Mayfield and Mayfield

[2016] FCCA 385

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYFIELD & MAYFIELD [2016] FCCA 385

Catchwords:
FAMILY LAW – Parenting proceedings commenced after Father over-held children – children returned to Mother’s care – Father fails to participate in proceedings and attend at final hearing – final hearing proceeds on an undefended basis – Father and his partner engage in serious family violence towards one of the children in front of the other child – found that equal shared parental responsibility not appropriate – Father’s time with children to commence on a supervised basis and unsupervised time by agreement with Mother and subject to Father completing a parenting course and men’s behavioural change program.

Legislation:

Family Law Act 1975 (Cth), s.11F, 62G(2), pt.VII, ss.60B, 60CA, 65AA, 60CC, 61DA, 65DAA, 4AB, 65DAC

Champness & Hanson [2009] FamCAFC 96
Collu & Rinaldo [2010] FamCAFC 53
G & C [2006] FamCA 994
Mazorski & Albright [2007] FamCA 520

Applicant: MS MAYFIELD

Respondent: MR MAYFIELD

File Number: DGC 2863 of 2011

Judgment of: Judge Jones

Hearing date: 1 October 2015

Date of Last Submission: 1 October 2015

Delivered at: Melbourne

Delivered on: 26 February 2016

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: No appearance

Counsel for the Independent Children's Lawyer: Ms Buchanan

Solicitors for the Independent Children's Lawyer: Dandenong Family Lawyers

ORDERS

1. The Mother have leave to proceed to final hearing on an undefended basis.

2. All previous Orders be discharged.

3. The Mother have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2006 (“the children”).

4. The children live with the Mother.

5. The Father spend time and communicate with the children as agreed between the Mother and Father, having regard to each of the children’s wishes.

6. Any time the Father spends with the children be supervised at a Children’s Contact Service or by a professional private supervisor, funded by the Father, until the Father complies with Orders 13 and 14, and the Mother and Father agree that the Father’s time with the children move to unsupervised.

7. The Mother facilitate any request by the children or either of them to communicate with the Father.

8. The Mother and Father be and are hereby restrained from:

   (a)denigrating, insulting, belittling or abusing the other parent or any member of their family in the presence or within the hearing of the children;

   (b)seeking any opinions and/or preferences from the children or either of them regarding live with and/or spend time arrangements;

   (c)discussing these proceedings or associated matters in front of or within the hearing of either of the children;

   (d)physically or emotionally chastising or assaulting either of the children; and

   (e)permitting anyone else to do any of the above.

9. The Father be and is hereby restrained from drinking alcohol 12 hours prior to or during any time spent with the children or either of them.

10. The Father remain in substantial attendance during such time.

11. Each parent keep the other informed of their current residential address and contact telephone numbers, and of any changes to these within 24 hours of such change.

12. Each parent keep the other informed of any serious medical injury or illness suffered by the children or either of them and permit the other parent to speak to the treating doctors or other medical professional.

13. Both parents be entitled to receive copies of the children’s school reports and be entitled to attend all school functions to which parents are ordinarily invited.

14. The Father enrol in and complete a Parenting Program at CatholicCare (omitted) or other accredited organisation and provide evidence of completion to the Mother.

15. The Father attend a Men’s Behavioural Change Program and provide evidence of completion to the Mother.

16. The Order appointing the Independent Children’s Lawyer be discharged.

17. Otherwise, all extant applications are dismissed.

NOTATIONS

(A)Anglicare is no longer involved with the Mother and the children.

(B)The Mother received significant parenting support and counselling from her Anglicare case worker.

(C)With the assistance of the Anglicare case worker, the Mother is facilitating the children attending counselling, which is currently at the intake stage.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2863 of 2011

MS MAYFIELD

Applicant

And

MR MAYFIELD

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. These proceedings commenced by way of an Initiating Application filed on 20 January 2015 by Ms Mayfield (“the Mother”) seeking a recovery Order in relation to the two children of the relationship:

   a)X born (omitted) 2003 (“X”); and

   b)Y born (omitted) 2006 (“Y”),

   (collectively “the children”).

2. Mr Mayfield (“the Father”) had over-held the children in contravention of parenting Orders made on 28 February 2012, during the long holiday break.  These Orders provided that the children live with the Mother, and spend weekend and school holiday time with the Father.

