MURRAY & FINN - [2018] FamCA 195

FAMILY COURT OF AUSTRALIA

MURRAY & FINN

[2018] FamCA 195

FAMILY LAW – CHILDREN – With whom a child spends time – Where the children require protection from the psychological harm caused by the father’s family violence – Where the children are at risk of harm due to neglect in the father’s care – Where the father’s lack of insight impairs his parenting capacity – Concluded no protective measure short of indefinite supervision would suffice to curtail the risk of harm to the children – Ordered the mother shall have sole parental responsibility – Ordered the children shall live with the mother and spend supervised time with the father at a contact centre until June 2018 and thereafter the supervision be provided by the paternal grandmother for one night every two months – Ordered the mother is restrained from changing the children’s surname

FAMILY LAW – INJUNCTIONS – Hague Convention – Where the mother is from Country D – Where Country D is a State signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction – Ordered that the mother, but not the father, may remove the children from Australia

Family Law Act 1975 (Cth) ss 60CC, 60CG, 61C, 61D, 61DA, 65Y
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32(3)

Betros & Betros [2017] FamCAFC 90
Chapman v Palmer (1978) 4 Fam LR 462
Flanagan v Handcock (2001) FLC 93-074
M v B [2001] FamCA 894
Marriage of B & B (1993) FLC 92-357
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
Newlands v Newlands (2007) 37 Fam LR 103
Reynolds & Sherman [2015] FamCAFC 128

APPLICANT:

Ms Murray

RESPONDENT:

Mr Finn

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Gosford

FILE NUMBER:

NCC

2749

2016

DATE DELIVERED:

29 March 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:	Newcastle
JUDGMENT OF:	Austin J

HEARING DATE:

28 February 2018 & 1, 2 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mooney

SOLICITOR FOR THE APPLICANT:

Resolve Family Law

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Graham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Gosford

Orders

All former orders in respect of the following children are discharged:
(a)B, born … 2013; and
(b)C, born … 2016.
The parties are restrained from allowing the children to be known by any surname other than “Finn”.
Subject to compliance with Order 2, the mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure the children spend time with the father as follows:
(a)Up to and including Friday 29 June 2018, subject to:
(i)Compliance with Order 6; and
(ii)The father ensuring the attendance of the paternal grandmother in his company at the supervised venue;
on Friday each week for not less than two hours.
(b)Thereafter, subject to:
(i)The father filing and serving by 29 June 2018 an undertaking signed by the paternal grandmother in the following terms:
I am willing and able to supervise the time spent by the children with the father under the orders of the Family Court of Australia.
I have read the information pamphlet entitled “Deciding whether you should help with Supervision” published online by NSW Legal Aid.
I fully understand the duties and responsibilities of a supervisor. I am prepared to and shall act accordingly.
I understand that any breach of my undertaking may be regarded as contempt of the Court, which could render me liable to prosecution and punishment.
and
(ii)The paternal grandmother’s faithful compliance with the terms of her undertaking;
from 9.00 am on the second Saturday until 5.00 pm on the second Sunday of the months of August, October, December, February, April, and June each year.
For the purpose of implementing Order 5(a):
(a)The time spent by the children with the father shall be supervised by staff of “Relationships Australia”, staff of “Big Brown House”, or some other person or entity nominated by one of those organisations or persons, in that order of priority (“the supervisor”).
(b)In the event of disagreement between the parties, the mother shall do all such things necessary to engage the supervisor.
(c)The parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.
(d)The time to be spent by the children with the father shall commence at the time designated by the supervisor.
(e)The venue at which the time is to be spent by the children with the father shall be designated by the supervisor.
(f)The father shall pay any costs due to the supervisor.
(g)The mother shall cause the delivery of the children to and the collection of the children from the supervisor at the commencement and conclusion of the time spent by the children with the father.
(h)The mother, father, and paternal grandmother shall comply with all reasonable requests and directions of the supervisor.
(i)Leave is granted to the mother and father to provide to the supervisor a sealed copy of these orders.
For the purpose of implementing Order 5(b), the parties shall cause the children to be exchanged between them or their nominees at the McDonalds Restaurant, D Town, NSW.
Upon expiration of the apprehended violence order made against the father by the Local Court of NSW at E Town on 1 February 2018, pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence;
(b)Any day-care, pre-school, or school attended by either child; and
(c)Any sport or extra-curricular activity attended by either child.
Subject to compliance with Order 5, pursuant to s 65Y(2)(b) of the Family Law Act, the mother is permitted to take the children outside the Commonwealth of Australia.
The parties are restrained from denigrating the other 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.
The parties 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.
The mother shall authorise and request the principal of any school or pre-school attended by the children to provide to the father, at his expense, copies of all reports and photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current mobile telephone number.
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.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.

