LINDFIELD & ROMANO

[2021] FamCA 158

FAMILY COURT OF AUSTRALIA

LINDFIELD & ROMANO [2021] FamCA 158

FAMILY LAW – PARENTING – Where the parties agreed to final parenting orders in 2016 – Where all parties agree earlier orders should be discharged or varied – Where the mother and Independent Children’s Lawyer seek sole parental responsibility for the mother and for the children to live with her – Where the father believes the mother has alienated the children – Where the children presently reside with the mother – Where the children have not seen the father for over five years – Where there is a history of severe parental conflict – Where there is a history of family violence – Where the father has strong sense of grievance, and anger, but limited insight into his own conduct – Where presumption of equal shared parental responsibility does not apply or has been rebutted.

FAMILY LAW – PRACTICE AND PROCEDURE – Where order made for the application of s 102NA of the Family Law Act 1975 (Cth) – Where the father obtained legal representation for a limited period – Where legal representation ceased to act prior to final hearing – Where the father given ample warning of the consequences of self-representation – Where the father sought adjournment to obtain further legal representation – Adjournment refused – Where the father unable to cross examine the mother – Where the mother’s evidence generally accepted as unchallenged.

Evidence Act 1995 (NSW) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 60CG, 61C, 61DA, 65D, 65DAA, 65DAB, 102NA

Amador v Amador (2009) 43 Fam LR 268
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
B & B (1993) FLC 92-357
Bondelmonte v  Bondelmonte (2017) 259 CLR 662
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (1998) 197 CLR 172
Champness v Hanson (2009) FLC 93-407
Cox v Pedrana (2013) FLC 93-537
Gillard & Gillard [2015] FamCAFC 169
Godfrey v Sanders (2007) 208 FLR 287
Goode & Goode (2006) FLC 93-286
In the Marriage of A (1998) FLC 92-800
Jollie & Dysart [2014] FamCAFC 149
Johnson & Page  (2007) FLC 93-344
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405
Morse & Duarte (2017) 58 Fam LR 131
M v M (1988) 166 CLR 69
MRRv GR (2010) 240 CLR 461
M v S (2007) FLC 93-313
Napier v Hepburn; (2006) FLC ¶93-303
N & S and the Separate Representative (1996) FLC 92-655
Potter & Potter ((2007) FLC 93-326
Rice & Asplund (1979) FLC 90-725
R & R  (2000) FLC 93-000
Sigley & Evor (2011) 44 Fam LR 439
Stott & Holgar [2017] FamCAFC 152
Tibb & Sheean (2018) 58 Fam LR 351

APPLICANT: Mr Lindfield

RESPONDENT: Ms Romano

INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

FILE NUMBER: SYC 5523 of 2010

DATE DELIVERED: 25 March 2021

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 21 - 24 September 2020

REPRESENTATION

THE APPLICANT IN PERSON: Mr Lindfield

COUNSEL FOR THE RESPONDENT: Mr Macarounas of Counsel

SOLICITOR FOR THE RESPONDENT: Rowlandson & Co Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Conte-Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

Orders

1. That all previous parenting orders be discharged.

2. That the mother have sole parental responsibility for the children X (born … 2003) and Y (born … 2009).

3. That the children live with their mother.

4. That the father is restrained from coming into direct contact with the mother or the children, either in person or by any means of communication.

5. That the father is restrained from coming within 300 meters of the residence of the mother, her place of employment or any educational facility or place of employment of the children.

6. That the mother is authorised, without the necessity of the father’s knowledge, permission or signature to apply for (including renewal of) a passport for the children.

7. That the mother shall retain the children’s passports in her possession and control.

8. The Court requests that the Australian Federal Police remove the name of the children from the PACE alert system (Airport Watchlist) at all points of international arrivals and departures in Australia.

9. If any party seeks an order for costs, an appropriate application to the Court may be made within twenty-eight (28) days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.

THE COURT NOTES THAT:

1. Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5523 of 2010

Mr Lindfield

Applicant

And

Ms Romano

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings between the applicant, Mr Lindfield (“the father”) and the respondent, Ms Romano (“the mother”). I note that the father used the surname “Romano” in some of his Court documents, and “Lindfield” in others.  I understand he prefers “Lindfield”.  For clarity, I will simply refer to the applicant as “the father”.  The parties have three children, only two of whom are still young enough to fall within the jurisdiction of the Court; X, born in 2003, and Y, born in 2009 (collectively, “the children”).  Their third child, Ms W, was born in 2001 and is now 19 years old.

2. Central to the dispute was whether the father should spend any time with the children.  The father proposed orders for X to spend time with him as per her wishes, and for Y to spend time with him in growing increments, eventually leading to Y living with him and spending alternate weekends with the mother.  The mother, who was broadly supported in her proposal by the Independent Children’s Lawyer (“ICL”), sought sole parental responsibility, and proposed specific injunctions which would prevent the father communicating with, or spending time with, either of the children.

3. This has been a difficult matter to determine. For the reasons which follow, I have decided that the mother should have sole parental responsibility and no orders should be made for either X or Y to spend time with the father.  In relation to Y, I realise this will be a source of grave disappointment for the father; as explained later in these reasons, he already holds a strong sense of grievance and he wants a loving relationship with his son.  However, the best interests of X and Y are the paramount consideration.  I am fully aware that my proposed final orders have significant implications for Y.  In order to be satisfied that his arguments have been done full justice, and the position of Y has been conscientiously weighed, I have carefully considered the father’s evidence, and reflected on his position and the position of Y.  This, together with the lack of resources in the Court and the multiple claims on judicial time, has delayed the delivery of judgment.

Background

1. The husband was born in 1966, and is currently self-employed as a tradesperson at a company called B Company.

2. The wife was born in 1971, and is presently working as an educator.

3. The parties married in 2000, and separated in or around August 2009.  As described above, there are three children of the relationship.

4. The mother claims that the father demonstrated coercive and controlling behaviour during the relationship, which extended to verbal and physical abuse on occasion.  On the mother’s evidence, this behaviour extended past the parties’ separation, and has continued to be a significant issue.

5. The parties continued to live under one roof for a time following separation.

6. On 1 September 2010, the mother filed an Initiating Application in this Court seeking both parenting and financial relief (“the previous proceedings”).  Interim orders were made in relation to the children which provided for the father to spend unsupervised day-time with Y, who was only one year old when proceedings were commenced, as well as overnight time with both Ms W and X.

7. In addition, interim orders were made allowing the mother to relocate with the children out of the former matrimonial home and to Suburb C in order to live with her mother, Ms D, and her step-father.

8. The parties finalised these proceedings by way of Consent Orders (“the previous orders”) on 22 March 2012.

9. The previous orders provided for the children to live with the mother, and for the father’s time with the children to gradually increase overtime, until they were spending each alternate weekend from 5.00 pm Friday until the commencement of school the following Monday with the father.  These orders additionally provided for the parties to have equal shared parental responsibility.

10. A number of concerning disputes arose following the previous orders, leading to the breakdown of such orders.  The father has now not spent time with the children since February 2016.

Procedural History

1. The father commenced the current proceedings on 6 June 2016, by filing an Initiating Application.

2. The parties attended upon Family Consultant Ms E for the preparation of a Child Responsive Program Memorandum in 2016 (“the Memorandum”).

3. Following the release of the Memorandum, as well as a contested interim hearing, orders were made on 20 December 2016, until further order, varying the previous orders by giving the mother sole parental responsibility, requiring her to give notice of any relocation and permitting travel.  Otherwise the previous orders for the father to spend time with the children remained in effect.   These orders continue to remain in effect, notwithstanding they have not been followed for some time due to the circumstances outlined later in these reasons.

4. In January 2020, the Family Consultant met with the parties to produce a further report pursuant to Court orders.  The father’s interview was terminated early by the Family Consultant as a result of what she believed to be aggressive and intimidating behaviour, discussed further below.  The Family Consultant produced a Family Report on 14 February 2020 (“the Family Report”).

5. Trial directions were made by me on 27 February 2020. On the same day, I made a notation that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) would apply to any cross-examination occurring in these proceedings.  I expressly advised the parties that neither may cross-examine the other personally, and that any cross-examination would only be conducted by a legal practitioner acting on behalf of that party.

6. At the time the notation was made, the father was self-represented.  After 27 February 2020 he was on notice of the need to obtain representation, either privately or through the Legal Aid NSW funding scheme, if he wanted cross-examination to form part of his case against the mother.  I am satisfied that he had the opportunity to do so.  

7. He did in fact obtain representation, evidenced by a Notice of Address for Service filed on 5 July 2020.  Unfortunately, the father’s legal representative later filed a Notice of Ceasing to Act on 27 August 2020.

8. The matter thereafter came before me on 7 September 2020 for a Compliance Check, where I once again noted the application of s 102NA of the Act. The father was explicitly advised that he must urgently take necessary steps to obtain representation for the trial listed to commence 21 September 2020 if he wanted cross-examination of the mother to form any part of his case. I further made it clear that the trial would not be adjourned except in exceptional circumstances.

9. The trial commenced before me on 21 September 2020 via Microsoft Teams, with the evidence concluding on 24 September 2020.  The father remained self-represented, and therefore was unable to cross-examine the mother.

10. On the first morning of trial, I allowed the father to make submissions in relation to the cross-examination prohibition and his inability to cross-examine the mother. He suggested that he required more time to find representation. He suggested that s 102NA of the Act should not apply in a virtual courtroom.

11. Both the mother and the ICL resisted the father being granted more time.  They both emphasised that the parties have been in the Family Court since 2010, and that it was in the children’s best interests for the ongoing litigation to be finalised.  Moreover, they were in agreement that the father had been given ample notice and opportunity to engage a legal representative.

