Kontou & Naggia
[2024] FedCFamC1F 698
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kontou & Naggia [2024] FedCFamC1F 698
File number(s): PAC 3809 of 2022 Judgment of: ANDERSON J Date of judgment: 18 October 2024 Catchwords: FAMILY LAW – PARENTING – Family violence – Where the children have not spent time with the father for five years – Whether the father should spend supervised time with the children – Whether the mother’s parenting capacity would be adversely impacted if the Court makes an order for the children to spend time with the father – Permanent separation from a parent – No matters of principle Legislation: Australian Passports Act 2005 (Cth) s 11
Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CA, 60GC, 61B, 61C, 61D, 61DAA, 61DAB, 62B, 64B, 65AA, 65D, 65DA, 65Y, 68B, 100B, 114AB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Births, Deaths and Marriages Registration Act 1995 No 62 (NSW) s 28
Crimes Act 1900 (NSW) ss 61AA, 112
Cases cited: Attwood & Attwood [2022] FedCFamC1F 6
Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Beach and Stemmler (1979) FLC 90-692
Bennett and Bennett (2001) FLC 93-088; [2001] FamCA 462
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Blinko & Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Cao and Cao (2018) FLC 93-880; [2018] FamCAFC 252
Chapman & Palmer (1978) FLC 90-510; [1978] FamCA 86
Cotton & Cotton (1983) FLC 91-330; [1983] FamCA 18
Fitzpatrick and Fitzpatrick (2005) FLC 93-227; [2005] FamCA 394
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Flanagan and Hancock (2001) FLC 93-074; [2000] FamCA 150
G & C [2006] FamCA 994
Gorman & Huffman and Anor [2016] FamCAFC 174
H v R [2006] FamCA 878
Heron & Heron [2024] FedCFamC1F 465
Hickson & Matthew [2022] FedCFamC1A 161
N and S and the Separate Representative (1996) FLC 92-655; [1996] FLC 92-655
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Knight v R (1988) 35 A Crim R 314
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96
M v M (1988) 166 CLR 69; [1988] HCA 68
Moose v Moose (2008) FLC 93-375; [2008] FamCAFC 108
Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4
Smith v Aircraft Maintenance Services Australia (AMSA) Pty Ltd [2018] FCA 264
Summerby & Cadogen [2011] FamCAFC 205
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 220 Date of hearing: 26–29 August 2024 & 9 September 2024 Place: Parramatta Counsel for the Applicant: Mr Ang Solicitor for the Applicant: The Peoples Solicitors Solicitor for the Respondent: Remington & Co Solicitors Counsel for the Independent Children's Lawyer: Ms Yu Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
PAC 3809 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KONTOU
Applicant
AND: MS NAGGIA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother shall have sole parental responsibility for X born 2016 and Y born 2017 (“the children”), and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children.
3.The children live with the mother.
4.The children spend no time with the respondent father.
Restraints
5.The parties are restrained, and injunctions are granted restraining each of them from:
(a)Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so; and
(b)Discussing the allegations the subject of these proceedings in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.
6.The father is restrained, and an injunction is hereby granted restraining him from:
(a)Attending at or within 100 metres of any school attended by the children;
(b)Attending at or within 100 metres of the mother’s residence; and
(c)Attending at or within 100 metres of the mother’s place of work.
Discharge of the Independent Children’s Lawyer
7.The appointment of the Independent Children’s Lawyer be discharged.
Other
8.That pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
9.That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
10.All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kontou & Naggia has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J:
INTRODUCTION
These proceedings, brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”), concern two children who are now aged eight years and six years respectively.
The applicant is the father. He has not spent any time with the children since March 2021.[1] The reasons why he did not do so are contested. The respondent is the mother. The children live with her.
[1] Mother’s Affidavit filed 12 August 2024, paragraph 7.
These proceedings involve a dispute about whether the children ought to spend any time with the father. The father’s application has vacillated since 2 August 2024. On that day, the father filed an (Amended) Initiating Application seeking orders to the effect that after spending time with the children on a supervised basis for a period of six months, the children spend unsupervised time with him during school term on each alternate weekend from 9.00 am on Saturday to 5.00 pm on Sunday. By his Outline of Case Document filed 23 August 2024, the father indicated to the Court that he was “open to considering ongoing supervised contact” and/or what the father described as “identity contact”. On the second day of the trial, the father, through his counsel, orally amended his application such that on a final basis, he sought an order that he spend two hours with the children per month supervised by a professional service known as the “[B Contact Service]”.[2] On the final day of the evidence, the father provided the Court a proposed order, which formalised the oral application described above.
[2] Exhibit F8.
The mother has consistently maintained a position that the children live with her and “spend no time with and/or communicate with the Applicant Father unless they express a wish to do so”.[3] The mother’s position did not change during the proceedings.[4]
[3] (Further Amended) Response to Initiating Application filed 19 August 2024.
[4] Response to Initiating Application filed 11 September 2022; Further Amended Response to Initiating Application filed 19 August 2024.
It is the mother’s case that the father presents an unacceptable risk of harm to the children on several bases, namely, that:
(a)The father is a perpetrator of family violence;
(b)The father physically assaulted the children of the parties’ relationship;
(c)The father sexually abused the mother’s daughter (not being a child of the parties’ relationship);
(d)The father sexually abused the youngest child of the parties’ relationship; and
(e)The father is addicted to illicit substances.
The mother also asserts that the father does not have the capacity nor the skills to parent children who as in this case have complex needs. She says that orders ought to be made, which “promote…the children’s mental and physical health”, “give…the children a stable home life” and “enable them to have a full relationship with their mother”.[5] Given the mother’s allegations against the father, it was a puzzling feature of the mother’s case that despite several intimations from the Court that it would not make any orders for the children’s time with the father to be subject to their wishes, the mother continued to seek such an order. Whatever the reason for that intransigence, the mother’s application for reasons to be discussed below is tantamount to an outcome where the children will have no relationship with the father.[6]
[5] Mother’s Outline of Case Document filed 23 August 2024.
[6] Mother’s Outline of Case Document filed 23 August 2024.
The parties do agree that parental responsibility ought to be allocated to the mother and that the mother ought to have sole decision-making authority for decisions concerning major long‑term issues. For reasons discussed below, and whatever the agreement between the parties, the circumstances call for an order that the mother exercise sole parental responsibility.
BACKGROUND
These proceedings, like many proceedings in this Court, were characterised by allegations of parental incompetence, mistrust of the other parent, and physical and sexual abuse of the children.
The father is aged 47 years. The father has two children from a prior relationship, daughters aged 21 years and 17 years respectively. The father’s eldest daughter filed an affidavit in support of her father’s application and was cross-examined by counsel for the mother and the Independent Children’s Lawyer.
The father has been unemployed since December 2022.[7] He previously worked in transport but says that he is currently unable to work because he has trouble sleeping.[8] On interview by the Family Report writer, the father also attributed a cause of his unemployment to the mother, suggesting that affidavit material filed by the mother in this Court had diminished his “mental and emotional wellbeing”.[9] For reasons discussed below, the Court also finds that the father’s lengthy period of unemployment can in part be attributed to his use of drugs during the period mid-2023 to mid-2024, and the father’s incarceration on multiple occasions during that same period.[10]
[7] Family Report dated 15 March 2023, paragraph 30.
[8] Father’s affidavit filed 2 August 2024, paragraph 10.
[9] Family Report dated 15 March 2023, paragraph 30.
[10] Exhibit M5.
The mother is aged 47 years. She is the mother of five children aged between six years and nineteen years, including the two children the subject of these proceedings. She is unemployed. The mother says that she is so unemployed in circumstances where her life is consumed by the attention, which she says it is necessary to give to her children but particularly, to the two children the subject of this parenting dispute. Each of them has disabilities. The mother advised the Family Report writer that she previously made attempts to work 16 hours a week in a “flexible arrangement” but said that even this limited arrangement “was not sustainable”.[11]
[11] Family Report dated 15 March 2023, paragraph 56.
At age four, the elder child was diagnosed with global developmental delay (within the moderate range), behavioural difficulties and autistic features.[12] Although the medical and psychology clinic report relating to the elder child was not tendered by any party or the Independent Children’s Lawyer, it was the mother’s written evidence that the elder child was assessed as meeting the criteria for an autism spectrum disorder in 2021 at which time the child was aged five years. Specifically, the elder child was assessed as Level One (Requiring support) for social communication and Level Two (Requiring substantial support) for restricted, repetitive behaviours.[13] The mother’s evidence was not challenged by the father or the Independent Children’s Lawyer.
[12] Exhibit ICL5, p.2.
[13] Mother’s affidavit filed 12 August 2024, paragraph 36.
