MAINOR & MAINOR

[2020] FCCA 2269

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAINOR & MAINOR [2020] FCCA 2269

Catchwords:
FAMILY LAW – Part heard proceedings – whether interim parenting orders should be imposed for the benefit of the children between now and the final conclusion of the proceedings – future care arrangements – child’s right to meaningful relationship with both parents – issues as to paternity as with respect to only one child of the proceedings – both children alienated from their father and exposed to toxicity between the parents – circumstances where the oppositional views of the children to their father have been overtly influenced by the mother – benefit of children’s relationship with their father – admission by mother that evidence of family violence fabricated.

Legislation:

Family Law Act 1975 (Cth), Part VII; ss.60B, 60CA, 60CC(2), 60H, 61DA, 61DA(2), 65DAA, 65DAA(5), 65Y, 69ZL

Cases cited:

Goode & Goode (2006) FLC 93-286
Aldridge & Keaton (2009 FLC 93-421

Rice & Miller (1993) FLC 92-415

Stevenson & Hughes (1993) FLC 92-363
Burton & Churchin & Anor (2013) FLC 93-561
Harrison & Woollard (1995) FLC 92-598
R & R Children’s Wishes (2000) 93 FLR 000.

Applicant: MR MAINOR

Respondent: MS MAINOR

File Number: PAC 2182 of 2014

Judgment of: Judge Harman

Hearing dates: 10, 11 March 2020

Date of Last Submission: 11 March 2020

Delivered at: Parramatta

Delivered on: 11 March 2020

REPRESENTATION

Counsel for the Applicant: Ms Mahony

Solicitors for the Applicant: Australian Family Lawyers

Counsel for the Respondent: Mr Hartnett

Solicitors for the Respondent:	Genuine Legal
Counsel for the Independent Children’s Lawyer	Mr O’Brien

Solicitors for the Independent Children’s Lawyer Legal Aid NSW Parramatta

ORDERS

1. Adjourn the proceedings Part Heard.

2. List the matter for continued trial to 3 and 4 September 2020.

3. Order pursuant to Part 15 that the parties commission an addendum or updated report from Dr B.

4. Note: Dr B may not be able to conduct interviews in a sufficiently timely fashion (through nothing other than pressure of work) to enable the above hearing dates to be retained and, if they cannot, the parties are to liaise in accordance with protocols for communication with Chambers with my Associate as to the allocation of fresh hearing dates.

5. Pending further Order, I suspend all and any existing orders providing for Mr Mainor’s practice of relationship with the children, X born in 2006 and Y born in 2009.

6. Pending further Order, X and Y shall spend time with their father:

   (a)Each alternate week from the conclusion of school (or 3pm if not a school day) Friday until the completion of school (or 3 pm if not a school day) the following Friday, first such period to commence 13 March 2020; and

   (b)For one half of each school holiday period (being the holidays applicable to the school the child or children attend) and absent agreement to the contrary between the parents, for the first half of each such holiday, being:

   (i)In short school holidays from the conclusion of school on the last day of school term until 6pm on the middle Saturday of the school holiday (with changeovers to then occur by the children being collected by Ms Mainor from Mr Mainor’s home) and

   (ii)In the Christmas school holidays from the conclusion of school on the last day of school term until 6pm 9 January.

7. At the commencement or conclusion of each school day and for 15 minutes prior to and thereafter, Ms Mainor shall ensure that she is not present at or in the vicinity or within sight of either child’s school on days when Mr Mainor has the children in his care and is thus responsible for delivering the children to and collecting the children from school.

8. Neither child shall be permitted to take with them to the home of the other parent a mobile telephone of their own, and, in the event that communication is to occur between the children and their other parent, then it shall be facilitated by the parent who has their care at that time.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2182 of 2014

MR MAINOR

Applicant

And

MS MAINOR

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to future care arrangements for two children:

   X, born in 2006, (presently aged 13, soon to turn 14); and,

   Y, also known as Y, born in 2009, (presently aged 10, later this year to turn 11).

2. The applicant to the proceedings is Mr Mainor, the biological father of X and, to adopt the American terminology, at least at the time of separation of these parties, the “emotional father” of Y.  The children’s mother, Ms Mainor, also known as Ms Mainor, is the respondent to the proceedings.  X and Y’s interests are independently represented by an Independent Children’s Lawyer.

3. There is also a person of interest to the proceedings, if they might be so described – a Mr C, also known as Mr C.  He is asserted to be the biological father of Y, although the evidence does not speak to that issue in any satisfactory way that would permit a finding to be made. 

4. There are also issues regarding the purported, desired or eventual participation of Mr C in these proceedings which were partially dealt with at the commencement of the trial but which will need to be addressed in due course.  Those issues are, I am satisfied, matters for final hearing. 

5. I am not satisfied, at this point, that I need be concerned that Mr Mainor and Ms Mainor are other than the necessary parties to enable these proceedings to be concluded at an interim stage.

Interim Determination

1. These reasons are given in short form pursuant to section 69ZL of the Family Law Act 1975 (Cth).

2. The matter has been before this Court for a trial which commenced Monday of this week.  Today is the third day of the trial.  There have been various interruptions which have caused time to be lost at different points, however, the matter has consumed all three days of hearing subject to those disruptions. 

3. The matter will now be adjourned part heard for a further two days of hearing and for a period of approximately six months, the earliest date that can be accommodated by the calendar and the availability of all counsel, including the Independent Children’s Lawyer and the report writer.  The determination that is made today, accordingly, deals with the interim arrangements that will apply for these children during the adjournment. 

4. The interim determination arises as a consequence of and based upon the evidence given to date.  I make clear that the evidence is not completed. 

5. Mr Mainor’s case, as the applicant, is completed subject to any further tenders which might arise. 

6. Ms Mainor’s case is, as it were, in its infancy.  Ms Mainor took the witness box late on the first day of trial and has recently completed cross‑examination.  Consideration is yet to be given to any re-examination.  There remains one, possibly two further witnesses in Ms Mainor’s case before the report writer.

