Newsome and Newsome

[2018] FCCA 65

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWSOME & NEWSOME [2018] FCCA 65

Catchwords:
FAMILY LAW – Second contested hearing – four children – mother has failed to comply with Consent Orders – mother has orchestrated and acquiesced to regular undermining of the children’s time with the father – false allegations by the mother of abuse against all of the four children of the relationship – mother’s denigration of the father supported by those in the mother’s church – father referred to as a “(omitted)” once the father ceased attending the mother’s church – children to live with the father – restraints regarding the children attending church.

Legislation:

Family Law Act 1975, ss.60CC, 61D

Cases cited:

Mazorski & Albright [2007] FamCA 520

MRR v GR [2010] HCA 4
Rice & Asplund  (1979) FLC 90-725
P & L [2006] FamCA 947

Applicant: MR NEWSOME

Respondent: MS NEWSOME

File Number: BRC 10617 of 2012

Judgment of: Judge Willis

Hearing dates: 13, 14, 15 and 16 March 2017

Date of Last Submission: 16 March 2017

Delivered at: Cairns

Delivered on: 17 January 2018

REPRESENTATION

Counsel for the Applicant: Ms Pendergast

Solicitors for the Applicant: Munro Legal

Counsel for the Respondent: Mr Sorensen

Solicitors for the Respondent: Briese Lawyers

Counsel for the Independent Children's Lawyer: Mr McGregor

Solicitors for the Independent Children's Lawyer: Mr Kingston

ORDERS

It is ordered that:

1. All previous Orders are discharged.

Parental Responsibility

1. The Father have sole parental responsibility for making all decisions regarding the  long term care, welfare and development for W born (omitted) 2002, X born (omitted) 2006, Y born (omitted) 2007 and Z born (omitted) 2009 (“the children”).  This includes decisions regarding their education, health and religion, counselling and extra curricula activities. 

Residence

1. That the children live with the Father.

Time with the mother

1. That for eight weeks from the date of these Orders, the children spend no time and have no communication with the Mother (“the moratorium period”).

2. That thereafter, the children will spend time with the Mother at the following times, unless agreed otherwise in writing:-

   (a)During school terms:

   (i)Commencing from after school or 3:00 pm Thursday, 15 March 2018 until before school or 9:00 am Monday each alternate week (or in the event Monday is a public holiday or pupil free day, the time shall be extended to before school or 9:00 am Tuesday).

   (b)After the period in Order 4 herein has expired (the moratorium), the mother will spend time with the children during school holidays as follows:

   (i)The first half of the school holidays in odd numbered years and each alternate year thereafter;

   (ii)The second half of the school holidays in even numbered years and each alternate year thereafter;

   (iii)The holiday time will commence at 3:00 pm on either the last day of school or the day midway through the holidays and conclude at 3:00 pm on the day before school recommences or the day being the halfway point during the school holidays.

3. All other times the children will live with the father save and except for the special occasions referred to in Order 7 herein.

4. That the children shall spend time with the Mother and Father on special occasions as follows:-

   (a)With the Father from midday on 24 December to midday on 26 December in each even numbered year;

   (b)With the Mother from midday on 24 December to midday on 26 December in each odd numbered year;

   (c)On the birthday of each child, with the parent they are not living with or spending time with on the day:

   (i)If a school day, from after school until 7:00 pm;

   (ii)If a non-school day, from 1:00 pm until 7:00 pm;

5. On each of the parent’s birthdays, if the children are not with that parent, the other parent is to facilitate the children contacting the birthday parent telephone on that day.

Telephone time

1. After the expiration of clause 4 herein (the moratorium), the Father will do all acts and things to ensure that the children shall communicate by telephone with the Mother on two occasions each week at 6:30 pm. The Father will nominate the two days for this to occur.  The Father, on notice to the Mother, is permitted to change the days of the week or the time in the event that the children’s living arrangements clash with this time.

2. During periods when the children are spending time with the Mother pursuant to these Orders, the Mother will ensure that the children telephone the Father on two occasions at 6:30 pm. The Mother will nominate the two days for this to occur.  The Mother is permitted to vary those days or times on notice to the Father.

3. During the school holiday periods referred to in these Orders, each parent is to facilitate two telephone calls each week between the children and the other parent.

Handovers

1. Except as otherwise ordered, all of the handovers will occur to and from school on school days. On non-school days, handovers will occur to and from (omitted) Store on (omitted).

2. Each parent shall deliver and return the children’s clothing, school supplies and belongings in good order to the other parent at times provided for in these Orders.

Restraint

1. The Mother will do all acts and things necessary to ensure that:

   (a)the children are not brought into contact with Mr G and Ms J;

   (b)the children do not attend any events attended by or organised by members of the mother’s church or other churches in that organisation or network.  

2. The Father will do all acts and things to organise any counselling or therapeutic treatment for any of the children as part of the exercise of his sole parental responsibility.

3. The Mother will ensure that the children are taken to their extra curricula activities that occur during their time spent with her, as directed by the Father as part of the exercise of his sole parental responsibility.  

4. Each of the parties are restrained from:

   (a)denigrating the other party or the other party’s religious beliefs or lack of them in the presence or hearing of the children and each party will  remove the children from any person doing so; and

   (b)discussing the evidence in this litigation directly or indirectly with the children and each party will remove the children from the presence of any person doing so.

Other Orders

1. Each party will keep the other informed in writing of their current residential address, landline telephone number, mobile number and email address and notify any changes within 24 hours of the change.

2. Each party is at liberty to attend school events and extra curricula activities normally attended by parents, subject always to the discretion of the school or organising body and subject to the terms of these Orders including the moratorium in Order 4.

3. Each party is at liberty to receive information about the children’s educational progress and school reports, photographs and certificates obtained by the children at their own expense NOTING THAT the Father has sole parental responsibility for making decisions regarding the children’s education.

4. Each party will inform the other forthwith upon any child suffering a significant medical illness whilst the child is in their care NOTING THAT the Father has sole parental responsibility for making decisions regarding the children’s medical matters.

5. The Independent Children’s Lawyer in company with the Family Report Writer are DIRECTED to explain these Orders to the children today, prior to the children being handed over to the Father.

6. That a copy of these Orders is to be provided to each of the children’s schools by the Independent Children’s Lawyer. Further, the Independent Children’s Lawyer is to request each school to remove Mr G or Ms J from the children’s school records including as being an emergency contact.

7. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the fact sheet attached hereto and these particulars are included in these Orders. The Mother is to file and serve an affidavit within 7 days of today’s date confirming that she has read and understands her obligations therein.

8. The Independent Children’s Lawyer will be discharged upon 12 months expiration from the date of these Orders.

9. Any application for costs is to be made within 28 days of today’s date.

10. All outstanding applications are removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Newsome & Newsome is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10617 of 2012

MR NEWSOME

Applicant

And

MS NEWSOME

Respondent

REASONS FOR JUDGMENT

1. The parents in this matter have commenced their initial proceedings back on 23 November 2012, some five years ago. The hearing that I have heard over four days continues to be about the living arrangements of their four children.

2. In this application, the father, Mr Newsome (“the father”) is the Applicant and Ms Newsome (“the mother”) is the Respondent. These parties had a relationship which commenced back in 1997. They married on (omitted) 2005. In 2007, the father left the (omitted) Church in (omitted) (“the church”), a religious order which assumes some significance in the context of this family law dispute.

3. The mother’s affidavit material says that Mr Newsome and I permanently separated on 29 January 2010. We are not yet divorced.[1]  Her police statement attached to her trial affidavit states we separated on 26 January 2011. The father says the parties separated on 6 January 2012. Nothing turns on this difference in the separation date. 

   [1] Mother’s affidavit filed 17 February 2017, paragraph 6. 

4. The parties have four children of the relationship: W (“W”) born on (omitted) 2002. W has just turned 15 years old. X, born (omitted) 2006 (“X”). X is now almost 11 years old. Y (“Y”), born (omitted) 2007, is soon to be 10 years old[2] and their youngest child, Z (“Z”), born (omitted) 2009. Z is currently seven and a half years old (“the children”).

   [2] Aged nine years and nine months at the time of trial.

5. The parties have been in litigation since the mother initially commenced proceedings back on 23 November 2012. At that stage, during the years 2013 and 2014, two Family Reports were prepared by the Family Report Writer, Ms D. 

6. The matter was listed for a final trial and during the course of the trial, the matter was stood down and resolved by Consent Orders made by Judge Lapthorn on 19 November 2014 (‘the Consent Orders”). Those Consent Orders are the Orders that the parties are operating from at the time of this trial.

7. Since the Consent Orders were made it is fair to say that, despite the mother agreeing that the children would be spending time with the father at times set out in the Consent Orders, namely Thursday to Tuesday each alternate week and half the holidays which was agreed to by the mother, largely that time has experienced much disruption and much time has been missed by the children with their father.

8. After the Consent Orders were made on 19 November 2014, problems started almost straight away. In January 2015 W, Y and Z ran away from the Father’s home. When the Consent Order was entered into, W was aged 12 years and 9 months. By February 2015, the mother had stated that W no longer wished to see the father. The mother says that was because W was subjected to the father choking her in January 2015[3].  The mother says also that W had witnessed similar violence perpetrated by the father upon the mother when the mother was pregnant with Y in 2007.  Thereafter, W was not delivered up for contact with the father with her other three siblings and the mother has left the decision as to whether to attend or not, to W.

   [3] More will be said about this elsewhere in this decision.

9. In late January 2015 early February 2015, when the mother stated W no longer wished to spend time with the father, W was turning 13 years old on (omitted) 2015, X was eight years old, Y was seven years old, and Z was five years old.

