Melton & Domara (No 2)
[2023] FedCFamC2F 1339
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Melton & Domara (No 2) [2023] FedCFamC2F 1339
File number(s): ADC 1244 of 2019 Judgment of: JUDGE DICKSON Date of judgment: 20 October 2023 Catchwords: FAMILY LAW – PARENTING – Children aged nine and six years – Previous final orders made by consent in July 2020 – Allegations and incidents of family violence that served to re-open the final orders application – Where the father seeks sole parental responsibility – Where the mother seeks week about time spending – Consideration of best interests – Consideration of meaningful relationship – Orders for children to spend time with the mother on a gradual and increasing basis – Orders for equal shared parental responsibility – Best interests. Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62G, 65DAA, 65DAC.
Cases cited: Godfrey & Sanders [2007] FamCA 102,
Goode & Goode (2006) FLC 93–286,
Hall & Hall (1979) FLC 90-713,
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378,
Loddington & Derringford (No 2) [2008] FamCA 925,
Mazorski & Albright (2007) 37 Fam LR 518,
Rice v Asplund [1978] FamCA 84,
Sigley v Evor [2011] FamCAFC 22,
Whisprun Pty Ltd v Dixon [2003] HCA 48.Division: Division 2 Family Law Number of paragraphs: 206 Date of hearing: 28 and 29 August 2023, and 13 October 2023 Place: Adelaide Counsel for the Applicant: Ms James Solicitor for the Applicant: Starkie Family Law Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: Daniel John Lawyers Counsel for the Independent Children's Lawyer: Ms Dichiera Solicitor for the Independent Children's Lawyer: Awkar & Co ORDERS
ADC 1244 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MELTON
Applicant
AND: MS DOMARA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The parties have equal shared parental responsibility for the children X born in 2014 and Y born in 2017 (‘the children’).
3.The children live with the father.
4.The children spend time with the mother as follows:
(a)During school terms:
(i)On each alternate weekend from the conclusion of school Friday (or 3:00pm if a non-school day) to the commencement of school Monday (or 9:00am if a non-school day or 9:00am Tuesday in the event of a public holiday Monday);
(ii)For the remainder of 2023 and for Term 1 2024, on each Wednesday from the conclusion of school (or 3:00pm if a non-school day) to 7:00pm;
(iii)As and from the commencement of Term 2 2024, on each alternate Wednesday from the conclusion of school (or 3:00pm if a non-school day) to commencement of school on Thursday (or 9:00am if a non-school day); and
(iv)As and from the commencement of Term 4 2024, on each Wednesday from the conclusion of school (or 3:00pm if a non-school day) to commencement of school on Thursday (or 9:00am if a non-school day);
(b)For one half of the short term school holidays at times to be agreed between the parties via the AppClose application or in default of agreement for the half of the school holidays coinciding with the cycle referred to in paragraph 4(a)(i) herein;
(c)During the Christmas school holidays in each year on a week about basis with the children to spend the first week of such holidays with the father (and each alternate week thereafter) and the children to spend the second week with the mother (and each alternate week thereafter);
(d)On the children’s birthdays at times to be agreed between the parties (or in default of agreement for a period of three (3) hours at times to be nominated by the party who does not have the care of the children) via the AppClose application;
(e)On Mother’s Day from 10:00am to 5:00pm, and that the mother’s time with the children is to be suspended from 10:00am to 5:00pm on Father’s Day;
(f)At Christmas in each year from 3:00pm Christmas Day to 3:00pm Boxing Day, with the children to be in the care of the father from 3:00pm Christmas Eve to 3:00pm Christmas Day each year; and
(g)At such other times as agreed between the parties in writing via the AppClose application.
5.All handovers that do not take place at the said children’s school occur at the mother’s residence between the mother and either the paternal grandmother or Ms B and with the father only able to participate personally in handovers if the mother’s prior written consent has first been obtained.
6.The father be restrained and an injunction is granted restraining him from entering the foyer of the mother’s apartment building, unless the mother’s prior written consent has first been obtained.
7.The parties be restrained and injunctions be granted restraining each of them from enrolling the children in any further extracurricular or sporting activity which will take place whilst the children are in the respective care of either party without the other party’s prior written consent having first been obtained.
8.That each of the parties are at liberty to travel interstate with the children during school holidays provided that each party provide:
(a)a full itinerary of the travel, address and contact telephone details; and
(b)no less than fourteen (14) days written notice of such intended interstate travel.
9.The appointment of the Independent Children’s Lawyer be discharged.
10.All extant applications be dismissed.
AND IT IS ORDERED BY CONSENT THAT:
11.The children spend time with the mother as follows:
(a)At Eid at times and days as agreed between the parties via the AppClose application;
(b)At such other times as agreed between the parties via the AppClose application.
12.Notwithstanding any other order the parties shall spend time with the children as follows:
(a)For Easter:
(i)With the father in each year from 3:00pm (or the conclusion of school) Easter Thursday to 3:00pm Easter Sunday; and
(ii)With the mother in each year from 3:00pm Easter Sunday to 3:00pm Easter Tuesday (or the commencement of school);
(b)For New Years:
(i)With the father in 2023 and each odd year thereafter from 1:00pm on New Year’s Eve until 1:00pm on New Year’s Day; and
(ii)With the mother in 2024 and each even year thereafter from 1:00pm New Year’s Eve until 1:00pm New Year’s Day.
13.The parties communicate with each other with respect to issues relating to the children via the AppClose application.
14.The parties keep each other informed as to their current telephone and email addresses at all times and advise the other of any change within forty-eight (48) hours of such change.
15.The parties be at liberty to attend at the children’s school events, including but not limited to, activities such as school concerts, school sports days, parent/teacher interviews and the like.
16.These orders be sufficient authority for any school or health professional attended upon by the children to provide to the parties any information or reports pertinent to the children’s progress and development.
17.The parties advise the other of any medical emergency regarding the children as soon as practicable and each be at liberty to speak with any medical practitioner or allied health professional regarding the children.
18.Without admission the parties be restrained and injunctions be granted restraining each of them from:
(a)Physically disciplining either child or allowing any other person to do so;
(b)Denigrating, harassing, intimidating or assaulting the other party, their partner or family or allowing any other person to do so;
(c)Attending at the other party’s place of residence without their prior written consent having first been obtained; and
(d)Discussing these proceedings in the presence or hearing of the children or allowing any other person to do so.
19.The parties be restrained and an injunction be granted restraining each of them and/or their servants and agents from removing or attempting to remove or causing or permitting the removal of X born in 2014 and Y born in 2017 from the Commonwealth of Australia unless otherwise agreed in writing.
20.The father do forthwith do all things and sign all documents necessary to list the mother as an enrolling parent at C School.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
The proceedings between the applicant father, Mr Melton (‘the father’), and the respondent mother, Ms Domara (‘the mother’), involve competing parenting applications in relation to future arrangements for their two children, X (born in 2014) and Y (born in 2017) (‘the children’).
At the date of Trial, the children were aged nine and six years respectively.
EVIDENCE AND WITNESSES
The father’s Outline of Case Document filed 25 August 2023 sets out that the father relies upon the following:
(1)Amended Application for Final Orders filed 3 July 2023; and
(2)Trial Affidavits of the father filed 3 July 2023 and 18 August 2023.
In addition, counsel of behalf of the father filed Written Submissions on 12 October 2023.
The mother’s Outline of Case Document filed 24 August 2023 sets out that the mother relies upon the following:
(1)Further Amended Response to Initiating Application filed 4 August 2023;
(2)Trial Affidavit of the mother filed 4 August 2023; and
(3)CCTV Footage of Incident between the parties in late 2021 (‘Exhibit F2’).
In addition, counsel of behalf of the mother filed Written Submissions on 29 September 2023.
