Olson and Samuel

[2016] FCCA 503

FEDERAL CIRCUIT COURT OF AUSTRALIA

OLSON & SAMUEL [2016] FCCA 503

Catchwords:
FAMILY LAW – Parenting – relocation – family violence – unfounded sexual abuse allegations.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CC, 61DA, 61F, 65DAA

Victims of Crime Assistance Act (NT)

Jones v Dunkel (1959) 101 CLR 298

Applicant: MS OLSON

Respondent: MR SAMUEL

File Number: DNC 671 of 2007

Judgment of: Judge Young

Hearing date: 10, 11 & 12 November 2015

Date of Last Submission: 12 November 2015

Delivered at: Adelaide

Delivered on: 9 March 2016

REPRESENTATION

Solicitors for the Applicant: Ms M Bowen of Bowen Lawyers, Barristers & Solicitors

Solicitors for the Respondent: Mr M Kamarul of Northern Territory Legal Aid Commission

Solicitors for the Independent Children's Lawyer: Ms E Terrill of Terrill & Associates

ORDERS

1. That the mother has sole parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2009 (“the children”).

2. That the children live with the mother.

3. That the mother be permitted to relocate with the children to the Sydney region forthwith. 

4. That the children shall spend time with the father as follows:

   (a)14 days at the end of Term 2 of the NSW school holidays in 2016;

   (b)one (1) week at the end of Term 1 of NSW school holidays in 2017 and each year thereafter;

   (c)10 days at the end of Term 2 of NSW school holidays in 2017 and each year thereafter;

   (d)one (1) week at the end of Term 3  of NSW school holidays in each year;

   (e)during Christmas school holidays as follows:

   (i)2 weeks with Y and 3 weeks with X during second half of 2016/2017 Christmas holidays;

   (ii)3 weeks with both children during first half of 2017/2018 Christmas holidays and each alternate year thereafter;

   (iii)3 weeks with both children during second half of 2018/2019 Christmas holidays and each alternate year thereafter;

   (iv)on up to three (3) occasions  in each  year from 5 pm Friday until 5 pm the following Sunday with the changeover to be supervised at an approved Children’s Supervision Centre.  The father is to give the mother a notice of no less than six (6) weeks of his intention to spend time with the children, and both parties are to attend any required intake assessment prior to the changeover occurring.

5. That should Y express distress and wish to spend time with maternal or paternal family members during the time she is to spend with the father at the end of Term 2 in 2016, the father shall telephone the mother and make arrangements for Y to spend time with the family member she nominates.

6. That for the purpose of the children’s travel to spend time with the father the following shall apply:

   (a)The father is to pay for and book tickets for the children to fly to Darwin and the mother is to pay for and book tickets for the children to return from Darwin;

   (b)That each parent shall send to the other parent the children’s travel itinerary no later than six (6) weeks prior to the children’s departure date by way of post or text.

7. That the parents shall communicate with one another by way of SMS only about the children’s issues, and by telephone in the event of emergencies.

8. That the father shall communicate with the children as follows:

   (a)Call each Thursday between 5 pm and 5.30 pm NT time to mobile telephone number 0474 044 020 from his mobile number 0499 616 919, and the mother shall do all things necessary to facilitate that communication;

   (b)on the children’s birthdays between 5 pm and 5.30 pm NT time;

   (c)on Christmas Day between 5 pm and 5.30 pm NT time;

   (d)on Father’s Day and Father’s Birthday between 5 pm and 5.30 pm NT time with the mother to initiate and facilitate these calls to the father; and

   (e)that the children be permitted to contact the father at all reasonable times.

9. That the mother shall communicate with the children during the time they are spending time with the father each Thursday between 5 pm and 5.30 pm NT time, and the father shall do all things necessary to facilitate that communication.

10. That prior to the commencement of time with the children, the father shall inform the mother of the address at which the children will be staying when spending time with the father no later than seven (7) days prior to the children’s travel.

11. That the mother and the father keep each other informed of their current telephone numbers for the purposes of communication with and about the children, and inform one another of any changes to their telephone numbers within 48 hours from the changes occurring. 

12. That the parent who has the care of the children, shall notify the other as soon as practicable of any medical emergencies, and provide to the other details of any treating practitioners, hospitalisation and medication. 

13. That each parent shall inform the other of any serious illness concerning the children, and provide to the other any medication as prescribed or directed to obtain by any treating practitioner.

14. That the mother shall provide to the father copies of the children’s school reports. 

15. That the mother is permitted to travel with the children outside of the Commonwealth of Australia without requiring the father’s permission.

16. That the Director of the Department of Trade and Foreign Affairs is hereby authorised to issue the children X born (omitted) 2006 and Y born (omitted) 2009 passports notwithstanding the absence of the father’s signature on the applications. 

17. That the mother and the father shall not speak negatively about the other parent to the children, or to any third parties within the hearing of the children, and shall immediately remove the children from the presence of any person who speaks about the other parent in a derogatory or negative manner.

18. That the parent who has the care of the children shall not expose the children to domestic violence, and any parties under the influence of drugs and/or alcohol.

19. That the Independent Children’s Lawyer is hereby discharged.

20. That all other orders be discharged.

21. That pursuant to section 65DA(2) and 62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A attached hereto, and those particulars are included in these orders.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to reflect the addition of orders (1) to (21).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 671 of 2007

MS OLSON

Applicant

And

MR SAMUEL

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting case about two children: X, aged 9 years, and Y, aged 7 years. The mother wishes to relocate with the children from Darwin to Sydney because, she says, of the father’s violence or threats of violence and his unremitting harassment of her. The father does not oppose the children continuing to live with the mother but he opposes her relocation. The mother says that if she is not permitted to relocate with the children she will relocate without them, leaving them in the father’s care.

2. The mother is 47 years old. She was born in the (country omitted). She is employed as a (occupation omitted).

3. The father is 60 years old. He was born in (omitted). He is an Aboriginal man who describes himself as from the (omitted) tribe around (omitted) in Central Australia. He receives a disability pension and is also an (occupation omitted).

4. The parties met through a pen pal arrangement. The mother was then resident in the (country omitted) and the father in Darwin. The father went to the (country omitted) to meet the mother in (omitted) 2005 and they married in (omitted) 2005 in the (country omitted). The mother moved to Australia permanently in 2006 to live with the father. The parties separated in February 2010 as a result, the mother claims, of an incident of family violence. She says this was part of an extensive history of family violence directed at her by the father.

5. The mother’s claims of family violence were sometimes vague and generalised. However, I accept her as a truthful witness and usually a reliable one. Many of the allegations she made were corroborated by other evidence.

6. The father was an untruthful and unreliable witness. He made wild claims, including claims of sexual abuse by the mother against X which I find are false. In addition, he has a history of making baseless claims against the mother to child welfare authorities and police. I consider these claims below. I find that he made these claims deliberately knowing them to be false.