3. A recovery Order issued by the Court on 27 January 2015 was executed and the children returned to live with the Mother. At the next Court return date, an Order that the parties attend a Child Inclusive Conference pursuant to s.11F of the Family Law Act 1975 (Cth) (“the Act”) was made. The Family Consultant’s memorandum recorded that the Father’s explanation for his conduct, was a litany of complaints he alleged the children had made to him over the course of the last 12 to 18 months, amounting to alleged neglect of the children by the Mother. The memorandum also recorded the children as expressing a list of complaints about the Mother, and their preference that they live with the Father.

4. Orders were made on 12 February 2015, suspending the Father’s time until the commencement of the term one school holidays, and his communication with the children for a period of one week. The Mother was directed to engage in support services and the preparation of a Family Report pursuant to s.62G(2) of the Act was Ordered.

5. The Mother is 45 years of age and works as a (occupation omitted) and the Father is 52 years of age and works as a self-employed (occupation omitted). The parties married in 2002, separated in 2010 and divorced in 2014.

6. The children and Mother together with the Mother’s son, from another relationship, Z born (omitted) 1995, live together in a three-bedroom house in (omitted), Victoria. The Father lives with his partner (Ms T), in (omitted), Victoria.

7. At the early stages of these proceedings, the Father sought Orders that the children live with him and spend weekend and school holiday time with their Mother. The Mother sought Orders that the children live with her and spend time with the Father on weekends and school holidays. Following interviews conducted by the Family Consultant, Ms K, and the release of her Family Report dated 7 July 2015, the parameters of the dispute between the parties changed completely. The reasons for this are obvious from the content of the Family Report as set out below.

8. Ms K recorded her interview with X as follows at [24] to [26]:

   24.    X, aged 11 years, 6 months presented as calm, sincere and happy and her presentation was markedly different from her agitated state during the Child Inclusive Conference. Although hesitant to discuss the live with and spend time arrangements X was engaged in discussion and she spontaneously offered an apology for “lying” during the Child Inclusive Conference. She said she lied “about everything” and asked that her apology be conveyed to the Judge.

   25.    X described feeling confused by the live with dispute and whilst she did not explicitly say so, it appeared that in the past she had felt responsible to secure an arrangement suited to her father’s wishes. X was very concerned about angering and disappointing her father when she stated she wanted to live with her mother and she suggested he not be informed of this until the hearing in October 2015. She suggested she and Y may consider living with her father when they are older. X spoke positively of her relationship with her father and Ms T and it was important to her that she continues to see her father regularly.

   26.    X enjoys her relationship with her mother and said her mother has started to cook “yummy meals” since the last hearing. She reported she enjoy (sic) school and her friendship group had stabilised in comparison to late last year.

9. Ms K recorded her interview with Y as follows at [27] to [28]:

   27.    Y, aged 9 years, is in grade three and she was also visibly more calm and relaxed and appeared as though content. She said she lied during the Child Inclusive Conference and also offered an unprompted apology.

   28.    Y was very concerned her father would feel “sad” when he learnt her preference was to remain living with her mother. She had thought that he was angry with her because she and X had returned to their mother’s care in February 2015; however she was reluctant to discuss this in more detail. Similarly to her sister it was important to Y that she continues to visit her father on a regular basis. She understood her father wanted to take her and her sister to (country omitted) but she appeared unsure this would be a holiday or a more permanent arrangement, however if assured she would return to her mother’s care she would consider the trip to be a very good idea.

10. Unsurprisingly, in the circumstances, Ms K stated at [34] that:

    Information obtained during the Child Inclusive Conference and in the preparation of this report indicates X and Y have felt compelled to attend to their father’s feelings and feel the burden of his anger or sadness. That the girls have fabricated complaints about this (sic) mother during spend time may indicate they considers (sic) this behaviour pleases their father. Mr Mayfield should consider how he can support the girls to understand that his happiness is not dependant on their actions and he should consider ways in which he can support the girls to enjoy a relationship with both parents.

11. On 30 July 2015, the Mother filed an Application in a Case, seeking an Order suspending the Father’s time with the children, and that any time spent by him be supervised by professional supervisor. The matter returned to Court on 31 July 2015. The Father did not attend. Interim Orders were made on 31 July 2015, suspending the Father’s time with the children. The Court also made an Order requesting the appointment of an Independent Children’s Lawyer (“ICL”). 