The Independent Children’s Lawyer’s Outline of Case Document filed 24 August 2023 sets out that the Independent Children’s Lawyer relies upon the following:
(1)Family Assessment Report of Family Consultant Ms J dated 5 September 2022 (‘the Family Report’); and
(2)Affidavits of the Independent Children’s Lawyer filed 16 May and 17 June 2023.
In addition, counsel of behalf of the Independent Children’s Lawyer filed Written Submissions on 12 September 2023.
The standard of proof in this case is on the balance of probabilities.[1]
[1] Evidence Act 1995 (Cth) s 140.
It is not necessary in these Reasons for the Court to refer to every piece of evidence and every argument presented during the Trial.[2]
[2] Whisprun Pty Ltd v Dixon [2003] HCA 48, [62];EXHIBITS TENDERED AT TRIAL
The father tendered Exhibits F3 and F4 at Trial.
The mother tendered Exhibit M1 and also relied upon Exhibit F2 being a USB stick of CCTV footage of a violent incident which took place between the parties in late 2021 at a contact handover.
Exhibit F2 was tendered to the Court during an earlier interlocutory hearing on 18 March 2022.
The Independent Children’s Lawyer tendered and relied upon Exhibits I1 and I2. Exhibit I2 is a draft Consent Minute setting out the orders which were agreed between the parties at Trial.
ORDERS SOUGHT AND ISSUES IN DISPUTE
Until the first day of Trial, the father had maintained a position before the Court arguing that the mother was prevented from pursuing her final order application pursuant to the ‘Rule’ in Rice & Asplund (‘Rice & Asplund’).[3]
[3] [1978] FamCA 84.
The father had argued that the final orders made by consent on 22 July 2020 prevented the mother from pursuing further orders save for two outstanding issues, namely the mother’s then application for half of Christmas school holiday time spending and an application to travel overseas with the children, specifically to Country D. Since July 2020, it had been the father’s position that the orders made by consent on a final basis on 22 July 2020 and a subsequent consent order for half of Christmas school holidays should not be revisited by the Court.
On the first day of Trial, the father’s counsel advised the Court that her client no longer sought to rely upon the ‘Rule’ in Rice & Asplund. The father now sought orders for sole parental responsibility in lieu of the final consent order for equal shared parental responsibility dated 22 July 2020.
The father’s proposals in relation to other parenting orders also changed during the Trial.[4] By the date of final submissions, the father’s counsel confirmed that the father again promoted a sharing of school holidays but no longer supported mid-week time each Wednesday.
[4]The mother sought that the final consent order made on 22 July 2020 for equal shared parental responsibility continue and that the children ultimately live with each parent on a ‘week about’ basis which necessarily included half of all school holidays.
At the commencement of the Trial, the Independent Children’s Lawyer proposed orders as set out on pages 1 to 3 inclusive of the Outline of Case Document. The Independent Children’s Lawyer promoted orders for equal shared parental responsibility, that the children live primarily with the father and spend time with the mother on alternate weekends from after school Friday to the commencement on school Monday (three nights per fortnight), on each Wednesday from 3:00pm to 7:00pm, for half of all school holidays and special occasions. Further orders were proposed in relation special occasions, specific issues and injunctions.
By final submissions, the Independent Children’s Lawyer had varied her position to support the children spending time with the mother for five nights per fortnight by way of an extension of time from Wednesday overnight to the commencement of school on a Thursday each week. All other major proposed orders remained the same.
The central issues in dispute at Trial are identified as:
(1)The apportionment of parental responsibility;
(2)Whether the children spend time with the mother during school terms on a week about basis or for some other formation each week; and
(3)Should the children spend time with the mother at Christmas in each year.
BACKGROUND & RELEVENT CHRONOLOGICAL EVENTS
The father is aged 44 years and works part time as a community worker on each weekend. The father is a Christian and attends “F Church”. He is married to Ms B. The father is also assisted by his mother in the care of the children. He resides in a private home in the suburbs of City M.
The mother is aged 40 years and works as a support worker on three days each week at a local employer. She is studying with a view to becoming a health care worker. The mother is a sole parent to her son E born in 2021, now aged two years. The mother is a Muslim. She has no family support in Australia as her family reside in Country D. The mother lives in an apartment complex in City M.
The mother came to Australia in 2009 on a student visa. The parties met in 2009 and commenced a relationship in or about 2011. The parties did not live together at any time during their relationship.
There are two children of the relationship namely X born in 2014 and now aged nine years, and Y born in 2017 and now aged six years (‘the children’). The children attend C School in suburban City M having been enrolled there by the father. Previously the children attended the G School near the mother’s home in the city.
The father of E is Mr H who resides in Country D. The paternity of E was a matter of dispute between the parties at the time of his birth and resulted in this litigation becoming more protracted and difficult.
The parties’ relationship ceased in either May 2018 (according to the father) or mid-2020 (according to the mother). The mother contends that parties continued a sexual relationship until mid-2020,[5] despite the relationship formally ending. E was born in 2021. The mother believed that the father in these proceedings was his biological parent. DNA Paternity Testing later confirmed otherwise.
[5] See the Affidavit of Ms Domara filed 4 August 2023 at paragraph 14.
In April 2019, the father instituted proceedings for parenting orders.
On 27 May 2019, various interim orders were made. Shortly thereafter, the mother made a decision to place the children in the father’s care.
On 29 July 2019, interim orders were made by consent that the children live with the mother and spend two periods of daytime contact with the father each week.
On 28 October 2019, the Court ordered that the children live with the father from the conclusion of school (or 3:00pm) on Thursday to the commencement of school (or 9:00am) Monday of each alternate week and in each intervening week on Tuesday and Thursday from 3:00pm to 7:00pm. The children were otherwise to live with the mother at all other times.
In March 2020, the mother again placed the children in the father’s care. The mother’s employment had been terminated due to the onset of the COVID-19 pandemic and I accept her evidence that she was under substantial personal and economic pressure. Conversely, the father had recently received a large inheritance and was, in contrast to her, financially comfortable.
On 20 April 2020, the Court noted that the father alleged that the children had been placed into his primary care on 26 March 2020 and orders were made during the period of the adjournment that the children live with the father and spend time with the mother as agreed.
On 19 June 2020, interim orders were made by consent for the children to remain living with the father and spend time with the mother from the conclusion of school Friday to 5:00pm Sunday on each alternate week and each Wednesday from 3:00pm to 7:00pm.
On 22 July 2020, final consent orders were made providing inter alia that:
(1)The parties have equal shared parental responsibility for the children;
(2)The children live with the father;
(3)The children spend time with mother from the conclusion of school Friday to 5:00pm Sunday;
(4)Each Wednesday from 3:00pm to 7:00pm;
(5)For one half of all short term school holidays as agreed between the parties via SMS or email; and
(6)For special occasions on birthdays and at Eid at times to be agreed.
The notation to the final consent order clearly recorded that the only issues which remained outstanding between the parties at that time were:
(1)Christmas holiday time; and
(2)Travelling with the children. The mother sought an order that the children be able to travel with her to Country D.
By 11 December 2020, the Court noted that the “only remaining issue outstanding on the final orders” was “the question of travelling with the children.” An order was made for the mother “to be at liberty” to spend time with the children for each alternate week of the Christmas holiday period commencing 14 December 2020.
By 4 March 2021, the mother had engaged a solicitor and the proceedings were adjourned for the parties to attend a Family Dispute Conference at the Legal Services Commission of South Australia (‘the Commission’). Regrettably, by this time the parties had become embroiled in a dispute over the paternity of E and the proceedings could not be finalised. The proceedings were adjourned to enable the parties to undergo a DNA paternity test.
