Mitchell and Mitchell (No 2)

[2020] FamCA 705

FAMILY COURT OF AUSTRALIA

MITCHELL & MITCHELL (NO. 2) [2020] FamCA 705

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the self-represented father sought an adjournment of the trial – Where the father’s application was based on his recent loss of legal representation, his need to inspect documents produced on subpoena, and his need to garner more evidence – Where the father should bear the consequences of the dispute with his own solicitor – Overnight adjournment granted – Where adjournment for a longer period risks undue prejudice to at least one of the children.

FAMILY LAW – CHILDREN – Best interests – With whom the children shall live and spend time – Reversal of residence – Where the parties agreed prior to the commencement of the trial that five of the six children should live with the mother – Where the contest distilled to a residual dispute over the residence of only one of the children – Where the mother and the Independent Children’s Lawyer proposed that child be kept with her sibling group – Where the father sought orders for that child to remain living separately with him – Where the Family Consultant considered the child’s best interests are promoted by living with her siblings with the mother – Consideration of relevant factors under s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) – Ordered the child live with the mother – Ordered the child spend the same amount of time with the father as her younger siblings.

FAMILY LAW – Parental responsibility – Presumption of equal shared parental responsibility does not apply but would be rebutted in any event – Where sole parental responsibility is allocated to the mother as the residential parent – Where the mother is required to consult the father for his views and to inform him of her decisions.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 69ZM, 69ZN, 69ZP, 69ZQ, 69ZX, 97

Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07, 1.08

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Mitchell & Mitchell [2019] FamCA 213
Mitchell & Mitchell [2020] FamCA 168

APPLICANT: Ms Mitchell

RESPONDENT: Mr Mitchell

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW,

FILE NUMBER: NCC 1730 of 2017

DATE DELIVERED: 28 August 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 3, 4 & 5 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sundstrom

SOLICITOR FOR THE APPLICANT: NLS Law

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

Orders

1. All former orders in respect of the following children are discharged:

   (a)T, born … 2004;

   (b)V, born … 2005;

   (c)X, born … 2008;

   (d)W, born … 2008;

   (e)Y, born … 2010; and

   (f)Z, born … 2012.

2. The mother shall have sole parental responsibility for the children.

3. When exercising parental responsibility in respect of any “major long-term issue” in relation to the children (as defined in the Family Law Act 1975 (Cth)), the mother shall:

   (a)notify the father of the decision she intends to make and invite the father’s comment;

   (b)consider the father’s comment when making her decision; and

   (c)notify the father of the decision she makes.

4. The children shall live with the mother.

5. The parties shall take all reasonable steps to ensure that T and V are able to spend time and communicate with the father in accordance with their wishes.

6. The parties shall take all reasonable steps to ensure that X, W, Y and Z spend time with the father:

   (a)in the Autumn, Winter and Spring school holidays from 12.00 noon on the first Saturday until 12.00 noon on the middle Saturday; and

   (b)in the Summer school holidays for 14 consecutive days:

   (i)in years when the holidays begin in even numbered years, from 12.00 noon on 26 December until 12.00 noon on 9 January; and

   (ii)in years when the holidays begin in odd numbered years, from 12.00 noon on 24 December until 12.00 noon on 7 January.

7. For the purpose of implementing Orders 4, 5 and 6 hereof, the parties shall cause the children to be exchanged at the Railway Station, Suburb E, NSW.

8. The parties shall take all reasonable steps to ensure that X, W, Y and Z are able to communicate with the father by telephone or Facetime on:

   (a)each of their birthdays;

   (b)the father’s birthday;

   (c)Father’s day;

   (d)Easter Sunday; and

   (e)Christmas Day.

9. The mother is restrained from:

   (a)leaving any of the children in the presence or company of the maternal grandfather, unless personally supervised by her; and

   (b)causing or allowing any form of contact or communication between X and the maternal grandfather for a period of 12 months from the date of these orders.

10. The parties are restrained from:

    (a)consuming alcohol during any period within which any of the children live or spend time with them;

    (b)causing or permitting the infliction of corporal punishment upon the children;

    (c)denigrating the other party in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other party;

    (d)exposing the children to “family violence” (as defined in the Family Law Act 1975 (Cth)); and

    (e)permitting the children to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.

11. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

12. The mother shall authorise and request the principal of any schools attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

13. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

14. The father shall forthwith surrender to the mother any birth certificates for the children in his possession, custody or control.

15. The parties shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia so that, immediately following the pronouncement of these orders, they may have explained to them the effect of these orders and, if deemed appropriate by the Director, the reasons for such orders.

16. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

17. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

18. Costs are reserved for 28 days.

19. Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitchell & Mitchell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1730 of 2017

Ms Mitchell

Applicant

And

Mr Mitchell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings between the parties under Part VII of the Family Law Act 1975 (Cth) (“the Act”), concerning their six children, have a troubled history.

2. After a trial lasting four days in April 2019, parenting orders were made on only an interim basis because the evidence did not permit a firm conclusion that either party offered the children a secure residential experience (Mitchell & Mitchell [2019] FamCA 213). The orders made at that time essentially provided for the children to live with the father, for the father to have sole parental responsibility for them, and for the children to spend occasional weekends and parts of the school holidays with the mother. Such provisional orders, designed to test the parties’ capacity to abide by them, were reviewable by the proceedings being re-listed for further procedural directions about eight months later.

