NEAL & KELLEY
[2018] FCCA 2744
•5 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEAL & KELLEY | [2018] FCCA 2744 |
| Catchwords: FAMILY LAW – Parenting – Where the parties married in (country omitted) and relocated to Australia – where the mother alleges acts of family violence by the father – where it is alleged the father lacks parental capacity – where the mother seeks a long term supervision order – where the father poses a flight risk – where an order for sole parental responsibility is made. |
| Legislation: Family Law Act 1975 (Cth), pt.VII, ss.4AB(2)(g)(h), 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 61DA Evidence Act 1999 (Cth), ss.140, 140(2). |
| Cases cited: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 McCall & Clarke [2009] FamCAFC 115; Mazorski & Albright (2007) 37 FamLR 518 U v U (2002) FLC 93-112 |
| Applicant: | MS NEAL |
| Respondent: | MR KELLEY |
| File Number: | NCC 1086 of 2016 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 24 & 25 January 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Townsville |
| Delivered on: | 5 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Burke & Mead Lawyers |
| Solicitors for the Respondent: | Hunter Family Law Centre Pty Ltd |
ORDERS
That the mother have sole parental responsibility for the children [X] born 2012 and [Y] born 2014.
That the children live with the mother.
That the children spend time with the father at all such times as may be agreed between the parents and failing agreement as follows:
(a)commencing the second Saturday from the date of these orders from 10:00am until 2:00pm each alternate Saturday for a period of six weeks;
(b)at the conclusion of the six week period from 9:00am until 5:00pm each alternate Saturday for a further six weeks;
(c)at the conclusion of six weeks referred to above from 9:00am Saturday until 10:00am Sunday each alternate weekend provided the father's living in Town A and until the child [Y] attains the age of five;
(d)thereafter from 9:00am Saturday until 5:00pm Sunday each alternate weekend provided the father is living in Town A;
(e)upon the child [Y] attending formal schooling from after school Friday until return to school Monday each alternate weekend and: for one half of each school holiday period, the first half in even numbered years and alternating thereafter, in the second half in odd numbered years and alternating thereafter.
Notwithstanding the above arrangements, the children spend time with their parents as follows;
(a)On the children's birthdays with the parent who does not have care of the children, as agreed by the parties and failing agreement for three hours on each of the children's birthdays. If the parties are unable to reach agreement as to the precise time, such times shall commence after school if the child's birthday falls on a school day, and otherwise such time shall commence at 4:00pm.
(b)with the father if the children are not in the care of the father on the Father's Day weekend from 9:00am Saturday to 4:00pm Sunday provided time in accordance with order 3(d) above has commenced;
(c)with the mother if the children are not in the care of the mother from 9:00am Saturday to 4:00pm Sunday on the weekend which includes Mother's Day;
(d)with the father during Christmas school holidays from 2:00pm Christmas Eve to 2:00pm Christmas Day in even numbered years, from 2:00pm on Christmas Day to 2:00pm on Boxing Day, in odd numbered years provided the time referred to in order 3(d) has commenced;
(e)with the mother during Christmas holidays from 2:00pm Christmas Eve to 2:00pm Christmas Day, in odd numbered years and from 2:00pm on Christmas Day to 2:00pm on Boxing Day and even numbered years.
The children shall communicate with the parents by arrangement between the parents at reasonable times, but failing agreement with the parent who does not have care of the children on Tuesdays and Thursdays between 5:00pm and 6:00pm.
These orders shall be sufficient authority so as to meet each of the children's schools to provide the father with copies of all school reports, any other reports on school progress and behavioural issues and other schools circulars in relation to the children, and inform the father of upcoming children's presentations, events/functions and notification of parent teacher nights.
That each parent must ensure that the other parent is kept informed by telephone or text or email as soon as reasonably practicable of;
(a)any medical illness or condition suffered by the children;
(b)any medication that has been prescribed for the children;
(c)any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children; and
(d)any other matter of relevance to the welfare of the children.
That the parents be at liberty to attend parent/teacher nights, sporting, recreational and social events which the children participate in as part of their extended school curriculum. The parent shall be at liberty to also attend any sporting activities and training which the children engage in as part of any sporting club or association which they are a member.