In late 2021, a violent incident took place between the parties at a contact handover. The incident was captured by CCTV cameras in the foyer of the mother’s apartment building and the recording is Exhibit F2. Neither party was charged by police with any offence arising from the incident. The genesis of the incident was the mother’s decision to enter a motor vehicle occupied by Ms B and to record their conversation using her mobile telephone. The mother stated in evidence, that she used her mobile telephone to obtain evidence about an escalating dispute between the parties over the transfer of the children’s clothing between the parties’ respective homes.
On 10 September 2021, the parties reached agreement at mediation that the children spend time with the mother each alternate weekend from after school Friday to the start of school Monday and for half of Christmas school holidays.[6] For reasons that were not explored at Trial, the weekend extension of time to the Monday morning never became a Court order.
[6] See the Affidavit of Ms Domara filed 4 August 2023 at ‘Annexure -1’.
The mother then sought to revisit the parenting arrangements for the children. As stated above, the mother’s application was opposed by the father citing the ‘Rule’ in Rice & Asplund. The Court observed that the father’s adherence to the ‘Rule’ in Rice & Asplund prevented any consideration of an increase in the children’s school term time with their mother prior to Trial.
On 18 March 2022, the Court heard argument in relation to the mother’s application seeking to revisit the final orders made by consent on 22 July 2020. Following argument orders were made by the Court inter alia that:
(1)The mother’s Amended Response filed 9 December 2021 shall not be dismissed at this preliminary stage pursuant to the rule in Rice & Asplund;
(2)Pursuant to section 62G of the Family Law Act1975 (Cth) (‘the Act’) that a Family Assessment Report be prepared; and
(3)The parties attend a Family Dispute Resolution Conference upon production of the Family Assessment Report.
On 19 December 2022, interim orders were made by consent until further order for week about school holiday time with each parent, the use of the AppClose application for communication, handovers and mutual injunctions.
Regrettably, thereafter the parties remained in dispute with the father arguing that the ‘Rule’ in Rice & Asplund applied and with the mother seeking to revisit the parenting arrangements to a week about shared care.
As the Court has already noted on the first day of Trial, the father abandoned his application to apply the ‘Rule’ in Rice & Asplund. The Trial therefore proceeded on all disputed issues.
THE EVIDENCE
The Father
The father presented as a verbose and, at times, argumentative witness. He holds a very low opinion of the mother, viewing his disdain for her through the prism of his self-assessed moral and economic superiority. Described by the mother’s counsel as “an impertinent witness”[7], the father was prone to arguing with counsel, asking questions back to counsel, making speeches instead of answering the questions put and, on one occasion, was observed by me to turn his body away from the bar table.
[7] See the Written Submissions filed on behalf of Ms Domara on 29 September 2023 at paragraph 16.
A pervasive theme of the father’s evidence was that the mother was acting like a “woman scorned” and that the mother only continued with her application to “vex and harass” him.
The father admitted having enrolled the children at their current school and acknowledged that the mother’s signature was not obtained for the enrolment forms. The father stated that he had discussed the change of school with the mother and had sent the mother a detailed message and that the mother had failed to reply.[8] He acknowledged that not having the mother sign the enrolment forms was “a mistake”.
[8] See the Affidavit of Mr Melton filed 18 August 2023 at ‘Annexure -15’.
When asked why it was that he had changed his position to seek an order for sole parental responsibility on the first day of Trial, the father stated that he considered this to be “the best outcome” and of “benefit for the children”. He pointed to having difficult communication with the mother, particularly following the allegation of paternity in relation to the child E. The father also considered that the mother was “still physically and psychologically” abusing the children. In those circumstances, he considered that an order for sole parental responsibility in his favour “is best.”
The father explained that the mother had hit Y as a baby when she was less than one year of age and brought the Court’s attention to Y’s disclosure made to the Family Consultant at interview.[9]
[9] See the Family Assessment Report by Ms J dated 7 September 2022 at paragraph 77.
Later in his evidence, the father conceded that he had in fact been the person who had informed Y of the alleged “slapping” to her face saying “Y remembers me telling her about the mother hitting her”.
The last occasion when the father had informed Y of the “slapping” was “before the Family Report”. When asked by the mother’s counsel as to why he had discussed it with Y at all, the father replied “That’s a good question. Not sure.” The father then gave a nonsensical answer stating that he wanted to tell Y about the “slapping” so that when she is older, Y could refer to the incident with her own psychiatrist or psychologist. He went on to say “Her trust needs with her mother as a baby were not met”.
Alarmingly, the father later agreed in his evidence that he had “never” seen the mother slap Y as a baby to get her to sleep despite informing Y that the mother had done so.
The father agreed that it had been “a mistake” to discuss adult issues with Y before her appointments with the Family Consultant and acknowledged that this may have an impact on her relationship with her mother and Y’s presentation at interview.
The father conceded to still being upset with the mother regarding her past behaviour but paradoxically stated that his anger towards her had “gone away”. He considered that the children were glad that he is “protective” and that the children felt safe in his care but not with their mother. He agreed that the children were aware that their father was not happy with past events involving their mother. The father considered that Y did not wish to attend time with her mother as she was upset at handovers. Further, it was the father’s view that X “reluctantly” accepted having to see her mother.
The father explained that the children were aware of the Court proceedings because of the appointments with the Family Consultant.
When it was put to the father that he had deliberately made sure that the children disclosed the allegations regarding their mother to both the Independent Children’s Lawyer and the Family Consultant the father denied it. He replied to counsel that it was “humorous” this allegation would be even suggested and was observed to be laughing in the witness box.
The father confirmed that in his opinion, the mother has “mental health problems” stating “100% she has”. He conceded, however, that if the mother had informed the Court that she had never sought mental health treatment then he would accept her evidence. The father added that the mother had suffered from depression following the birth of both of her children.
Despite his concerns about the mother and her parenting, the father stated that he “absolutely” promoted the children’s relationship with their mother. The father described having restrained himself from negatively speaking about the mother to the children because the children were “half of each parent”.
The father was cross-examined regarding the violent incident between the parties in late 2021 at the mother’s home. The incident was the subject of detailed observation by the Court at the hearing on 18 March 2022 and subsequent interim Judgment dated 22 March 2022.
It was the father’s position that “The incident was pre-mediated and pre-planned”[10] by the mother. The father conceded that having snatched and retained the mother’s mobile telephone, it was “quite possible” that this would have upset her. The father agreed that the mother had asked for her mobile telephone to be returned and had been trying to retrieve it from him before the physical altercation between them took place.
[10] See the Affidavit of Mr Melton filed 3 July 2023 at paragraph 91.
The father stated that “the mother loves conflict” and that he had been hit and bitten by the mother during the exchange. The father conceded having put his knee on the mother’s neck and then her back whilst she was pinned to the ground. The father expressed regret over the incident and agreed that the mother would have been frightened by what had occurred. The father denied that he had been attempting to bully the mother. He described his actions as performing a “citizen’s arrest”. He conceded that his actions on this occasion could be seen as an assault and a theft by removing the mother’s mobile telephone without her consent.
At the time of the assault, the father agreed that he was much bigger physically than the mother, agreed that he attended a gym and was trained as a community worker.
When asked by the mother’s counsel as to why the children should not spend more time with their mother than that proposed by him, the father explained that the children have a “stable and set routine”. Prior to resiling from sharing of school holidays in the witness box, he observed that school holidays were to be shared equally and he had offered an extension of time on a Sunday to 7:30pm. This extra one and a half hours he considered would be enough to develop a more meaningful relationship between the children and their mother and half-brother.
In response to a question from the Court as to why he was proposing half school holidays in the face of his allegations of risk and the mother’s parenting, the father then resiled from his offer of school holidays and longer school term time in the witness box.
The father opined that an extra night per fortnight in favour of the mother was “another night that there is a chance for the children to be hit”. This was despite him promoting half school holidays in his Amended Application and the Outline of Case.