3. By December 2019, the parties had again fallen into dispute and the interim orders were not being implemented reliably, for which default each party blamed the other.

4. The mother filed an Application-Contravention on 10 December 2019, alleging the father’s breach of the orders without reasonable excuse. Following a hearing in March 2020, two contraventions were proven against the father and he was ordered to enter into good behaviour bonds for concurrent periods of six months (Mitchell & Mitchell [2020] FamCA 168).

5. Contemporaneously, in March 2020, the dispute was re-listed for trial in August 2020 and the interim orders were consensually varied in respect of three children. The variation removed the requirement for three children (the two eldest and one of the twins, X) to spend time with the mother, but the existing orders remained operable in respect of the other three children (the other twin and the two youngest). The variation of the orders was deemed necessary because of the staunch objections, expressed and demonstrated, by the two eldest children and X to spend any time at all with the mother.

6. Despite the parties’ mutual acceptance of the need to vary the orders, something quite surprising happened. In April 2020, the two eldest children put aside their objections to the mother and voluntarily resumed spending time with her in the company of the two youngest children and X’s twin. Then, the father’s lawyers wrote to the mother’s lawyers asking if she would agree to have the two eldest children live with her. She agreed. Those two children then moved to live with her in June 2020 and have remained with her ever since.

7. There was another surprising development at the commencement of the trial in August 2020. The parties agreed the two youngest children and X’s twin should also move to live with the mother.

8. That meant the parties and the Independent Children’s Lawyer (“the ICL”) agreed that five of the six children should live with the mother and spend time with the father. Given the distance between the parties’ respective homes, it was acknowledged that the time to be spent by the children with the father would be confined to visits in the school holidays, though the parties also agreed the two eldest children are old enough to make their own decisions about if and when they see the father. The agreement was embodied in a minute of orders, which was tendered.[1]

   [1] Exhibit A

9. Even though each party may have arrived at such consensus for different reasons, it must follow from their agreement that they both consider the arrangement is to be made in the best interests of those five children, even if it is (as the father said he considered it to be) the least worst option.

10. Therefore, the contest distilled to a residual dispute over only one of the six children – X. The mother wants X to live with her and the five other children, spending time periodically with the father in the company of her sisters, whereas the father wants X to remain living with him, separately from her five sisters.

11. As can be seen, the father sought to split the primary residence of the siblings. On the other hand, the mother and the ICL proposed that the children be kept together as a sibling group.

12. Throughout the trial, until final submissions, the father proposed that X should periodically spend time with the mother. He envisaged her visiting the mother for approximately half of all school holidays and for one weekend in the middle of each school term. However, he eventually contended the risks of both physical and psychological harm to X in the mother’s care were so virulent that the need to protect her from the risks of such harm demanded she not spend any time at all with the mother.  

13. For the reasons which follow, the proposal of the mother and the ICL for all of the children to live together is preferable.

Adjournment application

1. When the trial was about to commence on 3 August 2020, the father sought an adjournment. Save for an overnight adjournment, his application was refused for the following reasons.

2. As it was articulated, the reasons advanced by the father for the adjournment of the trial were the recent loss of his legal representation, his need to inspect documents produced on subpoena, and his need to garner more evidence.

3. Between December 2019 and July 2020, the father was represented by the same solicitor. That solicitor withdrew from the proceedings on 20 July 2020, about two weeks prior to the commencement of the trial. The reasons for the solicitor’s withdrawal were not revealed by the father, but it was not necessarily the solicitor’s decision. It was plain from the father’s submissions that his dissatisfaction with the solicitor had been mounting over a period of months, so the termination of the solicitor’s retainer was just as likely the father’s decision as it was the solicitor’s. It could not therefore be assumed the father was left unexpectedly stranded by his solicitor on the cusp of the trial. Even if it was the solicitor’s decision to terminate the retainer, the father had many months to act on his burgeoning dissatisfaction with his former solicitor and to engage an alternate solicitor much earlier so as to ensure his readiness for the trial. The father – not the mother and children – should bear the consequences of the dispute with his own solicitor.

4. The trial was fixed five months ahead by procedural directions made in March 2020.[2] At that time, the father was ordered to file any Amended Response by April 2020.[3] He did not do so; not even belatedly, after the two eldest children moved to live with the mother in early June 2020, when he must have decided to relinquish any application for those two children to live permanently with him. The father was also ordered to file updated affidavits for himself and his partner by 26 June 2020.[4] He did not do so and, even if he left trial preparations entirely in the hands of his solicitor, he must have been aware well ahead of the trial that the solicitor was in default of those directions and that he might need to secure alternate legal representation. According to the father’s submissions, he did not look for alternate legal representation until the week before the trial, after his former solicitor had filed a Notice of Ceasing to Act. One conclusion was inescapable: the father sat on his hands for too long.