That these order shall be sufficient authority so as to permit each of the parents to obtain medical information relation of the children from all the treating health professionals of the children and to attend any appointments the children may have with the treating health professional.
That each of the parties keep the other advised of their current telephone number.
That the mother be permitted to serve a copy of these orders on the school, medical practitioners, and any other healthcare provider for the children.
That the father or his servants and agents be restrained from taking or sending or attempt to take or send the children [X] born 2012 and [Y] born 2014 from the Commonwealth of Australia and the Marshal and all officers of the Australian Federal Police and the Police forces of the States and Territories are requested and authorised to give effect to this order.
That the names of the children remain on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and that the Australian Federal Police maintain the children's names on the watchlist until the children reach 18 years of age.
IT IS NOTED that publication of this judgment under the pseudonym Neal & Kelley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1086 of 2016
| MS NEAL |
Applicant
And
| MR KELLEY |
Respondent
REASONS FOR JUDGMENT
Background
This is a parenting application concerning two children [X] born 2012 and [Y] born 2014.
Proceedings commenced in 2016 and on 17 May 2016 orders were made for the children to live with their mother and to spend supervised time with their father each alternative Sunday for two hours.
The mother was born on 1981 and was aged 36 at the time of trial and the father was born 1977 and was aged 40 of the time of trial.
The father originally resided in (country omitted) and moved to Australia in 2008. In 2009 the parties commenced a relationship. On 2010 the parties married in (country omitted) and in 2010 the mother moved to Australia. In 2014 the father became an Australian citizen and in 2015 the mother became an Australian citizen. The parties separated on 6 July 2015.
The mother alleged significant family violence had been committed by the father throughout the relationship.[1]
[1] Although under cross examination and indeed when speaking with the family consultant the mother conceded that up until approximately July 2014 the parties were in a committed loving relationship that did not involve family violence.
The mother alleged that the father had consumed excess alcohol throughout the relationship. It was further alleged that the father lacked parental capacity due to his non involvement with the children when the parties were together and his limited time with the children post separation.[2] Finally the mother alleges that the father is a potential flight risk with the children for a number of factors as set out below.
[2] The father has had no overnight time with the children post separation and only spent supervised time since separation.
Material
The mother relied upon:
a.her trial affidavit affirmed on the 31 May 2017;
b.her affidavit filed 20 June 2017;
c.her case outline;
d.written submissions and written submissions in reply.
The father relied upon:
a.his amended response filed 14 March 2017;
b.his affidavit filed 31 May 2017;
c.a further affidavit of the father filed 14 June 2017;
d.his case outline filed on 20 June 2017;
e.written submissions.
The parties both relied on the report of Dr R dated 1 February 2017.
Issues
This issues for determination were:
a.whether the father posed an unacceptable risk to the children as a result of the alleged family violence and threats;
b.whether the father lacked parental capacity;
c.whether the father was a flight risk;
d.to what extent did the alleged excessive alcohol use pose a threat to the children;
e.whether an order for equal shared parental responsibility should be made;
f.whether an order for long-term supervision should be made.
The Law
As this is a parenting application the provisions of part VII of the Family Law Act are in play. The best interests of the children are my paramount consideration.[3] Guided by the objects and principles set out in section 60B and considering the matters set out in section 60CC, I must make orders that are in the best interests of the children.
[3] Section 60CA Family Law Act 1975
As the father seeks an order for equal shared parental responsibility, and the mother seeks an order for sole parental responsibility, I must consider the provisions of section 61DA.
Orders Sought
The mother sought the following orders:
a.that the mother have sole parental responsibility for the children;
b.that the children live with a mother;
c.that the children spend time with the father as deemed to be in their interests;
d.that the fathers time with the children be supervised by a professional supervising agency;
e.that the father or any other person or servants and agents be restrained from taking or sending of attempting to take or send the children from the Commonwealth of Australia and the Marshal and all officers of the Australian Federal Police and the Police Force of the State and Territories are requested and authorised to give effect to the order;
f.that the names of the children remain on the airport watch list in force until the children reach 18 years of age.
The father sought following orders:
a.That the parents have equal shared parental responsibility for the children;
b.from the commencement of the first school term in 2018 children live with each of the parents during alternate weeks from after school Friday until commencement school the following Friday;
c.prior to the commencement of the school term in 2018 the children live with the mother and spend time with father each alternate weekend from 5:00pm on Friday until the commencement of school Monday morning;
d.that the children spend time with the parents on special occasions;
e.Further, machinery and ancillary orders are sought as outlined in the father's amended response.