12. I was satisfied the trial should proceed. The father had been given clear guidance by the Court about the consequences of failing to have representation. He was given ample opportunity to obtain representation, and, as pointed out, did have representation which he lost before the trial. Whilst I took account of the prejudice to him of continuing the final hearing unrepresented, I had no doubt that this was outweighed by the need to act in the best interest of the children as the paramount consideration and the need to apply the principles set out in s 69XN of the Act, especially the duty to conduct the proceedings without undue delay and with as little formality, and legal technicality and form, as possible. I also took account of case management considerations, having regard to the large number of other cases and litigants in the Court, who also require judicial time. Any adjournment to enable the father to attempt to find legal representation would result in a waste of Court time and necessarily require the allocation of further Court time, which could not then be allocated to other cases. The history of the matter also demonstrated that even if the father was granted additional time, there could be no guarantee he would either find further representation or hold it for a final hearing.

Issues in dispute

1. At the commencement of the trial, the father accepted that the proceedings would primarily focus on Y, as Ms W is now an adult and X will be 18 years old in mid-2021.

2. By the conclusion of the trial, it was apparent that the dispute in relation to Y was wide.  Both parties argued that Y should live with them, and that they should have sole parental responsibility.

3. Additionally, notwithstanding her age, there continued to be a dispute surrounding whether or not there should be restraints put in place to prevent the father from contacting X, or for that matter Y, all together.

4. Determination of these issues will be informed by the following further issues in dispute;

   a)whether the father poses an unacceptable risk of harm to the children;

   b)whether there was family violence perpetrated by the father, and the extent of that family violence;

   c)the capacity of either parent, particularly the father, to support and encourage an ongoing relationship with the other parent;

   d)the capacity of the father to parent;

   e)the effect of any order for the children to spent time with or live with the father, considering their expressed views; and

   f)the capacity of both parties to communicate appropriately with the other in relation to the children.

5. Despite the previous orders, no party contended there was an issue concerning the application of the principles in Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570. The Court has power under s 65D(2) to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.

Proposals

1. By his Initiating Application, the father sought a discharge of the previous orders, that he have sole parental responsibility of all three children, that the children live with him and otherwise that they spend five nights per fortnight with the mother.  Any change to these proposed orders by the father was not clearly articulated prior to trial, as no case outline was provided by him or on his behalf.  In response to questions at the outset of the trial, he accepted that X should only spend time with him according to her wishes, but he made it clear that he sought an order that Y live with him and spend time with the mother each alternate weekend.  Although the exact progression was not specified, the father broadly indicated that he sought a re-introduction of time with Y, and increasing periods with him, eventually leading to Y living with him by Christmas 2020; that is, from 21 September to 25 December 2020, over a period of about three months.  He made no submissions on parental responsibility or in relation to holiday time.

2. As set out in her case outline filed 18 September 2020, the mother sought the following orders:

   1.That all parenting Orders in this matter be discharged.

   2.That the respondent have sole parental responsibility for the children of the marriage, namely: -

   a.2.1.      X born in 2003 (“X”); and

   b.2.2.     Y born in 2009 (“Y”).

   (“collectively the children”).

   3.That the children live with the respondent.

   4.That the applicant be restrained from approaching or communicating with the respondent or the children in any way whatsoever unless otherwise ordered by this Honourable Court.

   5.That the applicant be restrained from approaching or contacting the children’s school, university, TAFE or any other institution they attend in accordance pursuant to section 68B of the Family Law Act 1975.

   6.That the respondent be authorised without the necessity for the written consent of the applicant to apply for the issue of a passport for the children.

   7.The Court requests that the Australian Federal Police remove the name of the children from the Airport Watch List at all points of international arrivals and departures in Australia.

   8.That pursuant to Section 65DA (2) and Section 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 the parties adjust to and comply with an order are set out in the Facts Sheet attached hereto and these particulars are included in these orders.

   9.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the defaulting party and to do all things necessary to give validity to such deed, document or instrument upon receipt of Affidavit evidence of such refusal or failure.

   10.That the ICL within 7 days deliver the children’s passports to the respondent or her nominee and thereafter, the children’s passports remain with the respondent.

   11.That the applicant pay the respondent’s costs of and incidental to these proceedings.

3. As set out in the case outline emailed to Chambers on 18 September 2020, the ICL proposed the following orders:

   1.That all previous parenting orders be discharged.

   2.That the mother have sole parental responsibility for the children X (born in 2003) and Y (born in 2009).

   3.That the children live with their mother.

   4.That the father is restrained from coming into direct contact with the mother or the children, either in person or by any means of communication.

   5.That the father is restrained from coming within 300 meters of the residence of the mother, her place of employment or any educational facility or place of employment of the children.

   6.That the mother is authorised, without the necessity of the father’s knowledge, permission or signature to apply for (including renewal of) a passport for the children.

   7.That the mother shall retain the children’s passports in her possession and control.

   8.The Court requests that the Australian Federal Police remove the name of the children from the PACE alert system (Airport Watchlist) at all points of international arrivals and departures in Australia.

Evidence

1. The father relies upon the following documents:

   a)His Initiating Application filed 6 June 2016;

   b)His Affidavit filed on 19 August 2020, despite the fact it has not been provided in the appropriate form;

   c)His Affidavit sworn 28 March 2017 and file the same day, which was attached to the above mentioned Affidavit at annexure “A”; and

   d)His Affidavit emailed to Chambers on 21 September 2020, again despite the fact it has not been provided in the appropriate form nor properly filed.

2. The father’s evidence was disordered and confusing. I have considered it carefully, to understand it as best I could.

3. The father was required for cross-examination by both the mother and the ICL, and appeared via Microsoft Teams.

4. Included in the father’s tender material was an unsigned, undated four page statement, apparently from his mother, about the events of February 2016. This document was marked “Annexure B” and was emailed to the court on 21 September 2020. It is unclear what it is an annexure to, but it was received into evidence as part of Exhibit A. Despite its unusual provenance and manner of receipt, I have taken account of this evidence, bearing in mind the provisions of Division 12A of Part VII of the Act.

5. At early stages of the hearing there was some suggestion that the father would also rely on the evidence of his new partner, despite the fact that she had not filed an affidavit.  Ultimately, the father called no other evidence from any witnesses.

6. The mother relied on the following documents:

   a)Her Response to the Initiating Application filed 22 September 2016;

   b)Her Notice of Risk filed 22 September 2016;

   c)Her Affidavit sworn and filed 1 September 2020;

   d)The Affidavit of her mother, Ms D, sworn and filed 1 September 2020;

   e)The Memorandum by the Family Consultant; and

   f)The Family Report by the Family Consultant.

7. The mother was required for cross-examination by the ICL. She appeared via Microsoft Teams.  For the reasons previously articulated, the father was unable to cross-examine the mother.

8. One important consequence of the prohibition on the father cross-examining the mother was that almost all of her evidence was unchallenged.

9. Additionally, the father required the maternal grandmother for cross-examination.  She also presented via Microsoft Teams.

10. Ms E was required by the ICL and the father, and presented for cross-examination on the final day of trial.

11. The following documents were otherwise received into evidence:

Exhibit Label	Document	Tendered by
A	The father’s Tender Bundle emailed to the Court on 21 September 2020 (including what he marks Annex A, B & C)	The father
B	Facebook posts from the maternal grandmother, emailed to the Court on 23 September 2020	The father
1	The mother’s Tender Bundle (including the additional pages – an addendum and better copy of pages 101 – 104)	The mother
2	The mother’s Tender Bundle marked M1 & M2 as emailed on 21 September 2020, as well as further copied documents produced on subpoena by NSW Police as emailed on 23 September 2020	The mother
ICL1	The Memorandum prepared by Family Consultant Ms E, titled “Child and Family Meeting Memorandum” and dated 18 October 2016 (the Memorandum)	The ICL
ICL2	The Family Report prepared by Family Consultant Ms E, titled “Family Report” and dated 14 February 2020 (the Family Report)	The ICL

Expert evidence

1. Ms E’s Family Report, marked Exhibit “ICL2”, was based, as described by Ms E, on the material filed by the parties in the proceedings, the previous Child and Family Meeting Memorandum (the Memorandum), some documents produced on subpoena, and the interviews conducted, as set out at the commencement of her report.  Ms E recorded the observations made by her as a result of conducting interviews with the parties, as well as Ms W, X and Y.  In addition, she was able to observe Ms W, X and Y interacting with the mother.

2. It is important to note that the father’s interview with the Family Consultant was severely truncated.  Although he attended the Family Consultant’s office with his new partner, Ms F, and commenced the interview, the Family Consultant made the decision to terminate the interview early.  This was as a result of her view that “it would be unproductive and inappropriate to continue the interview” as the father’s attitude was “intimidating, with an unnerving intensity to his manner”: (the Family Report, pg. 14 [39]).

3. As a result, the Family Consultant was unable to observe the father with the children. It should be emphasised however that the father had the opportunity to engage with Ms E and the process to produce her report. He must take responsibility for his decision not to exploit this opportunity fully.

4. I will refer to the content of both the Family Report and Memorandum as necessary during the course of these reasons.

Family Report Recommendations

1. In her Family Report, Ms E made recommendations in paragraphs 81 - 88 of her report to the following effect:

   a)that the mother have sole parental responsibility;

   b)that the children live with the mother;

   c)that no order be made for X to spend time with or have contact with the father;

   d)that, if the Court determines that there would be a possible risk to Y or the mother in ordering time with the father, there be no order made for Y to spend time with or have contact with the father;

   e)that, if no order is made for the children to spend time with the father, there be an order restraining the father from coming into direct contact with the children or within 300 metres of their respective university, college, school or future place of employment; and

   f)that the father be restrained by injunction from coming into direct contact with the mother, or within 300 metres of her place of employment.

2. I note that Ms E was unable to make any recommendations in relation to Y’s time with the father if the Court determined that there was no risk to him spending time with the father. 

