MAHONY & NIERRE

[2020] FamCA 897

FAMILY COURT OF AUSTRALIA

MAHONY & NIERRE [2020] FamCA 897

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where consideration of applicable principles – Where parental conflict between the parties is the salient issue of risk to the children – Where expert’s opinion that the children will benefit from time with the father considered – Where mother also holds the view that there is benefit to the children maintaining a relationship with father – Where orders made providing the mother with sole parental responsibility – Where orders made for the children to live with the mother – Where orders made for children to spend time with the father as agreed between the parties and be able to communicate with him at all reasonable times – Where appropriate to make orders permitting mother to obtain passport for the children and travel internationally with them without the father’s consent.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Family Law Rules 2004 (Cth) rr 11.02(2)(c), 16.07

Goode and Goode (2006) FLC 93-286
Mahony & Nierre [2016] FamCA 83
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT: Mr Mahony

RESPONDENT: Ms Nierre

INDEPENDENT CHILDREN’S LAWYER: Ms Dodson

FILE NUMBER: PAC 5871 of 2015

DATE DELIVERED: 23 October 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 3 September 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance by Godden Lawyers

COUNSEL FOR THE RESPONDENT: Mr Schroder

SOLICITOR FOR THE RESPONDENT: Rafton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders Made on 3 September 2020

1. That the children, C born … 2006 and D born … 2011 shall live with the mother.

2. That the mother shall have sole parental responsibility with respect to the children

3. That the father shall spend time with the children as agreed between the mother and the father.

4. That each party shall keep each other advised of their residential address and contact telephone number.

5. That each party be entitled to telephone and speak with the children at all reasonable times and at all reasonable frequency.

6. That the mother shall ensure that the father is advised promptly of any changes with respect to the children’s schooling arrangements.

7. That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the said children or either of them.

8. That the children C born … 2006 and D born … 2011 shall be removed from the Australian Federal Police Family Law Watch list.

9. AND IT IS REQUESTED that the Australian Federal Police give effect to the above order by removing the names of the children C born … 2006 and D born … 2011 from the Family Law Watch List.

10. That the mother shall be permitted to travel internationally with the children on holidays and the mother shall provide the father with not less than 6 weeks prior notice being:

    (a)Written notice of the mother’s intended overseas trip specifying date and time of departure, the travel destination, means of transport including mode of travel, contact numbers and addresses for the children or either of them during the trip and date of return.

    (b)Copy of the proposed itinerary for the intended trip.

    (c)Copy of any return airline tickets for the children including confirmation of payment.

11. In the event that either child requires a passport to travel internationally in accordance with these orders then C (male) born … 2006 and D (female) born … 2011 are permitted to travel internationally, and without the need for the consent of the father to be provided with respect to the issuing of a passport to C (male) born … 2006 and D (female) born … 2011. The mother shall be the only person with parental responsibility of the children C (male) born … 2006 and D (female) born … 2011 for the purposes of applying for, and being issued with, an Australian passport for C (male) born … 2006 and D (female) born … 2011.

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 Mahony & Nierre 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 PARRAMATTA

FILE NUMBER: PAC 5871 of 2015

Mr Mahony

Applicant

And

Ms Nierre

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings commenced by the applicant father by Initiating Application filed 2 December 2015.

2. The application concerns two children: C born in 2006 and D born in 2011 (“the children”) who at the time of the hearing were 13 and eight years old respectively.

3. In May 2020 the father indicated by way of email to the Court that he no longer wished to participate in the proceedings. He has since disengaged in the proceedings and the matter proceeded on an undefended basis.

4. At trial, the mother relied upon the following documents:

   a)her Amended Response to Initiating Application filed 9 June 2020; and

   b)her affidavit filed 5 August 2020.

5. The mother sought orders that she have sole parental responsibility for the children, that they live with her and spend time with the father as agreed between the parties, and that each party be entitled to contact the children electronically and that the father be advised of the children’ schooling arrangements. She also sought orders that the children be removed from the Family Law Watchlist and that she be permitted to travel with the children internationally and apply for their passports without the father’s consent.

6. The Independent Children’s Lawyer (“ICL”) supported the mother’s position.

7. Orders were made by the Court in the terms sought by the mother on 3 September 2020 and reasons were reserved. These are those reasons.

Context

1. The mother was 45 and the father 46 at the time of hearing.

2. The parties were married in their home country, Country B, in 1998 and moved to live in Australia in around 2001. They separated on a final basis in October 2013 after which time the mother and the children left the family home.

3. The parties’ son who is mildly autistic (“the son”) was born in 2006. Their second child, a daughter (“the daughter”) was born in 2011. Both children were conceived through I.V.F.

4. The parties were initially in dispute as to property settlement but those proceedings were resolved by way of final orders made by consent on 8 May 2020.

5. Until recently, the father has spent time with the children on a somewhat regular basis. Following his decision to disengage in the proceedings and move interstate with his new family in around May 2020, the father’s time with the children has been sporadic.