7. The report writer has given evidence briefly today, being evidence confined to the issue of whether Interim Orders can or should be made, and, if so, what Orders might be made.

8. Once cross-examination of all witnesses is completed, the trial will conclude with submissions. 

9. An interim determination is not taken lightly.  I am conscious that once a final trial has commenced, a matter should proceed to its natural conclusion rather than decisions being made on an interim basis during the trial and on incomplete evidence.  There are a number of difficulties with that approach in this case. 

10. Firstly, there will be a significant delay before the matter can resume.  That is the least of my concerns.  If there are delays, so be it.  The matter cannot be brought on more quickly.  There is other work waiting and pressing which cannot be displaced in the next week or so and counsel for each of the parties must be considered as to their availability. 

11. Secondly, and perhaps the predominant reason, is that the evidence that is led in these proceedings causes, as the family report writer opines at paragraph 234, very real concerns:

    …about the wellbeing of both Y and X.  Both children presented as alienated from their father and have clearly been exposed to toxicity between the parents.

12. [I pause to observe that the phrase “toxicity” is readily adopted by Ms Mainor throughout her evidence.]

13. The report writer continues in a fashion that is not adopted by Ms Mainor:

    The mother has set-up an alternate family for the children with Mr C as [the putative] father of Y.  I am strongly of the view that she has no intention of facilitating or encouraging Y ever having contact with Mr Mainor and, in fact, may continue to obstruct any friendship or bond that Y has with Mr Mainor.  I also think she has a very limited willingness to facilitate and encourage X’s relationship with his father, despite her verbal assurances that she sees it is in X’s best interests.[1]

    [1] Paragraph 234 of Dr B’s report dated 29 January 2019.

14. It is on the basis of those concerns, which have become readily apparent through the first three days of this trial, and the evidence presented thus far that I intend to determine interim arrangements for these children. 

15. Thirdly, and lastly, the arrangements for these children have been chaotic, at best, since the separation of these parties.  It is common ground that the parents separated from each other on a final basis in March 2014 or thereabouts. 

16. The parties entered into Consent Orders with respect to both children in June 2014.  At that point in time, there was no controversy, at least in the mind of Mr Mainor, that Y was other than a child of the marriage.  At about the same time as those Consent Orders were entered into, Ms Mainor alleges that she commenced a cohabitation relationship with Mr C.  Thus, the alternate family structure referred to by the report writer came into place at about the same time as the arrangements were put into place for the children’s  practice of relationship with each parent, then understood to be Mr Mainor. 

17. The Orders of June 2014 provided that the children were to spend time with their “father”, absent agreement to the contrary, each alternate weekend during school terms from Friday to Sunday and for half of each school-holiday period.  It is common ground, in this case where there is precious little common ground, that those arrangements did not occur or occur in any meaningful sense after the Orders were made.  The arrangements were, at least in part with Mr Mainor’s initiation, generally non-overnight periods.  At times it would seem that some overnight time may have occurred.  I need not determine that controversy at this point. 

18. The arrangements continued in that fashion until Mr Mainor, having formed a suspicion that he may not have been the biological father of Y, undertook one, and then a second, paternity test as between he and the child.  Those tests excluded Mr Mainor from paternity of Y. 

19. The evidence in relation to the circumstances in which Y was conceived is absent the evidence before this Court, although I do not suggest that the titillation of specific description is necessary.  It is simply that Ms Mainor is the only one who would be aware of the circumstances of the child’s conception if Y’s father was not Mr Mainor. 

20. Mr Mainor’s evidence is that a complicated ruse was put into place whereby he and Ms Mainor, who had not at the point of conception of young Y engaged in intercourse with each other for well over a year, took a weekend or night away, at which time, it would seem, they did have sex, and thereafter the disclosure was made of pregnancy. 

21. I am conscious of that which fell from the Full Court in Goode & Goode (2006) FLC 93-286, particularly paragraph 68 thereof. The Court should, at any interim determination, be loath to make findings of fact, and any finding of fact should be confined to that which is strictly necessary, preferably based on concession, and, if not, based on overwhelming corroboration.

22. I propose to limit findings of fact, although a matter that will need address at the conclusion of the proceedings is the extent to which Mr Mainor’s version of events, certainly consistent with the evidence led to date, is accepted as against the absence of discussion of the issue on the part of Ms Mainor. 

23. It is suggested throughout Ms Mainor’s evidence that Y is the biological child of Mr C.[2]  A copy of Y’s birth certificate is annexed as proof positive of that fact, however, there is nothing beyond that assertion.  Whilst I accept that the Family Law Act 1975 creates a presumption of paternity by the inclusion of a “father’s” details on a birth certificate, it is nothing more.  The presumption is rebuttable.  The evidence is no more complete than that mere assertion.  It is to be remembered that Mr Mainor was on the birth certificate until he was removed by Court Order. 

    [2] Paragraph 8 of the Affidavit of Ms Mainor filed 28 September 2018.

24. Otherwise, the description simply arises at paragraph 61 of the report onwards, wherein it is asserted:

    In January 2015, I became aware that Mr Mainor had taken the boys to the doctor for testing.  Mr Mainor told me it was for DNA testing and he had had it done twice.  At that time, Mr Mainor had confirmation that Y was not his biological son. 

25. The evidence in that form leaves open the possibility, as was put clearly by counsel for Mr Mainor to Ms Mainor, that Ms Mainor was at all times fully aware that Mr Mainor was not the child’s father. 

26. Whilst Mr Mainor is criticised for initiating certain processes with respect to a declaration of paternity, it is to be remembered that this was clearly in the context of his being assessed to pay child support and Ms Mainor being apparently unwilling to cancel the assessment.  I accept from the evidence led thus far and tested (being, at least, the evidence of the parties – the other witnesses to come having no personal knowledge of the issue) that Ms Mainor was dragging the chain, as it were.  There were steps that could have been taken simply to address that issue without the need for a Court process at all.  That, perhaps, commenced that which was described by the report writer, Dr B, as a focus of these parents, and including, now, the focus of these children, upon financial issues.[3]

    [3] Paragraph 227 of Dr B’s report dated 29 January 2019.