Violence and harassment by the father

1. The wife alleged that she was physically assaulted by the father on a number of occasions during the marriage. He unequivocally denied any physical violence or assault of the mother. The mother alleged she was assaulted in 2007 two days after returning from hospital after a miscarriage. She said that an argument developed about money owed to the wife’s sister. She said that the father grabbed her by the throat and tried to strangle her. On another occasion, she said in 2008 but I find on 3 December 2007, the father punched her with both fists to each side of her head. She said the father also grabbed her by the shoulders digging his fingernails into her skin. She was examined by a doctor the same day. The medical notes of an examination of the mother dated 3 December 2007 reported the mother complaining of an assault early that morning. Examination revealed bruising behind an ear and a small haematoma in the left parietal region. No other fresh marks were observed but the doctor reported the mother as saying “she had been assaulted several times in the past but [is] just too afraid to report”. The assault was also reported to police on that day. I find the father punched the mother to the head on this occasion and, without being able to be more specific, physically assaulted her on other occasions.

2. The wife said she was threatened with a steel bar by the father on another unspecified occasion. She said that she sought help after being hit by the father in February 2008 in an incident that is not further described in her affidavit. She moved out of the matrimonial home to the (omitted) for a period of three weeks. She then moved back to the matrimonial home.

3. The mother alleged she was threatened by the father sometime in 2009 when she went into his “(hobby omitted) room” to clean up. She said that the father picked up a “cutter knife, about 20 cm long” pointed it at her face and told her not to come inside his room.

4. The mother finally separated from the father on 15 February 2010. The mother said that the father had become angry, accusing the mother of exposing her breasts while she breastfed Y at a restaurant the previous evening. The mother said that the father shouted at her and accused her and her sister, who was present, of being prostitutes. She says that the father pushed her so that she nearly fell over while she was holding Y. The mother left the matrimonial home and sought and obtained a domestic violence order. The mother has been protected by domestic violence orders in one form or another for most or all of that time to the present.

5. A domestic violence order was also obtained around the same time by the mother’s brother-in-law, Mr K. I will turn to Mr K’s evidence later.

6. The mother alleged a series of events following separation, some of which are denied by the father and others are established by independent evidence. Notwithstanding that the mother’s evidence was often vague as to time, dates and places I accept her evidence unless otherwise stated.

7. The mother said the father breached the domestic violence orders on many occasions. (The record of the father’s convictions is dealt with below). On one unspecified occasion he insulted her by saying “your baby is ugly and you’re a prostitute”. He left telephone messages in breach of the domestic violence orders. She says he “stalked” her by driving to her friends’ homes when she was visiting and to her own house, beeping his car horn and shouting at her. She complained to the police on these occasions. These complaints were recorded on the police file.

8. She said that on one occasion the father had approached her at the (omitted) Shopping Centre accusing her of being “money hungry”, being a prostitute and “molesting” X. She says that he said to “other people around” (which I take to mean passers-by in the shopping centre) that she was “money hungry” and “wants to get everything” and that she was a “mud lady”. She said he said to her “fuck you”, “you’re a dog”, “you’re a monkey face” and “you’re an ugly duckling, a rape victim”. The mother said she was ashamed and embarrassed by the father’s conduct.

9. On another occasion, on 3 January 2015, the father, driving with the children in his car, saw the mother driving towards her home. He flashed his lights and followed her very closely. The mother pulled to the side of the road and the father drove his car so that it ran into the rear of the mother’s car. She says the damage was extensive and she paid $1,200 for its repair. The father says the collision was an accident. The mother reported this to the police but nothing came of that. Although I do not believe I can make a finding that the father deliberately damaged the mother’s car I consider that it is, at least, not unlikely.

10. On 7 January 2015 the mother says that the father telephoned her in the early hours of the morning leaving voice messages calling her “a dirty old bitch” and, in an altered voice purporting to be someone else, saying “hello auntie Ms Olson, we are now waiting for you outside the (omitted) Hotel, you old prostitute, give us some money to, you dirty old prostitute”. The mother reported these matters to the police.

11. The mother said that the father continued to drive past her house, beeping his car horn and flashing his lights. She said that on 10 January 2015 after coming home from visiting a friend she saw the father’s car parked on the side of the road near her home and he flashed his headlights at her as she drove into her driveway. She said that the next day she found an envelope in her letterbox. Written on one side was “Ms Olson the devil” and on the other “Ted Bundy after you slut” (which I take to be a reference to the American rapist and serial murderer). The mother’s affidavit does not say she recognised the writing as the father’s. She also reported this to the police but was told, she said, that in the absence of “proof” that the letter was left by the father there was nothing the police could do. I find the envelope was likely left by the father.

12. On 13 February 2015 the mother says that while she was attending the Magistrates Court in relation to a domestic violence application that the father approached her and called her a “child molester” in a loud enough voice for others in the general area to hear. A security officer escorted her away. The mother says that the father repeated this in a loud voice as she left the court. The father denied this but I accept the mother’s evidence.

13. The father’s harassment was varied in nature. The mother produced a letter dated 13 April 2010 from the Department of Immigration and Citizenship on behalf of the Minister to the father. The letter was evidently a response to an allegation by the father against the mother that she had stolen money from him. The father had made a complaint to the police and the apparent objective of the father’s complaint to the Minister was to have the Minister deport or take other action against the mother. The Department evidently had no further interest in the matter. The father provided a copy of the letter to the mother. I have little doubt that the allegation was baseless and malicious.

14. The mother’s brother-in-law, Mr K, also gave evidence. Mr K described a long history of harassment of himself and his wife, the mother’s sister, by the father. It is unnecessary to recount his evidence in detail. He described violence and insulting and degrading behaviour directed against the mother by the father. He recounted hearing repeated threats by the father to have the mother deported. Mr K and his wife obtained a domestic violence order against the father. He says that his car windscreen was broken shortly after the orders were made. He holds the father responsible. I do not make any finding about that.

15. Mr K also said that the father harassed him at work, wrote a letter to his employer ((employer omitted)) making false allegations of fraud and dishonesty against him and threatening to have Mr K’s wife deported. He says that the father mailed a packet of marijuana to his post office box with a note inside saying “here is the drug you’ve ordered”. Mr K says he recognised the father’s handwriting. He reported the matter to the police.

16. The father also made allegations, according to Mr K, that he and his wife had sexually abused X and Y. Mr K produced a transcript of a voice message left on his mobile phone 2 March 2010 where the father makes various threats against Mr K as well as calling him a “child molester” and his wife an “ex-prostitute”. I accept that the father made false and malicious allegations against Mr K and his wife.

17. Mr K said that the harassment was so severe that he and his wife and children reduced the time they spent with the wife and her children. He said he changed telephone and mobile telephone numbers and even moved house to avoid the father’s harassment. I accept his evidence about that.

