LEWIS & WACKETT

[2010] FamCA 946

FAMILY COURT OF AUSTRALIA

LEWIS & WACKETT [2010] FamCA 946

FAMILY LAW – CHILDREN – Parental responsibility – Gross domestic violence perpetrated by the father – Risk of physical and emotional harm to the children –presumption of equal shared parenting rebutted – Mother to have sole parental responsibility for the children

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Mother seeks that final orders be made for the father to spend no time with the children – Mother’s proposal is supported by the Independent Children’s Lawyer – Orders made for the children to live with the mother and spend no time with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DAA, 65DAC, 65DAE, 65DA(2), 65D, 68B

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 42 Fam LR 531
McCall & Clark (2009) 41 Fam LR 483 at 509-510
U v U (2002) 211 CLR 238 at 285-286

APPLICANT: Mr Lewis

RESPONDENT: Ms Wackett

INDEPENDENT CHILDREN’S LAWYER: Ms Olsen, Boyd Olsen Lawyers

FILE NUMBER: NCC 2600 of 2008

DATE DELIVERED: 26 October 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 1 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Urach, Kelso's The Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Olsen, Boyd Olsen Lawyers

Orders

1. The mother shall have sole parental responsibility for the children E, born … November 2000, and R, born … February 2002, (“the children”).

2. The children shall live with the mother.

3. Each of the parties is restrained from causing or permitting the children to spend any time with father.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

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

6. All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.

7. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2600 of 2008

MR LEWIS

Applicant

And

MS WACKETT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders for two children born to the relationship between the applicant father and respondent mother.

2. The parties finally separated in August 2006 when the mother surreptitiously departed the family home with the children and went into hiding with them. Neither the mother nor the children have since had any interaction with the father.

3. The father commenced the proceedings over two years later in October 2008, seeking orders permitting the children to spend time with him. His application has always been staunchly defended by the mother.

4. Some months ago the father inexplicably lost interest in the proceedings. He failed to attend upon the single expert witness for consultation and ceased attending Court. The matter was therefore fixed for trial on an undefended basis.

5. The trial proceeded with only the mother and Independent Children’s Lawyer participating, and each proposed orders providing for the allocation of sole parental responsibility for the children to the mother, for the children to live with the mother, and for the children not to spend any time with the father.

Absence of the father

1. The father was legally represented from the time he initiated the proceedings on 14 October 2008 until his solicitors filed a Notice of Ceasing to Act on 22 July 2010.[1]

   [1] Notation A made on 19 August 2010

2. The father failed to attend his scheduled appointment with the single expert a week or so earlier on 12 July 2010.[2]

   [2] Single expert report, page 1

3. The father also failed to attend Court on 19 August 2010,[3] even though he was aware of that date because of his appearance and representation at the preceding Court event on 9 March 2010.

   [3] Notation A made on 19 August 2010

4. The father’s non-attendances on 12 July and 19 August 2010 remain unexplained.

5. Pursuant to an order made on 19 August 2010,[4] the mother served a copy of the orders made on that date upon the father at his last known address, disclosed in his former solicitor’s Notice of Ceasing to Act, which orders informed him of the trial date of 1 October 2010. The mother tendered a letter proving that service.[5]

   [4] Order 12

   [5] Exhibit M2

6. The mother also tendered a letter proving that she later served upon the father, at that same address, a sealed copy of the affidavit relied upon by the mother at the trial.[6]

   [6] Exhibit M3

7. The father failed to attend Court for the trial on 1 October 2010. I was satisfied that his absence was voluntary and that the litigation should proceed to final determination in his absence. That was the wish of both the mother and Independent Children’s Lawyer. The litigation has been pending for some two years and requires determination. The father’s decision to disengage from the litigation should not thwart that.

8. Although the father did not attend the trial fixed for 1 October 2010, he did attend Court on 22 January 2010, at which time his Parenting Questionnaire, filed on 22 December 2009, was admitted into evidence.[7] That was therefore the only evidence adduced in the proceedings by the father.

   [7] Exhibit F1

Proposal and evidence of the mother

1. The mother pressed for the orders set out within her Response filed on 16 April 2009. The effect of her proposal is that she should have sole parental responsibility for the children, they should live with her, and they should spend no time with the father. Although not expressed as a proposed order within her Response, it was implicit that the mother did not want the children to have any form of communication with the father.

