Notaras and Notaras

[2014] FamCA 350

FAMILY COURT OF AUSTRALIA

NOTARAS & NOTARAS [2014] FamCA 350

FAMILY LAW – CHILDREN – Where the father did not participate in the hearing – Family violence – Significant and unacceptable risk of harm posed by the father – Where the children’s wishes to spend no time with the father be given weight in the context of family violence – Where the benefit to children in having a meaningful relationship with the father is overshadowed by their fear and anxiety – Where the presumption of equal shared parental responsibility is rebutted because of family violence – Sole parental responsibility to the mother

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520

APPLICANT: Mr Notaras

RESPONDENT: Ms Notaras

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 5013 of 2012

DATE DELIVERED: 30 May 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 12 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bankstown Legal

COUNSEL FOR THE RESPONDENT: Mr Gramelis

SOLICITOR FOR THE RESPONDENT:	First Choice Family Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW Parramatta

Orders

1. That all previous parenting Orders made in these proceedings be discharged.

2. That the Respondent Mother, Ms Notaras, (“the Respondent Mother”) have sole parental responsibility for the children of the marriage, namely, J born … 1999, T born … 2002 and B born … 2005 (“the Children”).

3. That the Children live with the Respondent Mother.

4. That the Children have no communication with and spend no time with the Applicant Father, Mr Notaras, (“the Applicant Father”).

5. That the children, J born … 1999 (a female), T born … 2002 (a female) and B born … 2005 (a female), be removed forthwith from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australian and it is requested that the Australian Federal Police give effect to this Order.

6. That all outstanding applications be dismissed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5013  of 2012

Mr Notaras

Applicant

And

Ms Notaras

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings relate to the children J, now aged 14, T, now aged 11, and B, now aged 9.

2. The proceedings were listed for “undefended” hearing on 12 May 2014.

3. A short consideration of the history of the proceedings is set out below.

4. The proceedings were commenced by the Applicant father in the Federal Magistrates Court of Australia (as it then was) by Application filed on 8 November 2012. In that application the father, in summary, sought orders that the father and mother have equal shared parental responsibility for the children, that the children live with him and that the children spend defined time with the mother being each Saturday and block periods during school holidays.

5. The mother filed her Response to the father’s application on 21 January 2013 and in that Response she sought orders that, in summary, provided for the mother to have sole parental responsibility for the children, that the father have no face-to-face contact with the children or in the alternative that the father have supervised time with the children and that the mother be entitled to travel internationally with the children without the father’s consent.

6. On 29 January 2013 an Order was made for an Independent Children’s Lawyer to be appointed to represent the children and the proceedings were transferred to this Court.

7. On 19 February 2013 an Order was made for the provision of a report by the New South Wales Department of Family and Community Services in relation to that Department’s engagement with the children and the family.

8. On 11 April 2013 the proceedings were listed before a registrar for directions and return of subpoenas. There was no appearance by or on behalf of the Applicant father.

9. On 16 May 2013 the matter was again listed before a registrar for directions. There was no appearance by or on behalf of the Applicant father.

10. On 6 June 2013 the matter was listed for further directions. Ms Mantel, solicitor, appeared on behalf of the Applicant father and proceedings were adjourned to 21 June 2013 before Austin J, noting that the father had filed an Application in a Case seeking interim parenting orders.

11. On 21 June 2013 interim Orders in relation to the children were made by Austin J. Those Orders provided in summary:

    a)that the children live with the mother;

    b)that the mother and father do all things necessary to facilitate the children spending supervised time with the father for two hours once every three weeks at C Contact Centre;

    c)that the mother ensure that the children are presented to a therapist designated by the Independent Children’s Lawyer for counselling and that the mother pay the costs of that therapy; and

    d)that a Magellan family report be prepared by a family consultant.

    Otherwise, all applications in a case seeking interim orders were dismissed.

12. The Magellan Family Report was completed on 10 December 2013 and released on the 20 January 2014 (Exhibit A).

13. The Family Report writer recommended:

    a)that the mother have sole parental responsibility;

    b)that the children live with the mother;

    c)that there be no orders for the children to spend time with or communicate with the father;

    d)that the mother seek domestic violence counselling; and

    e)that the children continue to engage with their counsellor as that counsellor sees fit.

