant to pursue parenting orders to resume his interaction with the children for fear of further false allegations being made against him by the mother.[8]

   [5] Father’s first affidavit, paras 6(c), 34

   [6] Father’s first affidavit, para 6(c)

   [7] Family Report, para 30

   [8] Family Report, para 30

6. In February 2011 the father was contacted by staff of the NSW Department of Family and Community Services (“the Department”) and told that the Department was investigating the safety of the children in the mother’s care. The Department concluded by April 2011, and accordingly informed the father, that the children were at risk of harm living with the mother.[9] The Department records categorise the risk of harm to the children in the mother’s household as “extremely high”.[10]

   [9] Father’s first affidavit, paras 18-22

   [10] Family Report, para 10

7. The information provided to the father by the Department was his primary motivation for institution of these proceedings,[11] which were commenced in July 2011.

   [11] Family Report, para 10

8. The first set of interim parenting orders were made on 15 July 2011, providing for the children to live with the mother and spend alternate weekends and time during school holidays with the father.[12] Those orders were adjusted slightly on 21 September 2011.

   [12] Family Report, para 11

9. The parenting regime was reversed by further interim orders made on 10 October 2011, which provided for the children to live with the father and spend time with the mother on alternate weekends and for periods during school holidays. An additional injunction was made precluding the mother from allowing any contact between the children and her partner,[13] who had allegedly been convicted of child sex offences in the past.[14]

   [13] Family Report, para 12

   [14] Father’s first affidavit, paras 27-33; Notation 14 made on 21 September 2011

10. Over following months the mother did not consistently avail herself of those orders and the children saw little of her.[15]

    [15] Family Report, para 13

11. In December 2011 the mother contacted the father requesting money, which the father declined, prompting the mother to say:[16]

    I’m going to kill myself. I have nothing, no kids and no money. If I’m going to die then I will make sure the same thing happens to you. I’ll send someone around to do it. Then the kids can live in foster care and they won’t have to live with you. Don’t send the kids around any more, they’re with you permanently now. If you send them over to my house there will be a murder suicide and no one will ever see the kids again.

    [16] Father’s second affidavit, para 8

12. The father was understandably alarmed by the mother’s comments and he immediately filed an application to suspend the interim orders allowing the children to spend time with the mother. The application was determined by the Court on 5 April 2012 when orders were consensually made for the children to spend only supervised time with the mother, but left undisturbed the former orders providing for the children’s telephone communication with the mother.[17]

    [17] Family Report, para 15

13. To implement the revised orders, the father registered at the contact centre, but the mother did not.[18] As a consequence, but for a visit by the mother to the children’s school on one occasion some time between February and May 2012, the children have not seen the mother since late 2011.[19]

    [18] Family Report, para 17

    [19] Family Report, paras 17-19; Father’s third affidavit, paras 5, 13

14. The telephone communication between the children and the mother was apparently infrequent for some time,[20] but is now occurring approximately twice per week,[21] in accordance with prevailing orders.[22]

    [20] Family Report, para 19

    [21] Father’s third affidavit, para 6

    [22] Order 6 made on 10 October 2011

Proposal and primary evidence of the father

1. The father abandoned the orders set out within his Initiating Application filed on 7 July 2011, and instead tendered a minute of the orders he proposed.[23]

   [23] Exhibit F2

2. The father’s proposal was that he should have sole parental responsibility for the children and that they live with him. He further proposed that the children “spend time with the mother as agreed between the parties in writing”.

3. In support of his proposal the father relied upon his three affidavits filed on 7 July 2011, 22 December 2011, and 12 October 2012. The father was not required for cross-examination by the Independent Children’s Lawyer.

4. The father also relied upon the evidence of the Family Consultant contained within her Family Report dated 2 July 2012. The Family Consultant was not required for cross-examination by either the father or the Independent Children’s Lawyer. Neither the father nor Independent Children’s Lawyer relied upon earlier memoranda of the Family Consultants dated 26 July 2011 and 19 September 2011.