2. In support of her proposal the mother relied upon:

   a)Her affidavit filed on 10 September 2010.

   b)Her Parenting Questionnaire filed on 9 December 2009.[8]

   c)The single expert report dated 30 July 2010 prepared by Dr N, psychiatrist.

   d)The Memorandum prepared by the Family Consultant on 30 July 2009.[9]

   e)A variety of documents tendered as exhibits.[10]

   [8] Exhibit M1

   [9] Exhibit ICL1

   [10] Exhibits M2-M8

Proposal and evidence of the Independent Children’s Lawyer

1. The proposal of the Independent Children’s Lawyer was entirely supportive of the mother’s proposal. The Independent Children’s Lawyer sought to make it plain that the proposed embargo upon the children spending time with the father was an injunctive order made by the Court under s 68B of the Family Law Act1975 (Cth) (“the Act”).

2. The Independent Children’s Lawyer also relied upon the evidence adduced by the mother, but additionally tendered various parts of an affidavit previously sworn and filed by the father in the proceedings.[11] In view of the father’s unavailability for cross examination, only those parts of the affidavit that met with the mother’s consent were tendered.[12]

   [11] Exhibits ICL2 and ICL3

   [12] Father’s affidavit filed 4 May 2009, pars 7-14 (Exhibit ICL2), 26-27 (Exhibit ICL3)

3. The Independent Children’s Lawyer did not require either the mother or the single expert for cross examination. Nor did the mother require the single expert for cross examination.

Brief history

1. The parties began their cohabitation in or about April 1998.[13] They had one or more separations,[14] but separated for the final time on 5 August 2006.[15]

   [13] Mother’s affidavit, par 3

   [14] Mother’s affidavit, par 4

   [15] Mother’s affidavit, par 8

2. Four children were born to their relationship. Those children were:[16]

   a)E, born in November 2000.

   b)R, born in February 2002.

   c)A and her twin, born in April 2003.

   [16] Mother’s affidavit, pars 9-11

3. A’s twin sister died only a day after her birth.[17]

   [17] Exhibit ICL1, page 4.1

4. In December 2005 A suffered a leg injury in suspicious circumstances. It seems that each of the parties blames the other for causing that injury. The child was removed from the parties’ care by the NSW Department of Human Services and placed into foster care and was ultimately adopted by other parents.[18]

   [18] Mother’s affidavit, pars 13-16; Single expert report, page 8.8

5. Consequently, only the two eldest children are the subject of these proceedings.

6. There is no dispute that the father acted violently towards the mother over a long period of time during their relationship. That violent conduct culminated in an incident on or about 2 August 2006 in which the father savagely assaulted the mother.[19] Within days of that incident the mother made good her escape from the father. The mother secretly departed the household with the children whilst the father slept,[20] and has lived with the children in hiding ever since.[21]

   [19] Mother’s affidavit, pars 40-42

   [20] Mother’s affidavit, pars 43-45

   [21] Mother’s affidavit, pars 46-47

Summary of parenting law

1. Parenting orders in respect of children are regulated under Part VII of the Act, and the meaning of a “parenting order” is defined (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in making such parenting orders as it thinks proper (s 65D).

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

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

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

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

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

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 42 Fam LR 531.

Best interests of the children – primary considerations

1. The children clearly have meaningful relationships with the mother. She has always been their primary carer. In fact she has been their sole carer since 5 August 2006. The single expert observed the children to interact positively with the mother,[22] to whom they are attached.[23] It is important that those relationships between the children and the mother are able to flourish. The children will clearly benefit from it.

   [22] Single expert report, page 2.9

   [23] Single expert report, page 9.3

2. Conversely, the children do not have meaningful relationships with the father at the present time. Their relationships with the father were severed on 5 August 2006 and they have had no interaction of any sort with him since that time.

3. The single expert noted that the children did not identify the father as part of their family group.[24] The single expert concluded that the children have come to reject the father and offers cogent reasons for that rejection.[25]

   [24] Single expert report, page 2.9

   [25] Single expert report, page 9.4

4. Even though the children may not now have meaningful relationships with the father, the inquiry postulated by s 60CC(2)(a) of the Act is whether the children will benefit from meaningful relationships with the father in the future (see McCall & Clark  (2009) 41 Fam LR 483 at 509-510).

