LANDERS & BROADBENT

[2011] FamCA 838

FAMILY COURT OF AUSTRALIA

LANDERS & BROADBENT [2011] FamCA 838

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Allegations of violence both physical and verbal – Order that children live with mother and that mother have sole parental responsibility for the children – Mother to determine what time if any the children should spend with the father as incidental to her sole parental responsibility for the children - Injunctive Orders

FAMILY LAW – CHILDREN - Application relating to passport – Application by mother for issue of passports to children to enable her to take children on overseas holiday – Application granted

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CA and 61DA

MRR v GR [2010] HCA 4

APPLICANT: Ms Landers

RESPONDENT: Mr Broadbent

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms C Benson

FILE NUMBER: CSC 435 of 2009

DATE DELIVERED: 5 October 2011

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 5 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Davies

SOLICITOR FOR THE APPLICANT: The Law Office

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER

Ms Benson

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER

Murray Lyons

Orders

1. All previous parenting orders be discharged.

2. The mother have sole parental responsibility for the children B born … 1998 and C born … 2003 (“the children”).

3. The mother be permitted to apply in her own name for a passport for the children or either of them at any time.

4. The mother be permitted to take the children or allow the children to leave Australia on holidays oversears or for school exchange programs overseas without notice to the father.

5. The children live with the mother.

6. The father spend no time with the children other than is provided for in these orders or in accordance with the notation set down below which must include the mother’s written consent and that she is satisfied the arrangements are safe for the children.

7. The father initiate no communication with the children other than provided for in these orders and notations.

8. Unless agreed to in writing by the mother, the father be and is hereby restrained from:-

   (a)communicating or attempting to communicate with the mother, the mother’s husband and the children in any manner whatsoever and in particular facebook, save as provided in this order;

   (b)entering into or loitering near premises in which the mother, her husband, the children and the mother’s parents reside from time to time;

   (c)deliberately attending any sporting premises or other premises where the children may be engaged in extra cirrucular activities;

   (d)entering into or loitering near any school premises and grounds attended by the children from time to time; and

   (e)distributing and/or publishing on the internet and in particular Facebook any information or photographs of or pertaining to the children.

9. The court authorisies that the childrens’ schools or outside school centres attended by the children from time to time to give each parent information about the childrens’ education and progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children at that parent’s cost.

10. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

    IT IS NOTED

11. No order is made providing the children to spend time with the father or precluding the children from doing so and provided it is both agreed to in writing by the mother and that the mother  is satisfied that the arrangements are safe for the children.

12. Whether the children spend time with the father in the circumstances under which that should occur should be decided by the mother as incidental of her sole parental responsibility for the children.

    IT IS FURTHER ORDERED

13. This matter be removed from the list of cases requiring determination.

14. The appointment of the Independent Children’s Lawyer be discharged twenty eight days from the date of this order or such alternative period as ordered by a court exercising jurisdiction under the Family Law Act.

    IT IS DIRECTED

15. All documents produced on subpoena be either returned to the party who produced them or if a photocopy, such photocopy to be destroyed by the Registry but require that the exhibits handed up today, namely M1 and M2 and ICL1 and ICL2 remain on the court file.

    IT IS CERTIFIED

16. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Landers & Broadbent is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 435 of 2009

Ms Lander

Applicant

And

Mr Broadbent

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Ms Landers and Mr Broadbent relating to the parenting arrangement for their children, B, aged 13, and C, aged 8.  The proceedings relate primarily to what time, if any, the children should spend with their father, and what communication, if any, they should have with their father.  The mother proposes that there be no orders, and that a series of protective orders be put in place.  That application is essentially supported by the Independent Children’s Lawyer.  The mother seeks to have a notation to enable the children, if they wish, to contact the father, provided that the mother approves and that it is safe.