Absence of the mother

1. The mother voluntarily withdrew from the proceedings after some brief involvement.

2. She initially failed to attend her appointments with the Family Consultants in July 2011[24] and September 2011,[25] and failed to attend Court on 21 September 2011, but then filed her Response on 5 October 2011 and appeared at the Court events on 10 October 2011 and 5 April 2012.

   [24] Memorandum dated 26 July 2011

   [25] Memorandum dated 19 September 2011

3. However, her resolve to participate in the proceedings did not endure. She failed to avail herself of the interim parenting orders made on 5 April 2012,[26] she failed to attend her appointment with the Family Consultant in June 2012,[27] and she failed to attend Court on 20 July 2012.[28] The mother is now believed to be living in Queensland[29] or E Town, NSW,[30] although the father’s solicitor informed the Court at trial that she could also now be living in F Town, NSW.

   [26] Notation B made on 20 July 2012; Family Report, paras 17-19

   [27] Family Report, page 1, para 38

   [28] Notations A and C made on 20 July 2012

   [29] Family Report, paras 18-19

   [30] Father’s third affidavit, para 6

4. When the proceedings were fixed for trial, an order was made for the father to serve upon the mother at her last known address a sealed copy of the Court’s orders,[31] so that she was notified of the appointed trial date and the prospect of the hearing being conducted in her absence.[32] The father complied with that order,[33] so all that could be done to inform the mother of the hearing and determination of these proceedings was done.

   [31] Order 6 made on 20 July 2012

   [32] Order 1 and Notation C made on 20 July 2012

   [33] Father’s third affidavit, para 3

5. It is a fundamental principle of natural justice in litigious disputes that parties should be afforded a reasonable opportunity to appear and present their case. Once afforded the opportunity it is a party’s prerogative to make use of it. If a party eschews the given opportunity in the knowledge that the trial may continue in that party’s absence, as was the case with the mother here, there is no miscarriage of justice by continuation of the trial in that party’s absence. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer supported the father’s proposal and did not adduce any additional evidence.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

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

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

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

5. However, the presumption of equal shared parental responsibility does not apply 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 that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

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

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

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

Best interests of the children

Primary considerations (s 60CC(2))

1. The children have meaningful relationships with the father. Of that there is no doubt. The children uniformly feel safe and secure living with the father.[34] Given that the father is the only remaining residential option for the children, those relationships must be maintained so that the children continue to derive the full measure of benefit from them.

   [34] Family Report, para 84

2. Similarly, there is really no doubt that the children have meaningful relationships with the mother, but those relationships are likely to be diminishing in importance to the children the longer the mother chooses to remain absent from their lives.

3. The eldest child pines for the mother,[35] and his disillusionment and frustration about her absence has caused him to feel melancholy and to misbehave.[36] The middle child is apprehensive and worries about the mother.[37] The youngest child is apparently happy, content and not unduly worried about the mother.[38]

   [35] Family Report, paras 51-55

   [36] Family Report, paras 46, 58, 83

   [37] Family Report, para 62

   [38] Family Report, para 70

4. While the children would each undoubtedly prefer to spend more time in the mother’s company and rejuvenate their relationships with her, the evidence suggests that the mother presents certain risks of harm to them, about which the Court must be on guard.

5. The Department concluded in early 2011 that the children were at risk of harm in the mother’s care for a variety of reasons,[39] not all of which were associated with exposure or subjection of the children to abuse, family violence or neglect. It is nonetheless expedient and convenient to consider all of those risk factors collectively at this point.

   [39] Family Report, para 7

6. The mother’s poor mental health was a predominant reason for the exposure of the children to the risk of harm, which remains a concern to both the father[40] and the Family Consultant.[41] The mother has experienced suicidal ideation, expressed suicidal and homicidal ideation to the father, and demonstrated reluctance to “engage with services or undertake intervention to address her psychological and parenting issues”. Records from various independent agencies, including police and the children’s schools, disclose the mother to have behaved erratically, aggressively and threateningly throughout 2011,[42] which is to say nothing of more historical accounts of her adverse behaviour.[43]

   [40] Family Report, para 32

   [41] Family Report, para 39

   [42] Family Report, paras 39, 42

   [43] Family Report, paras 8, 39, 40, 41, 43

7. The suicidal and homicidal threats made by the mother in December 2011 are extremely concerning to the Court, as they are to the Family Consultant.[44]

   [44] Family Report, para 81

8. The evidence motivates the Court to make orders which militate against the risk of harm posed to the children by the mother through their neglect, abuse, exposure to family violence, or otherwise.