5. Since there are no existing meaningful relationships between the children and the father to preserve, the real question is whether orders should be made to enable the children to recover the relationships they previously had with the father. Two factors bear critically upon that question in this case. Firstly, the father’s disengagement from the litigation, and secondly, the history of gross domestic violence.

6. It is apt to deal with the second factor at this point, as a primary consideration pursuant to s 60CC(2)(b) of the Act, and the first factor later in these reasons as an additional consideration.

7. The High Court has recognised as self-evidently true  that, apart from cases of abusive relationships, children benefit from the development of good relationships with both their parents (see U v U (2002) 211 CLR 238 at 285-286). The need to promote prospective meaningful relationships between the children and the father, as a deemed advantage to the children, must be balanced against the disadvantages such a strategy would likely bring. The risk posed to the children by the father springs from his long history of family violence, to which it is necessary to now turn.

8. The Independent Children’s Lawyer submitted that the evidence of violence in this case was at the extreme end of the spectrum. Given the father was imprisoned on two separate occasions for assaults committed upon the mother that submission seems sound. The father assaulted the mother regularly over the duration of their relationship. The father’s behaviour was seriously controlling. He even slept with the mother’s keys and documents of identification to prevent her escape from him.[26]

   [26] Single expert report, page 7.2

9. On 23 December 1998 the father assaulted the mother whilst she was pregnant. He dragged the mother out of and away from a motor vehicle, but was stopped by a police officer who intervened.[27] The father was charged with “assault” and was convicted of that offence. He was fined for the offence on 25 January 1999.[28]

   [27] Exhibit M5

   [28] Exhibit M4

10. In December 1999 the father assaulted the mother whilst she was pregnant to another man.[29] The circumstances of the incident are not elaborated by the mother or corroborated by any other evidence. Although the mother attributes the premature birth and consequent death of her foetus to that assault,[30] there is no expert evidence from which such nexus can properly be drawn.

    [29] Mother’s affidavit, par 24

    [30] Mother’s affidavit, par 24

11. Although the evidence literally proves two separate assaults in December 1998 and December 1999, it is possible there was really only one incident in December 1998 and there is a date error in the mother’s affidavit. The police records produced on subpoena confirming the occurrence of an incident in December 1998 are almost certainly accurate.

12. The suspicion about the mother erroneously attributing the incident in December 1998 to December 1999 arises from:

    a)Her timing of both events in December,

    b)The absence of any corroborative police or medical documents for an incident in December 1999, and

    c)The absence of information about what happened to any foetus following the December 1998 event, since the oldest child born to the mother was not born until November 2000, and the mother only explains the loss of her foetus from her pregnancy in December 1999.[31]

    [31] Single expert report, page 6.9; Mother’s affidavit, par 24

13. Conversely, there are some features of the evidence which suggest two separate events occurred, namely:

    a)The mother’s alleged pregnancy at both events. Her pregnancy in December 1998 is said to have been to the father,[32] and her pregnancy in December 1999 is said to have been to another man.[33] However, the mother also told the single expert that her first pregnancy was when she was aged 20 years[34] and she did not attain 20 years of age until July 1999, and

    b)The father does corroborate the timing of an incident between the parties in late 1999 or early 2000, at a time when the mother was pregnant to another man.[35]

    [32] Exhibit M5

    [33] Mother’s affidavit, par 24

    [34] Single expert report, page 6.9

    [35] Exhibit ICL2, par 7

14. It is really immaterial whether there were two separate assaults or only one, the magnitude of violence is harrowing even if it was a single incident. It is worse if there were two.

15. In the early hours of 1 October 2000 the father assaulted the mother in a public place. The mother must have been heavily pregnant at the time because she gave birth to the oldest child less than two months later. The father punched the mother numerous times in the head and dragged her to a nearby vehicle. Security officers intervened and the father threatened to stab them with a knife. The father then drove the mother away from the scene. Police were notified and they traced the vehicle to an address where they found the parties engaged in a loud argument. The mother was crying. Glass and furniture were seen strewn across the floor. Although she initially denied being assaulted, the mother told police of the assault the following day after she had safely sought refuge elsewhere. The police observed that the mother had injuries consistent with an assault. The mother was later admitted to hospital for about a week for treatment of her multiple injuries. The police detained the father nearby and he was charged with a series of offences, including assault upon the mother, driving whilst disqualified, and possession of illicit drugs.[36] For the offence of “assault” the father was convicted and sentenced to imprisonment for 12 months, with a non-parole period of 3 months.[37]