18. Mr K gave evidence that he had seen the mother’s mental well-being deteriorate throughout her relationship with the father and after separation. He says that he has observed the mother to be fearful, apprehensive and to cry often. I accept his evidence.

The father’s criminal history and imprisonment

1. The father has a criminal history. His first convictions for dishonesty offences occurred in 1976 in (omitted) when he was 21 years old. He was sentenced to a suspended period of imprisonment. In 1987 in Darwin he was convicted of numerous counts of forgery, criminal deception and stealing and sentenced to 8 months imprisonment. In 1988 he was convicted of numerous counts of criminal deception and sentenced to 3 months imprisonment. Later in 1988 he was convicted of unlawful entry to commit a crime and breach of parole and sentenced to 2 years imprisonment with a non-parole period of nine months. In 1992 he was convicted of an aggravated assault on a female and fined $500.

2. The father appears to have ceased his criminal behaviour until his offences against the mother and breaches of domestic violence orders in 2010. On 7 June 2010 in the Court of Summary Jurisdiction, Darwin the father was convicted of seven counts of contravention of a domestic violence order and one count of assaulting a female. On 7 July 2010 the father was convicted of six counts of contravention of a domestic violence order. The aggregate sentence for both sets of domestic violence order contraventions was a sentence of 14 days imprisonment and one month imprisonment for the assault. The criminal history produced on subpoena by the police does not state the name of the victim of the assault but I take it to be the mother.

3. It is relevant that in October 2010 the father wrote to one of the magistrates who had sentenced him earlier in the year. The, letter signed by the father, is offensive, obscene and broadly threatening. The matter was reported to police but a decision was taken not to pursue the matter further. The police report and a copy of the letter were produced in answer to a subpoena to police.

4. On 1 June 2011 in the Court of Summary Jurisdiction, Darwin the father was convicted of three counts of contravention of a domestic violence order and breach of a suspended sentence. On 3 June 2011 the father was convicted of two counts of contravention of a domestic violence order. The aggregate sentence of imprisonment for both sets of offences was three months suspended after 18 days.

1. On 10 October 2012 the father was convicted of three counts of contravention of a domestic violence order and two breaches of suspended sentences. The aggregate sentence of imprisonment was 14 days.

2. On 6 July 2015 the father was convicted of eight counts of contravention of a domestic violence order. The aggregate and cumulative sentence was 16 weeks imprisonment suspended after six weeks.

3. Counsel for the father submitted that these were merely technical breaches of domestic violence orders and suggested that the father was the unfortunate subject of a mandatory sentencing regime. I reject that submission and that suggestion. One of the counts was for assault of a female. The noteworthy aspect of the convictions for the contravention of domestic violence orders is that it reflects repeated conduct over a period of years. In my view the repeated conduct reflected in the convictions, as well as the father’s letter to a magistrate, indicates contempt for the law, contempt for measures taken by the state to protect vulnerable members of our society and contempt and hatred for the mother. In my view there is a real risk that the father will continue to breach orders in future.

4. The father’s conduct also indicates a lack of insight into the needs of his children and the effect on them of his continued harassment of the mother. It indicates a deep-seated incapacity to put the interests of his children before his own interests.

The father’s allegation of sexual abuse

1. Illustrative of this conclusion is the father’s allegation that the mother sexually abused X. In his trial affidavit, which was drafted by a lawyer, the father says:

   In 2011 Ms P and I walked in on Ms Olson and X in one of the bedrooms of her home. I believe that on that date (sic – no specific date or time is given) I saw Ms Olson molesting our son. I walked up the passageway of the house to the last door. X ran out of the room holding his private parts and I looked in the room. Ms Olson was in the room pulling up her jeans. X went and hid behind the couch.

2. In an interview with the family report writer (the father was interviewed on 21 April 2015 and 5 May 2015) the father’s story was more specific and slightly different in detail. He was reported as having said that he saw the mother “leaving the bedroom while still dressing herself and X running from the bedroom whilst attempting to cover an erection”[1]. X would have been 4 or 5 years old at this time.

   [1] Family Report, [31].

3. The father said that he reported this to the Department of Children and Families but the investigation was taken no further.

4. The father’s affidavit goes on to say that he raised this concern before another judge of this court (in what circumstances and when is not explained but presumably in the course of an interlocutory application) and the judge told him “the complaint was scandalous and [the judge] did not take the matter any further”. The relevance of this statement is not set out in the affidavit but one possible interpretation, given that the judge’s assessment was ignored in the preparation of the subsequent trial affidavit, is that what was intended to be implied was that the father had raised this allegation repeatedly and had been improperly ignored by various authorities. If so, that implication is itself scandalous and improper.

5. As noted, notwithstanding a clear signal from the court that the allegation was very serious and should not be made unless there was a proper evidentiary basis[2] for it the allegation was repeated in the father’s trial affidavit. Further, the father’s trial affidavit says that he would “like Ms P to give evidence on that matter”. No explanation is given in the affidavit about why he did not call Ms P to give evidence. There was no indication that she was unavailable to give evidence. She would, if there was any truth to the father’s allegation, be a critical witness.  The suggestion that the father would “like” Ms P to give evidence with the implication that some person, party or institution other than himself was responsible for producing her to do so is, in my view, artful and disingenuous.

   [2] The Rules of Professional Conduct of the NT Law Society under the heading Preparation of Affidavits relevantly say:

6. The father raised this serious allegation. He was in a position to call a material witness in support of the allegation or explain why he had not done so. In the circumstances the inference is unavoidable that the evidence of Ms P would not assist the father[3].

   [3] Jones v Dunkel (1959) 101 CLR 298.

7. In the trial during cross-examination counsel for the father deliberately refrained from squarely putting the allegation to the mother that the father had observed her engaging in sexual activity with X. Instead, he suggested to the mother that the father may have misinterpreted what he had seen on the basis of his own sexual abuse as a child.

8. The mother would have none of that. She indignantly and passionately rejected the allegation against her and dismissed the suggestion that the father may have observed something innocent and mistaken it. She said he had witnessed nothing at all and she could simply not imagine a father saying such a thing. She denied that the father and Ms P were in her house in 2011. She pointed to the existence of a domestic violence order preventing him from approaching her or any place she was living. I note that the domestic violence order made in February 2010 expired on 16 February 201l. It appears from the police file that she applied for a further DVO on 31 January 2011 and possibly again on 3 March 2011. The police file records a further DVO being made on 20 May 2011 extending to 19 May 2012. It is unclear whether a DVO was operative between 16 February 2011 and 20 May 2011. It might be thought surprising if there was not as the father was imprisoned for breaches of DVOs on 7 July 2010 and 1 June 2011.

9. Counsel for the father, while making passing reference to the allegation of sexual abuse in his written case outline, did not make any oral submission about it.