27. Those earlier Parenting Orders thus did not ever operate in any meaningful way, and by the time of the paternity testing, real difficulties then began between these parties.  The evidence would suggest that the co-parenting relationship had been short of cordial, but certainly also short of toxic when the Orders were made.  It became thus at the time of the disclosure and, most assuredly so, by the time of the child support proceedings. 

28. Certain complaints were then conveyed to the Department of Family and Community Services with respect to suggested sexual abuse of the children, or at least X, by the father.  I accept the version of events given by the children to officers of the Department of Family and Community Services as set out in the material that is tendered and exhibited.[4]

    [4] Exhibit A1.

29. X did not make any disclosure of abuse.  What he did report, to paraphrase that document, is that he had been told certain things by his mother.  That is very much spoken to, although not as a finding of fact, by the report writer at paragraph 173 of the report. 

30. Following those events in February 2016, there was then no time spent by the children with their father, with one exception when the father had collected the children from their school.  Thereafter, it would seem that the school was told by Ms Mainor that Mr Mainor was not Y’s father and, accordingly, he was not to collect that child.  There were certain steps and actions taken by the parents, each of them, with the school, some of which were unnecessary or inappropriate but need not be canvassed at this point, but they were not successful in resolving the issue. 

31. The father did arrange for the school to provide gifts to the children through the school on a regular basis.  I accept that the children were collected by the mother early on the Fridays that Mr Mainor was to collect them from the school, so that even if he had attended, they would not have been present.  That circumstance continued until September 2016.  At that point in time, on or about 12 September 2016, the mother removed both children from the Commonwealth of Australia, I accept and find, without the father’s consent or knowledge. 

32. An email is suggested to have been forwarded by the father to the mother responding to a proposal for the children’s departure, ostensibly for a holiday, as the email communicates, and the father responding simply “noted”.  That email is addressed in a report by a forensic computer analyst, Mr D.  I accept his evidence.  He was not required for cross-examination.  Certain other concessions were made by Ms Mainor with respect to email communications.  The subject email was not sent by the father. 

33. Following the children’s unlawful removal from the Commonwealth, in breach of section 65Y of the Family Law Act 1975, the children travelled via Country E to Country F.  Some weeks after, the mother returned briefly to Australia before then travelling to Country G.  The mother describes that she then met up with and became engaged to her long-distance partner, Mr H.  There is some contention on the evidence as to whether Mr H is, in fact, one and the same as Mr C.  I need not determine that controversy. 

34. Some indication is given that it is possible that a different circumstance arises.  In the report interviews, both children describe that Mr C lived with them in Country G.  The mother denies that it is so.  Indeed, in her evidence, she was clear that she did not necessarily know at all times where Mr C was, other than that he was possibly in City J, Country G and that they had separated and their relationship terminated.  I do not accept that this was so. 

35. Clearly, Mr C remained in or about Country G.  The mother was in contact with him and, in all probability, although I need not pursue it to the point of a finding at this time and will await further submissions and the closing of all evidence, Mr C may have lived with the mother and children.  That is certainly consistent with what these children, each of them, communicated to Dr B. 

36. As Dr B describes in her report and amplifies in her limited testimony today, both children, but particularly young Y, became somewhat anxious and distressed when they perceived that they had spoken too much (see, for example, paragraph 142 of Dr B’s report). 

37. The mother remained living in Country G with the children, who travelled over from Country F in December 2016, until 3 October 2017.  At that time, the father had located the mother and had commenced proceedings, presumably through the Central Authority, for the children’s return. 

38. By that point, these proceedings had come before this Court on a number of occasions without the mother’s participation.  I accept and am satisfied that the mother was aware of the proceedings.  She concedes that certain documents, including copies of Orders, had been sent to her.  Indeed, the mother had communicated with the Court on 3 December 2016, impermissibly as regards the Court’s protocols for communication, saying that she was aware that there had been an Application made with respect to the children on 1 November 2016 scheduled to come before the Court on 6 December. 

39. She protested she had not been served with documents and did not know any reason for the hearing and, accordingly, sought adjournment until at least two to three weeks after the new school term commenced.  That correspondence makes no reference to the mother and children being absent the Commonwealth - the children, at that point, in Country F, the mother in Country G. 

1. The complicating issue with respect to those matters is that when Ms Mainor travelled to Country G, she clearly travelled with Mr C.  It is conceded that it was so, although the mother was at pains to point out that whilst they were on the same plane and going to the same destination, they were not travelling together. 

2. The maternal grandmother had also travelled to Country F, whether with the children and mother or separately, and may well have been minding the children in Country F whilst the mother returned to Australia and then travelled to Country G. 

3. On 3 October 2017, the proceedings came before the Country G Superior Court.  The children spoke briefly with their father.  The mother was present at Court and it would seem, from questions put during cross‑examination in these proceedings, certain questioning, whether by cross‑examination or otherwise, was undertaken.  The mother indicated that she held only Australian passports for the children with her in the Country G.  She conceded she held Country F interior passports for the children but suggested, on her evidence to the Country G Superior Court, that those passports were not present in the Country G. 

4. However, that very evening, having lodged the Australian passports with the Court, the mother, using the Country F passports, decamped with the children from the Country G back to Country F.  She remained there until early 2018, in or about February returning herself.  The return followed upon the mother becoming aware of certain Orders and a listing before this Court to enable Mr Mainor to prosecute an Application to be made trustee for sale of the mother’s real property to enable him to obtain funds to address the children’s return and proceedings in foreign jurisdictions. 

5. Earlier, a stay of child support collection had been issued, although the Child Support Registrar subsequently appeared, raised objection and appellable error and, with the consent with Mr Mainor and his counsel, that Order was discharged ab initio.  Thus, following the return of the children to Australia, Orders that had been made in the mother’s absence for the children live with Mr Mainor were suspended, and Orders instead put in place for Mr Mainor to spend time with the children, and each of them, each alternate weekend, Friday to Sunday, and parts of holidays – the very arrangement that had been ordered four years earlier.  That arrangement has continued. 