Notations

(A)Australia and Country D are both State parties to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Convention”).
(B)The children are habitually resident in Australia, in the State of NSW.
(C)The father has “rights of custody” in respect of the children within the meaning of the 1980 Convention.
(D)These orders allow the mother to temporarily remove the children from their State of habitual residence for the purposes of holidays.
(E)Permanent retention of the children away from Australia without the permission of an Australian Court or the father’s consent in writing will constitute wrongful retention of the children within the meaning of the 1980 Convention.

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 Murray & Finn 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 2749 of 2016

Ms Murray

Applicant

And

Mr Finn

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the two young children of the applicant mother and respondent father, who are now respectively aged four and two years.
The father agreed the mother should have sole parental responsibility for the children and they should continue to live with her. The principal contentious issues were whether the children could spend any time with the father and, if so, the circumstances under which it should occur. There were subsidiary disputes over the mother’s ability to take the children overseas on holidays and the surname the children should use.
The mother was opposed to the children spending any time or having any communication with the father, though she was prepared to countenance their interaction being permanently supervised as a fall-back position. Her concern related to the children’s safety while in the father’s care due to his cognitive deficit caused by an acquired brain injury. The father proposed the children should spend much more time with him, subject to them being supervised by a member of the paternal family for up to several years into the future.

Short history

The mother is from Country D in Asia and the father is Australian. They met via an online dating website in about 2012. The father travelled to Country D to meet the mother personally and they almost immediately began a de facto relationship there. The mother fell pregnant and the eldest child was born in 2013 in Country D.
In early 2014, the parties and the eldest child moved to live in Australia, initially with the paternal grandparents, but later in the home purchased by the father. They married in 2014.
The youngest child was conceived in 2015, but by then the marriage was troubled. The mother returned to Country D for several months with the eldest child, though the father later joined them and they returned to Australia together in June 2015.
The mother asserted the parties finally separated in November 2015, while the father was unspecific. In any event, the mother commenced to live with the eldest child in a women’s refuge in about December 2015 and the marriage was certainly over when the youngest child was born in 2016. Afterwards, she and both children moved into rented accommodation organised for her by the refuge.
The eldest child spent time with the father several times each week on an informal basis in public places while monitored by the mother, but because the youngest child was an infant she had little interaction with him. The mother terminated the eldest child’s visits with the father in March 2016 after a heated confrontation between them, to which the police were summoned.
The mother commenced these proceedings in the Federal Circuit Court in October 2016, two days after she was indecently assaulted by the father, for which offence he was charged and later convicted. The Federal Circuit Court transferred the proceedings to this Court for determination in November 2016.
The parties’ interim dispute over parenting orders was listed for hearing in February 2017, at which time the parties agreed on orders for the children to live with the mother and to spend supervised time with the father at a contact centre on two occasions each week for two hours at a time, which orders were consistent with the family violence order made by the State court against the father for the mother’s protection in January 2017. Although the interim orders allowed two supervised visits each week, the contact centre would apparently permit only one.
Once the Family Report was prepared in October 2017, the proceedings were listed for trial in February 2018.

Proposals

The mother pressed for the orders set out in her Amended Application filed on 20 November 2017. Relevantly, she wanted there to be no interaction at all between the children and the father, though she told the Family Consultant[1] and confirmed in cross-examination she would be satisfied if their interaction was professionally supervised. Otherwise, the mother wanted to be able to take the children outside Australia on holiday and to change their surname to match hers.
[1] Family Report, para 22, 41, 55
The father pressed for the orders set out in his Amended Response filed on 8 February 2018. He wanted the children’s visits with him to gradually escalate over about the next 21 months to culminate in alternate weekends, but for the children to always be supervised in his care by a member of the paternal family until the youngest child turns eight years of age (about 6 years hence). His proposal represented substantial revision of the proposal he previously discussed with the Family Consultant, which was for immediate cessation of any supervision.[2] His revised proposal was consistent with his admission at trial that he needs assistance to care for the children.[3] Otherwise, he wanted the mother restrained from removing the children from Australia and restrained from changing their surname.
[2] Family Report, para 25
[3] Father’s affidavit, para 47
The Independent Children’s Lawyer resisted announcing any formative proposal at the commencement of the trial. In final submissions she was still unable to decide between orders providing for the father’s elimination from the children’s lives (as the mother wanted) and orders requiring the paternal grandmother to permanently supervise the children in the father’s care (as he was prepared to accept and the paternal grandmother was prepared to provide).