10. It should also be remembered that the father’s case is that the children should live with the mother in Darwin. That is entirely inconsistent with a belief by any reasonable person that the mother sexually abused X.

11. Inconsistently with the father’s insinuations that the Department of Children and Families or the police or both had not investigated the father’s allegation the file produced on subpoena from the Department of Children and Families and from the police shows that the allegations, made repeatedly over many years, were considered and dismissed by the authorities.

12. The police file records that on 24 January 2012 the father’s then solicitor reported the father as stating to her that “his ex-partner [the mother] had been molesting his 8 year old son… at the home”. On the same day a “child abuse report form” was completed by a police officer from the (omitted) police office. The police officer telephoned the father and spoke to him. The report relevantly reads:

    [police officer] reports call to Y who confirmed that he did call [his solicitor] and confirmed the details that he had provided to her “the mother of his children is molesting his son”.

    When asked why he thought this and what evidence did he have to substantiate his allegation he stated “my wife has turned my son against me, he won’t even talk to me anymore, so she must be molesting him”. When asked if there was anything else (had he witnessed any assault, detected any evidence, had any [of] the children confided in him or another person about such maltreatment etc) that would support such an allegation he said “no”.

    Y went on to say that his wife had taken his kids from him and that his wife was trying to get his property from him.

    When offered to make a statement to police – Y declined.

13. The report went on to conclude that the information provided by the father could not be substantiated and that the complaint may be false. The report noted that an alert existed on the police information system stating that the father had made false reports to the police in the past. Police officers subsequently attended on the mother and the children for a welfare check. The complaint was put to the mother and denied by her. Neither of the children was interviewed. The report states that the police Child Abuse Taskforce (a special unit of the Northern Territory police) had been asked to review the matter.

14. A file note from an officer of the Child Abuse Taskforce dated 30 January 2012 confirmed that the matter had been reviewed and no further investigation was required and referring to an inquiry of Families and Children’s Services. On 26 January 2012 the relevant police officer had inquired of Families and Children’s Services “intake” as to any relevant history. The following report was provided to him (ignoring formal and irrelevant parts):

    There have been five previous reports by the same notifier (1), this is the first report that has been submitted by different notifiers although the information originated from notifier (1) [evidently the father]. There is a current DVO between the mother and father and family court hearing set for March. The allegation of the (sic) X being sexually molested by his mother was initially made on 09/11/2011 after 3 previous had been received, the information was that “X came out of the room ‘holding his dick’. The mother followed the son out of the room. Caller stated that the father asked the child why he was holding his dick and child said nothing, father then asked the mother why and she stated that he is itchy. Father does not believe this has (sic) X was not scratching his penis.” (Report received 09/11/2011)

    None of the previous reports contain sufficient information to proceed to investigation. The following notes have been made on the various reports in relation to the notifier are (sic) as follows:

    – That the reporter had no recollection of his previous notifications; the conversation was difficult to track and reporter had changed what reporter was talking about quite often (Report 25/02/2010)

    – The reporter was advised that the matter will not proceed.

    The reporter became angry when advised the matter will not proceed. The reporter angrily stated to the Intake Worker, “fuck you fucking bitch”. (Report 17/03/2010)

    – Caller again became aggressive and swore at worker saying “I’m trying to tell you and nobody fucking listens”. Callers (sic) information was vague and constantly changing throughout the phone call. It appears that the Father is taking various family members to court despite not pressing charges or pursuing the criminal nature of the allegations. Caller was very aggressive throughout the phone call particular (sic) when asked specific questions relating to the incidents (Report 09/11/2011)

    –   The notifier (sic) language was slurred and his sentences were disjointed, additionally his tone was aggressive. The notifier terminated the conversation by telling this worker “to fuck off you slut” (Report 24/01/2012)

    In conclusion the reports received in relation to these children appear to be malicious in nature. All concerns are historical and there has been insufficient information on any report to warrant a statutory investigation. This report has been recorded as a duplicate report as no new information has been received furthermore (sic) it is noted that the children are being exposed to systems and interventions which are unnecessary.

15. The chronology in this email is somewhat unsatisfactory. However, there are some points to be noted. It appears the allegation that the mother sexually molested X was first made on 9 November 2011. The complaint as initially recorded simply described the child coming out of a room holding his genitals. There is no mention of an erection. There is no mention of the mother dressing. There is no mention of the child hiding behind the couch. There is no mention of the presence of Ms P. There is mention of a conversation with the mother where she supposedly said the child was “itchy” which is not mentioned in the father’s trial affidavit.

16. It appears the caller, the father, was very aggressive, particularly when asked specific questions about the alleged incident.

17. On 24 January 2012, when a police officer, in response to the father’s allegation, sought details of the allegation the father was unable or unwilling to provide any. He declined to make a formal statement to police.

18. On 4 November 2014 the father attended at the (omitted) police office and made a further allegation which, relevantly, is recorded as follows:

    Allegation – In 2011 he returned to his house in (omitted) (sic) in company with Ms P (sic) [some information blanked] and entered through the rear to find his wife “frigging off” his then 5 year old son X (sic). (omitted) [another surname used by the father] states when he walked in X stood and covered his privates, but he had an erection at the time. (omitted) states when his ex-wife was questioned she tried to change the issue and said “I’m going to get a job” repeatedly.

19. The complaint was passed to the Department of Children and Families and the Child Abuse Task Force. The complaint was recorded as having been investigated previously and being unsubstantiated.

20. The father has developed his allegation over time. Details such as the presence of Ms P, the “frigging off” and the erection, apparently referred to for the first time in the 17 November 2014 complaint and, in part, mentioned to the family report writer, have been added since the first report.

21. The refusal to make a police statement when invited to do so on 24 January 2012 is, in my view, entirely inconsistent with a genuine belief in the truth of the allegation.

22. I am satisfied that the father’s claim is deliberately and knowingly false. It is intended to harm the mother.

23. The reference to notifications made before 9 November 2011 relates to earlier allegations by the father that the mother had physically assaulted X, including an allegation that she had knocked out one of his teeth. The father’s trial affidavit makes no mention of that allegation but does allege that she assaulted him on other occasions leaving bruises on his arms and legs. Those allegations were previously investigated by the Department of Children and Families and found to be unsubstantiated. The mother denied these allegations and I am satisfied they are false.

24. Disturbingly, the father maintained his allegations against the mother during cross-examination and indicated a willingness to continue to make them. He said that if the mother moved to Sydney with the children he would follow. He said he would live “100 metres away”. He said that he would commence proceedings in Sydney. After the father said he found the proceedings stressful he was asked if he thought further proceedings would be stressful for the mother. He replied “No. I want justice”.

25. Asked if he would refuse to permit the mother to take the children to the (country omitted) for a holiday, as he had once before, the father said he would not agree and he would never “sign a paper at all”.