   [2] Order 4 made on 9 March 2020

   [3] Order 7 made on 9 March 2020

   [4] Orders 8 and 10 made on 9 March 2020

5. The adjournment application was opposed by both the mother and the ICL. The mother’s lawyers were acting pursuant to a grant of legal aid and the ICL is an employee of NSW Legal Aid, so the question of their costs thrown away by the adjournment, which costs the father could ill afford to meet by reason of his own entitlement to a grant of legal aid, was not an overwhelming consideration. Nonetheless, wider considerations of delay and efficient use of public resources were powerfully influential factors. This litigation was commenced over three years ago in June 2017. The parties were given multiple interim hearings by the Federal Circuit Court of Australia before the proceedings were transferred to this Court in May 2018. The first trial proceeded in April 2019, when it was determined to make only interim orders and to review the orders several months afterwards. In March 2020, a contravention dispute between the parties was heard and determined and the trial was re-scheduled to resume in August 2020.

6. The Act requires that the Court ensures proceedings are not protracted (s 97(3)). The Family Law Rules 2004 (Cth) only serve to emphasise the need for efficient disposition of litigation by expressing the objectives of timely disposal at an affordable and proportionate cost (rr 1.04, 1.06, 1.07 and 1.08). There can be no doubt about the importance of those policy considerations because the High Court of Australia has unequivocally said litigation is justly resolved in a context of minimum delay and expense (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 213). More specific to the circumstances of this case, the High Court said the adversarial system does not permit the disregard of undue delay, the avoidance of which and the efficient use of public resources are considerations which may transcend the interests of the parties because the resolution of litigation serves the public as a whole, not merely the parties to the proceedings (Aon at 189-190, 211-215, 217). Decisions about the adjournment of trials are pre-eminently interlocutory procedural decisions which must be made hastily, particularly when the question of prejudice to children occasioned by any delay is an influential feature of the decision (Aon at 223, 227), as was the case here.

7. Although the father was unspecific about the duration of the adjournment he needed to be ready for trial, he said some six to eight weeks would be enough. If his adjournment application for a reprieve of that duration (or any longer) was allowed, then the time within which he agreed the other five children should have completed their transition into the mother’s primary care would have already elapsed. He envisaged that occurring by the end of August 2020.[5] The case posited by the mother and the ICL – to the effect that X would suffer deleterious psychological effects by being separated from her siblings – might well be irreparably vindicated if the trial could not resume and the decision made and published before then. That risk was too pronounced to take. The separation of X from her siblings, which outcome was sought only by the father, should only occur if the Court concludes the evidence demonstrates that to be in all of the children’s overall best interests; not by default due to discord between the parties and the adjournment of the trial due to the father’s unreadiness.

   [5] Exhibit A

8. The degree of responsibility which must be borne by the father for his lack of legal representation and the risk of prejudice to X by an adjournment of the trial beyond the end of August 2020, by which time it was agreed all of her siblings will be living with the mother, meant the trial should be heard and determined within that time frame.

9. The father could not conceivably engage new lawyers and have his grant of legal aid transferred to them within the next few weeks, so it fell to him to conduct his own case. Attention then had to turn to what the father must do to be ready to conduct the trial within the next few weeks. He said he needed to call other witnesses and inspect documents produced in answer to subpoenas.

10. As already noted, the father did not file the updated affidavits he was given permission to rely upon. The failure to file his own affidavit was overcome by him being granted leave to give oral evidence-in-chief, but that was not a remedy for the other new witnesses he proposed.

1. When asked what witnesses he would call if unconstrained, the father nominated a police officer, a caseworker, and the paternal grandfather. Of course, the relevance and probative value of any evidence given by those prospective witnesses had to be assessed by reference to the changing complexion of the proceedings, so the father was engaged in a discussion about the residual issues in the case. In summary, he contended X should continue to live with him because the mother treated her differently from the other five children by “scapegoating” her, which was liable to cause X psychological harm if she lives with the mother. The father expected he would have to meet an opposition case, propounded by both the mother and the ICL, that X would be psychologically harmed if she is separated from her siblings.

2. In that context, commendably, the father conceded the evidence he would expect to be given by the police officer and the paternal grandfather would not assist the resolution of the residual issues and so he agreed he had no need to adduce any evidence from them. However, the father adhered to his belief it was necessary to elicit evidence from his caseworker, but his submission in that regard was rejected. Bearing in mind the principles and duties which guide the determination of child-related proceedings (ss 69ZM, 69ZN(4), 69ZP, 69ZQ(1), 69ZX(1) and 69ZX(2) of the Act), the father’s former caseworker could not likely give any persuasive evidence to determine the solitary residual issue about whether X should live with the mother (and her five siblings) or the father.

3. The father did not nominate the need to adduce updated evidence from his partner but, at least inferentially, it was unlikely she could say any more than he could say himself. She is pregnant and did not travel to Newcastle with the father for the trial as she is at home caring for the four youngest children and two other children who are not the subject of these proceedings.

4. That left for consideration the need for the father to inspect documents, which need was addressed by the commencement of the trial being adjourned until the following day and the father being permitted an entire afternoon to view the documents produced in answer to subpoenas issued in the proceedings. The father was granted access to a room within the Court building for that purpose.