Evidence

The mother relied upon her affidavit filed on 16 January 2018.
The father relied upon:
(a)His affidavit filed on 8 February 2018; and
(b)The affidavit of the paternal grandmother filed on 8 February 2018.
The father was denied leave to rely upon the evidence of a witness which had no apparent relevance to the issues at stake.[4]
[4] Notation A made on 6/11/17
The parties and the Independent Children’s Lawyer also relied upon the Family Report dated 13 October 2017.

Legal principles

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). 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).
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.
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 – primary considerations

Section 60CC(2)(a)

Interim orders restoring the children’s contact with the father under supervised conditions were made in February 2017. The records from the two contact centres used by the parties uniformly report at least the eldest child’s comfort and enjoyment when spending time with the father.[5] When the Family Consultant conferred with the family in October 2017 he concluded the eldest child has a positive attachment with the father and excitedly looks forward to being in his company.[6]
[5] Family Report, paras 78, 79
[6] Family Report, paras 86, 91, 92
The parties were already separated when the youngest child was born so, when she began the contact centre visits with the father, her relationship with him started from a baseline of unfamiliarity. Even so, she appeared to the Family Consultant to be gradually building familiarity with him.[7] Photographs taken at the contact centre of the children playing with the father portray the youngest child to be enjoying her interaction with him just as much as the eldest child.[8]
[7] Family Report, para 88
[8] Exhibit F9
Although the relationship between the eldest child and the father may still be stronger than that between the youngest child and the father, the children both have meaningful relationships with him, from which they clearly derive benefit. The mother, however, contended their derivation of such benefit must yield to the need to ensure their safety. The Act so provides (s 60CC(2A)).
The Family Consultant expressed the tension between those considerations thus:[9]
The enormous benefits to the children from having a meaningful relationship with the father and extended family, however, need to be balanced by the need to keep the children safe.
[9] Family Report, para 97

Section 60CC(2)(b)

The mother deposed to her concern about the children’s safety in the father’s care in the following terms:[10]
I am concerned about his drug and alcohol abuse and that he might take the children…I am also afraid of his inability to control his temper and his anger management issues and the fact that these issues could stem from his brain injury…I even fear that [the father] might kill the children out of anger when he is feeling jealous about me.
[10] Mother’s affidavit, paras 70-71
Her evidence replicated the concerns she earlier expressed to the Family Consultant, though at that time she added to the list another concern she harbours about the father’s potential neglect of the children.[11]
[11] Family Report, paras 27, 28

