Masson and Parsons & Anor
[2018] FamCA 823
•18 September 2018
FAMILY COURT OF AUSTRALIA
| MASSON & PARSONS AND ANOR | [2018] FamCA 823 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Interim proceedings – Where the respondents contend the Independent Children’s Lawyer’s appointment has ceased due to the determination of the respondents’ appeal to the Full Court, even though matter remitted for re-trial – Where the Court considers rule 8.02(5) of the Family Law Rules 2004 (Cth) – Where the Independent Children’s Lawyer has standing. FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where children conceived by artificial insemination – Where the first respondent is the biological mother of both children – Where the applicant provided the semen for artificial conception of the eldest child – Where the semen for conception of the youngest child was provided by an anonymous donor – Where the primary judge made orders in October 2017 providing for both children to spend time with the applicant, but the orders were successfully appealed and the proceedings remitted for re-trial – Where the respondents filed an Application in a Case seeking interim orders for the eldest child to spend less time with the applicant and for the youngest child to only spend time with the applicant at their discretion – Where the applicant and the Independent Children’s Lawyer both oppose the respondents’ application – Where the respondents complied with the existing orders until July 2018 when the youngest child resisted spending time with the applicant – Where the eldest child continues to spend time with the applicant in accordance with the existing orders – Where there is no evidence of any risk of harm to the children in either household – Where children both have important relationships with the applicant – Where application is dismissed and existing orders remain operable until the re-trial – Where the respondents ordered to present the children for interview with the Independent Children’s Lawyer – Where the respondents are ordered to pay the applicant’s costs on a party/party basis. FAMILY LAW – CHILDREN – Parental responsibility – Where allocation of parental responsibility for the children is not in dispute – Where respondents seek injunctions restraining the applicant from representing himself or his partner as the children’s parents, attending the children’s school and taking the children outside Australia – Where no orders for injunctions. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60H, 61DA, 64B, 65D, 65AA, 65C, 65DAA, 69C Family Law Rules 2004 (Cth) r 8.02(5) |
| Banks & Banks (2015) FLC 93-637 Goode & Goode (2016) FLC 93-286 Masson & Parsons & Anor (2017) 58 Fam LR 1; [2017] FamCA 789 Parsons & Anor & Masson [2018] FamCAFC 115 |
| APPLICANT: | Robert Masson |
| RESPONDENTS: | Susan Parsons & Margaret Parsons |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW, Newcastle |
| FILE NUMBER: | SYC | 3963 | of | 2015 |
| DATE DELIVERED: | 18 September 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 18 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lawson |
| SOLICITOR FOR THE APPLICANT: | Steiner Legal |
| COUNSEL FOR THE RESPONDENTS: | Ms McMahon |
| SOLICITOR FOR THE RESPONDENT: | McDonald Johnson Lawyers |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW, Newcastle |
Orders
The Application in a Case filed by the respondents on 7 August 2018 is dismissed.
Save as to costs, the Amended Response to an Application in a Case filed by the applicant on 16 September 2018 is dismissed.
The respondents shall pay the applicant’s costs of and incidental to the interim hearing calculated on a party/party basis in the sum agreed or assessed.
BY CONSENT IT IS FURTHER ORDERED
The respondents shall ensure the presentation of the subject children to the Independent Children’s Lawyer for interview at a time, date and place reasonably nominated by the Independent Children’s Lawyer.
The following outstanding applications are referred back to the Docket Registrar for further procedural directions:
a.The Application Contravention filed by the applicant on 31 July 2018;
b.The Amended Initiating Application filed on 8 March 2017; and
c.The Amended Response filed on 24 February 2017.
NOTATION
A.The respondents do not require the publication of reasons for Order 3 hereof.
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 Masson & Parsons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC 3963 of 2015
| Robert Masson |
Applicant
And
| Susan Parsons & Margaret Parsons |
Respondents
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
These proceedings concern two girls, now 11 and nearly 10 years of age, and the orders which should be made for their care under Part VII of the Family Law Act 1975 (Cth) (“the Act”). Both children were conceived by artificial insemination.
The first respondent is the biological mother of both children.
The applicant provided the semen for conception of the eldest child, but not the youngest child. An anonymous donor provided the semen for her conception.
The second respondent is the spouse of the first respondent. They were married in New Zealand in December 2015, before same-sex couples could marry in Australia.
