MCCORMICK & GRAFT
[2015] FamCA 1043
•26 November 2015
FAMILY COURT OF AUSTRALIA
| MCCORMICK & GRAFT | [2015] FamCA 1043 |
| FAMILY LAW – CHILDREN – sole parental responsibility – children to live with the father – the mother spending time with the children is conditional upon completing a course – the father to complete a parenting course – where any perceived risk can be ameliorated by undertaking relevant courses – where the mother refused to divulge any detail of her present living arrangements – where communication between the parties is very poor – where the mother should have a gradual re-introduction with the children. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 70NAE, 102QB Evidence Act 1999 (Cth) s 140 |
| McCormick & Graft [2015] FamCA 121 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Mr McCormick |
| RESPONDENT: | Ms Graft |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Cope |
| FILE NUMBER: | CSC | 301 | of | 2009 |
| DATE DELIVERED: | 26 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 9, 10, 11 and 12 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd |
| SOLICITORS FOR THE APPLICANT: | Preston Law |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms McArdle |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Cope Family Law |
Orders
PARENTAL RESPONSIBILITY
All previous parenting orders be forthwith discharged.
Mr McCormick (“the father”) have sole parental responsibility for G born … 2005 and H born … 2006 (“the children”).
The father is to advise Ms Graft (“the mother”) in writing within seven (7) day of making any decision about a major long term issue.
For the purposes of these Orders a major long-term issue shall include, but is not limited to issues about the children’s:
(a)Any medical or health matter concerning the children with both parties to be equally able to access medical, personal and the medical files of the children;
(b)Any medical or health matter affecting the father which may affect the ability of the father to care for the children;
(c)Matters relating to the education of the children including, but not limited to, the choice of schools and curriculums;
(d)Disciplinary matters other than of a trivial nature;
(e)Matters concerning the social development and sporting activities of the children.
LIVING ARRANGEMENTS
The children live with the father.
Upon the mother complying with order 11, then she will spend time with the children during school holidays as follows:-
(a)For the first half of the Queensland gazetted school holidays in even years;
(b)For the second half of the Queensland gazetted school holidays in odd years.
The school holidays are deemed to be as follows:
(a)They shall commence at noon on the first Saturday after the conclusion of the school term, and
(b)They shall conclude at noon on the last Saturday prior to the first day of the next school term.
The midpoint of the school holidays shall be deemed to be as follows:
(a)at noon on the Saturday where there is an even number of weeks; and
(b)at noon on the Wednesday where there is an odd number of weeks.
Upon the mother complying with order 11, then she spend time with the children during school terms on the third week of each calendar month with the children to come into the mother’s care at 8.00pm on the Friday (or if Friday is a public holiday then 8.00pm on the Thursday) and to be returned to the father’s care at noon on the Sunday (or where the Monday is public holiday or pupil free day then noon on the Monday).
The mother may have such additional or other time with the children as may be agreed between the parties in writing.
The mother’s time with the children under these orders is conditional upon the mother first completing the Focus on Kids Course with Relationships Australia and filing the certificate of completion with this Honourable Court.
CHANGEOVER
Changeovers are to take place at the children’s playground at the I Park in J Town.
COMMUNICATION
The mother is to have telephone communication with the children each Thursday and Sunday between the hours of 6.30pm and 7.00pm with the mother to initiate the phone calls and the Father to make the children available to take those calls in privacy.
The mother and father shall communicate with each other solely by email other than in the case of an emergency.
SPECIAL OCCASSIONS
When the children are in the father’s care on the children’s birthdays, Mother’s Day and the mother’s birthday the mother may contact the children by phone with the mother to initiate the call between 6.30pm and 7.00pm and the Father will make the children available to take those calls in privacy.
When the children are in the mother’s care on the children’s birthdays, Father’s Day and the father’s birthday the father may contact the children by phone with the father to initiate the call between 6.30pm and 7.00pm and the mother will make the children available to take those calls in privacy.
When the children are in the mother’s care on Christmas Day the father may contact the children by phone with the father to initiate the call between 9.00am and 10.00am and the mother will make the children available to take those calls in privacy.
When the children are in the father’s care on Christmas Day the mother may contact the children by phone with the mother to initiate the call between 9.00am and 10.00am and the father will make the children available to take those calls in privacy.
Each parent may have additional or other time with the children as may be agreed between the parties in writing.
AUTHORITY GIVEN BY THESE ORDERS
These Orders act as authority to the children’s schools and day care providers to provide each parent (at that parent’s expense) information about the children’s education, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the children and other school communications ordinarily provided to parents.
These Orders act as authority to each of the children’s medical practitioners and health care providers (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the children’s health, treatment and copies of records and reports.
The father will ensure that the schools attended by the children, and the children’s usual treating medical practitioners and health care providers (including counsellors and psychologists) are provided with a copy of these Orders.
Both parents are at liberty to attend all educational, extra-curricular functions, events and activities the children may be involved in or which parties are normally invited within the guidelines and subject to the discretion of the children’s school.
PARENTS’ BEHAVIOUR
That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent.
(b)Speak of the other parent respectfully.
(c)Not denigrate or insult the other parent or other family members in the presence or hearing of the children.
(d)Use their best endeavours to prevent any other person denigrating or insulting the other parent or other family members in the presence or hearing of the children.
(e)Not discuss the contents of this Order or these proceedings in the hearing or presence of the children.
(f)Use their best endeavours to prevent any other person discussing these proceedings in the hearing or presence of the children.
(g)Use their best endeavours to prevent the children having access to documents filed in these proceedings
The parents shall attend mediation with the assistance of a suitably qualified mediator to assist them with implementation of the Orders or other parenting issues as they arise from time to time.