In a work accident in December 2008, the father suffered a traumatic brain injury and nearly died. He accepts it radically altered his life in a variety of ways and he admitted he does not believe he will “ever fully recover” from it.[12] The mother believes the injury and consequent disability might explain the father’s lack of concentration, lack of self-control, and pre-disposition to angry outbursts, which belief is probably vindicated by the inferences reasonably drawn from the available medical evidence about the causal link.
[12] Father’s affidavit, para 5; Family Report, para 96
In 2011, a forensic psychiatrist reported the father’s injury caused him cognitive disorder with consequent changes in behaviour and memory, which impairments are permanent. He did not have any psychiatric disorder.[13]
[13] Exhibit M16
In May 2016, the father’s treating psychologist diagnosed him to be suffering from traumatic brain injury syndrome, major depressive disorder, and generalised anxiety disorder. The symptoms of those conditions typically include agitation, confusion, irritability, impulsivity, difficulty concentrating, and poor risk assessment.[14]
[14] Family Report, para 33
In November 2016, the psychologist reported how the father experiences elevated levels of anxiety and depressive mood, typically suffers from disinhibition, and had great trouble controlling his anger when provoked. Just as significantly, his assessment after consultations over nearly eight years was that the father was a good person who means no harm.[15]
[15] Exhibit M4
Following his prosecution in 2017, the father was referred to the NSW Health Department for a mental health assessment. Two recent reports were generated for use in the criminal proceedings, which were finalised in February 2018. After the initial appointment in November 2017, the father was referred to a psychologist for therapy and he submitted to several sessions. The psychologist considered his cognitive impairment was amenable to further treatment.[16]
[16] Exhibits M10, M11
Although further therapy might assist the father to cope better with his impairment, there is no realistic prospect of improvement in his underlying condition. His behaviour, as observed by the Family Consultant[17] and also during the trial, betrayed the likelihood of permanent impairment.
[17] Family Report, para 56
The mother’s asserted concerns about the father’s drug and alcohol abuse and the chance he may abduct the children are addressed later, either under s 60CC(3) of the Act or more generally. Only her concerns about the children’s exposure to the risk of harm by reason of the father’s violence and neglect are pertinent to s 60CC(2)(b) of the Act.
Family violence
Regardless of the reasons that lie behind the father’s conduct, the evidence surely established his commission of family violence upon the mother, often in the children’s presence. The father denied most of the mother’s allegations, both to the Family Consultant[18] and in his evidence at trial, but such denials are unreliable. The mother’s evidence is preferred to the father’s for several reasons: the Family Consultant found him to be an “extremely poor historian”;[19] the father conceded, both to an officer of NSW Health[20] and at trial, that he has short-term memory loss so the mother’s memory is probably better; and in cross-examination at trial he denied his guilt of offences for which he was previously either convicted or found guilty before a State court, but the past judgments of the State courts about his violence are conclusive and irrefutable proof of it.
[18] Family Report, paras 26, 50, 69
[19] Family Report, para 48
[20] Exhibit M10
The parties moved to live in the family home just before their marriage in late 2014. The mother deposed that, from about that time, the parties argued almost daily. The father assaulted her, acted aggressively towards her, forced her to engage in sexual relations, insulted her by calling her profane names, limited her contacts outside the family home, and controlled her access to money. Some of the violent incidents occurred in the eldest child’s presence.[21] That evidence is accepted as accurate.
[21] Mother’s affidavit, paras 9-12, 14-24, 28-30
The mother alleged the paternal grandmother witnessed one incident of the father’s uncontained aggression at her home in 2013,[22] but that incident is not proven on the balance of probabilities. The paternal grandmother denied it and she was just as credible a witness as the mother. Moreover, the mother began her tale by implying the father’s family violence commenced from the “moment” they moved into the family home in later 2014,[23] which is not easily reconciled with her allegation of a preceding incident in 2013.
[22] Mother’s affidavit, para 13
[23] Mother’s affidavit, para 10
Nonetheless, members of the paternal family were aware of the mother’s contemporaneous complaints about her mistreatment by the father. The mother and a paternal aunt swapped many text messages about it.[24]
[24] Mother’s affidavit, paras 26, 27, 31, Annexures A, B, C, D
The parties’ final separation in late 2015 was precipitated by nursing staff noticing bruises on the mother’s arms when she attended hospital for an ante-natal check-up not long before the youngest child’s birth. The police were summoned, a family violence order was made against the father, and arrangements were made for the mother to move into a women’s refuge.[25] Unfortunately, the parties’ separation and the existence of a family violence order did not cause the father’s violent behaviour to cease.
[25] Mother’s affidavit, paras 33, 34