14. On 4 March 2014 the father filed a Notice of Discontinuance of his originating Application. He was thereafter not a party to the proceedings and did not participate.

15. On 6 March 2014 the matter was listed for undefended hearing on 12 May 2012.

16. The mother filed an Amended Response on 30 April 2014, together with her primary affidavit. Those documents were delivered to the father’s address on 30 April 2014 and on 8 May 2014 a letter advising the father of the hearing date was also delivered to the father’s address (Exhibit G).

17. The Independent Children’s Lawyer supports the orders sought by the mother, which reflect the Family Report writer’s recommendations.

The issues for determination

1. The issues for determination are:

   a)What are the matters relevant to the children’s best interests?

   b)Who should have parental responsibility?

   c)Should the children live with the mother?

   d)Should the children have time with or communicate with the father?

The best interests of the children

1. The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286.

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Family Law Act 1975 (Cth) (“the Act”).

3. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. The presumption does not apply where:

   (a)there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];

   (b)in interim proceedings where  the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)]; and

   (c)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

7. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

8. The best interest considerations require a short overview of the background to these proceedings.

9. The mother is aged 43 and was born in Austria, coming to Australia at a very young age. The father is aged 42. They commenced living together in about January 1998 and married in March 1998.

10. Following the commencement of cohabitation the father’s behaviour changed. He self-harmed and became aggressive and argumentative towards the mother.

11. The mother’s history of the relationship, as set out in great detail in her affidavit, is encapsulated in the Family Report as follows:

    46.[The mother] reported a history of verbal and emotional abuse by [the father] including him making threats to kill her, accusing her of having affairs, calling her names, controlling her finances and her friendships and destroying their personal belongings.  [The mother] said that [the father] attempted to involve the children in the verbal abuse, which caused them significant distress. [The mother] gave an example of this, stating that [the father] would insist that the children say that they loved him more than her, otherwise he would to hit them with an implement, such as a wooden spoon.

    47.[The mother] said that when [the father] would leave the home such as go fishing, “it was a celebration, everyone could breathe.” [The mother] stated that the children have been greatly affected by the family violence perpetrated by [the father] and still blame themselves for not defending [the mother] when she was being abused. [The mother] said that she tried to stay in the marriage for the children’s sake but now knows that she should have left the first time any violence occurred.

    48.[The mother] said that she did not report the abuse from [the father] to Police or any other services, such as the psychologist she saw regarding her workers compensation claim, because she was “terrified” [the father] would kill her if he found out. [The mother] said that she finally disclosed this abuse to Police as she was concerned that if she stayed in a relationship with [the father], he would kill her anyway. [The mother] admitted that she had threatened [the father] with a broken glass bottle during one incident, but maintained it was in self-defence.

    49.[The mother] said that it was difficult for her to recover from being abused for twelve years and that sometimes she had to go to her room and cry. [The mother] declared “I’m afraid of him, as I lived with him.” [The mother] said that “All of us are working on this fear, even though he is not here.” [The mother] said that the children do not want to see their father because they are scared of him. [The mother] reported that [the father] had physically and psychologically abused the children including forcing [B] to stay awake when she was meant to be sleeping, hitting and pulling all of the children’s hair and calling the children names such as “dumb”.

    50.[The mother] said that [the father] had shown pornography to [T] on two occasions and stated to her that he would show her “good sex” when she was older. [The mother] reported that [B] had informed her that he had exposed his genitals to her on a couple of occasions. [The mother] said that JIRT had substantiated that [the father] had shown [T], pornography; however the charges were not upheld in the Criminal Court.

    51.[The mother] said that [the father] had told her he had sex with his brother [D] when they were both children. [The mother] said that [the father] saw a therapist in [Suburb A] for four sessions after he disclosed this issue to her. [The mother] said that she did not remember the name of the therapist and, when asked, stated that it was likely [the father] saw this therapist as a private patient, meaning there would be no Medicare record of these visits.