PARENTAL NOTIFICATIONS
Each parent will keep the other advised of their home address, email address, Skype, landline and mobile telephone numbers and shall advise each other of any change forthwith upon that change and in any event within 24 hours.
Each party shall advise the other of any emergency (including but not limited to medical) regarding the children forthwith.
CONTRAVENTION PENALTY
That within 7 days of these orders, the father enrol in the next available Parenting Orders Program, and ensure that he completes that programme within six months of these orders, and provide evidence of the completion of it to the mother
OTHER ORDERS
The Independent Children’s Lawyer be forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period from these orders, or the conclusion of any appeal that may be brought.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McCormick & Graft has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC301/2009
| Mr McCormick |
Applicant
And
| Ms Graft |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr McCormick (“the father”) seeks orders that G (born in 2005 and hence presently 10 years of age) and H (born in 2006 and hence is presently 9 years of age) (“the children”) live with him, and that he have sole parental responsibility for them. Although by his Further Amended Initiating Application filed 29 July 2015 he sought orders that the children only spend three hours of supervised time with Ms Graft (“the mother”) at a Contact Centre on the first Saturday of each school term, by the end of the trial his position had changed, and he proposed that the supervised time only run for six months, at the conclusion of which he proposed that the mother would spend one half of each holiday period with the children, such time being unsupervised. He justified that period of supervision on the grounds that concerns in relation to the mother’s mental health are such that she currently presents as an unacceptable risk of harm to the children.
For her part the mother proposed that she should have sole parental responsibility for the children, who would live with her and spend one weekend per month and half of school holidays with the father.
The Independent Children's Lawyer supported neither party’s proposal. She contended for orders that would give the father sole parental responsibility, and see the children live with him, but spend one weekend per month and half of school holidays with the mother, such time being unsupervised.
As well as the trial of those parenting proceedings, also before me were two contravention applications filed by the mother. As permitted to be put to the father by me, they contained three charges. The father pleaded guilty to all three, save that, as ultimately formulated, he contended that he had a reasonable excuse for one of those contraventions.
BACKGROUND FACTS
The father
The father was born in Brisbane in 1964 and hence is presently 51 years of age. He grew up in Darwin with his mother, who had separated from his father when he was nine years of age. He concluded school at year ten and completed a motor mechanic apprenticeship before relocating to the Region K. When he was aged 21, his mother visited him there and tragically was killed when the car she was in sustained a blow-out of a tyre. This was described by Dr L, a psychiatrist who examined the father for the purposes of these proceedings, as a major trauma for the father.
Sometime after his mother’s death, the father moved to North Queensland and variously worked in agriculture before starting a number of agricultural businesses. He was engaged in those businesses when, aged 37, he met the mother in 2002.
The mother
The mother was born in Sydney in 1971, and hence is presently 44 years of age. Together with her parents she moved to M Town at the age of 13, where she concluded her schooling. She then assisted her parents in the conduct of a mixed business for ten years, before she worked for a labour hire company for about another three years. It was whilst the mother was in that employment and aged 28 years that she met the father.
The relationship
The parties’ relationship appears to have been always associated with rural life, and farming in particular. It seems that at the time they commenced the relationship the father had two principal farming operations. The parties jointly sought to develop these businesses, with the mother undertaking much of the administration associated with them, and the father being more of a hands-on manager. Although it appears as though perhaps only one business was profitable. However there were large amounts of debt associated with the businesses, perhaps as much as $12,000,000.00 at one stage. The mother asserts that the father became stressed by the conduct of the businesses, and would drink heavily and was a regular user of marijuana. The father concedes that historically he did indeed drink and smoke marijuana. The mother says that when the father was intoxicated he could become very critical of her, and on occasion would assault her, and threaten to kill her and himself. The mother says that his behaviours became sufficiently concerning that the father agreed to attend a mental health facility, and indeed in evidence[1] there were his psychiatric admission notes for March 2007 to the N Hospital. I will discuss them in greater detail in due course.
Post-separation
[1]Annexure 1 to the mother’s affidavit filed 29 January 2015.
The parties finally separated in 2008. Proceedings were commenced in the then Federal Magistrates Court by the father on 22 May 2009. A trial commenced but was unable to be concluded in the time allocated for it, and it adjourned part heard. Before it resumed the parties entered into final consent orders on 27 February 2012, which provided for equal shared parental responsibility, for the children to live with each parent on a week about basis, and for the parties to equally share school holidays.
At the time those consent orders were made, the parties were both living on the E Town in reasonable proximity to each other. However in October 2012, the mother relocated from there to Suburb O, which is on the outskirts of the greater F Town region. The distance between B Town and Suburb O is said to be approximately 375 kilometres. That then made the orders of 27 February 2012 practically unworkable, and, in a sense by default, the children remained living with the father at B Town. They continued to spend one half of school holidays with the mother.
At the conclusion of the Easter school holidays in 2013 the mother withheld the children, and did not return them to the father. She enrolled them in a school at Suburb O. On 16 April 2013 the father brought an application for a recovery order and on 6 May commenced fresh proceedings seeking sole parental responsibility and for the children to live with him. In her Response to that application, the mother sought orders that she have sole parental responsibility, and that the children live with her.
On 10 May 2013 the father’s recovery order application was heard, and an order was made by Judge Willis that the mother return the children to the father, and that the children remain living with him during school terms.