12. On 15 September 2015, further Interim Orders were made. The Father failed once again to attend the Court on this day. Orders were made by the Court, in terms of minutes agreed to by the Mother and the ICL, for the children to attend confidential counselling and restraints on both parents from seeking any opinions and/or preferences from the children about live with arrangements.

13. At the final hearing, the Father failed to attend. He had not filed any further material since 6 February 2015.

14. On the application of the ICL and the Mother, and given the Father’s non-participation in proceedings since early 2015, I granted them leave to have the matter proceed by way of undefended final hearing.

15. The Orders sought by the ICL and the Mother are:

    a)all previous Orders be discharged;

    b)the Mother have sole parental responsibility for the children;

    c)the children live with the Mother;

    d)the Father’s time with the children be as agreed between the Mother and Father having regard to each of the children’s wishes;

    e)that the time spent by the Father with the children be supervised at a children’s contact service or by a professional private supervisor until the Mother and Father agree that his time with the children move to unsupervised time;

    f)the Mother facilitate any request by the children to communicate with the Father;

    g)restraints on the Mother and Father from:

    a)denigrating the other parent in the presence or in the hearing of the children;

    b)seeking any opinions and/or preferences from the children about live with arrangements;

    c)discussing these proceedings or associated matters in front of or within in the hearing of the children; and

    d)permitting anyone else to do the same;

    h)restraints on the Father from consuming alcohol 12 hours prior to or during any time spent with the children;

    i)requiring the Father to remain in substantial attendance during children’s time spent with him;

    j)the usual Orders requiring parents keep each other informed of any serious medical injury or illness and to be entitled to receive copies of the children’s school reports and functions;

    k)the Father enrol in and complete a parenting program at Catholic Care, (omitted); and

    l)the Father attend a men’s behavioural change program and provide a certificate of completion to the Mother.

16. The Mother relied on her affidavits filed on 20 January 2015, 30 July 2015 and 18 September 2015.

APPLICABLE LAW

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in pt.VII of the Act.

2. When considering making a parenting Order, the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s.60B of the Act.

3. In deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (ss.60CA and 65AA of the Act). Section 60CC of the Act sets out specific criteria, which must be considered in determining what is in a child’s best interests. In Collu & Rinaldo [2010] FamCAFC 53, the Full Court held that a Court’s task, informed by the objects expressed in s.60B(1) of the Act and the principles underlying those objects in s.60B(2) of the Act (and where relevant s.60B(3) of the Act), is to undertake consideration of and make findings about each of the “best interests” considerations set out in s.60CC of the Act having regard to the parties’ respective proposals.

4. Section 61DA(1) of the Act provides that, when making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence: s.61DA(2) of the Act. Moreover, the presumption may be rebutted by evidence which satisfies the Court, that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: s.61DA(4) of the Act.

5. Where a parenting Order provides that the parents are to have equal shared parental responsibility for the child, the Court must first consider whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an Order for equal time should be made: s.65DAA(1) of the Act. Where the Court decides that it should not make an Order for each parent to spend equal time with the child, it must then consider whether it is in the best interest of the child, and is reasonably practicable for the child, to spend substantial and significant time with each parent and, if so, whether an Order for substantial and significant time should be made: s.65DAA(2) of the Act. The meaning of substantial and significant time is set out in s.65DAA(3) of the Act.

6. Before considering s.61DA of the Act and the legal pathway mandated where the presumption of equal shared parental responsibility applies, it is appropriate to consider s.60CC of the Act. S.60CC(1) of the Act provides that in determining what is in the best interests of a child, the Court must consider the matters set out in subsections (2) and (3) of s.60CC of the Act. Section 60CC(2)(a) of the Act specifies what are described as the primary considerations, and s.60CC(3) of the Act sets out what are described as additional considerations.

7. Given the circumstances in which these proceedings arose, the fact that this final hearing has proceeded on an undefended basis with the limited material before the Court, focusing on the events of January 2015 and, subsequently, July 2015, it is unnecessary to address each and every factor specified under s.60CC(3) of the Act. I have dealt with those factors, which in my view are relevant to the determination of this proceeding.