In 2021, the younger child was diagnosed by C Health Service as having borderline developmental delay and behavioural features as well as autistic features.[14] He was thereafter the subject of several interventions. In 2022, the younger child was assessed as meeting the diagnostic criteria for an autism spectrum disorder. It was the same diagnosis as his elder brother. In practical terms, the mother says that the children’s diagnoses manifest themselves in speech difficulties and significant behavioural concerns.[15] This assertion is supported by a medical and psychology clinic report relating to the younger child prepared in April 2022.[16]
[14] Exhibit ICL4, p.6.
[15] Mother’s affidavit filed 12 August 2024, paragraph 37.
[16] Exhibit ICL4.
Sadly, the elder child has been diagnosed with a mental health disorder.[17] The main diagnostic feature is manifested by clinically significant failure to meet requirements for nutrition through oral food intake.[18] His diet nutrition is poor, and he has heightened sensory sensitivities.[19] This makes the task of providing meals to the elder child difficult. A Paediatric Dietetic Clinic Report[20] identifies that if the child is presented with a food which he does not like, then he will simply refuse the food. He may also have a tantrum and become distressed.[21] In her oral evidence, the mother explained the significant efforts undertaken by her to ensure that the elder child eats something each day at school. It was clear from the mother’s evidence on this topic that whilst challenging for her, she is devoted to ensuring the elder child’s wellbeing.
[17] Mother’s affidavit filed 12 August 2024, paragraph 38.
[18] Exhibit ICL5, p.3.
[19] Exhibit ICL5, p.4.
[20] Exhibit ICL5.
[21] Exhibit ICL5, p.2.
The children’s disabilities referred to above are not exhaustive. The mother says that in 2023, each of the children was diagnosed with a medical condition and low muscle tone.[22] The elder child’s difficulties are such that he is at increased risk of injury and pain and finds it difficult to complete “gross motor tasks such as running and balancing”.[23] The younger child does not experience joint pain, but his physiotherapist says that he “demonstrates high levels of fatiguability”.[24]
[22] Mother’s affidavit filed 12 August 2024, paragraph 40.
[23] Exhibit ICL9.
[24] Exhibit ICL10.
The mother also says that at the time of trial, she was arranging for each of the children to undergo an assessment for an Inattentive Attention Deficit Hyperactivity Disorder.[25] The mother was not challenged in relation to this written evidence.
[25] Mother’s affidavit filed 12 August 2024, paragraph 39.
In 2013 or 2014, the parties met for the first time and began living together shortly thereafter. Within a year, the eldest daughter of the mother’s previous relationship, made a disclosure to the father’s daughters that the father had “sexually touched her”.[26] The mother of the father’s daughters confronted him. In turn, the father discussed the matter with the mother in these proceedings. On the mother’s written evidence, the father said to her “you have a problem, you need to talk to [your daughter]”, “[s]he’s saying that I sexually touched her”.[27] The mother says that she reported the alleged disclosure to a helpline and thereafter, the matter was investigated by the Joint Investigation Response Team.[28] After a short hiatus, the father resumed living with the mother and the Department for Communities and Justice (“the Department”) closed its file.
[26] Mother’s affidavit filed 12 August 2024, paragraph 14.
[27] Mother’s affidavit filed 12 August 2024, paragraph 14.
[28] Mother’s affidavit filed 12 August 2024, paragraph 15.
In early 2020, the father assaulted the mother in the presence of the children. The father was charged and was found guilty of that offence after a contested hearing.[29] The assault marked the occasion of the parties’ separation.
[29] Mother’s affidavit filed 12 August 2024, paragraph 96; Father’s affidavit filed 2 August 2024, paragraph 99.
Subsequent to the assault, the father was made the subject of an Apprehended Domestic Violence Order. That order expired in late 2022.[30] It is not contested that the order was amended in early 2020 on the mother’s own application so that the father might attend at the mother’s residence to assist with the care of the children.[31]
[30] Father’s affidavit filed 2 August 2024, paragraph 100.
[31] Father’s affidavit filed 2 August 2024, paragraph 100.
The parties do not agree about the parenting arrangements which existed between early 2020 and March 2021. The father says that from early 2020 until May 2020 he spent time with the children every weekend from Friday afternoon until Sunday afternoon.[32] He then says that from May 2020 until about February 2021, the time was reduced such that he spent time with the children every weekend from Friday afternoon until Saturday afternoon. The father says that the change occurred at the request of the mother on account of the children’s sporting commitments.[33] The mother’s written evidence is less clear. She says that the father would take the children for “a night” at a time.[34] The mother maintained that position under cross‑examination. In my view, the mother’s version of events is more likely given her unchallenged oral evidence to the effect that she was still breast feeding the younger child at the time.
[32] Father’s affidavit filed 2 August 2024, paragraph 36.
[33] Father’s affidavit filed 2 August 2024, paragraph 37.
[34] Mother’s affidavit filed 12 August 2024, paragraph 81.
In early 2021, the mother says that the younger child of the relationship was repeatedly saying “I got a big penis” and “daddy has a big penis” and “I’ve touched daddy’s penis”.[35] The mother says that at first instance, she considered the comments to be innocent.[36] After the younger child repeated the comments on several occasions, the mother says that she decided to “investigate” by asking the older child whether he had touched his father’s penis or witnessed the younger child touch his father’s penis.[37] The mother says that the elder child “froze” on hearing the question.[38] The Joint Investigation Response Team again became involved, but the investigation was closed with no finding made by the Department.
[35] Mother’s affidavit filed 12 August 2024, paragraph 18.
[36] Mother’s affidavit filed 12 August 2024, paragraph 18.
[37] Mother’s affidavit filed 12 August 2024, paragraph 18.
[38] Mother’s affidavit filed 12 August 2024, paragraph 18.
In February 2021, the mother says that the elder child said to her words to the effect “Daddy hurt us” and “Daddy hurt me”. The mother says that at this time, the father said to her “I hit the boys for behaving badly. They were harassing my [pets]”.[39] For his part, the father says that after “repeated verbal attempts to get the children to stop hitting the [pets]”, he “tapped them on the shoulder”.[40] Whatever the scenario, it was the mother’s oral evidence that on learning of the incident, she advised the father that he could only spend supervised time with the children.
[39] Mother’s affidavit filed 12 August 2024, paragraph 109(i).
[40] Father’s affidavit filed 2 August 2024, paragraph 89.
In April 2021, the mother says that she approached her eldest daughter and asked her about the disclosures, which she made to the father’s daughters about seven years earlier (supra).[41] The mother says that her eldest daughter disclosed that the father had “licked my vagina”.[42] Although there was an investigation by the Department and the child was interviewed in late 2021, the investigation was closed with no finding that the father had sexually assaulted the mother’s eldest daughter.
[41] Mother’s affidavit filed 12 August 2024, paragraph 19.
[42] Mother’s affidavit filed 12 August 2024, paragraph 19.
It was after the disclosure by the mother’s eldest daughter in about April 2021, that the mother decided to withhold the parties’ two children from the father. The father commenced proceedings about 15 months later in July 2022.
In mid-2023, the father was arrested for committing an offence.[43] He was held in remand for a period and then commenced engagement with the Drug Court of New South Wales.[44] Due to the father’s use of illicit substances whilst under the supervision of the Drug Court, he was incarcerated on three occasions during the period mid-2023 to mid-2024.[45]
[43] Father’s affidavit filed 2 August 2024, paragraph 116.
[44] Father’s affidavit filed 2 August 2024, paragraph 116.
[45] Exhibit M5.
COMPETING PROPOSALS
The father consents to an order that the mother have parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues. During his oral evidence, the father expressed an understanding of the implications of this decision.
During the trial, the father revised his application with respect to time with the children. He seeks an order that the children spend two hours with him each month supervised by a professional service known as the “[B Contact Service]”.[46]
[46] Exhibit F8.
The mother moved on her (Further Amended) Response to Initiating Application filed on 19 August 2024. She sought orders in the following terms:
(a)That the mother have sole parental responsibility for the children;
(b)That the children spend no time with and/or communicate with the father unless they express a wish to do so; and
(c)That the children’s surnames be altered such that they be known by the mother’s surname only. At the time of trial, the children’s surnames were hyphenated to recognise the surnames of each of the mother and the father.
The mother also sought ancillary orders in relation to travel and injunctive orders for her personal protection and the protection of the children.
At the outset of the trial, the Independent Children’s Lawyer did not promote any time between the children and the father. Further, the Independent Children’s Lawyer supported the mother’s applications for travel, to have the children’s surnames changed and otherwise, supported various applications for the personal protection of the mother and the children pursuant to s 68B of the Act. On the hearing of the evidence, the Independent Children’s Lawyer did not alter his position save that his counsel advised the Court that the Independent Children’s Lawyer no longer supported the mother’s application to change the children’s surnames.