On 6 August 2013 Judge Willis required the parties to attend mediation before further progressing the substantive parenting proceedings. The mother appealed that judgment, but perhaps unsurprisingly, that appeal was unsuccessful (reasons were delivered on 28 February 2014). However in the interim, in January 2014, the father, without notice to the mother, moved from living at B Town to C Town, and in consequence changed the children’s schooling from the B Town Primary School to the P School.
The parties continued to engage in interlocutory warfare in the Federal Circuit Court. Although the matter was listed for trial on 4 June 2014 before Judge Hartnett, for reasons which the evidence does not disclose, the matter did not in fact then proceed. Again for reasons which are difficult to discern, on 13 October 2014 when the matter was mentioned by Judge Coker, his Honour vacated the future trial listing and transferred the proceedings to the Family Court.
Although no doubt not without interruption and incident, the mother had been spending holiday time with the children during 2013 and 2014, that stopped after the September school holidays of 2014. The parties are in some dispute as to why that is. The mother says that the father’s solicitors were insisting upon her giving an undertaking to return the children at the conclusion of any holiday time, and requiring her to specify a date and time for that return. The mother says that she was not prepared to give such an undertaking or specify a date, as the orders sufficiently provided for it. However in the absence of the required undertaking and information, the father did not make the children available for holiday time.
The parties also seem to have reached an impasse in relation to the telephone communication afforded in the orders. The father says that the mother did not answer the telephone when the children attempted to ring her; the mother for her part either says that she was unable to telephone the children, or when she attempted to do so, the father’s telephone was not in service.
The mother sought to bring contravention proceedings against the father. However in the materials which she sought to file in December 2014, there were a number of outrageous allegations made by her, including, for instance, that Judge Willis received payment from the father in exchange for allowing him to mislead her. Allegations were made not only against her Honour, but other judicial officers and lawyers. The Registrar refused to allow such material to be filed on the grounds that it was scandalous.
The mother then sought a review of the Registrar’s decision. In addition, she sought a large number of other interim orders, including parenting orders. Those matters came before me on 2 February 2015, and I dismissed the entirety of the mother’s application: see McCormick & Graft [2015] FamCA 121. The mother appealed that decision, but ultimately the appeal was deemed abandoned. On 10 February 2015 the mother filed a further application alleging that the father had contravened orders by relocating the children from B Town to C Town and changing their school without consultation with her, and taking the children to a property owned by the father called Property Q.
Trial directions were then made on 4 May 2015 with a view to the matter being readied for trial in the second half of 2015. An updated Family Report was prepared, and psychiatric assessments of both parties organised. However somewhat perplexingly, the mother refused to either engage with the family consultant for the purposes of updating her Family Report, or attend for psychiatric examination.
On 7 July 2015 the mother filed a further contravention application which alleged that in the June/July school holidays, the father failed to make the children available to spend the court ordered holiday time with her.
At the time of trial before me, the father remained living in C Town and the children attending P School. Their most recent school reports were in evidence before me, and it appears as though both children are doing well academically and socially, and engage in a range of extra-curricular activities. The father has formed a relationship with one of the school teachers, who has a daughter around the ages of the children, and who is friends with them. Although the father and his partner regularly socialise with their children, they do not cohabit.
The mother’s situation is less clear. Although it appears that she continues to reside in the Suburb O district, she refused to disclose her address, or to give any details of her present living arrangements. In submissions she conceded that her current accommodation is not really suitable for the children, but by the same token was not actually unsuitable. She refused to disclose her financial situation. She refused to disclose any detail in relation to a rural property that she is apparently seeking to purchase. Whilst it seems clear that she has not re-partnered, her evidence was that her mother either has recently, or shortly will, move from the Region K to live with her.
THE CONTRAVENTION APPLICATIONS
The mother alleges three contraventions of orders by the father. The first pertains to order 3 of the consent orders made 27 February 2012. That order provides that “..each parent will keep the other parent informed of, and will properly consult with the other with respect to any significant parenting issue effecting the children.” The mother says that the father breached that order by relocating the children from B Town to C Town, and changing their school from the B Town Primary School to the P School, without any consultation with her. The father pleads guilty to that contravention, and does not claim that he had a reasonable excuse for it.
The second contravention also alleges a breach of the 27 February 2012 consent orders, and particularly order 24. It provides “[t]he father be restrained from taking the children to [Property Q] for a period of two years from the date of this order.” The father admits that he so contravened the orders, but claims he did so with reasonable excuse. I will consider that shortly.
The third contravention is that the father failed to make the children available to spend time with the mother during the June/July school holidays in 2015. The relevant order is one of those made Judge Willis on 10 May 2013. Relevantly it provided that “the children are to spend time with the mother.. for the gazetted June/July.. school holidays, commencing on the first Saturday and concluding on the last Thursday of that school holiday period.”
The father admits the contravention. Although initially he claimed that he had a reasonable excuse for it, during the course of his submissions, counsel for the father conceded that there was in fact no reasonable excuse.
It can therefore be seen that the only matter in dispute between the parties in relation to the contraventions, is whether or not the father had reasonable excuse for taking the children to Property Q in October 2013.
Property Q is located 15km from the mouth of the R River. The R River is near the base of the Cape York Peninsula, and flows west into the Gulf of Carpentaria. The father has a lease of Property Q, and conducts farming and business activities on it. The island is accessible both by air and road, in the latter case by a concrete causeway which links the island with the mainland.
The father says that the contravention occurred because he wished to inspect a boat that was for sale at S Town. He had planned to fly there with the children. However at the last minute the plane became unavailable. Fortuitously, at the time the father had a number of guests staying at the resort on Property Q. A plane had been booked to fly to the island and pick them up. However on the inbound leg to Property Q, the plane was empty. The father then devised a plan whereby in order to travel to S Town, he and the children would fly in the otherwise empty plane to Property Q, and then transfer to a car and drive to S Town. They would then fly direct from S Town back to C Town. Although initially he did not plan that the children would be anything other than in transit on Property Q, when they landed the children wanted to go to the bathroom. He says that the children were in any event only on the island for about 5 minutes.