6. The mother has at all times been the children’s primary carer and members of the maternal family continue to support her in the maintenance and care of the children. The mother has also re-partnered, her new partner residing in the same household as she and the children.

7. Although the mother deposes to a history of family violence perpetrated by the father towards her, she appears cautiously supportive of the children’s relationship with him and has been agreeable to making them available to spend time with him at times agreed upon between the parties.

The proceedings

1. On 2 December 2015 the father commenced proceedings in the Federal Circuit Court of Australia seeking orders on a final and interim basis that the mother be restrained from leaving Australia and that the children be returned to Australia. At the time, the mother and children had been living in Country B for just over a year.

2. The matter was then transferred to this Court after it appeared that the father intended to also initiate Hague proceedings in Country B for the urgent return of the children.

3. On 2 February 2016 the mother filed a Response to the father’s Initiating Application seeking parenting and property orders. These orders provided inter alia that the children be permitted to temporarily live with her in Country B pending the sale of the former matrimonial home.

4. Shortly after, the father’s interim application seeking injunctions was dismissed. The Court considered it neither just nor convenient to make the orders sought by the father: (Mahony & Nierre [2016] FamCA 83).

5. On the same date, both parties were ordered to attend upon a family consultant as part of the Child Responsive Program, however, only the father attended in April that year.

6. It remained the mother’s intention at the time to continue living with the children in Country B and in July 2016 the father formally commenced Hague proceedings seeking that the children be immediately returned to Australia.

7. The proceedings before the Court were adjourned on a number of occasions in late 2017 pending the resolution of the Hague proceedings.

8. The mother and children voluntarily did return to Australia in December 2017 following which the Hague proceedings were discontinued.

9. In early January 2018 the father spent time with the children but retained them unilaterally from the mother for a period of two weeks.

10. The mother filed an urgent recovery application on 5 January 2018 and interim orders were made a few days later providing that the children be placed on the Family Law Watchlist and that they spend limited time with the father each alternate Saturday and each Wednesday after school (“the 2018 interim orders”). Orders were also made that the parties attend upon a family consultant for the purposes of the Child Responsive Program which they did in March of that year.

11. By early 2018, both parties had re-partnered.

12. At a court event before a registrar on 3 April 2018 orders were made by consent providing that the parties engage in a parenting course on children with Autism Spectrum Disorder. The parties also agreed that they would participate in the ‘Keeping Contact’ program and that an ICL be appointed to the proceedings.

13. Aside from parenting orders, interim orders were also made by consent relating to property. These property orders, in summary, provided that:

    (1)The former matrimonial home be listed for sale at a listing price as agreed between the parties and the proceeds of sale be applied as follows:

    (a)In adjustment of rates including water and council rates on settlement;

    (b)In payment of agent’s commission on sale;

    (c)In payment of legal and other costs on sale;

    (d)In payment of any mortgage encumbered against the property;

    (e)In payment to the wife the sum of $100,000.00;

    (f)In payment to the husband the sum of $100,000.00;

    (g)Balance remaining to be held in trust on behalf of both parties and to be invested in a controlled monies account in the names of both parties.

    (2)In the event the former matrimonial home does not sell by private sale within three months from the date of these orders then the parties shall do all acts and things and sign all deeds, documents and instruments as may be necessary to list the property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them ...;

    (3)In the event the former matrimonial home does not sell by public auction … the property shall be resubmitted for sale by private treaty … and the property shall be resubmitted for sale by public auction at six monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be provided as set out in clause 1 hereof.

    …

14. When the parties attended a conciliation conference in May 2018 further agreement was reached relating to property matters. With respect to parenting, the registrar noted that the mother no longer sought to live overseas with the children and the matter was listed for the First Day of a Less Adversarial Trial (LAT) in the next month.

15. A Single Expert was appointed to the parenting proceedings in August 2018 and at a case management hearing held later that month orders were made restraining the mother from attending the children’s school during the father’s scheduled time to collect the children on Wednesdays after school.

16. Further interim orders were also made by consent relating to the sale of the former matrimonial home. These orders provided, in summary, that:

    (1)In the event the property passes in at auction with the agreed reserve price of $870,000.00 the parties shall forthwith do all acts and things and sign all deeds, documents and instruments as may be necessary to list for sale the property… at a listing price as agreed between them and shall proceed to a sale of the property as a sale price agreed upon between them and following such sale the proceeds of sale should be applied as follows:

    (a)In adjustment of rates including water and council rates on settlement;

    (b)In payment of agent’s commission on sale;

    (c)In payment of legal and other costs on sale;

    (d)In payment of any mortgage encumbered against the property;

    (e)In payment to the wife of 35 per cent to her solicitors;

    (f)In payment to the husband 35 per cent to his solicitors.

    (2)In the event the former matrimonial home does not sell by private sale within three months from the date of these orders then the parties shall do all acts and things and sign all deeds, documents and instruments as may be necessary to list the property for sale by public auction with an auction agent agreed upon between them at a reserve price agreed upon between them ...;

    (3)In the event the former matrimonial home does not sell by public auction … the property shall be resubmitted for sale by private treaty … and the property shall be resubmitted for sale by public auction at six monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be provided as set out in clause 10 hereof.