    [36] Exhibit M6; Mother’s affidavit, pars 27-32

    [37] Exhibit M4

16. The parties’ first child was born whilst the father was incarcerated, and they reconciled upon his release from custody.[38]

    [38] Mother’s affidavit, par 33

17. The father’s verbal and physical abuse of the mother continued following their reconciliation and the birth of their children.[39]

    [39] Mother’s affidavit, par 34-36

18. In July 2006 the father savagely beat and humiliated the mother. He punched her heavily in the face[40] and shaved her head.[41] He physically and sexually abused the mother on a daily basis at that time.[42]

    [40] Mother’s affidavit, par 37

    [41] Mother’s affidavit, par 38

    [42] Mother’s affidavit, par 39

1. The last violent incident occurred on 2 August 2006. The father hit the mother, threw a chair at her, repeatedly hit her with an iron bar, and tried to insert the iron bar into the mother’s anus.[43] Following the mother’s escape from the father some days later, she attended upon police to report the assault and make a statement in relation to the incident.[44] The father was charged on 8 August 2006 with the assault upon the mother. He was sentenced to imprisonment for 12 months with a non-parole period of 6 months. On appeal, his non-parole period was reduced from 6 months to 3 months.[45]

   [43] Mother’s affidavit, pars 40-42

   [44] Exhibit M7

   [45] Exhibit M4

2. Some months after the separation the mother inadvertently saw the father at a hotel. That occurred on 25 November 2006. Although the father did not assault her on that occasion she was intimidated by him. The police regarded the incident as a breach of an apprehended violence order earlier made to protect the mother from the father.[46] The father was charged on 6 December 2006 and later convicted for the breach of AVO. He was sentenced by being placed on a good behaviour bond for a period of 2 years.[47]

   [46] Exhibit M7

   [47] Exhibit M4

3. Although unchallenged, the mother’s evidence is corroborated in material respects by contemporaneous police and medical records. Even comments attributed to the paternal grandmother are corroborative of the mother’s evidence. The paternal grandmother reported to the NSW Probation and Parole Service in 2000 that the father was unstable because of drug use and that the paternal family refused to associate with the father because of it.[48]

   [48] Single expert report, page 9.8

4. Much of the father’s violent and abusive behaviour towards the mother occurred in the presence of the children.[49] There could be little doubt that they were psychologically damaged by what they saw and heard. There is no direct evidence of any link between the children’s aberrant behaviour and the family violence they witnessed, but an inference that they were seriously psychologically disturbed by the discord in the family household is available and attractive.

   [49] Mother’s affidavit, pars 20, 35-36

5. The mother found the eldest child bizarrely repeatedly banging his head against a wall shortly following the incident between the parties on 2 August 2006.[50] It was that observation that led the mother to decide that she must separate from the father without further delay,[51] although she had been planning the separation for some six months.[52] The youngest child has also exhibited violent behaviour by physically choking other children.[53] The aberrant behaviour has abated since the separation of the parties and the children’s participation in counselling in 2008.[54]

   [50] Mother’s affidavit, par 43

   [51] Mother’s affidavit, par 44

   [52] Single expert report, page 7.2

   [53] Single expert report, page 7.5

   [54] Mother’s affidavit, pars 60-61

6. The evidence of the single expert corroborates the mother’s evidence about the children’s awareness of the family violence. The eldest child related his experience of hearing the mother crying when she was hurt by the father, and his knowledge of the father having shaved the mother’s head.[55] The youngest child also related his experience of witnessing the father hit the mother.[56] Both children affected wariness of the father.[57] They have told a counsellor that they are prepared to run away from the father.[58]

   [55] Single expert report, page 3.3

   [56] Single expert report, page 5.3

   [57] Single expert report, pages 3-5

   [58] Mother’s affidavit, par 63

7. Although the father concedes his past family violence, he minimises it, which only serves to compound his apparent lack of contrition. He blames his assault upon the mother in 2000 on his reasonable irritation at the mother’s unreasonable behaviour, and limits his admission about his conduct to simply a concession that he hit the mother.[59] The father also disavows blame for the circumstances that led the police to apply for a family violence order against him for the protection of the mother.[60] He infers that the imposition of a family violence order against him was wholly unnecessary because of the mother’s wish for reconciliation.[61] The father also attributes his attack upon the mother in August 2006 to a psychological condition beyond his control and his drug dependence.[62] The father told a doctor whom he was consulting in 2007 that the mother had pushed and manipulated him to act the way he did.[63] The father also asserted to a Family Consultant at an earlier stage of the proceedings that the violence was nowhere near as bad as the mother alleges, and that he presented no future risk at all because he was no longer using drugs.[64]