Section 70NAE(2) provides, in effect, a statutory definition of reasonable excuse. There are two limbs. The first relates to circumstances where the contravention was because the person did not understand the obligations imposed on them. Plainly the father does not rely upon that limb. The second is that the court is satisfied that the respondent ought to be excused in respect of the contravention. The father’s argument is, it seems, that although his breach was advertent and deliberate, the time that the children would be on the island was so limited as to properly be described as transitory.
The concerns which underpinned the order restraining the children from going to Property Q related to their personal safety. The R River appears to be prime crocodile habitat. There are also wild pigs in the vicinity. In effect the father argues that the children could not possibly be exposed to either of those risks in the course of the five minute stop over.
On the other hand, the father did not venture any explanation as to why it is that the children needed to accompany him to inspect a boat that he was considering purchasing, or why the inspection needed to take place on that particular day, and could not have been deferred to another day when a flight direct to S Town was available.
Whilst the breach may have been trifling from a temporal perspective, it was nonetheless quite deliberate. In my view, the father ought not be excused for that breach, but the relative fleeting nature of the visit in breach of the orders should properly be taken into account in determining penalty. Particularly, the fact that the circumstances of the breach did not risk the children’s safety will be highly relevant in that regard.
That then brings me to a consideration of penalty. The father contended that he should be required to undertake a post-separation Parenting Orders Program. The mother proposed that she should be given make-up time. It will be immediately appreciated therefore, that the imposition of penalty will need to await the determination of the parenting proceedings, as if indeed the mother’s time with the children needs to be supervised for some period of time, the provision of make-up time may well be impracticable. I will therefore return to consider penalty for the contraventions at the conclusion of these reasons.
THE ISSUES
During the course of the trial, I identified that the following are the issues which will largely determine the outcome of this litigation:
1. What, if any, risk does the father pose to the children.
2. What, if any, risk does the mother pose to the children.
3.Would the children benefit from a meaningful relationship with father, and if so, how may it best be facilitated.
4.Would the children benefit from a meaningful relationship with mother, and if so, how may it best be facilitated.
5.Would the father facilitate a meaningful relationship between the children and the mother.
6.Would the mother facilitate a meaningful relationship between the children and the father.
7. What would the children’s lives be like if living with the father.
8. What would the children’s lives be like if living with the mother.
9.Could the parties’ communication support an order for equal shared parental responsibility.
After I have reviewed the relevant law, I will address those issues in advance of a traverse of any residual s 60CC considerations, and then proceed to determine the appropriate orders.
LEGAL STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[2] In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
[2]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[3]
[3] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[4]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[4] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
RISK POSED BY THE FATHER TO THE CHILDREN
Although at the commencement of these proceedings this appeared to be a live issue by virtue of the allegations which the mother made in relation to the father, ultimately it was not of any moment. That is because the mother proposed orders that the father should, in the event that the children lived with her, spend unsupervised time with him, to the extent of one half of school holidays. She therefore implicitly concedes that the father does not present such a risk to the children that his time ought be limited or supervised.
The allegations which the mother made against the father related to him allegedly exposing the children to R rated movies, regularly having strangers stay in his home, and it seems, on one occasion, having exposed the children to him and a woman having sex.
Central to the mother’s concerns were some drawings and writings of the children which she had located in her home after the children had spent holiday time with her in June 2014. In one of them, one of the girls expresses her love for a boy called T. There is written on the paper “I want to sex with [T].” It also says that she wants to kiss him, sleep with him and for him to “come to all of my birthday parties.”
There are then some childlike drawings of two human beings apparently kissing, and those people are identified as H and T. Also there is another drawing, again of two adults said to be T and H, together with what appear to be six children.
Finally there was a note said to have been written by H to G. It reads (grammar and spelling in original):
Dear Imbasall
I hat you. You are an imbasall. Oh ye shut up. I am gona kill you.
I u r anoying.
From [H] with lots of hatnese.
Death to you girl
Underneath that writing there appears a love heart with an arrow through it.
In her Family Report of 20 July 2015, Ms D at [80] discussed the mother’s concerns in relation to these items. She concluded that they did not comprise evidence that the girls have been involved in sexual abuse and denied that the written message was in any way sinister, but consistent with usual sibling arguments. I accept that evidence. There is nothing sinister whatsoever in relation to any of that material relied on by the mother.
The father denies that the children have ever seen him engaged in sexual intercourse with a woman. I accept that evidence.
It might be that from time to time the father has Property Q guests stay at his home en route to the island. There is no reason to think that they pose any risk to the girls. I wholly reject any suggestion that the father poses a risk to the children.
There is one further issue relevant to this, and that is that the mother seeks an order that the father not be permitted access to firearms or to hold a gun licence. This apparently is founded in an incident which it is said occurred during the course of the relationship when the father “held up” the mother and children using a firearm. The father denies doing so. I am far from persuaded that the event occurred. However even if I am wrong as to that, plainly if there are wild pigs or other feral animals at Property Q, it would be positively in the children’s interests to be kept safe, if needs be by the father using firearms.
Finally the mother asserts that the father transmitted scabies to the children. She says that the father himself contracted this condition from sleeping with prostitutes. She sought in her orders not only that the father have regular HIV testing and STD screening, but he be restrained from, amongst other things, consorting with prostitutes while the children are in his care.