    (4)That in the event that the parties are unable to reach agreement in relation to as such an agent, a real estate agent a listing price, a reserve price or a sale price whether a sale by public auction or by private treaty and remain in disagreement for 14 days or more then the parties agree and appoint the Chair for the time being of the Australian Property Institute New South Wales or his/her nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be equally responsible for the costs and expenses of the Chair or his/her nominee in making such determination, such funds to be deducted from sale funds if applicable;

    (5)The remaining balance of proceeds of sale in the sum of 30 per cent to be invested in a controlled monies account with [the mother’s solicitors] on behalf of the parties;

    ...

    (6)The payments of 35 per cent to each of the parties be by way of partial property settlement.

    …

17. For the following months, the father continued to spend time with the children pursuant to the 2018 interim orders without significant incident.

18. On various occasions between December 2018 and mid-2019 the family, including the parties’ new partners, were assessed by the Single Expert for the preparation of a Family Report.

19. Despite orders in place facilitating the sale of the former matrimonial home, by July 2019 this property had not yet sold. The mother then filed an Application in a Case seeking an enforcement of the orders for sale made in August 2018.

20. At a case management hearing on 16 September 2019 the mother pressed her Application in a Case relating to the sale of the property and did not consent to the referral of the proceedings to mediation. The Court noted on this occasion that the parenting and property proceedings can be re-joined and that both matters would be considered by the Court following the release of the expert family report.

21. The matter was listed for a case management hearing on 20 December 2019 at the request of the ICL who advised the Court that the parenting matter is unable to proceed in circumstances where fees for the expert report to be paid from the proceeds of sale of the parties’ property which had not yet been settled. By consent, orders were then made appointing a trustee for the sale of the property. In the course of the hearing further orders were made providing that the father spend specified time with the children after school in January 2020 and at such other occasions as the parties may agree in writing.

22. From around March 2020 at the escalation of the COVID-19 pandemic, the children spent increasing time with the father during the day as agreed between the parties. According to the mother, the father spent time with the children almost on a daily basis, which continued until May 2020.

23. In April 2020 the expert family report was released to the parties.

24. On 2 May 2020, and without notice to the mother, the father moved into a new home about 10 hours away from the mother’s place of residence. From this time it appears the father’s time with the children significantly decreased.

25. On 8 May 2020 the property proceedings were resolved by way of final orders made by consent that, in summary, provided that:

    (1)Within seven (7) days from the date of these orders, the husband and wife shall do all things, give all consents and sign all documents as are necessary to pay to the wife the sum of $3,280.45 .…

    (2)Within seven (7) days from the date of these orders, the husband and wife shall do all things, give all consents and sign all documents as are necessary to pay to the wife the entire remaining net proceeds of sale from the sale of the property …

    (3)It is NOTED that the husband and the wife have each already received a partial distribution of funds pursuant to orders dated 24 August 2018. The husband and the wife have each received funds being $195,330.77.

    (4)The husband shall retain to the exclusion of the wife his business … and shall indemnify the wife and keep the wife forever indemnified with respect to any liabilities arising from the said business.

    (5)The husband shall remain responsible for any or all liabilities in his sole name and shall indemnify the wife and keep the wife forever indemnified with respect to those liabilities.

    (6)The wife shall remain responsible for any or all liabilities in her sole name and shall indemnify the husband and keep the husband forever indemnified with respect to those liabilities.

    (7)Pursuant to Section 78 Family Law Act that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of all items of furniture, furnishings, personalty, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party's possession, custody or control together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation.

    (8)It is noted that the husband and wife shall be equally responsible for payment of all school fees with respect to the children.

26. The mother amended her Response to Final Orders on 9 June 2020 seeking that she hold sole parental responsibility for the children, that they live with her and spend time with the father as agreed between the parties, and that each party be entitled to contact the children electronically and that the father be advised of the children’ schooling arrangements. She also sought orders that the children be removed from the Family Law Watchlist and that she be permitted to travel with the children internationally and apply for their passports without the father’s consent.

1. The parenting matter was listed for a Second Day LAT on 24 June 2020 on which occasion there was no appearance by or on behalf of the father. The proceedings were adjourned for judicial case management to 24 July 2020 and it was ordered that in the event that there is no appearance by or on behalf of the father on the adjourned date, directions will be made for the mother’s application for final parenting orders to be heard on an undefended basis. The mother’s solicitor was ordered to provide a sealed copy of the orders to the father’s email and advise him of the consequences of his non-appearance.

2. On 24 July 2020 there was no appearance by or on behalf of the father and the matter proceeded on an undefended basis. The father’s application for final orders was struck out and dismissed and the mother’s application seeking final parenting orders was adjourned to 4 September 2020 for undefended hearing. The mother was directed to file and serve her evidence in chief and a short Outline of Case by 28 August 2020.

3. The undefended hearing was brought forward to 3 September 2020 due to changes in the judicial calendar and on this occasion, there was again no appearance made by or on behalf of the father and the mother was represented by counsel.