Cleary J determined parenting orders for the children between the parties in October 2017, which orders were later amended under the slip rule and also partially stayed pending further order, but the respondents successfully appealed the orders. The Full Court delivered judgment in June 2018, remitting the proceedings for re-trial, but leaving Cleary J’s parenting orders in place until set aside by further interim or final orders.
In July 2018, the applicant filed an application seeking special leave to appeal the Full Court’s decision to the High Court of Australia. That application has not yet been determined.
In August 2018, the respondents filed an Application in a Case seeking to discharge many of Cleary J’s orders and to substitute fresh interim orders for them. The applicant and the Independent Children’s Lawyer both resisted the respondents’ application. That is the dispute presently before me for hearing.
The “respondents” are referred to by that title, even though they brought the interim application under consideration as the “applicants”, because they are the respondents in the substantive proceedings and the maintenance of the parties’ titles in the substantive proceedings avoids confusion.
Standing of the independent children’s lawyer
The respondents contended the Independent Children’s Lawyer had no standing to appear and be heard in this interim dispute, which proposition the applicant and the Independent Children’s Lawyer both refuted.
The dispute hinged entirely upon their respective interpretations of r 8.02(5) of the Family Law Rules 2004 (Cth), which provides as follows:
8.02 Independent children’s lawyer
…
(5) The appointment of an independent children’s lawyer ceases:
(a)when the Initiating Application (Family Law) is determined or withdrawn; or
(b)if there is an appeal – when the appeal is determined or withdrawn.
In reliance upon r 8.02(5)(b), the respondents contended the appeal to the Full Court has now been determined and so the Independent Children’s Lawyer’s appointment has ceased. I reject the argument and accept the contrary argument advanced by the applicant and the Independent Children’s Lawyer for two reasons.
First, by application of r 8.02(5)(a), the underlying Initiating Application (in any of its amended iterations) has not yet been finally determined. It was determined by Cleary J, but her Honour’s decision was found to be infected by an error of law and so the issues in dispute between the parties were remitted for re-hearing and are yet to be re-heard. The proceedings therefore remain live and so does the Independent Children’s Lawyer’s appointment in those proceedings.
Second, for the purpose of r 8.02(5)(b), while the appeal to the Full Court has been determined, there is still an appeal – or, more accurately, an application for special leave to appeal – pending before the High Court. Consequently, the appeal process is yet to end. The respondents accept the Independent Children’s Lawyer has standing in the proceedings pending before the High Court so it would be an odd and unsatisfactory result if the Independent Children’s Lawyer had standing in that respect, but not in the still pending primary proceedings remitted by the Full Court for re-hearing.
Proposals and evidence
The respondents moved on their Application in a Case filed on 7 August 2018. They essentially want:
(a)many of Cleary J’s orders discharged;
(b)fresh orders for the eldest child to spend much less time with the applicant;
(c)fresh orders for the youngest child to only spend time with the applicant at the respondents’ discretion; and
(d)injunctions restraining the applicant from representing himself or his partner as the parents of the children, restraining the applicant and his partner from attending the children’s school at certain times, and restraining the applicant from taking either child outside Australia.
In support of their application, the respondents relied upon:
(a)the affidavits of the first respondent filed on 7 August 2018 (of which there were two) and 13 September 2018;
(b)the affidavit of the second respondent filed on 7 August 2018; and
(c)the affidavit of the first respondent’s sister filed on 7 August 2018.
The applicant relied on his Amended Response to the Application in a Case filed on 16 September 2018. He simply resisted the application and sought the retention of Cleary J’s orders. The applicant relied upon his affidavit filed on 16 September 2018.
The Independent Children’s Lawyer supported the applicant’s resistance of the application and did not separately adduce any evidence.
Legal principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA) and the manner in which parental responsibility for the child is allocated may influence the orders made about the child’s care (s 65DAA).
Those statutory principles apply, regardless of whether the parenting orders being made are intended to be interim or final in nature.
The procedure for conducting an interim parenting hearing, as is currently occurring, has been authoritatively established by the Full Court. In Goode & Goode (2006) FLC 93-286, the Full Court said at [68]:
The procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
In Banks & Banks (2015) FLC 93-637 at [47]-[50], the Full Court noted that a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. Not every s 60CC factor need be discussed in that process.