S.60CC of the Act – Best Interest of the Children

Primary considerations

Section 60CC(2)(a) of the Act – the benefit to the child of having a meaningful relationship with both of the child’s parents

1. The adjective “meaningful” is a qualitative not strictly quantitative one: Mazorski & Albright [2007] FamCA 520 at [26].

2. The enquiry in relation to s.60CC(2)(a) of the Act is a prospective one requiring the Court to, as stated in G & C [2006] FamCA 994 at [72]:

   “…evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future.”

3. Whilst the Court must consider the best interests of the child of having a meaningful relationship with each parent, this benefit must be weighed against all other factors, in determining Orders which have the children’s best interests as the paramount consideration: Champness & Hanson [2009] FamCAFC 96 at [103]. Moreover, the Court is required to give greater weight to subsection 60CC(2)(b) of the Act (see below).

4. I am satisfied that the children have a meaningful relationship with their Mother, and there can be no doubt that they will benefit from continuing to have a meaningful relationship with her.

5. It seems to me, that until the events which occurred in January 2015, the children had a meaningful relationship with their Father. However, the circumstances leading to the Father over-holding the children in January 2015, and incidents that have been reported by the children to their Mother during 2015, raise concerns about whether the children would benefit from having a meaningful relationship with the Father.

6. Ms K observed in her Family Report at [36]:

   That X and Y have expressed their preference to live with their mother should not be considered a rejection of their father. Mr Mayfield needs to understand the dilemma for the children of trying to please two parents they love equally. The stress of the parental separation and the lengthy travel to/from spend time will be alleviated with a focus on quality spend time and relationships and not an ongoing enquiry (or discussions) as to their current or future wishes. This will undermine the quality of the children’s relationship with that parent. Mr Mayfield struggles to consider positively Ms Mayfield’s parenting however her presentation during their unhappy relationship may not be an accurate reflection of her current parenting. It is noted that Ms Mayfield did demonstrate attuned parenting and as being motivated to make further positive change with the assistance of Ms A.

7. The Father has not spent any time with the children since early July 2015. The Mother’s evidence regarding this is set out below. Interim Orders were made on 31 July 2015, suspending the Father’s time with the children. However, the Father has not taken any steps to change this position and has not filed any affidavit material disputing the matters the Mother deposed to in her affidavit filed on 30 July 2015.

Section 60CC(2)(b) of the Act – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. As noted earlier, Interim Orders were made on 31 July 2015, suspending the Father’s time with the children. These Orders followed an Application in a Case, and an affidavit in support of that application, filed by the Mother on 30 July 2015.

2. In her affidavit, the Mother deposed that the children reported to her, the following incidents when the children were in the Father’s care in early July 2015:

   a)the Father took the children, together with his girlfriend Ms T, to the (omitted) hotel one evening to watch the State of Origin match;

   b)the children were told to stay seated at a table whilst the adults drank at the bar;

   c)during the course of the evening, the Father went to the table at which the girls were seated and told them that what happened in January 2015 was their fault;

   d)the Father later went over to the table again during the night, and said to Y that if she never sees him again, she can blame X and told X that she and the Mother have a selfish personality;

   e)later on the Father came over to the table again and asked Y to dance, and told X not to move from the table;

   f)by this stage, the Father had had at least five beers at the hotel and had apparently been drinking before they left the house to go to the hotel;

   g)the Father drove the children home. There were two adults in the back seat and the children were required to share a seatbelt;

   h)when they arrived at home, the children went to bed. Later that night, the Father came into their bedroom and started hitting X around the side of the head and shoulders. She put her arms up to defend herself and the Father responded by then using his fists to punch her elbows. X was crying and screaming, and Y was asking him to stop;

   i)the Father then told X to go outside of the house, and said to her that she will never sleep in the house again. He told her to “fuck off” and enjoy her walk home. X begged to be allowed back inside the house, she was crying saying she wanted to call her Mother. Both the Father and Ms T teased X, saying “Oh, you want your Mum”; and

   j)the Father went outside the house and picked X up by the neck of her pyjamas and placed her on the bonnet of one of the cars. X said that she was so scared, as he continued to yell at her, that she wet her pants. The Father left her on the bonnet, and sometime later she went back inside his house and went to bed.

