Orana & Alvarez
[2023] FedCFamC2F 60
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Orana & Alvarez [2023] FedCFamC2F 60
File number: PAC 5593 of 2018 Judgment of: JUDGE MURDOCH Date of judgment: 30 January 2023 Catchwords: FAMILY LAW – CHILDREN – APPLICATION FOR REVIEW – where the mother moved to the Region B with the children pursuant to interim orders made on a defended basis – where the father seeks that the children return to live in Sydney with him – where the father submits that the mother is required to demonstrate an emergency as a precondition to the court determining an interim application for children to relocate – where the father’s submission in this regard not accepted - where on the father’s own evidence he has perpetrated family violence upon the mother including coercive and controlling behaviour post separation– where there are risks as to the father’s ability to encourage the children’s relationship with the mother - where the mother has a newborn child to her new partner – where it is found to be in the children’s best interests to remain living with the mother - Application for Review dismissed. Legislation: Crimes (Administration of Sentences) Act 1999 s10
Family Law Act 1975 (Cth) ss 4A, 4AB, 60B, 60CC, 60CC(2), 60CC(2)(a), 60CC(3), 65D(1), 65DA(1), 65DAC
Family Law Regulations 1984, reg 7
Cases cited: Beaton & Beaton [2020] FamCAFC 297
Dieter & Dieter [2007] FamCA 608
Goode & Goode [2006] FamCA 1346
M & M [1988] HCA 68
Marvel & Marvel [2010] FamCAFC 101
1 Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
Salah & Salah [2016] FamCAFC 100
Sayer & Radcliffe & Anor [2012] FamCAFC 209
SS & AH [2010] FamCAFC 13
U v U [2002] HCA 36;.
Division: Division 2 Family Law Number of paragraphs: 134 Date of hearing: 12 December 2022 Place: Parramatta Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Ms Rebehy of Counsel ORDERS
PAC 5593 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ORANA
Applicant
AND: MR ALVAREZ
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
30 January 2023
THE COURT ORDERS THAT:
1.Each of the party’s costs are reserved for a period of 28 days from the date of these Orders.
2.The Application for Review filed by the Father on 13 October 2022 and all outstanding interim applications and responses thereto are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Orana & Alvarez has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are parenting proceedings commenced by the mother in relation to the two children of the relationship; X and Y who are aged 10 and 8 years respectively.
For determination is an Application for Review filed by the father on 13 October 2022. The father seeks to review interim orders made by a Senior Judicial Registrar on a defended basis on 11 October 2022 permitting the children to relocate with the mother to the Region B.
The mother opposes the review application.
For the reasons outlined below, the father’s Application for Review will be dismissed.
BACKGROUND
The applicant father was born in 1982 and is currently 40 years of age.
The mother was born in 1984 and is currently 38 years of age.
The mother deposes that the parties commenced cohabitation in 2012 and separated on a final basis in February 2017 after what the mother describes was an “on and off” relationship from June 2013 onwards.
The father deposes that the parties commenced living together in December 2011 and separated on a final basis in September 2017.
X was born in 2012 and is currently 10 years and 1 month of age.
Y was born on in 2014 and is currently 8 years and 3 months of age.
The children lived with the mother following separation and initially spent time with the father for a few hours on two to three occasions each week. In January 2018 the children commenced spending two nights each fortnight with the father. This increased to three nights per fortnight in September 2018 and five nights per fortnight in October 2019.
From July 2020 the children lived in an equal-time arrangement with the parties.
The mother has known Mr C since she was a teenager and she deposes that they commenced a relationship in January 2021. The mother and Mr C have one child together, D who is two months of age. Mr C lives at Town E in the Region B of New South Wales. He owns his own unencumbered home. Mr C is self employed as an allied health worker .
The father lives in Suburb F, New South Wales.
On 22 November 2018 the mother filed an Initiating Application seeking orders that each of the parties have equal shared parental responsibility and that she be permitted to travel with the children overseas.
On 30 January 2019 Judge Harman made orders permitting the mother to travel internationally with the children together with an order that the father be entitled to make an application to re-open the proceedings by no later than 8 February 2019. Whilst orders were not made dismissing the mother’s application, it appears that the proceedings were finalised on this date.
On 3 May 2022 the mother filed a further Initiating Application seeking both interim and final parenting orders.