    52.[The mother] stated that she previously experienced difficulties with her employee resulting from her taking too many sick days. [The mother] said that this had resulted in her successfully making a workers compensation claim. [The mother] said that, at the time of this claim, she had been struggling with pressures from both her work and home life. [The mother] said that as a result she considered committing suicide by jumping off “the gap,” however; she said that she did not do this because it would have left the children without her.

    53.[The mother] said that, after this, she had sought mental health treatment which she was still engaged with. [The mother] said that she saw [E Health Care] Psychologist Mr [F] for cognitive behavioural therapy and Psychiatrist Dr [G] regarding her prescription for the anti-depressant Efexor. [The mother] denied that she had ever been hospitalised for any mental health condition or suicide attempt, or that hospitalisation had ever been recommended by her treating physicians.

    54.[The mother] reported that she had concerns with [the father’s] consumption of alcohol during their marriage. [The mother] alleged that [the father] would drink approximately three longnecks of beer per day and the occasional cask or bottle of wine or bottle (sic). [The mother] said that [the father] was fine if he just had one or two drinks, however he always had more. [The mother] reported that he would then become aggressive and react to the slightest matter. [The mother] said that [the father] told her that the Police would not hold him accountable for any violence if he was drunk when he perpetrated it.

12. On 6 April 2010 the mother was assaulted by the father. She suffered facial bruising and a perforation of her left tympanic membrane. In mid-August 2010 the father again assaulted the mother and the child B.

13. In November 2010 the mother was again assaulted and threatened with a knife by the father, who then threatened to kill the mother in front of the children. Police intervened and the father was arrested and charged. The father was later convicted of destruction of property. He later was placed on a 6 month good behaviour bond. The father, following separation, was diagnosed with depression, adjustive disorder and anxiety.

14. An Apprehended Domestic Violence Order was made to protect the mother, which remained current until May 2013.

15. The mother and children were moved to crisis accommodation. The mother and children returned to the family home in October 2011 after security cameras were installed.

16. Subsequently, the child T disclosed that the father had exposed her to pornographic material when in Year one. Police issued an Apprehended Violence Order against the father fearing the child was being groomed by him.

17. The father sought no time with the children until mid-2012.

18. An Order for the children to have supervised time with the father was made on 21 June 2013. In August 2013 during the intake process for the supervised time the children became distressed and were sent home by the centre. Later, the children’s treating therapist/psychologist expressed grave concerns for the welfare of the children should they commence time with the father, including that they might self-harm. Time did not commence.

19. As to the children and their relationships, the Family Report writer observed:

    56.[J] (aged 14 years and 2 months) stated in a sentence completion exercise given to her prior to her interview that sometimes she wished “my Dad will just go away. I don’t want him in my life.” On interview, [J] immediately commenced discussing how she did not want to see her father in an observation session. [J] said that this was due to her being scared of him; that he “abused us” and that the last two years without him had been “wonderful.” [J] presented as distressed whilst discussing this issue, crying at times and speaking very quickly.

    57.In relation to what she believed [the mother] wanted, [J] stated that her mother told her that, if she wanted to live with her father she could. [J] said that her mother had made them attend the Contact Centre, stating that the Court had Ordered that this occur, however, she ([J]) did not want to spend time with her father and “even thinking about it makes me upset.” [J] declared that if the Judge Ordered that she had to spend time with her father that she would “run away or kill myself.” [J] was observed to cry again as she discussed this issue. [J] said that she thought the last time she would need to discuss seeing her father was at the Contact Centre and that she was upset she was discussing this issue again.

    58.[J] said that she had been attending counselling and that this had helped but that it still upset her when people tried to convince her to see her father declaring “I just don’t want to.” [J] said that she believed her father would act falsely in the observation and pretend to be a good parent, and that this was not reflective of who he was. Due to [J’s] expressed wish not to see [the father] and her obvious distress, she was informed that her observation with [the father] would not proceed.

    59.[J] recounted that she and her siblings experienced abuse from her father and gave the following examples if she did not come from her room quickly enough when her father called her name, he would come to her bedroom, slam the door open and drag her out of bed and downstairs by her hair; that he would be yelling at her throughout this ordeal; that she had witnessed her father hit T with a ruler when she made a mistake with her homework; that her father would practise tennis with them at the courts at the back of their school and if they missed the ball, her father would deliberately hit a tennis ball at them, leaving red marks on their body from where it hit; that her father would then drive the car home and make them walk; that he often walked around the house naked, “trying to show me his thing” and stating “look girls” to her and her sisters.