2. The Independent Children’s Lawyer expressed some concerns about this, bearing in mind the history of the father, which I will detail later on.  However, he has had discussions with the mother, and she is content in the interests of her children to leave that in place.  That very much reflects a sound and positive approach to parenting that this mother has undertaken with regard to these children and their contact with their father despite enormous provocation over many years, and I have had regard to that in terms of the orders I am proposing to make.  The father sought to adjourn the proceedings again on this occasion, and filed an affidavit the day before the hearing.  In that affidavit, he said that he had work commitments, and then said that he was before another court.

3. The matter had been listed for hearing today at a time and date to meet the needs of the father, who lives and works in Western Australia.  I earlier in the proceedings refused his application for an adjournment, and I will proceed with the matter on the basis of the evidence that is before me at this time. 

BACKGROUND

1. The mother and father are both aged 34 years.  They commenced a relationship in 1993.  B was born in 1998, and in late 1998, the parties commenced living together.  In August 2000, the father was charged with assault at the D Town Magistrates Court.  The offence was proved, no conviction was recorded, and he was fined $600.  In 2001, the parties married.  In September 2001, the father was convicted of unauthorised discharge of a weapon, and in January 2002, there was a family violence issue.  The mother deposes in her affidavit, filed 15 July 2009, the following, and this is not the whole of the paragraph:-[1]

   … I recall that [the father] was violent to me on approximately ten occasions.  These incidents involved him ripping my clothes off, pulling my hair, biting my ear, holding my head in a headlock, slapping me over the face, bruising me over various parts of my body, intimidation and verbal abuse.  In or about January 2002, during a car trip from [D Town] to [E Town], [the father], [B] and I were staying at a caravan park at [F Town].  We were all in the caravan when I saw the father hit [B] across the chest, making him fall against the glass sliding door.  I was sitting on the bed at that time and got up to intervene.  [The father] then slapped me across the face and kicked my legs from underneath me, causing me to fall to the floor.  I sustained several bruises from this altercation, whilst [B] had a large welt across his chest from the father’s backhand.

   [1] At paragraph 18.

2. Shortly after that time, the parties separated.  During this time, the mother facilitated the child and the father speaking.  In early 2003, the father and the mother reconciled.  In September 2003, C was born, and in March 2004, there was a violent incident which is set out in paragraphs 21, 22 and 23 of the mother’s first affidavit.[2]  The mother, on 18 March 2004, separated from the father for the final time.  In June 2004, the father broke into the mother’s home and harassed and intimidated her.  In August 2006, there was a further serious incident.

   [2] Filed the 15 July 2009.

3. On 28 August 2006, there was a serious incident of violence where the mother was assaulted in front of the children.  The evidence of the mother was set out in paragraph 28 of her affidavit, where she says:-[3]

   At approximately 6:15 pm on 28 August 2006, I was bathing [C], and there was a knock on the front door.  I opened the front wooden door but left the front security screen locked.  [The father] was standing there and said words to the effect, “You are not answering the phone.  Open the fucking door or I will kick it in.”  I did not open the door.  Then the father kicked the door in.  [The father] walked in, grabbed me with both hands on my shoulders and slammed me against the hallway wall.  He then began shaking me violently.  During this incident, [B] was present.  He began screaming, “Stop it, Dad.”  [The father] was holding me by the hair very tightly when I saw him turn to [B] and say, “Be quiet.”  The father pushed me across the room so that I lost my balance and fell backwards, hitting my elbow on a cupboard and my head on the wall.  My elbow began bleeding.  During this altercation, the father was yelling at me words to the effect …

   and I will not repeat the words

   [B] was screaming and waving his hands in the air.  [The father] then approached [B], saying, “Fucking shut up or I will flog you.”  I could hear [C] scream in the bathroom.  I got up and went to the bathroom and took her out of the bath.  [The father] followed me and continued screaming at me and raising his fists.  I took [C] to the bedroom to dress, whereby [the father] followed me and continued screaming at me.  He said, “I will kill both of you.”  [The father] then grabbed me by the hair, raised his clenched fist and held it in front of my face, saying, “Just tell me the truth so I can smash you now.”  I could see [B] in the hallway scream, and he started to scream louder.  The father let me go and then turned towards [B].  He then went to cuddle [B], whereby [B] put his hands up in front of his face defensively.  I heard the father say to him, “It’s all your mother’s fault.  Look at what she makes me do.  I have to go now, bye.”

