LLOYD & ARTHURTON

[2018] FamCA 743

FAMILY COURT OF AUSTRALIA

LLOYD & ARTHURTON [2018] FamCA 743

FAMILY LAW – CHILDREN – Magellan proceedings – Best interests of the children – Where the children shall live and spend time – Where the children have meaningful relationships with both parents – Where the mother alleged the father’s physical abuse of the youngest child – Where the allegation of physical abuse by the father not proven – Where an older half-sibling was convicted of sexual abusing the youngest child while in the mother’s care – Where the youngest child had no contact with the older half-sibling following the allegations of sexual abuse – Where findings of past family violence were made – Where the parenting capacity of both parents is considered “adequate” – Where there was some impingement of the mother’s parenting capacity – Where the Family Consultant was of the view the children should continue to live with the mother – Injunction made restraining the children’s contact with the half-sibling – Ordered the children live with the mother – Ordered the children spend substantial and significant time with the father.

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility is rebutted in the children’s best interests – Where the parties are unable to communicate – Where the party with whom the children live should have exclusive parental responsibility – Ordered the mother have sole parental responsibility.

Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA(2), 61DA(4), 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 114AB

APPLICANT: Mr Lloyd

RESPONDENT: Ms Arthurton

INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

FILE NUMBER: NCC 2405 of 2017

DATE DELIVERED: 19 September 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 3 & 4 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tregilgas

SOLICITOR FOR THE APPLICANT: Arnold Lawyers

COUNSEL FOR THE RESPONDENT: Ms Smith

SOLICITOR FOR THE RESPONDENT: Virginia Taylor Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bithrey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

Orders

1. All former orders relating to the following children are discharged:

   (a)X, born … 2006; and

   (b)Y, born … 2010.

2. The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act 1975) related to the children.

3. The children shall live with the mother.

4. The parties shall take all reasonable steps to ensure the children spend time with the father as follows:

   (a)During school terms, each alternate week from 3.00 pm or after school on Wednesday (whichever is the later) until 6.00 pm on Sunday, commencing on the first Wednesday after these orders are made and thereafter on the first Wednesday of each new school term;

   (b)During the Autumn, Winter, and Spring school holidays, from 3.00 pm or after school on the last day of school term (whichever is the later) until 6.00 pm on the Saturday of the middle weekend;

   (c)During the Summer school holidays, on an alternating fortnightly basis commencing:

   (i)At 3.00 pm or after school on the last day of school term (whichever is the later) until 3.00 pm on the fourteenth day thereafter in 2018/2019 and each alternate year thereafter; and

   (ii)At 3.00 pm on the fourteenth day after the last day of school term until 3.00 on the fourteenth day thereafter in 2019/2020 and each alternate year thereafter.

5. Orders 3 and 4 are suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and

   (b)Between 9.00 am and 6.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

6. For the purposes of implementing Orders 3, 4 and 5, the parties shall respectively ensure the children’s:

   (a)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to the McDonald’s Restaurant at B Town, New South Wales.

7. The parties shall take all reasonable steps to ensure the children communicate privately by telephone with:

   (a)The father each Wednesday at 6.00 pm in the weeks when the children are living with the mother, for which purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure the children are able to receive the father’s calls on that number at that time.

   (b)The mother each Tuesday at 6.00 pm when the children are spending time with the father during school holidays, for which purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure the children are able to receive the mother’s calls on that number at that time.

   (c)The parent with whom the children are not then staying, on the children’s birthdays at 6.00 pm, for which purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent and the parent with whom the children are staying shall ensure the children are able to receive the other parent’s calls on that number at that time.

8. The parties are restrained from causing or allowing the children to be or remain in the physical presence of Z (born … 2003).

9. The parties are restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

10. The parties shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

11. The parties, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate, at which events each party is entitled to attend.

12. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.

13. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

14. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

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

16. Costs are reserved for 28 days.

17. Any and all other outstanding applications are dismissed.

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 Lloyd & Arthurton 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 NEWCASTLE

FILE NUMBER: NCC 2405 of 2017

Mr Lloyd

Applicant

And

Ms Arthurton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern competing applications by the applicant father and respondent mother for parenting orders in respect of their two children under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The subject children were born in 2006 and 2010 and were respectively aged 12 and seven years at the time of trial in September 2018. The mother has an older child from a former relationship (“Z”), who was aged 15 years at the time of trial. Although no parenting orders were sought in respect of him, his sexual assault of the youngest child was, at least initially, central to the parties’ dispute. He no longer lives with the mother and children and so, given the mother’s willingness to submit to an injunction precluding the children’s contact with Z, he fell away as an issue.

3. Each party made various criticisms of the other’s parenting capacity and refused to give unequivocal assurances they were satisfied about the children’s safety in the other’s care, but their reciprocal criticisms and doubts were not borne out by the evidence. In many respects they were facile. Both parties are satisfactory parents and the evidence did not warrant the reversal of the children’s residence, for which outcome the father contended.

History

1. According to the mother, the father chose to end their relationship in early 2016. She alleged she tried to facilitate the children spending time with the father because she thought that was best for them. She said, at that point in time, the children stayed with the father for “[two] out of [three] weekends” and “half the school holidays”,[1] which fact the father did not contest. Although that may have been the initial arrangement, it did not stay that way.

   [1] Mother’s affidavit, paras 15, 23, 24

2. The mother alleged the father only showed sporadic interest in the children and he failed to contact them for extended periods after January 2017,[2] whereas the father alleged the mother thwarted the children’s visits with him.[3] It is more likely the mother frustrated the children’s contact with the father, as he alleged. He was dissatisfied with the situation and remonstrated with her about it in a series of text messages in February 2017. Her complaint to the police about the text messages was rejected by them.[4] The mother also gave inconsistent accounts for why the children’s contact with the father stopped. On the one hand she alleged the father did not ask to see them,[5] but on the other hand, she admitted she stopped it for good reasons.[6]

   [2] Mother’s affidavit, paras 38, 41, 44, 48

   [3] Family Report, paras 9, 69

   [4] Exhibit ICL6

   [5] Mother’s affidavit, paras 48, 78

   [6] Mother’s affidavit, paras 44, 77

3. While the father felt his interaction with the children was being frustrated by the mother, he took steps to stay in touch with them at school, which arrangement was supported by the school principal.[7] The mother was apparently unaware of that until August 2017.[8]

   [7] Family Report, para 47

   [8] Mother’s affidavit, para 50

4. The father commenced these proceedings in August 2017 seeking orders to regulate his interaction with the children, at or about which point the children resumed spending time with him. However, the mother did not consent to the children staying with him overnight, even though she told the Family Consultant at their first meeting in December 2017 she agreed to the children spending alternate weekends with the father.

5. The proceedings were later transferred from the Federal Circuit Court to this Court and, in March 2018, interim orders were made between the parties with their consent. The orders provided for the children to spend time with the father each alternate weekend during school terms, for half of each school holiday period, and on other special occasions. Those orders were successfully implemented until final trial.[9]

   [9] Family Report, para 3

Proposals

1. The father sought the orders set out within his Amended Initiating Application filed on 15 June 2018. Essentially, he wanted sole parental responsibility for the children, for the children to live with him, and for them to spend time with the mother (comprising alternate weekends, half of school holidays, and other special occasions).

2. The mother abandoned some, but not all, of the orders set out within her Amended Response filed on 22 June 2018. She maintained her application to have sole parental responsibility for the children and for them to live with her, but she relaxed her proposal about the time the children should spend with the father. She conceded in cross-examination the children could spend time with him on up to four nights per fortnight during school terms to supplement the equal division of the school holidays and other special occasions. She orally amended her application to that effect during final submissions.