    60.In relation to injuries received by her mother from [the father’s] alleged abuse, [J] said that she had attended the Doctor with her mother, when [the mother] had sustained an injury to her ear from being assaulted by [the father] and that she also saw red marks on her sisters and mother from where her father had hit them.

    61.[J] said that her father would often say negative things to her mother in front of her and her sisters, such as that she was “stinky or fat.” [J] said that her father would make her and her sisters say who they loved more between him and their mother and if they chose the latter, he would hit them with the wooden spoon. [J] said that [T] and [B] were more naive and would often say her mother and so they would be punished more. [J] said that her mother would tell them to say they loved their father more so they did not get hit. [J] said that when her mother had travelled overseas, her father told them their mother did not love them and that she had gone to see her lover. [J] said that she recalled an incident when they had gone to a restaurant as a family. She said that her father had left them there, taking the car with him and she remembered her mother crying. [J] stated she had been fairly young at the time of this incident. [J] also reported that her father was “really mean” to her (maternal) grandmother as well.

    62.[J] said that, in November 2010, she and her sisters had arrived home from karate and seen her mother crying and trembling on the couch.  [J] said that her mother had said to them to sit on the couch and that everything was her ([the mother’s]) fault. [J] said that her father made them laugh at and mock her mother. [J] said that she had seen marks on a door as if it had “been punched” and that she “saw a knife somewhere.” [J] said that her mother had later told her that her father had stabbed a mattress in the house. [J] said that when the Police had arrived she had observed her father threaten to kill her mother by making the action of slicing his hand across his throat.

    63.[J] stated that her father rarely went on outings with them and instead stayed home and consumed alcohol. [J] said that she had observed her father to drink wine and beer and that she had seen the empty alcohol bottles on the kitchen bench or in the bin. [J] reported trying to sneak in the house with her mother and sister to avoid angering her father when he was drunk. [J] said that she had witnessed her father break furniture, put holes in the wall and crack car windows when he was angry.

    64.[J] said that she did not have any good memories of her father, that there were no good times between them. [J] said that other children were lucky because they have a “good father.” [J] said that her father had threatened to hurt her and her sisters if they told anyone that he had hit them.  [J] said that, as a result, she was even more scared to spend time with him as she had told many people, including her counsellor and the Contact Centre, of the things he used to do to them.

    65.[J] said that she has a good relationship with her mother and that they were very close.  [J] said that she, her mother and siblings went on outings together, that they cooked together, that her mother helped out with her homework and getting ready for school. [J] said that she was able to talk to her mother about her feelings, even if she was feeling sad and that her mother always comforted her.

    66.[J] said that she enjoyed school and she had good grades and many friends. [J] stated that she used to have difficulties with socialising as she was spending a lot of time worrying about the abuse from her father, but that this was no longer an issue. [J] said that she was involved with many sporting activities including basketball, netball and soccer at school and that she planned on playing piano for an elective in school next year.

    67.[T] (aged 10 years and 11 months) stated that she was going “really well” at school. [T] reported that she was interested in art and sports at school and was good at gymnastics.

    68.In regards to [the father], [T] presented as upset whilst talking about him, crying at times. [T] stated that when she thought about her father she was sad as he was mean and nasty and “I don’t want to see him at all.” [T] said that when she was living with her father, he would pull her and her sisters hair and smack them really hard “everywhere,” including on the shoulder and face. [T] reported that she witnessed her father hit and choke her mother. [T] also stated that she and her sisters were not allowed to say they loved their mother more than their father. [T] appeared to get more distressed at this statement, as her crying increased. [T] said that her father had showed her pictures of naked people and threatened to kill her if she told anyone. [T] said that she was really scared as a result.

    69.[T] said that she did not want to see her father today as he would lie and pretend he was good but “he is not, he is really mean.” [T] was told she would not be required to complete an observation with [the father], given her distress, and her expressed wish to avoid this.