Children’s best interests
Section 60CC(2)(a)
The Act requires the Court to treat with primacy the consideration of whether some benefit will accrue to a child from having meaningful relationships with both of the child’s parents.
Evidently, to give that consideration proper weight, both of the child’s parents have to be identified. Often the identification is obvious, but not in this case. Debate about the identity of the parents of both children underpinned both the trial before Cleary J and the appeal before the Full Court.
The first respondent is the parent of the eldest child, but the Full Court expressly found the second respondent and the applicant are not parents of the eldest child (see Parsons and Anor & Masson [2018] FamCAFC 115 (“Parsons”) at [6], [8], [17], [34], [45], [83] and [98]-[100]). Consequently, the meaningfulness of the eldest child’s relationships with both the second respondent and the applicant and the benefit she does or might derive from those relationships are not features of the evidence which are relevant to s 60CC(2)(a) of the Act as primary considerations. Rather, they are additional considerations and may be taken into account under ss 60CC(3)(b)(ii), 60CC(3)(d)(ii) and 60CC(3)(m) of the Act.
The first respondent is the parent of the youngest child, as is the second respondent pursuant to s 60H of the Act (see Parsons at [3]). The applicant is not a parent of the youngest child.
While the applicant is not a parent of either child, he has hitherto held and fulfilled an important role in both children’s lives. The value of their relationships with him will be addressed under s 60CC(3) of the Act. It was not contended the applicant has no standing in these proceedings because he is concerned with their care, welfare and development (ss 65C(c) and 69C(2)(d)).
Presently, for the purposes of s 60CC(2)(a) of the Act, it is undeniable that:
(a)the eldest child benefits from her meaningful relationship with the first respondent; and
(b)the youngest child benefits from her meaningful relationships with the first respondent and the second respondent.
The children’s relationships with the respondents will not be disturbed by any orders arising out of the current interim dispute. They will continue to live with the respondents. The only question is how much time they should spend with the applicant.
Section 60CC(2)(b)
No aspect of the evidence engaged this factor of the Act. It was not contended either child requires protection from harm they may suffer through subjection or exposure to abuse, family violence or neglect in either household.
In fact, for the purposes of s 60CC(3) of the Act more broadly, it was not contended the children are exposed to the risk of any harm of any type for any reason. They are lucky to be loved and cared for by competent adults.
Section 60CC(3)
The only additional considerations engaged by the evidence and addressed by the parties as material were: the children’s views (s 60CC(3)(a)); the nature of the children’s relationships with the applicant (s 60CC(3)(b)(ii)); and the likely effect upon the children of changes to current arrangements (s 60CC(3)(d)).
Findings about each of those issues are informed by advertence to historical facts, most of which are entirely uncontroversial.
The eldest child was born in September 2007. The first respondent admitted the applicant showed an interest in the eldest child from birth, so both respondents were happy to facilitate a relationship between him and the child.
There was an underlying conflict about whether the parties expressly agreed upon the applicant’s involvement in the eldest child’s life. The first respondent deposed there was never any conversation about or agreement for the applicant to share parenting of the children but, even if that is correct, the respondents voluntarily allowed the applicant to expand his presence in the lives of both children. The applicant conversely alleged he and the first respondent struck an agreement, prior to the eldest child’s conception, that he would be involved in her life as her father. It is unnecessary to decide whether there was any such agreement because, even in the absence of any agreement about the applicant’s involvement in the children’s lives, he became integrally involved with the respondents’ consent.
The first respondent deposed she and the second respondent have always acknowledged the applicant’s role as the sperm donor for the eldest child and they both agreed it would be in her interest to know her biological heritage and, if possible, they would facilitate a relationship between them. Once the eldest child was born, the respondents allowed her to have short and reasonably frequent visits with the applicant.
The youngest child was then born in November 2008 and, once she was about 15 months old, she accompanied the eldest child on visits to the applicant.
The first respondent deposed the children appeared to enjoy the short periods of time they spent with the applicant. She disavowed hindering the contact or the relationships developed by the children with the applicant.
The eldest child began staying overnight with the applicant in November 2009. The youngest child also began overnight visits with the applicant in her sibling’s company in May 2010, when she was about 18 months old.