3. The Independent Children’s Lawyer did not reveal her proposal until the evidence was closed. Just before final submissions commenced she tendered a minute of the orders she sought. In effect, she proposed that the parties share parental responsibility for the children and the children’s residence also be shared, albeit not equally. She proposed that the children live equally between the parties in school holidays, but in school terms they live with the mother for nine nights and with the father for five nights in fortnightly cycles.

Evidence

1. The father relied upon:

   (a)His affidavit filed on 20 July 2018;

   (b)His affidavit filed on 28 August 2018; and

   (c)The affidavit of Mr C, filed on 31 August 2018.

2. The mother relied upon:

   (a)Her affidavit filed on 31 July 2018; and

   (b)The affidavit of her partner, Mr D, filed on 24 August 2018.

3. The parties and Independent Children’s Lawyer relied upon:

   (a)The Magellan Report prepared for the Court by the New South Wales Department of Family and Community Services, dated 15 January 2018;

   (b)The Memorandum dated 8 December 2017, prepared by the Family Consultant; and

   (c)The Family Report dated 13 April 2018, prepared by the Family Consultant.

4. Neither party was entirely credible so, when uncorroborated, their evidence must be carefully considered before acceptance. The mother admitted she lied to hospital staff about the circumstances under which Z’s arm was broken during a physical confrontation with her former partner, though she admitted her dishonesty to police shortly afterwards.[10] The father was also economical with the whole truth. He deposed how he and his former partner could provide a “very stable relationship” for the children but, at the time he gave that sworn evidence, he deliberately omitted revealing how there had been numerous incidents of family violence between them in their home, which eventually led to the irretrievable break down of their relationship less than a fortnight after he swore his affidavit.[11] The father actually denied any family violence between him and his former partner when specifically asked about it by the Family Consultant.

   [10] Family Report, para 26; Mother’s affidavit, para 75

   [11] Father’s first affidavit, para 9; Exhibit ICL1

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

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

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

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. Both children enjoy meaningful relationships with both parents, from which they derive benefit.[12] So much was not in doubt. Each party accepted the importance of the children being able to maintain and foster their filial relationships. The point of dispute was the extent to which that objective needs to yield to other considerations.

   [12] Family Report, paras 81, 82, 106, 131

2. The father conducted the case principally on the basis that the children’s valuable relationships with him would deteriorate if they remain living with the mother because she sees no value in their relationships with him. The evidence called in support of that contention was relevant to s 60CC(3) of the Act because it pertains to the mother’s parenting capacity. Otherwise, he contended she was not sufficiently protective of the children, which argument engaged s 60CC(2)(b) of the Act.

3. The mother conducted the case on the basis that, due to the father’s employment commitments, which he prioritises, he will be unavailable to provide primary care for the children and she is better placed to do so. That, too, is an argument which engages s 60CC(3) of the Act.

Section 60CC(2)(b)

1. Despite allegations of family violence and child abuse flying thick and fast during most of the litigation, by the time of trial, most allegations were either completely abandoned or paid little due. Nevertheless, they should still be briefly addressed.

Child sexual abuse

1. In late December 2016, Z sexually assaulted two children. One was the youngest child and the other was the child of the mother’s next door neighbour. The mother learned of the incident when she was told by the police in late January 2017. Z was charged and he then moved to live with the maternal grandmother. He later pleaded guilty to the offences, for which he was convicted. He was placed on probation for 18 months and will be a registered sex offender for several years. An apprehended violence order was also made restraining his contact with the youngest child until June 2019.[13] Those facts were entirely uncontroversial.

   [13] Family Report, paras 12, 25; Magellan Report, pages 2, 3, 5; Mother’s affidavit, paras 60-63

1. The mother said she strictly observes the apprehended violence order,[14] which the youngest child confirmed to the Family Consultant.[15] The father apparently has his doubts,[16] but his speculation is not proof.