EVIDENCE
The father relied upon:
(a)The father’s affidavits filed on 2 August 2024 and 19 August 2024;
(b)The affidavit of the paternal grandfather filed on 2 August 2024;
(c)The affidavit of the father’s adult daughter filed on 2 August 2024;
(d)Financial Statement dated 27 August 2024[47]; and
(e)Tendered documents.[48]
[47] Exhibit F7.
[48] Exhibits F1–F13 (inclusive).
On the morning of the fourth day of trial, the father’s counsel made an oral application to adduce further evidence from the paternal grandfather by way of an affidavit in his name. The mother’s counsel and the Independent Children’s Lawyer consented to the admission of that affidavit into evidence.[49]
[49] Affidavit of the paternal grandfather filed 29 August 2024.
The mother relied on her affidavit filed on 12 August 2024 and the affidavit of her adult son filed on 12 August 2024. On day three of the trial, the mother’s adult son was cross-examined by the father’s counsel and counsel for the Independent Children’s Lawyer. After asking a few questions only, the father’s counsel made an application to the Court to exclude the evidence of the mother’s adult son pursuant to the terms of s 135 of the Evidence Act 1995 (Cth) (“Evidence Act”). The evidence was primarily directed to the violence, which the mother’s son says he witnessed and suffered because of the alleged actions of the father.
On cross-examination by the father’s counsel, it became apparent that:
(a)the mother’s son prepared his affidavit whilst sitting in proximity with his mother; and
(b)the mother transcribed her son’s evidence on his dictation of the same.
On cross-examination by the father’s counsel, the mother’s adult son said that at no stage prior to the preparation of his affidavit did he read his mother’s affidavit. He also indicated to the Court that his mother did not make any correction to the terms of the document as dictated by him and that the words in the affidavit were his words. Section 135 of Evidence Act reads as follows:
The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)be unfairly prejudicial to a party; or
(b)be misleading or confusing; or
(c)cause or result in undue waste of time.
When considering any application under s 135 of the Evidence Act, the Court is required to balance the “probative value” of the evidence against the “dangers” listed in the three sub‑paragraphs set out therein. The Court notes that the dangers must “substantially” outweigh the probative value of the evidence. This is another way of saying that there is a heavy onus on the party seeking exclusion, and that exclusion will only be justified in a clear case.[50] On balance it was my view that the application by the father failed having regard to each of the sub-sections of s 135 of the Evidence Act. I declined the father’s application.
[50] Smith v Aircraft Maintenance Services Australia (AMSA) Pty Ltd [2018] FCA 264 at [38].
The mother also relied on her tendered documents.[51]
[51] Exhibits M1–M7 (inclusive).
The Court excluded all annexures to the affidavits having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The Independent Children’s Lawyer relied on:
(a)The Child Impact Report dated 20 September 2022;
(b)The Family Report dated 15 March 2023; and
(c)Some other tendered documents.[52]
[52] Exhibit ICL1–ICL13 (inclusive).
Counsel for the father opposed the admission into evidence of the Child Impact Report on the basis that it would be prejudicial to the father’s case in circumstances where the author of the document was not being called to give evidence. The father’s counsel did not express with any precision how the father might be prejudiced. In any event, the counterargument was that the children’s circumstances had not changed since 20 September 2022 nor had the children spent any time with the father since March 2021. Further, the Child Impact Report addressed the same issues and raised the same concerns as the Family Report. This being so, the Child Impact Report was admitted into evidence.[53] I advised the parties that given these are child-related proceedings, the Court would give such weight (if any) as it thinks fit to the content of the Child Impact Report. At no stage during the trial did any counsel take me to any part of the Child Impact Report.
[53] Exhibit ICL1.
PARENTING PROCEEDINGS - LEGAL PRINCIPLES
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).
Parental Responsibility
Parental responsibility for children is vested in their parents (s 61C(1)) but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Best interests of the child
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 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). The six considerations referred to in s 60CC(2) are non-hierarchical. The Court is obliged to consider:
(a)arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child;
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or will have parental responsibility to provide for the child’s needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
When considering the arrangements, which would promote the safety of the child and each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty.
Section 4AB(3) and s 4AB(4) of the Act make it clear that children are to be regarded as exposed to family violence either through direct sensory perception of violent action or such perception of consequences of violent action.
As the facts referred to above make plan, this is a case about risk.
Where ultimately the Court’s focus is on formulating orders which attend to the child’s best interests, the Court is required to make findings of fact. The standard of proof is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act which provides:
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[54]
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[54] Briginshaw v Briginshaw (1938) 60 CLR 336.
A party making an assertion of fact has an onus to prove that fact on the balance of probabilities although the task for the Court ultimately remains as of weighing and balancing the probity of evidence towards a determination of the child’s best interests.
The mother in this case invites me to make a finding that the father presents an unacceptable risk of harm to the children. When considering this question, I am mindful of the Full Court’s decision in Isles & Nelissen (2022) FLC 94-092 (“Isles”), which summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Full Court said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The Court in Isles also said of the decision in N and S and the Separate Representative (1996) FLC 92-655 as follows:
12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm ...
(citations omitted)
In Isles, the Court (at [35]) went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
The Court agreed with and adopted Austin J’s judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]:
39.Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A[1998] FamCA 25; (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page[2007] FamCA 1235; (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
I have read the parties’ material and listened to their submissions. I am not however required to address every fact or submission made.[55]
[55] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and considered by me.
CONSIDERATION AND DETERMINATION
After hearing the evidence, I formed a view that the significant issues in the case were:
(a)Whether the father perpetrated family violence towards the children and the mother. The mother alleges this occurred prior to separation and subsequent to separation;
(b)Whether the father physically assaulted the children of the relationship;
(c)Whether the father engaged in drug use and/or distribution during the relationship and subsequent to separation;
(d)Whether the father sexually abused the mother’s eldest daughter and the younger child the subject of these proceedings;
(e)Whether the father has the capacity to parent children who have complex needs;
(f)Whether the risk of harm can be ameliorated by an order for supervision;
(g)Whether the mother’s parenting capacity would be adversely impacted if the Court makes an order for time spending between the children and their father; and
(h)The potential adverse impact upon the children of a permanent separation from their father.
Family Violence and alleged physical assault of the children
The mother says that the father is a perpetrator of family violence. She also says that the father physically assaulted the children of the parties’ relationship.
The mother identifies with some particularity episodes of family violence. I set them out below together with the father’s response.
First, the mother says that in 2013 and following an argument, the mother locked the father and his daughters outside the home shared by the parties.[56] The mother says that the father was “screaming and grabbing whatever he could find and throwing it across the garden. He grabbed two bins and smashed them onto the fence”. The mother says that the father’s two daughters were “cuddling each other and crying” as they watched their father.[57] The mother also says that the father “smashed his fist into my fence, causing it to dent”.[58] In support of the mother’s allegation about this event, the mother sought to tender a photograph of damage to a fence. The photograph was undated, and the mother gave no evidence as to its provenance. This being so, I declined to mark the photograph as an exhibit.
[56] Mother’s affidavit filed 12 August 2024, paragraph 28(a).
[57] Mother’s affidavit filed 12 August 2024, paragraph 28(a).
[58] Mother’s affidavit filed 12 August 2024, paragraph 28(a).
On the mother’s case, the incident is corroborated by the evidence of her adult son who says that:
I was scared and remember standing in the middle of the lounge room listening to what was going on. I could hear lots of noises of things being thrown. He eventually went up the side of the house as I heard him punch the fence. It was loud.[59]
[59] Affidavit of the mother’s adult son, paragraph 6(j).
The mother’s adult son presented as a genuine witness who by his affidavit gave the following additional information in relation to the 2013 event, which was not otherwise contained in the mother’s trial affidavit or in her narrative as expressed to the Family Consultant:
I remember a time I was watching tv in the lounge room and [the father] was outside and he got angry. The blind was up a bit on the lounge room window and I could see [the father] destroying a bucket.[60]
[60] Affidavit of the mother’s adult son filed 12 August 2024, paragraph 6(j).
On cross-examination by the father’s counsel, the mother’s adult son also gave evidence to the effect that he considers the father to be a “dangerous person”. He said, “when he gets angry…he doesn’t think…he just goes off the heat of the moment”. In response to this evidence, the father’s counsel asked the mother’s adult son to give the Court an example of when the father became angry. The mother’s adult son said as follows:
Destroying the fence.
Mum and dad were arguing outside. [The father] destroyed the bucket. Proceeded to dent the fence.