The father stated that if the mother ceased “hitting” the children and if he could be reassured that the mother’s mental health was stable, then he would increase the time by extending the Sunday evening or including an overnight on the Sunday even though the children in his opinion do not want to see their mother for extra time.
The father conceded that Y at the age of six years might possibly come to him and tell him something that will “get the attention from Daddy”.
The father was criticised for referring to the mother having previously had abortions in his Trial Affidavit. The father stated that he had raised this at Trial because in his opinion there were “role modelling” issues and “potentially” this could have some effect on the children later in life. Fortunately, the father agreed on oath that he would not be raising this issue with the children directly.
The father described “many times” seeking assistance on behalf of the children with the Child Abuse Report Line and the Department of Child Protection South Australia (‘DCP’). He described making “multiple” complaints but considered that this would be less than 10 in totality.
The father was able to acknowledge only one positive in terms of the mother’s parenting, this being the mother’s skill in preparing the children’s hair “better than me”. When the mother had sufficient money, he conceded that she fed the children adequately and had bought children clothing which he described as “quite helpful”.
The father agreed that X loved her mother but was less emphatic when it came to Y. He said in his evidence that both children had told him that they “hate their mother”.
The father, on more than one occasion, stated in his evidence that the children did not want any more time with the mother. Throughout his evidence, the father used language such as the mother having “dumped” or “abandoned” the children into his care.
When asked if he considered that the mother loved the children, the father stated “If you abandon and dump children – how much do you love them then?”. The father eventually conceded that there was “love there” but that the mother did not “love Y enough”.
The father was asked about the photographs attached to his Trial Affidavit which were said to be evidence of scratches on the children’s arms and hands that were inflicted by the mother. The father conceded that one of the photos was “a couple of years old” and that he only took photographs of bruising on the children when “it was serious”.
In response to a question of whether or not he had seen any bruising in the past two years, the father stated that he had seen “red marks” and “scratches” but these were considered insufficient evidence for Court and given that they were insignificant he did not take photographs.
The father acknowledged that the children talked to him about their half-brother E following visits with their mother. The father described E as a “lovely child”. He agreed that both children have a good relationship with E. E was said to be cared for by the paternal grandmother on occasion at the mother’s request. The father described it as “great” that the children see their brother at the paternal grandmother’s home.
The father stated that the “barrier” to the parties coparenting relationship was the parties’ communication. He described how he had blocked the mother from telephoning or SMS messaging his mobile phone after she had alleged that he was the father of E. The father agreed to the parties utilising the AppClose application which regrettably by the time of Trial had not been implemented by the mother. The paternal grandmother was said by the father to do a “good job” negotiating between her son and the mother if required.
The father said that the children did not want more time and the mother had not asked for more time. He stated that the children “enjoy their activities with their mother” but was critical of the mother not being involved in the children’s sports activities. The father agreed that if the mother could take the children to sports, then he would not oppose an order enabling her to collect them from school.
The father went on to acknowledge that the children “know the Trial is on today” because he had told them. X was said by him to be “hoping for a positive result” and “praying and wishing that it be over”. When it was pointed out to the father by counsel that such discussions would be in breach of paragraph 1 of the injunctive order made by consent on the 19th day of December 2022, the father countered with “no details were given”.
The father conceded the children have known for a “long time” that the question of their time spending with their mother was in dispute between their parents. When asked what he had done to assist the children with their alleged anxieties the father stated that he had sought to “reassure them with his love and to tell them that there would be an ending soon.” He had also asked the children to pray.
So far as the father’s oral evidence is concerned:
(1)The father’s presentation and his answers raise concern as to the father’s attitude to the children’s relationship with their mother;
(2)The father appeared to unable to consider the positive aspects of the children’s relationship with their mother and was focused on viewing himself as a victim/martyr in the post-separation period of the parties relationship;
(3)The father told Y that the mother had slapping her on the face as an infant despite conceding that he had never seen this behaviour himself. The fact that he would seek to maintain this allegation to Y and encourage her to repeat it to the Family Consultant supports a finding that the father has engaged in manipulative and deliberate conduct designed to impact on the Family Report; and
(4)The Court is able to confidently find that the father is unlikely to support nor foster the children’s future relationship with their mother. The impression gained from his evidence is that the mother’s involvement in the children’s lives is a nuisance to be tolerated and minimised as much as possible.
The Mother
The mother presented as resigned to whatever orders the Court may make at Trial. I accept that she did her best to answer the questions put to her. There were aspects of the mother’s evidence that I simply do not accept. For example, she glossed over complaints made about the state of her home in 2019, even in the face of contemporaneous photographic evidence produced at Trial which showed quite clearly the chaotic state of her home.
In relation to these photographs in paragraph 84 above, the mother agreed that the photographs showed her home as “untidy”. The mother denied that there was a “rotting odour” in her home as described by police officers who attended at her home in mid-2019. The mother explained in her oral evidence that the “odour” was caused by a “perfume dispenser” which discharged what was described as a “traditional” smell. The mother denied that the smell in her home was due to a lack of hygiene or telling the police that ‘it was none of their business’ when they raised the “putrid” smell with her. I do not accept the mother’s evidence in this regard.
The mother agreed that she lost her driver’s licence in mid-2023 for a period of time. She explained that in late 2022 she had been pulled over by police whilst driving her motor vehicle. The mother agreed that the police had raised with her a concern that E was in a baby seat which had not been properly secured. The mother acknowledged that the child restraints in her motor vehicle on that occasion were unsatisfactory. She explained that at the time of police intervention she was not driving her own motor vehicle which had been stolen.
The mother agreed that at a time when she worked for ‘K Company’, the children had been left unattended in her motor vehicle. The mother denied having become cross with X for telling the Independent Children’s Lawyer about accompanying her mother when working for K Company.
The mother agreed that in mid-2019, Y had been left in her home unattended. The mother explained that this had happened “only once” and did not happen again.
The mother acknowledged that she has not yet watched X participate in sports activities because she had not been given the details by the father. The mother said that she took the child X to her club training on a Wednesday when she was able. Otherwise, the paternal grandmother was said to do so. The mother has however attended club sports on weekends according to her evidence.
The mother stated that she was unaware that X was taking music lessons until hearing the father’s evidence at Trial. The mother conceded that she had ceased taking X to sports lessons but indicated that in future she would facilitate this and would pay for the costs.
The mother said that she was ‘grateful’ for the paternal grandmother who has assisted the parties in communication and in the care of the children generally.
The mother stated that while she had downloaded the AppClose application on her mobile telephone, she was yet to use it. The mother acknowledged that she had found it difficult to navigate the AppClose application but would learn how to use it.
The mother agreed that she had no direct communication with the father since late 2021. Somewhat optimistically in my view the mother hoped that following the Trial there would be a “new beginning” which would serve to improve the communication between herself and the father.
The mother acknowledged that the children were now attending a new school. She denied that the father had telephoned her in advance of changing the children’s schools from G School to C School. The mother conceded that the children were doing well at their current school but added that the children were also doing well when they were attended their previous school which was in close proximity to her home. The mother was adamant in her evidence that the father had not told her about the change of school and that he did not obtain her consent before enrolling them in a private school some distance from her residence.
The mother was cross-examined about the Family Report. The mother conceded that in the past she had struck X on the arm. The mother denied slapping X on the face and further denied slapping her with an open hand. The mother stated that in the past she had smacked the children on the hand or bottom as a form of discipline. Her disciplinary techniques were said by her to have changed in December 2022 after completing a parenting course.
The mother denied the allegation when put to her that she had smacked Y as recently as August 2023 and contended that the father had “made up” these allegations at Trial.
The mother denied having hit E or causing bruising to his face. The mother denied “throwing” E as alleged by Y in paragraph 79 of the Family Report.