   [14] Mother’s affidavit, paras 60, 61

   [15] Family Report, para 90

   [16] Father’s first affidavit, paras 11, 14

2. At the commencement of the trial, the father boldly contended the mother’s lax supervision enabled the youngest child’s sexual abuse by Z and a reasonably diligent parent would have prevented it. He wanted a factual finding made to that effect. None is made. He expected perfection when all that could be expected of the mother (indeed any parent) was reasonable diligence. The father did not adduce any evidence to prove when, where or how Z managed to sexually assault two young boys. He simply assumed the mother was at fault, which assumption said more about his disrespect for the mother than it did about the standard of her parenting performance. She was just as shocked as him to learn of the sexual assault because neither of them suspected Z was capable of it. He admitted Z must have acted opportunistically so how, in those circumstances, he expected the mother to have prevented the abuse was left unexplained.

3. The mother was clearly placed in a difficult position when one of her children sexually assaulted another of her children. She understandably wanted to support both without prioritising one over the other. She wanted to protect the victim, but support the offender, particularly since he was still only thirteen years old at the time. The Family Consultant understood and empathised with her bind.[17] Although the mother encountered some initial difficulty accepting the fact,[18] with the assistance of some counselling, she was able to sensitively protect the children, make supportive alternative residential arrangements for Z, and preserve the children’s loving regard for Z, which was no mean feat.[19] The father conceded in cross-examination he does not blame the mother for supporting Z, because he does exactly the same. He accepts that Z regards him as a father figure and so he still makes arrangements to see Z.[20]

   [17] Family Report, para 31

   [18] Exhibit ICL7

   [19] Family Report, para 38; Mother’s affidavit, paras 65-67

   [20] Family Report, para 102

4. The mother conceded in cross-examination she would submit to an injunction precluding her from allowing any contact between the children and Z and an order to that effect is made. The injunction is not precluded by s 114AB of the Act, since the existing apprehended violence order protecting the youngest child from Z was procured from the State court by the police.[21] The apprehended violence order protects only the youngest child, but the injunction now made will protect both children.

   [21] Magellan Report, pages 4, 5

5. The Family Consultant was not challenged about the validity of her opinion that the children will probably later re-connect with Z and recover their sibling relationships.[22] For the moment, while they are vulnerable, the children’s safety must be ensured.

   [22] Family Report, para 107

Child physical abuse

1. In April 2016, the mother observed the youngest child to return from his visit to the father with bruising on his neck. She concluded the father had assaulted the youngest child,[23] but the police and child welfare authority did not act on her allegation of physical abuse.[24] In forming her belief that the father had assaulted the youngest child, the mother relied entirely upon the child’s allegation to that effect. She obviously rejected out of hand the father’s explanation of how the child sustained the injury when “wrestling with other children”.[25] Both parties naively confirmed in cross-examination their willingness to accept and rely upon the literal truth of reports made to them by the children, but that is a dangerous practice. It is unwise to uncritically repose weight in the word of young children caught in the centre of such intense parental conflict. That must be especially so in this case, since the youngest child admitted to the Family Consultant that the children both lie to the parties.[26]

   [23] Mother’s affidavit, paras 36-37

   [24] Magellan Report, pages 1, 2

   [25] Exhibit ICL5

   [26] Family Report, para 94

2. In June 2016, Z broke his arm during a physical tussle with the mother’s then partner. The evidence was unclear about whether the mother’s partner deliberately threw or accidentally dropped Z to the ground. In any event, the mother was sufficiently concerned about the incident that she initially lied to hospital staff about how Z sustained the injury.[27] Although she denied it in cross-examination, her motive was most likely to protect her partner from investigation and prosecution. She had nothing to fear personally, because she was not involved other than as a spectator. The incident was reported to the child welfare authority and no further action was taken because the mother ended her relationship with the man responsible.[28] There was no suggestion at trial the mother would resume that relationship, as she is now in a relationship with Mr D.