3. I also note here that it was clear the father held a strong antipathy towards Ms E.  In his cross-examination he made clear that he thought she was a liar, who had made deliberately false assertions about him in her report.

The Children

X

1. X is the middle child of the family, and is presently 17 years old.  She will turn 18 years old in 2021.

2. The mother details in her affidavit the struggles experienced by X over the years, which, according to her, may have been present as a result of the family violence, behaviours of the father and the broader family law dispute.

3. She describes X as having previously exhibited anxious behaviours since 2013, and frequently expressing the she did not want to spend time with the father.  As a result of this behaviour, X attended upon a psychologist for ten visits, however this did not improve her condition according to the mother (the mother’s affidavit filed 1 September 2020, pg. 7 [70]-[72]).

4. The mother claims that from 2015, X’s academic progress started to deteriorate.  She additionally showed little interest in her extra-curricular activities and broadly appeared to struggle socially (the mother’s affidavit filed 1 September 2020, pg. 8 [76]).

5. By January 2016, X had started attending upon a second psychologist, with her visits continuing from January to September of that year (the mother’s affidavit filed 1 September 2020, pg. 8 [80]-[81]).  These sessions coincided with the February 2016 incident described below, as well as the cessation of X’s time with the father.

6. Following 2016, the mother has described X as “less anxious, less distressed and more interested in school” (the mother’s affidavit filed 1 September 2020, pg. 8 [86]).  According to the reports exhibited to the mother’s affidavit, her academic progress showed some modest improvement.

7. This assessment of X is broadly consistent with the observations of the Family Consultant in both 2016 and more recently in 2020.

8. In the Memorandum, the Family Consultant made the following observations;

   X became very teary in interview and it would appear that the protracted Court proceedings and intractable conflict between her parents is having a significant impact on her.  She informed the family consultant that she is currently seeing a psychologist, which she finds very helpful (the Memorandum, pg. 4 [16]).

9. In contrast, by 2020, the Family Consultant described X as “bright, articulate and friendly… with a good sense of humour” (the Family Report, pg. 18 [60]).  She was able to articulate her strong views on the matter, and seemed comfortable speaking to the Family Consultant.

Y

1. Y is the youngest child of the family, and is presently 11 years old.  He attends G School, and is generally doing well.  He plays soccer as an extra-curricular activity. 

2. Y was very young when the parties separated, therefore has been the subject of Court proceedings for almost the entirety of his life.

3. Although he has experienced anxiety and has attended psychologists, similarly to X, the mother describes him as a broadly happy child.  His school reports for 2019 and Semester 1, 2020 describe Y as friendly, and a child “who enjoys socialising with his peers” (Exhibit 1, pg. 134).  He is making sound progress at school.  His school reports commend him for “his growing progress in making sensible choices” (Exhibit 1, pg. 134).

4. According to the Family Consultant’s Memorandum, Y was a “happy and friendly little boy” (the Memorandum, pg. 5 [21]).  He could not ever recall living with the father, and remembered certain negative events involving the father.  In her Family Report, the Family Consultant described Y as “quietly spoken, friendly, bright and polite” (the Family Report, pg. 16 [52]).

5. It seems clear that Y has developed a stable and happy disposition while under the sole care of the mother.

The father’s evidence

1. The father presented as a person of strong opinion.  In his evidence and submissions he said he had a right as a parent to see his children.  He held a strong conviction in his desire to spend time with the children.  His oral evidence and submissions were marked by an irascible tone, and numerous suggestions of a strong sense of grievance, particularly in relation to the mother, the maternal grandmother and the Court.  As indicated through the course of these reasons, I have been unable to accept much of his evidence, particularly about events involving allegations of family violence.

The mother’s evidence

1. The mother presented as a sensible and frank witness whose evidence I generally accept. She was cross-examined by counsel for the ICL and impressed me as a credible witness.

Relevant Law

Legislative framework

1. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.[1]

   [1] There is no relevant parenting plan so s 65DAB of the Act does not apply.

2. Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.

3. The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence: s 61DA(2) of the Act. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have equal shared parental responsibility: s 61DA(4) of the Act.

4. The Full Court pointed out in Cox v Pedrana (2013) FLC 93-537; (2013) 48 FamLR 651; [2013] FamCAFC 48 (“Cox v Pedrana”) at [19] (following MRRv GR (2010) 240 CLR 461; (2010) 42 Fam LR 531; [2010] HCA 4 at [7]), if the presumption is not to apply or is rebutted, the relevant findings need to be made by reference to ss 61DA(2) or (4). Such findings will ordinarily be made in the course of, or informed by, conclusions as to the best interests of the children, reached by an assessment of the considerations set forth in s 60CC(2) and (3).

5. In addition, as the decision in Goode & Goode (2006) FLC 93-286; (2006) 36 Fam LR 422; (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”) makes clear, even if the presumption is not applied or is rebutted, the Court must make such orders as it deems are in the best interests of the child, as a result of consideration of one or more of the factors set out in s 60CC of the Act.

6. Before expressing a concluded view about equal shared parental responsibility, it is therefore not only desirable but necessary to consider the best interests of the children.

7. I turn then to the best interests of the children. This discussion will focus on X and Y primarily.

Best interests of the child

1. The best interests of a child are the paramount consideration: s 60CA of the Act. They are to be determined by an examination of the considerations as set out in s 60CC of the Act.

2. Consideration of each statutory factor in s 60CC is mandatory, but express discussion is not: Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 at [49]; Tibb & Sheean (2018) 58 Fam LR 351; (2018) 337 FLR 149; [2018] FamCAFC 142; (“Tibb & Sheean”) at [84].  The proposals of the parties, their evidence, and the manner in which they have run their case will largely determine what requires discussion: Tibb & Sheean at [87].

Primary considerations

1. In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which 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.

2. In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s 60CC(2A) of the Act).

Section 60CC(2)(a); “meaningful relationship”

1. As to s 60CC(2)(a), the Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 endorsed a number of earlier judicial statements of interpretation:

   a)A “meaningful relationship” is one which is “important, significant and valuable to the child”:  Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 and McCall v Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92 (“McCall”);

   e)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall at [118]-[119];

   f)Depending on the factual circumstances “the present relationship approach” may be relevant, requiring the Court to examine the evidence “of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which finding will be reflected in the orders ultimately made”; however, it is not the preferred approach since s 60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons, and application of the present relationship approach would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall at [118]-[119]; and

   g)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2007) FLC 93-313; (2006) 37 Fam LR 32; [2006] FamCA 1408; Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102; Champness v Hanson (2009) FLC 93-407; [2009] FamCAFC 96.

2. There was no dispute that the children have a meaningful relationship with the mother from which they benefit.

3. The evidence makes clear that neither X nor Y presently has a relationship with their father. They have not spent time with him since 2016. The evidence discussed below under s 60CC(2)(b), to which I am required to give greater weight, also makes plain that they fear him, with such fear based on reasonable grounds.

4. X’s age means there is little point in the Court considering any orders seeking to reintroduce a relationship between her and the father.  The Court cannot be satisfied that there would now be any benefit to X from a meaningful relationship with her father, even if a relationship could be established through orders of the Court.  As pointed out, the father did not press for orders regarding X.  If she wishes to re-engage with her father in the future, she is old enough to take such steps as she wishes to do so.

5. I accept that the legislation seeks to promote a relationship with each parent, but this position yields to the particular circumstances of a case. Y is much younger than X. I have reflected on the possibility that there may be some benefit to Y from orders which were directed to re-establishing a meaningful relationship with his father; but in light of the discussion of the evidence under s 60CC(2)(b), and the additional factors under s 60CC(3), I find on balance that I cannot be satisfied Y would benefit from a prospective relationship with his father.

Section 60CC(2)(b); “abuse” and “family violence”

1. A Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse: M v M (1988) 166 CLR 69; (1988) FLC 91-979; (1988) 12 Fam LR 606; [1988] HCA 68 (“M v M”).

2. Section 60CG requires the Court to ensure that, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, a parenting order does not expose a person to an unacceptable risk of family violence.

3. The terms “abuse” and “family violence” are relevantly defined in ss 4 and 4AB(1) of the Act as follows:

   abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b)      …

   (c)      causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

   … family violence 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.

4. S 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:

   (a)      an assault; or

   (b)      a sexual assault or other sexually abusive behaviour; or

   (c)      stalking; or

   (d)      repeated derogatory taunts; or

   (e)      intentionally damaging or destroying property; or

   (f)       intentionally causing death or injury to an animal; or

   (g)      unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)      unreasonably withholding financial support needed to meet the 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; or

   (i)       preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)       unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

5. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence: s 4AB(3). The Act provides in s 4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:

   (a)      overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)      seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c)      comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d)      cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e)      being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

1. The authorities make clear that the question of risk is addressed by a consideration of what has happened in the past to identify the nature of a risk, and an assessment of the likelihood of the risk being realised in the future.

2. The High Court and the Full Court have made clear that findings about abuse, violence or risk are subservient and ancillary to the Court's determination of what is in the best interests of the child.  Different evidentiary considerations may apply in relation to determining an allegation of unacceptable risk as opposed to determining whether a serious abusive, violent or criminal act has occurred: Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”); see also s 140 of the Evidence Act 1995 (NSW) (“the Evidence Act”).  Thus findings about the occurrence of violence or abuse may need proof to a higher standard than findings about the existence of an unacceptable risk, although the two may be interrelated: M v M at [76]; Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196; at [94]-[96]. Where a positive finding of abuse cannot be made in accordance with the Briginshaw standard (or the standard in s 140 of the Evidence Act), this does not preclude a finding of unacceptable risk of future harm: Morse & Duarte (2017) 58 Fam LR 131; [2017] FamCA 1039 at [540].