The time the children spent with the applicant incrementally increased until 2013 and, by 2014, it was common for both children to spend alternate weekends with the applicant, commencing on Friday afternoons and concluding on Sunday afternoons.
In September 2014, the first respondent told the applicant that the respondents were prepared to consider even further expansion of the time in 2015 but, by early 2015, that had not occurred. The first respondent deposed how the respondents were happy to continue the regime then in place but, at least inferentially, the applicant was not. He commenced proceedings in June 2015.
Given the progressive build-up of the time spent by the children with the applicant, they unsurprisingly grew close to him. Both children refer to him as “daddy”. The first respondent admitted they did so. As the Full Court found (see Parsons at [96]), both children regard the applicant as their father, even though he is not their parent as a matter of law. In submissions in these interim proceedings, the respondents’ counsel conceded both children have a “great attachment” to the applicant.
After the trial in 2017, Cleary J made orders for both children to spend four nights per fortnight with the applicant in 2017 and, from 2018, five nights per fortnight. Separate provision was also made for the children to spend time with the applicant in school holiday periods.
In December 2017, after the respondents’ appeal was filed, Cleary J suspended operation of the 2018 regime so, presently, only the 2017 regime continues to apply.
Although the subject of appeal, the parties complied with Cleary J’s orders until about July 2018, when the youngest child ceased spending time with the applicant. The first respondent deposed she said to the applicant in respect of that unsatisfactory situation:
We will do whatever it takes [to make the youngest child visit the applicant with the eldest child]. It is not optimal for us for her to be refusing to go with you. I think that when she returns to overnights with you, she should not be separated from [the eldest child] at night. I think they should share a bedroom.
Patently, therefore, the respondents believe the youngest child should accompany the eldest child on visits to the applicant. Indeed, the first respondent deposed they encouraged her to do so.
The respondents have not advanced any sensible reason for why the youngest child became resistant to visiting the applicant in July 2018, though the applicant suspects the coincidence between that change and the success of the respondents’ appeal in June 2018 is too curious to ignore.
The applicant deposed there was no reason within his power or control to explain the youngest child’s resistance. No incident or event known to him can rationally explain it. On his observations, both children appeared to enjoy spending time with him very much.
In the absence of satisfactory explanation from the respondents, the only explanation for the youngest child’s resistance is of statements she has made. The first respondent’s sister deposed the youngest child told her she did not want to spend time with the applicant because:
(a)she misses “mamma” and “[Margaret]” – obvious references to the respondents;
(b)she was “scared”, though she did not say why; and
(c)she “hates being away from home”, even though she was challenged that sleeping over in the eldest child’s company at the applicant’s home is not materially different from sleeping over at a friend’s home.
The youngest child’s explanations for her resistance appear contrived. They are certainly unconvincing. The youngest child apparently spent time with the applicant uneventfully in her sibling’s company from the time Cleary J made the orders in October 2017 until she ceased doing so in July 2018, so the orders successfully prevailed for about nine months and she coped well enough for that period.
The respondents appeared to contend that s 60CC(3)(d) of the Act is directed to the changes wrought upon the children by the orders made by Cleary J in October 2017, but I do not accept that is so. Section 60CC(3)(d) of the Act directs attention to any changes made to arrangements here and now. In other words, what will be the likely effect of any changes now, given Cleary J’s orders have been operational for 11 months? For the eldest child, she would likely be unhappy to have her interaction with the applicant halved, as the respondents propose. For the youngest child, she has not spent any more than short bursts of time with the applicant (and only then in the respondents’ company) for the past eight weeks or so. She is not likely to experience significant emotional harm if she returns to compliance with the existing orders in her sibling’s company, just as she did for the preceding nine months or so.
If orders are freshly made to authorise the youngest child’s continuing resistance to her interaction with the applicant, she is liable to be upset by her differential treatment from her sibling. To the extent the youngest child might allege the applicant treats her less favourably than the eldest child, he expressly denied it. The applicant deposed that, if anything, he gives the youngest child preferential treatment because she is younger and has a more delicate temperament. The applicant is unable to say so with conviction, but he suspects the respondents are not trying their best to encourage the youngest child’s visits with him. He deposed he recently saw the youngest child and the first respondent roll their eyes at one another, as if privy to some private joke about him, and whispering together conspiratorially in his presence.