   [27] Family Report, para 26

   [28] Magellan Report, pages 2, 4

Family violence

1. Evidence was adduced about the occurrence of family violence as between the parties and also between the parties and their respective partners.

2. As between the parties, they each alleged the other perpetrated family violence during the currency of their relationship and also on one particular occasion shortly after they separated in early 2016. In respect of the physical confrontation which occurred shortly after their separation, the mother told police she was not assaulted and the children were not exposed to the incident.[29]

   [29] Exhibit ICL4

3. Both parties admitted to the Family Consultant they “had a part to play” in exposing the children to family violence, which would likely have been psychologically damaging to them.[30] Given that concession and the mutuality of their allegations,[31] there is no need to make specific findings about who was the primary perpetrator during their relationship. Importantly, aside from occasional harsh words at change-overs, there is no family violence between them now and has not been for more than the last two years. Since each party proposes that the children spend substantial amounts of time in the other’s care, neither now contends the children are at risk of harm by exposure to family violence in the other’s care.

   [30] Family Report, para 77

   [31] Family Report, paras 22, 70, 73, 76

4. The Independent Children’s Lawyer implied the children might be subjected or exposed to family violence by Mr D while in the mother’s care, but the evidence to support such an implication was scant. Some six or seven years ago, Mr D was involved in two physical altercations – one at school as a student and one at work as an employee – but he was not charged with any offence arising out of either incident. Otherwise, the youngest child reported to the Family Consultant that Mr D could “be a bit moody for random reasons” and the mother tells him “just to leave him alone for a while”,[32] which hardly constitutes sufficient foundation to conclude Mr D poses a risk of harm to the children. In cross-examination, the father admitted he had “reservations” about Mr D, but only because of what he was told by the children. For reasons already given, the children’s uncorroborated reports to one party which are critical of the other party and his or her household are unlikely to be reliable. The mother denied any family violence occurred between her and Mr D[33] and she was not challenged about the truth of that statement, as procedural fairness required if the issue was to be pursued.

   [32] Family Report, para 92

   [33] Family Report, para 71

5. It is now known that incidents of family violence occurred between the father and his former partner, which were sufficiently serious to cause the permanent severance of their relationship. The father alleged his former partner was the perpetrator of the family violence, but even so, he cannot then fairly criticise the mother for having relationships with violent partners like the one who injured Z. He is no less likely than her to form romantic relationships with persons who are capable of committing family violence. The risk of the children’s exposure to family violence committed by either parent’s current or future partner cannot be eradicated, but the risk is not presently unacceptably high.

Conclusion

1. The Family Consultant concluded “the risk [of harm] to the children in either household is [currently] minimal”,[34] which opinion she generally endorsed during her cross-examination.

   [34] Family Report, para 136

2. The evidence vindicated her opinion. The children are not in need of protection against the risk of harm which might befall them by reason of their subjection or exposure to abuse or family violence. The parties’ respective proposals for the children to spend substantial amounts of time in the other’s care was eloquent acceptance of the correctness of that fact.

Children’s best interests – additional considerations

1. Not every factor prescribed by s 60CC(3) of the Act was addressed by the parties and the Independent Children’s Lawyer, so only those which are relevant to the result are mentioned.

2. Unsurprisingly, the children’s expressed views (s 60CC(3)(a)) coincided with the findings about the comparable importance of their relationships with both parties (ss 60CC(2)(a), 60CC(3)(b)). They spoke to the Family Consultant about the parties in enthusiastic and loving terms. They vacillated between expressed desires to live with each party but, on balance, they both seemed more inclined to remain living with the mother and to spend more time with the father.[35] It did not appear to the Family Consultant that the mother influenced their views, as the father suspected, since the children’s views were balanced rather than partial. The children’s views are not dispositive, but they are relevant.

   [35] Family Report, paras 80, 85, 91, 95, 126

3. The reversal of the children’s residence would be disruptive for them, since they have always lived primarily with the mother (s 60CC(3)(d)).