3. In Napier v Hepburn; (2006) FLC ¶93-303; (2007) 36 Fam LR 395; [2006] FamCA 1316 at [84], and [91], the Full Court said:

   [84] There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring.  This is not a search for a solution that will eliminate any prospect of serious harm.  It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.

   …

   [91] That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future.  Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated....

4. In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court said:

   We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter ((2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).

5. More recently in Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198 (“Bant”), the Full Court succinctly stated the law as follows at [38] to [40]:

   [38] In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. ... courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   [39] It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

   [40] The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (CDJ v VAJ”) at 218:

   151. ...Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. ...

6. In Bant at [51] the Full Court also made clear that the conclusion of the existence and magnitude of a risk should be based on all of the facts and circumstances, and it would not be proper to “atomise” the evidence by analysing each fact or circumstance to see whether that particular fact would support the conclusion of risk.  Rather, a conclusion of risk is formed by a consideration of all aspects, taking into account the necessary elements of prediction and assumptions about the future to which the Court spoke in CDJ v VAJ.

7. The evidence concerning risk and family violence in this matter comes primarily from the mother.  As already pointed out, the father’s evidence was disordered; it did not address in clear detail most of what the mother said.  The mother’s evidence was also unchallenged by him in cross-examination, because of the father’s failure to secure legal representation for the trial, as already discussed.  Overall, the evidence discloses a history of behaviour in the nature of family violence between 2009 and 2019. It is unnecessary to rehearse all of this evidence; some relevant examples will suffice.

Family Violence Perpetrated Against the mother

1. The mother claims that the father demonstrated coercive and controlling behaviour during the relationship, which extended to verbal and physical abuse on occasion.  On the mother’s evidence, this behaviour extended past the parties’ separation, and has continued to be a significant issue.

2. The parties separated in 2009.  They continued to live under one roof following separation.  This did not alleviate any tension between them.  On 31 May 2010, a final ADVO was made against the father arising from events which occurred on 12 August 2009, when there was a violent confrontation between the father and the mother.  According to the statement of grounds accompanying the application for the ADVO, the incident arose - in part at least - from the involvement of the maternal grandmother in the domestic lives of the parties.  The grounds of the application state the father was angry and said to the mother “[e]very time your mother has been here you’ve been a fucking bitch” (Exhibit 1, pg. 52).  He continued to yell, both at the children and the mother.  The mother then returned to the kitchen, and the father wedged her against the kitchen bench and used his right elbow to hit her right shoulder.  The father then said to the mother that if she contacted the police her life “would not be worth living” (Exhibit 1, pg. 52). Upon observing the mother crying, the father said “[y]ou’ve got to be joking” (Exhibit 1, pg. 52).

3. The mother gave evidence that on 4 May 2011, in the course of another angry exchange about the father feeding Y, not yet two years old at the time, the father said to the mother “[w]hat do you care. You will not be around much longer to look after [the children]”.  This incident lead to the police making an application to extend the ADVO.

4. After the mother commenced the previous proceedings in September 2010, and following her relocation to Suburb C with the children, which, as already mentioned, took place pursuant to Court orders, a particularly concerning incident occurred between the parties on 9 January 2012 (“the January 2012 incident”).  On this occasion, a dispute developed between the parties when the father attended the mother’s rental accommodation claiming to have the right to take Y into his care overnight.  At the time, the Court orders only provided for the father to have day-time with Y, and did not provide for the father to spend time with him on 9 January 2012, although the father disputed this throughout the final hearing.  I do not accept his version.  The mother gave evidence that, when she challenged the father’s right to take Y, he pushed her out of the way.  This caused considerable distress to Ms W and X.  The father then said words to the effect of “I’m taking Y. Move out of my fucking way” (the mother’s affidavit filed 1 September 2020, pg. 11 [128]).

5. There was no dispute that the father took Y from the mother’s home, and retained him for a period of six nights.  He was supposed to take the girls, but did not.  The police were called but did not stop the father taking Y.  The parties then exchanged text messages, with the father agreeing to return Y to the mother’s care if she brought the girls to him.  The mother and her father, Mr H, went to the father’s home with the girls.  The father then refused to bring Y out.  The father pressed the mother against her car holding her left arm.  Mr H tried to intervene, but the father grabbed and held him by the wrists.  Ms W and X were greatly distressed and crying.  The mother contacted police, who applied for further AVO but lost the paperwork.  The mother also made Application to this Court for a recovery order.  Y was eventually returned on 15 January 2012.

6. The mother gave evidence that after the previous orders were made, the father regularly failed to adhere to them, returning the children late. The mother felt helpless.

7. The mother alleges that instances of family violence continued to occur, including verbally abusive text messages.

8. On 18 January 2013, when the mother delivered the children to the father’s brother’s house, the agreed changeover location, the father blocked her exit from the driveway by parking his vehicle behind hers.  When the mother, in fear, attempt to escape by driving across a lawn to a neighbour’s driveway, the father used his vehicle to block this exit too.  He said to the mother words to the effect of “I will get you, you fucking bitch” and “I will fix you, don’t you worry” (the mother’s affidavit filed 1 September 2020, pg. 14 [175]).  The mother was able to leave by accelerating towards the neighbour’s driveway.  The mother was very fearful.

9. On 15 February 2013, at the same changeover location, the father drove at the mother’s vehicle along the nature strip until his vehicle was almost touching her driver’s side door.  The children had left the mother’s car and were walking on the driveway.  The father shouted at the mother “I’ll fucking neck ya” whilst making a gesture indicating cutting the throat.  Ms W and X were, again, very distressed.

10. The mother sought police help on 15 February 2013.  A further AVO Application was listed before the Suburb Q Local Court on 3 June 2013.  The mother did not press this AVO because she feared the effect it would have on the father and his treatment of the children.

11. Additionally, during March 2013, the father sent a series of hostile and aggressive text messages to the mother (the mother’s affidavit filed 1 September 2020, pg.  15-16 [185]-[194]).

The Father Retaining Y

1. Following the previous orders, there were further occasions where the father retained Y contrary to the orders.  For example, this included retaining Y from 8 May 2013 until 15 May 2013, which in turn resulted in him being away from the mother on Monday’s Day.

2. On 11 or 12 May 2013, the parties had an email exchange about Mother’s Day, in which each made accusations against the other.  The mother wanted Y to spend time with her on Mother’s Day.  The then Court orders provided that if Mother’s Day fell on a weekend where the children were in the care of the father, the father’s time ceased at 9.00 on that day.  This did not happen.  The father called the mother a“snake”, referring to “the thing that you have done in past” and then messaged: “[l]ook in the mirror and think what you have done to your children” and “[l]ook in the mirror and you stop thinking up new reasons for me not to see my kids you evil little bitch”, to which the mother replied:

   What are u (sic) on about. The kids are there as per orders. No one has said or done anything. I put up with your conspiracy theories for over 10 years. Enough.” (the mother’s affidavit filed 1 September 2020, pg. 17 [199]).

3. I am satisfied the father should not have withheld Y on Mother’s Day.

4. The father also retained Y on his fourth birthday in 2013.  I emphasise that Y was very young on these occasions.

5. On 12 August 2013 when the father returned the children to the mother’s home, after the girls left his vehicle he yelled at the mother and drove off with Y still in the car, and not strapped into his car seat properly. Y was screaming “Mummy” (the mother’s affidavit filed 1 September 2020, pg. 18 [210]).  The mother reported the incident to the police and contacted lawyers to file a fresh Initiating Application, which ultimately she did not do out of fear of the father.

6. In another text exchange on 10 September 2014, the father said “Don’t worry you smart arse…You will never be able to drop your guard” (the mother’s affidavit filed 1 September 2020, pg. 21 [230]). When the mother asked “Why r u (sic) threatening me?” the father replied “It’s not a threat you nut case it’s a promise!!! Just wait I will get my chance” (the mother’s affidavit filed 1 September 2020, pg. 21 [230]).

The Impact on the Children

1. There were incidents in 2014 in which the children were exposed to aggressive and abusive conduct by the father. On one occasion the father shouted at the maternal grandmother at Y’s play group, after which Y said “I don’t want go” to playgroup again (the mother’s affidavit filed 1 September 2020, pg. 19 [222]).  On another occasion, the father refused to take the children to the C Festival where X was going to sing.  The father said in text messages that he did not “give a rat’s arse about the C Festival nor did [he] give X permission to sing at that bloody event anyway” (the mother’s affidavit filed 1 September 2020, pg. 19 [225]).  The father seemed to interpret the situation as, in his mind, yet another attempt by the mother to derail his time with the children.  He was not apparently at all focussed on what the children wanted or what would be in their best interests.  When the mother complained about the father’s abuse, the father replied “[w]hat abuse do you get from me you nut case”, without apparent irony (the mother’s affidavit filed 1 September 2020, pg. 19 [225]).

2. Following the making of the previous orders, the mother observed changes in the children.  In particular, she described both Ms W and X as “increasingly anxious” in the periods before, as well as after, their time with the father.

3. According to the mother, the children became increasingly distressed in relation to their time with the father, often claiming to be ill or refusing to attend.

4. By 2015, specific concerns were raised in relation to Ms W and her mental health.  She made specific disclosures to her GP of self-harm, and it was recommended that she attend upon a counsellor.  This behaviour continued throughout 2015, and resulted in a referral to Mr J psychologist in January 2016.

5. By February 2016, all three children had attended consultations with Mr J.

6. The mother gave evidence, which I accept, that by late 2015 Y was exhibiting considerable anxiety about going to his father’s house.  This drove him at times to attend the sick bay at school on the days he was supposed to go into his father’s care.

The February 2016 incident

1. Unfortunately, conflict between the parents further heightened on 21 February 2016 following a particularly concerning incident involving X in particular, although Y was present also (“the February 2016 incident”).