10. The mother filed a protection order application in February 2015. That Domestic Violence Order was subsequently withdrawn. 

11. At the time of this trial, the mother is aged 35 and the father is aged 39. The mother says, since the Consent Orders were made, that the children have made numerous allegations concerning physical and psychological abuse by the father. The mother says these incidents have been reported to the Department of Communities, Child Safety and Disability Services (DOCS) or to the staff at the (omitted) State School, where the children attend (W attends High School at (omitted) High School.) The mother says that:

    These incidents have caused me to have very significant concerns for the safety and wellbeing of the children while they are in Mr Newsome’s care. 

12. The mother seeks Orders that the current orders be discharged and that new Orders be issued giving her sole parental responsibility. The mother also asks the Court to significantly reduce the time that the father spends with the children in order to ensure their safety and physical and psychological wellbeing. It is the mother’s position that all of the children have been physically assaulted on separate occasions by the father. She also is strongly of the belief that the children have been exposed to harm by the father drinking excessive amounts of alcohol, taking illicit drugs and associating with unsavoury people while the children have been in his care. The mother sets out at paragraph 13(a) through to 13(p) of her material a chronology of significant events involving the father harming the children.

13. The father denies the allegations and contends that the mother’s influence over the children has caused the difficulties that he has encountered in spending time with the children, particularly with W, X and Y. The father is of the view that the mother is strongly under the influence of the church, which she has been in for many years.  The church was originally part of the (omitted) Church.  Mr G who attended at the (omitted) Church moved from (omitted) and established (business omitted). 

14. The mother and father were both part of this church whilst they were married and together attended for around three or four years, however, the father left the church around 2007. The mother and children remained in the church. The mother’s involvement in the church and the influence of the church and Mr G and his wife, on the father’s relationship with the children and their relationship with him is central to the issues ventilated in this matter.

15. Other matters that have been ventilated include the mother’s litany of allegations against the father, which includes allegations of him strangling a child, beating a child over the head repeatedly with a Nerf gun, attempting to choke a child, and engaging in acts which would amount to sexual abuse against a child.

16. It is the father’s position that, unless the Court makes orders both restricting the children’s involvement in the church and providing for the children to be primarily under his influence that, in the fullness of time, his relationship with the children will wither away and ultimately diminish entirely. 

17. The mother has taken the polar opposite position to the father and asks the Court to reduce the children’s time with the father, so that they have even less time with their father than provided for in the Consent Orders. The Consent Orders that the mother agreed to in November 2014, provide for the children to live primarily with the mother and spend time with the father from after school Thursday to before Sunday school on Sunday morning in the first week of each fortnight, and from after school Thursday to 9:00 am Saturday in the other week, and half of the school holidays. It is now the mother’s position that the father’s time should be reduced to each alternate Saturday for day time only between 9:00 am and 5:00 pm, no holiday time, and special days between 9:00 am and 5:00 pm on Father’s Day, Christmas Day and Boxing Day in each odd-numbered years.  The remainder of the time, the children are to live with the mother.

18. In the lead-up to this trial and when the matter was in the docket of Judge Lapthorn, the mother requested that the father undergo hair follicle testing, in furtherance of her strong belief that the father continues to take drugs.  It is agreed that historically both the mother and father engaged in drug use when they were together. The mother says she has reformed and no longer consumes drugs, but she strongly believes that the father continues to consume illicit substances and does not accept his evidence that he also no longer consumes drugs.

19. The mother therefore decided to pay for a hair follicle test in endeavour to have some evidence that the father, despite his assertions to the contrary, is, in fact, continuing to use illicit substances. The father accepts that the mother no longer uses drugs.

20. At the commencement of the trial, Mr Sorensen of Counsel, for the mother, indicated that the results of that testing were not yet available and that the results were being awaited to come in from the (country omitted). The father’s material deposes to the difficulties he had in actually undergoing the testing.  By the conclusion of the trial on day 4, the tests were not available.

21. The results were not available at the end of the trial. I therefore suggested to Counsel that, rather than waste the balance of the afternoon in not doing final submissions and then needing to find a further date in the calendar and with all of the Counsel having to rework the brief, get more funding and have the expense of coming back on another day, simply because the mother’s requested hair follicle test was not available, that submissions should be made and that the Counsel should assume that the father’s evidence that he has not taken drugs for years is correct.

22. However, the matter would be adjourned then, part heard, and that if the drug test came back indicating that the father was consuming drugs that the evidence would be reopened for further questioning on that issue, and further submissions could be made at that time. All Counsel have agreed to this course.

23. At the end of the trial in submissions, and for the first time, Mr Sorensen of Counsel for the mother made submissions on behalf of the mother to the effect that if the drug test came back showing drug use, the mother’s orders, as sought in her outline, stood. In the event that the drug test showed no drug use, the mother sought orders that were to remain completely in line with the current Consent Orders, which is, as I have said, significant and substantial time with the father each weekend and half the holidays and special days.

24. The results of the hair follicle tests were provided by the solicitors for the mother to the Court in March 2017 and they were, as I indicated at the trial they would be, marked as Exhibit “M3”. The hair follicle test indicates negative for all drugs tested and support the father’s evidence that he has not engaged in drug use.

Orders Sought

1. Each of the parties have read their material into the record, as indicated in their case outlines, and any additions during the trial. At the outset, I indicated to the mother that, given what appeared to be, in the two previous Family Reports and her own material and the father’s material, the significant involvement in this family circle of Mr G, that I would wish Mr G to appear and give evidence.

2. Prior to that request, the mother had no evidence from Mr G (contrary to the first trial, in which he filed an affidavit and gave evidence). The mother had organised for his wife Ms J, otherwise known as Ms J, to give evidence, but not the pastor. Fortunately, arrangements were able to be made, with the pastor’s full cooperation, for him to appear in person at the trial. I have found his evidence very useful in understanding the broader picture of the children’s involvement in the Church and with Mr G and his wife. His statement is marked as an exhibit.[4]

   [4] M2

1. I have referred to the orders that are sought by the mother, as set out in the case outline, which is effectively 9:00 am to 5:00 pm each alternate Saturday, 9:00 am to 5:00 pm Father’s Day, 9:00 am Christmas Day and Boxing Day and no other time.  As I have also indicated, by the end of the trial, for the first time, the mother through her Counsel indicated that if the hair follicle testing was positive to the consumption of drugs, she maintained her position adopted throughout the trial.  If however, the hair follicle testing returned a negative result to any drugs, that the mother then sought orders in line with the current Consent Orders.

2. When the mother seeks orders about the children spending time with the father, this only relates to the three younger children: X, Y and Z. In relation to W, the mother seeks orders that W live with and spend time and communicate with her parents as she expresses the wish to do so and that the mother will encourage W to spend time and communicate with the father: in other words, leaving it up to W.

3. The mother sought orders about the parents using their best endeavours to ensure the children attend any agreed extracurricular activities during the time the children are spending with them. The mother sought an order for sole parental responsibility in her Orders sought. Whereas at the end of the trial, the Orders sought were explained by Counsel as being either the formal order sought if the Father tested positive for drugs or else, the future orders remain as per current orders.  As I have already said, however, the mother’s case was conducted on the basis that the children have been subjected to harm as set out in the mother’s trial affidavit of 17 December 2017. The alternative position was raised only in submissions.

4. Other orders were sought about keeping the other informed of residential address and contact, names of medical treating health practitioners, advice as to medical emergencies and authorisations about receiving information from school. The mother also sought an order that the father be restrained from permitting Mr M being present at his residence when his children spend time with him.

5. The father was represented by Ms Pendergast of Counsel. The orders sought by the father are set out in his case outline however there were amendments to that by the conclusion of the trial but only of a minor nature regarding the phasing in of the mother’s time after a moratorium.  Essentially, the father seeks an order for sole parental responsibility and that all four children (that is to include W) live with him. 

6. As to the children’s time with the mother, the father proposes that moratorium of ten weeks occur during which time the children spend no time with the mother.  He originally proposed three months but at the end of the trial appeared to be content to adopt the submission of the Independent Children’s Lawyers based on the single expert evidence of the Family Report Writer, for a period of 8 to 10 weeks.

7. After the moratorium, the position of the father was initially that there be a two-step period for the children spending time with the mother.  First the children were to spend 9:00 am to 5:00 pm each alternate Saturday for a period of a further three months with the mother.  At the conclusion of this period, the father proposed that the children then move to spending time with the mother from after school or 3:00 pm on Thursday until before school or 9:00 am on Monday each alternate week (if Monday is a public holiday the time extends to before school Tuesday).  By the end of the trial the father’s position appeared to be that he did not strongly press the initial period of Saturdays with the mother and that as a fall-back position he would be content with the Independent Children’s Lawyer’s position of the children resuming time with the mother after the moratorium from Thursday until commencement of school on Monday each alternate week.  

8. Only after the moratorium and the re-introduction periods have been completed, does the father then propose that the children spend half the holidays with the mother and special days such as Mother’s Day.  It is proposed the children spend half of the school holidays in Easter, June/July and August/September. For the December/January holidays, the father seeks an order that the children would spend time with the mother each year from the break-up of school until 20 December.

9. The children would then spend time with the father from 20 December to 9 January, and then the children will spend time with the mother from 9 January until two days prior to the commencement of the school year (those two days not to be public holidays).  This is to allow uniforms to be purchased for the start of the school year. In all of the orders, the father seeks orders that W be included and that all four children live with him.

10. There are various other non-denigration, collection and delivery orders sought by the father.

11. In relation to telephone time, by the end of the trial the parties have agreed that the appropriate time, wherever the children are living, for telephone calls to the other parent is 6.30 pm and that it should start at 6.30 pm and occur on Monday and Friday (the mother sought orders for every other day). The father says when the children are with him, the phone calls are to include W. The father seeks restraints in relation to the children’s attendance at the church, namely that the mother will not take the children to any events organised by the church unless the mother has the father’s prior written agreement. 