4. There is no practical difficulty or expense involved in the exchange of the children between the parties since they both live in Region E and their homes are about 30 minutes driving time apart (s 60CC(3)(e)).[36]

   [36] Family Report, para 6

5. Both parties have the capacity to provide adequately for the children’s physical and intellectual needs (s 60CC(3)(f)), save in one respect. The mother is available at all times outside school hours to supervise and care for the children, whereas the father is not. He works full-time and intends to continue doing so, even if his application for the children’s residence is successful. He starts work each weekday at 5.30 am and leaves home for work at 5.00 am, so he needs adult help to care for the children whenever he is not on annual leave. Since he and his former partner have now separated, he intends to rely upon Mr C for that essential help.

6. Mr C is a self-funded retiree who is well known to both parties. He allowed Z to live with him for a while after he left the mother’s household, he was interviewed by the Family Consultant, and he gave evidence at trial as the father’s witness. He confirmed his willingness to undertake the task of assisting the father with the children, but his evidence did not clinch the argument, as the father had hoped. The evidence did not stimulate confidence that Mr C’s help would be as intense or as permanent as was contended.

7. Mr C lives (and will continue to live) in his own home, situated about 15-20 minutes driving time away from the father’s home. On school days, he would need to leave his home every morning by 4.45 am to arrive at the father’s home by 5.00 am, when the father departs for work. He would then be occupied for the next few hours, initially idly waiting for the children to wake, but then fixing them breakfast, readying them for school, and driving them to school, before returning to his own home. That regime, every morning of every school day for years ahead, is probably far more onerous than either the father or Mr C seemed to appreciate. Moreover, Mr C was keen to impress how his status as a self-funded retiree is dependent upon him “living off [his] rents and [his] cows”. The cows to which he referred are kept by him on a farm situated some distance further in Region E and he visits that property on a daily basis to tend to them. Although he professed he could attend the farm each day at any time he chose, that daily chore is hardly compatible with spending several hours each school day morning ministering the children.

8. The father’s expectation of that kind of help from Mr C on only a couple or a few days each fortnight is a much different proposition from his expectation of it on every school day of the year. In his discussion with staff of the State child welfare authority in 2017, while Z lived temporarily with Mr C, the father admitted Mr C was very busy with his conflicting interests.[37]

   [37] Exhibit ICL2

9. As for the parties’ capacity to provide for the children’s needs more generally, and in particular their emotional needs (ss 60CC(3)(f), 60CC(3)(i)), the Family Consultant described it as “adequate” in each case.[38] That is not to damn them with faint praise; but rather to acknowledge facts such as the following:

   (a)The mother had no real cause to prevent the children’s interaction with the father for about eight months during 2017, nor prevent them from spending overnight time with him for another seven months thereafter, until interim orders were consensually made in March 2018;

   (b)The mother initially lied about how Z fractured his arm and, if Z was aware of her lie, he would likely have been emotionally disturbed by the mother’s protection of her then partner at his expense;

   (c)The father had no cause to contend the mother was responsible (even indirectly) for the youngest child’s sexual abuse by Z, which expressed or implied her fundamental incompetence as a parent. It was unjustifiable and terribly hurtful for him to do so;

   (d)The mother had no good cause to contend the father physically assaulted the youngest child by throttling him so severely that he sustained bruising injury to his throat. It was similarly hurtful;

   (e)Z alleged to his school counsellor,[39] and the father admitted in cross-examination, the father contemplated calling Z as a witness in his case to criticise the mother’s parenting capacity by giving evidence about her commission of family violence, her not laundering clothes with sufficient proficiency, and her “going out partying all the time”. He seemed oblivious to how an adolescent like Z would be emotionally compromised giving evidence to that effect about his mother; and

   (f)Neither party has been particularly successful in the selection of domestic partners. The mother’s former partner manhandled (or perhaps even assaulted) Z in such a forceful way that his arm was fractured. The father’s former partner repeatedly verbally abused him and physically assaulted him twice. Although no longer part of their lives, the parties each introduced the children to those former partners and thereby risked their harm by exposure to family violence.