Although the applicant may not be the parent of either child and he does not have any biological connection to the youngest child, both children have established valuable relationships with him. They have done so with the respondents’ concurrence. The respondents offered no sufficient reason for why the time the eldest child spends with the applicant should be wound back. No aspect of the evidence to which the respondents could point demonstrates that such an outcome would be in the eldest child’s best interests.
The first respondent deposed that, if orders are now made winding back the amount of time the eldest child spends with the applicant from four days to two days per fortnight, “hopefully” the youngest child will relent and then begin to accompany the eldest child again on visits to the applicant. As the Independent Children’s Lawyer correctly observed, this decision should hinge on more than the first respondent’s hope. In any event, the decision in respect of both children should not be tied to the questionable conduct of the youngest child. The best interests of the eldest child are just as important.
As for the youngest child, her interests are likely to be advanced by her being treated the same as her sister, at least until the evidence concerning her recent expressed disaffection for visits with the applicant can be thoroughly evaluated. For the time being, neither child’s interests would be advanced by being treated differently. The eldest child may feel isolated from the respondents and her sibling if she continues to visit the applicant alone, while the youngest child might secretly feel envious she is unable to enjoy visits with the applicant like her sibling. She may feel as though she is under pressure (even if it is not so) to maintain her rejection of the applicant because, unlike the eldest child, she has no biological link to him.
The applicant deposed how he cannot reconcile his experience of the youngest child’s personality with the way in which she is described to be presently acting by the first respondent and the first respondent’s sister. It may be accepted the youngest child is currently expressing a desire not to visit the applicant in the eldest child’s company, but her expressed view should not carry dispositive weight. She is not yet 10 years of age and does not have the maturity to understand the consequences of the respondents acceding to her request not to see the applicant. It might be that the youngest child could benefit from some stronger direction from the respondents. So far, their passive encouragement has not produced positive results. Perhaps they will need to try direction rather than exhortation.
If the respondents place weight on the youngest child’s views, as they appear to do, it would behove them to permit the Independent Children’s Lawyer to gauge the genuineness of her views by granting him an interview with her. They are apparently reluctant to do so. They recently informed the Independent Children’s Lawyer of their view that he should not even be participating in the hearing (Exhibit R1). It might be, as the Independent Children’s Lawyer submitted, the youngest child’s opposition is readily explained by other factors: for example, an adverse reaction to being caught in the middle of the parties’ discord. Cleary J found the children were cognizant of the discord (see Masson & Parsons & Anor (2017) 58 Fam LR 1 at [243]).
There was no evidence of the eldest child expressing any views. She continues to spend time with the applicant in accordance with the prevailing orders. Inferentially, she is content to continue doing so.
The evidence did not establish, as the respondents expected it would or might, that the children would benefit from any changes to the existing orders.
The respondents proposed that the eldest child should continue seeing the applicant fortnightly, albeit that the visits be shorter. They must, therefore, accept the eldest child will still benefit from the maintenance of her relationship with the applicant. No logical explanation was advanced for why it would be better for her to spend only two, rather than four, nights per fortnight with the applicant.
As for the youngest child, the respondents cannot presently convince her to visit the applicant, other than for very short periods in their presence. The order they now propose for the youngest child would be tantamount to a licence for them to decide the youngest child need not spend any time with the applicant because they perceive her opposition to be too forceful. Again, no logical explanation was advanced for why that outcome would be best for her and why she should be treated differently from her sister. The youngest child’s facile explanations are inadequate to justify it.
It may be that adjustments to Cleary J’s orders are ultimately warranted once updated evidence is tested properly at trial, but that situation is far removed from making impulsive interlocutory decisions on untested evidence.
Conclusions and orders
The eldest child only has one parent. It is the first respondent. No party squarely addressed the issue of allocation of parental responsibility for her in the context of s 61DA of the Act in this interim dispute. Cleary J ordered that the respondents should have equal shared parental responsibility for the eldest child. The respondents sought no change to that order. Neither did the applicant. He wanted to preserve all existing orders. However, for clarity, since the allocation of equal shared parental responsibility for the eldest child is not to her “parents”, the operation of s 65DAA of the Act is not enlivened.