5. The trial was therefore adjourned overnight and commenced on Tuesday 4 August 2020.

Proposals

1. Despite the passage of time, material changes of circumstances, and an order requiring the parties to file any amended application they considered necessary,[6] neither party did so.

   [6] Orders 6 and 7 made 9 March 2020

2. The most recent application filed by the mother is her Amended Initiating Application, filed on 11 February 2019. However, at the hearing in April 2019, she amended that application to seek the residence of and sole parental responsibility for only the four youngest children (Mitchell & Mitchell [2019] FamCA 213 at [15]). At this hearing, she announced her intention to revert to reliance upon her Amended Initiating Application by seeking the residence of and sole parental responsibility for all six children.

3. The father’s most recent application is his Amended Response, filed on 15 February 2019. That was the application he maintained at the hearing in April 2019 (Mitchell & Mitchell [2019] FamCA 213 at [16]), which he confirmed to the Family Consultant in February 2020.

4. However, the father surrendered residence of the two eldest children to the mother in June 2020 and he surrendered residence of three more children to the mother before the commencement of the trial in August 2020. After some prevarication during the course of final submissions, the father’s final application was for X to live with him, for him to have sole parental responsibility for her, and for her to spend no time at all with the mother. Her interaction with her siblings would then be limited to when they visit the father in school holidays.

5. At the hearing in April 2019, the ICL proposed that all of the children remain living with the father, that he have sole parental responsibility for them, and that the children spend time with the mother commensurately with the distance between the parties’ homes (Mitchell & Mitchell [2019] FamCA 213 at [17]).

6. However, the ICL foreshadowed a quite different proposal at this hearing, saying in a Case Outline filed on 30 July 2020:

   The ICL no longer holds the view that there is no realistic alternative to the children living together with the father. The move (apparently consensual) of the two eldest children to live with the mother in June, whilst very recent, effects a fundamental change in the dynamics of the family.

7. At the commencement of the trial, the ICL joined in the parties’ agreement for all children, aside from X, to live with the mother and for them to spend time with the father. In respect of X, the ICL supported the mother’s application and opposed the father’s. The detail of the ICL’s proposal was set out in a tendered Proposed Minute of Order.[7]

   [7] Exhibit ICL4

8. Due to the parental conflict, it was common ground that the residential parent should have sole parental responsibility for the child or children of whom they respectively have the residential care.

Evidence

1. The mother relied upon her updated affidavit filed on 10 July 2020.

2. Despite procedural orders permitting her to do so, the mother did not file affidavits for the maternal grandfather, the paternal grandfather, or her treating psychiatrist.[8] The mother explained she was unable to secure legal aid funding to procure a report from her psychiatrist,[9] but she gave no explanation at all for why she did not file affidavits for either grandfather.

   [8] Order 9 made on 9 March 2020

   [9] Mother’s affidavit, para 119

3. The father did not file any updating affidavit material at all, despite procedural orders permitting him to file affidavits for both himself and his partner. He was permitted to give oral evidence-in-chief.

4. The ICL and the parties relied upon the updated Family Report prepared by the Family Consultant on 24 February 2020, which was written before and then overtaken by three significant events: first, proof of the father’s contravention of orders without reasonable excuse in March 2020; secondly, the two eldest children voluntarily moving to live with the mother in June 2020; and thirdly, the agreement between the parties and the ICL that at least five of the six children should live permanently with the mother from the end of August 2020.

5. The Family Consultant was appraised of those circumstances during her cross-examination and, necessarily, such new information led to the revision of her opinions and recommendations.

6. Relevantly, the Family Consultant identified how the decision about X’s individual circumstances was principally influenced by two countervailing considerations, requiring a delicate balancing exercise. On the one hand, she might suffer emotional harm by being forced to live with the mother against her wishes (as the father contended), while on the other hand, she might be emotionally harmed by being separated and treated differently from her five sisters (as the mother and the ICL contended). On balance, the Family Consultant considered the second consideration marginally outweighed the first.

7. More specifically, the Family Consultant said in cross-examination that she adhered to the following opinion she expressed in the Family Report:[10]

   …Separation of the siblings would not be supported given their exceptionally strong bond to each other.

   [10] Family Report, para 162

8. That opinion was initially expressed in the context of the Family Consultant’s recommendation that all children continue to live with the father but, even when informed the parties had agreed that five of the six children would henceforth live with the mother and the contest was now only over the residence of X, the Family Consultant considered X should still live with her siblings even if that would now be with the mother.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests

1. The narrow ambit of the dispute, as constructed by the parties, is now limited to one essential issue: should X live with the father or with the mother? For that reason, unless otherwise stated, the following discussion of the evidence which is referrable to the factors prescribed by s 60CC of the Act is confined to X.

2. The parties and the ICL concur that the best interests of the other five children are served by orders which require them to live with the mother, for the mother to have sole parental responsibility for them, and for them to spend time with the father during school holidays. In the face of such consensus, no aspect of the evidence reasonably admits of a conclusion that such an outcome is inimical to the best interests of those children, such as to require refusal of the joint application to make such orders.

Section 60CC(2)(a)

1. It is convenient to first deal with X’s relationship with the father and then her relationship with the mother.

2. It is common ground that X enjoys a meaningful relationship with the father from which she derives much benefit. The mother openly admitted in cross-examination that X and her sisters “still love their Dad”.