2. 21 February 2016 was a Sunday.  Y and X were spending time with the father for the weekend.  On either parties’ case, X repeatedly requested that the father return her to the mother despite the fact the weekend fell on the father’s time with the children.  X sent a number of concerning messages to the mother, including “HELP … I’m not ok … JUST ANYONE I NEED HELP”, and “Help …  Help, help, help, help …  Dad’s crazy … Mum” (Exhibit 1, pg. 123–125).  The mother called for the Police, who attended the father’s home to conduct a welfare check.

3. The details of what took place at this welfare check were disputed.  There was a violent interaction between the police and the father; it was undisputed that the events lead to the Police physically restraining the father in the presence of the children, as well as the paternal grandmother, in the father’s home.  X would have been twelve years old at the time, and Y would have been 6 years old.  The father was arrested.  The children were taken by the Police and returned to the mother’s care. 

4. The police records show that when the police got to the father’s house, they could hear a young child screaming and yelling out for help, and that the father was aggressive and affected by alcohol, and he shouted at them.  The record says one of the police said “I am not going anywhere.  You are intoxicated and your child has fears.  I will be taking the children to their mother and applying for an Apprehended Violence Order” (Exhibit 2, pg. 37 of the bundle provided on 23 September 2020).  The father resisted arrest and a violent altercation ensued

5. Under cross-examination by counsel for the ICL, the father said X sent the messages (above at [119]) because “she was made to make them by her mother” (Transcript of Proceedings of 22 September 2020, pg. 5 line 22).  He said he did nothing to precipitate X’s messages.  He asserted that the mother planned with X for this to happen prior to the children going to the father’s home for the weekend.  The suggested purpose of this ruse was to stop the father finding out that the mother had changed the children’s school.  The father contended that the mother wanted to stop him finding this out because she knew he was going to see the headmaster of the children’s previous school to explain why X was often late when in his care.

6. The father accepted in cross-examination that X had asked several times to go home to the mother’s house so she could get ready for school on Monday, because she feared a detention if she was late again.  He agreed X went to her room, and began messaging her mother.  The father then tried to take her phone.  He said in cross-examination “I could take it off her if I please” (Transcript of Proceedings of 22 September 2020, pg. 17 line 16).  X then locked herself in the room, crying.

7. The father said in his oral evidence that one of the policemen “pushed [him] onto the ground, three of them jumped on top of [him].  They tried to choke [him].  They bent [his] arms behind [his] back and they dragged [him[ and they threw [him] in a paddy wagon” (Transcript of Proceedings of 22 September 2020, pg. 12 lines 15-17).  His mother’s four page statement records the following:

   I WALKED UP THE HALL TOWARDS MY GRANDCHILDREN, TURNED MY HEAD BACK TOWARDS [THE FATHER] AND SEEN SGT. K ON TOP OF [THE FATHER] ON THE FLOOR. I SCREAMED "GET OFF HIM". NEXT CAME A THUNDERING SOUND WHICH WAS 2 POUCEMEN RUNNING UP THE HALL AND IT WAS AN HORRIFIC SIGHT, THE CHILDREN WERE TRAUMATISED, I COULD NOT SEE [THE FATHER], I TURNED TOWARDS THE CHILDREN AGAIN AND I HEARD SGT. K SAY "STOP HER" TO CONSTABLE L WHO WORE SPECTACLES, HE PUSHED ME BACKWARDS WITH BOTH HIS HANDS, I STUMBLED BUT I DID NOT FALL. I THEN BEGAN TO LOOK FOR [THE FATHER] AS I COULD NOT SEE HIM, I HAD MY MOBILE IN MY HAND. IT WAS A SEA OF NAVY, STILL COULD NOT SEE [THE FATHER]. THEN I SAW HIS FACE PUSHED INTO THE FLOORBOARDS AND I COULD SEE HIM TRYING TO LIFT HIS HEAD OFF THE FLOORBOARDS AND HIS MOUTH WAS TRYING TO SUCK IN AIR. HE WAS IN A CHOKE HOLD AND COULD NOT BREATHE, I BECAME HYSTERICAL AND WHILST LOOKING AT [THE FATHER] I DIALLED TRIPLE ZERO AND KEPT YELLING OUT, 3 POLICEMEN ARE BASHING MY SON, 3 POLICEMEN ARE BASHING MY SON. I KEPT TRYING TO DIRECT TRIPLE ZERO TO THE ADDRESS.

1. According to the father, and his mother, he was an innocent man assaulted for no reason by police in his own home, after an illegal entry.  He refused to accept he was violent in any way.  He maintained that the police records are both incorrect and utterly fabricated.

2. It was also put to the father that during the fracas, the paternal grandmother took X by the wrist and said “it is all your fault” to her. The father initially rejected this as an outright lie by X, who was said to be lying at her mother’s bidding.  This response was surprising, not credible and appeared to be almost a reflexive negative rejoinder to something the father believed was adverse to his case.  It is recorded in the notes of Mr J, the psychologist, as something X conveyed to him.  More importantly, the paternal grandmother, in her four page statement, marked “Annexure B” which forms part of Exhibit A, states herself that she said “it is all your fault” to X.  When this was put to the father he conceded the words were said by his mother, but quibbled about whether his mother took or grabbed X by the wrist.

3. Both the police report and the paternal grandmother in her four page statement state that the father made reference to the ethnicity of one of the policemen, mentioning something about how Arabic men treat women, in an angry raised tone.  The father conceded this in cross-examination.  He accepted this was intended as a racial slur.  Importantly, it was plainly made in the presence of the children.

4. In his affidavit filed 21 September 2020 the father said at paragraph 82:

   I myself am still to this day extremely traumatised by the events and brutal treatment of myself and my mother by the NSW Police on that day. So I can understand why my children would also still be traumatised and frightened of the police. This was premeditated by the Respondent mother that X was under strict instruction from her mother and grandmother Ms D that was put on X to carry out that day.

5. The father in his final submissions concentrated on the events of the February 2016 incident.  He maintained that the mother, in league with X, caused the situation because she did not want the father to find out the mother had changed, or had decided to change, the children’s school without telling him.  It was clear the father did not know this at the time, rather he said he found this out later.  He relied on an enrolment form dated 3 March 2016, which was not tendered but was cross-examined on, and a statement from the current school principal that two-weeks’ notice was required to leave his school.  From this, the father reasoned that the decision to change schools must have been made two weeks before 3 March 2016.  But, the mother gave evidence which showed the decision to change schools was made after the February 2016 incident, and, partly at least, as a result of it.  The children had become fearful of their father attending their school.  I am satisfied the father is likely to have drawn inferences which were consistent with his view of the mother as malign and devious, rather than reflecting the truth of the situation.

6. I am unable to accept father’s evidence about the events on 21 February 2016.  To do so would require finding not only that the mother and X conspired prior to that weekend, but also that the police, for some unexplained reason, violently arrested him for no reason, and fabricated their records of the events.  This is implausible and I reject it.  The evidence of the paternal grandmother must be treated with caution.  It appears partisan on its face, and was presented in a way which precluded proper testing.  Nonetheless, as pointed out above, it is in places inconsistent with the father’s evidence and more consistent with the police record.  There can be no doubt that the children were forced to witness a very distressing and violent incident in the father’s home.  The evidence leaves no doubt that they were traumatised.  The father’s conviction that the events of 21 February 2021 were all the result of a premeditated plan between X and the mother is more consistent with a predisposition on the father’s part to ignore his own conduct and resolutely put blame on the mother, and impute to her a level of guile and deceit which is not supported by any evidence and which is inherently improbable.

7. I accept that on 21 February 2021, the father was likely to have been intoxicated, behaved in an aggressive dysregulated way, which caused X and Y considerable distress and resulted in his arrest by police.

8. On application by the police, an interim AVO was ordered for the protection of X and Y on 24 February 2016 at the Suburb R Local Court. This was made final for six months on a without admissions basis by consent on 24 August 2016.

9. The father has not spent time with the children since the February 2016 incident. He has only seen them on two occasions, in 2018 and 2019, when he attended at their school.  On each occasion the approach caused fear to the children.

Recent Incidents

1. On Y’s birthday in 2018, the maternal grandmother and X attended G School to collect Y.  The father attended as well.  He attempted to entice Y to go with him by saying he had a present for him.  The father began yelling at the maternal grandmother, saying “they’re my kids you fucking bitch”, and at X, saying “X, this is your fault. You’re a bitch. Look at what you’ve done” (the affidavit of Ms D filed 1 September 2020, pg. 3 [7]).  The children were very scared by this behaviour.  In cross-examination, the father denied saying “fucking bitch”.  He denied ever saying to X it was her “fault”.  However, he agreed he asked X for an apology for what happened at the February 2016 incident.  His evidence was: “[a]ll I said to X was, “You owe me an apology”, and she screamed, “I am happy, Dad”, crying, “I’m sorry, Dad”.  That’s what she said to me” (Transcript of Proceedings of 22 September 2020, pg. 23 lines 18-19).  The father said the apology was required because he was assaulted by the police at the February 2016 incident, and, as already pointed out, the father believed it was X’s fault.

2. This was the first dialogue between the father and X since February 2016.  He said in cross-examination that he thought it was appropriate to ask for an apology, and he would do it again if he had his time over. He said he did not see “anything wrong” with that at all.  When asked by counsel for the ICL whether he thought X might have been crying because she was scared of him, the father said “No, I don’t think it would have frightened X.  No.  That’s silly”.  It was clear the father could not conceive that turning up at Y’s school unannounced, and calling his daughter a “bitch” while asking for an apology for events almost two and half years earlier as the first verbal interaction in that time could have been alarming or intimidating.