Only a couple of months later, in March 2016, the mother summoned police to an argument between the parties at the family home. The father verbally abused the mother, physically assaulted the police, and was subdued by capsicum spray and handcuffed. Both children were present.[26] In January 2017, once he finally pleaded guilty, he was convicted of assaulting and intimidating the police officers, for which he was fined and placed on good behaviour bonds.[27] The facts underlying the offences are now beyond dispute because the statement of facts upon which the State court sentenced the father was tendered in these proceedings.[28] At the same time, a family violence order was made against the father for the protection of the mother and the children.[29]
[26] Mother’s affidavit, paras 40-41; Father’s affidavit, paras 26-28; Family Report, pars 12,
[27] Exhibit M1
[28] Exhibit M9
[29] Mother’s affidavit, para 49, Annexure G
In October 2016, some six months after the preceding incident, the father indecently assaulted the mother by squeezing her breasts and rubbing his erect penis against her after they met in the street by chance. The mother reported that and other incidents to the police about a week or so later.[30] In June 2017, despite his denial of guilt, the father was convicted for his indecent assault of the mother and his breach of the existing family violence order, for which he was placed on good behaviour bonds. He appealed the convictions and sentences, but the appeal was dismissed in September 2017.[31]
[30] Mother’s affidavit, paras 44-46; Father’s affidavit, paras 31-34
[31] Exhibit M1; Family Report, paras 13, 26, 50
In January 2017, the father approached the mother and children at a shopping centre to say hello to the children. There was no unpleasantness, but his approach was still in breach of the family violence order, which the mother understandably found disconcerting.[32] For reasons which were not revealed by the evidence, the father was not charged with that breach of the family violence order until August 2017.[33] The charge was later dismissed in January 2018 under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW),[34] apparently due to the father’s cognitive impairment. Contemporaneously, however, the family violence order against the father was extended for another 12 months and is now in force until 1 February 2019.[35]
[32] Mother’s affidavit, paras 47-48
[33] Family Report, para 50; Exhibit M3
[34] Exhibits M1, M12
[35] Exhibit M2
The Family Consultant observed the father is easily frustrated, acts impulsively, and appears to lack the insight to recognise it.[36] More specifically, he seemed to not appreciate the significance of acting in breach of the family violence order protecting the mother and children.[37] When the family violence order was extended by the State court in January 2018, the father’s solicitor informed the court it was unlikely he would comply with the family violence order because of his cognitive impairment.[38]
[36] Family Report, para 60
[37] Family Report, para 70
[38] Exhibit M3
In the face of such past impulsivity and unreliability, the mother had good grounds to wonder about the children’s continuing exposure to family violence committed by the father (s 60CC(2)(b)) in addition to her own safety from him, which the Court should also strive to ensure (s 60CG(1)(b)). She contended he seems just as likely now as he was before to assault, insult, or intimidate her. While her apprehension is understandable, the evidence did afford some reasonable re-assurance about his improvement.
The father said in cross-examination he now knows the mother wants nothing to do with him, he will respect her wishes, and he will comply with the family violence order. Of course, the father’s conduct is liable to speak louder than mere platitudes, but several important observations may be made about both his evidence and his conduct. First, in some respects, his evidence was consistent with his acceptance of responsibility for the mother’s current aversion to him, which differed from his tendency to deflect blame in discussion with the Family Consultant some six months ago.[39] Second, his demeanour during the trial was characterised by remorse. He seemed genuinely sorry for the loss of his relationship with the mother, which sorrow was accentuated by the knowledge his conduct was mostly responsible for it. Third, the evidence at trial revealed the father has not approached the mother since January 2017 and he has not behaved in an oppressive or violent way towards her since October 2016. The passage of time without any further incident leaves some room for cautious optimism the father has finally realised his obligation to leave the mother undisturbed.
[39] Family Report, para 96
The need to protect the children from the psychological harm they would suffer from exposure to the father’s family violence still exists, so the real question to be addressed is whether the risk of their harm is so pronounced that it requires his elimination from their lives or whether it can be sufficiently contained by other protective measures.
The evidence did not substantiate the mother’s subjective fear the father could physically injure or even kill the children, as she deposed. No such inference could be reasonably drawn from the evidence. The risk objectively posed by the father is contained to their potential psychological harm.
Neglect
Although the mother did not give direct evidence at trial about her worry over the father’s possible neglect of the children, it was another aspect of her concern she discussed with the Family Consultant.[40] Knowing her concern, the Family Consultant did witness the father to be easily distracted when interacting with the children.[41] Even momentary distraction can be dangerous when caring for such young children, but the risk of the father’s lax supervision of the children leaving them exposed to physical harm is objectively quite modest. In any event, the risk is entirely eradicated by the imposition of independent supervision, which the father acknowledged would be the only way in which the children will continue their interaction with him for at least the foreseeable future.
[40] Family Report, para 28
[41] Family Report, para 54