The additional information provided by the mother’s adult son both in his written evidence and during cross-examination, which was not otherwise contained in the mother’s evidence, causes me to find that during the episode in 2013 the father did perpetrate family violence. My finding is fortified by the father’s written evidence wherein the father concedes that the parties had an argument and that he dented the fence by hitting it “with my elbow while waving my hands in the air”.[61] It defies commonsense that a fence could be dented by a person’s elbow whilst simultaneously waving one’s hands in the air. My finding is also fortified by the father’s rebuttal evidence wherein he says “I had intention to fix the fence, it was not an easy fix, I struggled to find the money because I was heavily financially supporting the children”.[62] This evidence causes me to infer that whatever damage was caused to the fence, it was significant. On balance, and having regard to these matters, I am satisfied that the father’s behaviour in 2013 caused members of his family to be fearful of him and that the mother’s children and the father’s children from prior relationships were exposed to an event of family violence.
[61] Father’s affidavit filed 19 August 2024, paragraph 18.
[62] Father’s affidavit filed 19 August 2024, paragraph 18.
The mother also says that in about 2014 or 2015, the father “grabbed a lamp, smashed it against the wall before smashing it into the bed”.[63] The mother’s adult son says that he remembers the mother and the father arguing about the lamp “as she wanted him [the father] to replace it and he refused”.[64] The father’s evidence on the topic is curious. He says that he “knocked the lamp” but goes on to say that he realises that “knocking the lamp was inappropriate behaviour”.[65] The father’s oral evidence did not provide any clarity with respect to the incident. However, it defies commonsense that if the lamp had been knocked off its table accidentally that anyone would concede such behaviour as being “inappropriate”. Again, and by a combination of the mother’s written evidence, the evidence of the mother’s adult son and the father’s own concession, I find that an act of family violence occurred in 2014 or 2015 as asserted by the mother.
[63] Mother’s affidavit filed 12 August 2024, paragraph 28(b).
[64] Affidavit of the mother’s adult son filed 12 August 2024, paragraph 6(o).
[65] Father’s affidavit filed 19 August 2024, paragraph 19.
The mother says that in 2015, and in response to the father finding her “napping”, the father threw “stuff across the house…smashing a really large hole in the wall”.[66] The mother says that the three children of her previous relationship were present at this time. She says that she “straight away put the children in the car and went to McDonalds”. The mother also says that she can “recall sitting in McDonalds, shaking uncontrollably whilst the children were playing in the play area at McDonalds”.[67] On cross-examination by the father’s counsel, the mother said that she had a photograph of the damaged wall and that she asked a friend who is a plasterer to fix the damage. The photograph was not produced, and the mother did not obtain an affidavit from her friend. The father denied the allegation in its entirety.[68] The evidence was insufficiently strong to permit any factual finding that in 2015, and as consequence of his actions, the father caused a “large hole in the wall” of the mother’s residence. Cross‑examination of the parties on this topic did not assist me to make a determination.
[66] Mother’s affidavit filed 12 August 2024, paragraph 28(c).
[67] Mother’s affidavit filed 12 August 2024, paragraph 28(c).
[68] Father’s affidavit filed 19 August 2024, paragraph 20.
In 2016, the mother says that the father threw a shoe at the mother’s adult son causing him to cry. She says that when she confronted the father with respect to this action, the father “picked up the pram whilst… [the elder child the subject of these proceedings] was in it” and then “threw it”[69]. The father denied in his written and oral evidence that he did so.[70] The oral evidence given by the parties did not assist me to make any factual finding with respect to this incident. Further, if the father did pick up a pram and throw it, then it might be expected that the elder child would suffer an injury. There was no evidence of the elder child sustaining any such injury. Accordingly, I find that the evidence is insufficiently strong to permit any factual finding that in 2016, the father threw a shoe at the mother’s adult son or that the father threw a pram whilst the elder child was in it.
[69] Mother’s affidavit filed 12 August 2024, paragraph 28(e).
[70] Father’s affidavit filed 19 August 2024, paragraph 21.
The mother deposes to a further incident, which occurred during a road trip to Queensland in early 2020. The mother says that the parties had an argument whilst travelling in the parties’ motor vehicle with the children. The mother says that during the argument, she was physically assaulted and that the father was “aggressive and started swerving the car all over the road”.[71] The mother says that after she convinced the father to pull the car over, he “tried to throw the keys out of the car into the bush area”. The father concedes that the parties had an argument but denies trying to throw the keys “into the bush area”.[72] The oral evidence of the parties did not provide me with any clarity with respect to the alleged assault on the mother. The road trip was, however, the subject of written evidence from the mother’s adult son. He says as follows:
In early 2020, we went on holiday to Queensland. On the way driving home I thought we were going to die. [The father] and mum were arguing about… [the father’s younger daughter] having to swop [sic] seat with my sisters and mum was upset with that because she did not want to wake anyone up. I do not think I slept the whole trip home because I was scared. When we pulled into a service station on the way home mum had no choice but to make the girls move because… [the father] was angry and she looked scared.[73]
[71] Mother’s affidavit filed 12 August 2024, paragraph 28(h).
[72] Father’s affidavit filed 19 August 2024, paragraph 22.
[73] Affidavit of the mother’s adult son filed 12 August 2024, paragraph 6(p).
The mother’s adult son says that he was scared of the father’s behaviour on this occasion.[74]
[74] Affidavit of the mother’s son filed 12 August 2024, paragraph 6(p).
The evidence is not sufficiently strong for me to make any factual finding with respect to the alleged assault of the mother. However, by a combination of the mother’s evidence, the evidence of the mother’s adult son and the father’s own concession that the parties had an argument during the road trip, I make a finding that the children the subject of these proceedings and the children the subject of the parties’ previous relationships were exposed to family violence perpetrated by the father. I am fortified in making that finding because when the mother is interviewed by police two months later, the mother refers to the early 2020 event.[75] It follows that whatever occurred, it must have been a significant event for the mother.
[75] Exhibit M1, p.5.
The mother made several other allegations of family violence against the father,[76] which were not the subject of any cross-examination. I was accordingly unable to make any factual finding with respect to the same.
[76] For example, Mother’s affidavit filed 12 August 2024, paragraphs 28(f)–28(g).
An allegation of importance relates to the father’s assault of the mother in early 2020. The mother’s written evidence on the topic is limited. By her affidavit filed 12 August 2024, the mother said as follows:
[In early] 2020… [the father] assaulted me in the presence of the children. I recall taking the children putting them in another room and locking ourselves in until Police arrived.[77]
… [The father] was charged […]. He was found guilty after hearing.[78]
[77] Mother’s affidavit filed 12 August 2024, paragraph 95.
[78] Mother’s affidavit filed 12 August 2024, paragraph 96.
The father admits that on the evening in question, he “pushed… [the mother] in the chest, she fell back and tripped over a toy”[79]. He was after a contested hearing found guilty of multiple charges.[80] He was sentenced to a community correction order. A transcript of the proceedings was not produced by the parties for consideration by the Court.
[79] Father’s affidavit filed 2 August 2024, paragraph 97.
[80] Exhibit M4, p.4.
Despite his conviction for the assault, the father under cross-examination initially asserted that he did not assault the mother. He then said that he pushed the mother using the palm of his hands but said he did so in self-defence. The father then said that the argument between the parties, which was occurring at the time of the assault was so “heated” that unlike other events referred to by the mother, he was able to remember the event with precision at the time of trial. Given the shifting sands of the father’s evidence, I concluded that the father either lacked reliability as a witness or sought to diminish his responsibility for his assault of the mother. Incontrovertibly, the father perpetrated family violence on that evening in early 2020. I was dismayed that the father initially asserted that he did not assault the mother given his conviction. However, as discussed below, I formed a view that the father does not seek assistance recommended to him nor does the father accept that he requires any assistance to manage his emotions.
The father invited me to make a finding that the mother also perpetrated family violence on that evening. To the extent that there was a “heated” argument between the parties in the presence of the children then I accept that family violence did occur. However, it was a consistent theme of the father’s evidence that the mother was influential in the disputes between the parties. It was curious that the father repeated his position by his written evidence and oral evidence in circumstances where the father from the inception of proceedings sought an order that the children live primarily with the mother.[81] It follows that the father must consider the mother to be a person who can regulate her emotions and care for the children in a safe and adequate manner.
[81] For example, Father’s affidavit filed 2 August 2024, paragraph 72 and 74.
The mother says that at the time of the assault in early 2020, the father threatened to kill her.[82] This assertion was made by the mother to police at the time that police issued a Provisional Apprehended Violence Order. Particularly, the mother told police that after the father caused her to fall on that evening, the parties continued to argue. Thereafter, the record of interview between police and the mother reads as follows:
… [the mother] requested the [the father] to leave numerous times however he refused. The…[mother] stated to the [the father] “I just want to move as far away as I can from you”. The [father] replied to the [mother] “If you move and take my boys away from me, I will make sure I will kill you”.[83]
[82] Mother’s affidavit filed 12 August 2024, paragraph 98.