Procedural fairness

1. As outlined above, the father has failed to engage in the proceedings by failing to attend the Second Day LAT, a case management hearing and the final hearing in person.

2. At the hearing, counsel for the mother tendered an email (Exh “B”) sent by the father to the Court and legal representatives in which he expressed a desire to withdraw from the proceedings. He stated he would “not be attending the Court for anymore hearings” and added that “[the] Court can decide what they want to do for the children”.

3. A follow-up email sent by the father in June 2020 (Exh “B”) was also tendered by the mother’s counsel. Though the father canvassed in this email certain orders that would see him spend time with the children during school holidays, it was apparent that the father had no intention to participate in the court proceedings as he specifically wrote, “I will not be attending the Court as I live interstate”. 

4. Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:

   16.07Parties' participation

   (1)Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.

   Note: The court may dispense with compliance with a  rule (see rule 1.12).

   (2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.

5. Further, rule 11.02(2)(c) of the Rules provides:

   (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (c)determine the case as if it were undefended.

   … that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

6. Despite being informed of the consequences of failing to appear the judicial case management court event on 24 July 2020, the father did not attend on this date.

7. Neither was there an appearance by or on his behalf at the final hearing. The father, himself, stated that he was interstate and that he was adamant that he no longer wished to participate in the proceedings.

8. In these circumstances it was appropriate for the matter to proceed on an undefended basis.

The mother’s allegations: the father’s abusive behaviour

1. It is the mother’s case that the father perpetrated physical and emotional abuse towards her throughout their relationship.

2. The mother deposes that the father was often critical of her appearance and her outward demeanour and that the comments made by him in this regard resulted in heated verbal arguments between them. Other verbal abuse levelled at her occurred in the presence of the children.

3. During her pregnancies the mother asserts that the father physically assaulted her including that he would “beat me until I lost all the energy in my body and just fell on the ground”. She further deposes that although she made attempts to defend herself against the father’s abuse, these attempts would aggravate him and result in him continually “slapping my face or punching my head”.

4. In around February 2010 in the course of a domestic altercation between the parties, the mother claims that the father “became physical” and forcefully threw the son’s feeding bottle towards her in an attempt to hit her with it. Upon missing his aim, the bottle hit the back of the son who was then less than four years old. The mother immediately took the child to the doctor and it was recorded that the child had developed a lump as a result of the impact.

5. In May 2013 the mother deposes to a further verbal argument between the parties in which the father slapped her across the face. As a result of the father striking her, the mother was “bruised and bleeding” and thereafter sought medical attention.

6. In her interview with the family consultant for the purposes of the Child Responsive Program the mother further recounted instances of the father’s abuse including that he would “choke her, hit her in the head, back and jaw and hit her with a bin”. She also told the family consultant that the father had hit her in the presence of other adults and also threatened to hit her with other implements such as a bar and vacuum cleaner.

7. Similar accounts were provided by the mother in her interview with the Expert Report Writer. In that interview she described that the father “had a trigger point beyond which he would be argumentative and reactive and would admit to her that he could not restrain himself”. She also told the Expert that the conflict with the father “was never ending” and explained that:

   …[the father] has been emotionally, financially and physically violent…he belittled [me] and called [me] “a whore” as well as other abusive names… he would not give [me] spending money and would question [our] bills, for example, the amount of [my] telephone account… during both pregnancies, he tried to strangle [me] [and] pushed [me] against the wall…

8. Not long after the collapse of the parties’ relationship, and as a result of feeling “physically and mentally unwell”, the mother fled to Country B with the children in order to be morally and financially supported by her family. 

9. Although there have been no Apprehended Violence Orders in the matter, there is evidence in medical records produced on subpoena dating back to 2013 that the mother presented to her general practitioner as a victim of physical violence. This was considered by the Expert Report Writer who, for example, highlighted medical records of the mother presenting with “bruising to the upper and lower lip on the right corner and on the right side of the neck”.

10. Police records produced on subpoena also corroborate that the father has in the past acted aggressively and derogatively towards the mother and other members of her family.

Child Responsive Program Memorandum

1. As outlined above, the family met with the family consultant in March 2018 as part of the Child Responsive Program.

2. Most of the issues identified by the family consultant relating to the care of the children and the parties’ concerns about the shortcomings of the other, were replicated and further developed in the Expert Family Report considered shortly.

3. It suffices to say that in the Memorandum prepared by the family consultant, the family consultant was mainly concerned about the potentially negative impact on the children’s wellbeing and mental health from exposure to ongoing conflict between the parties, and the son’s strained relationship with the father which, in her view, stemmed in part from the father’s inability to effectively manage the child’s behavioural and cognitive difficulties.

4. The family consultant made no recommendations as to parental responsibility and live-with and spend-time arrangements, but urged the parties to engage in family therapy in order to assist them with addressing issues of ongoing parental conflict.

Expert Evidence

1. The parties, the children and each of the parties’ new partners met with an Expert Report Writer between late 2018 and mid-2019. The children were 12 and seven when interviewed.