Children’s best interests – additional considerations

Few of the factors prescribed by s 60CC(3) of the Act were ultimately the subject of individual reliance by the parties and the Independent Children’s Lawyer, but some should still be addressed.
The father was adamant to the Family Consultant that his brain injury had no effect upon his current parenting capacity,[42] which assertion the Family Consultant considered betrayed his lack of insight.[43] Nevertheless, the Family Consultant found the father was responsive to instructions about the children’s care,[44] which implies his capacity to care for the children adequately when properly supervised. The father’s lack of insight does impair his parenting capacity (s 60CC(3)(f)), but it does not disqualify him from parenthood. The gap in his insight is filled by a competent supervisor.
[42] Family Report, para 54
[43] Family Report, paras 60, 96
[44] Family Report, para 60
When the parties conferred with the Family Consultant, it was common ground the father had misused alcohol and consumed cannabis during their relationship.[45] The mother gave evidence in rather graphic detail about the extent of the problem.[46] The father deposed he has since overcome his dependencies,[47] but the mother was not convinced by his uncorroborated evidence. Interlocutory orders were therefore made for the father’s submission to random tests for illicit drug use and alcohol misuse. Three tests in 2017 were positive for cannabis use,[48] but there were also seven negative results in 2017 and 2018.[49] Most significantly, the three tests conducted after November 2017 were all negative. Conceivably, the two positive results in September and November 2017 were attributable to a brief relapse, just as the father asserted, in which case he has otherwise proven his abstinence from cannabis use since February 2017. His commitment to rehabilitation seems genuine. The imposition of independent supervision will cure any objective concern about his unfitness to supervise the children alone by reason of his intoxication.
[45] Family Report, paras 31-32
[46] Mother’s affidavit, paras 54, 55, 62, 63
[47] Father’s affidavit, paras 36, 37
[48] Exhibits M5, M6, M7
[49] Exhibits F1, F2, F3, F4, F5, F6, F7
The parties and paternal grandparents all continue to live in Region E of NSW, so exchange of the children between them does not present any undue practical difficulty or expense (s 60CC(3)(e)). The mother does not have a car or drivers licence, but that has not impeded her ability to regularly travel about Region E taking the children to pre-school and to other activities, or even to Sydney for days out.[50]
[50] Mother’s affidavit, paras 87-90
The mother has contemplated relocating away from Region E with the children, but probably no further south than Sydney or no further north than F Town.[51] It was not suggested the mother should be restrained from choosing where she and the children live and so, provided she complies with any orders requiring the children to spend time with the father, she can live where she likes. Any orders requiring the children to intermittently spend time with the father in Region E would likely still be consistent with any future decision she makes to relocate with the children to Sydney or F Town. The modest distance between the parties would not likely be prohibitive of orders requiring the children to occasionally spend time with the father.
[51] Family Report, paras 39, 44