3. The mother gave evidence that as recently as 21 June 2019, the father appeared in his work vehicle when the mother and the maternal grandmother were collecting Y and X.  X became fearful.  The father abused the maternal grandmother, calling her a “fucking cunt bitch” (the mother’s affidavit filed 1 September 2020, pg. 37 [435]. This was witnessed by Y and X, together with passing school children and parents. The father disputed this, arguing that if it were true there would be affidavits from other parents. I do not accept this. Either parent could have called evidence from other parents who saw the incident in question. The father called no witness to dispute the mother’s version, which, as already pointed out, was unchallenged in cross-examination.

4. On 15 September 2019, after the mother and the children had spent the day at the boat races, she observed the father idling his motor vehicle outside her home, with his window down staring at the mother.  When asked if he thought this behaviour would frighten X, the father said “I didn’t drive repeatedly around the block or park outside the home, but I have driven past half a dozen times; that is correct” (Transcript of Proceedings of 22 September 2020, pg. 73 lines 39-40)  When asked if he accepted that X had firmly stated she wanted no contact with her father, not even supervised time, the father said “…if X feels that way, she could easily tell me”, and she “could have been coached to say that” (Transcript of Proceedings of 22 September 2020, pg. 74). When asked if he thought X may feel that way because of his behaviour towards, and in front of, her, he responded “Absolutely not” ” (Transcript of Proceedings of 22 September 2020, pg. 74 line 26).

Conclusion and Assessment

1. It was clear to me that the father did not have any insight into his own behaviour or its effect upon the children.  I am also satisfied that the father is prone to angry outbursts, and at times has been unable to confine his behaviour within appropriate boundaries.  This has caused distress to all the children, and particularly Y who has witnessed frightening and violent behaviour by his father.  I am also satisfied that the father has been intoxicated at times in the past when the children have been in his care.

2. The intractable high conflict between these parents has been evident since 2012.  In her Memorandum, at paragraph 33, Ms E observed:

   The main issues affecting the children in this dispute appear to be the same that were identified in 2012 in the family report written by Family Consultant, Ms N, and the child dispute conference memorandum written by Family Consultant, Ms O. There appears to be intractable conflict between [the father] and [the mother]. Each parent continues to accuse the other of being abusive and [the father] continues to accuse [the mother] of attempting to disrupt his relationship with the children, who appear to be aware of the conflict between their parents’ (sic).

3. In Ms E’s Memorandum in 2016, she made the following observations of Y at paragraphs 22 and 23:

   Y said that he used to spend time with [the father] every second weekend but that he no longer sees him. When asked why he has not spent time with [the father], Y said that this was because "He's [Mr Lindfield] angry and mean and says rude words". He informed the family consultant "Sometimes I've felt scared and sad when I've been with him [Mr Lindfield]". Y recalled an incident when he was smacked and chastised by [the father] for not finishing his lunch. He did not raise any concerns about his safety or care when with [the mother].

   During an activity aimed at ascertaining his thoughts about his parents, Y described his mother as "happy because she's nice and fun and plays horses with me on the trampoline". He described his father as "always angry and only sometimes he isn't".

4. At paragraph 30, Ms E said the following about the father:

   In interview [the father] was extremely frustrated and at times his demeanour was aggressive. For example, he often raised his voice and he was observed to point at and wag his finger at the family consultant. At times he made insolent and angry statements and it was necessary to prompt him to remain calm. [The father] reacted badly to the news that the children did not wish to see him on the day of the interviews and, after leaving the family consultant's office, he was observed to seek out [the mother] and the children, who were waiting in the reception area, raise his voice and say, "Don't you worry, Daddy still loves you. Don't worry what they say". The children were unfortunately left shaken and upset and they were observed to comfort one another afterwards. When [the father] returned to the Court to receive feedback following the children's interviews, the family consultant was instructed by management to arrange for Court security officer's to be present and the senior family consultant was also present during the final interview. Unfortunately, [the father] was in a highly aroused state and incapable of taking on board any feedback at that time. He left the interview abruptly stating that he intended to make a complaint.

5. She further commented at paragraph 34:

   [The father] is extremely frustrated about the parenting dispute. He believes that [the mother] is preventing him from having a relationship with the children. The family consultant attempted to encourage [the father] to engage in counselling or seek support from a group, such as 'P Program', however, [the father] said that he was not interested in doing so.

6. The unfortunate interaction at the interviews in 2020 with Ms E is relevant.  It satisfies me that the father carries considerable unresolved anger about the children and the Court.  Ms E also described him as having a passive aggressive presentation.

7. On cross-examination, Ms E gave evidence that the documentary material reviewed by her showed behaviours:

   …paralleled very closely, are congruent with what we would see in typical behaviours of perpetrators of a controlling behaviour – family violence, coercive controlling family violence.  They’re quite skilled, manipulated.  They really don’t recognise their own behaviour.  They don’t tend to have insight into that because they generally are very deficient in empathy and remorse and so they tend to do things like blame the Court for their lost relationship, blame their partner for their lost relationship and tend to have a very, sort of, patriarchal world view, very rigid, gendered ideas... (Transcript of Proceedings of 24 August 2020, pg. 4 lines 30-37)

8. Further, in answers to questions from counsel for the ICL, Ms E said such individuals “very often…have a very limited capacity for emotional regulations and…can appear quite stable to family and friends” (Transcript of Proceedings of 24 September 2020, pg. 5 lines 38–45).

9. I am satisfied that the father has engaged in coercive and controlling behaviour over a long period, which constitutes family violence.  This took place between 2009 and February 2016, and continued after February 2016.  Through his angry demeanour, limited capacity for emotional regulation, past propensity to paranoid interpretations of the mother’s motives and actions, violent behaviour and episodes when he became intoxicated while caring for the children, the father has presented a risk of psychological harm to the children in the past.  

10. I understand that the father perceives the mother to be controlling, and to have connived against his rights as a parent for many years. I am unable to find this perception has any secure basis. The Act is structured around the rights of children, and the responsibilities of parents. It appears the father’s perceptions are a product of his inability to understand this and his inability to focus clearly on the best interests of the children, rather than entering constant conflict with the mother to vindicate his own understanding of parental rights.

11. It is true that much of the evidence discussed above about family violence pertains more directly to X than Y.  It is possible the father may interact differently with Y.  I accept that in his own way the father probably loves Y and wants to be in his life.  But the father’s behaviour towards X is no doubt the source of Y’s present views about, and fear of, his father.  Moreover, the evidence discussed under this primary consideration (s 60CC(2)(b) shows that in trying to bring Y into his life, the father has repeatedly acted in a coercive and aggressive fashion, keeping Y contrary to Court orders and being abusive towards the mother in this regard.  His presentation and demeanour is more likely than not to present a risk to Y, if Y lived with him or spent unsupervised time with him.  I accept there would be a risk of psychological harm to Y through fear of his father.  The intractable conflict between the parents is also a risk factor for Y.  I am persuaded that the Court should ensure its orders, as far as possible, minimise the likelihood of Y being exposed to it any further. I consider these risks to be unacceptable.

12. I give weight to this consideration.

Additional considerations

1. The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:

(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;

1. As has been pointed out, X and Y have expressed clear and strong views that they do not wish to see or spend time with their father.  Their views are an important consideration in this matter.

2. In R & R (2000) FLC 93-000; (2000) 25 Fam LR 712; [2000] FamCA 43, the Full Court of the Family Court of Australia said at [54]:

   There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.

3. In Bondelmonte v  Bondelmonte (2017) 259 CLR 662; (2017) 341 ALR 179; [2017] HCA 8 (“Bondelmonte”) the High Court said at [34]:

   In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child [something approaching a decisive] weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.

4. A trial judge is obliged to consider the weight which should be given to any stated views in the circumstances of a given case: Gillard & Gillard [2015] FamCAFC 169 at [81]. The High Court of Australia also said in Bondelmonte at [35]:

   ... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.

5. According to the Family Consultant, the children expressed specific views during their meetings with her.

6. X in particular was able to recount a number of concerning incidents involving the father.  When asked whether she was able to recall any positive events, she suggested that any positive time with the father had been overshadowed by “his abuse” (the Family Report, pg. 20 [64]).  Following this discussion, X told the Family Consultant that “she would ‘rather die’ than have a relationship and spend time with [the father]”, and would “never” follow any such order forcing her to do so (the Family Report, pg. 20 [64]).

7. I note that these views are broadly consistent with her views expressed to the Family Consultant in the Memorandum in 2016, where she expressed the firm desire to have “no contact with [the father] under any circumstances; even not supervised” (the Memorandum, pg. 4 [19]).

8. Y has also recently expressed the view that he should not spend time with the father.

9. When asked to describe the father, Y used the words “angry” and “mean”, which contrasted heavily to his positive description of the mother (the Family Report, pg. 18 [58]).  He also described similar incidents as X concerning his father.

10. When asked whether he had any good ideas about time with the father, he said “he does not wish to spend time with [the father]”, further claiming he would “run away” if orders were made for time (the Family Report, pg. 18 [59]).  Although he said he would “consider” accepting letters from the father, he was clear that “he could not perceive having a relationship with [the father] at any time in the future” (the Family Report, pg. 18 [59]).

11. According to the mother, the children’s views are clear.  She argues that X’s views in particular should be given significant weight due to her age, whilst Y’s views should be given some weight in the context of the strength of his views, his age and the fact that his views are otherwise supported by the evidence.

1. The ICL made similar arguments in relation to the weight placed of the views of the children.  The ICL further argued that these negative views of the father were based on the children’s own lived experiences with him.

2. The father, however, disagrees.  His evidence about the children’s views was contradictory; when asked by counsel for the mother whether he accepted that the children have expressed the view that they do not want to spend time with him, he said he did not, because he has given them “no reason” to adopt such views. 