2. In the course of her interviews with the Expert, the mother reported a turbulent marriage with the father. She said their relationship was characterised by family violence perpetrated by the father and great distrust between them. She further noted that their irreconcilable differences culminated in failed attempts at counselling and eventually their separation. Upon leaving the father in these circumstances and moving to Country B with the children, the mother told the Expert that she received little support from the father including that he was “reluctant” to provide her with child support and told her that he would only help with providing financial assistance for the maintenance of the children if she brought them back to Australia. Otherwise, she alleged that he became very controlling including that he would send her numerous harassing messages.

3. Although the father conceded to seeing the children on a flexible basis when they resided in Country B, he complained that when he noticed changes in the mother’s willingness to facilitate his time with them as well as changes in their demeanour towards him he became less agreeable to the children continuing to live overseas. The mother commented that though she was supportive of the father contacting the children “whenever he wished”, significant periods of time would pass without such occurring.

4. When discussing the incident in which the father retained the children from the mother around the time they had just returned to live in Australia, both parents provided differing accounts of the children’s experience at the time. The father told the Expert that he observed the children having a “very enjoyable time” with him and that they did not seem to miss their mother, while it was the mother’s recollection that the children were instead extremely distressed and “cried and cried” upon their return.

5. In addition to being “controlling and possessive”, the mother relayed, that which she asserted in her affidavit evidence, that the father was emotionally, financially and physically violent towards her. She, particularly, described various instances of physical abuse which included times he assaulted her during both pregnancies. As a result of some of the physical abuse she experienced at the hands of the father, the mother says she sustained bruises and injuries for which she sought medical advice. Reference was made by the Expert to medical notes produced on subpoena that report that the mother had suffered mentally as a result of “marital problems” that persisted between the parties and which were deleterious to her “self-worth and self-esteem”. Although during their relationship the mother says she had been advised to report the father’s abusive behaviour to police, she told the Expert that she refused to “upset the family harmony”.

6. The father denied that he ever perpetrated physical violence towards the mother and claimed that many of their arguments related to their cultural differences. With respect to financial matters, the father acknowledged that he controlled the family finances but added that the mother was a “big spender” and was “not responsible in her budgeting”. He also recounted that the mother was verbally abusive and asserted that the mother was directing her anger to the proceedings in order to embroil him in litigation.

7. As part of her assessment, the Expert Writer also reviewed a number of police records produced on subpoena and reported various belligerent attitudes displayed by each party. Taken together with the parties’ accounts of the family violence from before and after separation, the Expert noted that there appears to have been a “high level of conflict and some violence” between them and “ongoing hostility” to which the children have been exposed. She went on to say that:

   …[the parties] need to be mindful that children who are exposed to an involved in family violence and high levels of conflict are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety and temperament problems are not uncommonly seen in such children. They also sometimes manifest disorganisation of planning and organising functions, hypervigilance, poor inhibition of inappropriate responses and attention to distractions resulting in symptoms not unlike A.D.H.D.

8. When discussing matters relating to the children’s safety and wellbeing, family violence issues were again raised. The mother, in particular, stated that the children were exposed to the parties’ arguments and that on some occasions the father’s abusive conduct extended to the children. She recounted that the father swore at the son and that he slapped the daughter when she was just two years old. She further recalled the incident in which the father threw a bottle at her which instead landed on the back of the son’s head.

9. The father was mainly concerned that the mother had “adversely” impacted his relationships with the children by not returning them from Country B in around 2014 and by undermining his parenting role together with her new partner. While he acknowledged that he called the son an “idiot” on one occasion, he complained that the mother manipulated incidents as such and has imparted negative sentiments about him to the children in order to taint his image.

10. In their interviews with the Expert each child spoke in glowing terms about their mother but relayed contrasting views about the father. The son expressed strong aversion towards his father and recounted a number of negative experiences he had before and after separation. He stated that “there is nothing he enjoys about being with his father”. He later added that he no longer considered himself the father’s son and that “nothing could improve the time he spends with [him]”.

11. Conversely, the daughter appeared to be fond of the father and spoke positively about living with him and his new family in one household. She told the Expert that she enjoys spending time with her father, although she would like him to “play with her more”. Unlike the son who favoured the mother, the daughter expressed a desire to have a relationship with both parents.

12. The Expert observed these differing attitudes in the children during their observation with each parent. It was noted that when the children were observed interacting with their father and his new partner, the son was “avoidant of his father” and “initially resisted interacting with him”. The daughter, on the other hand, was affectionate to him. When observed with the mother and her new partner, the expert noted that the conversations the children had with them were more “free-flowing and relaxed”.

13. It was the Expert’s opinion that a number of factors could have impacted on the evolution of the children’s relationship with each parent. She enumerated some including:

    …the pre-separation behaviour of the parties and any observations [the son] in particular made of the dynamics and violence that had occurred in the family…the interruption in the children’s relationships after moving overseas…

14. The Expert further opined that the level of mistrust between the parties and their need to find reasons to “malign each other and their partners” impedes their ability to behave in a child focused way.