9. It should also be recorded that allegations have previously been made by the mother about the father’s abusive behaviour towards her.[45] While the father admitted acting “inappropriately” towards the mother at a time proximate to separation, he adamantly denied to the Family Consultant that he ever physically, sexually, or psychologically abused the mother.[46]

   [45] Family Report, para 27

   [46] Family Report, paras 28, 82

10. The mother declined to adduce evidence to prove the abuse she previously alleged, and in light of suspicions about her past false allegations of the father’s abuse of the eldest child in December 2010, her evidence needs to be scrutinised with some care before its acceptance. The father was not confronted or contradicted about his denials of abuse and there is no obvious reason to disbelieve him. Moreover, the Family Consultant opined that there was no indication of any pattern of coercive or violent behaviour by the father towards the mother, his current partner, or any other person.[47] The evidence does not therefore support any finding that the father poses any risk of harm to the children through abuse, family violence, or neglect.

    [47] Family Report, para 82

Additional considerations (ss 60CC(3), (4), (6))

1. The eldest child expressed a desire to the Family Consultant to live with the mother, even though he feels quite secure living with the father.[48] The eldest child is now 12 years of age and likely has the maturity to express views that genuinely match his desire, but the views he expressed to the Family Consultant conveyed the impression he idealised the mother in her absence and did not objectively signify any realistic acknowledgement that he would be better served living permanently with her.

   [48] Family Report, paras 53-54

2. The middle child expressed a clear preference to remain resident with the father.[49] Although he wanted to spend time with the mother, his level of apprehension about her caused him to want that interaction to occur near to where he now lives with the father rather than in Queensland.[50] His expressed view is consistent with his more recent experience of security and stability in the father’s care. The middle child is nearly 11 years of age and his view should carry some limited weight.

   [49] Family Report, para 67

   [50] Family Report, para 68

3. The youngest child made favourable comments to the Family Consultant about both parties, but inferentially the father was most important to her and it was her desire to continue living with him.[51] She is still only seven years of age and too young for her views to carry any weight.

   [51] Family Report, paras 72-75

4. The mother’s decision to withdraw from the children’s lives has caused them substantial grief. Unfortunately, the children’s sense of frustration is only exacerbated by the mother simultaneously maintaining telephone contact with them but refusing to allow them to spend time with her. The mother apparently has no insight into the anguish she thereby causes the children.

5. Nor does the mother have any insight into how the children are adversely affected by the nature of the conversations she conducts by telephone with them. For example, the mother tells the middle child she cannot telephone them frequently and that she must live in a hotel because she “doesn’t have much money”, but she still wants the children to live with her.[52] The middle child poignantly told the Family Consultant “it’s hard when she says stuff like this”,[53] which seems a perfectly understandable sentiment to all but the mother.

   [52] Family Report, paras 62, 66

   [53] Family Report, para 66

6. The father demonstrated his insight into the plight of the children through being deprived of dependable relationships with the mother and regular interaction with her. He acknowledged to the Family Consultant that the children feel close to the mother and he expressed concern about the effects upon the children of the mother’s inconsistency with them.[54] The father carefully contemplated the evidence of the Family Consultant, and particularly her recommendation for the submission of the eldest child to therapy,[55] and adopted that proposal by enlisting the children to consult with a counsellor at G Centre.[56] The father’s solicitor informed the Court that it is expected the children will have their initial appointments at G Centre within the next few weeks.

   [54] Family Report, paras 34, 36

   [55] Family Report, paras 83, 90

   [56] Father’s third affidavit, para 11(i)

7. I accept the Family Consultant’s opinion that:[57]

   …the mother appears to have been unable to meet the psychological needs of the children by upholding consistent and predictable parenting arrangements for them, including communicating with them in a child focused way.