[83] Exhibit M1, p.5.
The mother’s assertions to police appear to have been made at the time a statement was taken from her in support of the making of the Provisional Apprehended Violence Order. It is impossible to discern the precise timeline from the statement. Even if this conclusion is wrong, it clear that the information was provided by the mother in proximity to the events of early 2020. The allegation also assumed importance for the Family Report writer who opined that the risk of lethality ought to be mitigated by structed orders and “no in-person contact” between the mother and the father.[84] I have confidence in the accuracy of the narrative provided by the mother to the Family Report writer, which assisted the Family Report writer to reach her conclusion. Particularly, and when describing the evening in early 2020, the mother said as follows:
She described feeling terrified, and described she locked herself and the children in a bedroom before police attended. She recalled knowing she could not continue living in that situation because she could see… [the father’s] behaviour escalating.[85]
[84] Family Report dated 15 March 2023, paragraph 130.
[85] Family Report dated 15 March 2023, paragraph 67.
The mother expanded on her allegation by advising the Family Report writer that “[s]he has significant concerns that… [the father] will kill her, or that he may have another person kill her on his behalf”.[86] The father denies any allegation that he has threatened to kill the mother or that he will arrange for a third party to do so.[87]
[86] Family Report dated 15 March 2023, paragraph 63.
[87] Father’s affidavit filed 2 August 2024, paragraph 67 and 97.
I make a finding that the father did threaten to kill the mother on that evening in early 2020. The factors, which I bring to account when making this finding are as follows:
(a)The contemporaneity of the mother’s report about the threat to police;
(b)The narrative provided to the Family Report writer about the threat. There was no suggestion by the Family Report writer in her written or oral evidence that the mother sought to exaggerate or confect an event. Instead, it was the impression of the Family Report writer that the mother showed an ability to self-reflect and was child focussed. Further, the mother was “keen to impress upon the report writer the seriousness of the issues and describe in detail hers and… [the father’s] decisions and behaviours”.[88] The Family Report writer says that the mother did so in a polite and respectful manner;[89] and
(c)The mother’s ongoing expressed concern that the father may kill her and her apparent distress when discussing “the impact of alleged issues on the children,[90] and her relationships with all her children”.[91]
[88] Family Report dated 15 March 2023, paragraph 54.
[89] Family Report dated 15 March 2023, paragraph 52.
[90] Family Report dated 15 March 2023, paragraph 63.
[91] Family Report dated 15 March 2023, paragraph 55.
When making this finding, I am cognisant of the submissions made by the father’s counsel that it would be astonishing if, having been the subject of a threat to kill, the mother not long thereafter made an application to vary the terms of the Apprehended Domestic Violence Order so that the father might attend at the mother’s residence to assist with the care of the children. There is some force in that submission. However, given the contemporaneity of the report by the mother to police (supra) and the effect, which that threat continues to have on the mother as expressed to the Family Report writer,[92] I reject the submission.
[92] Family Report dated 15 March 2023, paragraph 63.
In addition to the above allegations, an event, which occurred between the father and his sister warrants consideration. In 2012, the father pleaded guilty to multiple offences contrary to the Crimes Act 1900 (NSW) (“Crimes Act”). The assault occurred in late 2011. The circumstance of aggravation was that the victim was the father’s sister.[93] The proceedings were listed in the District Court of New South Wales (Criminal Jurisdiction) in late 2012. Having pleaded guilty to the offending, the father was sentenced to imprisonment for a period, which sentence was suspended on the condition that he enter into a bond to obey all reasonable directions regarding alcohol, gambling, psychological and anger treatment and management.[94]
[93] Exhibit M3.
[94] Exhibit M4, p.4.
The transcript of the proceedings in the District Court identifies that the father assaulted his sister due to his grievance that his sister had not returned a sum of money loaned to her about three or four months prior to the assault. The transcript identifies that:
(a)The father kicked in the front door of the property where his sister was residing,[95]
(b)The father grabbed his sister in a headlock,[96]
(c)The father pushed his sister’s head against the wall,[97]
(d)The assault occurred whilst the sister’s child was on the property.[98]
[95] Exhibit M3, p.5.
[96] Exhibit M3, p.6.
[97] Exhibit M3, p.13.
[98] Exhibit M3, p.6.
Whatever the precise nature of the mother’s allegations and my findings in respect of the same, the findings in the criminal jurisdiction that the father assaulted the mother in early 2020 and the father’s admission that he assaulted his sister in 2011 is immutable proof of violent conduct on the part of the father.
Against a background of this immutable proof, it is concerning that the father did not seek any psychological assistance in 2012 despite the Probation and Parole Service referring the father to a “community based mental health provider”.[99] The father’s failure to do so assumed some importance for the presiding judge who in late 2012 had the following exchange with the father:
[99] Exhibit M3, p.11.
Judge:
And what you are now be [sic] asked is why on earth you’ve done nothing for yourself in the intervening period?
Father:
And my pop’s died and…
Judge:
That is what the Cown is asking you, okay?
Father:
Sorry, sorry, sorry, yes, all right.
Prosecutor:
So you made no attempt whatsoever to contact that person.
Father:
Yes, I have I rang them once and they said they were going to return my call.
Judge:
Did you follow that up?
Father:
No, I didn’t cause I…
Judge:
When did you ring them?
Father:
I think it was about the next day after I first seen [sic] the Probationary Officer.
Prosecutor:
And so you never thought that you – because you admit you need help – you never thought that you would then try them again to make sure that they got your message?
Father:
I just haven’t had time.[100]
[100] Exhibit M3, p.11.
The presiding judge expressed incredulity at the fact that the father did nothing to obtain assistance in circumstances where he was facing a sentence of 20 years imprisonment with a non-parole period of five years.[101] As I will discuss below, I am concerned about the father’s failure to obtain any assistance with respect to his mental health and his inability to control his emotions.
[101] Exhibit M3, p.12.
I must take the father’s assault of his sister into account when considering the arrangements, which would promote the safety of the children and indeed the mother.[102]
[102] Family Law Act 1975 (Cth) s 60CC(2A)(a).
I also find that there is immutable proof that the children the subject of these proceedings were exposed to family violence. I make things finding for the reasons described above. In addition, and on interview by the Family Report writer, the father made a concession that the children “were mostly present when violence occurred”.[103] He also asserted that the children were “used to it”.[104] The father’s straightforward concession with respect to the existence of family violence is a sad reflection of the likelihood that the children were unable to live happily in the maelstrom of their parents’ conflict. Such an inability to live a happy and stable life was no doubt exacerbated by the children’s disabilities.
[103] Family Report dated 15 March 2023, paragraph 25.
[104] Family Report dated 15 March 2023, paragraph 35.
The children’s continuing exposure to family violence between the parties is likely to cause them serious psychological harm, if it has not already done so. They require protection against such actual or prospective harm.
Alleged physical assault
In February 2021, the mother says that the elder child said words to the effect “Daddy hurt us” and “Daddy hurt me”. The mother says that at about this time, the father said to her “I hit the boys for behaving badly. They were harassing my [pets]”.[105] For his part, the father says in his written evidence that after “repeated verbal attempts to get the children to stop hitting the [pets]”, he “tapped them on the shoulder”.[106]
[105] Mother’s affidavit filed 12 August 2024, paragraph 109(i).
[106] Father’s affidavit filed 2 August 2024, paragraph 89.
Under cross-examination by the mother’s counsel the father maintained that he simply “tapped the children” and that he did so with “an open hand”.
The Independent Children’s Lawyer urged me to find that the father hit the children. When considering that submission, I reminded myself about two things. Firstly, the Independent Children’s Lawyer when cross-examining the father asked him what he might do if the younger child became emotionally dysregulated during time spending. The question was asked whilst referring to the Medical and Psychology Clinic Report dated April 2022 wherein the assessment team identified that “[o]ne of the most noticeable aspects of… [the younger child’s] social communication was his boundary and limit-testing behaviour”.[107] Specifically, the father was asked whether he would smack the children like the “the time you did with the [pet]”. In response, the father said, “not anymore”. This answer suggested to me that on his own evidence, the father was conceding that he previously smacked the children.
[107] Exhibit ICL4, p.4.
Secondly, counsel for the Independent Children’s Lawyer referred to the father’s evidence in the witness box with respect to the alleged “tap” as more properly characterised as a “hit” because the father made “a firm and audible hit to his chest and shoulder area” whilst giving evidence. I do not accept that submission. It represents a subjective view of the father’s actions in the witness box.