12. The Independent Children's Lawyer, Mr Kingston represented by Mr McGregor of Counsel, submitted at the conclusion of the trial[5], that the Independent Children’s Lawyer supported the substantive Orders sought by the father. There were some slight variations as to the length of a moratorium and whether or not it was necessary to have a stepped arrangement as set out in order 9 of the father’s draft orders once the children recommence time with the mother. The Independent Children’s Lawyer believed that it was not necessary to start with a smaller amount of time from 9:00 am Saturday to 5:00 pm Saturday for three months before moving to 3:00 pm Thursday until 9:00 am Monday. However, save and except for these minor issues, overall the Independent Children’s Lawyer completely supports the father’s position including restraints about the mother not taking the children to the mother’s church  and church activities and the children  not coming into contact with members of the assembly of the church, including Mr G and Ms J.

    [5] The Independent Children’s Lawyer having reserved his position at the commencement of the trial.

13. In relation to orders sought for travel and counselling, the Independent Children’s Lawyer, having heard the evidence of the Family Report Writer, does not support the father’s proposed order 22 regarding counselling.  The father also no longer seeks orders in relation to counselling as directed by the Independent Children’s Lawyer. Nor  does the Independent Children’s Lawyer or the father support orders that every time a parent takes the child interstate that there has to be notice and itineraries and air tickets provided and so forth. That is a practical issue, as in (omitted) or Brisbane one only needs to travel to (omitted) and cross into New South Wales, which can be done in a day trip, to have contravened an order that notice needs to be given to travel interstate. These orders are not necessary and there is no evidence to support them.  Orders were also sought about the process for resolving future disputes about the operation of the orders.

14. At the conclusion of this matter, I made orders that the parties were not to discuss the litigation or any evidence given orally or otherwise given in the Courtroom or the evidence contained in any document with the children, nor permit the children to be in the presence of any person doing so. I have also restrained the mother from leaving the children in the sole care of either Mr G or Ms J.  I have made this Order on the basis that, for reasons I explained and which will be referred to more fully in this judgment, I am very concerned about the messages, either expressly or by inference, being given to the children about the father. 

15. A further Family Report was filed in this matter on 12 December 2016, the Family Report Writer in the third report being Ms B of (omitted). Effectively, then, there are three Family Reports; two by Ms D and the third by Ms B. The two earlier Family Reports, prepared for the first trial, have been relied upon in this trial, though no party requested to question Ms D. Ms B made herself available in person on the third day of the trial, though she was regretfully not reached and gave her evidence and cross-examination on the fourth day of the trial by phone from (omitted).  I have found her evidence very helpful. 

16. What is abundantly clear from the outset is that the litigation in this matter needs to resolve and that the parties, and particularly the mother, needs to appreciate that these orders are final orders and if they are not complied with, then the parent not complying will be subject to contraventions. There has been significant evidence given over a four day period. An Independent Children's Lawyer has been appointed again. Significant resources have been spent from the public purse and the Court’s resources to determine the living arrangements of these children on a final basis. Any further parenting application will need to cross the legal threshold for re-litigating parenting orders as set out in Rice v Asplund which will be determined by a judicial officer.

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).”  The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.

2. When I determine the best interests of the children, I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for the children’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.

3. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

4. This matter involves inquiry as to the religious beliefs of the mother.  The sole purpose for this inquiry is to determine whether there are issues to do with the mother’s religion that impact on the best interests of the children.

5. I have had regard to the case law on this topic including P & L [2006] FamCA 947 which stated at paragraph 127;

   “127. The effect of a parent’s religious beliefs on the upbringing of his or her child has been raised in many parenting proceedings, and discussions are found in reported decisions in Australia and in overseas jurisdictions, in particular, those of the courts of the United Kingdom. The principles emerging from the cases are conveniently summarised by Dickey in Family Law (Sydney: LawBook Co, 4^th ed, 2002) at 419 as follows:

‘In cases concerning parental responsibility, the courts have long refused to prefer one religion to another or even, in more recent times, to prefer a religious upbringing for a child to a non religious upbringing. What may weigh heavily in the mind of a judge in a case involving a party who is a member of a non conventional religion, however, is the effect on the welfare of a child of the practices of this religion.’

128. Cases determined after the introduction of the Family Law Reform Act 1995 (Cth) (‘the Reform Act’) are usefully reviewed in the decision of Federal Magistrate Ryan (as she then was) in In the Marriage of H (2003) 198 ALR 383. Those cases disclose no fundamental difference in approach by the Court on the issue after the Reform Act.

129. In H and H [1998] FamCA 7, the Full Court was dealing with an appeal against orders by a trial judge who had discharged all orders for contact between the father and the children. The parents had each been members of the religion known as ‘the Brethren’.  The parties had separated when the father ceased adhering to the religious beliefs of the Brethren. The wife and children remained members of the Brethren. It was submitted on appeal in dealing with what was then an access application, a trial judge ‘“is entitled to look at the religious practices of one of the parties, which are put in issue by the other party as being detrimental to the welfare of the children, and in so doing (the judge) is entitled to take into account these practices as relevant factors together with all other relevant factors in the case in coming to a conclusion regarding the future access (to) a child”’. The Full Court noted it was further submitted that the trial judge was obliged to ‘consider matters and evaluate the views and practices promulgated by the Brethren religion, “not in an endeavour to evaluate whether the views of the wife were less preferable to that of the husband, but so as to determine the effect of these views and practices on the welfare of the children”’. In support of the submission reliance was placed on K v K  (1979) FLC 90-680 at 78,634, Morrison and Morrison; Separate Representative (1995) FLC 92-639, Mauger and Mauger (1966) 10 FLR 285; Plows and Plows (1979) FLC 90-607 and Grimshaw and Grimshaw (1981) FLC 91-090.

130. The Full Court referred to the earlier decision in Firth and Firth; Boyer and Boyer (Interveners) (1988) FLC 91-971 at 77,025 where the Court said:

‘With this general proposition that it is not for a Court to prefer one religion to another we do not disagree. However, in determining questions of custody and access, depending upon, as they do, a determination of what is in the best interests of the child, or, what future proposals put forward by the parties to a suit will best promote the welfare of the child, it is permissible for a Court to examine the tenets and practices of a particular faith for the purpose of deciding these questions. It is in our view a proper exercise of the discretion vested in a judge hearing a custody case to take these factors into account and weigh them in the balance together with all relevant factors in the case. If, when following this approach a court decides that it is detrimental to the welfare of the children for them to be brought up adhering to such practices, this does not constitute a breach of sec. 116 of the Constitution, thereby rendering the orders made in consequence invalid.

The courts have for many years been faced with this question. 

…

The Family Court has had cause to consider the question in a number of cases.  See Paisio and Paisio (1979) FLC ¶90-659; Plows and Plows (1979) FLC ¶90-712; Grimshaw and Grimshaw (1981) FLC ¶91-090.  It is clear from these cases that a trial judge in the course of assessing the competing claims for the custody of the child, is entitled to look at the religious practices of one of the parties, which are put in issue by the other party as being detrimental to the welfare of the children, and in doing so, he is entitled to take into account these practices as relevant factors together with all the other relevant factors in the case in coming to a conclusion regarding the future custody of a child.’

131. The Full Court went on to note:

‘However what is more important to note is that the Full Court held that a trial Judge is entitled to look at religious practices of one party “which are put in issue by the other party”.  The Full Court did not say that the trial Judge must look at such practices and that the Judge must do so even where such practices are not put in issue by the other party.’ (original emphasis).

The Witnesses

The Father

1. The father gave evidence and was cross-examined. All of the allegations raised against him were tested and challenged thoroughly both by Mr Sorenson, Counsel for the mother and Mr McGregor, Counsel for the Independent Children’s Lawyer.    

2. One of the significant allegations by the mother was that X reported to her that the father had assaulted X by deliberately banging her head against an outside pole in the yard of the father’s home. In summary, this was alleged to have occurred during a struggle when he was carrying X from the backyard into the house after she had been behaving badly.  The mother says in her Police Statement that she did not report the incident to any authorities such as the police but she did tell her close friend and mother figure, Ms J of the incident[6].  The mother says she was contacted about the incident by the Police. The mother believes this was as a result of X telling her teacher what had happened and the school reporting it to the Child Protection Investigation Unit.[7] The father was charged with common assault. This incident also acted as the trigger for the mother to withhold all of the children spending time with the father for around 3 months from 25 August 2015 to 19 November 2015 despite his bail conditions being varied to provide for the other children and the continuation of the Consent Orders.  No application was made to this Court to suspend the father’s time with all of the children. Despite much correspondence from the father’s lawyers, the mother steadfastly refused to allow any time to occur between the children and the father for around 3 months.

   [6] N6 of the Mother’s trial affidavit filed 17 February 2017.

   [7] Paragraph 14 of the Mother’s trial affidavit filed 17 February 2017.

3. The father was found not guilty of the common assault charge which related solely to the contact that X’s head may have had with an outside pole. Had there been evidence to support a charge of strangulation I am satisfied that it would have been included in the charge.  It was not.

4. I will now turn to look closely at the circumstances of this incident involving the father and X which occurred in July 2015.