   [59] Exhibit ICL2, par 9

   [60] Exhibit ICL2, par 11

   [61] Exhibit ICL2, pars 12-14

   [62] Exhibit ICL3, pars 26-27

   [63] Single expert report, page 10.1

   [64] Single expert report, page 10.3; Exhibit ICL1, page 5.5

8. I do not accept the veracity of the father’s simplistic deduction that because he no longer consumes illicit drugs, of which there is no corroborative evidence anyway, he is no longer prone to the commission of violence. His past history of savage assaults upon the mother and other anti-social behaviour[65] over more than a decade is indicative of a more ingrained problem than can be so simply explained or solved. By his own admission, the father partly attributes his violent conduct to a condition he describes as “post traumatic stress syndrome and depression”,[66] but there is only scant evidence before the Court of him receiving any appropriate therapy or treatment to overcome that condition.[67] 

   [65] Exhibit M4

   [66] Exhibit ICL2, par 27

   [67] Single expert report, page 9.7

9. Even as recently as 19 September 2009, which post-dates the father’s evidence to the effect he has overcome his past problems,[68] the father was venomously abusive to the mother. He was able to ascertain her previously secret mobile telephone number and send her a text message saying “I want to see my kids you whore.”[69]

   [68] Exhibit ICL3

   [69] Mother’s affidavit, par 57; Single expert report, page 8.2

10. The single expert takes the view that the children should have no personal interaction with the father at all until the father can prove his stabilised psychiatric condition, abstinence from alcohol and illicit drugs, and genuine contrition for his appalling violence.[70] I am in complete agreement.

    [70] Single expert report, pages 10.6, 11.2

11. I accept the mother’s submission to the effect that the risk of harm to the children arising from their association with the father is presently too great to permit them to spend any time with him. At the very least, they are at an unacceptable risk of psychological harm through exposure to his commission of violence towards other adults. That consideration currently outweighs any benefit that might accrue to the children from re-establishing a meaningful relationship with the father.

Best interests of the children – additional considerations

1. The children uniformly expressed adverse comments about the father to the single expert. They clearly wish to have nothing to do with him. They do not want to see him and asked that their wishes be communicated to the Court.[71] It is possible that those views have been impressed upon them, either accidentally or deliberately by the mother, but the single expert concludes that the children’s views have been formed through their own experiences of parental conflict, the stability they have enjoyed since the parental separation, and their anxiety about the violent tendencies of the father.[72]

   [71] Single expert report, pages 3-5

   [72] Single expert report, page 10.4

2. The children are both still relatively young. They do not have the maturity for their views to carry significant weight, but some weight should still be attached to their views.

3. The nature of the children’s relationships with the parties has already been addressed as a primary consideration under s 60CC(2)(a) of the Act. Their relationships with all members of the paternal family are lacking. The mother’s evidence that the children did not even meet members of the father’s family of origin during the parties’ relationship is uncontradicted.[73] Nor have they had any contact with the paternal family since the parties’ separation in August 2006. The mother believes that the paternal family has disowned her[74] and implicitly the children. The father acknowledges the lack of interaction between the children and paternal family.[75] The isolation of the children from the paternal family is therefore not a new phenomenon, nor something which is due entirely to the mother.

   [73] Single expert report, pages 2.4, 6.5

   [74] Single expert report, page 6.5

   [75] Exhibit F1, par 28

4. The mother is simply unable and quite unwilling to facilitate any relationship at all between the children and the father. She is genuinely fearful that the father will harm her or the children if he finds them. Her fear is at least partially due to the father telling her in the past that he would kill her if she separated from him.[76] She honestly believes the father is capable of hurting the children as a way of seeking revenge against her.[77] The mother’s fear is palpable. She is acutely anxious and exhibits physical symptoms of fear, such as shaking, nausea, sleeplessness, dryness of the mouth, and diarrhoea.[78]

   [76] Mother’s affidavit, par 47

   [77] Mother’s affidavit, par 64

   [78] Single expert report, pages 6.3, 8.2; Mother’s affidavit, par 65

5. In light of the evidence of the father’s grossly violent treatment of the mother, and her obviously honestly held fear of him, the mother’s unwillingness to countenance any relationship between the children and the father is understandable. In the circumstances, the mother’s attitude is not unreasonable and should not attract criticism.