The father denies that he has ever slept with a prostitute. It is unnecessary to determine whether that is indeed the case. It is simply fanciful to suggest that the father poses some form of risk of transmission of disease to the children by virtue of any lifestyle choices he may make.
RISK POSED BY THE MOTHER TO THE CHILDREN
For most of the trial, this appeared to be the central issue. That was because until near the end, the father had sought orders that the mother’s time with the children be permanently restricted to three hours of supervised time per term. In fairness to the father, that position appeared to be aligned with the recommendations of the most recent Family Report of Ms D. However in the course of her oral evidence, Ms D identified that she did not intend the supervision to be permanent, but that rather it should proceed for at least six months, and if in the Contact Centre’s opinion there were then no troubling issues, the mother could move to unsupervised time with the children. Perhaps recognising the difficulties the regime as proposed by Ms D presented, the father did not then adopt those recommendations, but rather simply sought that the supervision be for six months, and then move to unsupervised time, comprising only one half of school holidays.
It can therefore be seen that the father was asserting that the mother is presently a sufficient risk to the children that for six months her time should be supervised, but that thereafter the risk was not one which needed to be mitigated by supervision.
In cross-examination Ms D was asked about the source of her concerns, such that she recommended supervision. Central to her thinking was the mother’s mental health. She pointed to a number of issues, including the mother seemingly having peremptorily left E Town, her belief that people at E Town had been bullying her, and her regular recourse to fairly flamboyant or ridiculous allegations of misconduct by a wide range of people, coupled with threats to litigate in relation to those matters. She was also troubled that the mother had refused to be psychiatrically assessed by Dr L, and had not engaged with her in the Family Report process. Ultimately however, she conceded that none of that could possibly support a diagnosis of any psychiatric illness on the part of the mother, but at most founded a reasonable suspicion that the mother may have developed paranoid traits. She further said that those traits may explain why the mother was not prepared to disclose any detail of her current living or personal arrangements.
Of note is that in the earlier proceedings, the mother had indeed been psychiatrically assessed, most recently in 2011 by Dr U. He identified no psychiatric issues associated with the mother whatsoever.
Ms D was also very troubled by the mother’s conduct towards the children in recent times. She was somewhat critical of the mother not having spent any time with the children, nor, with one exception, communicated with them for about 12 months, which she correctly identified was not child focussed. Moreover, she was troubled about the circumstances of the mother’s only contact with the children in that period. It appears as though on the morning of the Family Report interviews with the children on 17 July 2015, the mother did telephone the children (she says in response to a message left with her by them) in consequence of which the children became upset. The children told Ms D that in the conversation they had with the mother on that morning, she told them that a pet of theirs (a cat) had died and that the reason why she had not seen the children was because the father was not permitting her to.
For her part the mother denies that the conversation she had with the children was as they relayed to Ms D, and particularly says that the animal in question was not one of the children’s pets (and in any event she only told the children that the relevant cat had “gone”), and further, that she did not tell the children that the reason she had not spent time with them was because the father was not permitting her to.
Whatever be the truth, it is plain that the children were upset in consequence of the conversation with their mother, but that is at least possibly explicable by the fact that they were reminded of their previously close relationship with their mother by virtue of the conversation, and were probably stressed in the context of shortly attending Family Report interviews. The mother was likewise also probably somewhat emotional at having her first communication with the children in many months.
Plainly there are some issues surrounding the mother. She does appear to be acting consistent with some degree of paranoia being experienced by her. She may be less than appropriately child focussed in her communications with the children from time to time, and by not having kept in contact with them.
However what is the postulated conduct said to constitute the risk, and what is the likelihood of its occurrence? Even accepting that paranoid traits may manifest themselves unpredictably, it could not really be contended that the mother is likely to act so as to physically harm her daughters. Certainly she has never been accused of acting in any such way in the past. Even if there be such a risk, the likelihood of it eventuating must be adjudged as remote. If it did occur, the prospect and magnitude of any harm ensuing to the children is very difficult to gauge.
That then leaves the risk of emotional harm. However to the extent that the mother has been associated with such a risk to date, it is by her absence from the children’s lives, not her presence in them. Indeed it may fairly be said that the children dearly love their mother, and wish to emulate her. There is not a breath of a suggestion that, when spending time with her in the past, the children have been distressed, or otherwise manifested the prospect of emotional harm. I determine that, if spending time with the children, the risk of the mother acting in a way which may affect emotional harm is remote. Again, given the amorphous way in which the risk can only be expressed, gauging the prospect and magnitude of any harm that may be visited on the children if the risk eventuates, is difficult in the extreme.
However all of that falls very short of persuading me that the mother presents an unacceptable risk of harm to the children which can only be sufficiently mitigated by strict supervision of her time with the children. However I am satisfied that to the extent that the mother does present a risk, it must be proportional to the amount of time that she spends with the children. Moreover, such risks as she presents – accepting they are slight – may be sufficiently ameliorated by requiring her to undertake a parenting program such as Focus on Kids, as the Independent Children's Lawyer contends that the mother should do, before again commencing to spend time with the children. However I will address those matters in due course when considering the specific orders which should be made.
BENEFIT OF MENINGFUL RELATIONSHIP WITH FATHER
Ms D’s emphatic view was that the children would benefit from a meaningful with the father, and the best means of facilitating it would be by regular face to face time, and for the father to be involved in all aspects of their life. At paragraph 89 of her second Family Report she said:
[The father] is obviously physically and psychologically taking care of the children as they have both grown tremendously and both are extremely healthy looking and both doing very well in school.