   [3] Ibid.

4. By any standard, this was an appalling, violent incident which would have had a marked effect not only on the mother but also on the children who were privy to it.  On 2 September, 17 September and 19 October 2006, temporary protection orders were made, and on 4 December 2006, a two-year protection order was made at the D Town Magistrates Court.  On 16 December 2006, the parties were divorced.  On 21 April 2008, an ex-girlfriend of the father reported him to the Queensland police for intimidation and harassment.  On 31 May 2008, an ex-girlfriend of the father reported him to the Queensland police for intimidation and harassment.  In June 2008, B made a report to his mother, and I note what the mother said in paragraph 34 and 35 of her affidavit filed 15 July 2009.  The child was returned to the mother with a massive welt and bruising to his head, and the child said dad punched him in the head.  The child at that time was about 10.  In June 2007, the mother commenced a relationship with her present husband Mr G and, from her affidavit material, she has been the victim of constant and persistent threats, abuse and obscene language from the father.  Notwithstanding the events that I have referred to earlier, the mother has facilitated time between the children and the father.  The mother and Mr G married in 2008.  In July 2008, there was a serious violence incident involving the father and his girlfriend at that time, Ms H.  The children were present when this occurred.  The father’s threats and violence are not only physical, the threats are intimidatory.  The mother deposes in paragraph 39 of her first affidavit the following:-[4]

   On 31 October 2008, the father collected the children from my parents’ residence.  We discussed [B’s] schooling.  During the conversation, the father said, “I know where you live.  I came round there last Saturday morning at 3:30 am with a torch and I looked around.”

   [4] Ibid.

5. Now, the mother says, and I can understand why she was upset by that sort of threat, whether it occurred or not, it was insidious and appalling behaviour on the part of the father.  The father was convicted of breaches of a domestic violence order, and a protection order was made at the D Town Magistrates Court.  In terms of the conversations between the father and the mother’s present husband, I refer to paragraphs 44, 45, 46, 47, 48 and 49 of that material, including threats such as:  “I’m going to get [Mr G],” “I’m going to take it all away from you,” “I know where you are.  I’m going to come and kill you now.”

6. At Christmas 2008, the mother facilitated the children spending time with the father, but under the supervision and the protection of the paternal grandparents.  In December 2008, the father was charged with the dangerous operation of a motor vehicle.  Evidence as to that event is before the Court, and is, again, chilling.  The father ran another vehicle off the road and threatened to kill himself and the female passenger.  The father was initially refused bail, and then threatened the mother.  In January, the father was convicted of dangerous driving and breach of a domestic violence order, and sentenced to time in prison.  In April 2009 he was convicted of breach of domestic violence order and dangerous driving.

7. In April 2009, the father was released from prison.  The mother facilitated the children spending time with the father, but again, under the supervision of the grandparents.  In May 2009, there was a further breach of a domestic violence order in relation to his ex-partner Ms I, and a further order was made in Magistrates Court D Town for a protection.  In June 2009, the father failed to take an opportunity to spend time with the children on B’s 11^th birthday.  In June 2009, the family violence order incident involving the father, his sister and his sister’s partner, and that material is set out; again, these are violent incidents.  In July 2009, the mother filed these proceedings.