6. It seems that the mother’s apprehension of the father is reciprocal, at least to some extent. The father asserts feeling uncomfortable being in the same room as the mother.[79]

   [79] Exhibit F1, par 16

7. The parties are plainly wary of one another, even after the elapse of more than four years since separation and an absence of contact between them. It is plausible that the father’s decision to retire from participation in the litigation manifests his recognition of the disadvantages that his attempts to re-engage with the children hold for the children and the parties. Even if that is not the reason for the father’s withdrawal from the proceedings, it is still impossible to formulate any strategy for future interaction between the children and him without any indication that he will commit to implementation of any such strategy.

8. The children are considered by the single expert to be “at risk of developing significant psychopathology because of their early years growing in an abusive, chaotic home, without access to external remediating and enriching experiences.”[80] Ensuring their stability therefore assumes enormous importance because that is the method by which the children’s emotional health will best be preserved. Their stability would be threatened by re-introducing the father to their lives.

   [80] Single expert report, page 9.1

9. The mother has a proven ability to provide for the children’s physical, emotional and intellectual needs. The father does not.

10. The single expert described the mother as a person who “presented as committed to parenting her sons and is managing reasonably well in most domains.”[81] However, the single expert also acknowledged how vulnerable she remains to mental and physical ill health, which could compromise her parenting capacity if it eventuates.[82] The most serious threat to the mother’s parenting capacity is posed by compelling her to ensure the resumption of interaction between the children and the father without unambiguous evidence that the father is reformed.[83] There is no such evidence of the father’s reformation. That is a consideration of substantial weight.

    [81] Single expert report, page 10.7

    [82] Single expert report, page 10.9

    [83] Single expert report, page 11.1

11. The mother’s attitude to the children and the responsibilities of parenthood are satisfactory if one accepts, as I do, the genuineness of the mother’s fears about the father’s propensity for violence.

12. There is a family violence order still in existence binding the father’s behaviour for the protection of the mother.[84] The order was made by the Local Court of NSW on 12 June 2009 for a period of two years, although the mother erroneously asserted that the order was made on 12 June 2010.[85] It is a final order which was not contested by the father. The order records that the father was not present in court when the order was made.

    [84] Exhibit M8

    [85] Mother’s affidavit, par 56

13. Neither party identifies themselves or the children as Indigenous Australian.

14. The parenting orders set out in these reasons entail no change to the circumstances which have now prevailed for over four years, in which event the factors proscribed by ss 60CC(3)(d) and 60CC(3)(e) of the Act are irrelevant. In all likelihood, preservation of the status quo at the request of both the mother and Independent Children’s Lawyer, in the face of the father’s voluntary disengagement from the litigation, means that the orders made are least likely to lead to the institution of further proceedings.

Parenting orders

1. Parental responsibility for the children must be allocated solely to the mother. She has been discharging that role satisfactorily for the last four years. In any event, there is no practicable alternative. In the absence of the father, it is the order that meets with the consent of both the mother and Independent Children’s Lawyer.

2. Since there is no allocation of equal shared parental responsibility to the parties, there is no obligation cast upon the Court to consider the residential options of the children living with the parties for equal time, or alternatively, living with the mother and spending substantial and significant time with the father. Neither of those outcomes would serve the children’s best interests.

3. The children must continue to live with the mother. Even when he was participating in the litigation, the father did not challenge the appropriateness of the children continuing to live predominantly with the mother. The contest was always about the circumstances under which the children would spend time with the father, if at all.

4. For reasons canvassed, the children’s best interests require that they continue to spend no time with the father. An injunction is made, consistently with the orders proposed by both the mother and Independent Children’s Lawyer, which precludes the children from spending time with the father.

5. In the absence of either the mother or the Independent Children’s Lawyer seeking an injunction precluding the children from communicating with the father, no such injunction is made. The decision about whether the children communicate with the father in the future, either orally or in writing, is a decision for the mother as an incident of her sole parental responsibility for the children.

6. I am satisfied that the orders set out at the commencement of these reasons are reflective of the children’s best interests.

I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 October 2010.

Associate: 

Date:  26 October 2010