I am satisfied that the children would indeed benefit from a meaningful relationship with their father, and accept Ms D’s evidence as to how it may best be facilitated.
BENEFIT OF MEANINGFUL RELATIONSHIP WITH MOTHER
Ms D’s evidence was that, provided any risk posed by the mother was not unacceptable, then the children would indeed benefit from having a meaningful relationship with her. Moreover, in cross-examination she agreed that it is likely that the maternal relationship will be important to the children as they develop their adolescent identities, which they are either presently doing, or shortly likely to do.
It is plain that the children deeply miss their mother and still largely identify with her. For instance both girls cried during the course of their interviews with Ms D when discussing their mother, and appeared to be making excuses on her behalf as to why she had not seen or telephoned them. However both identified positive recollections of their time with the mother, and both expressed strong wishes to again spend time with her. Indeed G identified, when asked what she would like to do in the future, as “selling … like mum.”
I have no doubt whatsoever that both girls would strongly benefit from a meaningful relationship with their mother, and that it would be best facilitated by them spending face-to-face time with her as regularly as circumstances permit, and for the mother to actively involve herself in the children’s lives in every area.
WOULD FATHER FACILITATE MEANINGFUL RELATIONSHIP
The evidence relevant to this issue does not point in one direction. On the one hand, the father expresses an acknowledgment that the children do miss their mother, and would benefit from a relationship with her, but on the other hand, in fact the children have not spent any time nor communicated with their mother (other than the telephone call before the Family Report interviews) for now something in excess of 12 months. Moreover, the father has admitted to contravening orders which were designed to involve the mother in the children’s lives, most recently by failing to make the children available for the mother to spend time with her in the June 2015 school holidays.
The father’s frustration with the mother was palpable during her cross-examination of him. He appeared to be genuinely annoyed by what he perceived to be the mother’s failure to reasonably engage with him in relation to her spending time with the children, and expressed his strong frustration at the fact that his efforts from time to time, to negotiate the mother spending time and communicating with the children, had been thwarted by what he perceived to be the mother’s unreasonable positions.
However upon analysis, the reasons why the mother has not availed herself of at least the holiday time with the children, appear to stem from the fact that the father’s solicitors were insisting upon conditions additional to those stipulated in the orders, for instance the mother undertaking to return the children to the father on a specific time and date. Correctly the mother identified that such stipulations were not required under the orders, and no doubt she took umbrage at the father’s solicitors seeking to unilaterally impose additional requirements upon her before she could spend time with the children. I think it may fairly be said that the mother was incensed by what she perceived to be high handed conduct of those solicitors.
There is little doubt that the mother would be a highly difficult person for the father to negotiate with. As shall be seen in due course, I am of the view that their communication may best be described as appalling. In large part, that has to be acknowledged as stemming from the mother’s style of communication, which may be fairly described as generally accusatory. In the course of submissions, I suggested to counsel for the Independent Children's Lawyer that an apt description of the mother was that she is stridently argumentative. The father on the other hand is a much more stoic and quiet individual, at least insofar as I was able to observe him during the court proceedings. I have little doubt that he dreads the prospect of having to engage with the mother.
However that said, I was impressed with the genuiness of the father’s frustration, not so much at the impasse at communication, but at the effects of that impasse upon the children. To my observation, he was genuinely upset that the mother had, in effect, abandoned the children in the last year. I am satisfied that he does indeed appreciate that the children would benefit from a meaningful relationship with the mother, and identifies that the children are terribly upset that they do not presently have that. I am satisfied that the father is sufficiently child focussed to recognise that the children would only benefit from having a relationship with their mother, rather than her being excluded from their lives.
Therefore, although not without some reservations, I am satisfied that the father would indeed facilitate a meaningful relationship between the children and the mother.
WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP
The mother is plainly angry with the father. She has made an extraordinarily wide range of allegations against him. She also appears to regularly threaten to report him to relevant authorities, or to report his solicitors and others to such authorities. She has in recent times regularly threatened extensive litigation against the father and numerous other people.
It may fairly be said that the mother does not have a good word to say about the father. She did not appear to acknowledge that the father has done a good job in the last 12 months of single parenting these children, without any form of assistance from her. Notwithstanding the evidence that the children are thriving in his care, she still makes relatively fanciful allegations that the father presents some risk of harm to the children.
All of this is concerning, in that is suggests that the mother perceives no benefit of the children having a relationship with their father, or at least is begrudging of that relationship at best.
Moreover, in the past the mother has unilaterally withheld the children, which again speaks to her view that the father’s role in the children’s lives is not one of significance.
Upon balance, I am not satisfied that the mother presently would facilitate a meaningful relationship between the father and the children.
CHILDREN’S LIVES IF LIVE WITH FATHER
In the most recent Family Report, Ms D was effusive in her description of the children. She described G as looking “the picture of health, tall, well-muscled, long, well-kept hair, clean skin with no cuts or bruises noticeable.” She reported that she was doing well at school and enjoyed it. Indeed it does appear as though both girls are presently thriving. Their report cards are excellent on the whole, and the father’s evidence is that the children engage in a good range of other activities, albeit that he limits those so that they are not too tired.
The father has appropriate housing for the children, and it appears as though they regularly accompany him to Property Q, which is patently a place that both children love.
There is no reason to think that, if the children were to remain living with the father, their lives would not proceed as they presently are, no doubt continuing to achieve the outstanding outcome which they have to date.