6. On the evidence of Mr Mainor, as to which he was not challenged in any substantial way, there were difficulties initially, particularly in 2018, with the children’s behaviour towards him.  Thereafter, things would appear to have settled down somewhat, although the only concessions made by Ms Mainor, somewhat begrudgingly, are that X does sometimes enjoy himself, as does Y if Y is engaged in activities that he enjoys. 

7. Ms Mainor’s evidence, although there is no corroboration thereof, is that Y has recently experienced stomach pains and been referred to a doctor, possibly a psychologist or psychiatrist, to explore and investigate a psychosomatic basis.  However, it is merely an assertion.  The assertion is not contained in the mother’s evidence and it is certainly not, as I have indicated, corroborated. 

8. The substantial evidence that is relevant can be readily identified.  There are two sources for it.  Firstly, on the basis of Ms Mainor’s evidence, I could not be satisfied, subject to hearing submissions from her counsel in due course, as to why I should accept her as a witness of truth.  Ms Mainor has conceded that she manufactured various emails which are suggested to contain threats uttered towards her by Mr Mainor.  The report of Mr H makes clear that those emails did not emanate from Mr Mainor’s server, and that is ultimately, albeit after a circuitous and obfuscatory address of the issue, conceded by Ms Mainor. 

9. Various other aspects of the evidence are conceded as manufactured or untrue, such as statements suggested to have been made by Ms Mainor to Country G Police and thus reported through a child welfare agency and to the Court, and Ms Mainor’s evidence to the Country G Superior Court that she did not hold the Country F passports in the Country G when clearly she either did or was able to replace them extremely quickly.  There are other examples.  I need not enumerate them all at this time.  It is best that it not be so. 

10. I do not suggest that the matter proceeds on an interim basis purely because Ms Mainor is not accepted, at this point, as a witness of truth, (although her evidence could not satisfy the Court that it was so).  I proceed on the basis of the second and more substantial aspect of evidence that causes real concern, being that with which I commenced -Dr B’s report. 

11. Dr B is clear in her view[5] that X’s views oppositional to his father have been influenced by the mother and that the contamination of those views has been occurring for many years. 

    [5] Paragraph 173 of Dr B’s report dated 29 January 2019.

12. The bases Dr B identifies that she relies upon in expressing that opinion are substantiated and supported by the evidence before the Court, that is, that there are instances where X has been directly influenced with false statements made to him and/or statements put to him, whether false or otherwise, which are not his own and, secondly, that Mr C was, at a very early point after separation – approximately eight weeks after – moved into Ms Mainor’s home and they became a family unit held out to both children as alternate and preferable to Mr Mainor as a father. 

13. The final issue Dr B identifies is that there is the presentation of various complaints with respect to Mr Mainor repeated by the children which simply have no basis in fact, the most fundamental of which is the children’s anger towards their father that he is responsible for all of the unsettled and disrupted arrangements in the period 2016 to 2018.  Ms Mainor, possibly in concert with members of her family and/or Mr C, are responsible for those disruptions – no one else. 

14. I do not suggest that these proceedings - it is perhaps regrettable in many ways that it is not so - are dealt with in the same fashion as a criminal matter, with the establishment of certain facts leading to an inevitable conclusion.  The difficulty is that the recording of facts, to the limited extent that they need be recorded at this point, does not lead to an inevitable conclusion.  It simply then leads to the address of Part VII of the Family Law Act 1975 and determining what is best for these children. 

15. As Baker J was wont to observe, children should not be punished for the abhorrent behaviour of their parents.  In this case, these children should not be further disrupted or unsettled or their interests prejudiced as a consequence of, as Dr B described, their mother’s poor decisions.  Some of those decisions were, indeed, extremely poor in many respects. 

16. The family report suggests that X’s views are disproportionate to his experience of the father, (paragraph 181).  He is described as being highly influenced by his mother, (paragraph 180), being coached (and demonstrably so) by his mother in relation to the sexual abuse allegations, (paragraph 178), directly and indirectly influenced by his mother, as demonstrated by his counselling notes, (paragraph 174) and having a high degree of emotional immaturity, (paragraph 172). 

17. X’s complaints with respect to his father are described as exactly echoing the complaints of his mother, (paragraph 171).  It is suggested, with respect to Y, that his views are extremely rigid and negative, (paragraph 182), similarly, that they entirely reflect the views of his mother, (paragraph 184) and are, in all probability - and the basis upon which that opinion is expressed is, to my satisfaction, established by the evidence - influenced by his mother’s views and particularly his mother’s perception of a new family being a better alternative, (paragraph 184). 

18. Both children are described as having a very close relationship with their mother, (for example, paragraphs 186 and others).  However, that must be seen in light of Dr B’s evidence that this is not necessarily healthy when the closeness of that relationship, whilst containing aspects of good parenting, are also founded in the children having a false reality created for them as to the past and present and, thus, potentially, significantly impacting their future. 

19. The bitterness and acrimony between the parents is also suggested to severely disadvantage these children and, at paragraph 232, it is suggested to utterly eclipse the capacity for either parent to functionally communicate with the other.  Certainly, Mr Mainor is angry and bitter towards Ms Mainor, notwithstanding his protestations that it is not so, (although I accept his evidence, at least conditionally, that it is not his primary motivation in these proceedings). 

20. Ms Mainor would appear to offer a litigation theory that Mr Mainor is simply conducting this litigation to get back at her, particularly with respect to Y – she having offered, in response to questions from the Independent Children’s Lawyer, that he has no genuine desire to see the child and form a relationship with him, but simply is pursuing that portion of his Application to “hurt her”.  I simply reject that position.  I accept that Mr Mainor has a genuine desire to prosecute a relationship with both of the children.  It is a relationship, however, which is presently very troubled. 

21. It is troubled as regards the children’s relationship with their mother, they being described as enmeshed, and there being some questions as to the health of that relationship in meeting the children’s needs, particularly in light of that which was confirmed with Dr B as being the likely findings of this Court that Ms Mainor is simply not a witness of truth and, thus, a number of the allegations that she raises would be rejected, specifically, the threats and violence that she suggests, (although her mother is suggested to be a witness to certain aspects thereof and has yet to be called) impacting upon her decision-making in the past. 