3. The father goes further in his Affidavit emailed to the Court on 21 September 2020, claiming that he believes X would be feeling “remorseful and partly responsible” for the February 2016 incident (pg. 8 [384]).  I understood this evidence to mean that X’s views were result of parental coaching by the mother, and her remorse showed that she did not really hold such views, or at least not as strongly as claimed.  He claimed that the evidence given by the Family Consultant and by the mother was fabricated in relation to Y and his alleged views.  In his affidavit emailed on 21 September 2020 at [97] he says “I do not believe Y would be saying that he doesn't want to see me. I would think it more he [feels] the lasting effect of the brutal police behaviour [on 21 February 2016]. And there is constant degrading criticism by the respondent and her mother Ms D that would be leaving an impression on Y.” However, he also stressed that Y is young and of an “impressionable age” therefore “would [be] easily influenced” by his older sisters (pg. 8 [385]), suggesting Y’s views were not fabricated but the result of influence from his sisters.

4. The fact that X and Y both hold the same broadly consistent views could, as the father argues, be consistent with the children influencing each other.   But the evidence of the Family Report also shows, all the children have independent negative memories of their father.  The evidence of the mother, which I accept, shows the children have been exposed to aspects of his behaviour which would justify the views they hold.

5. The children have been in the mother’s care without influence from the father since February 2016.  The mother gave evidence that she fears the father and says “I cannot be in the same room or in the vicinity of him” (the mother’s Affidavit filed 1 September 2020, pg. 38 [452]).  Their views may have been formed partly under the influence of the mother, in the sense they have witnessed her distress over many years in the face of the father’s conduct, distress to which they have been very sensitive, because their mother is the one parent who has provided stable support and love over the same period, and to whom they are attached.

6. However, the behaviour of the father, as discussed in these reasons, in my view is likely to have been a more significant factor in the formation of the children’s views about him and spending time with him. Their fears of him find a reasonable basis in the evidence. I have found above under s 60CC(2)(b) that the father engaged in abusive and aggressive behaviour towards the mother, the maternal grandmother and in front of the children. I accept they fear him, and this is mostly the result of their lived experience of his conduct. I do not accept the evidence establishes that the mother has deliberately alienated the children from the father, or that the children’s views reflect this. He has himself been the primary architect of the children’s views about him.

7. Consequently, I do not accept that the views of X or Y are fabricated.  I accept that X and Y hold the sincere view that they do not wish to spend time with their father.

8. I give weight to the views and X and Y.

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

(i) each of the child's parents;

1. The mother argues that she has a close, warm and loving relationship with X and Y.  The observations of the children with her, recorded by Ms E, supported this view.  I accept this is correct.

2. In contrast, both the mother and ICL argue that the father’s relationship with X and Y, to the extent there is any relationship, is a negative one, evidenced by their views discussed above under s 60CC(3)(a), and their consistent position that they do not wish to have a relationship with him.

3. The father, on the other hand, maintains that he has not given the children any reason to think poorly of him, or to be fearful of him.  As a result, he continues to suggest that there is no negative relationship between himself and the children, and that any issue has arisen as a result of the mother unilaterally preventing a relationship from being established or continued.

4. I accept the submissions of the mother and the ICL.  I find that X and Y have no positive relationship with their father.  The father’s perception of his relationship with X and Y is not consistent with the evidence.  Again, it betrays a marked lack of insight.

5. I should add that I am satisfied that the father has sincere affection for his children, although his relationship with the girls is clearly very compromised. I also accept the father believes he loves his son and should be able to provide a strong male role model for him. However, as the evidence discussed under s 60CC(2)(b) makes clear, the father’s attempts to parent Y have been consistently undermined by his own conduct and an embedded inability to apply insight to his own behaviour.

6. I give weight to this factor.

1. and other persons (including any grandparent or other relative of the child);

1. The mother submitted that the children have a positive and significant relationship with the maternal grandmother.  Both the mother and maternal grandmother gave evidence of the maternal grandmother’s role in the children’s lives; it is clear that she gives assistance to the mother when necessary, including occasions where she has picked-up the children from school.

2. The father was very critical of the maternal grandmother.  Although he accepted in cross-examination that he had not seen or spent time with the maternal grandmother for years, the father clearly expressed his belief that the maternal grandmother is a “scumbag” and a liar (Transcript of Proceedings of 22 September 2020, pg. 22 line 6).  He attributed a significant amount of the conflict with the mother to her malign influence, claiming that she has negatively impacted the children’s view of him.  The evidence does not persuade me this is so.  In cross-examination, the maternal grandmother did not give the impression of holding strong negative views of the father, although she clearly found him exasperating.

3. I accept the children have a positive and warm relationship with their maternal grandmother.  I also find that the benefit of this relationship is likely to be disrupted by the father’s animosity towards her if Y were to spend time with his father.  This could have an adverse impact on him.

4. I give weight to this factor.

(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

1. The evidence leaves me in no doubt that mother has been unilaterally making all relevant major decisions in the children’s lives for more than five years.  The children continue to live with her.  It is clear that she has taken the opportunity to participate in the children’s lives and spend time with them.

2. At present, the father does not spend time with or communicate with the children and has not done so since February 2016.  I accept that on one level he has continued the Court proceedings in an attempt to participate in the lives of the children.

3. While this may be true, however, it is a noteworthy aspect of this case that despite the strong views of the children, their adamant refusal to spend time with him, and the obvious disaffection they feel from their father, the father’s principal, if not only, response appears to have been to heap blame upon the mother and the maternal grandmother.  He accepts no responsibility for this outcome. In the five years since February 2016 he has not , for example, sought out or undertaken any sort of therapeutic intervention which could have helped him understand how to re-engage or communicate with his children in a way which did not cause them distress.  As already noted, he seemed unable to understand his own contribution to the present situation. His perceptions of this do not seem to have mellowed or softened despite the passage of some five years.

4. It is also true that the father could have tried to communicate with the children by letters or cards, as a way of building trust with them slowly and carefully, rather than imposing his physical presence by, for example, turning up at their school on Y’s birthday, and maintaining a hostile demeanour towards the mother and maternal grandmother.

5. I give weight to this factor.

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. The father is presently assessed to pay $161.91 per week by way of child support.  There was no suggestion by either party that he has failed to pay child support.

2. The mother has indicated that the father does not voluntarily pay any additional funds towards the children, meaning that she is otherwise responsible for the costs of the children.

3. I give weight to this factor.

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

1. either of his or her parents;

1. or any other child, or other person (including any grandparent or other relative;

1. If the Court is to make the orders sought by the mother and ICL, there would be no changes in children’s circumstances.

2. If the Court is to make the orders sought by the father, there would a major change in Y’s circumstances.  The mother suggests that this would be to Y’s detriment and would likely cause psychological harm; the father suggests this would be in Y’s best interests.  

3. As already noted, Y is presently doing well in his mother’s care.  He progresses at school and is a happy, friendly child.  The impact on him of first spending overnight time with the father, moving eventually to living primarily with him is unknown.  In light of my conclusions about the father’s behaviour over many years, and Y’s strongly expressed views, I accept the mother’s submissions; I agree the change of circumstances proposed by the father is likely to be negative for Y.  It may result in a range of anxieties or other psychological harm.  At the very least, I could not conclude it would not be adverse for Y.

4. Y has spent all his life to date living in a household with his sisters.  The father’s proposal would see Y abruptly spending significant time alone in the care of a father whom he has not seen for five years.  There was little evidence of the nature of the father’s present domestic circumstances, except that he lives with his current partner, and because of the conduct of the father at the Family Consultant interviews, there is no evidence of how Y and Ms F may interact.  There is no evidence of how the father, having not cared for any child for five years, could manage the day to day routine for Y, such as getting him off to school and managing travel to and from extra-curricular activities.

5. I give weight to this factor.

(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;

1. No party raised any specific issue under this heading.

(f)     the capacity of:

1. each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs

1. The wife has demonstrated a sound capacity to parent the children.  I am satisfied that she prioritises their needs, and the children have generally done well under her sole care since 2016.

2. I am mindful of the effect of orders on the primary carer’s mental wellbeing, where such effect may adversely impact on parenting capacity (In the Marriage of A (1998) FLC 92-800; (1998) 22 Fam LR 756). As already pointed out, the mother holds considerable fear of the father. If Y was to spend time with the father, even if he continued living with the mother, I find that this would likely undermine the mother’s mental health and her parenting capacity. Since Y has been primarily under the mother’s care for his entire life, I am satisfied this is likely to have an adverse impact on him.

3. The evidence is clear that the past conduct of the father has caused all of the children to fear him.  While Ms W is beyond the jurisdiction of the Court, and I will make limited orders about X, this history is relevant to what orders should be made about Y.

4. I am not satisfied that the father has a satisfactory capacity to provide for the needs of Y, including emotional and intellectual needs. The father may be able to provide for Y’s material needs, however, I cannot be certain. I repeat my comments above at [192]. Those considerations, together with the history of angry, sometimes violent and coercive conduct by the father, discussed under s 60CC(2)(b), coupled with his lack of insight into his conduct and his sense of grievance, persuade me that he is unlikely to have a capacity to provide for Y’s emotional needs. Indeed my conclusions under s 60CC(2)(b) lead me to conclude that the father could well undermine Y’s emotional equilibrium.

5. It is clear, in my view, that neither parent has any capacity to promote Y’s relationship with the other parent.  I accept that in the past the mother has made a reasonable attempt at this.  The father has not, primarily because he perceives the mother to be a malign and destructive figure.

6. I give weight to this consideration.

1. 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;

1. This does not require comment.

(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.

1. This is not a relevant consideration.

(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); and

1. the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant consideration.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. The mother argues that she is a “dedicated mother to the children and ensure[s] that all of their needs are met” (the mother’s affidavit filed 1 September 2020, pg. 34 [406]).  I accept this is true.  She points to her reaction towards the girls in particular when they were experiencing great mental health struggles as evidence of her dedication to caring for the children.  She further suggests that the improvement to their mental health since February 2016 is evidence of her ability to care for the children and uphold the responsibilities of parenthood.