3. The mother’s proposal for X and her sisters to spend time with the father during school holiday periods would still be sufficient interaction between them to enable the children to retain their meaningful relationships with the father. The father did not contend that outcome would only be viable in X’s case if she continues to live with him. In fact, in cross-examination, the father agreed that if orders are made for X to live with the mother then he would only expect X to spend the same amount of time with him as the other younger children.

4. It is also common ground that, while X still has a meaningful relationship with the mother, in recent years she has derived less benefit from that relationship than she has from her relationship with the father. Given that fact, it is useful to examine why that is so, the current status of X’s relationship with the mother, and what could or should be done to improve it.

5. These findings were made on the available evidence at the last trial in April 2019:

   30.It is also reasonably clear the children love the mother, though they do not always feel safe in her care. The Family Consultant observed the children were very happy to see the mother in July 2017, at which point in time they had not seen her for two months, and again in March 2018, immediately following resumption of their visits with her. Despite some misgivings, the children reported to the Family Consultant they enjoyed seeing the mother. The Family Consultant said the children have “anxious and ambivalent” relationships with her; particularly the eldest child because of her past unhappy experiences.

   31.While the children generally have meaningful relationships with both parties, they currently appear to derive much more benefit from their relationships with the father.

   (Mitchell & Mitchell [2019] FamCA 213) (Citations omitted)

6. In respect of X, one of the factors contributing to the deterioration of her relationship with the mother is her knowledge that the mother advised the child welfare authority in 2015 of suspicion that X had sexually abused one or more of her younger sisters. X denies the allegations and knows the mother rejected her denials. So much is incontrovertible, because the mother admitted it in cross-examination. The mother also admitted she understands those circumstances had a “significant effect” upon X.

7. Following the interim orders being made in April 2019, X continued to spend time with the mother until the father stopped the children’s visits with the mother from the end of October 2019. In the period between June and September 2019, X reported to the father that, on several of the occasions she visited and stayed with the mother, the maternal grandfather was present and he conducted himself in a sexually inappropriate way with X. The precise details of the allegations remain opaque but, at their highest, amounted to unwelcome hugging, unwelcome kissing, and her breast being touched in a way which could just as easily have been accidental as deliberate.

8. Suffice to say, X believes the behaviour was sexually inappropriate, as does the father. The allegations were reported to the authorities for investigation, in the course of which X was interviewed, but it is uncontroversial the allegations were unsubstantiated and the maternal grandfather will not be prosecuted. The father said in cross-examination that X is aware of and disappointed by that decision.

9. The mother disbelieves the maternal grandfather would have molested X in that way. However, the mother well knows: X believes in her sexual molestation by the maternal grandfather, X knows the mother disbelieves the allegations, and X perceives the mother has sided with the maternal grandfather and is angry about it. X apparently believes the mother has breached her trust, which accentuates the deterioration of their relationship.

10. Of course, the mother cannot be criticised for doubting X’s allegations against the maternal grandfather. The authorities found her allegations wanting, so it was well open to the mother to do so. She was not deliberately or recklessly disregarding obvious sexual misconduct. The state of the evidence is sufficiently ambiguous to accommodate the real possibility that X is honestly mistaken about the sexual connotations of the maternal grandfather’s conduct with her. Leaping to endorse the truth and accuracy of X’s perception of her sexual abuse, as the father has done, could conceivably cause an even bigger problem by perpetuating a falsehood. Wherever the truth may actually sit, the disparate beliefs of X and the mother about the maternal grandfather is an obstacle to their recovery of a better relationship, which the mother knows.

11. At the time the contravention proceedings were determined between the parties in March 2020, the existing interim orders were partially suspended so as not to require X or the two eldest children to continue visiting the mother. The upshot is that X has not spent any time with the mother since October 2019. Their absence of interaction has only served to emphasise their estrangement.

12. Is their relationship salvageable then and, if so, how would that be achieved?

13. At her meeting with the Family Consultant in February 2020, X said she could not talk to the mother about her feelings, she was scared the mother would be angry with her, and she thinks the mother does not like her as much as her sisters. She appeared to the Family Consultant to be sad when relating her feelings.[11] Similarly, X’s school principal recently reported to the mother that X seemed to “have the weight of the world on her shoulders”.[12] Her melancholy and sentiments of sibling favouritism just as easily imply X’s wistful regret that her relationship with the mother is not better than it is, as it implies she has no interest in improving her relationship with the mother.

    [11] Family Report, paras 128, 129, 150

    [12] Mother’s affidavit, para 101

14. X was not observed by the Family Consultant with the mother because she, along with the two eldest children, elected not to see her.[13] It is impossible to tell from the available evidence whether that election was genuinely X’s wish or whether she simply acquiesced to the views of her older siblings, whose expressed adverse views about the mother have historically been the most vociferous.[14] The Family Consultant intentionally differentiated their respective views because she described how X “appears to struggle” spending time with the mother,[15] whereas the eldest two children were described as being adamantly opposed to any form of contact with her at all.[16] The father agreed in cross-examination that the eldest child had expressed the strongest opposition to the mother – until, of course, she changed her mind completely in April 2020 and decided she wanted to instead live with the mother.