The effect of the father’s conduct on the mother

1. The mother says that as a result of his conduct she is afraid of the father and that her fear and anxiety has had a severely deleterious effect on her mental health and well-being. I accept that evidence.

2. Her evidence is corroborated by evidence from a psychologist. In 2015 the mother made an application for financial assistance under the Victims of Crime Assistance Act (NT) as a result of family or domestic violence inflicted on her by the father. In consequence she was examined by a psychologist retained by those administering the assistance scheme. A report was prepared which was tendered in evidence by the mother. The psychologist, who was cross-examined, concluded that the mother suffered from Adjustment Disorder with Anxiety. She concluded that this was disabling for the mother due to

   “her level of emotional distress and ongoing fear as well as a general level of avoidance within the community. It is my opinion that the prognosis would be far better if she were to leave Darwin and therefore the stressors ceased.”

   I accept that opinion.

The relationship of the parents with the children

1. The father has alleged that the mother has attempted to undermine his relationship with the children. He claims that she has failed to comply with consent orders that the children spend time with him. The previous orders, in summary, were:

   (a)    On 1 September 2010 consent orders that the parents have equal shared parental responsibility, the children live with the mother and spend time with the father on Thursday from 9.30 am to 11.30 am during school holidays and 3.30 pm to 4.30 pm during school terms;

   (b)    On 22 January 2013 consent orders varying the previous orders so that the children spent time with the father, during school terms, each Saturday from 9 am until 5 pm, each Tuesday from 3 pm until 5 pm, each Friday from 3 pm until 5 pm, from 9 am on Saturday until 9 am the following Sunday “and each alternate week commencing 26 January 2013”. During the March/April and September/October school holidays the father was to spend time with the children on Tuesday, Thursday and Friday from 9 am until 5 pm. During the June/July and Christmas school holidays the father was to spend time with the children in week 1 each Tuesday, Thursday and Friday from 9 am until 5 pm and in week 2 each Tuesday and Thursday from 9 am until 5 pm and from 9 am Saturday until 9 am the following Sunday.

   (c)    On 16 February 2015 consent orders varying the previous orders to provide that the children spend time with the father each Saturday from 9 am until 1 pm, each Thursday from 3:30 pm until 5 pm, on the children’s birthdays at varying times and to communicate by telephone at a set time each Monday and Wednesday. Changeovers were to occur at CatholicCare.

   (d)    On 22 June 2015 the previous spend time orders were varied for the children to spend time with the father from 10 am until 5 pm on each Saturday for an initial period of six weeks and thereafter on a fortnightly basis in week 1 from 12 midday until 5 pm Saturday and in week 2 from 12 midday Saturday until 12 midday Sunday. There was also provision for special days.

2. The orders of 22 January 2013 and 22 June 2015 (commencing mid- August 2015) provided for the children to spend, in addition to time during the day, one overnight each fortnight with the father.

3. The father brought a contravention application against the mother in May 2013 alleging the children were not made available pursuant to the orders. The affidavit in support was struck out as scandalous and the application was dismissed on 21 May 2013. The father was ordered to pay the mother’s costs.

4. In his trial affidavit the father says that the children spent time only intermittently with him. He says the mother refused to provide the children in compliance with the orders. He says that X spent only one overnight visit in 2013 and other than that he did not see the children overnight until October 2015. The mother says that the children were provided in compliance with orders but that the father frequently did not appear at prearranged times. She agrees that there was only one overnight visit by X in 2013 but she says that X subsequently complained that the father’s accommodation, a caravan, was dirty and he did not wish to go again. She says that Y has never wanted to spend overnight time with the father. The mother says the views of the children were communicated to the father and the father acquiesced in the cessation of overnight visits.

5. The mother said, and this does not appear to be contested, that the children recommenced overnight time with the father on 3 October 2015. She says that thereafter Y refused to spend any overnight time with the father, complaining that she was “scared”. X has continued to spend overnight with the father once a fortnight and at trial in November 2015 had spent three or four overnight visits with the father.

1. Although it is unacceptable that orders of the court are not complied with I am unwilling to conclude that the mother has sought to deliberately undermine the relationship between the father and the children. In evidence she acknowledged that the children, particularly X, enjoyed time with the father and that their relationship with their father was important. I accept that her acknowledgement is genuine. Although I am unable to make specific findings about the reason why the parties have not adhered or closely adhered, until recently anyway, to the spend time arrangements I generally prefer the evidence of the mother about this. She says that the children continued to spend daytime visits with the father on a reasonably regular basis and that if time was missed this was usually because the father was late or did not show up. Y’s refusal to spend overnight time with the father is somewhat more problematic. I accept the mother’s evidence that she has encouraged Y to spend overnight time with the father but Y has continued to refuse. The father appears to have acquiesced in that. The overall context within which these orders operate, that is, one of violence or the threat of violence by the father, multiple breaches of the DVOs by the father and his unremitting false allegations must also be taken into account.

The Family Report

1. The family report writer interviewed the parents and the children.

2. The family report writer recorded some relevant matters about the father’s history, adding to what was in his affidavit. He appears to have had a very difficult life and suffered a number of traumatic events. The father was a state ward from the age of 12 or 13 until age 17. He said he was the victim of childhood sexual assault while in state care at (omitted) Boys Home ((omitted), South Australia). The perpetrators were subsequently imprisoned. The father also lost his 19-year-old son to suicide. The family report writer observed that the father carries the psychological scars of these experiences and he has a history of depression.

3. The family report writer noted that the father has achieved considerable success as an (occupation omitted). According to his affidavit the father also (employment omitted).

4. The family report writer noted the father’s limited education and observed that he is “neither sophisticated in his thinking nor astute in dealing with non-Indigenous people and agencies.” He also observed that the father “says what he thinks with little heed given to the impact of what he says upon others” and that he is “prone to making comment upon others, based upon his own firmly held beliefs that are derogatory and offensive”. He reported the father’s description of the mother as a “compulsive liar” who is “able to make people feel sorry for her” and that she was a “prostitute” at the time he met her and was currently working as a prostitute in Darwin. It should be noted that no evidence has ever been offered in support of these claims.

5. I think it is fair to say that the family report writer, who is highly experienced, felt some compassion for the father and, quite properly, attempted to put the father’s character and behaviour into some sort of personal, social and historical context.

6. The family report writer interviewed both children. He observed that they appeared to be healthy and well cared for.

7. X presented as a happy, engaging young boy who spoke in a positive manner about both parents. He described spending time with his father as “good”. He said that he enjoyed visiting his father’s relatives, going shopping and doing (hobby omitted) at his father’s home. He spoke positively about living with his mother, describing her as a very good cook. He enjoyed going out to dinner with his mother and visiting friends with her. His comments conveyed the impression that he had a positive relationship with both parents.