    70.[T] stated that she wanted to live with her mother and spend no time with [the father]. [T] said that she might be able to see her father in a few years when she was older and could protect herself from him. [T] said that her mother told her it was “my choice” whether she saw her father or not and that she should just tell the truth about what had occurred.

    71.[T] said that she did not have any good memories of her father, stating that he made them attend activities such as fishing which he liked but they did not. [T] said that her father was not careful with them and that on one occasion, a hook had gone up her nose. [T] said her father blamed her mother for this even though she was not there. [T] stated in the sentence completion exercise given to her prior to her interview, that when she was with her father, she felt scared and not safe.

    72.[T] said that she had a good relationship with her mother and that her mother took her and her sisters to lots of places. [T] said that her mother looked after her by providing her with recess for school and helping her with her homework. [T] said that her mother gives her lots of hugs and kisses and if she was upset she would seek her out for comfort.

    73.[B] (aged 8 years and 9 months) said that she lived with her mother, three sisters and dog [H]. When asked, [B] corrected herself stating that she had two sisters. [B] said that she enjoyed art and painting. [B] said that she had a good relationship with her mother and that her mother took her places all of the time.

    74.[B] said that she did not wish to see her father and was scared at the thought of this occurring. [B] said that she would not see her father, even if her sisters agreed to. [B] said that she did not talk to her mother about her father, but did speak to her counsellor, [Ms K], about him. [B] was informed that the observation with her father would not proceed given her obvious reluctance.

    75.[B] could not think of anything she liked about her father. [B] stated that her father choked her mother and hit her and her sisters a lot, especially when he was drunk. [B] was not able to describe how she knew her father was drunk. [B] said her father would pull her hair and hit her on the bottom. [B] said her father would hit her when she said she loved her mother and (maternal) grandmother more than him.

    76.[B] reported that she had witnessed her father come into their bedroom and attempt to choke her mother. [B] said that she had jumped on her father’s back to stop him and he had thrown her off, causing her to nearly hit a cupboard. [B] could not recall how old she was when this incident allegedly occurred.

    77.[B] said that when her mother was overseas her father had made them play tennis at the back of their school. [B] said that when they missed the ball, he threw the ball at them, hitting and hurting them. [B] said she could not remember where the balls had hit her. [B] said that her father had made them walk home after this incident, whilst he drove his car.

1. The Family Report writer, in evaluation and her recommendations, said:

   EVALUATION

   80.[J], [T] and [B] each expressed a clear view that they wished to continue to live with [the mother] and spend no time with [the father]. [J] and [T] appeared significantly distressed when the issue of seeing [the father] was raised with them, stating that they continued to be fearful of him. It is suggested that significant weight is given to [J] and [T’s] views given their age and apparent developmental level. With regard to [B’s] age and apparent developmental stage, it is recommended that limited weight be given to her expressed views. It is not, however, suggested that her views be entirely discounted, given her expressed fear of [the father] and the likely influence her siblings and mother’s views would have on her beliefs. Given the children’s alleged and observed fear, it may be that Orders that suggest a change of residence to the father or that define the time [J], [T] and [B] should spend with [the father] are contra-indicated and may have a negative impact on their emotional well-being.

   81.All three children reported a positive relationship with [the mother] and spoke of doing many activities together as a family. All three children were unable to identify any positives in the relationship they had with [the father], even prior to the parental separation. [The father’s] claim that he was the primary carer for the three children whilst [the mother] spent extensive time outside of the family home was not supported by the children or [the mother]. The Court would need to determine the veracity of these claims.

   82.[The mother] alleged coercive controlling violence perpetrated by [the father] which included serious physical, psychological and emotional abuse. She alleged the children were exposed and subjected to [the father’s] violence. Whilst the veracity of these claims is unknown, it was noted that [the mother] did report a history of family violence to Police following the incident in November 2010 and that the Police and FACS have a record of at least another possible family violence incident that Police attended. Subpoena information from an expert witness statement by Dr [I] from the [L] Clinic, dated 10 June 2011 (sleeve …) also supports [the mother’s] claim of family violence by [the father]. [The mother] attended on Dr [I] in April 2010 and was assessed as having an injury consistent with the incident of abuse she recounted.