Assessment of the evidence
At the time of trial the mother was living in Town A and the father was living in Town B.
The father had in previous affidavits indicated, and he reaffirmed this at trial, that he would move to Town A in order to spend substantial and significant time, initially and ultimately equal time with the children.
At the time of trial however the father had not moved to Town A and it had been some 18 months since he had first indicated that he would move to Town A from Town B.
The mother maintained that the father perpetrated family violence towards her during the course of the relationship, most significantly post February 2014, in the form of derogatory name-calling, incidents of physical violence and an insidious level of control.
The mother also alleged that the father had made death threats against her and her family and that the father had travelled to (country omitted) for the purpose of threatening her mother and her sister. The mother alleges that the father assaulted her sister whilst in (country omitted) post separation.
Furthermore it is alleged by the mother that the father was responsible for denying the mother financial autonomy and that he unreasonably withheld financial support needed to meet the reasonable living expenses of the family.[4]
[4] Section 4AB(2)(g)(h)
The mother alleged that the father drank more than a six pack of beer most nights and would often go out at night not coming home until 1:00am or 2:00am in the morning. The practice of going out drinking and not coming home until 1:00am or 2:00am in the morning is said to have occurred in the context of the youngest child being born and the mother still recovering from a caesarean section.
The father denied each and every allegation in his affidavit material.
With regards to financial autonomy, it was the mother's case that the father denied the mother any access to his accounts and required her to ask permission to access finances in circumstances in which she was earning very little and sometimes nothing.
The mother alleged that the father refused to allow the heater to be turned on during winter and failed to provide sufficient clothing for the children during winter as well.
The mother alleged that due to the father's financial control there were times when there was insufficient food for the children to eat.
It is not in contest that the father travelled to (country omitted) in 2014 and that when he left he bought some food, limited perishable items, and provided the mother with $500 for incidentals. The father was intending to be away for two months.
The most particularised incidents of family violence occurred in January 2015, according to the mother's evidence, where the father is said to have pushed the mother to the ground in the parents’ bedroom in front of their young child [X].
It is not in contest that an Apprehended Domestic Violence Order was taken out for the protection of the mother from the father following this incident by the police. The Apprehended Domestic Violence Order became a final order on 25 February 2015 and expired on 23 February 2016.
It is not in contest that during the period of time that the Apprehended Domestic Violence Order was in place the mother met with the father on several occasions so as to supervise time between he and the children. There were no reported incidents of physical violence between the parents on any of those occasions.
The nature of the alleged coercive and controlling behaviour and the very serious allegations of threats to kill the mother and other family members dictates that an assessment of the evidence and a finding of fact in relation to those matters must be made in the context where the mother seeks a long-term supervision order and the father seeks effectively and equal time order.
Ms I
The mother’s sister Ms I, gave evidence via telephone link and was cross-examined. Her capacity to speak English was clearly limited and it was difficult to understand her at times.
Notwithstanding that difficulty though, Ms I was absolutely adamant that the assault occurred in a town known as (country omitted) in 2015.
Ms I described the incident where she was stepping off a bus when the father grabbed her collar, struck her in the head with an elbow, punched her to the ground and then kicked her. Ms I said she reported the incident to the police and sought medical assistance.
Whilst there was some confusion as to whether the assault occurred in 2015, I am of the view that that confusion does not substantially affect the substance of her evidence.
Importantly, it was not put to Ms I that she had colluded with the mother to invent the incident for the purpose of the proceedings. Overall, I formed the view that Ms I was telling the truth and that she had been assaulted by the father.
Maternal Grandmother
The mother tried to call the maternal grandmother. Her evidence could only be given with the assistance of an interpreter. Ms Carr gave evidence regarding the effort she made to locate an appropriate interpreter in circumstances where an interpreter could not be found. Ms Carr was not challenged on that evidence. In those circumstances no adverse inference can be drawn against the mother from the absence of evidence from the maternal grandmother.