The Nerf Gun Incident – July 2015

1. This incident occurred during the context of the father using a nerf gun to play a game with the boys and X. The father described the circumstances broadly in the following terms.  He said that it is mainly he and the boys using the nerf guns and that they put up obstacles around the house and he chases them around, shooting the nerf gun, which for the record shoots out foam pellets. The father said for added fun, they wear safety protective glasses from work. On the day in question, the boys and also X were playing. X didn’t get into the game at first, and then did get into it. Y and X started arguing with each other, one got in the way of the other, X wanted a gun and Y wanted the same one. Y and X were arguing. X threw a tantrum, and started crying and wanted to hit out over not getting her share of the nerf gun. X became cranky throwing things, because Y had been getting in her way. She started demanding the gun. The father told X she was just upset because she had been “caught” in the game. X started kicking and fighting with Y so she was sent to her room for a while.  The father said she was happy in there as she has her iPad in her room. The father and boys continued playing.

1. X came out of her room. She continued to argue and was in a foul mood and did not want to share the gun.  X ran outside to the back yard.  At a point, the father physically picked her up and told her she could go back and stay in her room.  When the father picked her up outside and was walking back to the house, he explained that he walked in a straight line between the pole (which has an antenna on the top of it) and the house. The father’s evidence was that, whilst carrying X, to his knowledge, X’s head did not hit the pole.

2. The Police records show that they received a faxed notification advising that the victim and the suspect reside together. On page 11 of the Police records the mother is shown as a witness.  The narrative is shown as

   The suspect has picked up a Nerf gun firing at the victim causing her to escape into her bedroom.  On hearing knocking on the door, the victim opened the door and saw the suspect with the Nerf gun and started shooting her again.  It is unknown at this stage if it was in play or not, however the victim has left the house trying to open the locked gate when the suspect has grabbed her lifted her up and squashed her into a ball.  Victim struggled to escape from his arms, when the suspect has banged her head into a pole.  Suspect then took victim to her room, threw her on the bed and then grabbed her by the neck strangling her.  Suspect then left the room. Nil injuries No treatment sought or received.

3. The police records indicate an interview with X on 25 August 2015[8] regarding the assault on X on 12 July 2015. As can be seen in that interview, X complained that her father teased her about having red hair and freckles. She complained that the father was often drunk and worse than when he was sober. The Police record in relation to the alleged assault, that X said that when her father grabbed her and when she was in a ball being carried by him, she hit her head against a pole. X said of the father: He has then taken her to a room and thrown her on the bed.  The records note  “it is unknown if the hit was deliberate of [sic] accidental”.

   [8] ICL 1, subpoena book page 13. 

4. The police officer then contacted the mother and an appointment was made for her to speak with Police.  The record shows: mother provided background information re the relationship between the children and the father (suspect). It’s apparent there are several delicate and complex issues and the victim is being forced under the guise of FLC orders to maintain unwanted contact with her father. Oldest daughter refuses to have contact.  Plan developed to deal with father without impact on children.  Offered and accepted Support link.

5. The mother’s police statement[9] provides her description of what she says X told her of the incident.  The mother describes collecting the children on Monday afternoon after school on 6 July 2015, her description of what was a Nerf Gun game in which her brothers and father were all shooting the Nerf Guns.  The mother says that X told her that X and her father were sitting on the couch watching television when X asked her father to “get something” for her in the next ad. X complained that the father did not get her the thing that she wanted and when she asked again, according to the mother’s statement X replied “no and when I asked again, he would shoot me with the Nerf Gun.” The mother said “I don’t recall how I responded to that but then X started crying”.

   [9] N6 of the Mother’s trial affidavit filed 17 February 2017.

6. Then X has, according to the mother’s statement, made complaints that the father teased her over the weekend about the church and her friends at church and he called X “a red-headed little bastard”. The mother then recalls that X said “I grabbed my shoes and ran out the door to run away. Dad caught me and held me down and was shooting me with the Nerf Gun. Then he picked me up like a ball and hit my head up against the pole, doorway and wall on the way to my bedroom laughing at me.”

7. The mother’s police statement continues that she asked Y what he saw and the mother records that Y said “I saw some of it. I saw dad shooting her when they were on the couch but I went outside and kicked the ball. Then I saw dad holding her down and shooting her in the head with the Nerf Gun and pick her up and hit her head against pole and doorway.”  The mother’s police statement continues that the X told her that the father took her into the bedroom and held her in a bear hug on his chest and that X was screaming to try and get free but the father won’t let her go until she stopped moving.

8. The mother’s police statement then records that X said that Z came to the door of her bedroom eating Tim Tams and that X asked the father for one and he again called her a “red-headed bastard”. X is then alleged to have said that the father came to the door making some sort of symbol. The mother said “I demonstrated a (omitted) symbol by touching my head, chest and both shoulders” and X agreed that this was the sign that the father made. The mother said that X then told her that the father did not give her a Tim Tam but was eating one himself and laughing at X.

9. The mother also said in her Police statement that W then came out and saw X crying. The mother said that she did not report this to anyone “but I do recall talking to Ms J who is like my mother to me.”  The mother says she then received a call from the police to ask her to come to the station. The mother took Y to the police station on 2 September and the mother’s statement was made on 15 October.

10. From the time that the father was charged, it is common ground that, because of the mother’s belief as to the extent of the bail conditions, she did not permit any of the children to spend time with the father from September to November. The mother continuously made threats to the father that if he had anyone else assist him to see the children that would amount to indirect contact and the father would be in breach of the bail conditions.  The mother adopted a strong stance that the father was to have no time with the children, despite the bail conditions being varied to allow the children (not X) to see the father on the father’s days and despite the conditions being formally varied to allow the children (not X) to see the father, the mother would not agree to any time at all between September 2015 and November 2015. The mother appeared to be assisted in her stance by an overly zealous police officer who was, according to the father’s evidence, making threats of his own as to what would happen to the father if he attempted to see the children.

11. The charges proceeded to a two day contested hearing in the Magistrates Court in (omitted). At the conclusion of the trial, the charges were dismissed. It is extremely regrettable that young X then aged 9, and Y then aged 8, were forced to be witnesses in a criminal prosecution against their father and to give evidence against their father.  This was distressing for the children as observed by the Magistrate. The mother gave evidence against the father as seen in the Police statement prepared by the mother recounting what X told her of the incident. Notably there is no mention by the mother of X saying she had been strangled by the father.[10]

    [10] N6 of the mother’s trial affidavit filed 17 February 2017

12. The judgment of the learned Magistrate, (omitted), is annexed to the father’s material.[11]

    [11] N 17 – affidavit 17 February 2017.

13. (omitted) noted in his judgment:-

    The first record of interview does not contain any other reference to the mechanism of the alleged assault. The above passage contains no incriminating allegation against Mr K, yet he was charged with the subject offence on the (omitted) 2015.  At that time there appeared to be no wrongdoing on his part, yet he was charged.

14. (omitted) notes after the second interview, and after the father did not call or give evidence, that he would find that the back of X’s head came into contact with a steel pole.  His Honour noted the context of this complaint, that that had been contested child contact proceedings in the Federal Circuit Court which settled before the trial. 

    Ms A said she was unhappy with some aspects of the contact arrangements. It would appear that there is significant discord within the family, particularly between Mr K and X and W.  W does not have contact with her father. X has contact under sufferance. Whereas she used to have a good relationship with her father, this has deteriorated over the last couple of years.  She says she does not like her father, she says she hates him.  

15. His Honour then refers to a passage in the first record of interview where X says I used to be his favourite, and that was very hard on W. X explains that W (W) had a lot of time to have and being loved and cared for and being spoilt and that and like now… he just mean to her and being real nasty to her. X says that because she helped “W” that the father got angry at her and then he didn’t like me anymore, and now because he used to buy me anything I want, and he used to be very nice to, but yeah, and now, he’s made me hate him.

16. (omitted) noted that even though the father sat behind a screen whilst giving evidence, X became very upset on two occasions and the court adjourned whilst she was able to compose herself. 

    Both X and Y are quite young.  They are caught in the middle of a highly conflicted family relationship and it must’ve been a very upsetting experience for them to give evidence in these proceedings against their father. There is however, significant conflict in the versions of the incident given by the children.  

17. The various versions were canvassed in meticulous detail.  Each had quite different versions when giving evidence of the circumstances and particulars. In particular on page 8, when examining the versions given by X, His Honour noted that the evidence given before the lunch break and after the lunch break were quite different. After the lunch break X informed the Court she had been confused earlier when she said that her father swung her around and her head hit the pole.  X was given a chance in re-examination to demonstrate with a toy bear, how the incident occurred. The judgment notes whilst this demonstration (there were two) evidence is consistent with her evidence under cross examination, it is not consistent with the demonstration given of the record of interview in which she takes an obvious step to the right, describing her father’s movement as she hit her head.  Other inconsistencies were noted. 

18. On page 9, His Honour said:

    There is not medical evidence detailing the nature and extent of any injuries suffered by X.  I am satisfied that the back of X’s [head] came into contact with the pole and she did not suffer any identifiable injury. There was obvious conflict or inconsistency in the versions given by X in the record of interview under cross examination. Furthermore, she admitted under cross-examination that she could not have seen how or where her father stepped. (This contradicted her earlier statement that the father had deliberately headed for the pole and she did not believe the incident was an accident). She also said she didn’t like being picked up by her father and was struggling and kicking. 

    At the end of the day, it is not clear as to how this incident occurred. The court should not be asked to determine which version of the prosecution evidence is acceptable. The prosecution must negate the defence of accident beyond a reasonable doubt.

19. All of the circumstances surrounding this incident were thoroughly canvassed again at this trial during cross examination by Mr McGregor of Counsel for the Independent Children’s Lawyer and also Mr Sorensen of Counsel for the mother. As to the reference in the learned Magistrate’s reasons about the evidence from X changing from before lunch to something different after lunch: the mother admitted under cross examination that she had taken X to the Magistrates Court and that X had been in her sole control for months prior to the trial and that she had taken care of X in the luncheon break during the criminal trial.