22. It simply could not be that Ms Mainor determined that she should not return to Australia in December 2016 as a consequence of a threat she received by email from Mr Mainor.  She received no such threats.  She manufactured them.  When one is caught out telling what might be appropriately described in the vernacular as a bald-faced lie, it is difficult to understand how one would be expected to be accepted on connected issues.  That is not to suggest that Ms Mainor cannot be accepted on any issue. 

23. I certainly accept it is an agreed fact that the children are oppositional to their father, but, again, their views must be seen in context - the assessment of both children, but especially X, as emotionally immature, their enmeshment in conflict, their influence by the mother directly, indirectly and through other circumstances, and, most importantly, the clear reality that many of the bases for their complaints are not founded in lived experience or, for that matter, factual reality.  They are based upon the mother’s perceptions, beliefs and what she has told the children or, even more overtly, caused the children to adopt and accept from her. 

24. Those factors alone mean that some action should be taken, though not to the stage of intervening and removing the children.  This is not to punish Ms Mainor for being caught out telling untruths, and certainly not to punish to children.  The decision must be made by reference to their best interests.  Accordingly, I turn to Part VII of the Family Law Act 1975.

25. I must commence with section 60CA, which reminds the Court that, in all that is done, the child’s best interests are the paramount consideration. 

26. I must have regard to the objects and principles in section 60B.  The objects and principles do not form part of the substantive law to be applied to the facts and circumstances of the case, but they do guide the outcome that the Court should endeavour to achieve.  The Court should ensure that any order that is made meets the children’s best interests by ensuring the children the benefit of both parents having a meaningful involvement in their lives. 

27. So that it is not an issue of controversy, I will use the term “parents” throughout.  I do not intend to depart from Full Court authority that “parent” within the meaning of the Act means a biological or adoptive parent (it would also include a deemed parent under section 60H).  None of those, of course, apply in this case as regards Y.  Mr Mainor is, however, or certainly was until early 2015 (when, to some extent, he was the instrument of his own destruction in satiating his curiosity through parenting testing), the emotional father of Y.  But that is not a category of parent recognised in Australian law. 

28. That aside, as the Full Court was clear in Aldridge & Keaton (2009 FLC 93-421 and, earlier, in Rice & Miller (1993) FLC 92-415, there is no magic in being a biological parent. It is important and it is a factor of some insignificance, but it does not mean, particularly by reference to Aldridge & Keaton, that the objects and principles cannot be considered and applied to those who do not fall within the limited definition.  Young Y and, certainly, his elder brother, X, have had a meaningful involvement of Mr Mainor in their lives. 

29. Mr Mainor is frank and candid with respect to one aspect of his evidence – that his role in the children’s day-to-day lives during the marriage was less than Ms Mainor’s.  But the phrase “primary parent”, used throughout these proceedings, is of little utility.  All it means is that a mathematical majority of parenting has been undertaken by one parent.  It does not and cannot, in the context of this case, mean anything more, as aspects of Ms Mainor’s predominant or primary parenting have included inculcating these children with false memories, false beliefs and negative attitudes towards a parent out of all proportion to their lived experience of him.  That is not good parenting, as Dr B described.  Accordingly, the primacy of parenting does not concern me. 

30. What I am concerned with is ensuring, prospectively, that both children have the benefit of these parties having a meaningful involvement with their lives to the maximum extent consistent with their best interests.  They must also be protected from physical or psychological harm.  On the basis of the finding that is made at this point, at least with respect to certain aspects of Ms Mainor’s evidence - that she cannot be accepted as a witness of truth – it is difficult to see the physical or psychological harm to these children the mother alleges being made out. 

31. The phrase is used.  Indeed, it is used by young Y – the suggestion raised by him being that continuing a relationship with Mr Mainor impacts upon his psychological health.  That is, perhaps, a concrete example of how the children's statements mirror the mother’s.  The evidence does not support, however, that there is a risk to these children of physical or psychological harm as a consequence of subjection or exposure to abuse, neglect or family violence from their father. 

32. I do not suggest, in contradistinction, that there is such a risk in relation to the mother.  That is save and except to the extent to which, as Dr B has opined - and I accept for present purposes, validly so, (see paragraph 223), Ms Mainor has demonstrated that she is unable to separate her feelings towards Mr Mainor from the children’s. 

33. Both of these parties have had a role to play in how poor things have become for these children.  There is no ideal outcome, even accepting that such a thing could be conjured or conceived.  There is, in this case, nothing but gradations of disadvantage for these children. 

34. Whilst both have played a role and whilst there is little benefit in seeking to mathematise or apportion culpability, Ms Mainor seems less insightful into the role that she has played.  She was unable, for example, to concede that her actions in removing the children, first, from Australia to Country F, then from Country F to the Country G, then back to Country F before returning to Australia a good 18 to 20 months later, was anything but disruptive of, if nothing else, the children’s relationship with Mr Mainor – a relationship which she stridently insisted from the witness box she wished to protect and promote. 

35. As the anarchist philosopher Paulo Freire has opined, and to paraphrase him, without the praxis of action, words are mere rhetoric.  Indeed, to insist that a relationship is supported and at the same time advance a case, and prosecute it, that there be no time between one of the children and the father based, it would seem, on little but the child’s biology, does not sit comfortably with the first proposition. 

36. Thus, I am satisfied that there is no issue of protection of these children from their father.  The children may resist going to the father, but that can be dealt with by reference to their views and wishes. 

37. As for ensuring the children receive adequate and proper parenting I am satisfied both parents can do that on a material level.  There is issue, as raised, again, by Dr B, as to the extent to which that is addressed fully and completely with respect to the children’s emotional needs, encouraging their relationships and the like – the opinion being expressed – and I accept validly so, based on the evidence I have heard to date, at paragraph 218 – that the mother has limited or no willingness to encourage the children’s relationship. 