The Mother
The mother gave evidence and was extensively cross-examined. The mother made concessions during the course of her evidence and in particular conceded that prior to February 2014 the father had been involved with the children and that the father had cared for the children while she worked, and that she was happy to leave the children with the father in those circumstances and importantly she had access to marital finances prior to that period.
The mother conceded that she was jealous of the father and suspected him of infidelity and that that suspicion and jealousy caused difficulty in the relationship.
In relation to the allegation of assault in January 2015, the mother conceded that she was also angry during the course of the altercation.
The mother also conceded that the children were missing their father and at the first supervised visit even clung to his legs and did not want to leave. Her evidence was that the children like seeing their father now because generally they saw him at McDonald's.
It is the mother’s evidence that post February 2014, the father began drinking more and became less involved in the family including less involved in looking after the children.
Overall I was impressed with the mother as a witness, I found her to be an honest historian who tried to assist the court as best she could in giving her evidence.
The Father
The father also gave evidence and was extensively cross-examined. At times he appeared reluctant to make proper concessions and some of his answers do call into question the level of the father's insight and parental capacity.
It is a fact that the father has not spent any unsupervised time with the children and it is also a fact that the father and mother have no co-parenting relationship intact at the time of trial.
Notwithstanding those two facts, the father could see no difficulty in the court making an order for the children to spend equal time with both parents very soon after the end of the trial.
I am of the view that that is a clear example of the father's lack of insight into the needs of the children and into the nature of the parent’s relationship.
The father was clear to point out that there were two separate roles in his view in any marriage. The man was responsible for protecting and providing, and the woman was responsible for the nurturing.
The father said that he was the leader of the family and conceded that he would often give his view as to how things were to be done, with the very clear inference that there was an expectation that his view would be followed, however he would not concede that was the point instead he said it was up to the mother whether she complied or not.
The father tended to blame the breakdown of the relationship on the mother’s jealousy and took no responsibility for any actions he played in relation to the breakdown of the relationship.
It is a fact that the father has a strong connection to (country omitted) in that the father still has:
a.a child in (country omitted);
b.a farm in (country omitted);
c.a business in (country omitted), running (business omitted), which had been operative for at least 12 months at the time of trial;
d.potentially a resumption of romantic relationship in (country omitted) with the mother of his child;
e.an intention to return on trips to (country omitted) when he can;
f.a desire ultimately to live in (country omitted).
The father gave evidence that the mother would buy too much vegetables and meat. His evidence was that he overtook the process of grocery shopping and used that opportunity to reduce the food purchased by the household.
The father considered the mother to be “wasteful." That evidence of the father is consistent with what the mother was stating in that the father refused to buy sufficient food for the family and took control of finances.
In relation to financial control it is a fact that the mother had an account and the father had an account. It is also a fact that the father did not have access to the mother's account nor did the mother have access to the father's account.
The mother after the birth of the second child was earning very little and at times nothing. In those circumstances she needed access to money from the father.
The father gave evidence that if she wanted money she would need to ask him for it. His evidence continued that he would ask her what she needed, she would give an answer, he would then ask for a list and over time he learnt what were the basic needs. He said he would buy foods from the list but he would decide on the quantity.
The father denied the mother's account of his alcohol consumption but did agree that occasionally he would be out until 9:00pm or 10:00pm drinking and this was after the second child was born.
The father maintained that the mother behaved in a controlling manner as a result of her jealousy but conceded that he was not prevented from working, studying, that he had his own car, had his own money, could go out socially without the mother and, indeed often did. In those circumstances his assertion that the mother controlled him simply has no foundation.
In relation to the (country omitted) trip in 2014, I formed the impression that the father absolutely knew that the family had been left with insufficient funds to get by.
The father gave evidence that he did not put more money into the mother's account because she refused to answer the telephone. It was open to the father to simply transfer the money into the mother's account in circumstances where he was waiting to be paid into his Australian account and he could then transfer from his Australian account into the mother’s Australian account.
The father seem to suggest that he would be using Western Union to make the transfer and needed the mother to provide him details. In those circumstances I found his evidence to be totally flawed.
In circumstances where the father knew that the family did not have enough to get by, it does call into a question the father's commitment to ensuring the children were adequately provided for during that trip. It also adds weight to the mother's allegation that post February 2014 the father deliberately provided insufficiently for the family.