The mother denied pushing or scratching the children and further denied that she had caused the scratches to the children as evidenced in Annexures ‘T’ and ‘U’ to the father’s Trial Affidavit.
The mother was cross-examined at length in relation to the incident in late 2021. The mother conceded that she had turned her mobile telephone to “record” when she was in the elevator travelling to the ground floor of her unit complex after the father had arrived with his now wife, Ms B, to collect the children. The mother conceded that she had entered Ms B’s motor vehicle and had not initially informed her that she was recording the conversation. She explained that she recorded the conversation because she needed “evidence” to give to her solicitor about the children’s clothing. The mother alleged that the children never came to her home with clothing for the weekend and would be left in their school uniforms.
It was put to the mother that she had provoked the incident deliberately because it occurred the day after the father’s wedding celebration in 2021. The mother denied this stating that she had not even known that the wedding celebration was taking place. The mother denied biting the father scratching him on the shoulder. The mother did remember “hitting the father to his shoulder”.
The mother conceded that she was “so upset” by the father snatching her mobile telephone and agreed that “things had gotten out of hand.” During the assault, the mother said that she “could not breathe” when the father had her pinned to the floor with a knee in the back of neck and that she had asked the father to “let me go.”
When asked how she and the father would communicate about clothing for the children moving forward, the mother stated that she will now communicate with X and that X understood what was needed for weekends.
The mother denied telling the children that their father had “tried to kill” her.
The mother agreed that in 2021 she had been struggling financially and had asked the father for $40.00. The mother could not recall sending the partially nude photograph of herself to the father requesting money. The mother agreed that the children had offered to fill their pockets with coins from their father’s home when told by the mother that she could not afford to buy them food for their dinner. The mother agreed that in hindsight she should not have accepted the children’s offer to take money from their father’s home to give to her.
In relation to the paternity of E, the mother confirmed in her evidence that she was firmly of the view that the father was indeed the biological father of E at the time of his birth. This was because the parties had continued a sexual relationship until early 2021. E was born in 2021. The mother denied the allegation that she had informed the father of her pregnancy the day after his engagement, explaining that she had been unaware of the celebration nor the date. She agreed when it was put to her that she was “100% convinced” that E’s father was Mr Melton. The mother agreed to having sent SMS messages to the father and his now wife Ms B when she discovered that she was pregnant with E. The mother explained that once the paternity of E was confirmed then the communication on this topic had stopped.
The mother conceded that she had not paid child support for the children in 2023. The mother explained that she had not lodged her tax return. She agreed that her Child Support Assessment for the period 1 October 2022 to 31 December 2023 is recorded as ‘nil’.
The mother was asked why she had not attended for a mental health assessment as recommended in the Family Report and in accordance with a consent order made on 15 March 2023. The mother explained that she did not think that she needed a mental health assessment because she is well. In addition, her General Practitioner, Dr L, had not considered that any counselling or psychological intervention was warranted. The mother explained that there had been “nothing since 2019”.
Under cross-examination, the mother could not remember having delivered the children to the father in March 2019. Nor could she remember returning to pick them up nor returning them to the father in May 2019. The children had then remained in the care of the father until orders were made by the Court on 18 July 2019.
The mother denied that the extension of time to Monday morning had ceased because the children wanted to return home to their father. The mother stated that the father had stopped the arrangement unilaterally. The mother denied that there had been any other occasion when the children had been returned to the father because they did not wish to stay with her. The mother admitted that there were two Wednesday nights about three months ago where she had been unable to spend time with the children pursuant to Court order as she was attending “parenting classes”. The mother denied that the Wednesday nights missed could be as high as seven occasions when put to her by the father’s counsel.
In response to cross-examination by counsel for the Independent Children’s Lawyer, the mother stated that she worked Tuesdays, Thursdays and Fridays from 9:45am to 5:45pm. On the occasions when she is at work, E is in childcare. If the mother was successful in her application for shared care, then she would ask her work supervisor for assistance. The mother stated that she had a very good supervisor who would assist her to “balance everything”. If successful, the mother said that she would reduce her work hours from 11:00am to 3:00pm each shift.
The mother stated that she could take the children to all of their sporting and extra-curricular commitments if given more time with the children. The mother agreed that she could get the children to school on a Monday morning.
She described how she would “love” to take the children to sports if this was permitted. The mother stated that she only heard of the details of the children’s participation in sports and music lessons during the father’s evidence.
The mother was challenged about why she had not implemented use of the AppClose application given that consent orders had been made on 19 December 2022. The mother described having “issues with her telephone” but this had now been resolved.
In relation to the children’s change of school, the mother agreed that the father had in fact spoken to her about reasons for the change. The mother’s complaint arose because he “never got my consent or showed me forms”.
Counsel for the Independent Children’s Lawyer cross-examined the mother about the content of the Family Report. The mother was asked to explain her view regarding X’s comments that she was content with the current arrangement. The mother did not consider that X’s comments to the Family Consultant were genuine. She stated that X had spoken to her “about Court” and was “happy for 50/50”. It was the mother’s opinion that the father had spoken with the children before they were interviewed by the Family Consultant and had told them what to say. Y is recorded by the Family Consultant at paragraph 77 of the Family Report as stating that “dad said to tell.”
The mother was asked by counsel for the Independent Children’s Lawyer why she had placed the children in the father’s primary care. The mother explained that in 2020 she had lost her job due to COVID-19 and was concerned that she could not provide for the children. The father had just received an inheritance and she felt overwhelmed. She had been alone with the children between the period from 2015 to 2019 and doing “all of the hard work… I was doing everything”. The mother described this as being “too much” and that she had not received “enough help” from the father.
The mother denied that the children had been placed with the father because she had travelled back to Country D to visit family.
The mother expressed regret about her decision in 2020 and explained that she had not expected her separation from the children to be “forever”. The mother agreed that the children had been living with the father since March 2020 and conceded that the children were now settled in their current living environment. The mother agreed that it would no longer be appropriate for the children to live with her full time.
The mother explained that the children are now older and her circumstances had changed. The mother considered that she “had a good career coming” and that her life was in effect “back on track”.
The mother explained that she wanted more time with the children and also wanted the girls to bond with their brother E. If the Court was minded to make orders for shared care, the mother agreed that this should be implemented in stages. The mother was said to seek equal shared care of the children because:
(1)It was important for the children to know that their mother loved them and was able to make decisions about their care;
(2)In the week that the children were with her, she could focus on being “the best parent” and in the week when the children were with their father she could focus on her education and career;
(3)The mother was said to miss the children when they were with their father; and
(4)The mother considered that there were lots of benefits for ‘shared custody’ for both herself and the father.
The mother stated again that she hoped moving forward that the parties would have a new start and focus on the children. The mother described wanting to “forget about the past” and hoped that things would be positive for “the next few years” and that she could be “the best role model for the children”.
The mother agreed that she currently had no communication with the father and that all communication between the parties was undertaken by the paternal grandmother. She believes that the father does not respect her at all. For the reasons set out herein, I agree with her observation.
The mother agreed that the father had not engaged in any risky behaviour with or to the children but qualified this by stating that the father had in fact done things to her but not to the children. She described him as a good father.
As to the mother’s oral evidence:
(1)I accept that the mother loves her three children and wishes to be involved in their upbringing;
(2)In my view, the mother has deliberately downplayed the events of 2019 which lead to her placing the children in the primary care of the father, the state of her home and her functioning as a parent;
(3)I accept that the mother is now in “a better place” and that she regrets her past decision to place the children to live primarily with the father. To her credit, she concedes that the children are now settled in the father’s care and she does not seek to upset this arrangement; and
(4)I consider that the mother has in engaged in parenting practises in the past which would not find favour in contemporary Australian life being physical chastisement and leaving children unsupervised. I accept the mother’s evidence that she no longer engages in this behaviour and that her completion of a parenting course provided education on disciplinary techniques. Should she do so in the future then there is little doubt that the children will report this to their father. The mother has consented on a without admission basis to a final order not to use future physical discipline on the children and the mother is bound by its terms.