On an interim basis the mother sought orders broadly that:-
·The children live equally with each of the parties pending an interim hearing.
·That the mother be permitted to relocate with the children to the Region B in the State of New South Wales no earlier than 15 September 2022 and no later than 15 October 2022;
·That the mother have sole responsibility for making decisions as to where the children live from time to time within New South Wales.
·That the mother have sole responsibility for decisions about the schooling of the children.
·That the children spend time with the father for one weekend of each month during school terms.
·That the children spend the majority of the term 1, 2 and 3 school holiday periods with the father.
·That the children spend four weeks of each end of term 4 holiday period with the father.
·That each of the parties share equally in the costs of the children’s transport between their households.
·That the children have telephone/video conversations with the parent with whom they are not spending time each Tuesday, Thursday and Saturday.
·That the father be restrained from denigrating the mother or her family.
The father by way of his Response filed on 1 October 2022 seeks orders on a final basis that the children live with him in Sydney and that he have sole parental responsibility. He further seeks that the children spend time with the mother during school terms in Sydney if they are available on a day only basis and the same holiday regime as that proposed by the mother for the children and the father. The mother is to pay the airfares and any costs relating to the travel of the children and the father to and from Town G.
On an interim basis the father sought that “sole parental responsibility and full custody of the children is granted to the respondent father on an interim basis pending the trial.”
On 11 October 2022 the matter came before a Senior Judicial Registrar for the purposes of an interim hearing and orders were made on that occasion on a defended basis as follows:-
1. The Mother be permitted to relocate with the children, [X] born [in] 2012 and [Y] born [in] 2014 (“the children”) to [Region B] in the State of New South Wales.
2. For the purpose of Order 1, the Father shall deliver the children to the Mother’s nominee at Sydney Domestic Airport, Terminal 2, on 22 October 2022 at 10.00am unless otherwise agreed upon by the parties in writing.
3. The Mother have sole responsibility for decisions about the schooling of the children upon relocation occurring.
4. The children live with the Mother.
5. Upon the Mother and the children relocating pursuant to Order 1, the children spend time with the Father as follows:
a. During the school term as agreed between the parties in writing and failing agreement for one weekend of each month that does not contain school holidays commencing at 10.00am on the mid-point Saturday of the month and concluding at 5.00pm on Sunday.
b. During the school holidays as agreed between the parties in writing and failing agreement:
i. For term 1, 2 and 3 school holiday period commencing at 10.00am on the first Monday in the school holiday period and ending at 10.00am on the Friday before the school term commences.
ii. For the first four (4) weeks of the term 4 school holiday period in years ending with an odd number commencing at 10.00am on the first Monday of the school holiday period and concluding at 10.00am on the fourth Friday in the school holiday period.
iii. For the last four (4) weeks of the term 4 school holiday period in years ending with an even number commencing at 10.00am on the third Monday of the school holiday period and ending at 10.00am on the Friday before the school term commences.
6. For the purpose of the children spending time with the father the following is to apply:
a. The parties are to share the costs and jointly purchase the airplane tickets for the children to fly from [Town G] to Sydney and return airfare to [Town G] from Sydney including costs relating to the children travelling unaccompanied, if applicable.
b. That unless otherwise agreed to between the parties in writing, for the first 12 months, the Mother or her nominee is to deliver the children to Sydney Domestic Airport at the commencement of the Father’s time with the Children and the Father or his nominee is to deliver the children to [Town G] Domestic Airport at the conclusion of his time with the Children.
c. The parents are to provide a list of proposed travel dates not less than twenty-eight (28) days prior to the children’s scheduled flight and such airplane tickets are to be purchased not less than twenty-one (21) days prior to the children’s scheduled flight.
d. The changeover is to occur at Sydney Domestic airport, when the children are travelling to Sydney from [Town G] and [Town G] Domestic Airport, when the children are travelling to [Town G] from Sydney.
7. Each party shall make the children available for telephone/video conversations with the other party between 6.00pm and 7.00pm each Tuesday, Thursday and Saturday.
8. The Father be restrained by injunction from denigrating the Mother, members of the Mother’s family and/or the Mother’s partner to the children or in the presence of the children and shall remove the children from the presence or hearing of any third party who may do so.
9. The Mother shall be permitted to engage a psychologist for the children to assist them as required following their relocation.