Whilst the father did not concede that the relationship began to deteriorate after February 2014, he did concede however that he became frustrated throughout the course of 2014 and that there was some financial pressure on the family.
At the conclusion of the relationship the mother did move into a refuge with the children. At the time she went to the refuge she was assisted in obtaining relief monies so that her car was not repossessed.
The father knew that she could not meet repayments for her vehicle and he knew that she needed her vehicle to transport the children and he did nothing to assist the mother in making those payments. This again shows a lack of insight into the needs of the children in those circumstances.
Contemporaneous with moving into the refuge, the mother made allegations consistent with the incident she reported that occurred in January 2015.
The mother also made a complaint to local police prior to the father travelling to (country omitted) in which she recorded her fears that the family would be left with insufficient means whilst he was away. It could not be said that the mother made up this concern for the purpose of litigation.[5]
[5] exhibit 5
There is further contemporaneous evidence surrounding the assault on the maternal aunt. The mother was informed of the assault by the maternal aunt on 23 October 2015, on the same day a friend of the father's text the mother indicating there had been an assault on the maternal aunt and on the 27 October 2015, four days later the mother told Ms C at the refuge at which she was living that the father had assaulted the maternal aunt. The Father was in fact in (country omitted) at the time of the alleged assault.
The father said that he needed to control the finances because the mother was “financially irresponsible.” The father adduced no objective evidence to support his argument in that regard, and neither did he identify any specific instances of irresponsible or wasteful spending on her part.
Dr R
Dr R provided a report. The report records an interaction between the father and the assessment centres receptionist in the following terms:
“the assessment centres receptionist spoke with the father and she indicated to the family consultant that the father spoke to her in a highly assertive and authoritive [SIC] manner and she reported feeling intimidated and very uncomfortable while in conversation with him.”[6]
[6] paragraph 10 Family Report
The father had the opportunity to cross examine Dr R on this issue having previously denied that he behaved in that manner, however he did not cross-examine Dr R nor did he endeavour to call any evidence from the receptionist. I must accept therefore that the father acted in the way set out by Dr R.
Dr R’s evidence is clear that in her view the children and the mother have a warm and loving relationship.[7] The children appeared to enjoy themselves with the father but were more reserved and less enthusiastic than with the mother according to Dr R.[8]
[7] paragraph 103 Family Report
[8] paragraph 108 Family Report
Importantly, Dr R was of the view that both parents appear to have adequate capacity and were child focused and Dr R considered the fact that the children were more reserved with the father was not a matter of concern.[9]
[9] paragraph 115, 116 Family Report
The family report writer was cross-examined very briefly in relation to paragraph 56 of the family report where she recorded that the mother remained of the view that the father should have unsupervised time with the children despite her expressed concerns.
Dr R conceded that it was most likely a typographic mistake as the mother had always asserted that the father should spend supervised time on an indefinite basis with the children.
Having considered the evidence, I am of the view that it is open to me to find that there are reasonable grounds to believe on balance that the father committed acts of family violence on the mother.
I am persuaded that there was an incident involving some physical contact, in January 2015 and I am persuaded that the father unreasonably denied the mother her financial autonomy and unreasonably withheld financial support needed to meet the reasonable living expenses of the family including his children at the time when the mother was entirely or predominantly dependent on the father for financial support.
Threat to Kill
As to the allegations of the mother that the father has threatened to kill her and/or family members this is a very serious allegation. If the allegation is accepted there will be serious consequences for these children in relation to their relationship with their father.
It is open to me if I were to find the allegation true to order no time between the father and the children notwithstanding the fact that the mother seeks an order for long-term supervision. This is particularly so having regard to the well-established authorities as to long-term supervision orders.
The standard of proof in civil proceedings is set out in section 140 of the Evidence Act 1995 (Cth). Subsection (2) provides:
without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account
(a) the nature of the cause of action or defence;
(b) the nature of the subject matter of the proceeding;
(c) the gravity of the matters alleged.
As I said it is a very serious allegation that of threatening to kill the mother and family members and that allegation is made in the context of family court proceedings involving very young children.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
“the ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to approve. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found" statements to that effect should not, however, be understood as direct to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”
In those circumstances, I am of the view that there must be very strong evidence indeed to support the allegation. An assessment of the evidence in this case does not satisfy me that there is sufficiently strong evidence to find as a fact that the father has threatened to kill the mother and/or members of the mother's family. In those circumstances I do not make such a finding.