    [13] Family Report, para 143

    [14] Family Report, paras 108, 114, 122–123

    [15] Family Report, paras 156, 162

    [16] Family Report, para 159

15. In the lead up to the trial, the ICL conferred with all children. The ICL’s notes of her conversation with X (which are agreed facts) state:[17]

    ..

    Does not want to live with or even speak with her mother. She never really liked her mother very much anyway. She would not be happy and would be annoyed if the Judge ordered her to live with the mother.

    (Emphasis added)

    [17] Exhibit ICL1

16. While it is accepted X made those statements, her representations are not necessarily true. The father was asked about that in cross-examination and, in respect of the representation emphasised in bold letters, the father said he was surprised X had said it. He was surprised because he did not think it was true, in which case he implicitly accepts X is capable of mendacity or exaggeration when it comes to expressing her feelings about the mother.

17. Significantly, the father said he knows X and the mother love each other, and further, it was “vital” to X’s best interests that she have a meaningful relationship with the mother. It must follow, from the father having conceded the baseline of such a strong emotional bond between X and the mother, that their relationship is realistically capable of rejuvenation, much like the relationships between the two eldest children and the mother have been repaired over the past few months. It must also follow from the father’s concessions that rejuvenation of X’s relationship with the mother is a desirable objective.

1. Notwithstanding such important concessions made by the father, other aspects of his conduct of the trial are relevant to X’s ability to derive benefit from a meaningful relationship with the mother. The father ultimately maintained that X was at risk of harm in the mother’s household and the need for her to be protected against such risk of harm was more important than her need for a flourishing filial relationship with the mother, in support of which submission he called in aid s 60CC(2A) of the Act. The father must be taken at his word. He insists X is utterly resistant to any form of contact with the mother and, given his belief she is exposed to the risk of harm while in the mother’s care, he is not inclined to persuade her otherwise. It logically follows that, if X remains living with the father, she will probably lose her relationship with the mother entirely.

2. The mother realises her relationship with X has been under strain. She said she now needs to “work hard” to overcome X’s reticence – perhaps even her hostility. Her plan is to address the problem by having X counselled, which is really only feasible if X lives with her. The mother is already engaged with two different counselling services[18] and envisages that X would tap into those existing services, just as the two eldest children have already done since living with her. The Family Consultant said in cross-examination that counselling for X, perhaps even jointly with the mother, would likely help their relationship.

   [18] Mother’s affidavit, paras 120, 121

3. In conclusion then: X retains a meaningful relationship with the mother even though it has experienced some deterioration; the relationship is probably capable of improvement; X would benefit from an improvement of the relationship; the mother has a feasible plan for its improvement; and in all probability the improvement of X’s relationship with the mother is dependent upon her living with the mother instead of the father.

Section 60CC(2)(b)

1. Notwithstanding the father’s agreement that five of the six children should now live with the mother, in final submissions, he submitted that X should not live with the mother because she was at significant risk of suffering:

   a)physical harm, by reason of her subjection to physical abuse by the mother; and

   b)psychological harm, by reason of her subjection to sexual abuse by the maternal grandfather.

2. Evidently, the father did not realise the paradox of accepting that five of the children are safe enough in the mother’s residential care, but asserting the sixth is not.

3. Nor did the father appreciate the paradox of asserting it was unsafe for X to live with the mother, but safe enough for her to spend unsupervised time with the mother.

4. When that illogicality was drawn to the father’s attention, he withdrew his proposal for orders which would require X to spend time with the mother and instead pressed for orders which would eliminate the mother from her life. However, his amended proposal did not cure the anomaly in his case exposed by his acceptance that it was still in the best interests of the other five children to live with the mother.

5. The premise of the allegation about X’s exposure to the risk of physical harm was the mother’s past physical abuse of the eldest child in 2015, when she hit that child with a skateboard. Back then, the mother’s mental health was seriously compromised, which is not the case now. The eldest child, in choosing to now live with the mother, is willing to overlook such past mistreatment. There was no evidence to reasonably substantiate any current risk that the mother will physically abuse X.

6. In respect of the sexual threat allegedly posed by the maternal grandfather, he moved away from the mother in late 2019 because of the allegations made against him,[19] which he refutes. The parties now agree to the imposition of an injunction restraining his unsupervised engagement with any of the children[20] and the mother said in cross-examination that if X lives with her then the maternal grandfather would not be invited to visit her home until she was satisfied that all the children felt comfortable about it.

   [19] Mother’s affidavit, para 108; Family Report, par 31

   [20] Exhibit A, Order 23

7. Given the ambiguity about the nature of the maternal grandfather’s behaviour with X and the lack of substantiation of her allegations by the authorities following formal investigation, the evidence is not strong enough to establish the maternal grandfather poses a risk of harm to X (or the other children), though the absence of any positive finding of risk does not cure all problems. X still believes she was molested by the maternal grandfather and feels unsupported by the mother in respect of the complaint. If X is to live with the mother, that problem must be addressed. The only pragmatic way to do so is by restraining the mother from allowing any contact between X and the maternal grandfather for a protracted period – arbitrarily, for one year – while X adapts to living with the mother. Thereafter, the agreed embargo upon the maternal grandfather having any unsupervised contact with the children would similarly apply to X in perpetuity.