Family Consultant, Ms J
Ms J is a Regulation 7 Family Consultant (‘the Family Consultant’). A Family Assessment Report dated 5 September 2022 (‘the Family Report’) was prepared by the Family Consultant. The parties and the children were interviewed, and observations made with the children and the father’s partner, Ms B.
The Family Consultant was cross-examined by counsel for the Independent Children’s Lawyer. and each of the parties. She made appropriate concessions and acknowledged that her Family Report was a “snapshot” of the parties and the children at that point in time.
Central to the Court’s determination at Trial was a recommendation in the Family Report that the existing time spending arrangements between the children and the mother continue without any further variation. At the time of interview, the children were spending time with their mother on alternate weekends, for a mid-week dinner, special occasions and half of the short school holidays. The Family Consultant also opined that:
If the Court accepts the allegations of physical abuse of the children and concern about [Ms Domara]’s propensity for violence, then it would be considered appropriate that [Mr Melton] have sole parental responsibility for the children.[11]
[11] See the Family Assessment Report by Ms J dated 7 September 2022 at paragraph 92.
It is not in doubt that an expert’s opinion, which based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight. Departure from an expert report in such circumstance requires careful consideration by a Trial Judge. However, the ultimate decision must still be that of the Trial Judge.
As held by the Full Court in Hall & Hall:[12]
There is no magic in a Family Report. A Judge is not bound to accept it and there should never be a suggestion that the Counsellor is usurping the role of the Court or that the Judge is abdicating his responsibilities…”
[12] (1979) FLC 90-713, 11.
The evidence of the Family Consultant does assist the Court in that Ms J:
(1)Conceded that provided structures were in place to assist in decision making, equal shared parent responsibility could be ordered in this case. Her primary concern was to ensure that there was no detriment to the children if the parties could not communicate;
(2)Agreed to a question from the mother’s counsel that there was a risk in the mother being displaced from the children’s lives if an order was made for sole parental responsibility;
(3)Considered that an equal shared care arrangement with children of a young age could be problematic, particularly if communication between the parties is poor. She agreed that handovers at school would assist in reducing the direct interaction between the parties and further would allow the mother to engage in the school community; and
(4)Conceded that the child X had not described any recent episodes of being smacked by her mother stating that this had occurred “a few years ago” and that it was unlikely Y was recalling incidents of “slapping” on her face from her own independent memory given that she was an infant at the time.
For the following reasons set out herein, the Court is unable to place weight on the Family Report’s recommendations:
(1)The Family Consultant did not hear the evidence at Trial, in particular the evidence of the father regarding his attitude towards the mother.[13] Nor did she have the opportunity observe the demeanour of the witnesses under cross-examination.
(2)In this case, the evidence supports a clear finding that the father attempted to influence the outcome of the Family Report by discussing with Y the allegation that she had been “slapped” as a baby by the mother and that she should “tell” the Family Consultant. The father conceded at Trial that he had never observed the mother engage in this behaviour. The mother denied that it ever occurred.
(3)The CCTV footage of the physical altercation between the parties at the mother’s unit complex in late 2021 (Exhibit F2) was distressing to watch but clear as to what had occurred. Whilst the mother had initiated the physical exchange by attempting to retrieve her mobile telephone from the father, his response was disproportionate to the mother’s actions. The father’s reaction is all the more egregious when considering the difference in size between the parties and the fact that the father is trained as a community worker.
(4)It is difficult to reconcile the weight attached by the Family Consultant to the disputed allegations about the mother in the face of clear video evidence of family violence perpetrated by the father.
(5)The Court is unable to place any weight on the perceived wishes of either child given the Court’s concerns about the children being exposed to the father’s negative view of the mother and the reports made by the children of their mother’s conduct, which the Family Consultant conceded could not possibly come from their own memory. Further, the mother also conceded in her evidence to discussing future living arrangements with the children.[14]
[13] See the Written Submissions filed on behalf of Ms Domara on 29 September 2023 at paragraph 72.
[14] See paragraph 115 herein.
I accept the submission made on behalf of the mother that the allegations made by the father regarding the mother’s alleged violent behaviour had a clear impact on the Family Consultant in terms of the recommendations as set in paragraphs 93 to 98 inclusive of the Family Report.
Accordingly, whilst of assistance to the Court, the recommendations of the Family Consultant are but one factor that I must bring to account.
LEGAL PATHWAY
I propose to adopt the following approach:
(1)Give consideration to the proposals put forward by the parties;
(2)Have regard to the objects expressed in section 60B(1) of the Act and the underlying principles in section 60B(2) of the Act;
(3)Have regard to the provisions of section 60CC of the Act in order to determine in each case what is in the children’s best interests;
(4)Have regard to the primary considerations under section 60CC(2) of the Act namely, the benefit to the children of having a meaningful relationship with both the children’s parents and the need to protect the children from physical or psychological harm;
(5)Have regard to the additional considerations under section 60CC(3) of the Act; and
(6)The evidence adduced by each of the parties in respect of particular considerations pursuant to sections 60CC(2) and (3) of the Act will be considered and if more weight is to be given to one or more of the matters raised then it will be the subject of delineation and comment.[15]
[15] Goode & Goode (2006) FLC 93–286.
LEGAL PRINCIPLES
The Act provides that the best interests of children are met by:
(a)Ensuring children have the benefit of both 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 and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring children received 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.[16]
[16] Family Law Act 1975 (Cth) s 60B(1).
Section 60CA of the Act requires that the Court has the best interests of the children as the paramount consideration. Their best interests are to be considered by the application of the objects of section 60B(1) of the Act and the underlying principles in section 60B(2) of the Act.
Section 60CC Factors
Section 60CC(1) of the Act sets out two classes of considerations which apply to the Court’s determination as to how a child’s interests will best be served. They are described as ‘primary considerations’ and ‘additional considerations’.
The two primary considerations in section 60CC(2) are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse and neglect or family violence.[17]
[17] Family Law Act 1975 (Cth) s 60CC(2).
Section 60CC(2A) of the Act directs the Court that in applying the primary considerations, to give greater weight to section 60CC(2)(b) which is the primary consideration directing the Court to protect children from physical or psychological harm, or from being subjected to or exposed to neglect, abuse or family violence.
The parties agree that the children in the short term will remain living primarily with the father and spend time with the mother. The mother aspires to an arrangement where the children live with the parties on a week about basis. The father promotes a continuation of the alternate weekends and half school holidays but now seeks to eliminate the mid-week Wednesday visit. The parties are largely in agreement as to the sharing of special occasions.
By virtue of their proposals, the parties appear to support the children having a meaningful with each other. The central issue in dispute between them is the end point of such time spending in favour of the mother and parental responsibility.
In this case, the Court finds that there is benefit to the children having a meaningful relationship with each of their parents and family members.
The definition of “meaningful” has been held to be synonymous with “significant”, “important” or “of consequence”.[18] For there to be a meaningful relationship, it must be “healthy, worthwhile and advantageous for the child.”[19]
[18] Mazorski & Albright (2007) 37 Fam LR 518, [26].
[19] Loddington & Derringford (No 2) [2008] FamCA 925, [169].
In Godfrey & Sanders,[20] Kay J considered the requirements of the legislation in relation to the promotion of a meaningful relationship in the following terms:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[21]
[20] [2007] FamCA 102.
[21] Godfrey & Sanders [2007] FamCA 102, [36]
A consideration of the authorities that define “meaningful relationship” were considered in the Full Court decision of Sigley v Evor.[22] The Full Court also observed that the expression “meaningful relationship” is a legal construct, not a psychological one.[23] The Court held:
It is for the Court, not an expert, to determine what constitutes a “meaningful relationship”.[24]
[22] [2011] FamCAFC 22.