15. In regards to the mother’s capacity to provide for the emotional and intellectual needs of the children, the family consultant assessed that the mother had done this to a “satisfactory level” but that there are several gaps in the father’s behaviour in this regard. The Expert criticised, for example, the father’s decision to withhold the children from the mother for two weeks as “poorly considered” and commented that he appears to lack insight into how his behaviour such as his criticism of the son’s appearance and that of the mother and her partner, is damaging.

16. The Expert also raised concerns that while the children are not at risk of physical harm in the household of either parent, the nature of the parties’ dispute is that the children may be at risk of some psychological harm. It was the Expert’s view that following separation the children did not enjoy an “unfettered and open relationship with each parent” and instead became embroiled in litigation over property and parenting issues. In these circumstances, the children may have been denied safe, stable and secure living environments which in the Expert’s view may explain the son’s rejection of the father and his ambivalence towards his experience of the father.

17. While the Expert concluded that neither of the parents presented with any mental health concerns at the time of the assessment, she noted that some of their past and current behaviour including their need to control, inability to consider the perspectives of the other or take responsibility, impulsivity and emotional dysregulation are “highly counter-productive” to their co-parenting capacity and suggest some issues with personality dysfunction.

18. The Expert ultimately recommended that the children live with the mother and that the parties engage in family therapy with a view to improving their communication regarding sharing parental responsibility. It was also recommended that as part of the engagement with family therapy, the family explore options for repairing the son’s relationship with the father and spending time with him on an ongoing basis.

19. With respect to the daughter, the expert recommended that she spend increasing time with the father graduating to significant and substantial time with him.

20. Other recommendations were made that the parties complete various courses including parenting after separation, anger management and victims of family violence, and that the parties be restrained from discussing the dispute with the children.

Parenting

What are the relevant matters in determining the child’s best interests?

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Family Law Act 1975 (“the Act”) outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

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

6. The presumption relevantly does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   b)…

   c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. Having regard to the mother’s evidence outlined above, the Court is satisfied that there are reasonable grounds to believe that the father has perpetrated family violence in the course of the parties’ relationship. Against this background, the presumption shall not apply.

1. It is also readily apparent that parental conflict remains a serious issue between the parties that presents a barrier to productive and cooperative decision-making between them relating to the children.

2. The level of strain in the co-parenting relationship has been observed by the family consultant in her assessment of the family in 2018 as part of the Child Responsive Program, and by the Expert in her Report dated April 2020.

3. The Expert particularly noted in the context of considering whether equal shared care would be viable that:

   …equal shared care is contingent on parties having a capacity to communicate in a businesslike, cordial and respectful manner which places [the children] in the foreground. Even if the parties say they would like this and on occasions they do seem to be able to have face to face interactions, they are currently incapable of actualising that as a consistent goal…

4. She went on to conclude that:

   [The parties’] communication is compromised and their capacity to share responsibility for their children is rendered more problematic by the intensity and complexity of the dispute and their mutual lack of respect which seems to wax and wane.  

5. In these circumstances, in which it is clear that the parental relationship to date is very poor, the Court is satisfied that the order sought by the mother and supported by the ICL that she have sole parental responsibility is in the children’s best interests.

Best Interests

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

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

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

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

1. In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

2. In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:

   … the court should 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…

3. The mother has been the primary carer for the children at all times since birth and it is readily apparent that their primary attachment is to her. The orders proposed by the mother and supported by the ICL will maintain the meaningful relationship between the mother and the children as has always existed.

4. The children’s relationship with the father appears less stable given the time they have spent with him has been somewhat haphazard.

5. In the years the children lived in Country B, for example, they spent block periods with the father on four occasions which, although lengthy, were followed by longer periods of no time. During their overseas stay, their electronic communication with him was also limited since the mother says he seldom contacted them despite being at liberty to.

6. Some messages were also exchanged between the parties around this time in which the father expressed confusion about his ongoing relationship with the children and suggested that the best option may be to “walk away” from them.

7. It was not until court orders were made on an interim basis in early 2018 providing that the children spend time with the father each alternate Sunday and Wednesdays after school, that the father had more involvement in the children’s lives. However, it appears that his attempt to retain the children unilaterally from the mother for a period of two weeks set a poor tone in his future relationship with at least the son. The son became increasingly reluctant to attend contact with the father, and on some occasions returned from the father’s care “unhappy”.

8. Notwithstanding the children’s recent contact with the father during the COVID-19 pandemic organised by agreement between the parties, the son was critical of the father in his recent interview with the expert from which there appeared to be an underlying rift in his relationship with the father which casts doubt on whether the child seeks a further relationship with him.

9. While the daughter has been observed to enjoy a relationship with the father (and his new family) and on this basis is less oppositional towards him than the son, the father has moved interstate some great distance away from the mother’s home in Sydney. He also abandoned his application for time with the children and it is not clear where he currently resides as he has evaded providing the mother with information as to his future plans.

10. To the mother’s credit, despite the father displaying a lacked of preparedness to foster a more consistent, meaningful relationship with the children, she has nevertheless attempted to facilitate the  children’s relationship with him and has made them available to him on several occasions as agreed between the parties.