8. X described his father as a “bushman” who liked (hobby omitted). He was proud of his father’s achievements as an (hobby omitted). He described his father as “not boring” and recounted going out bush with his father, driving on dirt roads and almost getting bogged. He described his father as “nice” but said that sometimes his father got angry with him and raised his voice. He described feeling “a tiny bit” scared at such times.

9. X described his mother in similarly positive terms. He said she was “nice” but also commented that she was “sometimes sad” for reasons that were not clear to him. He said that his mother sometimes shouted at him and sometimes “smacked” him on the arm but that did not happen often. X was aware that his parents “don’t get on” and expressed the view that if he could change anything about his family it would be to stop his parents from fighting with one another.

10. X was unclear about his mother’s proposal to relocate. He was aware that his mother wanted to move to Sydney with the family. He mentioned he had been there once when he was 6 years old. He said that he wanted to remain living in Darwin. He would miss his school friends and did not want to change schools. He also noted that he would miss his father and his younger maternal cousins whom he sees regularly. He acknowledged he might feel differently if he could come back to Darwin during school holidays but generally appeared firmly opposed to moving away from Darwin.

11. Y, no doubt because of her age, struggled to respond to the family report writer’s questions. She made positive comments about both parents and said she enjoyed spending time with her father. She could not offer a coherent response to the prospect of moving away from Darwin.

12. The family report writer also observed the children with their father. He observed that there was no physical greeting or affectionate exchange on first meeting and the father sat down and made no effort to physically interact with the children but, at the same time, the children appeared comfortable in his presence and spontaneously engaged in conversation and competed for his attention. The father effectively engaged the children in conversation and was responsive to them. The children displayed no sign of discomfort or anxiety and appeared to enjoy his company.

13. The family report writer noted that the mother said that X was sometimes reluctant to go with the father but generally “the children want to see their father”. He also reported that X was “not happy” about the prospect of leaving Darwin and he was troubled by the prospect of missing his classmates and other friends. The mother reported asking X if he would like to live with his father to which he reportedly replied that he likes his father but does not want to live with him. Y was more accepting of the proposed relocation.

14. The family report writer evaluated the proposals of the parties. It appears that at the time the mother was interviewed she proposed to relocate to Perth. At the time of trial her firm proposal was to relocate to Sydney with her new partner. It is noteworthy that the partner was not mentioned to the family report writer and he was not interviewed. The mother’s explanation for that was that the relationship was in its early days at that time. This is considered further below.

15. The family report writer noted that the mother had no family members living in Perth and she would be leaving her established social support in Darwin, including her sister and brother-in-law, and their two children who have a close relationship with X and Y.

16. The family report writer also noted that a further factor weighing in favour of the children remaining in Darwin is the children’s need for an ongoing, positive connection to their Aboriginal culture. He was not satisfied that the mother had given much thought to this aspect of the children’s welfare and did not believe she considered it to be a significant issue. I accept that these are valid concerns.

17. The family report writer observed that the case was a somewhat unusual one in that the mother seeks to relocate for the express purpose of escaping from what “she describes as the father’s ongoing harassment and intimidation of her and her family”. He observed that “[h]er proposal largely rests upon her experience of domestic violence allegedly perpetrated against her by the father”. He noted these allegations were denied by the father and observed that there was “little in the way of independent evidence to indicate that domestic violence referred to has been physical violence against the mother”. However, he went on to acknowledge that “harassment, intimidation, threats and emotional abuse can be equally, and sometimes more damaging than the experience of physical violence especially when perpetrated over a longer term”. He noted that the mother appeared to be suffering a high level of psychological distress.

18. The family report writer concluded that the mother’s proposal to relocate with the children was unlikely to promote their best interests. He referred to the mother moving away from both maternal and paternal family in Darwin, the children’s positive relationship with the father, the father’s poor health and possibly limited life expectancy, the father’s ability to promote the children’s cultural needs as Aboriginal children, X’s opposition to relocation, that the mother’s proposal is founded solely on her desire to escape from the father and what “she views as his ongoing harassment and intimidation”, the father’s statement that he would follow the mother in order to maintain a relationship with the children and the fact of a continuing domestic violence order and the father’s awareness of the risk of imprisonment if he were to breach that order. He recommended that the parents have equal shared parental responsibility and the children remain living in Darwin with the mother.

19. The family report writer acknowledged that, while these factors support the children remaining in Darwin, the mother would struggle to accept such a decision and this could potentially impact upon her parenting capacity by diminishing her sense of well-being. He said it would be “important for the mother to continue to address her psychological distress by attending at counselling”.

20. There are a number of observations that must be made about the family report writer’s conclusion and recommendations.

21. The most fundamental is that the mother said in her trial affidavit that she will move to Sydney without the children if necessary. She repeated this convincingly in cross-examination, citing her inability to cope with the stress of the current situation. The mother was asked what her response would be to the court’s decision should permission to relocate be refused. She said “It will be too hard for me but I will go. I am scared for my life, I am going”. I must accept that this is, at least, a distinct possibility. The father does not propose that the children live with him and no evaluation has been made of the prospect of the children living in Darwin with the father. The report writer, when asked to consider the possibility of the mother moving to Sydney without the children, said that could have very grave consequences and “I don’t know about the father’s capacity to parent”. I agree. I have serious reservations about the father’s parenting capacity and, in any event, the children do not want to live with her father.  

22. Further, at the time the family report was prepared the author did not have the benefit of the factual findings I have made. I have found the mother was subjected to multiple physical assaults by the father; that the father has been convicted of many breaches of domestic violence orders intended to protect the mother and, in consequence the father has been imprisoned on four occasions; that the father is contemptuous of courts and their orders and there is a very real risk that he will breach orders in future, including domestic violence orders; that he has deliberately made false allegations against the mother and her relatives over many years without the slightest sign of regret, contrition or understanding of the consequences of his conduct; that the father has harassed the mother and her relatives and that, in consequence of these matters, the mother suffers from a mental illness. In my view, the father is likely to continue to harass and make false allegations against the mother.

23. Regrettably, as the family report writer pointed out, the mother’s relocation to Sydney may not be a real remedy for the mother if the father, as he threatens he will, moves to Sydney, commences further proceedings or makes further allegations.

The competing proposals

1. The mother wishes to relocate to Sydney with the children. She plans to live with them and her partner, Mr M, in the Sydney area. Mr M did not wish the father to know his name because he fears harassment from the father. I agreed that he might be identified by his first name only. His surname was provided to me during the trial and I understand that the name is known to each counsel. I made an order that the father’s counsel not disclose Mr M’s surname to the father. Mr M gave evidence by telephone from Sydney. Clearly this procedure was far from satisfactory but I considered that there was some justification for it.

2. Although Mr M and the mother commenced a relationship sometime in 2014 this appears to have been “long-range” as Mr M moved to Sydney in late 2014. The children appear to have spent little time with Mr M although he said the mother and children spent a two week holiday with him in his home in Sydney in mid-2015 and, according to him, thoroughly enjoyed the time.