8. In August 2009, the father was released from prison.  In August 2009, a consent order was made that the father spend time with the children in a supervised way, and in September 2009, B disclosed the incident where the father had punched him in the head, and the Principal quite properly disclosed that matter to the Queensland Police Service, and there was an interview of the child in respect of that event.  In September 2009, there was a report by Ms J of which I have had regard.  Although it seemed at some levels to be moving toward some unsupervised time and non-contact time, in October 2009, a further interim order was made in the Federal Magistrates Court, and the father spent some time and cancelled some time at the D Town Contact Centre.  This went on for some time, and the paternal grandparents were used from time to time.

9. The father enrolled in the Focus on Kids program, and the contact seemed to be progressing reasonably well.  In June 2010, orders were made that the children live with the mother and spend some unsupervised time with the father.  The mother completed with the Focus on Kids parenting course.  In July 2010, the father had some unsupervised time with the children, and then later that month was charged with assaulting his sister and her partner, and was subsequently incarcerated.  The father spent further unsupervised time with the children through the contact centre as the delivery and contact point.  And then in November 2010, the father was convicted of assaults against his sister and her partner from July 2010.

10. In November 2010, the father spent unsupervised time with the children, which was, as I understand it, the last occasion the father spent with the children.  There were further issues of violence, and the mother cancelled some time in December, and further orders were made.  The mother sought information about the criminal charges.  B disclosed to the mother in January 2011 that he had seen the father smoking material which the mother suspects is cannabis or marijuana.  From that time, it appears that the father was endeavouring to manipulate B to support his cause.  The father made threatening calls to his ex-girlfriend, and then was charged with and the offence established in relation to the possession of a drug, although no conviction was recorded.

11. Further interim orders were made in March 2011 that the father spend supervised time with the children.  Ms K withdrew her complaint, and the view of the police was that they believed that she was being harassed by the father.  The father asserted in April 2011 that he has no convictions for any drug charges, and then engaged in leaving voice messages with the mother’s present husband.  This involved a threat that unless she agreed with him, she would be killed; this, I note, some almost seven years after the parties had separated.  The mother referred that to the police.  The father was given an opportunity to participate in these proceedings, and as I said earlier, has not done so.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.

2. The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-

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

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

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-

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

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

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

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

1. Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so-called presumption arising out of the operation of s 61DA of the Act. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[5] for the child, subject to section 61DA.

   [5] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

2. If the presumption is not rebutted and it is in the child’s best interests, a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under s 61DA(2), but a Court determines that it is in a child’s best interests for an order for equal shared parental responsibility, it should be made.

3. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.

4. The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with other persons is determined (see s 64B(2)).  This is because, where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal or substantial and significant time pursuant to s 65DAA.  In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.

5. Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

6. The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:

   Primary considerations

   (2)        The primary considerations are:-

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

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

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations are:-

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

   (b)the nature of the relationship of the child with:

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

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

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

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

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

   to provide for the needs of the child, including emotional and intellectual needs;

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

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

7. A court must consider the s 60CC(2) considerations as “primary considerations”.  This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face-to-face time and communication.

8. In that evaluation, if there is to be an order for equal shared parental responsibility, the Court must consider:-

   Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[6]

   [6] MRR v GR [2010] HCA 4.

9. The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.

10. What is clear from the affidavit material is that the mother and her present husband have put in place satisfactory and sound living arrangements for these children.  They are set out in the mother’s affidavit, and I do not intend to go through those in great detail.  She set them out in paragraphs 62 through to 68 in her initial affidavit, and updated those in her affidavit of 31 August 2009 and further affidavits.

11. I am required to understand and consider the primary considerations.  The first is the benefit of the children having a meaningful relationship with the parent.  There is no issue that the mother is a fine parent and has looked after these children as the primary carer throughout their lives and will continue to do so.  There is a question as to whether there is a benefit for the children in having a meaningful relationship with their father.  He has engaged in what could only be described as intimate terrorism for the last seven years, goes well, beyond that, for the whole of their relationship.  I suspect that the father genuinely wants a relationship with these children, and from the evidence, it seems that the children would like some time with their father, provided it is safe.  As I suspect, the mother would happily have that put in place.