Irrespective of the father’s evidence on the topic, the paternal grandfather gave oral evidence to the effect that:
(a)He witnessed the children hitting a pet with a tennis ball; and
(b)In response to the paternal grandfather raising the matter with the father, the latter went outside and chastised the children.
In response to a question about whether he heard his son yelling at the children, the paternal grandfather initially said “No, it was a long time ago”. He then said that the father had a “raised voice”. He also said that he heard the elder child crying.
I was troubled by the paternal grandfather’s initial assertion that he did not hear his son yelling at the children and his later admission that the father had a “raised voice” when chastising the children. The inconsistency caused me to conclude that the event was a significant one for the children, which the paternal grandfather sought to minimise.
Corporal punishment administered to a child is potentially an “assault”, and therefore also potentially “abuse” under the Act, because it is conduct which generally entails intentional or reckless inducement of the punished child to apprehend immediate and unlawful violence (see Knight v R (1988) 35 A Crim R 314). The actual infliction of such violence is technically a “battery”, but ordinarily every “battery” includes an “assault”.
At least in New South Wales, depending on the circumstances, lawful correction of a child is a legitimate statutory defence to a charge of assault (Crimes Act s 61AA). In particular, the physical force applied to the child must be reasonable having regard to the age, health, and maturity of the child and also the nature of the alleged misbehaviour (Crimes Act s 61AA(1)(b)) and the application of physical force is not reasonable if it is applied in such a way to cause harm to the child that lasts for more than a short period (Crimes Act s 61AA(2)(b)). If corporal punishment is not an “assault”, neither is it “abuse”.
In Cao and Cao (2018) FLC 93-880 at [42], Justice Austin said as follows:
42. Even though corporal punishment is falling out of favour under contemporary moral standards, it is still not yet unlawful to use modest physical force to chastise a child (s 61AA of the Crimes Act 1900 (NSW)). Corporal punishment does not amount to physical “abuse” under the Act unless it constitutes an assault (s 4(1)).
Suffice to say, such observations are not intended to legitimise corporal punishment of children, which most compassionate adults would regard as unwise even if not unlawful. Rather, it is an explanation for why corporal punishment of a child does not automatically constitute “abuse” under the Act.
There is insufficient factual evidence to permit me to make a finding that the father physically assaulted the children in February 2021. I do, however, consider that the children were subjected to physical discipline which they found objectionable. I also find that the father lacks an ability to parent the children in a calm and empathic manner. The father’s inability to do so was highlighted by the Family Report writer who gave oral evidence to the effect that the use of physical discipline for the children the subject of these proceedings is ineffective in any event due to their special needs. As I discuss in this Judgment, I am also concerned that the father has not engaged with any of the children’s treating health professionals to learn how to address the children’s behavioural difficulties.
Use of illicit substances
On the first day of trial and in response to a question asked by the mother’s counsel about when he last used an illicit substance, the father said that he used the illicit substance “about one month ago”. He was then asked when he used illicit substances prior to that time and he said, “about a month before that”. Having regard to this evidence, I can find that the father used the illicit substance in mid-2024.
By his written evidence, the father advised the Court that he was “currently engaged with the Drug Court” and that he had been so engaged after he was “given a […] prison sentence for [committing an offence]”.[108] The father also said by his written evidence that he was meeting his obligations to the Drug Court by attending at the Court on Mondays and Thursdays to do a urine drug test and attending for drug and alcohol counselling once per fortnight. The effect of the father’s written evidence as set out over several paragraphs is that he was moving through the various phases of the Drug Court program and had otherwise completed various courses.[109] The father’s written evidence with respect to his drug use if read in isolation would cause a reader to form a view that the father had successfully ceased the use of illicit substances. However, a document annexed to the father’s Trial Affidavit and later tendered by the mother,[110] identified that:
(a)On twenty-two occasions between mid-2023 and mid-2024, the father tested positive for illicit substances;
(b)On eight occasions between mid-2023 and mid-2024, the father tested positive for an illicit substance and declined to provide the Drug Court with any admission as to his use of that drug. Similarly, and during the same period, the father tested positive for another illicit substance on twelve occasions and declined to provide the Drug Court with any admission as to the use of that drug;
(c)On seven occasions between mid-2023 and mid-2024 the father failed to attend at the Drug Court for drug testing. In his oral evidence, the father expressed some confusion advising me that he had never failed to attend at the Drug Court as he was obliged to do. I reject that evidence. Particularly, and because of Orders made by the Court, I received confirmation from the Drug Court that the father did not attend for urine testing on the occasions referred to above;[111] and
(d)On three occasions during the period mid-2023 and mid-2024, the father was placed into custody as a consequence of his failure to comply with obligations placed on him by the Drug Court.
[108] Father’s affidavit filed 2 August 2024, paragraph 116.
[109] Father’s affidavit filed 2 August 2024, paragraphs 117–119.
[110] Exhibit M5.
[111] Exhibit ICL11.
It beggars’ belief that under the eye of two courts the father would embark on a path of such destruction. My incredulity was heightened by my knowledge of the fact that during the periods referred to above, the father had a live application before the Court to have parental responsibility for the children and to spend time with them. The father’s use of illicit substances and blatant disregard for his obligations to the Drug Court is inconsistent with an expressed desire to spend time with his children.
The father gave written evidence to the effect that he “was taking minor amounts of drugs on the weekends only before I met… [the mother]” and that his use was limited to those weekends when he was not otherwise caring for his daughters.[112] On cross-examination, the father admitted that prior to cohabitation with the mother, he used illicit drugs. The father’s written evidence if read literally suggested that on cohabitation, he simply stopped using illicit substances. Such a conclusion conflicts with the mother’s written evidence to the effect that the father was a user of illicit substances throughout the relationship.[113] The parties’ oral evidence provided me with no clarity with respect to whether the father used illicit substances during the relationship and there was no objective evidence to assist me to determine that question. Similarly, there was no evidence to support the mother’s assertion that the father was a peddler of drugs.
[112] Father’s affidavit filed 12 August 2024, paragraph 25.
[113] Mother’s affidavit filed 12 August 2024, paragraphs 29–31.
The evidence referred to in the preceding paragraphs, however, does permit me to find that the father was a user of illicit substances prior to or about the time of the parties’ cohabitation in 2013. Whether or not the father used drugs during the relationship is unimportant to my determination of the competing parenting applications. This is because at some unknown stage in 2023, the father engaged in offending such as stealing to enable him to raise money. Although the father was not specifically asked by the mother’s counsel or the Independent Children’s Lawyer, I can infer by reference to his engagement with the Drug Court that the father was engaged in such offending to satisfy his addiction. At the very least, it was the father’s oral evidence that he has been using illicit substances since the beginning of 2023. Sadly, the records of the Drug Court also permit me to find that the father’s use of illicit substances is so problematic that under the eye of two Courts, the father engaged in use of the drugs.
When the father met with the Family Report writer on two occasions in February 2023, he advised her that he has “never accessed professional assistance regarding substance use and denies any cravings or thoughts of recommencing use”.[114] On cross-examination, the father clarified his evidence by saying that he has never sought any assistance apart from the assistance afforded to him by the Drug Court. In light of the drug test results referred to above, an observer might be excused for forming a view that whatever assistance is being provided by the Drug Court to the father is insufficient. Certainly, there is no evidence that the father has sought his own assistance or that at the current juncture, he is able to abstain from the use of illicit substances for any significant period.
[114] Family Report dated 15 March 2023, paragraph 47.
In December 2023, the Family Report writer identified the father’s use of drugs as a risk to the children.[115] The father did not put any information before the Court, which would enable me to find that he has successfully engaged with any professional or that he will overcome his addiction. His failure to do so assumes critical importance. All evidence must be weighed and assessed having regard to the capacities of the parties to adduce and contradict it.[116] The father had the power if he was so inclined to adduce evidence to prove his abstinence from illicit drug use. He did not do so. Either way, the documentary evidence identifies that as late as mid-2024, the father was testing positive for an illicit substance and failing to admit the cause of the positive reading.[117]
[115] Family Report dated 15 March 2023, paragraph 24.
[116] Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330; Swain v Waverley Municipal Council (2005) 220 CLR 517 at [17].
[117] Exhibit M5.