Conclusions and orders

The presumption of equal shared parental responsibility does not apply because of the father’s commission of family violence upon the mother (s 61DA(2)(b)). In any event, not even the father contended the parties should share parental responsibility for the children.
Save for her wish to change the children’s surname, which will be restrained for reasons yet to be discussed, the mother should exclusively exercise parental responsibility for the children in respect of all significant decisions related to their welfare. That conclusion mirrors the opinion of the Family Consultant.[52] The parties should maintain their individual responsibility for decisions concerning the children’s day-to-day affairs (see ss 61C and 61D; Newlands v Newlands (2007) 37 Fam LR 103 at [89]-[91]).
[52] Family Report, paras 105, 107
Attention must therefore turn to whether the children can safely spend time with the father. The mother’s case was that permanent professional supervision in a contact centre was the only protective measure which could satisfactorily attenuate the risk of harm the father posed to the children but, since permanent orders to that effect would not be in the children’s best interests, there was no viable option but to sever their relationships with him.
The Family Consultant correctly recognised that, while that outcome would ensure the children’s safety, it would come at the “very high cost” of the children’s relationships with the father and other members of the paternal family.[53] The cost would be “very high” because of the “enormous benefits” the children would derive through retention of their relationships with the father.[54] In cross-examination the Family Consultant explained that, once lost at such a young age, those filial relationships would not likely ever be recovered.
[53] Family Report, para 104
[54] Family Report, para 97
Conversely, the Family Consultant also reported the father’s proposal was unattractive because it exposed the children to the risk of harm,[55] but that observation was made months ago when the father was still advocating for the children to spend substantial amounts of unsupervised time in his care.[56] At trial, the father acknowledged his continuing need for supervision and revised his proposal substantially. He said in cross-examination he needed “eye contact supervision” because he lacked confidence and he did not know when he would ever be confident enough to dispense with it. Such oral evidence about his need for supervision was a more comprehensive admission than that in his affidavit, which was confined to his need for “assistance”.[57]
[55] Family Report, para 104
[56] Family Report, paras 24-25
[57] Father’s affidavit, para 47
Given the father’s admission and revised proposal, it was common ground that no protective measure short of indefinite supervision would suffice to curtail the risk of harm he posed to the children, but there was controversy over whether that would realistically be enough.
The Family Consultant concluded it would be. Despite perhaps holding an even greater concern about the level of risk posed by the father, the Family Consultant reported:[58]
The father can offer the children much. At least for the foreseeable future, however, any time that the children spend with the father needs to be in the company of another adult who will ensure that the needs of the children are met and prioritised over the father’s own needs.
[58] Family Report, para 99
The Family Consultant hoped that, in the months following publication of the Family Report, the paternal grandmother could become more involved with the children’s supervised visits with the father and her estrangement from the mother could be repaired. In the hope of such positive developments, the Family Consultant anticipated the children’s visits with the father could successfully transition from professional supervision at a contact centre to supervision by the paternal grandmother. Otherwise, the Family Consultant envisaged it might be necessary to terminate the children’s visits with the father, since long-term professional supervision at a contact centre was not in the children’s best interests, thereby leaving it up to the father to re-commence litigation at some point in the future if he could demonstrate changed circumstances.[59]
[59] Family Report, paras 110, 111, 115
However, despite the tenor of the Family Consultant’s evidence, the restitution of the mother’s relationship with the mother and paternal grandmother and the mother’s acceptance of the paternal grandmother as a suitable supervisor are not essential pre-conditions to her use as a supervisor. It would obviously be better if the mother genuinely trusted her, but the absence of such trust is not a disqualifying feature. The paternal grandmother’s reliability is a much more important consideration.