   [38] Family Report, paras 133, 134

   [39] Exhibit ICL3

10. Although the father harbours some doubt the mother will faithfully promote the children’s relationships with him if they continue to live with her, the evidence establishes she probably will. Although she frustrated their interaction during 2017, she agreed to interim orders in March 2018 under which the children spend alternate weekends and half of all school holidays with him. She has abided by those orders. She then told the Family Consultant the time on alternate weekends could be expanded to three nights per fortnight[40] and she later conceded in cross-examination the time could be expanded to four nights per fortnight, which was ultimately her proposal. Her proven adherence to the interim orders and her willingness to expand them are much more powerful considerations than her more historic disaffection with the father.

    [40] Family Report, para 18

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe both parties engaged in some form of behaviour in the past which constituted “family violence” within the meaning of the Act (ss 4AB, 61DA(2)(b)).

2. The Independent Children’s Lawyer’s application for an order allocating equal shared parental responsibility for the children to the parties was notable for its isolation. Neither party wanted to share parental responsibility. They agreed the residential parent should have sole parental responsibility, which accorded with the advice of the Family Consultant.[41]

   [41] Family Report, paras 33, 69, 138; Father’s first affidavit, para 21

3. Both parties professed difficulty in managing civil communication in the past and, given the father still holds the mother responsible for the youngest child’s sexual assault and the mother still holds the father responsible for the youngest child’s physical assault, it is hard to imagine how their distrust of one another could sink much lower. There is no room for reasonable confidence the parties could consult civilly, genuinely negotiate, and reach consensus about important issues in the children’s lives, as the law would demand of them if they were vested with equal shared parental responsibility (s 65DAC).

4. Parental responsibility for the children, at least in respect of “major long-term issues” should be conferred exclusively on the parent with whom the children live. Otherwise, the parties will retain their joint parental responsibility conferred by law (ss 61C, 61D).

5. On balance, the children should live with the mother. She has been their primary carer, it is likely she will comply with the Court’s orders and support the children’s relationships with the father into the future, she is more easily able to supervise and care for the children without the need to rely on outside help, she is just as able as the father to protect the children from harm, and she is just as well equipped as the father to meet the children’s emotional needs.

6. At the commencement of the trial, the father contended that several factual findings, either individually or in combination, would justify the reversal of the children’s residence. In summary, they were:

   (a)The mother’s frustration of the children’s interaction with the father from about January 2017 until the interim orders were consensually made in March 2018, during which time the children wanted to see him;

   (b)The mother’s dishonesty in June 2016 about the cause of Z’s fractured arm;

   (c)The mother’s unreasonable failure to prevent the youngest child’s sexual abuse by Z in December 2016; and

   (d)The mother’s current cohabitation with Mr D.

7. In final submissions, some of those features of the evidence were again emphasised by the father, but his emphasis upon them was misplaced because:

   (a)While the mother’s truculence during 2017 was unreasonable, it was: first, contextualised by her having to deal with the upheaval in her household caused by the revelation in January 2017 of the youngest child’s sexual abuse by Z and the attendant criminal proceedings were not finalised until December 2017; and second, overtaken by her consent to the interim orders made in March 2018, her regular implementation of those orders thereafter, and her subsequent willingness to expand the orders.

   (b)The mother’s dishonesty about Z’s arm fracture was misguided, but only transient. She conceded her dishonesty to the police and ended her relationship with the man who caused Z’s injury.