20. Having heard the father’s full explanation surrounding the events that day, I found his evidence to be entirely plausible. The father gave his evidence in a considered fashion. He was thoughtful. He was prepared to make admissions against his own interests such as admitting that he had in his earlier life taken drugs. He also admitted that he had on an occasion at a party in the presence of the other partygoers engaged in what would be described as a prank which some would see as distasteful and it involved him. No harm was caused and it involved friends who were all adults. The father’s friend was asleep on a couch and the father posed for a photograph revealing his buttock close to the sleeping friend.  This occurred in the presence of other party goers.  The father admits that W was at the party and would have seen the event.

21. Specifically in relation to the father’s version of events as to the alleged deliberate assault of X, I am satisfied that he did nothing deliberate to harm X in any way. I was not persuaded that X’s head ever hit the pole. X told Police in her interviews that she did not do anything when she hit her head, such as calling out or telling the father her head was hurting. In later evidence she started adding that she thinks she said “ouch”.

22. Significantly, there was no evidence of X being strangled or choked by the father as per the allegations of the mother in her current affidavit. One version of X’s included that the father threw her on the bed, and then “he jumped on to the bed”. There were no injuries to X. 

23. The incident in my view has been exaggerated and treated as a criminal matter when if her head was hit whilst passing the pole, it was a benign accidental event. There was no complaint at the time by the child and no injury. The event, in my view, was used by the mother as a reason for the children to spend no time with the father for months between the charges and the trial, September to November. 

24. The mother pursuing this prosecution saw the children upset, distressed and giving evidence literally against their father. I accept that the father has a basis for believing that the mother is undermining his role as father of the children and undermining his relationship with the children. The mother’s overall conduct in relation to this issue is deeply disturbing in terms of her attitude towards the father.  The mother fails to show any understanding or insight into the damage and distress caused to the children, the father and their relationship through this unnecessary criminal investigation, suspension of time with the father and criminal trial.    

25. Apart from inconsistencies in the evidence given by the children at the trial as observed by the learned Magistrate, it can be seen in the mother’s police statement that she swore she was told by X that the incident with the banging of the head happened inside the father’s home whilst he carried her to the bedroom.  

26. In the learned Magistrate’s decision, His Honour makes reference to the charges, saying of the father that as he was carrying X back to the house “her head came into contact with a steel pole. It is that contact that constitutes the alleged assault.”

27. In the mother’s own police statement in which she reports how she came to know of the alleged incident, namely, through her discussion with X just after the mother picked up X from the father’s and whilst driving home.  Significantly, the mother makes no reference to X saying that she had been choked or strangled by the father after he threw her on the bed.  The mother says she did not report the incident to anybody, except she did tell Ms J about the incident.   The complaint made by X included that the father had thrown the child on the bed and then grabbed her by the neck strangling her as seen in the police records.[12]

    [12] ICL 1, pages 11 and 12.

28. The children’s evidence at the trial was that it all happened outside. The pole concerned is an electricity pole situated outside the home.   Moreover, a reading of the Magistrate’s judgment reveals that there was no mention, or evidence of either child or any suggestion that the assault referred to was anything other than X’s head coming into contact with an outside pole. The pole is described as having a television antenna affixed to the top of the pole.  The father was found not guilty.  

29. Despite this ordeal for the children and father, the mother nonetheless has, in her affidavit of 17 February 2017 filed in these Family Law proceedings, included that “In July 2015, X told me that Mr Newsome had hit her head against a pole and had held her down in a choke hold.” The mother adds at the end of the paragraph “the charges were dismissed as it could not be proved beyond reasonable doubt that the assault was not accidental.”  The reader is left to conclude that the father was charged with hitting the child’s head and holding her down in a choke hold.  This is completely untruthful.  Further, this is not what the mother said X told her as set out in the mother’s police statement.

30. I also note that on 25 August 2015, X was personally interviewed by a detective about the Nerf Gun incident and it concludes with X saying that the father had taken her to her room and thrown her on to her bed. [13]   

    [13] ICL 1, page 13.

31. It is not difficult to conclude that the incident has not only been distorted but that the mother is being disingenuous in continuing to allege in this Court that the father has strangled X as set out in her trial affidavit. This is even after the intense scrutiny that this whole incident received in the criminal justice system. 

32. The mother has not made any reference in her own Police Statement of being told anything about X saying she was strangled.[14] The mother’s Police statement gives no indication of X being injured. The Police records reveal that there was no injury. The mother instead gives an account of X being upset that she was not offered a Tim Tam biscuit after being thrown on the bed.

    [14] The mother has suggested that on another occasion, this has happened to W. 

33. The evidence suggests that the children were enjoying the Nerf Gun war with their father, save and except that X was not prepared to share, demonstrating unacceptable self-centred behaviour and was appropriately reprimanded and removed by the father.  It is an absurd suggestion that there was any danger in the children and father playing with the Nerf Guns firing foam pellets. I accept the father’s evidence that to his knowledge no harm came to X during the game or when she was removed due to her behaviour. I reject any suggestion of the mother (or X) that the father struck X over the head with the Nerf Gun, or that he choked or strangled X. It is an unfounded allegation. 

34. Relevantly, I note that during the Magistrates Court trial, X changed her evidence after lunch in the trial and that the mother admitted that she took the children for lunch on that day. The children were in the mother’s sole care and had been for some months. The Magistrate also made the observation that the child “remembered” things after lunch. This is an interesting coincidence, as, when the children were interviewed by the Family Report Writer for their report in this matter, after lunch, they returned with a different attitude than they had had before lunch. The children went off with the mother during the lunch period.

35. Between July when the incident allegedly occurred and the charges in September, the children spent weekend time with the father.  That ended when the charges were laid in September. 

36. I will now turn to examine some of the other allegations against the father made by the mother in her trial affidavit.

15 January 2015

1. Another incident involving W occurred when the mother maintained that W was refusing to spend time with the father in accordance with the orders. Her position was that she continued to encourage W to speak to the father, often to her disapproval.  W was coming and going on occasions. On one occasion on 15 January 2015, the mother says that:  

   W ran away from Mr Newsome’s house. She called me and told me that Mr Newsome had squeezed her throat in a choking action.  I found her hiding in the park and collected her.  The police also attended and W told the police she wanted to press charges against Mr Newsome.  She also told the police that she had seen Mr Newsome throw Z against a brick wall. 

1. The father was taken through this incident and explained that he had the children in his care pursuant to the Consent Orders. W needed to go to an orthopaedic appointment. She left his home but came back and then, contrary to the Court Orders, called the other children to go with her and leave the father’s home.  The other children were starting to make movements to follow W. The father corralled the other children in his right arm, leaning over to do so. Whilst leaning over, he put his left hand out to say, “Just go, W”. W was running toward the other children and she ran into his hand, which made contact with her chest. 

2. The father said she had been earlier in the lounge and she was literally trying to drag the other children with her. When W left, he went outside in the street and could not find her and assumed that she had run (which was correct) to the mother’s car parked down in the local park.  The father knew the mother would be there because she had come to take W to this orthopaedic appointment. He followed her out, could not find her and assumed that she had left with the mother. I accept the father’s version of events. I am satisfied that W was intending on removing the children from the father’s care. The mother was conveniently parked close by ready to receive all of the children.  I am satisfied that the mother has been influential in sending W back to the father’s house to attempt to physically remove the other children from the father’s home.

3. It is quite a different explanation from the mother’s explanation which is that “W ran away, called me and said that the father had squeezed her throat in a choking motion.” After that incident, the father says that W was never brought back to him again and he did not see her until months later.

4. The father gave a good account of the incident and explained that W had gone out to meet her mum in the car and for whatever reason, she had come back into the house to woo the children that were supposed to be staying with him to instead go with her. That caused the children to be upset and he was trying to stop them from going with W. 

5. When W spoke to the police, she reported to them that the father had just strangled her.[15] The report notes that the police attended at the (omitted) Park and have taken up with the informant and the informant’s mother. That is W and her mother. Police observed there were no visible marks on the informant’s throat or arms. The mother told them there was a private domestic violence application to go to court on 28 January 2015, though she had withdrawn that.

   [15] Exhibit ICL1, page 2

6. The father’s report to the police was that he had pushed the child away and believed that his hand, when he pushed, had either got her on the chest or up to her throat. The father explained that during the upset with the children wanting to follow W, who was trying to woo the children, that Y had punched him repeatedly in the face.  So he had given Y a smack and locked him in his room.

7. The child’s version of events was that she contacted triple 0 to tell the police her father had just tried to strangle her[16] and the account of the incident where she ran to a nearby park, which was the collection point for the mother to take her to this appointment.  No action was taken by the police, noting that there were conflicting versions.

   [16] Exhibit ICL1, page 4

8. The police report says:

   It is evident that there are a number of issues here.  Furthermore, there are conflicting versions, with the children stating that things happened for “no good reason”, rather than – other versions indicate that the children were misbehaving to the point of punching their father.

9. There are other issues identified in this one, both relating to self-defence but, more relevant, that of domestic discipline. The police refer to section 280 of the Criminal Code, which states:

   It is lawful for a parent or a person in the place of a parent, or for a schoolteacher or master, to use, by way of correction, discipline, management or control, towards a child or pupil under the person’s care, such force as is reasonable under the circumstances.

10. Ultimately, the parties were given advice to seek relevant domestic violence and Family Law Court Orders. 

11. The mother requested a welfare check after the alleged choking incident, but she said that “the father presents well when the police are there, and they cannot take any action.  Then it is bad after they go.”