[23] Sigley v Evor [2011] FamCAFC 22, [136].
[24] Sigley v Evor [2011] FamCAFC 22, [136].
The father argues at Trial that there is a need to protect the children from harm when in the mother’s care including the risk of abuse, neglect or family violence such as to direct the Court to give greater weight to the factors set out in section 60CC(2)(b) of the Act.
I am not so satisfied on the evidence that the father’s argument is made out. The tension in the father’s position at Trial is obvious, in that, the father argues that the children are at risk in the mother’s care despite the orders sought for overnight time on alternate weekends and half school holidays.
The father’s complaints about the state of the mother’s home and general neglect predate the final consent orders made on 22 July 2020. The mother’s unchallenged evidence is that the father has not entered her home since March 2021. The mother admits past physical chastisement of the children but stated in her evidence that she has adopted alternate discipline techniques after completing various parenting courses. The father’s evidence on this topic is again largely historical. The Court is unable on the available evidence to make a finding in relation to an allegation of smacking said to have occurred in August 2023.
The father’s complaints about the mother not having sufficient income to feed the children, her discipline practices and the state and size of her home did not prevent the father from proposing at Trial that the parties share equally all school holidays.
The Court is therefore not satisfied that the evidence results in the Court needing to give greater weight to section 60CC(2)(b) of the Act. The father cannot have a ‘bet each way’ by arguing that the children are at risk whilst promoting orders for two consecutive nights per fortnight and a sharing of all school holidays on a week about basis.
Counsel for the father did not refer the Court to any authorities in support of a finding of unacceptable risk and no finding was identified as sought by the father in his Outline of Case Document or Written Submissions.
Section 60CC(3) – Additional Considerations
In considering the relevant additional considerations, pursuant to section 60CC(3) of the Act, I bring to account the following:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Court is unable to place any weight on the views expressed by X and Y to the Family Consultant. This is because there is clear evidence that each of the parties have discussed these proceedings and the outcome sought by each of them with the children. Each of the parties gave evidence of the children’s express wishes as recounted to them, which unsurprisingly support their orders sought at Trial.
In relation to the father, the evidence goes further. The Court is able to make a positive finding that the father attempted to influence the children’s interviews with the Family Consultant by discussing with them the allegation of “slapping” by their mother and that the children were then encourage to raise at interview with the Family Consultant.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The Court is able to confidently find that X and Y have a good and loving relationship with each of their parents and members of each parents’ household including their paternal grandmother, Ms B and their half-brother E.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The father would argue that the mother has failed to take the opportunity to be involved in the care of the children when she “abandoned” them in April 2019 and March 2020 respectively into his care and has failed to avail herself of opportunities to attend the children’s sports and extracurricular activities.
I do not see the mother’s actions in the same way.
I accept the mother’s evidence that by mid-2019, she was tired and needed a break from caring for the children fulltime. It is uncontroversial that the parties never lived together during their relationship and that the mother was the primary carer to the children from birth. It is also an agreed fact that the mother’s family reside overseas. Whilst not explored with the mother in cross-examination, I note that the father asserted that the mother was diagnosed with post-natal depression after the births of each child.
Viewed in this way, it is hardly surprising that by 2019 the mother needed a break from full time parenting and sought that the father “step up” to resume a greater parenting role.
As to the events in March 2020, I also accept the mother’s evidence that having lost her employment due to the COVID-19 pandemic and knowing that the father was in a far superior financial position to her, she made the decision to place the children into the father’s primary care.
I consider the mother’s conduct to be child focused rather than an example of “abandonment” as the father repeated in his evidence. I accept the mother’s evidence that in March 2020, she did not think that her decision to place the children with their father as being “forever.”
There is a complaint by the father that the mother has not attended sporting fixtures and concerts. The mother’s evidence is that she has not done so because the father has failed to inform her of the details. Given the parties poor communication this is not surprising.
The parties have agreed to final orders to communicate via the AppClose application. The parties will also be bound by order from enrolling the children in activities without the consent of the other which I consider will be helpful in reducing these complaints into the future.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
At Trial, there was no dispute that the father pays for the children’s education and that the mother currently does not pay child support. The mother admitted that she was yet to file her 2022/23 tax return needed to assess child support payable to the father. I consider it likely that the father will shoulder the greater financial responsibility for the children for the foreseeable future.
Each of the parties otherwise maintain the children in the periods when they are in their respective care.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living)
There will be very little effect on the children as a consequence of the orders that the Court proposes to make at Trial. The children have already experienced alternate weekends and half school holidays with their mother. The increases in time as ordered will enable the mother further opportunity to be engaged in the children’s school, to reduce face-to-face handovers and to enhance the children’s sibling bond with their half-brother E.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
Each of the parties have the capacity to provide for the children’s needs including emotional and intellectual needs.
The father views his capacity to provide for the children as vastly superior to the mother. His references to the differences in the quality and size of the parties respective housing in his evidence reflected poorly on him.
Each of the parties have the capacity to meet the children’s physical needs. It will be a matter for the mother to prioritise the children over her work and study commitments. Should she fail to do so and if the children are not supported in their extracurricular and educational commitments, then this may have a corresponding deleterious impact on the children and their attitudes to time spending with the mother in the future.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children are still young and vulnerable. They will continue to have the benefit of exposure to different religious and cultural practices in the homes of each parent. To their credit, the parties have agreed to orders which will see the children spending time to celebrate special religious events with each family.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parties have demonstrated a commitment to the children and the responsibilities of parenthood. The father views his commitment to the children as superior to that of the mother. The children will benefit from having each of their parents involved in their lives. Each of the parties has much to offer the children which if properly directed can only serve to enhance their welfare and development.
(j) any family violence involving the child or a member of the child’s family
The father relies upon historical allegations of the mother having “slapped” or “scratched” the children. The allegation of the mother slapping Y as an infant was never witnessed by the father. The mother strongly denied the allegation. It reflects poorly on the father that he has chosen to inform Y of this allegation after conceding that she had no independent memory of such an event herself and that he had never seen the mother behave in this way.
There is one recorded family violence incident between the parties in late 2021 at a contact handover and fortunately not witnessed by the children. Neither party was charged and there are no Family Violence Intervention Orders.
Both parties accuse the other of being physically, mentally, emotionally and verbally abusive.[25]
[25]I am not satisfied on the evidence that the unparticularised allegations identified in paragraph 174 herein impact on any consideration I must bring to account in making orders in the best interests of the children.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The proceedings have been extant for four years. Despite the Court’s urgings and interventions, the parties were unable to resolve the litigation which continued to “shift” in terms of desired outcomes right up until the conclusion of Trial. The Court expects that these orders bring an end to the current litigation between the parties. Given the history of the litigation to date, the prospect of future proceedings cannot be entirely eliminated. Further, the Courts findings in relation to the father’s inability to support the children’s relationship with their mother mean that the prospect of further litigation cannot be entirely ruled out.
(m) any other fact or circumstance that the court thinks is relevant
The proposed orders will enable the children to continue to develop and enjoy a relationship with their half-brother E who lives with the mother.
PARENTAL RESPONSIBILITY
The Act prescribes a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility to the child’s parents.[26] Parental responsibility is defined to include duties, powers, responsibilities and authority conferred by law upon parents.[27] Parental responsibility is to be exercised in relation to “major long-term issues” which include factors such as religion, education, culture, health and a child’s name.[28]
[26] Family Law Act1975 (Cth) s 61DA.
[27] Family Law Act1975 (Cth) s 61B.
[28] Family Law Act1975 (Cth) s 65DAC.