12. But the father has shown a propensity towards violence throughout the whole of the period of the relationship.  The family consultant sets it out nicely in her report when she says that in many ways he can’t be left alone with the children because when he is presented with conflict or a difficulty, his reaction is inevitably to move towards violence or threats rather than some other solution.  These children want to know their father.  They do not have a meaningful relationship with him at the moment.  The father has in many ways rejected the concept of a contact centre, and the suggestion of it brings forth threats and abuse from him.  There is a benefit, but it can only be if it’s safe, which is the second limb.

13. The father has a history of violent, abusive and awful behaviour, to which he has inflicted upon the mother, her husband, and both directly and indirectly upon these children.  He does not appear to be able to learn from these mistakes, because he does it over and over and over again.  B is frightened of his father; he is frightened of being physically assaulted by his father.  The children need to be protected from this violent man, and I intend to put in place orders that will give effect to that.  The father knows few boundaries; he knows no boundaries in terms of his communication with the mother and his communication with her husband Mr G.  The language that he uses is appalling.  I can understand that language if one was in a hotel or on a hunting trip with friends or something like that, but these are children, they are influenced by this, and yet he seems to have no insights into the impact that the language has upon them.  The father has undertaken some anger management courses and in one of the letters he sent to the mother, which was an extraordinary letter in many ways, it tells the mother how he has undertaken a course and he is no longer angry and then when one reads the letter it veritably drips with anger and in itself is quite a frightening piece of correspondence. 

14. The father has not learned to control his emotion, continues to use violence to express himself and I am satisfied that the children are at risk of being subjected to or witnessing such behaviour if they spend unsupervised time with him.  When the father is out of control even his family cannot restrain him.  He is violent to his sister.  Like most children his age and most children generally, B wants to know his father and wants a relationship with him as long as it is safe. 

15. C reports that she thinks it is fun seeing her father but she is aware that B is afraid of his father.  It is interesting and perhaps good to note that these siblings have a very strong relationship.  The Family Consultant observed that it was probably more intense than most which is good for these children that they have that mutual support.  B is thirteen and a half and his views should carry some weight and they do and I give them significant weight.  The mother will enable B to see the father from time to time provided it is safe and in a secure environment and with the consent of B.  Having regard to the history of the mother’s approach in terms of these children seeing their father in the past I am confident that that will occur if she believes that it is safe. 

16. It is an enormous burden to place upon her but she seems to have managed very well so far and will no doubt manage into the future despite the history of the father.  C is only eight and whilst she has views, I have given them some regard.  Again, I trust the mother will when C becomes old enough and wishes to see her father enable that to occur via telephone, video or other ways as long as C is safe.

17. The nature of the relationship between the children and the parents and other persons, as I have said there is no issue that the mother is a fine mother and looks after the children properly.  The father interacted well with the children but the father’s training is such that even the Family Consultant raised some queries about whether this was a performance for her rather than the reality.  The father’s insidious use of the children to get what he wants is troubling, including the texts “don’t tell mum”.  I am satisfied that there is some relationship between the children and the father but it is of limited quality bearing in mind the history to which I have alluded earlier. 

18. The willingness and ability of each of the child’s parents to facilitate and encourage a relationship, the mother is rightly frightened of the father and his violent behaviour not only to her but to the children.  Those fears are well founded.  It is submitted by the Independent Children’s Lawyer that the mother lacks the willingness or capacity.  I think the mother has shown enormous willingness and enormous diligence in the face of abuse and violence over the years to facilitate time despite her own fears.  She still remains willing here in this Court today for the father to see the children and have a relationship with him notwithstanding the history but primarily on the basis that the children are safe and it is what they want.  I am satisfied that she is willing to facilitate a close and continuing relationship between the children and their father provided it is safe.