Section 60CC(3)

1. Not all of the factors prescribed by s 60CC(3) of the Act were addressed by the parties or the ICL and some of the factors which were addressed lack sufficient influence to warrant any analysis in the discretionary exercise required under Part VII of the Act. An obvious example is the father’s alleged but disputed continuing use of cannabis, which is but one of many alleged impairments to parenting capacity experienced by both parties. The mother could not articulate how any finding of the father’s continuing use of cannabis (even if made) would materially affect the outcome.

2. Only the significant features of the evidence which engage the s 60CC factors are evaluated, being: X’s expressed views (s 60CC(3)(a)); the desirability of maintaining sibling bonds (s 60CC(3)(b)(ii)); the ramifications of any change to X’s existing circumstances (s 60CC(3)(d)); whether the mother’s parenting capacity can withstand the load of the residential care of six children (s 60CC(3)(f)); and the prospect of further litigation (s 60CC(3)(l)).

3. There is no doubt X has consistently expressed a clear wish to live with the father and to minimise her interaction with the mother. There are, however, several plausible reasons why depreciated weight is reposed in her view despite her age and relative maturity.

4. First, some doubt attends the reliability of her view. Even the father knows her stated view to the ICL that she “never really liked [the mother] very much” is untrue. The reasons for the deterioration of X’s relationship with the mother have already been explained, but X’s stated opposition to any engagement with the mother is most likely an artifice. An accumulation of factors could feasibly account for such an artifice, such as: her knowledge of the intense parental conflict and her choice of allegiance with the father as a demonstration of loyalty to him;[21] her belief and irritation that the mother may favour one or more of her sisters; or her vexed sense of the mother’s breach of her trust. For any of those reasons, X’s rejection of the mother is probably a self-defence mechanism.

   [21] Family Report, para 161

5. Secondly, given X’s resistance to the mother is probably exaggerated, it can reasonably be presumed she would again embrace her loving relationship with the mother and dispense with the professed estrangement if she perceives it is safe again to do so – such as if she is required by a court order to live with the mother and the decision is not her own. The prospect of that eventuality has an analogue in the behaviour of her two older siblings. It will be remembered that, until April 2020, the two eldest children rejected the mother even more stridently than X. They said they wanted nothing to do with the mother and told her so directly.[22] The mother acknowledged the problem and, in March 2020, agreed to vary the interim orders so that the two eldest children and X did not have to spend any time with her. In April 2020, the two eldest children nevertheless chose to do so and, by May 2020, decided they wanted to live with the mother instead of the father, which they began doing in June 2020. Children who are exposed to intense parental conflict are prone to swap their parental allegiance quickly and unexpectedly.

   [22] Family Report, paras 108, 114, 122, 123

6. Thirdly, X’s views have been expressed within the context of assumptions which no longer apply. She thought her twin and two younger sisters would continue to live with her and the father. She does not know the father has now surrendered residence of all her siblings to the mother. Although X knows her two eldest siblings have already moved to live with the mother, according to the father’s evidence, she believes it is only a trial of the arrangement and they still might return, even if it is unlikely. She recently told the ICL she was missing her older sisters and the household was different without them being around.[23] The father admitted she would miss her other sisters when they move too. Nor does X know of the father’s plans to change his place of residence to somewhere closer to Newcastle, which will necessitate her change of school and disruption of her friendship group, just as if she moves to live with the mother, so continued residence with the father offers her no greater stability than residence with the mother and her sisters. Nor does X know that she need not be exposed to the maternal grandfather if she moves to live with the mother. If X knew of all those changes, it is reasonable to infer she might not hold to such contrary views about the mother.

   [23] Exhibit ICL1

7. The Family Consultant’s evidence about the importance of the maintenance of strong bonds between all of the siblings need not be repeated. Both parties suffer from various impairments to their parenting capacity and so the ability of the siblings to rely upon one another for support is an especially important feature of the evidence. If X lives with the father then her relationships with each of her five siblings, who will live with the mother, will undoubtedly wane. She will only physically see them during school holidays, even though she might otherwise be able to stay in touch with them by telephone or social media.

8. The father has been estranged from members of the paternal family,[24] but the mother ensures the children maintain contact with paternal family,[25] which is an additional benefit for the children who live with her.

   [24] Family Report, paras 36, 48

   [25] Mother’s affidavit, paras 103, 104

9. Any change of residence for X, ostensibly contrary to her wishes, is liable to be emotionally traumatising for her. The counselling the mother is planning for X will help minimise her distress, but it probably will not eliminate it, at least in the short term. She would have the succour of living together with all of her sisters and she will not have to confront the maternal grandfather, about which she would be apprehensive. She will have to change schools and form new friends, but she would have to do that anyway because the father plans to move his residence closer to Newcastle by the end of this year.

10. The Family Consultant commented adversely about the mother’s parenting capacity in the Family Report,[26] but the parties’ subsequent agreement for five of the six children to live with the mother, which surprised the Family Consultant, now transcends her opinions. If no person other than the mother seeks the residence of those five children, as is the case, then the outcome for those five children is inevitable: they must live with the mother. Only the residence of X presents a choice between two competing parties.