38. Throughout her evidence, the mother has asserted that she has done what she can to encourage it.  That would not appear to comprise anything much more than, as was reported to Dr B, telling young Y that if he goes to Mr Mainor’s “nothing bad will happen”,[6] inferring that there might be some basis – past, present or future – for the concern to be real.  There has never been anything bad happen. 

    [6] Paragraph 149 of Dr B’s report dated 29 January 2019.

39. The additional concerns raised by Ms Mainor’s evidence in relation to her support and encouragement of that relationship, and it is but one of many factors, is the suggestion that her encouragement includes telling young Y, at least some of the time, that he is going to Suburb K, not that he is going to see his father or even Mr Mainor.  Having de-parentified Mr Mainor by causing Y and X, I am satisfied, since the commencement of her relationship with Mr C, to refer to Mr C as “dad” and to Mr Mainor as “Mr Mainor”, such statements do little more than then dehumanising him by referring to the arrangement as simply being the visiting of a location, not a person.  That is a far from complete discharge of the obligations that might be considered by reference to, for example, Stevenson & Hughes (1993) FLC 92-363.

40. I must make orders that ensure that the parents fulfil their duties and meet their responsibilities. That is best considered by reference to the principles. Subsection 60CC(2) of the Family Law Act 1975 contains those principles - what might be described as the children’s rights, subject to any finding being made, that their enlivenment or practice is contrary to their best interests. 

41. Children have a right to know and be cared for by both of their parents.  Again, without wishing to create controversy, perhaps expanding the consideration per Aldridge & Keaton to both parties, these children’s right to practice that relationship is not only not supported but has been directly interfered with for quite some little time.  I make clear that this interim determination is not about achieving that which Mr Mainor has conceded he desires – make-up time for the portion of the children’s lives he has missed.  Although some empathy with that position might be held, it certainly is not something which could influence any determination by this Court.  It is, simply, not relevant.  But the children’s right to know and be cared for by both of their parents has been actively frustrated.  It continues to be actively frustrated. 

1. Ms Mainor cannot see many positives of these children, especially X, Mr Mainor’s biological child, practising relationships with their father.  Begrudging concession is made that X sometimes enjoys the time, but that it is largely connected with activities, that the children do not generally wish to go, and it takes a great deal of encouragement to have them go.  The difficulty I have on the evidence is accepting whether that encouragement has ever occurred. 

2. The father may parent differently, (for example, he is certainly, I accept, far less attentive to the children’s daily needs than the mother).  He does not neglect them, but he does not sit with them continuously and place them on his lap when talking to them.  He parents differently, not deficiently. 

3. Certainly, Dr B spoke to that issue and confined the complaints of deficiency, as suggested in the report, to being an absence of practise or experience by Mr Mainor.  Again, irrespective of why that it so, it is a reality, but it is something that can only be learnt through practise.  These children have a right to spend time and communicate with both of their parents and other people significant to their care.  Mr Mainor is, at least, the latter for Y and, most assuredly, the former for X. 

4. Parents share duties and responsibilities.  There was absolutely no sharing in the decision to remove the children from the Commonwealth and no sharing of the decision to move them to the Country G where an application for permanent residence was made.  Whether it has lapsed or not is unclear.  Ms Mainor asserts that it is so, but when the matter resumes, no doubt, she can print off the document she identified as accessible that would corroborate that position.  There was certainly no consent given by Mr Mainor for the children’s move from the Country G to Country F at a point in time when they were the subject of significant restraints - indeed, an absolute prohibition upon that move issued by the Country G Superior Court. 

5. Whilst Ms Mainor protests that she did what was necessary for her safety and the children’s, Mr Mainor was no risk.  He was prosecuting an Application he was entitled to prosecute, wishing to see the children and, indeed, have the children live in his care.  The threats that are the basis for the asserted fear are manufactured.  I am conscious that I do not wish to send the message that allegations of family violence are routinely fabricated, manufactured or exaggerated.  They are not.  But in this case, they most assuredly are. 

6. The emails that were sent by Mr Mainor to Ms Mainor, (that she has edited either by addition or deletion,) were not threatening in the least until Ms Mainor inserted certain portions.  That is an action which, on the basis that it is sworn and reaffirmed at the commencement of her evidence as being true, is, at best, reprehensible as a litigant.   As a parent, it demonstrates a deficient attitude.  Those actions perpetrate in her mind and the children’s the ongoing fabrication, and it also seeks to mislead the Court as to something which is profoundly important, indeed central, to its determinations. 

7. All of those objects and principles suggest that there should be some intervention.  Dr B is clear that there is a balance to be struck – that the removal of these children from their mother’s care, which would then be followed by an absence of practice of relationship with her, would likely be significantly damaging for these children.  I accept it would be so. 

8. Similarly, it has been damaging for these children to have their practice of relationship with their father terminated, and yet that is something Ms Mainor unilaterally attended to on a number of occasions from 2015 onwards, sometimes more absolutely than others. 

9. Having considered the objects and principles, I must then have regard to section 61DA of the Family Law Act 1975 - the presumption of equal-shared parental responsibility.  There is already, in relation to X, an Order for equal shared parental responsibility.  It is certainly aspirational.  It is difficult to comprehend how these parties will, in the future, make joint decisions.  But I do not propose to interfere with it, it being a final order.

10. In relation to young Y, there is an Order for sole parental responsibility.  Again, I do not propose to interfere with it as it was an Order made by the Court some little time ago and by consent.  Thus, in relation to Y, the Order that is in place is different to the presumption that would apply. 

11. Whether the presumption applies or not does not dictate the Order or allocation of parental responsibility.  I am satisfied in this case, on its face, the presumption would apply.  Subsection 61DA(2) provides that the presumption does not apply if the Court is satisfied that a parent has engaged in abuse of the child or perpetrated family violence.  On the evidence presently presented, I could not be satisfied on reasonable grounds that either has occurred, at least not perpetrated by Mr Mainor. 