CHILDREN’S LIVES IF LIVE WITH MOTHER
I have already remarked upon the mother’s steadfast refusal to provide any detail as to her present living arrangements or personal circumstances, and her refusal to identify even the locale where, if the children were to live with her, they would likely reside. The most she would say is it would be within the greater F Town region, and would be proximate to eight schools. It appears as though the mother is intending on purchasing a rural property, and on that property she would house her menagerie of pet animals and working dogs, no doubt within a commercial farming operation. However unfortunately because the mother refused to detail her financial position, I am not able to make any assessment as to whether the mother’s ambitions to acquire such a property are realistic or not, and hence unable to gauge what life the children would likely have in the event such ambitions could not be brought to fruition.
Therefore unfortunately, the evidence simply does not permit me to predict, other than in terms of very broad generalities, what the children’s lives would be if they went to live with the mother.
PARTIES COMMUNICATION AND EQUAL SHARED PARENTAL RESPONSIBILITY
Having observed the mother cross-examine the father for many hours in the witness box, I have little doubt whatsoever that the parties’ communication is so poor, that the prospect of them exercising equal shared parental responsibility cannot even be contemplated for a moment. Indeed both parties frankly recognised it. Neither party proposed orders for equal shared parental responsibility, and nor did the Independent Children's Lawyer.
SECTION 60CC FACTORS
It will be appreciated that in the course of discussing the issues, I have already addressed the primary considerations, as well as a number of the additional considerations in s 60CC. However the following further observations are pertinent.
Ms D was of the view that the children are too young and immature to have a full understanding of their residential wishes. That said, both children stated how much they liked the week-about arrangement when both parents were living nearby, and seemed to have a wish, if possible, to have “school term about” arrangements. Plainly such a wish is, however not feasible.
The children apparently have good relations with the maternal grandparents and their three surviving great grandparents. They have not been able to enjoy those relationships in recent times.
The mother has not engaged with the children, other than one telephone call, in the last twelve months. I have sufficiently discussed the reasons for that earlier in these reasons.
It does not appear as though the mother has contributed to the costs of the children in recent times.
It is likely that, if the children were to change residential care as proposed by the mother, there would be a disruption to their relationship with the father, and their present living arrangements.
Unfortunately the mother’s desire to live in the F Town region means that there is a practical difficulty and expense with the children spending time with her if they live with the father, or with the father if they live with the mother. That will substantially affect the children’s right to maintain personal relations with both parents on a regular basis.
The mother contends that the father was violent towards her during the course of the relationship. Whilst it is perhaps unnecessary to determine by way of a finding of fact whether or not that is so, the psychiatric admission notes from 5 March 2007 plainly detail the father telling the psychiatrist that two days earlier he had attempted to harm the mother by putting his hands around her throat following an argument. I wholly reject the father’s suggestion that those notes were compiled by the psychiatrist in a conversation with the mother or maternal grandmother. I say so because the psychiatrist commences some of the relevant history with the pronoun “I” and under the heading “history of illness” relates “very reluctant to give .. information. He is not keen for me to ring his wife for further information.”
PARENTAL RESPONSIBILITY
There are reasonable grounds to believe that there has been family violence, comprising the father placing his hands around the mother’s throat during the course of an argument. The presumption of equal shared parental responsibility therefore does not apply. In any event, not only does neither party seek equal shared parental responsibility, but both concede it would be wholly unworkable given their appalling communication. Parental responsibility must go to whoever is the primary residence parent. The circumstances of this case necessitate that there be a primary residence parent, because of the distance between the respective households.
WITH WHOM SHOULD THE CHILDREN LIVE
The following points tell in favour of the father’s proposal, or are against the mother’s:
·The father poses no risk to the children;
·There is a reasonable basis to suspect that the mother is demonstrating paranoid traits, albeit such risk as that poses is not an unacceptable one;
·The father is more likely to facilitate a relationship between the children and the mother, than she is to facilitate a relationship between the children and the father;
·The children are presently thriving in the father’s care and are well settled. There is no reason to think that anything would change in their lives if they continued in his care;
·I know virtually nothing of what the mother would propose for the children’s lives if they were to change to her care;
·For whatever reason, the mother has not in fact been involved in the children’s lives for somewhat over a year.
On the other hand the following factors point in favour of the mother’s proposal, or are contrary to the father’s:
·Whilst in his care, the children have not in fact enjoyed a relationship with the mother for the last twelve months;
·The mother is the only conduit which the children have to the broader maternal family.
Weighing these factors in the balance strongly tell in favour of the conclusion that it is in the children’s best interests that they remain primarily living with the father, and I will so order.
TIME AND COMMUNICATION WITH MOTHER
Notwithstanding Ms D’s concerns, I do not assess that the mother presently is an unacceptable risk of harm to the children if they were to spend unsupervised time in her care. The suspicion that the mother may not be travelling well psychologically is nothing more than a suspicion. Any risk of harm she thereby poses to the children is not such that supervision of her time is required.
Moreover, ultimately the father only proposed supervision for a period of six months. Counsel for the father was unable to give any cogent explanation as to what magic there was to a six month period. Particularly he was unable to explain to me how the risk (which he described as presently unacceptable) would somehow become acceptable at the conclusion of six months. The most he was able to say was that the court should act protectively, and that there would be an opportunity for the father to review the mother’s behaviour towards the children during those supervised visits, and if needs be, seek some further assistance from the court if there were problems. However that was replete with the prospect of further litigation. These parties have been involved in litigation for far too long. The invitation to keep alive the prospect of further litigation must be roundly rejected.
On the other hand, there is substance to the concerns that the mother’s most recent communication with the children was not particularly child focussed or appropriate, and there is every reason to think that the mother would benefit from a condition being imposed upon her commencing to spend time with the children again, namely that she undertake a course of the kind such as Focus on Kids, to improve her capacity to think and behave in a child focussed manner. I am satisfied therefore that there should be an order to that effect.