   83.It is noted that in previous Work Cover assessments, [the mother] reported to the assessing psychologists that [the father] was a supportive partner. Whilst this may have been the case, it is also possible that [the mother] lied to seek financial advantage, by focusing on her difficulties at work. The veracity of this issue is a matter for the court.

   84.[The father] denied all allegations of physical, psychological or emotional abuse, stating instead that [the mother] had coached the children to make the allegations of abuse against him. From [J’s] reports, it may be that she has been exposed to information via [the mother] regarding the alleged family violence that was inappropriate for her age and developmental level.  Subpoena material from Family and Community Services (sleeve …) also indicates that [the mother] may have been sharing inappropriate information with the children regarding her alleged fears that [the father] may return to harm her and the children. This does not necessarily mean, however, that [the mother] has coached the children, though it may be indicative of some inappropriate boundaries with between [the mother] and the children. It should be noted that [the mother] and the three children provided consistent stories regarding the abuse from [the father]. While this can sometimes mean children have been coached by their parent, in this case, the children, in particular [J] and [T’s] physical and emotional responses whilst speaking of their father, may suggest otherwise.

   85.It would not be unrealistic, given [J], [T] and [B’s] accounts of the family violence, that they would be estranged from [the father], if it was found that there was veracity to these allegations. Regardless, however, of the reason for their estrangement, it is suggested that the children would likely to be traumatised if Ordered to live with their father.

   86.If the abuse occurred, [the father’s] continued denial may indicate a lack of insight into the impact of violence on the children and an unwillingness to change his behaviour in the future. In Dr [M’s] subpoena material (sleeve …) there is a letter from Reverend [N], dated 12 March 2011, which refers to [the father’s] wife “[O].” If the Court determined that [the father] was a perpetrator of coercive controlling violence and that he has re-partnered, it is possible he could perpetrate violence against any new partner. If [J], [T] and [B] were to spend time with their father and any new partner they could be exposed to this violence.

   87.Both parents described an incident where [the mother] threatened to harm [the father] with a broken glass bottle. Given an absence of evidence regarding other behaviours that would indicate [the mother], acted in a coercive controlling manner, it may be possible that her threat was an act of violent resistance in response to a threat or perceived threat from [the father]. None of the children reported any fear of [the mother], nor did [the father] report any other similar incidents. It is likely therefore that [the mother] does not pose a risk to children in regards to this issue, although the veracity of this would need to be determined by the Court.

   88.Subpoena information from Family and Community Services (sleeve …) suggested that JIRT substantiated that [the father] was named as a person causing harm to [T] due to him displaying “grooming behaviour” towards her. Whilst there are no criminal convictions regarding this issue given the allegations by [T] and the substantiation by JIRT, if the Court finds the children should spend time with [the father], it is recommended that this time is supervised.

   89.Both parents reported that they have experienced mental health issues. From the evidence contained in subpoena material there was no suggestion that either parent’s mental health was not well managed at this time.

   90.Given the allegations of family violence and the lack of communication reported by each party, shared parental responsibility is contra-indicated.

   RECOMMENDATIONS

   91.      It is recommended that the children live with [the mother].

   92.It is not recommended that [J], [T] and [B] be subject to Orders that provide for them to spend time with or communicate with [the father]. 

   93.It is recommended that [the mother] hold sole parental responsibility for [J], [T] and [B].

   94.It is recommended that [the mother] seek specific family violence counselling to focus on the messages she gives her children about the alleged past violence from [the father] and their ongoing safety. [The mother] could contact the Domestic Violence Line: … to gain information on services in her area.

   95.It is recommended that if the Court felt that family violence had occurred and [the father] admitted to playing a role in perpetrating this violence, that he may benefit from attending a course for perpetrators of family violence such as Taking Responsibility, Relationships Australia (Ph: …) or similar.

   96.It is recommended that the children continue to engage with their counsellor Ms [K] at the [P] Clinic as per her recommendations.

The best interest considerations: The Additional Considerations: s 60CC(3)

1. The additional considerations in respect of determining best interests are set out in s 60CC(3) of the Act. The relevant considerations are as follows:

   (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   The views of the children are set out above. They have been formed by reason of the children’s own and shared experiences of their mother and father. In the circumstances of this matter, where the domestic circumstances have been overshadowed by fear and violence, the wishes of the children should be afforded significant weight.