12. As these are interim proceedings, I need not apply the presumption if I consider it inappropriate.  Further, the presumption can be rebutted if I am satisfied, albeit on a final basis, that it is contrary to the children’s best interests.  I propose to apply the presumption, although, clearly, it could not apply in relation to Y as the presumption applies only as between parents. 

13. In this case, I do not have evidence that could satisfy me of any parent of Y other than his mother.  Whilst it is asserted that Mr C is the child’s father and that he should be accepted as Y’s father as he is included on the birth certificate and the document is exhibited, that gives rise to nothing more than a presumption.  I have the difficulty that Ms Mainor, having been found untruthful in serious and important respects of the evidence, could not suggest that I could place great weight upon the presumption - not higher than its existence. 

14. Ms Mainor providing her consent to Mr C’s details being recorded on the birth certificate does not prove paternity.  There is allusion to paternity tests having been undertaken.  I have not yet sighted them if they are before the Court.  In any event, I need not be concerned as to whether the presumption is shared jointly as between Ms Mainor and Mr C or not, as Ms Mainor is the only parent for the purpose of this determination. 

15. As the presumption does not apply in relation to Y, I am not obliged, by reference to section 65DAA of the Family Law Act 1975, to consider equal or substantial and significant time spent by Y with Mr Mainor.  I am so obliged in relation to X, but nothing turns upon it.  The most important evidence in that regard is Dr B’s evidence that the children should not be separated and should not go for different periods of time. 

16. The submission is put that any Order in favour of Mr Mainor will, by reference to Burton & Churchin & Anor (2013) FLC 93-561, interfere in the meaningful relationship between Y and his biological parents. However, again, there is nothing before me that could satisfy me, on the evidence I have heard to date, that Mr C is the child’s father. It is asserted. It may well be demonstrated and proven when the matter resumes, but at this point it is not.

17. That being so, I intend to consider all arrangements at large other than parental responsibility, which I will leave in accordance with the present and existing Orders - being Orders for equal and shared parental responsibility for X, sole in relation to Y.  I am also conscious that Mr C was fully aware of the proceedings that were previously before the Court and which led to the Order for sole parental responsibility in favour of Ms Mainor.  The two were living together at the time.  His time to participate in that decision, if he genuinely asserts that he is the child’s father, was when Mr Mainor was seeking his removal from the child’s birth certificate, not otherwise.  Thus, I am not concerned that I am infringing upon what Mr C would, no doubt, perceive as his rights, although all rights vest in the children.  

18. That being so, I turn to section 60CC of the Family Law Act 1975 and commence with the primary considerations. being:

    a)The benefit to the children of having a meaningful relationship with both parents - that being confined to parents within the limited definition per Burton & Churchin and notwithstanding Aldridge & Keaton; and

    b)The need to protect the children. 

19. I am not satisfied that there is a need to protect the children, at least not from abuse, neglect or family violence at the hands of Mr Mainor.  There are risks, but they can await final hearing. 

20. The benefit to these children of a meaningful relationship with both parents is the same - in other words, Ms Mainor is the mother of both children.  Accordingly, the time that the children spend with Mr Mainor will impact Ms Mainor’s relationship with the children equally.  I am not satisfied that it could obviate against an order being made in relation to Y for the same time period as his brother. 

21. The benefit to X of a meaningful relationship with his father is manifest.  It is acknowledged by Dr B.  It is demonstrated by the evidence.  It may not be conceded, or at least not in any substantial way by Ms Mainor, but I accept that there is real benefit.  However, the primary considerations do not assist in determining the arrangement.  Hence, I turn to the additional considerations:

Views

1. I do not propose to place any significant weight on the children’s views, by reference to Harrison & Woollard (1995) FLC 92-598 and R & R Children’s Wishes (2000) 93 FLR 000. X is described as emotionally immature, as is Y. Ms Mainor points out the report interviews were a year ago or a little more. Certainly, that is true, but there is no basis to accept that Dr B’s assessment would change.

2. These children are enmeshed in the conflict between their parents, if not directly, indirectly, overtly or covertly influenced by their mother and, on that basis, any views they express, I am satisfied, should be given little or no weight.

The nature of the children’s relationship with each parent and other persons

1. At this point, Mr Mainor is considered on an equal basis with respect to both X and Y.  He is another person.  He is a person with whom Y had, until 2015, a very good relationship.  It was at that point, or February 2016 at the latest, that Ms Mainor determined to tell young Y the fact of his paternity. 

2. Whilst it was something that caused great fury for Mr Mainor, he did not appear to share that fury with Y.  Nothing changed from his perspective.  He still loved the boy and wanted to pursue a relationship with him.  It was certainly inappropriate that he sent the parentage testing reports, for example, to the child’s maternal grandmother, wanting her to “know the truth” of what her daughter had been up to – clearly, engaging in an extramarital affair – but they are not matters that these children should be involved with nor should extended family be involved. 

3. The nature of Y and X’s relationship with Mr Mainor is troubled.  I would use that term deliberately.  It is reflective of Dr B’s evidence.  However, it is not, as Ms Mainor describes, destroyed.  What is perhaps striking is that both children have maintained any relationship with Mr Mainor in light of the ferocity of opposition to the relationship demonstrated by their mother and shared, clearly, with these children (based on Dr B’s evidence and accepting it, on present purposes, on its face is more probably correct than not).  Thus, I am satisfied that there is a substratum of relationship that can be built upon. 

The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spending time with or communicating with the child

1. Neither has.  The issue here perhaps arises under what was, prior to the June 2012 amendments, in subsection 60CC(4) – the extent to which either parent has interfered in the other’s capacity to do so.  Clearly, Ms Mainor has to a large extent.  She has interfered in the capacity of these children to practice their relationship with Mr Mainor or for Mr Mainor to be involved in decisions or to communicate with the children. 

2. Whilst it is asserted that Ms Mainor did not wish to interfere in the children’s practice of relationship with their father, not a single call, email or other communication occurred whilst they were absent the jurisdiction.  That speaks poorly of Ms Mainor, but does not speak negatively to the benefit of the children of a prospective relationship. 