Some of the Family Consultant’s evidence about the suitability of the paternal grandmother as a supervisor was difficult to reconcile. On the one hand, he noted she appeared to recognise the need for a paternal family member to be present with the father at all times to ensure the children’s physical and emotional safety,[60] but yet on the other hand, he considered the paternal grandparents were unable or unwilling to recognise the limitations of the father’s parenting capacity and were unlikely to prioritise the children’s needs above the father’s desire.[61] The latter comment reflects the mother’s belief but, as the Family Consultant acknowledged,[62] the belief is untested.
[60] Family Report, para 66
[61] Family Report, paras 67, 98
[62] Family Report, para 98
The Family Consultant concluded the “paternal grandparents” were probably unsuitable as supervisors, but that tentative opinion must be qualified for two reasons. First, it conflated the individual suitability of the paternal grandmother with the aggregate suitability of the paternal grandparents. They were initially considered and discussed separately, at which point the Family Consultant remarked favourably upon the paternal grandmother.[63] Second, during his cross-examination, the Family Consultant’s rejection of both grandparents was much more muted. He volunteered they were in the awkward position of trying to support the father, but also be protective of the children. He seemed less critical and more forgiving of them.
[63] Family Report, para 66
In any event, while the Family Consultant’s opinion is influential, it is not binding. Despite the tentative views he formed some six months ago, he did not read the paternal grandmother’s affidavit and did not see her cross-examined. She acknowledged the need to prioritise the children’s interests and endorsed the orders sought by the father for the children to only spend supervised time in his care.[64] In cross-examination, she acknowledged the father had cognitive limitations and credibly conveyed the impression of a measured and thoughtful parent and grandparent. She left little doubt she would faithfully discharge any supervisory obligation cast upon her. It could hardly be doubted she has the willingness and capacity to safeguard her own grandchildren from harm. Although she asserted in cross-examination there was “no way [the father] would be a danger [to the children]”, she was implicitly referring to any suggestion he would intentionally cause physical harm to them. It would be unfair to impute her denial of the father’s capacity to cause any form of psychological harm or accidental physical harm, because that would be inconsistent with her admission of his need to be supervised with the children.
[64] Affidavit of paternal grandmother, paras 33-39
Despite the mother’s reservations about the paternal grandmother’s capacity to manage the father and her general suitability,[65] she probably will subjugate her loyalty to him to ensure the children are properly protected. Although aligned family members are not generally ideal supervisors (see Marriage of B & B (1993) FLC 92-357 at 79,780 – 79,781), the paternal grandmother did not fall into that category. She wilted under the father’s pressure to relinquish her control of his financial affairs under a guardianship order,[66] but protecting the father from his own financial ruin is quite different from protecting the safety of her grandchildren. Resiling from the first objective does not mean she would resile from the second.
[65] Family Report, paras 39, 41, 98; Mother’s affidavit, paras 13, 59, 73, 81
[66] Paternal grandmother’s affidavit, paras 13-14; Exhibit M15
The imposition of indefinite supervision by the paternal grandmother will suffice to ameliorate the risk of harm to the children. The risk of their harm is not so pronounced that it requires the father’s elimination from their lives, as the mother primarily contended. Nor is permanent supervision in a contact centre required, as was the mother’s fall-back position. That form of supervision is not designed for long-term use (see Betros & Betros [2017] FamCAFC 90 at [13]). The Family Consultant described it best when he said that form of supervision showed “diminishing returns” for the children.
However, supervision of the children with the father should only be provided by the paternal grandmother. She was the only paternal family member to give confirmatory evidence about the need for supervision and the elimination of other members of the paternal family as candidates will obviate any chance of the solemn responsibility which rests with supervisors being diffused. The orders require the paternal grandmother to provide an undertaking affirming her commitment to her duties before the orders take effect.
The orders require the children to continue spending time with the father under professional supervision at a contact centre for the next few months, in the same way as currently occurs, before the transition to supervision by the paternal grandmother takes effect. In the meantime, the father is obliged to involve the paternal grandmother in the supervised visits so the children are familiarised and comfortable with her again. The paternal grandmother has seen very little of them since March 2016. Recently, of their own accord, the parties agreed the paternal grandmother should be able to attend at least some of the supervised visits at the contact centre under the interim orders.
Once the children’s visits with the father begin under the paternal grandmother’s supervision, the frequency and duration of the visits will change. Instead of a few hours each week, the visits will be for a weekend each alternate month. As the children age and mature their developmental needs are suited to longer but less frequent interaction with the father. The weekend visits will not be so long or so frequent as to be unduly burdensome on the paternal grandmother as supervisor. Visits of that duration and frequency will be sufficient for the children to maintain their meaningful relationships with the father. In final submissions, the Independent Children’s Lawyer suggested visits of three hours once every three weeks at the home of the paternal grandmother, but that suggestion had no greater force. Devoid of any elaborated reasoning, the proposal is rejected as too little time too frequently. It might be acceptable while the children are still very young, but its unsuitability will accelerate as the children age and mature.
Since the mother remains apprehensive about the father, the children must be exchanged at a public venue in Region E. Selection of the venue is necessarily arbitrary because the issue was not engaged by the mother. She argued for elimination of the father, or at least continuation of supervised contact at a contact centre, so the venue for changeovers outside a contact centre was not addressed by her. But that was her choice. She knew the father proposed that the paternal grandmother (or some other member of the paternal family) should supervise the children’s visits so the venue of changeovers was squarely raised by his proposal. The father proposed a Region E supermarket as the venue for changeovers, but a public restaurant is preferred because it has play equipment to amuse the children if there is any unforeseen delay in the changeover and it is probably monitored by CCTV for the mother’s sense of protection.
The mother and children are protected until 1 February 2018 by the family violence order made by the State court. Upon expiration of that family violence order, an injunction will apply to restrain the father from attending at or near the mother’s home, the children’s day-care centres, pre-schools, and schools, or at any other place where the children participate in sport or extra-curricular activities. That will imbue the mother with an added sense of protection and prevent the father from circumventing the intention of the orders which restrict the circumstances under which he interacts with the children.
Each party wanted to restrain the other from removing the children from Australia. The mother was fearful the father would abduct the children and flee overseas as she alleged he had previously threatened. The father was fearful the mother would take the children back to Country D and detain them there. The orders allow the mother, but not the father, to take the children out of Australia.
In view of the orders made constraining the duration of the children’s interaction with the father, he accrues no prejudice in being restrained from taking the children overseas. The restraint is imposed by s 65Y(1) of the Act.
As for the mother, she intends to live permanently with the children in Australia, but she wants to be able to travel back to Country D with them to visit her family from time to time. There is no persuasive reason why she should be precluded from doing so and, as a consequence, an order is made under s 65Y(2) of the Act permitting it. If, as the father worries, she takes the children to Country D and detains them there he will be able to initiate action for their recovery and return to Australia. Country D ratified the 1980 Hague Convention on the Civil Aspects of International Child Abduction on 16 March 2016 and it entered into force in that country on 1 June 2016. Notations to the orders about the children’s habitual residence, the father’s “rights of custody”, and the children’s wrongful retention in Country D are designed to make invocation of the 1980 Hague Convention easier if it ever becomes necessary.
Although the issue was not mentioned in either cross-examination or during final submissions, the mother sought orders allowing her to change the children’s surname for the reasons she explained in her affidavit,[67] so it should not be overlooked. The children’s best interests guide any decision about the surname by which they should be known (see Reynolds & Sherman [2015] FamCAFC 128 at [54]-[55]). There is no onus of proof and the decision entails balancing the competing discretionary factors (see Flanagan v Handcock (2001) FLC 93-074 at [19]-[38]; M v B [2001] FamCA 894 at [35]-[37]; Marriage of Mahony & McKenzie (1993) 16 Fam LR 803; Chapman v Palmer (1978) 4 Fam LR 462).
[67] Mother’s affidavit, paras 97-99
The children were apparently registered with the father’s surname at birth and the mother’s original surname was used as their middle name. Since at least the time of the parties’ separation, the mother has used her original surname and now wants to change the children’s surname to match her own. She believes the children will be confused by their use of a different surname from hers as they grow older. She believes they may feel embarrassed or awkward by the difference once they start school. She could be right, but her subjective concerns are a relatively fragile basis upon which to make the orders she seeks. The children are still quite young and probably would not be disturbed by or curious about any change of their surname now, but their chosen surname importantly reflects their genetic origins. The mother sought in these proceedings to effectively terminate the father’s involvement in the children’s lives so their ability to retain some filial connection with him is an important consideration. It is difficult to resist the inference that the mother’s proposal to change the children’s surname was really just another way in which she sought to eliminate any trace of the father, not that the change was justified by the children’s best interests. An order should be made to restrain the mother from changing the children’s surname.
The orders require the parties to keep one another appraised of their mobile telephone numbers in case they need to contact one another in the event of some emergency related to the children. The mother does not want to divulge her residential address to the father, so she need not do so.
The remaining orders are self-explanatory and could not be the subject of sensible opposition.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 March 2018.

Associate:

Date: 29 March 2018