11. In her interview with the Expert Report Writer the mother stated that she was “not averse” to the children spending time with the father, and it was submitted on the mother’s behalf in written submissions that she recognises that there are benefits to the children in having a meaningful relationship with the father.

12. Given the mother displays a willingness to support the children’s relationship with the father, it is clearly appropriate to make orders that ensure the children remain in the mother’s primary care and that the father’s time be as agreed between the parties.

13. Should the father be motivated to maintain a more meaningful relationship with the children and be a more active parent in their lives, the mother proposes a further order that the father be entitled to telephone and speak with the children at all reasonable times and at all reasonable frequency.

Section 60CC(2)(b) – the need to protect

1. In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).

2. Without discounting the mother’s evidence of the father’s perpetration of family violence towards her in the past, there is nothing to suggest that the father is currently violent towards her and the children. Since separation, and as recent as July 2020, the mother has allowed and facilitated the children’s unsupervised time with him, including their overnight stays.

3. As touched upon earlier, what appears to be the salient issue relating to risk is the level of acrimony between the parties that may expose the children to negative parental dynamics.

4. In her Report dated April 2020, the Expert evaluated that “the nature of the dispute is that the children are at risk of some psychological harm”. It was her observation that especially for the son who presents with symptoms of autism, exposure to the acrimony that exists between the parties may have a thwarting effect on his psychological development. She later opined that:

   [The son] seems to be resorting to avoidance and aligning himself with one parent. He demonstrates some mental health fragility and vulnerability and they therefore need to be relieved from any environmental stressors that might trigger mental health concerns. While [the daughter] seems more robust and resilient, she also seems to be hyper-vigilant and scans her environment to assess the situation in order to minimise the conflict.

   …

   Poor anger management by parties within the context of a relationship also provides children with an unhealthy role model of how to manage their emotions in a regulated way.

5. Further in her Report, the Expert concluded that another “concerning dimension” of children being implicated in high levels of acrimony between their parents is the risk that they may “manipulatively play one parent against the other”.

6. So far as the father has moved interstate and is in that way no longer in close proximity to the mother and the children or readily available to spend frequent time with them, the risk of exposure to negative parental dynamics is somewhat minimised.

7. There is also evidence that on various occasions the parties have had the capacity to agree amicably upon the father spending additional time with the children outside the hours stipulated in court orders.

8. The mother also appropriately seeks an order that neither party denigrate or permit any other person to denigrate the other party, or any member of the other party’s household, in the presence or hearing of the said children or either of them. This can militate against the children being exposed to residual hostility between the parties.

9. Other than in relation to matters relating to parental conflict, the Expert did not identify indicators that the children are at risk in spending time with the father.

10. The Expert specifically denied that the children were at risk of physical abuse by the father and instead recommended the family engage in family therapy to address the fraught communication between the parties and encourage the children’s relationship with the father and see them spend significant time with him in the future.   

11. The mother herself did not attest to the father perpetrating serious physical violence towards the children in her Outline of Case. In any event, and as aforementioned, since separation the mother has shown herself to be adept at exercising discretion as to when it may be in the children’s best interests to allow them to spend time with the father.

12. In circumstances where it is also appropriate that the mother hold sole parental responsibility going forward (which itself may help mitigate the risks of parental conflict), the order sought by the mother and supported by the ICL that the children spend time with the father as may be agreed between the parties, will allow the mother to facilitate their time with the father as she deems fit and in circumstances where she is confident that the father will not pose a risk of harm to the children that is unacceptable.

The additional considerations: s 60CC(3)

1. Section 60CC(3) sets out the additional considerations:

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

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

   i)Each of the child's parents; and

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

   (c)The 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;

   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;

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

   i)Either of his or her parents; or

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

   iii)With whom he or she has been living;

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

   f)The capacity of:

   i)Each of the child's parents; and

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

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

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

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

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

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

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

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

   k)If a family violence order applies, or has applied, 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:

   i)The nature of the order;

   ii)The circumstances in which the order was made;

   iii)Any evidence admitted in proceedings for the order;

   iv)Any findings made by the court in, or in proceedings for, the order;

   v)Any other relevant matter;

   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; and

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

2. Many of the considerations above are relevant in the context of the background matters discussed. These considerations as discussed below as a whole support the orders made.

3. The son was 12 years old and the daughter seven when they were interviewed by the Expert. When assessed by the family consultant in 2018 they were a year younger. It appears from both assessments that both children varied significantly in their views of their parents and their desire to spend time with each of them. For example, in their recent assessment with the Expert it was evaluated that:

   …[The daughter]…indicated she enjoys the time she spends with her father, the activities he organises for her and that her connection with his newly formed family including her step-mother, step-sisters and [half‑sister] is strong. As for [the son] it seems that even if he has enjoyed activities such as fishing with his father in the past, he now chooses to deny that experience to reinforce his rejection of his father.

4. Though no express comment was made that their views be discounted, only some weight is attached given their ages and maturity levels and the fact that the son has a number of “developmental compromises”.