That then brings into focus the appropriate level of time that the mother should spend with the children. The father contends that it should only be school holiday time. The Independent Children's Lawyer (and the mother) contend that it should be half school holidays, but also include one weekend per month. The father and mother presently live approximately four or five hours drive away from each other. The father did not attempt to explain to me why it is that the proposal of one weekend per month in addition to school holidays was not in the children’s best interests. I am satisfied that indeed, notwithstanding the inconvenience that both parties will be put to, the children’s school holiday time with the mother should be augmented with weekend time. However the distance involved, and the impact upon the children’s extra-curricular activities in C Town, should see that time restricted to once per month.
I am satisfied that the mother should have the opportunity to regularly telephone the children should she so wish.
I am therefore satisfied that the orders proposed by the Independent Children's Lawyer in relation to the mother spending time and communicating with the children, are in their best interests and will so order.
VEXATIOUS LITIGANT ORDER
The father sought an order under s 102QB(2)(b) prohibiting the mother from instituting proceedings under the Family Law Act without leave of the court. Although at the outset of his submissions, counsel for the father did advise me that that application was being pressed, in fact no submissions were thereafter advanced. It is difficult in the extreme to identify a proper the basis for making any such order. The father had, during the course of the proceedings, pleaded guilty to three contraventions, and although one of those pleas did have an additional plea of reasonable excuse, I have rejected that argument. It is virtually impossible to see why the mother should be precluded from, for instance, bringing any further contravention proceedings, when those that she has thus far properly commenced were accepted as meritorious, even by the father.
It is true that the mother appears to have an over enthusiasm for litigation, or at least making threats of litigation, but the circumstances of this case fall a long way short of persuading me that the mother should be subjected to an order under s 102QB of the Act. I decline to make any such order.
OTHER ORDERS
The mother seeks an order that the father submit to random drug/alcohol tests. She has been obsessed with the father’s alleged alcohol and drug abuse for some time. During the course of the trial she suggested that the father should be required to submit to an immediate drug test. Although I did not require it, in fact the father went out and obtained one. It was clear. There is absolutely no reason to require the father to submit to drug or alcohol tests in the future. True it is that on one occasion in the distant past he did fail a test he was required to submit to, associated with his pilot’s training, but there is no reason to think that the father continues to excessively drink or ingest illicit drugs.
The mother seeks an order that the father not be permitted passports for the children for overseas travel. She appears to have some obsession with the suggestion that the father, on one occasion, travelled to Country V with the children, and seems to think that this was some form of “sex trip.” The father denies that he was consorting with prostitutes, but does apparently concede that he was then visiting a Country V woman with whom he had some sort of association. There is absolutely no reason to restrict the travel of the children overseas based upon such a history. I decline to make such an order.
The mother also seeks an order that the children not be allowed to travel to Property Q with the father. Whilst it is true that there are some hazards on the island, being crocodiles, wild pigs and perhaps other feral animals, there is no reason to think that the risk associated with that is unacceptable. I decline to make such an order.
The mother seeks an order that the father not be permitted access to firearms or a gun licence. There is no reason to think that the father cannot be trusted with either a firearm or the lawful entitlement to have a firearm.
The mother seeks an order that the father not drink alcohol to excess while the children are in his care. Whilst it may be the case that the father was abusing alcohol during his relationship with the mother, I am not persuaded that that presently represents any current feature of his life. There is no reason to make the order sought by the mother, and I decline to do so.
The mother also seeks orders that the father “be restrained from illegal activity while the children are in his care including prostitutes, drugs and driving under the influence of alcohol, driving without a valid drivers’ licence.” I am not persuaded that the father engages in any of those activities, and there is no reason to make such an order.
Finally the mother seeks an order that the father have regular HIV testing and STD screening. This appears to relate to her obsession with the father’s alleged sexual promiscuity. I am not so persuaded. There is no reason to require the father to undergo such tests.
Finally the Independent Children's Lawyer sought non-denigration orders as are commonly made in parenting proceedings. I am satisfied that there should be such an order, and am otherwise satisfied that the incidental orders as sought by the Independent Children's Lawyer are appropriate.
PENALTY
It will be recalled that I reserved the question of penalty for the contraventions by the father pending the determination of the parenting proceedings. The father contends an appropriate penalty is to engage in a post-separation Parenting Orders Program or the like, whereas the mother seeks orders compensating her for the lost time.
I acknowledge that, at least in June of this year, the mother did wish to spend time with the children, and the father did not in fact, in accordance with the then orders, make the children available to the mother. In those circumstances it might ordinarily be thought that it is indeed appropriate for the mother to have some greater time with the children in forthcoming holidays than would otherwise be the case. However upon balance I am not satisfied that such an order would be in the best interests of the children because:
·The children have now spent no time with the mother for over twelve months;
·The mother does need to undertake an appropriate course such as Focus on Kids before she should again spend time with the children;
·In those circumstances it is likely that the mother will not be in fact spending time with the children during the forthcoming Christmas holidays, as she is unlikely to have completed that qualification;
·It is likely therefore that the first occasion that the mother will spend holiday time with the children will be in the Easter school holidays in 2016;
·There is every reason to think that the children’s relationship with the mother would be best fostered by a gradual re-introduction into their lives, such that to have the children spend all of the Easter holidays with the mother may in fact be counterproductive.
Therefore I decline to make an order any compensatory time. I will however require the father to, within six months, complete a Parenting Orders Program, but otherwise impose no penalty for the three contraventions.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 November 2015.
Associate:
Date: 26 November 2015
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