3. It is most unfortunate that the mother failed to disclose her relationship with Mr M to the family report writer. The relationship must have been reasonably well developed at that point, particularly as the mother and the children spent a two week holiday with Mr M around the time she was interviewed for the family report. The court is deprived of the opportunity of making a proper assessment of an adult with whom the children will have a significant relationship. The mother’s failure is to be strongly deprecated.

4. Nevertheless, Mr M was cross-examined. He was asked whether he had any convictions for violence related offences and replied that he had “nothing recorded” but had been charged in 1995 with assaulting another man. He said he was not previously married and does not have children of his own. He said that he had previously lived in a previous de facto relationship with a woman who had a young daughter. He was asked whether he drank and he replied that he drank “up to 4 beers a day”. He said he didn’t gamble other than on the Melbourne Cup. He said he had a good relationship with children but as he was not the children’s father he would not expect to take a primary parenting role but rather would support the mother. He denied ever telephoning or threatening the father as alleged by the father. He said he would be happy to encourage the children to speak to their father by telephone or via Skype. He would help the mother set up a computer and Internet connection. He also said he would be very happy to assist the mother with the children’s travel to visit their father in Darwin.

5. Despite the obvious limitations in the information available about Mr M, my assessment of him was that he was a mature man in his 50s who genuinely cared for the mother. While he does not appear to have a close relationship with the children he appeared to be intelligent and thoughtful and capable of responding to their needs.

6. As the family report writer pointed out, if the mother and the children relocate to Sydney the children will be deprived of the apparently regular contact they have with the maternal and paternal extended family. Any such move would also affect the children’s cultural needs as Aboriginal children.

7. The father’s proposal is that the children and the mother remain living in Darwin. He does not make any proposal that the children live with him.

8. As mentioned, the mother has said she is willing to move to Sydney without the children. However, if the mother remains in Darwin with the children I am satisfied that a number of things will follow: the father’s harassment of the mother is likely to continue, that there is a real risk of further breaches of orders and a very real risk, indeed a likelihood, of deterioration in the mother’s mental health. There is a very real risk or, in my view, likelihood that the mother’s parenting capacity will be seriously undermined. If the mother moves to Sydney without the children they will be, by default, left in the care of their father. Given my serious reservations about his parenting capacity, I have concluded that this is not in their best interests. I have concluded that neither of these scenarios is in the best interests of the children.

9. I am satisfied that, were it not for the intolerable effect on the mother of the father’s conduct, it would be desirable for the children remain in Darwin and continue to spend time with the father and maintain their regular contact with the maternal and paternal family and their exposure to Aboriginal culture. However, I am satisfied that these connections can be maintained if they spend regular holiday time in Darwin with the father.

10. The mother proposes that the children spend regular holiday time with the father in Darwin. She proposes that X and Y spend a week with their father over the Easter holiday, a week during the mid-year holiday, a week during the September/October holiday and two weeks during the Christmas holidays with that to be extended to three weeks when Y turns 10 years old.

11. I do not consider it in the best interests of the children that the father move to Sydney or that the children have frequent regular time with him there. I believe that the father is likely to continue to threaten, harass and make false allegations against the mother. The likelihood of this will increase if the father becomes enmeshed in the children’s lives in Sydney or is involved with their school, a contact service or otherwise. If the father learns of the mother’s address, her workplace or that of Mr M his harassment and false allegations will continue.

12. The possibility of the father moving to Sydney and commencing proceedings there to have more frequent time with the children cannot be discounted. The mother appears to accept this possibility but feels that the anonymity of a large city will provide some protection from continued harassment by the father. If so, the court will need to consider carefully whether it is appropriate that the children spend more time with the father if that entails a real risk that the mother’s residence or workplace or the children’s school will be identified. In that case false allegations and continued attempts at harassment by the father are almost certain.

The legislative pathway

1. I have reached the general factual conclusions set out above. The Family Law Act 1975 requires me to follow a decision making pathway and, against the background of the general conclusions set out above, I set out my conclusions along that pathway below.

The child’s best interests

1. According to section 60CC(2) of the Family Law Act1975, in determining what is in the child’s best interests, 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.

   I am satisfied that the children will benefit from a meaningful relationship with both parents. However, I am also satisfied the mother has been subjected to protracted family violence as defined in section 4AB of the Family Law Act, that is, “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family …, or causes the family member to be fearful”. I consider that the father’s behaviour is directed to coercing or controlling the mother. I am satisfied that she is fearful and has been psychologically harmed by that family violence.

1. Although there is no evidence that the children have been directly psychologically or otherwise harmed by their father’s family violence I consider there is a real risk of indirect harm and thus a threat to their best interests, flowing from the impaired parenting capacity of the mother caused by that family violence.

2. According to section 60CC(3) the court must consider additional factors. I have set these out below with my conclusions about those factors.

Section 60CC(3)(a) – any views expressed by the child.

1. The child X has expressed a view against relocation but, conversely, wishes to continue to live with his mother rather than his father. Y is too young to express a coherent view but may be assumed to wish to continue to live with her mother wherever that might be.

Section 60CC(3)(b) – the nature of the child’s relationship with the child’s parents and other persons (including grandparent or other relative of the child).

1. The children have a positive relationship with both parents. They appear to have a good relationship with both maternal and paternal extended family. However I have serious doubts about the father’s parenting capacity and his insight into the children’s needs.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)   to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and to communicate with the child.

1. There was little or no evidence about decisions about major long-term issues in relation to the children. It is clear that the father could not be expected to cooperate with the mother in decision-making.

2. Both the mother and the independent children’s lawyer submitted that the mother should have sole parental responsibility.   

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child.

1. The father receives a disability pension. He does not pay child support to the mother. The mother has apparently not sought child support.

2. In his trial affidavit the father said that he usually had about $100 left each fortnight from his pension. However, during cross-examination the father said that he had $200 left from his pension. He also said that he paid $40 a fortnight into accounts for each of the children and it is true that there are accounts controlled by him in the children’s names with a few hundred dollars in each. He also said that he had purchased a quad bike for $3,850 and was paying that off by instalments. He said that if he needed money he sold some (hobby omitted).

3. I am satisfied that the father, despite having some capacity to help maintain the children, has chosen not to do so. As he observed in cross-examination, the mother “sends money to the (country omitted)” and that, along with his complaint that she “took $80,000 from me”, seems to justify, in his mind, his refusal to give the mother money to help maintain the children.

4. While the father does not help the mother maintain the children, I am satisfied that he has the capacity to contribute to the children’s airfares between Sydney and Darwin.

Section 60CC(3)(d) – the likely effect of any changes in child’s circumstances, including the likely effect of any separation from:

(i)   either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living.