10. The Mother shall inform the Father of the details of the psychologist engaged pursuant to the previous Order and shall authorise the psychologist to include the Father in any treatment or meetings at the discretion of the psychologist.
The father filed an Application for Review on 12 October 2022 (“the Review Application”) seeking a review of the entirety of the interim orders made on 11 October 2022 (“the interim orders”.) In such application the father states that he seeks orders in place of those reviewed for:-
Sole parental responsibility
The children live with the father
Orders for the mother to have time with the children
Any order the court deems fit
The mother relocated to the Region B on 12 October 2022.
D, being the mother’s child with her current partner, was born in 2022.
On 20 October 2022 the father’s application to stay the interim orders pending the hearing of the review application was dismissed by a Senior Judicial Registrar and an order was made that the mother’s costs of and incidental to the stay application shall be costs in the review application.
The children relocated to the Region B on 23 October 2022 and have lived with the mother and her current partner since this time.
On 25 October 2022 the children commenced school at H School in Town G.
By way of the Minutes of Orders sought in the Case Outline document filed by the mother on 5 December 2022 she effectively seeks a dismissal of the father’s Review Application and thus seeks that the interim orders continue.
THE ISSUES
The issues for the Court to consider and determine are:-
·The allocation of parental responsibility.
·Whether the children should continue to live with the mother in the Region B or with the father in Sydney.
·The time each of the children will spend with the non-resident parent.
·Whether the children’s travel to and from the Region B is to be accompanied by an adult and who will be responsible for the costs of such travel.
THE CHILD IMPACT REPORT
A Child Impact Report was prepared by court child expert Ms J (“the court child expert”) on 20 September 2022 and released to the parties on 4 October 2022.
The court child expert is a qualified social worker and Family Consultant pursuant to Regulation 7 of the Family Law Regulations 1984. She has a Graduate Certificate in Mental Health (Child & Adolescent) and a Bachelor of Social Work and Arts majoring in sociology. She has worked as a Family Consultant at the Federal Circuit and Family Court of Australia since 2017 and has extensive experience working in the child & adolescent mental health sphere. Her qualifications were not challenged by either of the parties and I am satisfied that she has the appropriate expertise and experience.
The mother and the father participated in separate remote interviews on 15 September 2022 and the children were interviewed in person on 20 September 2022.
The court child expert opined that the key considerations in this matter on an interim basis are that:-
·The children moving to the Region B region with the mother will be disruptive to their schooling and will impact their alibility to spend regular time with the father.
·If the court accepts the mother’s account of family violence, then her move to the Region B with the children may be protective of her emotional wellbeing and mental health. It would also mean that the children are not living with a perpetrator of family violence.
·It would appear that the children are at risk of having their relationship with the mother undermined if they were to live with the father.
·The court may need to be satisfied that the alleged behaviour of Mr C’s behaviour toward the mother is not a persistent pattern of abusive behaviour and that the children are not at an unacceptable risk of harm in spending time with him.
Ultimately the court child expert opined that there will be an impact on the children regardless of whether they live with the mother or the father due to the distance between the parties’ homes.
THE LAW
The father submitted that the issue of the children’s relocation to live with the mother in the Region B “must not” be determined on an interim basis in accordance with the decision of Morgan & Miles [2007] FamCA 1230 as the mother is “required to demonstrate an emergency to be successful.”
I do not accept the father’s submissions in this regard. Justice Ainsley-Wallace, sitting as the Appellate Division of the Family Court of Australia (as it then was) clearly stated in Beaton & Beaton [2020] FamCAFC 297 at [35] with reference to Justice Boland’s decision that:
Justice Boland’s decision is not a “guideline” in the sense that it sets a benchmark for determination of similar cases. Further, it is apparent from the multitude of decisions of judges in interim hearings confirmed on appeal that the principal issue in relocation cases is not whether the case is “an emergency.” The determination of issues regarding children whether on an interim basis or at a final hearing is by reference to the best interests’ principle.
Thus matters involving issues as to relocation, even on an interim basis, are to be determined in the same manner as all parenting matters - by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”). They are not a special category of case: see Morgan & Miles (2007) 312 FLR 114 and Sayer & Radcliffe & Anor (2012) 48 Fam LR 298.
The Full Court in Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346. It also affirmed that the procedure for making interim orders would continue to be a truncated process in which the court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute whilst still following the legislative pathway.