12. In these circumstances, it is an inescapable conclusion that the mother has again played a strong part as a parent in having W try and remove the children from the father’s care. This behaviour of the mother is in defiance and contempt of the Court’s Orders for the children to spend time with the father, the children’s relationship with the father and their opportunity to spend time with the father. The mother gave her evidence in a loud and unimpressive manner.  She had an answer for all the scenarios put to her, but they were unconvincing.  I formed the view the mother would say anything to justify her own conduct. Outside of the Courtroom, her actions are forceful, disrespectful of the father’s standing and entirely disrespectful of the Court’s authority and Orders. This is a significant issue in the Court’s determinations as to the children’s future living arrangements.

13. I am satisfied that the father at no time caused any harm to W. I am satisfied that at no stage did the father strangle, choke or attempt to strangle or choke W.

12 January 2015 – children running away

1. Another incident that the mother complains of is that on 12 January 2015, W, Y and Z ran away from the father’s house.  The mother says:[17]

   I found the children on the street heading towards my house.  I collected the children and called Mr Newsome from my car.  Mr Newsome threatened to “flog” the children and lock them in their rooms.  The children heard this and appeared frightened.  I therefore took the children to the police station.  I returned the children to Mr Newsome the following day, in accordance with my solicitor’s advice. 

   [17] Paragraph 13(a)

2. I have heard the father’s explanation about this. He explained that when he went to collect the children, the children had run away. The father rang the mother to see where they were and said he was looking for them and could not find them. He asked the mother to let him know if she found the children. He heard no word from her and after a long period of continuing to search for the children, he rang her back, only to find that the children were with her. The mother said to him “Yes, they are here with me.”  He queried why she had not told him that they had returned.  There was no satisfactory explanation from the mother as to why, when the children had run to her, that she did not advise the father.  I consider this was all part of the contrived actions of the children facilitated by the mother.

   The mother advised the department that:

   Yesterday, the younger three children have run away from the father’s house to the pastor’s house of the church they attend.  The father followed them and turned up there.  The children were kicking and screaming and begging, “Don’t let Father take us.”  The father had to hold Y down and strap him in the car and put the child lock on to keep him there.  All the kids were screaming and crying and begging, “Please don’t let him take us.”

3. Similarly, there was no satisfactory explanation as to why the mother subsequently decided to take the children to the police.   Nothing had happened to them.  It is a common theme in this matter, having heard the evidence of the mother and the father, that the mother chooses to involve the school or DOCS or the police at any opportunity that she considers it would be strategically wise to do so. The mother routinely attempts to portray the father to Courts and other authorities as an abuser of the children and portray the children as being fearful of the father. I am satisfied that the mother has intentionally attempted in various ways to undermine the children’s relationship with the father including empowering the children to act out, and run away from the father and to show him utter disrespect. The behaviour of the children whilst with the father ranges from disruptive at the commencement of their time to normal once they settle down with the father.  There is no evidence, other than the mother’s to say that these children have ever been in fear of the father. This includes the independent evidence of the Family Report Writer who reports that the relationship between the children and the father were that they had a positive relationship with both parents[18].  

   [18] Family Report Ms B filed 12 December 2016.

4. I am satisfied that the mother’s conduct in trying to promote this position is contrived and without any evidentiary basis.  It is clear that the mother does not value the relationship between the father and the children and that she truly adopts the position of her church towards the father, namely that having left the church, he is regarded as a  “(omitted)” and someone to be shunned. 

5. The mother has avoided taking any action to ensure that the children do spend time with the father.  This is to the point where the Court heard the mother’s alarming evidence that she has sat in the front of the car driving the children to school one day, listening to the children planning to run away rather than go to their father’s.  The mother said nothing to them to deter them. I find this extremely irresponsible parenting on the mother’s part.   All the mother could say was that she was “scared” when she heard the discussion.  This evidence fortifies my belief that the mother has lost control of these children and she does not have the ability to exert parental authority.

6. Having empowered the children to make their own choices about whether or not to go to their father’s, and also allowing the children to know that the father is a “(omitted)” whose authority is not to be respected, Y has now been suspended from school for his inability to behave appropriately and respectfully to the other students, teachers and principal as seen in the subpoena material.[19] At their Family Report interviews X referred to the father as a “prick of a person”. The mother says she did not know that X used such language.  

   [19] ICL1

7. The mother has shown a naïve view of W socialising with the “youngies” in the church. This has included allowing W, without any consultation with the father, to travel away to Sydney with some older girls in the church for a holiday. The mother has shown that she has no educational expectations for W and has agreed that if she “can find something to walk into” W can leave school. Again, no discussions with the father and certainly no encouragement to complete her education.  The mother showed indifference in her attitude to W’s education when questioned under cross-examination about her schooling choices that W had made for her elective subjects. The mother had not expectation that W would succeed educationally and there was no evidence or sign of any encouragement that would be coming from the mother to do so. It seemed to me that the mother was resigned to the position that school was just a process rather than an opportunity to lay the groundwork for future educational or vocational achievements.

8. Amongst the myriad of allegations made by the mother is an alleged report of W that Z was thrown against a brick wall. I have heard all of that evidence and it is clear to me that the father did not and has not deliberately harmed Z at all.  Z shows love and enjoyment of his relationship with the father and expressed a view that he would live with the father.

9. Part of the father’s ongoing struggle in this matter has been his demonstration of great perseverance over and over with extremely poor behaviour of the children being obstructive and, at times, physically acting out by either one or all of the children. This started from when they were little children, aged six and seven, just after the Consent Orders were made. He has also been under sustained criticism by the children about not embracing the religious beliefs of the mother and the church and implicitly the children.

10. The theme of the father’s initial interaction with the children, when they are supposed to spend time with him pursuant to Orders, has been that he has had to chase them around school, wait for them to stop running around the schoolyard for an hour, calling out abuse and saying they did not want to go with him. The father would on occasion go to school only to find they have run to the pastor’s then go to the pastor’s and try and get the children back and put up with the children physically acting out. There is no evidence of the mother taking any steps to discourage the children from this contrived behaviour or of her exercising sufficient parental control to ensure the children spend time with the father as per the Orders. The mother sat and listened to their plans to run away instead of going with the father, saying nothing to the children to dissuade them, thus giving her tacit approval.   

11. I am quite satisfied that the father has never, on any occasion, attempted to strangle or harm any of the children. In relation to the allegations of common assault, the learned Magistrate noted all of the inconsistencies of the child X in finding the father not guilty.

12. In these proceedings the father has given his evidence in response to all of the allegations made by the mother. The father has just tried to spend time with the children in accordance with Consent Orders.  There are times when Y has been kicking and fighting. He has sent children to their room, told them to sit in there for a while. He has tried to enforce good behaviour and discourage their defiant behaviour.

13. Having seen the father in the witness box under sustained questioning by Counsel for the mother and Independent Children’s Lawyer. I am satisfied that the father has not engaged in the incidents described by the mother in her affidavit. If there have been any incidents, such as the Nerf Gun battle, the facts have been distorted by the mother and/or children to portray the father as an abuser of his own children. I do not accept that the father represents an unacceptable risk to the children. The father has given evidence that at no time has he ever punched the children.  There was simply no evidence to substantiate this litany of complaints about strangling, sexual abuse and other matters relied upon by the mother to reduce the father’s time to day time only all year. Most of the children’s allegations originate from alleged discussions between the children and the mother. In the case of alleged sexual abuse, the mother “heard” Y talking about this to his sister and also relied on what Y was alleged to have told the mother. The mother’s allegation of sex abuse was that “sometime in 2016 Y told me that Mr Newsome slapped him around the head with his penis whilst they were in the shower together”. The mother asked if this was an accident and she alleges Y replied “no, he grabbed his wee and stretched it and kept slapping me on the face with it and he kept laughing”. I accept the father’s evidence that he does not shower with the children and that he has never engaged in sexualised conduct with any of the children including with Y in the shower as alleged by the mother.

14. Another incident is alleged to have occurred on 29 January 2016 where the mother alleges that Y told her the father had picked him up by the shirt front, forced him to the ground and twisted his nipple. The mother says she noticed bruising around Y’s nipple. The Police records reveal that the mother attended at the Police Station to report this incident. The mother said the incident occurred at the school grounds when the father came to collect the child from school near the office area. The Police note the incident was alleged to have occurred at the (omitted) State School at pick up time in view of other parents. The school had, however, not called the Police in regard to the matter and no other notification had been received. The Police noted the father was collecting the child in accordance with Family Law Orders. The mother did not want the child interviewed nor did she wish to make a Police statement and did not want to sign a Police notebook either. The report was noted for reporting purposes only as an unfounded report. The matter was finalised with a notation that investigations reveal it was highly doubtful the offence occurred and it appeared as a matter of domestic family discipline only.[20] I am not satisfied any harm was caused by the father to Y in line with this allegation or at all.

    [20] ICL1, page 19.

15. As to the allegation that on 25 September 2016 X informed the mother that the father had pinned her against the wall with his thumb in her throat and slapped her across the face. The father explained that X had an eyelash in her eye which she noticed upon waking up. He was attempting to assist her to remove the eyelash. He agreed that she was being quite hysterical, screaming and carrying on. The father denied poking her in the eye and explained that he tried to pull her cheek down to see if he could see and remove the eyelash. He was asking her to calm down as she repeatedly said “it’s in my eye, it’s in my eye”. He denied grabbing her by the throat or digging his thumbs into her throat or slapping her across the face. He accepted he may have told her to shut up and stop crying as he was trying to locate the eyelash. X calmed down after a while. The father said Y was still asleep and that X was red around the eyes only from crying. The Police records show that the mother subsequently withdrew this complaint. I accept the father’s evidence that he caused no harm of any kind and that he did not slap, strangle, choke X or poke her in the eye.