   [57] Family Report, para 80

8. I also accept the Family Consultant’s opinion that the mother’s precarious mental health has “impacted substantially” on her parenting capacity and her capacity to “identify and prioritise the children’s needs above her own”.[58]

   [58] Family Report, para 79

9. It must surely be correct, as the Family Consultant says,[59] that any time spent by the children with the mother should be supervised in order for their best interests to be served – at least until there is better evidence available about the state of the mother’s mental health.

   [59] Family Report, para 81

10. The father is willing and able to promote the children’s relationships with the mother, provided he can be assured of their safety in her care.[60]

    [60] Family Report, para 84

Conclusion and orders

1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe that the mother engaged in family violence (s 61DA(2)(b)).

2. That finding necessarily arises from the evidence of the mother’s statements to the father in December 2011 threatening his murder, the children’s murder, and her suicide. The father took the threats seriously and feared for the safety and well-being of both himself and the children. It was perfectly reasonable for him to have done so, in which case the threats alone constitute “family violence” even in the absence of physical force (s 4). 

3. Even if the presumption of equal shared parental responsibility applied, it would be rebutted by the evidence (s 61DA(4)), which discloses that the children’s best interests are served by the father having sole parental responsibility for them. That is because the mother has voluntarily withdrawn from the lives of the children and terminated all reliable lines of communication between herself and the father, rendering it unnecessarily difficult for the father to establish contact with her to discuss and resolve issues of significance to the children.

4. There is no option but for the children to live with the father. No other person seeks residence of the children. That was the Family Consultant’s recommendation in any event.[61]

   [61] Family Report, para 87

5. The Family Consultant recommended that the orders formerly made in April 2012 continue to regulate the time spent by the children with the mother, indefinitely imposing supervision upon their interaction,[62] but I decline to make that order on a final basis.

   [62] Family Report, paras 81, 88

6. The evidence established that the mother refused or declined to register at the contact centre and has decided not to allow the children to spend any time with her for a period now in excess of 12 months. It would be pointless making final orders, with which the father and children would be obliged to comply on a frequent and repetitive basis by attending at the contact centre in the hope of the mother’s attendance, when there is no likelihood at all that she ever will.

7. I also decline to make the order proposed by the father, to the effect that the children spend time with the mother on terms agreed between him and the mother. An order phrased in those terms means nothing more than that the father makes the ultimate decision, because no interaction between the children and mother could occur without his concurrence. Pragmatically, that is the only viable outcome, but the orders and notations will be framed in a different way.

8. No orders should be made making any provision for the children to spend time with the mother. Though, neither should any orders be made precluding such interaction. The orders will be silent on the issue. Whether the children spend time with the mother, and if they do, the precautionary conditions under which it occurs should be determined by the father as an incident of his sole parental responsibility for the children.

9. In order to avoid the prospect of the mother subverting the orders by approaching the children at their schools, an injunction is made restraining her from attending the schools without the father’s consent and the father is granted leave to provide a copy of these orders to the principals of the children’s schools.

10. Despite his earlier interim agreement for the children to have regular telephone communication with the mother,[63] the father did not propose any final order or injunction about such communication. I do not regard that to imply his current opposition to telephone communication between the children and the mother. Rather, I impute his desire is to exercise discretion about the frequency and duration of its occurrence, which position is consistent with his proposal about any time spent by the children with the mother.

    [63] Order 6 made on 10 October 2011

11. No orders should be made dictating telephone communication between the children and the mother. In exercise of his sole parental responsibility, the father can monitor whether the children are disturbed by the telephone conversations the mother initiates with them and make decisions about the frequency and duration of the calls, whether the calls occur on certain conditions, or whether they should be suspended for a period.

12. The Family Consultant recommended the submission of the eldest child to “therapeutic intervention”. The father has already attended to the enrolment of all children with a counsellor. The circumstances of the children’s receipt of therapy are best left to the discretion of the father. He has shown his capacity to act in their best interests.

13. I am satisfied on the available untested evidence that the orders set out at the commencement of these reasons reflect the best interests of the children.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 November 2012.

Associate: 

Date:  19 November 2012