The presumption does not apply in certain circumstances. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for such an order to be made,[29] or if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence.[30]
[29] Family Law Act 1975 (Cth) s 61DA(4).
[30] Family Law Act 1975 (Cth) s 61DA(2).
The incident in late 2021 clearly involved “family violence” within the definition prescribed in section 4AB of the Act. Both parties engaged in family violence to the other albeit in differing proportions. The presumption in favour of equal shared parental responsibility is clearly rebutted.
The inapplicability of the presumption does not however mean that an order for equal shared parental responsibility cannot be made. Ultimately, the Court is guided by what is considered to be in the children’s best interests. The mother and Independent Children’s Lawyer both argued that an order in those terms is justified.
Whilst the parties have a problematic recent history in communicating with one another. The parties have not communicated directly with one another since the incident at the mother’s residence in 2021. The incident involved poor behaviour by each of the parties with the mother being the instigator and the father’s response being entirely disproportionate to the issue at hand. His reaction was all the more egregious by virtue of the disparity in the parties’ physical statures and the father’s training as a community worker.
The parties propose to communicate moving forward by way of the AppClose application. The parties have also been assisted by the paternal grandmother.
There is no dispute about the children’s education or religion. The parties agree that the children will be raised in the Christian faith and attend a private school but with the children enjoying the experience of the mother’s Islamic faith and culture.
The mother no longer presses an application to travel overseas with the children.
Both children are healthy and have no identified medical issues.
The Independent Children's Lawyer is concerned that an order for sole parental responsibility will serve to marginalise the mother from the children’s lives, acting to completely shut the mother out of any decision-making in respect of the children.[31] In addition, the Independent Children’s Lawyer submitted that the children would benefit from having both parents involved in the making of major decisions. The Court agrees with this submission.
[31] See the Written Submissions filed on behalf of Ms Domara on 29 September 2023 at paragraph 27.
Despite the lack of communication, I am satisfied that the parties should be able to communicate at a sufficient level to warrant an order for equal shared parental responsibility as promoted by the mother and the Independent Children’s Lawyer.
The Court is also concerned that to make an order as sought by the father would fuel conflict and have a corresponding negative impact on the children. In circumstances where the father prefers to have unilateral control over the children’s lives and does not accept the mother as an equal parent, the evidence supports a finding that the children’s best interests would be served by an order for equal shared parental responsibility.
I propose to adopt the order sought by the mother and the Independent Children’s Lawyer.
In making an order allocating equal shared parental responsibility, the Court must consider both the advisability and the practicability of a child living for equal time with both parents or alternatively, living with one parent and spending substantial and significant time with the other.[32]
[32] Family Law Act1975 (Cth) s 65DAA.
In this case, I find that it is not in the children’s best interests for “equal time” between the parents for the following reasons:
(1)The parties have a mistrustful co-parenting relationship;
(2)The mother’s capacity to support the children’s attendance at school and sports is largely untested. In a few years time, she will have the responsibility of E attending at a different school and without the assistance of Mr H, who continues to reside in Country D. By contrast, the father has the assistance of his wife and the paternal grandmother;
(3)The evidence also supports caution in relation to any expectation that the mother pay for the children’s extracurricular activities. At Trial, the children were said by the father to be enrolled in a large number of sporting activities both at school and externally. The mother said in her evidence that she was unaware, for example, that X was now taking music lessons until hearing the father’s evidence. The payment of levies and for costs for sports and other activities may cause ongoing disputes between the parties which may in turn impact on the children;
(4)The parties have been unable to maintain a flexible relationship needed to facilitate the children’s clothing and belongings between their respective homes. The issue of clothing for the children was the trigger for the incident in 2021, which resulted in a terrible physical altercation at a contact handover. The mother gave evidence that she will rely on X to bring clothing to her from the father’s home in the future; and
(5)The parties do not communicate and have not done so for at least two years. The father has blocked the mother from his electronic devices. The parties have agreed to use the AppClose application but as at the date of Trial, the mother had not been able to use it on her mobile telephone. The paternal grandmother has been the main conduit of information between the parties for many years.
I consider that to make an order for equal time would be deleterious to their best interests.
I am required to consider in the absence of an order for equal time whether the children should spend substantial and significant time with each of their parents.[33] A child will be taken to spend substantial and significant time only if that time complies with section 65DAA(3). Such time includes weekdays and holidays, days that do not fall on weekends and holidays and allows the parent to be involved in the child’s daily routine and special events.
[33] Family Law Act 1975 (Cth) s 65DAA(2).
The orders that are proposed by the Independent Children’s Lawyer comply with those requirements and the children will therefore be spending substantial and significant time with each parent. Further, I consider that the proposed orders are reasonably practicable within the meaning of section 65DAA(2) of the Act and are to be implemented in a gradual way as opined by the Family Consultant in her oral evidence.
CONCLUSION AND FORM OF ORDERS
These proceedings have been before the Court for over four years. The litigation has done nothing other than to highlight the difficult relationship between the parties and to negatively impact on their coparenting relationship.
The Court is satisfied on the evidence that it is in the children’s best interests to continue the order for equal shared parental responsibility as ordered by consent in July 2020.
The Court is not satisfied that it is in the best interests of the children for them to live in a week about shared care arrangement as sought by the mother.
I consider that it is in the best interests of the children to make orders increasing the children’s time with the mother as proposed the Independent Children’s Lawyer, but with a more cautious progression up to five nights per fortnight during school terms. I assess that the slower progression is warranted in this case. The mother will complete her studies by the end of 2023. It will enable the children to build up their time with the mother at a pace which allows the respective households to settle into routine before the next increase occurs. Too much too soon will serve to undermine the careful steps needed to support both families to the final term time arrangement.
The Wednesday night visits will gradually move to overnight and once they commence, the shorter teatime visits should cease.
As to Christmas arrangements, I accept that the children should spend time with the mother for part of the Christmas celebrations each year even though the mother is of the Muslim faith. The children attend a private Christian school and are bring raised in the Christian faith. Their enjoyment of Christmas is likely to extend beyond the marking of significant religious events in the Christian calendar. The children should have the opportunity to be with their mother and half-brother for such celebrations.
I consider that the children should be with the father from Christmas Eve until after lunch on Christmas day in each year, such times usually considered as the most important in the Christmas calendar. It will enable the children to attend a Christmas church service with their father and to share Christmas lunch with their paternal family. The children will then enjoy the balance of the Christmas period with their mother.
Any handover not occurring at the children’s school should continue to occur at the mother’s residence which is the long-standing status quo. It is agreed that there has been no repeat of the brutal incident from late 2021. Handovers should occur between the mother and the paternal grandmother or Ms B. If the father is present, then he is not to participate personally in the handover or enter the mother’s apartment building unless the mother’s prior written consent has been obtained.
The Court declines to make an order regarding the mother working as a transport worker or not leaving the children unsupervised. The mother’s unchallenged evidence was that she no longer works as a transport worker and now works at another employer. Further, an open-ended order with regard to supervision as proposed is open to mischief and potential misuse. The Court would expect that both parties will make appropriate arrangements for the supervision of the children if unable to do so personally.
I am satisfied that the within orders are in the best interests of the children.
For all of the above reasons, I make the orders as set out at the commencement of this Judgment.
I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 20 October 2023
Housing Commission of NSW v Tatmar Pastoral Co Pty
Ltd and Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378, 385-386.
In his Outline of Case Document, the father proposed a sharing of holidays and time each Wednesday from
3:00pm to 7:00pm. Under cross-examination, the father resiled from sharing of school holidays. In closing
submissions, the father again promoted a sharing of school holidays but withdrew the proposal of Wednesday
teatime contact.
See the Affidavit of Ms Domara filed 4 August 2023 at paragraph 52, and the Affidavit of Mr Melton
filed 3 July 2023 at paragraph 62.
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