    [26] Family Report, paras 86, 151, 155, 160, 163

11. The father can ill afford to be hypocritical about the mother’s parenting capacity. He suffers from his own limitations. For example: he is apparently content to allow X’s loving and “vital” relationship with the mother to atrophy; he failed to ensure one child’s timely provision with NDIS funding and services for her disability,[27] despite an order compelling him to do so promptly;[28] he was unable to abate the eldest child’s emotional turmoil and prevent her from self-inflicting knife wounds during 2019,[29] even when aware of that problem during the trial conducted in April 2019; and the child welfare authority has continued to show an interest in the welfare of children within the father’s household over a number of years.[30] Other risks were identified by the Family Consultant,[31] but it is not necessary to canvass them.

    [27] Mother’s affidavit, paras 43, 96; Family Report, para 67

    [28] Order 3 made on 12 April 2019

    [29] Family Report, paras 45, 88; Mother’s affidavit, paras 69, 87; Exhibit ICL3

    [30] Family Report, para 22

    [31] Family Report, para 164

12. There are obviously grave concerns about the mother’s capacity to take on the residence of six children. The Family Consultant doubts the arrangement will endure. The mother is untested in the permanent role of primary parent, she experienced difficulty managing the children when the behaviour of the three eldest children was at its worst during 2019, she has experienced mental ill health in the past, and she demonstrated to the Family Consultant some lack of insight about the enormity of the challenge which confronts her. However, on the other hand, if she is to have the residence of five children, a sixth is not likely to make much practical difference. At least the mother is now seemingly emotionally stable, she regularly sees her psychiatrist and counsellors, and she is medicated.[32]

    [32] Mother’s affidavit, paras 115-121

13. It is foreseeable that the task of providing residential care to the children may, in time, exceed the mother’s capacity and cause a breakdown of the arrangement and the instigation of further litigation, but that is a risk which must be taken. That might have happened anyway, even if orders are made for the mother to provide residential care for only five children. If X instead lives with the father, separately from her siblings, she will almost certainly lose her relationship with the mother and her sibling relationships will probably deteriorate. While she would forge her relationships with the step-siblings in the father’s household, that is not a satisfactory salve.

Conclusion and orders

1. Given the findings about family violence between the parties during the trial conducted in April 2019 (Mitchell & Mitchell [2019] FamCA 213 at [99]-[100]), the presumption of equal shared parental responsibility does not apply (s 61DA(2)). Even if the presumption did apply, the evidence comfortably rebuts it (s 61DA(4)). The parties and the ICL agreed parental responsibility could not be shared because the parties’ parental relationship is too acrimonious.

2. X should live with the mother. On the available evidence, I concur with the Family Consultant’s opinion that X’s interests are more likely best served by her living with her siblings in the care of the mother than by living apart from her siblings in the care of the father.

3. Since X will live with the mother, she should have sole parental responsibility for X, just as she will consensually have for the other five children.[33] The grant of exclusive parental responsibility is conditioned by the requirement for her to consult the father for his views and to inform him of her decisions, as the parties agreed.[34]

   [33] Exhibit A, Order 2

   [34] Exhibit A, Order 3

4. As the father accepted, X should spend the same amount of time with him as her twin and younger siblings. The parties agreed upon the frequency and duration of those visits.[35]

   [35] Exhibit A, Order 9

5. Different applications were made in respect of the changeover venue, about which no evidence was adduced. The current interim orders specify a venue in Town F,[36] but the mother formerly proposed a venue at Town G[37] and the ICL now proposes a venue in suburban Newcastle.[38] The father orally proposed a venue “somewhere in the middle” between the mother’s home in Newcastle and his current home in rural NSW, which criteria he did not think was fulfilled by the current Town F venue, but it is impractical to arbitrarily pick some place on the map when he intends to move residence within the next few months to a presently unknown location. At the commencement of the trial, the parties agreed on the continued use of Town F,[39] but that was before the father revealed his intention to imminently move. Given the uncertainty surrounding the father’s place of residence beyond the next few months and since changeovers will now only occur in school holiday periods, the desirability of certainty requires that the venue be the one nominated by the ICL.

   [36] Order 7 made on 12 April 2019

   [37] Amended Initiating Application filed 11 February 2019, Order 4

   [38] Exhibit ICL4, Order 10

   [39] Exhibit A, Order 10

6. X will have the same form of telephone and/or electronic communication with the father as her twin and two younger sisters, though the order is made in slightly different terms from the proposed order.[40]

   [40] Exhibit A, Order 11

7. The proposed injunction restraining the parties from consuming illicit substances while the children live or spend time with them[41] is not made. It is unnecessary. It is illegal to consume illicit substances at any time. Such an injunction risks appearing as though it authorises illegal activity when the children are not in their care, which would be absurd.

   [41] Exhibit A, Order 12(b)

8. The proposed orders about passports and international travel[42] are not made. The mother has sole parental responsibility for the children, so she should exercise it. There is no need for any gloss.

   [42] Exhibit A, Orders 17-22

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 28 August 2020.

Associate: 

Date:  28 August 2020