   (c)The father’s assertion the mother could and should have prevented the youngest child’s sexual abuse by Z was baseless and insulting. His allied criticism of her initial disinclination to believe one of her children could molest another of her children in that way was also unwarranted. She did not want to believe it until she realised she had no option, after which she dealt with the problem as best she could by being protective of the youngest child and supportive of both him and Z. Her distress at Z’s permanent separation from the children was hardly surprising.[42]

   (d)The mother’s alleged cohabitation with Mr D was not mentioned by the father in final submissions and must have been abandoned as a material consideration. It does not really matter whether Mr D spends several hours every evening with the mother (as she alleged) or lives with her (as the father and the Independent Children’s Lawyer both suspected).

   [42] Exhibit ICL7

1. During cross-examination, the Family Consultant was moved to admit she “maybe” has “some reservations” about the mother’s “protective capacity”, but even taking into account the features of the evidence emphasised by the father, she maintained her opinion that the children should remain living with the mother. She was satisfied with the level of the mother’s protective capacity given: the mother ended her relationship with the man who injured Z; she now accepts that Z sexually abused the youngest child; and she has always complied with directions given to her by the State child welfare authority, the apprehended violence order protecting the youngest child from Z, and the interim orders made in March 2018. The Family Consultant confirmed there were “deficits in both households”, which is why she described the parenting capacity of both parents in the Family Report as only “adequate”.

2. Given the children should live primarily with the mother, attention must turn to the amount of time they should spend with the father. The Independent Children’s Lawyer proposed the children should live with the father for five nights each fortnight, while the mother conceded the children should spend time with the father for four nights each fortnight. The father did not engage the argument as he simply adhered to his application for the children to live primarily with him. The Family Consultant’s recommendation about the children spending more time with the father than currently occurs was not prescriptive as to precisely how much more.

3. In respect of the time during which the children are in the father’s care, there is no real difference between the descriptions of them living or spending time with him. The practical effect is the same. The nomenclature of spending time will be adopted for two reasons: the children’s primary residence will be with the mother and both parties proposed that, relevantly, the children should spend time (not live) with the non-residential parent.

4. Nor is there any significant difference between the children spending one extra night in the father’s care each fortnight during school terms. Very little of the evidence actually influenced the determination of that narrow dispute. The orders will confine the time the children spend with the father during school terms to four nights each fortnight. They should be returned to the mother on Sunday evening rather than to school on Monday morning because that will mean one less day each fortnight the father will need to rely upon Mr C’s help. The visits to the father will begin on Wednesdays after school each alternate week.

5. The children will spend relatively equal parts of each school holiday period with the parties. In the Summer school holidays, that will be achieved by the children spending rotating fortnights with the parties, as the Independent Children’s Lawyer and mother both proposed. The father preferred weekly rotations, but he did not submit fortnightly rotations would be inappropriate.

6. The father only has four weeks annual leave so he will not necessarily be on holidays from work for the whole of each school holiday period the children are in his care. At those times, he will need to rely upon Mr C. The mother was satisfied with that situation.

7. The orders make provision for special occasions to be shared. The parties and the Independent Children’s Lawyer made different proposals for special occasions, but the differences were not the subject of any evidence-in-chief, cross-examination, or submission, so the differences could not have been too important.

8. The parties agreed the children should be exchanged between them at school when possible, but otherwise at the McDonald’s Restaurant at B Town, New South Wales.

9. The parties both sought orders for telephone communication with the children but, again, the differences in the orders they respectively proposed were not the subject of any evidence-in-chief, cross-examination, or submission. The orders make some provision for periodic telephone communication, but it is limited because of the parental conflict. Opportunities for such conflict to flourish should be avoided.

10. The father sought an order for the parties’ mandatory use of a communication book, though the proposed order was not the subject of any evidence-in-chief, cross-examination, or submission. No such order is made. The parties both sought orders that they keep each other informed of their mobile telephone numbers, but the orders expand that obligation to include email addresses (as the father proposed), so they can communicate by text message or email if they do not wish to speak directly to one another. There should not be much need for their direct communication.

11. The remaining orders either replicate those sought by the parties and the Independent Children’s Lawyer or could not be the subject of any reasonable objection.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 September 2018.

Associate: 

Date:  19 September 2018