The Primary Considerations
The primary considerations are set out in section 60CC(2) of the Family Law Act. Pursuant to section 60CC(2A) in applying the consideration set out in subsection (2), I am to give greater weight to the consideration set out paragraph (2)(b), that is the need to protect the children.
The evidence establishes that the children have a close, loving and secure bond with their mother. In those circumstances, and adopting the “prospective approach”[10] I am satisfied that there is a benefit to the children in having a meaningful relationship with their mother.
[10] McCall v Clarke [2009] FamCAFC 115; Mazorski & Albright [2007] 37 FamLR 518
The family consultant is of the opinion that the father cares for his children and appears to have adequate parenting capacity. She is of the opinion that during the assessment the father presented as child focused and noted that whilst the children were more reserved when interacting with the father it was not concerning given their age, and the fact that they have had limited time with him since the parents separation.[11]
[11] paragraph 116 Family Report
In those circumstances and noting that the children, it is conceded, enjoy spending time with their father and have said that they miss their father I am satisfied that the children will benefit from having a meaningful relationship with their father.
I have made a finding that the father perpetrated family violence on the mother and more probably than not assaulted the maternal aunt. I must assess whether there is a need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no persuasive evidence before me that could satisfy me that the children are likely to be exposed to abuse, neglect or family violence in the future due to the father’s actions.
I am of the view that the failure to meet basic needs and provide financial autonomy and the one incident of physical assault that I have been taken to occurred in the context of a dysfunctional family where it was clear that the father no longer respected the mother and no longer felt that he was responsible for her.
I am satisfied that his actions were more intended to harm the mother then were directed to the children and in those circumstances, I am satisfied that he will appropriately care for the children should they be in his unsupervised care.
The family consultant was of the view that if the mother had created the allegations relating to threats to kill her falsely in order to serve her own needs then she held significant concerns for the children's well-being if they were to remain in her care.
I am not satisfied that the mother made up false allegations. I am satisfied that the mother holds a genuine belief that the father may harm her and/or members of her family and that she holds that belief as a result of her lived experiences towards the end of her relationship with the father and the fact that the father assaulted her sister.
As I said earlier I am not satisfied that the father is likely to harm the mother or members of the mother's family as there is insufficient evidence to support a finding of fact that the father made such a threat.
Additional considerations
The views of the children were not sought due to their young age.
As I said earlier the children have a loving, strong and secure attachment with their mother and a developing relationship with their father. I am satisfied that the children are sufficiently bonded with their father and that they do not need an extensive period of reintroduction with their father.
The mother has taken every possible opportunity to be fully involved in the children's lives. Due to the circumstances that have permeated this family since separation, the father has had limited opportunity to be fully involved in the children's lives.
I am satisfied that the father wanted to be fully involved in the children's lives but that due to initially an Apprehended Domestic Violence Order and subsequently an order requiring supervision his ability to be fully involved has been impaired.
If I were to make orders consistent with the father's proposal, I am concerned that it would be a major disruptive change for the children.
An equal time order is not in the best interests of the children in circumstances where the parents live approximately an hour apart and there is no effective co-parenting relationship in existence between the parents.
Furthermore, the children are of a young age and have not spent any overnight time with their father post separation. In those circumstances there will need to be a period of time where the children can spend extended periods of time slowly and gradually building to include overnight time at some stage in the future.
If I were to follow the mother's proposal, I would be making an order for the long-term supervision of the children's time of their father. As I have said previously, the authorities are clear and whilst there have been orders in those terms made by both this court and the Family Court I am not satisfied that this case is an appropriate case to make that order.
In my view supervision should be used for short periods of time until a decision that can be made as to whether children should spend unsupervised time or no time at all.
I am of the view that long-term supervision is an artificial environment and impacts upon the child's ability to form meaningful relationships with the parent being supervised and continues conflict between the parents where one person is anxious and the other feels aggrieved. Children should not be exposed to long-term conflict it is counterintuitive to their developmental needs in my view.
In those circumstances I am satisfied that if I make orders consistent with the mother's proposal this would have a disadvantageous effect for the children.