By reason of his use of drugs, the father is not presently equipped to provide reliable and safe care of the children. I reject the submission made by the father’s counsel that the risk that the children will be exposed to drugs or be exposed to their father under the influence of drugs is “minimal” in a supervised setting. Alternatively, the father’s counsel made a submission to the effect that if the children were so exposed, “it would only be once” because, he speculated, the mother would thereafter withhold the children. As discussed above, the children’s continuing exposure to family violence between the parties is likely to cause them serious psychological harm, if it has not already done so. I am not prepared to make an order bringing the children into contact with their father absent any evidence that the father has successfully addressed his addiction to illicit substances. To do so may benefit the father’s emotional wellbeing but it is difficult to imagine what benefit the children might obtain by coming into contact with a person who may be under the influence of an illicit substance. I am also concerned not to expose the children to a “stop-start” relationship with their father. I cannot rule out such a possibility in circumstances where the father has been incarcerated on three occasions during the period mid‑2023 to mid-2024. I find that it is not in the children’s best interests to make an order, which might result in a “stop-start” relationship. If I made such an order, it would be contrary to the oral evidence of the Family Report writer who expressed a need for the Court to implement orders, which provide the children with routine and stability.
Under cross-examination by the father’s counsel and the Independent Children’s Lawyer, the Family Report writer also abandoned any recommendation for supervised or unsupervised time between the children and their father. When asked by the father’s counsel whether she still maintained that the children would “benefit from spending short but regular time with their father” if the Court finds that there is not an unacceptable risk of family violence or sexual abuse,[118] the Family Report writer answered in the negative. The reason the Family Report writer gave for revisiting her recommendation was the use of illicit substances by the father. I agree that it is not in the children’s best interests to spend time with a person who has an addiction to illicit substances and who may be under the influence of those drugs during time spending.
Alleged sexual abuse of the mother’s eldest daughter and the younger child the subject of these proceedings
[118] Family Report dated 15 March 2023, paragraph 162.
The mother alleges that:
(a)Within a year of living with the father, her eldest daughter disclosed that the father had “sexually touched her”; and
(b)In early 2021, the younger child of the relationship was repeatedly saying to her “I got a big penis” and “daddy has a big penis” and “I’ve touched daddy’s penis”.[119]
[119] Mother’s affidavit filed 12 August 2024, paragraph 18.
With respect to the first allegation, the mother says that her eldest daughter made a disclosure to the father’s daughters that the father had “sexually touched her”.[120] The mother of the father’s daughters confronted him. In turn, the father discussed the matter with the mother in these proceedings. On the mother’s written evidence, the father said to her “you have a problem, you need to talk to [your daughter]”, “[s]he’s saying that I sexually touched her”.[121] The mother says that thereafter, she spoke to her eldest daughter who “refused to disclose what had happened” save that she did say “he touched me”.[122] The father denies the allegation. Cross-examination of the parties did not assist the Court to determine the truth or otherwise of the allegation.
[120] Mother’s affidavit filed 12 August 2024, paragraph 14.
[121] Mother’s affidavit filed 12 August 2024, paragraph 14.
[122] Mother’s affidavit filed 12 August 2024, paragraph 15.
The mother admits that in 2014, she questioned her eldest daughter at length with respect to her disclosure.[123] The mother says that it was a combination of this fact as well as the fact that her eldest daughter could not remember certain aspects of the alleged offending that a prosecution of the father never ensued.[124] Whatever the scenario, the father invited me to draw an inference that the alleged offending did not occur because contrary to the mother’s evidence, and subsequent to alleged disclosure by the mother’s eldest daughter, he was only asked to leave the house for one night. There he remained until the time of the parties’ separation.[125] Further, it was the father’s written evidence that he:
…often took…[the mother’s eldest daughter] and [the mother’s youngest daughter] to their [extracurricular] without… [the mother]. The mother would often leave me alone with her children, and my children for hours on the weekend while she went shopping. [The mother] would go out for the night from time to time and I was left alone with all the children.[126]
[123] Mother’s affidavit filed 12 August 2024, paragraph 15.
[124] Mother’s affidavit filed 12 August 2024, paragraph 15.
[125] Father’s affidavit filed 19 August 2024, paragraph 10.
[126] Father’s affidavit filed 2 August 2024, paragraph 108.
The father was not challenged with respect to the above evidence under cross-examination.
The father’s evidence might cause a reader to form a view that the mother herself did not believe the disclosure. However, the mother did reflect on discussion with the Family Report writer, that she “did not want to think that sexual abuse could happen, particularly in her home to her child”.[127] She further said that she felt “very guilty” about exposing her eldest daughter and the other children to the father.[128] The Family Report writer considered two possibilities, namely, the mother did not act in a protective manner of her eldest daughter or the father manipulated the situation and convinced the mother that abuse did not occur.[129] Given my finding that the father perpetrated family violence against the mother and the children, I am not prepared to discount the possibility that the father persuaded the mother that the alleged acts did not occur.
[127] Family Report dated 15 March 2023, paragraph 74.
[128] Family Report dated 15 March 2023, paragraph 74.
[129] Family Report dated 15 March 2023, paragraph 140.
Under cross-examination, the father expressed a concern that the children “might not come back” if the children were permitted to leave the Commonwealth of Australia. The father maintained this concern despite his knowledge that the children are not citizens of any other country. When asked whether the children have a “legal right to reside in any other country”, the father said “I’m not sure how it works”.
I refer to the well-known decision of Line & Line (1996) 21 Fam LR 259, which has been followed and applied on many occasions. In that decision, the Full Court set out the type of considerations to be considered when such a parenting order for overseas travel is made. I address those criteria below.
The mother is an Australian Citizen, and the children are also citizens of Australia.[169] There is no evidence whether the mother lives in a freehold or mortgaged property or whether she is renting. However, the mother’s children and family all reside in Australia.[170] In my view, and despite the conflict between the parties, that is a strong enough motive for the mother to return to Australia with the children if she is ever able to accumulate sufficient funds to enable her to travel with the children.
[169] Amended Initiating Application filed 2 August 2024.
[170] Mother’s affidavit filed 12 August 2024, paragraph 136.
Notwithstanding these findings, the mother produced no evidence whatsoever with respect to the locations where she would like to travel with the children or when she might do so. For these reasons, I refuse to make an order permitting the mother to obtain passports for the children absent the consent of the father and/or permitting the children to travel outside of the Commonwealth of Australia.
Change of Name
The mother sought an order that the children be known by her surname only as opposed to a hyphenated surname identifying firstly the mother’s surname and secondly, the father’s surname. The order sought by the father as identified in the document tendered during closing submissions was drafted in the following terms:
2. That the father retain joint decision making for:
(a) The changing of the children’s names…; and
(b) The children’s passports, where both parents be required to sign the children’s passport application.
When making decisions about a child’s name, the Court can consider the view that an application to change a name or to preclude a change of name for a child is a parenting order.
The determination of the change of name or any part of a child’s name is a parenting order for the purposes of s 64B of the Act as:
(a)the orders sought are to be made under Part VII of the Act;
(b)the orders sought deal with an aspect of a child’s care, welfare and development; and
(c)the orders sought deal a matter of parental responsibility.
Otherwise, although the question was left open in Reynolds v Sherman (2015) FLC 93-659 at [53], I am of the view that a change of name is a “parenting order”.
As such the Court must regard the best interests of the children as the paramount consideration and regard must be had to the matters identified in section 60CC of the Act.
In Chapman & Palmer, the Full Court comprising of Evatt CH, Asche and Marshall SJJ highlight that in reported decisions on this point, “judges have shown a reluctance to recognise that the sole custodian of a child has a right to bring about a change in the surname of a child”.[171] The Full Court went on to identify the factors, which the Court should consider when determining whether there should be any change in the surname of a child. Those factors were identified as follows:
(a) The welfare of the child is the paramount consideration;
(b) The short and long-term effects of any change in the child’s surname;
(c)Any embarrassment likely to be experienced by the child if his/her name is different from that of the parent with custody or care and control;
(d)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
(e)The effect, which any change of surname may have on the relationship between the child and the parent whose name the child bore during the marriage;
(f) The effect of frequent or random changes of name.[172]
[171] Chapman & Palmer (1978) 4 Fam LR 462 at 468.
[172] Chapman & Palmer (1978) 4 Fam LR 462 at 471.
In Beach and Stemmler,[173] Connor J of the Family Court of Western Australia followed the decision in Chapman & Palmer but added the following considerations:
(a)The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now;
(b)The degree of identification that the children have now with their father; and
(c)The degree of identification that the children have now with their mother.
[173] Beach and Stemmler (1979) FLC 90-692.
Justice Connor went on to say:
In many cases it might be more convenient for a custodial parent to have a child’s name changed but I do not believe that mere convenience itself is sufficient reason for changing a name.[174]
[174] Beach and Stemmler (1979) FLC 90-692.
In Flanagan & Hancock, the Full Court reviewed a range of decisions with respect to the principles to be considered when dealing with a proposed change of a child’s name and held at [81]:
81. The matters which frequently need to be considered in dealing whether or not to permit or prohibit a change of name have been considered in several decisions of this Court, both at first instance and on appeal. The most significant feature that appears from those cases is that they turn on their individual facts.[175]
[175] Flanagan & Hancock (2001) FLC 93-074 at [81].