16. Throughout the Police material and the Department of Child Safety material, reference is made to Y sounding rehearsed in his evidence and allegations as made by the mother. The file notes show that at times the mother’s allegation have not being acted upon as the information provided does not meet the threshold for a child protection notification. During the course of their investigations, the school principle was interviewed in February 2015 in relation to allegations. The principle stated at that time that the children appear to be “absolutely coached” and that he has no concerns in relation to the care of the children by either parent.

17. The father is a truthful witness. He explained all of the circumstances about the children having tantrums, all of which were entirely plausible.  The father is grounded and without malice.  It is clear that he is devastated by the slow diminution of his relationship with his much loved children.

18. The father has shared his ongoing difficulties in spending time with the children with his own father who has also been attempting to enjoy a loving relationship with his grandchildren, but not without some difficulty. Mr K (the paternal grandfather) was also an impressive witness who confirmed the children’s defiant behaviour, but also how they settled down and enjoyed the time with their father.  It defies logic that the father would show the commitment to the children that he has, be involved in their school and sporting lives as much as he could, and  persevere  through all of the children’s appalling behaviour, which has been contemptuous of him (to the point where the children have called him a “prick of a man” and a “horrible man” kicked him and berated him) and through contested litigation and then, as suggested by the mother, when he does have the children to deliberately harm them. I am satisfied that it is inconceivable that he would push a child’s head deliberately into a pole, strangle them on various occasions, punch them, hit them and engaging in what would amount to sexual abuse.[21] Some of the mother’s allegations would have the father throwing Y to the ground and twisting his nipple in the school grounds at pick up time, in full view of other parents and near the principal’s office. The mother’s allegations are inherently implausible.

    [21] Mother’s affidavit filed 17 February 2017, paragraph 13(o). 

S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

1. the circumstances in which the order was made;

1. any evidence admitted in proceedings for the order;

1. any findings made by the Court in, or in proceedings for, the order;

1. any other relevant matter.  

1. There are no protection orders in place or in the past. 

S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In this matter, it is important that the litigation finalises. This is the second trial that the mother and father have had. These children need to have stability and the benefit of living with a parent who will promote their relationship with both parents and provide an opportunity for them to achieve their full potential in life.

2. It is clear that they have also been involved directly to criminal proceedings against the father which in my view ought never have been promoted by the mother. 

S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

1. I have nothing to add.

Parental Responsibility

1. In terms of the presumption of equal shared parental responsibility (section 61D) the mother would say to the Court that because the father has engaged in the abuse that she has set out at paragraph 13A of her material that she ought to have sole parental responsibility. However, I am satisfied that the father does not represent an unacceptable risk to these children and that the events as described by the mother have not occurred. 

2. In terms of the mother’s conduct and noting the presumption does not apply if the children have been exposed to abuse or family violence or neglect, I accept the submission of Counsel for the Independent Children’s Lawyer that the mother’s willingness to promote false allegations about the father through the children, amounts to abuse of the children.  To that extent, the presumption does not apply. 

3. As to whether or not the presumption is rebutted as not being in the best interests of these children to have an order that the parents have equal shared parental responsibility, the Independent Children’s Lawyer and Father each submit that the parties are unable to communicate and their communication is abysmal.  Further there is strong influence by Mr G and others within the church upon the mother which would mean in effect, that the equal shared parental responsibility order would be between the father and the mother assisted and influenced by Mr G and Ms J and other assembly members. It is also submitted that there would be no negotiation with the mother as she will just decide matters as she did in the baptism of Y, regardless of the existing Orders for equal shared parental responsibility. It is seen on this occasion, that the mother nominated Mr G to engage with the father on her behalf. The mother, assisted by Mr G solely made the decision about Baptism and each ignored the Orders of the Court and the father.  I accept that the mother did not give notice to the father as was required under the Consent Orders of 14 days and  that she abdicated her responsibilities in favour of her agent Mr G. Mr G and the mother both well knew of the terms of the Court’s orders and the notice provisions. They ignored them to achieve their own ends which was to have Y baptised that day.

4. The mother in this regard showed complete contempt for the father’s position and in my view it was typical of the mother’s view in that one way or another she will ensure that she achieves her own ends.

5. The mother shows no respect for the father. She shows no respect for his dignity and standing as a father or his choice not to be in the church any further. I am aware that the mother made allegations that the father has denigrated the church. I do not find his remarks to be denigrations as such. In other words, he may have said what the church does and everything he has said about the church is correct. He has complained that the church has influenced his children against him; that is correct, and against his father; that is correct. 

6. There is a plethora of evidence about the difficulties the father has had in trying to make simple arrangements with the mother, as set out in the father’s affidavit. I accept his evidence of these difficulties. The mother takes no personal responsibility for the ongoing difficulties. 

7. I accept the submissions that the communication between the mother and father is abysmal. In my view, it is impossible for the father to deal with the mother as she deals with him dishonestly. The mother is driven by her inflexible unyielding belief that the father is a dangerous man, who takes drugs and is a drunk. Her insistence that the father undergo hair follicle testing so she can prove he is a drug user has failed.  The father has jumped all hurdles and done all tests required by the mother but she is ready to find fault with him nonetheless. The mother does not genuinely accept the results and in my view shows a simmering distrust of the father. Descriptions of the father being a drunk, having to undergo tests and reference to drug use and the father have been repeated by the children. I am satisfied that mother holds the father in contempt.  The mother shows no trust towards the father, no respect for his standing as the children’s father, a strong desire to thwart his relationship with the children and a lack of willingness to genuinely comply with the Court’s Orders. She engages members of the church assembly to help her fight her battles.  

8. The Court has already made an order for equal shared parental responsibility, which has been ignored by the mother. Another order for equal shared parental responsibility would not only involve the mother and father, it would involve the father versus the mother in combination with Mr G, Ms J and or the influence of others in the assembly.

9. I am also of the view that the father has a more balanced outlook on life and that he will make child focused decisions about the children.  The mother has shown she will only make decisions based on her own and the church’s beliefs. 

10. I am critical of the mother for the manner in which she has exercised parental responsibility. Very importantly, she has made a significant decision that the children ought not have a relationship with their father. I consider that this is very poor decision making on her part and one in which she has put her own interests (and religious beliefs) above the best interests of the children. The father has been very patient, aware yet tolerant of the difficulties created by the mother’s attitude towards him and the Consent Orders. The father has simply been trying to have the Court’s Orders complied with. I cannot overlook the fact that the mother sat in Court at the last final hearing and whilst legally represented, stood before Judge Lapthorn, stating through her Counsel that she agreed to the terms of Consent Orders, only to turn and walk out of the Court and start undermining them.

11. Overall, I am satisfied that these parents do not have the ability to communicate to make joint decisions and that it would not be in the best interests of the children, to have their parents attempting to make joint decisions. Having considered all of the evidence, it is appropriate that one parent make those decisions. In my view, the most appropriate parent is the father. I intend to make an Order that the father have sole parental responsibility for all four children. 

Discussion

1. Having made an order for sole parental responsibility, I do not need to consider equal time or significant and substantial time.

2. In turning to the respective proposals, it is clear throughout this decision that I have significant reservations about the mothers’ capacity to parent and her attitude towards parenting. 

3. The mother’s position throughout the trial is that the children should live with her and spend time with the father.  The time is to be reduced down to every second Saturday from 9:00 am to 5:00 pm throughout the year and Father’s Day. The children can also spend time with the father on Christmas and Boxing Day each odd numbered year. There are to be no school holiday times. In final submissions, the mother through her Counsel submitted for the first time, that if the father’s hair follicle test came back negative to drugs, that the current orders could be maintained. As I have said elsewhere, this last minute switching of position by the mother is entirely inconsistent with the alleged concerns of the mother about the father’s abusive behaviour towards the children which has been the basis of her trial. It represents her essentially abandoning all of the other issues she has ventilated and held the father accountable about.  All of the issues of physical and sexual abuse she has raised and which have been repeated by the children, appear to have been abandoned by saying essentially “if the drug test is clean, then nothing changes”. I find the mother’s position of switching to an alternate position of retaining the current orders if the hair follicle test favours the father, to be strategic.  

4. I have made findings that I do not accept the mother’s allegations or those made by the children against the father.

5. I am of the view that the children need to be removed from the influence of their mother, the church and the assembly including Mr G and Ms J. To do as the mother asks and make no changes to the current Orders, is to give licence to the mother to continue with her conduct as I have heard over these past four days of Court time.  I am satisfied that to do so is going to lead to the continued non-compliance with Orders on the mother’s part.  I do not accept that when she walks away from here, that she is suddenly going to start complying with the Orders in every respect and change her attitude towards parenting and the father. 

6. I also do not accept that she will, in any way, change her attitudes which are very firmly held. This includes her strict interpretation of the doctrines of her religion. The mother moves in a world heavily influenced and shaped by her religious life. This occurs through her involvement and association with Ms J and those in the assembly at church. 

7. I am also very alarmed at the mother’s inability to exert any appropriate parental authority in relation to the children, and her decision to sit back and allow all of the children to make up their own minds about significant issues such as whether or not they have a relationship with their father. This represents very poor decision-making. The mother shows no insight into the restricted world in which she lives or to the long term damage she has caused in undermining the father in the children’s eyes. I am satisfied that making orders in line with the current orders wherein the children will live with the mother and under her influence for most of their time, will inevitably mean a continuing of difficulties with the children attending and a continuing of the undermining of the father.