As I said previously, the parties live approximately one hour perhaps a little more than that, away from each other. Despite the father saying that he will move to Town A, in the 18 months it had been since he made that comment and the trial date he still had not moved to Town A.
Accordingly, as at the time of writing these reasons I have no evidence to satisfy me that the parties live in close proximity. There is therefore a practical difficulty and expense involved for the children spending time with their father. That practical difficulty and expense will not substantially affect their right to spend time with their father and to maintain a personal relationship with him on a regular basis.
I am satisfied from the evidence that the mother can meet the needs of the children.
Whilst I have some concerns about the father's insight into the children's needs in circumstances where he was effectively punishing the mother by not providing her with money and it had a flow on effect that the children were equally punished, I am persuaded by the evidence of the family consultant where she says that the father appears to have adequate parenting capacity.[12]
[12] paragraph 116 Family Report
Both parents are originally from (country omitted). Both are connected with their cultural background and in those circumstances I am satisfied that the children will also be connected with and exposed to their cultural background through their parents.
I am satisfied that the mother has at all times displayed a very positive attitude towards the children and towards her responsibilities as a parent.
In light of the evidence surrounding the father's decisions regarding the financial resources and his absence from the home when the second born child was quite young, he has displayed at times a poor attitude towards the children and to his responsibilities as a parent.
Notwithstanding those findings I am satisfied however that the father is a committed and child focused parent post separation. I am satisfied that he is concerned with the welfare of the children and that he will appropriately care for them when they are in his care.
The Apprehended Domestic Violence Order that was in place expired in 2016 and there was no evidence at trial that there had been any family violence post separation.
In those circumstances I am satisfied that it is unlikely that the children will be exposed to family violence in the future.
It is a relevant consideration that I make a determination in relation to the orders sought by the mother for the children to remain on the airport watch list.
I am persuaded by the evidence, indeed the father's own evidence that the father holds a strong desire to ultimately reside in (country omitted). He has a business there, a child there, a farm there and intends to travel to and from (country omitted) as often as possible.
The father did say he wants his children to have the best education possible in Australia, however in light of his strong connection to (country omitted), I am persuaded that should the relationship between the mother and father deteriorate further there is a potential for the father to abscond with the children in order to punish the mother.
He identifies himself as the leader of the family and as such that he can make important decisions. In those circumstances the airport watch list order is an order that is in the best interests of the children in my view.
Parental Responsibility
Having made a finding that the father perpetrated family violence towards the mother during the relationship the presumption contained within section 61DA does not apply.
Furthermore, the family consultant comments about the parental conflict and says in her view, it is a result of differing values between the parents;
“They hold highly different views and appropriate ways to negotiate and manage their finances both within the relationship and post the parental separation. Their views vary greatly on how to maintain a family home and how to divide the child care needs, and how to manage external relationships including extended family. They also have differing views on how to manage their work and social time. These highly different views on important inter relational topics appear to have been too great for the parents to negotiate and appears to be the source of the conflict both within the relationship and post their relationship.”[13]
[13] Paragraph 121 Family Report
The dynamic at play between the mother and father, potentially as a result of cultural reasons, means that the father will always be more dominant in his views and will expect the mother to comply with his decisions.
To place these two small children into that family dynamic would cause them to be exposed to great conflict throughout their life. I am concerned that there would be oftentimes where decisions on important matters for the children are delayed due to parental conflict. I am also concerned that an order for equal shared parental responsibility could lead to the institution of further proceedings between these parents.
It follows that I am of the view that an order for equal shared parental responsibility is not in the best interests of the children.
It is trite to say that I must make orders that are in the best interests of the children. In U v U (2002) FLC 93 – 112 the High Court provided clear guidance as to the approach to be adopted saying;
“The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of the child, and ordinary inter partes litigation. This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Payne J in [U v U].”
It follows that I am not bound by either party's proposal. On the one hand the mother's proposal is too restrictive and on the other hand the father's proposal moves forward far too quickly for these children's developmental needs. I have taken into account the children's very young age and the nature of their developing relationship with their father in making the orders I have made.
For these reasons I am of the view that the orders I have made are in the best interests of the children.
I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 5 October 2018
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Jurisdiction
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Injunction
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Remedies
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Duty of Care
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