   (b)the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child);

   The children remain in the primary care of the mother, as they have been throughout their lives. The children have a positive relationship with the mother. As a consequence of the matters referred to above, the children have no relationship with the father and, as observed by the Family Report writer, would likely be traumatised if required to have any relationship with him.

   (c)the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child and to communicate with the child;

   The mother has had the primary role in this regard. The father’s role in this regard, if any, is overshadowed by instillation of fear in the children and violence perpetrated by him.

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   The children are living with the mother. The Family Report writer said “(r)egardless, however, of the reason for their estrangement, it is suggested that the children would likely to be traumatised if Ordered to live with their father.”

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   This is not a relevant factor. The children live with the mother and it is recommended that they have no contact with the father. Any contact at all would need to be in an institutional supervised setting, and even that is not appropriate.

   (f)the capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;

   The matters referred to above demonstrate that a determination of this issue will need to await a full hearing.

   The mother, despite her experiences at the hands of the father and by reason of his coercion, has appropriate capacity. She has demonstrated this historically during cohabitation and following separation in the difficult circumstances she found herself and the children in.

   The father has no capacity in this regard. To the Family Report writer he disavowed his conduct, notwithstanding clear evidence to the contrary. It is inferred that he has little or no reflective capacity as to the effect of his behaviour on the mother and his children.

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   The older children are of more mature years and their experiences of the father are well recalled. Those experiences will remain with them. The youngest child has recall but, in all probability, her experience of her father will diminish over the years.

   (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   This factor is touched upon by the other factors considered above. The mother has struggled under the oppression of a coercive and violent relationship, yet to the best of her ability she has protected and nurtured her children. The father, as has been said, lacks any appreciation of his conduct and has by such conduct demonstrated no understanding of his responsibilities as a parent.

   (j) & (k)        any family violence or family violence order

   The violence and abhorrent conduct of the father is referred to above. It is indicative of the need to make orders protective of the mother-children relationship in this matter.

   There has been a family violence Order protecting the mother at the time of separation by reason of the father’s conduct. That Order has expired. There was for a time also an Order protecting the child T, as referred to above. That Order is no longer in effect.

   (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;

   It is appropriate that final orders be made so that the mother and children have certainty.

The Primary Considerations: s 60CC(2)

1. The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

3. In any event, in respect of the benefit to the children in having a meaningful relationship with the father, the children’s relationship with the father, such as it is, is overshadowed by fear and anxiety at present and is fraught with underlying concerns that contact with the father will traumatise the children. A father-children relationship on that basis cannot be something that is meaningful to the children and any suggestion of orders that would facilitate contact between the father and the children is contraindicated.

4. The second primary consideration is the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. In applying the considerations set out in subsection 60CC(2), the Court is to give greater weight to this consideration.

5. This is a most significant issue for these children. They have been exposed to violence and the father’s abhorrent behaviour. There is a significant and unacceptable risk that any contact with the father will see them again exposed to such behaviour. No contact with the father is strongly indicated for the protection of the children.

Who should have parental responsibility?

1. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in certain circumstances, as set out in [23] above.

2. The issue falls to be determined by a consideration of the child’s best interests. The major long-term issues the subject of parental responsibility relate to a child’s education, religion and cultural upbringing, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.

3. As a consequence of the matters set out above, it is not in the best interests of the children, in circumstances where it is appropriate that they have no contact with the father, that he have any parental responsibility role.

4. An order will be made that the mother have sole parental responsibility for the children.

5. The Court is thus not to give consideration to the provisions set out in s 65DAA of the Act as to whether a child spending equal time with each of the parents is in the best interests of a child and reasonably practicable, and if so, to consider making an order for such equal time or if not to consider whether a child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.

What orders are in the child’s best interests?

1. For the reasons set out above, it is in the best interests of the children that orders be made as sought by the mother and as supported by the Independent Children’s Lawyer.

2. Orders will be made accordingly in terms as set out at the forefront of these reasons for Judgment.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 May 2014.

Legal Associate:      

Date:    30 May 2014