The extent to which each parent has fulfilled their obligation to maintain the children

1. Both parties have somewhat focused on this issue.  Sadly, so are the children.  They are clearly aware of everything that has gone on, describing at one point, for example, that their father had had them read various documents relating to it.  Certainly, they have had that shared with them by their mother, whether documentary or otherwise.  It does not assist them. 

Likely benefit of change, including separation from either parent or any other child or person with whom they live

1. The orders I propose to make for an equal-time week-about arrangement, will have the benefit of the children practising a more regular relationship with Mr Mainor.  It will have the benefits that Dr B has described of spending time in Mr Mainor’s household, being, if one might conflate the noun and the verb, parented by him rather than merely spending weekend and school holiday time. 

2. That is one of the strident objections of Ms Mainor – that it will be disruptive to their schooling if they do not leave from her home every day, particularly noting, as is submitted with some force by her counsel, she lives effectively next door to young Y’s school.  But that does not mean that Mr Mainor cannot achieve it.  They will have the benefit of experiencing his household with his partner and their stepsister, seeing him interact normally with others, having him involved in their activities and supervising them – put bluntly, being a parent to them.  

3. That may well assist them in addressing the false realities which are created for them at present.  It will also provide them with the benefit of a relationship with a parent who has much to offer.  It will have some degree of impact, at least chronologically, on their relationship with Ms Mainor.  She will not care for the children each and every day and the children will not experience that, something which they have described clearly to Dr B as being important to them.  But I am satisfied, on balance, that the benefits outweigh the detriments. 

4. I cannot consider whether there is any other parent in relation to Y that will be impacted. 

Practical difficulty and expense

1. I incorporate section 65DAA(5) of the Family Law Act 1975. 

2. The criticism is raised that Mr Mainor lives in a two‑bedroom apartment, but it will meet their needs.  It is a first world problem to raise such a criticism.  The children will have a roof over their head.   They will have a bed, notwithstanding the complaints as to its rusty springs and inadequate heating, and they will have food provided, whether there are complaints about takeout or otherwise. 

3. What is curious in that regard is, as Dr B observes, whilst the complaint is raised by the children that they are not given nutritious meals by the father, only takeaway – another example Dr B points to of the children’s views directly mirroring the mother’s – young Y complains to his father directly during observation that the restaurant that their stepmother had selected for them on a recent occasion had only been a two-star restaurant.  Thus, they would appear to have some degree of familiarity with those places in any event and one wonders why the criticism is even raised. 

4. The distance the father lives from the children’s school is certainly greater than the mother.  He does not live next door to Y’s school, for example, but he can transport the children and his evidence is clear that he will do so.  Accordingly, I am satisfied the practical difficulty does not impede the arrangement.

Capacity of the parents

1. This is perhaps a significant issue, especially the ability of the parents to provide emotionally for these children.  That is the major criticism Dr B raises, and whilst I cannot other than paraphrase her evidence given today absent a transcript, she was clear that it is a major deficiency that she sees in Ms Mainor’s parenting of these boys.  That would support greater time with their father for all of the reasons outlined by Dr B, which I adopt and accept.

Maturity, sex, lifestyle and background of the children

1. Since 2014 - more than half of Y’s life and roughly half of X’s - these children have had nothing resembling stability.  They have had, to adopt Ms Mainor’s term, a toxic relationship between their parents, ongoing tension, friction and hostility.  However, much of the complaint is hyperbolised at the very least, and, in places, manufactured completely. 

2. One cannot point to a good reason for why these children have had such disrupted arrangements - attending schools in three different school systems, albeit the children expressed that the Country G School was very much their favourite and blaming their father for their no longer attending there.   They should, perhaps, be disabused of that reality and it made clear to them that they should never have been attending there and it is their mother’s fault that the disruption occurred. That is a matter for others. 

3. This factor suggests that this is perhaps the last opportunity to address any prospect of these children having a meaningful relationship with their father, in the case of X, and an important figure in his life, in the case of Y - Mr Mainor.

Aboriginality

1. Clearly, this is not an issue.  Neither parent identifies as Aboriginal or Torres Strait Islander. 

Attitude

1. This is addressed above.  Ms Mainor’s attitude towards Mr Mainor is harsh and toxic in itself.  Whilst she points to clear and specific bases upon which she bases her antagonism and antipathy towards him, it is clear from her evidence that portions of that, at the very least, have been manufactured – not simply exaggerated or hyperbolised, but created as a fiction.  Thus, the consideration of family violence is difficult. 

Family Violence

1. I cannot accept on the evidence as it presently stands, (although at final hearing there will be the benefit of completing all of the evidence from potentially corroborative witnesses and submissions), that the evidence could establish that Mr Mainor has perpetrated family violence.  Indeed, the one incident that is specifically referred to, Mr Mainor suggests, as corroborated by the maternal grandmother (Mr Mainor being suggested to have slammed young Y into a wall, splitting his eye) and as Y reports and as Dr B observes, Y ran into the wall whilst he was playing an enjoyable game with his father. 

2. It is curious that the Court is asked to accept every statement by the children as gospel truth when it supports Ms Mainor’s case but to disregard it as being either inept questioning, the children’s confusion or their reaction to conflict in other circumstances when it would aid Mr Mainor.  I do not accept that such an interpretation should occur.  I have no reason to doubt the truthfulness of the children’s representations to the Department of Family and Community Services, as they then were, NSW Police, City J, Country G Police, workers from the City J, Country G Department of Children and Families and, ultimately, Dr B.

Family violence orders

1. There are none. 

Whether it is preferable to make orders that will avoid future proceedings

1. These Orders may create future proceedings.  It may be that one party or the other finds that they cannot make it work or find some other basis upon which they seek to challenge it, appellately or otherwise.  That is a matter for them.  My job is to focus upon the evidence I have and what is best for these children. 

1. It is best for these children that an interim determination be made - not that I accept that the present arrangement is untenable and cannot continue, merely that there are better arrangements until the matter is concluded.  I accept that the arrangement that would best meet these children’s best interests, as Dr B has opined, is a week-about arrangement.

2. Accordingly, I make orders on an interim basis as follows.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date: 19 August 2020