3. The children reported to the Mother that the following day, the Father told them he was sorry, that he was drunk, but that they deserved it. Ms T also said to the children the next day that they are selfish and that one day they will get what is coming to them.

4. This evidence of the Mother is undisputed by the Father. Consequently, I find that the events set out in [31] and [33] occurred. Without doubt, they involved serious family violence by way of emotional abuse towards X and Y, and assault to X. This finding is a significant factor in the Court’s consideration of the best interests of the children.

Additional considerations

Section 60CC(3)(a) of the Act – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children have expressed views that they wish to remain living with their Mother. I agree with the Family Consultant, Ms K, that the burden of bearing the responsibility for expressing their opinions as to the live-with arrangements, is not one children of X and Y’s age should bear.

2. There is no evidence before the Court about the children’s views after the incident in July 2015. I am satisfied I can find that the children would have experienced a great deal of anxiety and emotional stress by the conduct of the Father, in particular, as well as his girlfriend, Ms T. It seems to me, that prior to the children spending time with the Father again, they would need to feel that they were safe and able to trust him, in the confidence that he would not subject them to the appalling emotional and physical abuse that he engaged in, in July 2015.

3. There is insufficient evidence to sensibly address sub-ss.60CC(3)(b), (c) and (ca).

Section 60CC(3)(d) of the Act - The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living

1. Until the events of January 2015, the children were, pursuant to consent Orders made on 28 February 2012, living with the Mother and spending time and communicating with the Father each alternate weekend, and for half of the school holidays. In early January 2015, after the children were returned to their Mother’s care, the Father’s time was suspended for the period of one school term. Then, in July 2015, the children’s time with the Father ceased completely. This suspension of time occurred as a consequence of the significant risks to the children, of physical and emotional abuse, whilst in their Father’s care.

2. Thus, for most of 2015, the children have spent all of their time with their Mother and only minimal time with their Father.

3. The Orders proposed by the ICL and the Mother, therefore, have no effect on the children in terms of what has occurred on an interim basis, although they reflect a significant change from the arrangements under the 28 February 2012 Orders. If the proposed Orders come into effect, there will be a significant effect on the relationship of the children with the Father.

4. However, this change, and its impact on their relationship with the Father, is a consequence of the Father’s behaviour and conduct towards the children. There is scope under the proposed Orders for the Father to re-commence time with the children in an environment that is safe, and where his interaction with the children can be observed by a professional supervisor. The proposed Orders also provide for the Father to attend programs to improve his capacity to parent appropriately and to manage his moods.

Section 60CC(3)(e) of the Act – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The parents live some distance from each other, and the live-with arrangements under the parenting Orders made on 28 February 2012, reflected the practical difficulties which impacted on the children’s right to maintain personal relations and direct contact with their Father.

2. In these proceedings, this factor is not relevant given the history of the Father’s time with the children in 2015.

3. The Orders proposed by the ICL and the Mother do not require any consideration of this factor as they are directed towards establishing conditions under which the Father can recommence his time with the children and which are in their best interests.

Section 60CC(3)(f) of the Act – the capacity of each of the child‘s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. The Father’s conduct in over-holding the children in January 2015, in my view, reflects an unfortunate lack of insight into the emotional needs of his children. Ms K stated in her Family Report at [35]:

   Mr Mayfield said he was guided by the girls’ wish to live with him to bring such an arrangement to fruition. He suggested he could have approached the situation differently; however it appeared Mr Mayfield deferred a great deal of responsibility for the current situation onto the girls. It would be beneficial for X and Y if Mr Mayfield is able to reflect upon the (sic) their age and maturity, and that they are not yet capable of comprehensively considering all facets relevant to and involved in a change to their live with arrangements. This is demonstrated by the girls manipulation of information in what was an attempt to problem solve a matter that should be reserved for adults and much older teenage children.

2. His conduct in July 2015 towards the children reflects extremely badly on his capacity to protect and nurture the children’s emotional needs. There can be no doubt that the Father would benefit from attending and completing an appropriate parenting course and a men’s behavioural change program.

3. The Mother has shown her capacity to attend to the children’s emotional needs by acting protectively and by engaging with support services from Anglicare to assist her manage the children. She has sought counselling for the children with Oz Child and deposed in her affidavit, filed on 18 September 2015, that they were shortly to attend their intake sessions.