The parents of the youngest child are the respondents. The presumption of their equal shared parental responsibility for her applies. Cleary J made an order to that effect and nobody sought any change. The allocation of equal shared parental responsibility to the youngest child’s parents engages s 65DAA of the Act, but that provision has no work to do in this instance because her parents live together in an intact marriage.
For the reasons discussed, no argument was persuasively made for the curtailment of the children’s interactions with the applicant – a man both children have hitherto loved and called “daddy”. The orders made by Cleary J about the time the children spend with the applicant shall remain operable until the re-trial, which is expected to be some months hence.
The respondents sought a different form of order for changeovers. The order of Cleary J requires the applicant to collect the children from the respondents at the commencement of visits and for the respondents to collect the children from the applicant at the end of visits. The respondents now want the applicant to collect and return the children. No change is made. No evidence was adduced and no submission was made to justify the change.
The respondents sought an order that any overnight visits by the children with the applicant be confined to the applicant’s mother’s home. No such restriction was imposed by Cleary J. No such order is now made. No evidence was adduced and no submission was made to justify it, aside from merely that the respondents would prefer it. Given they accept the children are not exposed to the risk of harm in the applicant’s care, I can see no need for it.
The respondents sought an order compelling the applicant to return the children to them if, during a visit, either child expresses a wish to return home to them. No such order is made. An order to that effect undercuts the primary orders stipulating the time the children should spend with the applicant.
Cleary J made an order that the parties keep one another informed about injury or illness suffered by the children. The respondents sought an order extending the applicant’s obligation to return the children to them if they are sick or injured during a visit. No such order is made. No evidence was adduced and no submission was made to justify it.
The respondents sought an injunction restraining the applicant from representing himself or his partner as “parents” of either child. Such an injunction is directly repugnant with an order made by Cleary J, giving the parties liberty to describe themselves as “parent”, “mother” or “father” of the children. As I already explained, the applicant is not the parent of either child. However, the children call him “daddy” and he has been promoted in their lives as a putative parent. The injunction sought by the respondents is not made. The only utility of the injunction is to satisfy the respondents’ insistence on the use of proper legal nomenclature, which is or is likely to be of no interest at all to the children. Nor should it be of interest to anyone else. Irrespective of how the applicant publicly describes his relationship with the children, the respondents hold exclusive parental responsibility for the children and they control events in the children’s lives.
The respondents sought an injunction restraining the applicant from attending the children’s school, other than for “performance nights, award ceremonies and other events that are open to members of the community”. Leaving to one side the problem created by the lack of sufficient prescription of an order in those terms, there was no evidence to justify the order. If the applicant has no parental responsibility for the children, there is no need for him to attend the school to discuss matters pertinent to the children’s education. Cleary J made an order permitting the applicant’s involvement at the school for P&C Association meetings and to work as a volunteer at the canteen and at other miscellaneous events. The evidence did not disclose whether he currently avails himself of the order and, if he does, why that would be problematic.
The respondents sought an order restraining the applicant from taking the children outside Australia. There is no need for such an order. No reason was given for it. Cleary J made an order permitting interstate and overseas travel on certain conditions. The applicant is an Australian citizen. There is no realistic prospect he will abduct the children to another country and never return. Certainly, no evidence was adduced of the respondents’ fear he would do so and no submission was made in support of the order.
The respondents sought an order imposing notification obligations upon the applicant if he intends to take the children “out of the Newcastle area on a holiday”. No such order is made. No reason was given for it.
The respondents sought an order compelling the applicant to keep the children’s mobile phones charged and in their possession on visits, so they could communicate with them. No such order is made. The applicant deposed he has a policy that the children are not allowed to retain possession of electronic devices, like telephones, after their bedtime at 8.30 pm. In the past, the respondents have sent messages to the children at 10.30 pm and even 1.35 am. There is no reason for them to do so. Communication with the children at those late hours is liable to disturb their sleep and disturb their sense of security with the applicant. The respondents submitted the applicant controls the children’s access to telephones too tightly (see Exhibit J1), but I do not accept his position is unreasonable.
The respondents sought an order that they and the applicant keep each other appraised of changes to their address and telephone numbers within 24 hours. No such order is made. They have been acquainted for decades. They exchange the children between them regularly. It is inconceivable they would not keep each other appraised of their contact details. No submission was made that such an order was needed. No such order is warranted on an urgent interlocutory basis.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 September 2018.
Associate:
Date: 11 October 2018
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