2. Whilst the father accepts that the mother is dedicated, he suggests she has failed to meet their needs by denying the children a relationship with him.  I do not accept this argument

3. In contrast, both the mother and ICL suggest that the father has shown a poor attitude towards parenting the children.  They suggest that the father has continuously put his own emotional and physical needs above those of the children, which casts doubt on his ability to parent.  In addition, the ICL raises concerns in relation to the father’s negative attitude towards the mother and how that would impact on the children.

4. In my view, the perception of the father about the views of his children, discussed above under s 60CC(3)(a), betrays a concerning lack of insight. His inability to recognise that he himself may have contributed to X and Y’s negative views about him is a significant deficit in his understanding of parenting responsibilities. As mentioned already, the father disclosed a significant lack of understanding that the Act is structured around the rights of children and the responsibilities of parents. It was clear to me that the father put emphasis on what he saw as his rights as a parent, as well as the conduct of the mother in alienating the children. This appeared to obscure his perception and understanding of parental responsibility.

5. I give weight to this consideration.

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

1. I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b).

(k)      if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

1. the circumstances in which the order was made;

1. any evidence admitted in proceedings for the order;

1. any findings made by the court in, or in proceedings for, the order;

1. any other relevant matter;

1. There is a history of AVO applications between the parties in this matter, however none are current.  As outlined above, the police obtained an AVO protecting the mother from the father in 2010 for a period of 12 months, which was then extended in 2011 for a further 12 months.

2. Interim AVOs were also taken out for the protection of the mother in 2013 and 2014, however the mother claims she did not press for the orders to become final as she was concerned about escalating the situation.

3. As already noted, following the February 2016 incident a further AVO was taken out for the protection of X and Y.  This was made final on a without admission basis for a period of 6 months in August 2016.

4. The father strongly argues that each claim, as well as any asserted breach, was made for the purpose of family court proceedings, rather than in response to any of his own behaviour.  Specifically, he argues that “[t]he Respondent has used and abused the process of police AVO’s more than 30 times and there is still no convictions to speak of. The only AVO taken out by police on X (sic) and that was with no admissions. Records will show that each AVO was place (sic) just prior to a Family Court Hearing” (the Father’s affidavit emailed to the Court on 21 September 2020, pg. 10 [408]–[409].)

5. Whilst the father suggests that the pattern of AVOs indicate an abuse of the system, the ICL suggests that this police involvement indicates a “pattern of family violence and intimidation by the father towards the mother” (case outline of the ICL, pg. 11).

6. In final submissions, the father also argued that since no criminal conduct was ever proven, no reason had been shown for the children to fear him. The father seemed to think that without proof of criminal conduct the Court could not be satisfied he posed any risk to the children. I do not accept this. This Court acts upon the rules of evidence that apply in child related proceedings. These rules are modified by Division 12A of the Act. Proof of risk is quite separate from proof of criminal conduct, although the two overlap (see above at [90]). For the reasons discussed at length under s 60CC(2)(b), I am satisfied the father has posed an unacceptable risk to the children and is on balance likely to pose an unacceptable risk to Y.

7. I am unable to accept the father’s contentions about past AVO’s.  I accept the ICL’s submission in this regard.  His evidence did not make good the asserted connection between interim or final AVOs and proceedings in this Court. The AVO to protect X and Y was made when proceedings were not on foot.  I accept it is more likely the AVO’s are a reflection of the father’s own conduct.  It is not credible to assert, as the father does, that the frequent resort to police by the mother was simply a tactic by the mother for the purpose of Court proceedings, or the absence of any proved criminal conduct in another court somehow renders his abusive, controlling and coercive conduct unimportant.

1. I give weight to this consideration

(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

1. The mother suggests that, in light of the long history of the proceedings within the Court, it would be preferable to make the orders that would be least likely to lead to the institution of further proceedings.  I agree.  It is in the best interests of X and Y, but especially Y, for litigation between these parents to be brought to an end.  As already mentioned, Y has been the subject of unresolved litigation for almost his entire life.

2. The mother argues that orders should be made in terms of her proposal, rather than the father’s.  She suggests that the history of the matter, in particular the large number of contraventions, and the degree of conflict between the parties suggests that any order for the children to spend time with both parties would lead to further disputes and additional contravention applications.  I agree.

3. I give weight to this factor.

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

1. I have no comment under this consideration.

Parental Responsibility

1. The Full Court of the Family Court of Australia’s decision in Goode, and s 61C of the Act, together make clear that, unless displaced by Court order, the parties’ parental responsibility may be exercised either jointly or severally.

2. Although his final position was not clear, as I have noted earlier, in his Initiating Application, the father sought an order for sole parental responsibility. 

3. The mother submitted that I should find either that the presumption of equal shared responsibility did not apply by reason of s 61DA(2) or I should find it has been rebutted as it would not be in the best interests of the children, for the purposes of s 61DA(4).

4. I repeat what is said above under s 60CC(2)(b). I also take account of the fact that under the previous orders the parties tried, and failed, to co-parent under a final order for equal shared parental responsibility. The intractable conflict which continued under the previous orders militates against replicating such a situation in the orders I propose to make.

5. I am satisfied there are reasonable grounds for the Court to believe that the father has engaged in family violence so as to deny application of the presumption pursuant to s 61DA(2). I refer generally to my discussion of the s 60CC factors. I am also satisfied that the presumption has been rebutted in the best interests of X and Y. I will not make an order for equal shared responsibility.

6. The question then arises whether there should be an allocation of responsibility.  Realistically this question is relevant to Y only.  The father has not been involved in parenting Y for some five years.  In that time, I am satisfied the mother has carried out her parental responsibilities with care and dedication.  The father even seemed to accept this to some extent.  The past history of conflict demonstrates, in my view, that there should be an allocation of sole parental responsibility to the mother in the best interests of Y.  This will largely continue the current situation under which Y is doing well.  I see no reason to disturb this in the best interests of Y.  Such an allocation of parental responsibility has the best chance of avoiding Y being placed in the middle of further terrible parental conflict.

Live with the mother

1. I am satisfied that X and Y should continue to live with the mother.  The proposed order for sole parental responsibility supports this conclusion.  It will also continue the existing situation in which Y is doing well.

Time with the Father

1. No order will be made for equal shared parental responsibility. Consequently, s 65DAA(1) of the Act does not apply.

2. I note that even if there is no order made providing for equal shared parental responsibility, the decision in Goode makes clear that the concepts of “equal time” or “substantial and significant time”, in the best interests of the child, remain relevant.

3. I am not satisfied that any order should be made for Y to spend time with the father.  I accept this is a conclusion of considerable importance to the father.  I have considered his evidence and proposal very carefully, taking longer than usual.  I considered this to be appropriate especially in light of the proposals of the mother and the ICL for Y to spend no time with him.  I take account of the fact that in the father’s mind the single biggest problem is the destructive and harmful influence of the mother on the children.  I have endeavoured to make clear that the evidence does not support this view.  On the contrary, as noted, the mother has discharged her duties and responsibilities as a parent admirably, while the father has consistently shown he has no insight into his own conduct and its impact on the children over many years.

4. I should also make clear that I reached this conclusion with no enthusiasm.  This is a sad situation.  I accept the father’s evidence that he wants a loving relationship with his son.  However, it would not be in Y’s best interests, for the reasons given.  I am satisfied that the father has not demonstrated that he understands how to discharge his responsibilities as a parent by addressing his angry, coercive and dysregulated behaviour towards the mother and in front of Y.

5. I note that the father made no proposal for a gradual and carefully balanced regime to reintroduce Y to him.  He proposed that there should be a rapid progression of Y’s time with him, resulting in Y living with him by Christmas 2020.  He did not propose some kind of family therapy for himself, the mother, or Y, either individually or jointly.  He did not propose a period of supervised time.  He does not appear to recognise that any reintroduction of time with Y could be very destabilising for Y, and disrupt his steady progress into, and through, the teenage years.

6. I have had careful regard to all the factors discussed above under s 60CC.

7. In addition to what I have said at [229] to [233] above, in no particular order, in light of Y’s views, the long history of parental conflict, the history of the father’s aggressive, coercive and controlling behaviours, the fears held by Y about his father, the long period during which Y and his father have had no contact, the deficits in the father’s parenting capacity, the likely adverse impact on Y of a change of circumstances to the father’s household, the need to remove Y from ongoing litigation, and the risk the father would use any time Y spends with him to denigrate the mother and place Y back into further conflict between the parents, I will not make any orders for Y to either spend time with the father or live with him.

8. I have given close consideration to whether it would be appropriate to permit contact between Y and the father by letters or cards.  Neither the mother nor the ICL supported this form of contact.  The father did not ask for such contact.  I accept there is a risk that the father would use such a form of contact to expose Y to abusive language about the mother.  This would not be in Y’s best interests.

Restraints & injunctions

1. The Court would not impose a restraint without clear evidence as to why the restraint should be imposed.  The injunctive power is a discretionary one, not to be exercised lightly.  The ongoing stalking behaviour of the father after separation at the mother’s home, together with his disturbing and sudden appearances at children’s school satisfy me that the existing restraints upon the father should be continued on a final basis. It is relevant in this regard that the father appeared to accept in cross examination that many of these events occurred but could not understand why they would be detrimental to the children.

Conclusion

1. Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am of the view that the orders as set out at the commencement of these reasons are in the best interests of the child and accordingly, will so order.

Costs

1. I will make orders providing for any application for costs after the parties have had the opportunity to consider these reasons. The parties are minded of the terms of s 117(1) of the Act.

I certify that the preceding two-hundred and thirty nine (239) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 25 March 2021.

Associate: 

Date:  25 March 2021