19. The father, on the other hand, has no insight into his behaviour, its effect on the mother or its effect on the children.  He continues with his focus about just wanting to spend time with the children and then makes threats from a position of enormous physical power.  The father has threatened to financially and emotionally break the mother and looking at his conduct during these proceedings he is not afraid to put those sorts of threats into place. 

20. The orders that I propose, in terms of the likely effect of changes on the child’s circumstances, are not going to change the children’s circumstances.  They will continue to live with their mother and continue to have some relationship with their father provided it is safe.  It may have one positive effect in that it may give B a sense of safety so that the nightmares may stop.  In terms of the practical difficulties and expense of the child spending time and communicating with the father, the father is in Western Australia.  There is no proposal now for the children to go to Western Australia.  I would not contemplate that in the light of the history of this matter.  If the father is in Western Australia then he can afford to come over here.  If he is not in Western Australia, well, he does not need to come over here, but if he wanted to he could.  There is an issue as to who can properly supervise the father’s time with the children bearing in mind his significant violent past. 

21. In terms of the capacity to parent, again I reiterate my comments about the mother as a positive role model and meeting the needs of the children both their emotional and intellectual needs.  The father fails in both of these areas.  He has not availed himself of time to see the children at the Contact Centre when it was available to him which is more about him and his needs than those of the children.  In terms of the maturity, lifestyle and background, B is thirteen and a half.  I have had regard to his views.  C is eight.  They are being properly cared for, as I said earlier, by their mother.  In terms of the attitude to the child and responsibility of parenthood, I simply repeat the matters that I have alluded to earlier.

22. As to family violence, there is a long history of family violence which I have alluded to and I do not need to repeat it again.  I cannot and do not take the time to list the family violence order because it will add pages and pages to these reasons, but there is a long history of family violence orders and a long history of breaches of family violence orders and a long history of violence.  The mother is entitled to have these proceedings brought to an end.  To that end I intend to include in the broader parental responsibility orders permission for the mother to apply for a passport for both of the children and to enable the mother to allow the children to travel overseas on holidays without the necessity of having to engage the father again.  I do this because of the history of violence.  To put the mother in a position where she has to go and ask something of the father would be, in my view, totally unsatisfactory.

23. The father does not like paying child support and that is clear from the material that is there.  I have had regard to the extent to which he has failed to fulfil his duties as a parent since separation and the way the mother has fulfilled those duties in his absence.  In these reasons I have read and I include the written submissions.  I have included and adopt the written submissions of both the solicitor for the mother and the Independent Children’s Lawyer.  My first task is to consider whether there ought to be equal shared parental responsibility.  I do not have to consider that because it is so clear but I do, and in this case there is no real argument the parental responsibility should rest with the mother and that should include the responsibility for enabling the children to have a passport and travel overseas and to make all of the proper decision about their lives.  I then do not have to go on and make those normal considerations if there had been an order for equal shared parental responsibility.

24. In terms of where the children live, they have lived all of their lives with their mother.  They have been safe and secure in her care and that should continue and I will continue to make that order.  In terms of the children spending time with the father I make no order.  It was a matter where I had contemplated, notwithstanding the views of the parties, making a specific order that there be no time between the children and their father, however, I am conscious that these children, whilst they have significant and serious negative views of their father, still love him and still want to have a relationship with him but in their own way.  Their mother has indicated she will facilitate that in a way that is safe.  As such whilst I have misgivings in that regard, I will follow or adopt the suggestion of the mother.

25. The mother seeks specific injunctions restraining the father from communicating with her, the husband or the children, entering or loitering near their premises, deliberately attending any sporting premises where the children may be engaged, loitering near their school, distributing or publishing on the internet any information or photographs pertaining to the children.  Having regard to the history of this matter that order is appropriate.  The mother seeks an order that enables the school or school centre to provide information to each parent.  That seems sensible and I note the notation which I will make. 

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 October 2011.

Associate:

Date:              5 October 2011