4. It is unnecessary to specifically address sub-ss.60CC(3)(g) and (i) of the Act, as the evidence in relation to this has already being considered. Section 60CC(3)(h) of the Act is not relevant to these proceedings.

Section 60CC(3)(j) of the Act – any family violence involving the child or a member of the child’s family; and s.60CC(3)(k) of the Act – if a family violence Order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the Order, taking into account the nature of the Order, the circumstances in which the Order was made, any evidence admitted in proceedings for the Order, any findings made by the Court in, or in proceedings for, the Order, and any other relevant matter

1. Family violence is defined by s.4AB(1) of the Act. It means:

   “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”

2. The legislature has provided a list of examples of behaviour which may constitute family violence in s.4AB(2) of the Act. Some of these examples are:

   ·an assault;

   ·stalking;

   ·repeated derogatory taunts; and

   ·preventing a family member from making or keeping connections with his or her family, friends or culture.

3. Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that coerces or controls that person.

4. Pursuant to s.4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.

5. I have earlier dealt with the family violence engaged in by the Father and his partner Ms T towards the children in mid-2015.

6. The ICL and the Mother’s proposed Orders will, I am satisfied, provide the children with a safe and secure environment in which to recommence time with their Father, including requiring the Father to deal with his limited capacity to understand the emotional needs of the children and what can only be described, given the evidence, as uncontrolled anger, whilst under the influence of alcohol.

7. The Mother deposes to a history of Intervention Orders taken out by her against the Father. There are, however, no extant Intervention Orders.

Section 60CC(3)(l) of the Act – whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. I have no doubt that these proceedings would have been traumatic for the children. At the s.11F conference, on the children’s own admissions, they felt compelled to make statements which reflected their Father’s desires and not their own. There is no benefit to the children at all from any further litigation, given they have borne the burden of attempting to reflect the preferences of their parents regarding live-with arrangements.

2. There is absolutely no doubt that, for these children, it is in their best interests to make Orders which are least likely to lead to the institution of further proceedings.

3. The Orders proposed by the ICL and the Mother establish a controlled process in which the Father can recommence his time with the children. The nature of these Orders, are such that it is unlikely that further litigation would be instituted. In circumstances where the Father has not taken steps to recommence his time with the children in accordance with the Orders, it is unlikely that any attempt by him to initiate new proceedings, would proceed.

Section 60CC(3)(m) of the Act - any other fact or circumstance that the Court thinks is relevant.

1. There are no other facts or circumstances that are relevant to the Court’s determination.

Sections 61DA and 65DAA of the Act

1. The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family, or family violence: s.61DA(2) of the Act. Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: s.61DA(4) of the Act.

2. The proposed Orders by the ICL and the Mother are that the Mother has sole parental responsibility for the children. I have found that the Father has engaged in serious family violence towards the children. Consequently, the presumption of equal shared parental responsibility does not apply.

3. Furthermore, on the evidence, I am satisfied that the parties would not be able to engage in appropriate consultation, or make genuine efforts to come to a joint decision as required under s.65DAC of the Act, were an Order for equal shared parental responsibility to be made. Consequently, I would in any event, make a finding that it would not be in the best interests of the children for the parties to have equal shared parental responsibility.

4. Accordingly, I will make an Order that the Mother have sole parental responsibility for the children.

5. As I have not made an Order for equal shared parental responsibility, I am not required to consider firstly, whether it is in the best interests of the child and is reasonably practicable for the child, to spend equal time with both parents and, if so, whether an Order for equal time should be made: s.65DAA(1) of the Act. Nor am I required to consider whether it is in the best interests of the child and is reasonably practicable for the child, to spend substantial and significant time with each parent and, if so, whether an Order for substantial and significant time should be made: s.65DAA(2) of the Act.

6. I am satisfied that, in the circumstances, the Orders proposed by the ICL and the Mother are Orders which are in the best interests of the children, save for a change which, in my view, best addresses the risk factors which, on the evidence, would arise from the Father recommencing unsupervised time. The change to the proposed Orders I would make, is that the Father’s unsupervised time with the children only commence after he has attended and completed a parenting and men’s behavioural change program and provided evidence of this to the Mother.

Conclusion

1. For the reasons set out in this judgment, I make the Orders set out above.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 26 February 2016