8. In terms of any suggestion of splitting the siblings, the mother has said that she does not want the siblings split.  The father does not wish to the siblings to be split.  The Family Report Writer says strongly that it would be undesirable for the siblings to be split, such as having W live with her mother and the other three live with the father. The Independent Children’s Lawyer does not support the siblings being split. W is a pivotal part of this group. Her strong views can certainly flow down to the others, however those strong views that she holds are being held while she is under significant influence from the church and the mother. 

9. There is evidence to suggest that there is the opportunity for hope that W will change her attitudes in the future.  Even though she had not seen her father for a period prior to the assessment at the Family Report observations, that when they have been together, they have had a close association. I am satisfied that W needs to be given the opportunity to rekindle her relationship with the father. The Family Report Writer said that there was still an attachment between W and her father, and that it long preceded some of the events that occurred. I accept the Family Report Writer’s evidence that it is W’s long term best interests for her relationship with her father to be nurtured. 

10. Ms B also gave evidence which I accept, that all of these children are close siblings and a close family unit. I accept also the evidence that any significant changes to the living arrangements for the children, including W, will have more success if the method of them being informed of the decision comes from the Court via the Independent Children’s Lawyer and a family consultant so that it is explained that any new arrangement is the product of a legal function, not based on the views of the mother or father.  The method of delivery of the reasons for any change is important.  I am not able to rely on the mother to honestly convey to the children the outcome of these proceedings. 

11. I accept the submission from Mr Sorensen of Counsel that the father’s proposal represents a significant and radical change to change their living arrangements. However, in all of the circumstances in this case, I consider that the only chance remaining for these children to maintain a relationship with their mother and their father is on the basis that they live with their father. Ordering no change at all to the living arrangements of the children will simply give licence to the mother to continue with her campaign to allow the children’s relationship with the father to continue to diminish.  

12. I am satisfied with the father’s capacity to parent and his attitude towards parenting. The father is a balanced individual, in touch with his children and their education and psychological needs. He is well supported by his own family and the maternal grandmother.  The father could not expect to be a perfect parent. He has however shown an honesty in his parenting, and enduring love and commitment to the well-being of the children despite the distress for himself and the children being put through unnecessary criminal litigation when he was falsely accused of assaulting his own daughter.  He has faced a barrage of other outrageous and false allegations. The father has shown no malice towards the mother. He has been exasperated and distressed at the position he has found himself and the children in. He has shown tolerance throughout. To this extent the father is a good role model. I am satisfied that if these children are under the primary influence of the father, they will learn and have the opportunity to be accepting of others  in the broader community, people who may have much to offer these children such as the love of their paternal grandfather and maternal grandmother.

13. There is no evidence that the mother will change her attitude towards the father.  To do so, she would at least need to remove herself from the influence of the church so she could stop regarding the father with disdain given he is a “(omitted)”. However, apart from that aspect of her parenting, the mother has repeatedly made false allegations about the father which has a profound effect of all aspects of her parenting.

14. I accept the father’s position that he will comply with Orders (as he has always done) and take these children to their mother and continue to try and work with her in terms of communication and having the children spend time with the mother.  

15. I also accept his position that, at this point, with the children having been indoctrinated into the church so significantly with all of them speaking in tongues, having received the gift according to Mr G, that the time has come for all of the children to be shown that there are other options and pathways in life and other points of view.  I am satisfied that the father will ensure that these children have an opportunity of exposure to the broader community, whilst maintaining a loving relationship with their mother. Contrary to the position of the mother, I am satisfied the father is deeply invested in the future of the children and that he will provide a style of parenting that enables them to achieve their full potential in life. The evidence suggests that the mother does not have the capacity to do this.

16. After consideration of the primary considerations and all of the relevant section 60CC factors, I intend to make orders that the children live with the father. I am satisfied that the father’s proposals are in the best interests of all of the children.

17. As to the future of the time spent with the mother, I accept the proposals of the father and Independent Children’s Lawyer are in the best interests of the children. I will make orders largely in accordance with the Independent Children’s Lawyer’s draft. Their proposal involves a moratorium for the children of 8 to 10 weeks based on the recommendation of the Family Report Writer. I am satisfied that 8 weeks will be sufficient. This is for the purpose of the children settling down into their new arrangements without interference from the mother or those close to her. I accept the evidence of the Family Report Writer that there will be some hiccups and adjustment required and that it is appropriate that there be a moratorium to enable the children to get used to what is happening. 

18. The children are well attached to the mother albeit I consider that they have an unhealthy relationship with her given her use of the children to perpetrate false allegations. They will not need however a period of “re-introduction” at the end of the moratorium.  

19. Once the period of the moratorium has concluded, the regular time, special days and holidays provided for in the Orders can commence.  The father proposes that the children spend time with the mother from 3:00 pm Thursday to before school the following Monday morning each alternate week. I am satisfied that the children will be able to maintain a meaningful relationship with the mother in spending this regular time with her. This of course presumes that the mother will desist from denigrating the father during this time and comply with the restraints.     

20. I do not intend to make restraints for interstate travel. There is no evidence to suggest that such orders should be made and the border for New South Wales is within a day trip of where the children live. Such an order simply adds unnecessary restrictions.

21. I do however intend to adopt the submissions of the Independent Children’s Lawyer and Father in making restraints preventing the mother from having the children attend or being taken to any church or any church events of any kind whatsoever without the prior written agreement of the father and this includes Sunday school and church services and gatherings. 

22. As to their further engagement with Mr G and his wife, unfortunately, given their strong negativity regarding the father and their influential position in regard to the mother, I do not consider it in the best interests of the children to spend time with Mr G and Ms J.  Whilst the Court of course respects Mr G’s choice about their religion, their attitude of disapproval and shunning of the father and the children’s ongoing relationship with him makes it intolerable for the children to be under their influence and placed in a position of having to disobey their instruction.  I do not wish the children to have it further reinforced that the father is a (omitted) and somehow a lesser human being for doing so. The assembly must according to the teachings of the church, regard the father in this way as he no longer “walks with the Lord” as they see it. For this reason I agree with the submission of the father’s Counsel that the children should not be taken to any church events, unless the father first consents in writing.   

1. I am told that Ms J has some grandchildren at the same school as the children and that sometimes she has to go and collect them. That may be so. I still however intend to make an order preventing the mother from bringing or allowing the children to the contact with Mr G and Ms J.

2. In terms of any further counselling, I accept the evidence of the Family Report Writer that that if W needs any counselling that this should be deferred for a month or two, and then if deemed necessary she could commence with the school guidance officer. That decision will be the sole decision of the father. The mother is not to take the children to any counsellor, social worker or similar person, which I note she has done in the past without the father’s agreement.  These decisions will be part of the father’s sole parental responsibility. So too will the decision about what sports and extra curricula activities the children engage in.  The evidence shows that the mother has only passing interest in their extra curricula development and that her focus is on having them attend church rather than encourage involvement in sports and activities outside of the church.

3. I will also direct that the Independent Children’s Lawyer provide a copy of these Orders to the children’s schools and at the same time request that Ms J be removed from the school records in relation to these children including being an emergency contact or other parent. 

4. I accept the evidence of the Family Report Writer that W and the children are more likely to accept the decision, given that it is not made by the mother or father but is made by the Court and that the Court has ordered this time. 

5. I will make an order that the final Orders I intend to make providing for the children to live with the father be explained to the children by the Independent Children’s Lawyer in company with the Family Consultant or the Family Report Writer. I accept that the method in which this decision is conveyed to the children is important to enable the children to understand that the decision arises from a legal process rather than simply the views of either parent.

6. The Independent Children’s Lawyer and the Family Report Writer are therefore to have a session with the children immediately following the pronouncement of these Orders in which they explain that the Judge has arrived at this decision and that these Orders will now be in place.  Thereafter the children will live with the father pursuant to the terms of the Court’s Orders. The children’s time with the mother (including telephone time) pursuant to the terms of the Court’s Orders will only commence after a period of 8 weeks from today’s date has expired (the moratorium).

7. As I advised the parties at the trial, I do not support open ended orders for telephone time for the children. Whilst living with the father the children will (after the moratorium) have two telephone calls per week on set days at 6.30 pm with the mother and with the father when they spend time with the mother. This will also apply to both parents during the holiday periods. 

8. Noting that the mother ignored the provisions of the Order for equal shared parental responsibility and took the children to a counsellor without agreement of the father, I will articulate in these Orders that such decisions are for the father.

9. I do not intend to make an Order providing for the process of resolving future disputes with the children for two reasons. First these Orders provide for long term decisions to be made by the father. Therefore there ought to be no disputes.  Second, the mother has relied on such a clause in the previous Orders to justify her holding over the children until such times as the father has attended mediation. There is a raft of correspondence attached to the father’s material showing the difficulties he encountered with the mother using this clause against the children’s best interests.  

10. These are final Orders made after a second contested trial. This trial has taken four days.  The Court expects complete compliance with the Orders. That means the mother has an obligation to return the children at the end of every contact period provided in the Orders in the same way the father has an obligation to make the children ready and available to the spend time with the mother.  I am satisfied the mother has ignored that obligation in the past and shown disrespect for the Court’s Orders. In face of Orders for the children’s living arrangements, it is not for the mother to decide what arrangements are in the best interests of the children and take matters into her own hands. Any further conduct in this regard will, I am sure, be regarded with the utmost seriousness by this Court. I intend to Order that the mother file an affidavit within 7 days of the date of these orders to confirm that she has read her obligations pursuant to sections 65DA(2) and 62B that are attached to the final Orders issued by the Court today and that she understands them.

11. I do not intend to discharge the Independent Children’s Lawyer until 12 months from the date of the Order. This is to ensure that these Orders are implemented without any obstruction.

I certify that the preceding two hundred and ninety-five (295) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date:  17 January 2018