1. For the reasons set out above I have concluded that there are disadvantages for the children in leaving Darwin, including loss of regular time with their father and loss of contact with extended maternal and paternal family.  However, I am satisfied that, given the ages of the children, these relationships can be maintained if time is spent with the father and contact maintained with extended family during regular visits to Darwin during school holidays.

Section 60CC(3)(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.

1. The mother proposes that the children spend substantial and significant time with the father in Darwin during the school holidays and that the father contribute to half of the airfares. I am satisfied that he has the capacity to do that if he chooses. The expense of travel and the distance to Darwin from Sydney will affect the children’s right to maintain personal relations and direct contact with the father but given he has the capacity to pay for half the airfares for 3 visits a year I find that the affect is not substantial and, if it is, it is outweighed by other considerations.

Section 60CC(3)(f) – the capacity of:

(i)   each of the child’s parents; and

(ii)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.

1. I am satisfied that the mother has the capacity to provide for the needs of the children, including emotional and intellectual needs. I am not satisfied that the father has the necessary insight to properly provide for the needs of the children. In particular, he lacks insight into the potential for psychological harm to the children flowing from his harassment and unremitting false allegations against the mother.

Section 60CC(3)(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.

1. The mother is from the (country omitted) and the father is an Aboriginal man from Central Australia. Both parents have important culture and traditions to convey to the children.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right.

1. The children are Aboriginal children. It is important that their identity as Aboriginal persons be protected and encouraged and they have the opportunity to enjoy their Aboriginal culture. The father, although originally from central Australia, has lived in Darwin for many years. Members of his immediate family also live in Darwin. I am satisfied that the children will have the opportunity to enjoy their Aboriginal culture with the father and his family during visits to Darwin. Although the mother is not able to transmit Aboriginal culture to the children and her ability to encourage enjoyment of that culture in any practical way is limited I am satisfied that she recognizes the children as Aboriginal children and will not oppose their enjoyment of their Aboriginal culture.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. The mother is aware of and expresses her responsibilities as a parent. The father’s deep hostility to the mother and his false allegations against her demonstrate a lack of understanding of and an inability to properly discharge his responsibilities as a parent.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.

1. The father has subjected the mother to serious family violence.

Section 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 inference that can be drawn from the order taking into account the following:

(i)      the nature of the order;

(ii)   the circumstances in which the order was made;

(iii)    any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or proceedings for, the    order;

(v)    any other relevant matter.

1. The history of family violence orders, breaches by the father and his consequent imprisonment and inferences drawn by me have been referred to above.

Section 60CC(3)(l) - whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child.

1. The father said he would move to Sydney to follow the mother if she were permitted to relocate and institute proceedings there. His actual evidence was that he would live “100 metres away” from her. The father’s harassment and threats directed to the mother have already severely undermined her capacity and role as the primary carer for these children. In these circumstances I consider it necessary to send a strong signal to the father that any further harassment of the mother would necessitate consideration by the court of whether it was in the best interests of the children that there should be no order for the children to spend time with him. The father, regrettably, does not have sufficient insight to curb his destructive behaviour. Accordingly, I have not made orders to provide for the children to spend time with the father in the event that he moves to Sydney.

2. The independent children’s lawyer submitted that I should make provision for the eventuality that the father makes the occasional visit to Sydney. With some reservation I have concluded that is not inappropriate so I intend to make orders to permit the children to spend time with the father for a weekend from Friday evening to Sunday evening on up to three occasions in each year but no more than once during the school term.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. There are no other facts or circumstances that I consider to be relevant.

Parental responsibility and spending time

1. Section 61DA provides:

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child from the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in :

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family(or that other person’s family); or

   (b)family violence.

   (3)     [not relevant]

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child

2. There is a further consideration in the case of Aboriginal or Torres Strait Islander children. Section 61F provides:

   In:

   (a)applying this part to the circumstances of an Aboriginal or Torres Strait Islander child; or

   (b)identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;

   the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.

3. Both the mother and the independent children’s lawyer submitted that I should not make an order for equal shared parental responsibility.

4. I am satisfied that the presumption of equal shared parental responsibility does not apply because of the father’s family violence. I am further satisfied that it would not be in the best interests of the children for the father to have equal shared parental responsibility for the children. His level of hostility to the mother is such that he cannot rationally participate with her in discussions or deliberation about matters concerning the welfare of the children.

5. There was no evidence of any relevant Aboriginal kinship obligations, child-rearing practices or culture that would suggest that any other person who might exercise parental responsibility for the children.

6. As I have found that it is not in the best interests of the children for the father to have equal shared parental responsibility, I am not required pursuant to section 65DAA to consider whether it is in the best interests of the children to spend equal or substantial and significant time with the father. Nevertheless, while I am satisfied it is not in the best interests of the children to spend equal time with the father I am satisfied that it is appropriate to consider whether they should spend substantial and significant time (which according to the definition in section 65DAA(3) includes time that does not fall on weekends or holidays) with the father. Given that I propose to allow the mother to relocate with the children to Sydney it is not generally practical to make orders for the children to spend other than holiday time with the father. However, as mentioned, if the father does travel to Sydney on an occasional basis it is appropriate to make an order for some time during such a visit. This may be for a weekend from Friday evening to Sunday evening on up to three occasions in each year but no more than once during the school term.

7. I will make orders for the children to live with their mother and allowing her to relocate to Sydney. I propose to make orders for the children to spend time with the father for one week during each of the NSW school holidays and for one week at the end of Term 1 holidays, 10 days at the end of Term 2 holiday, one week at the end of Term 3 holidays and half of the Christmas holidays with the children to spend the first half of the 2016 Christmas holidays with the mother and the first half of the 2017 Christmas holidays with the father and alternating in that pattern in subsequent years. Until Y turns 8 years old (February 2017) she should spend only two weeks of the Christmas holiday with the father. This means her time with the father for the 2016/2017 Christmas holiday will be two weeks.

8. The father is to pay for and book tickets for the children to fly to Darwin and the mother is to pay for and book tickets for the children to return from Darwin.

9. The mother indicated a wish to travel to the (country omitted) with the children to visit her family. She has done so in the past after being forced by the father to apply to the court for permission. The father said in evidence that he would never agree to permit the mother to travel outside Australia with children. Given the father’s intransigent and unreasonable attitude I propose to make an order permitting the mother to travel outside Australia without requiring the father’s permission.

10. The mother’s lawyer should prepare a minute of order reflecting these reasons.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 9 March 2016

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11.2      A practitioner must not draw an affidavit alleging criminality, fraud, or

other serious misconduct unless the practitioner believes on

reasonable grounds that:

11.2.1 factual material already available to the practitioner provides a

proper basis for the allegation;

11.2.2 the allegation will be material and admissible in the case, as to

an issue or as to credit; and

11.2.3 the client wishes the allegation to be made after having been

advised of the seriousness of the allegation and of the

possible consequences for the client if it is not made out.