The mother did not by her affidavit filed on 12 August 2024 include any information, which might enable me to determine her application. Similarly, the application was not addressed by the Outline of Case document filed by the mother prior to trial.
The only information put forward by the mother in support of her application was found in an annexure to an Affidavit filed by the mother on 24 September 2023. That annexure was tendered by the Independent Children’s Lawyer and marked as an exhibit.[176] If the Independent Children’s Lawyer had not tendered the annexure to the Mother’s Affidavit of 24 September 2023, the Court would have been bereft of any information whatsoever.
[176] Exhibit ICL3.
The information contained in annexure to the September 2023 affidavit is unhelpful. A summary of the evidence given by that exhibit is as follows:
(a)The mother says that she always planned to give the children her last name. Such an assertion is irrelevant to any consideration of the best interests of the children;
(b)The children’s siblings are known only by their mother’s surname. I place limited weight on this fact given that the mother’s children from a previous relationship are significantly older than the children the subject of these proceedings being aged 19 years, 17 years and 15 years respectively. The children’s siblings do not attend at the same school as the children the subject of these proceedings;
(c)It is easier for the children to use the mother’s surname as opposed to a hyphenated name. There is some force to this submission given the mother’s oral evidence and her written evidence that each child has been diagnosed with significant speech clarity and language issues;[177]
(d)On an undefined date, the elder child was in hospital and was confused when a nurse addressed him using the hyphenated surname. Save for this bold assertion, the mother gives no other evidence about the incident or the way it impacted the elder child. The mother’s oral evidence under cross-examination did not provide me with any better information; and
(e)The children’s school reports for Semester 1, 2024 also identify that each child has basic skills in spelling and handwriting.[178] Having said this, the school reports identify that the elder child has been making efforts together with his teacher to improve his strength in English.
[177] Mother’s affidavit filed 12 August 2024, paragraph 37.
[178] Exhibit ICL8, p.2 and p.8.
Returning to the topic of the children’s speech clarity and language issues, the Semester 1, 2024 report for the elder child identifies that he has “sound” handwriting skills but “basic” spelling skills.[179] Whilst the child’s ability to spell his last name causes me some concern, I take note of his teachers comment to the effect that the elder child is working hard to improve his spelling.[180] The younger child has “basic skills” in spelling and handwriting but his teacher in Semester 1, 2024 says that he is learning “to form all letters correctly”.[181]
[179] Exhibit ICL8, p.8.
[180] Exhibit ICL8, p.8.
[181] Exhibit ICL8, p.2.
The children are enrolled at their school using the hyphenated surname, although for practical purposes, the children are known by their mother’s name only. I can draw this conclusion by reference to the children’s 2024 school reports,[182] which record the children by the mother’s surname only.
[182] Exhibit ICL8.
I accept that because of the orders I will make, the children will, for the foreseeable future at least, not have any relationship with their father. That is a matter which weighs heavily on me. It is also a matter which is relevant to the mother’s application to change the children’s surname.
I do not consider, however, that the mother placed sufficient information before the court to enable me to consider her application nor did cross-examination of the mother by the father’s counsel or the Independent Children’s Lawyer provide me with any substantial assistance. I am conscious that as a consequence of the operation of s 28 of the Births, Deaths and Marriages Registration Act 1995 No 62 (NSW), my decision means that the mother will require the consent of the father to alter the children’s surnames. I regret that this is so but as I say, the mother simply did not provide me with information, which I required to assess her application.
I refuse the mother’s application to change the children’s surnames.
Provision of Information and Authorities
The father seeks authorities to enable him to obtain information in relation to the children’s welfare and progress from the children’s treating medical practitioners and school.
The application made by the father is surprising given his failure to make any enquiry whatsoever of the children’s treating practitioners and health professionals during this litigation. Given the findings set out above, I do not consider that the children will benefit from the making of such an order. I decline to make the orders sought by the father.
Attendance at events
The father seeks an order permitting him to attend at school events to which parents are ordinarily invited. The making of such an order is inconsistent with my findings set out above and accordingly, I decline to make the orders sought by the father.
Telephone communication
The father invites the court to make orders permitting the children to communicate by phone, video call or any other platform with the parent with whom they are not spending time. He also seeks a mechanical order to facilitate such communication. As a consequence of the Orders, which I will make in relation to the children’s living arrangements, any refusal by me to make an order for telephone communication will necessarily mean that the children will have no contact with their father at all.
The Family Report writer was not asked any questions which would assist me to determine the merit of the father’s application. When doing so, however, I remind myself of the opinion expressed by the Family Report writer to the effect that time between the children and their father on a monthly basis would cause the children confusion. In her oral evidence, she identified that the children do not have the same cognitive capacity as other children of the same age. For the same reasons, I am concerned that any telephone communication between the children and the father will cause them confusion and/or anxiety. I decline the father’s application on that basis.
Restraints
The mother seeks several restraints. In summary, the mother invites the Court to order injunctions prohibiting the father from:
(a)Attending at the children’s schools;
(b)Attempting to communicate with the children;
(c)Denigrating the mother or members of her family to the children or in their presence;
(d)Discussing these proceedings with the children or showing them any document “connected with these proceedings”; and
(e)Attending at the mother’s residential address and workplace and from being within one hundred metres of each location.
The mother also seeks an injunction restraining each party from “displaying any inappropriate social media groups or platforms to the children and shall not allow any social media of photographs whatsoever of the children in whole or part to be posted to any public social media platform by or to any other persons including family members, relatives and friends”.
An injunction is not, by definition, a “parenting order”.[183] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[184] Whilst counsel did not address me on the issue, the only power afforded to me to make the injunctive orders sought by the parties is pursuant to s 68B of the Act. Section 68B is not subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood & Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:
31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.
32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.
33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient.[185]
[183] Hedlund v Hedlund [2021] FedCFamC1A 84 at [118]
[184] Family Law Act 1975 (Cth) s 65D(1) and s 67ZC.
[185] Attwood & Attwood [2022] FedCFamC2F 6 at [31]–[33].
Having regard to Attwood and Bennett, I will consider the injunctive relief sought by giving consideration to the best interests of the children.
The father by his proposed orders agrees that it is appropriate for the court to make orders restraining the parties from denigrating the other parent to or in the presence of the children and for the court to make orders restraining the parties from discussing these proceedings with the children. Whilst the opportunity for the father to do so is nominal given the orders, which I will make in relation to the children’s living arrangements, I will out of an abundance of caution make the order in mutual terms.
I was not assisted by counsel’s submissions with respect to the orders sought by the mother restraining the father from attending at the children’s schools and/or attempting to communicate with the children.
The father was the subject of a Final Apprehended Domestic Violence Order, which expired in late 2022.[186] This being so, s 114AB(2) of the Act does not preclude me from making the orders sought by the mother.
[186] Exhibit M1, p.16.
The mother does not say by her written or oral evidence that the father has attended at her residence or otherwise, that he has attended at the children’s school. She does not assert that the father has sought to remove the children from their residence or their school.
I have, however, made a finding that the father did threaten to kill the mother in early 2020. I am also conscious of:
(a)the opinion of the Family Report writer to the effect that the risk of lethality ought to be mitigated by structed orders and “no in-person contact” between the mother and the father; and
(b)the Family Consultant’s expressed concern about the father’s mental health and wellbeing. At [151] of her report, the Family Report writer said as follows:
… [The Father] acknowledges experiencing quite acute and intense symptoms but does not appear to be proactive in following advice from medical professionals. It is considered that he is currently at substantial risk of harming himself. Although the intensity of some of his symptoms may lesson if he was to recommence spending time with the children, mental health and wellbeing is complex and it is unlikely his symptoms would dissipate entirely.
As addressed above, the father has not taken any steps to address his mental health save for those undefined steps, which have been mandated by the Drug Court. Similarly, the father has not produced any evidence whatsoever that he is seeking treatment with respect to his mental health, his history of family violence or his addiction to illicit substances. This being so, I have reached a conclusion that I must take steps to protect the mother and the children, and I make orders in terms similar to those orders promoted by the mother. The orders will restrain the father from attending at or within one hundred metres of any school attended by the children, at or within one hundred metres of the mother’s residence and at or within one hundred metres of the mother’s place of work.
As discussed above, the mother seeks an order restraining each party from using social media in what is described as an “inappropriate manner”. The order in its terms is incomprehensible. I decline to make the order. In any event, I consider that the injunction I have made with respect to each party’s denigration of the other parent is sufficient to address the mother’s concerns.
CONCLUSION
The orders set out at the commencement of these reasons are those that most capably meet the children’s best interests.
I certify that the preceding two hundred and twenty (220) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 18 October 2024
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