5. It is clear that the children’s primary attachment is to the mother and that since birth she has been their primary caregiver. As discussed above, the children’s relationship with the father is less secure. Not only has the father’s time with the children waxed and waned, he has also exhibited a lack of commitment to foster his relationship with the children, even more so by abandoning his application for time with them. Notwithstanding, the mother has shown a willingness to support the father’s relationship with the children and in her affidavit evidence indicated that she is generally agreeable to the children spending time with the father upon his requests “so that [the children] continue to have a relationship with him”.

6. In keeping with the Expert’s recommendation that the father be increasingly involved in the children’s lives, the mother’s proposal that he spend time with them as agreed between the parties sufficiently encourages the father to improve and develop his relationship with the children should he so desire. Other orders the mother seeks including that the father communicate with the children at all reasonable times and frequencies and that he be advised of any changes to the children’s school arrangements, are also supportive of the Expert’s view that the children benefit from maintaining a relationship with the father.

7. There is no question as to the mother’s capacity to meet the children’s needs nor her attitude towards fulfilling her parental obligations, given she has been primarily responsible for their daily needs since birth. Although she previously raised concerns about her ability to financially support herself and the children, she is now employed and is also assisted by members of the maternal family and her current partner with whom she and the children live. According to expert evidence, both children also share close relationships with the maternal family, and have spoken positively about their relationship with the mother’s partner who they refer to as “dad”.

8. Whilst the mother acknowledged that early in the parties’ relationship the father helped her with some housework upon her request and at times minded the children as she prepared meals for the family, she complains of his relegation of, and poor attitude towards, his parental responsibilities in recent years. The father currently pays $50.94 per month in child support but has otherwise made very little contribution to the maintenance of the children following separation. Despite property orders made with the consent of the parties that provide that they share the costs of the children’s school fees, the mother contends she has been “fully responsible” in meeting these expenses.

9. Importantly, the father has had little involvement in decision-making about long terms issues relating to the children, much less the management of the son’s ongoing special needs.

10. Coupled with his disengagement in the proceedings, and his dismissive attitude that is evident in his communication with the Court in which he stated he intended to “move far away to live in peace” and “start a new life…for [his] own mental health and wellbeing”, it is clear that the father has failed to take the opportunity to be present in the children’s lives and has not acted in a child‑focused way. The likely inference is that he has placed his own needs before the children’s.

11. The orders proposed by the mother and supported by the ICL would not disrupt the status quo for the children with their mother as primary carer. The Expert gave particular regard to the incident in which the father unilaterally retained the children in his care and the children were separated from the mother for a period of two weeks. She opined:

    …any irrational fears that have since been instilled in the children’s minds, in particular [the son], that if they spend time with their father they will not be returned has been counterproductive to the children’s relationships with their father moving forward. Such threats have planted the seeds of anxiety…those anxieties have rendered [the son’s] separation from his mother difficult.

12. The mother in her written submissions noted, however, that the children “are likely to be emotionally affected by the loss of a relationship with the father if he continues to abandon his relationship with them”.

13. In these circumstances, the orders allowing the children to spend time with the father as agreed between the parties and communicate with him on a regular basis would send a positive message to the children that the mother has the capacity to be supportive of maintaining their relationship with the father, and that equally, the parties can work together in their interests.

1. Should the mother deem it appropriate, and negotiate with the father that the children spend time with him to maintain their relations with him, it is her evidence that there is little practical difficulty to prevent contact taking place. While she highlights that the father now relocated interstate some hours away from the children’s current residence, she notes that in the past there has been agreement in relation to the time the father chooses to spend with the children and that she has subsequently facilitated his requests. In any event, communication via telephone would help overcome any practical difficulty from the father having meaningful contact with the children that may stem from his geographical distance.

2. The children are of Country B heritage. Residing with the mother would see the children involved in their culture of origin, even more so since it is the mother’s intention to be able to return with the children to Country B in order to spend Christmas with the extended maternal family.

3. The orders sought by the mother would be least likely to lead to the institution of further proceedings given the father’s non-attendance before the Court and failure to engage in the proceedings.

4. A consideration of the s 60CC factors, and the reality that the children share a more secure and close relationship with the mother than with the father, supports the making of orders as sought by the mother and supported by the ICL as being in the best interests of the children.

5. The mother also sought orders which would permit her to obtain a travel document for the children without first obtaining the consent of the father. The holding of sole parental responsibility does not entitle that party to obtain a passport for children absent the consent of the other parent. In the circumstances of this matter in which it appears the father has been ambivalent towards his parental responsibilities, it is proper for the mother to be able to obtain a passport for the children without the consent of the father and to be able to travel with the children as she wishes. In these circumstances, it is also appropriate that the children’s names be removed from the Family Law Watch List as sought by the mother.

6. All the aforementioned considerations are indicative of orders being made in the best interests of the children as sought by the mother.

7. Orders will be made accordingly.

I certify that the preceding one hundred and forty four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 23 October 2020.

Associate: 

Date:  23 October 2020