In deciding whether to make a particular parenting order the court is to regard the best interests of the children as the paramount consideration. The children’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations as set out in s 60CC(2) are:
·the benefit to the children of having a meaningful relationship with both of their parents; and
·the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the Court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence.
Family violence is defined in the Act as violent, threatening or other behaviour by a person that coerces or controls or causes a family member to be fearful. Examples of behaviour that may constitute family violence include an assault, stalking, repeated derogatory taunts and intentionally damaging or destroying property. A child is exposed to family violence if they see or hear such behaviour or otherwise experiences the effect of such violence.
Section 60CC (3) sets out the additional considerations for the Court in determining what is in the children’s best interests.
Despite the court’s limited ability to make findings in respect of controversial facts in interim proceedings, the court is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 said:
[100] … Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The assessment of risk thus requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979; [1988] HCA 68. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances, bearing in mind of course the inherent limitations of an abridged hearing.
Where risk is alleged in interim proceedings, a conservative approach is warranted: Marvel & Marvel (2010) 43 FamLR 348; [2010] FamCAFC 101.
I am only required to address the relevant considerations as presented by the parties through the evidence and presentation of their case.
PRIMARY CONSIDERATIONS
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: “it is a qualitative adjective, not a strictly quantitative one.” Mazorski v Albright (2007) 37 FamLR 518; [2007] FamCA 520.
The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92 adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the court:
[118]…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Whilst it is uncontested that the children spent largely equal time with each of the parties from July 2020 until October 2022, each party asserts that they continued to be the primary carer of the children. The mother deposes that she was responsible for arranging and attending all of the children’s medical appointments and was financially responsible for all of the children’s medical, educational and recreational expenses. The father’s position is that he was and continues to be the primary care giver of both the children. He deposes that he has not only morally supported them but has also done so financially and has provided additional money to the mother to support herself whilst the children have been in her care.
The court child expert opines that from her conversations with each of the children they each appear to have a meaningful relationship with both of their parents. The court child expert reported with respect to X that she:
Seemed to present each parent in a balanced and considered manner and it would appear that she currently has meaningful relationships with them each.[1]
[1] Child Impact Report dated 4 October 2022, paragraph 6 (“Child Impact Report”).
The court child expert reported that:
Y described each parent and his relationships with them each very positively.[2]
[2] Child Impact Report, paragraph 11.
Whilst the mother acknowledges that the children will benefit from having a meaningful relationship with the father, she contends that the equal time arrangement that was in place prior to the interim orders being made is not in the children’s best interests as it has had adverse consequences for both the children and herself. She asserts that both herself and the children have been negatively impacted by the conflict surrounding the shared care arrangement. Her proposal will see the children spend one weekend per month with the father and significant additional time during the school holidays.
The father’s proposal with respect to the time the children are to spend with the mother if the children are to live with him is not clear. The court child expert reports that the father advised her that he proposes that the children spend time with the mother during school holiday periods, with such time occurring in Sydney during the end of term 1, 2 and 3 holidays and in the Region B during the end of term 4 school holidays. I accept having regard to the final orders sought by the father and the drafting of his review application that at the least he proposes that the children spend block periods of time with the mother during school holiday periods.
Family Violence
Both parties make allegations of the other being the perpetrator of significant family violence both throughout the relationship and post-separation. The mother alleges that during the course of the relationship and post-separation the father has engaged in a pattern of family violence including physical assault, damage to property, persistent and ongoing verbal abuse together with harassment and intimidation to which the children have been exposed. The father is reported as telling the court child expert that the mother assaulted him on six or seven occasions during the relationship. He deposes that the mother has been verbally abusive and was financially controlling during the relationship.
The 25 September 2017 Incident
The mother deposes that on 25 September 2017 the father hit her on her shoulder and smashed her laptop in the presence of the children. Annexed to the mother’s affidavit is a photograph of the mother’s right shoulder which shows the bruising she asserts was as a result of the father’s assault. Following this incident the mother called the police and a Provisional Apprehended Domestic Violence was made for the protection of the mother and the children. The application made by the police records that during the course of an argument the father picked up the mother’s tablet laptop from the lounge room, walked outside to the front patio, raised the tablet above his head and threw it onto the driveway causing it to shatter. The father then attempted to grab and smash the mother’s phone and punched her four times to her right upper arm causing bruising and redness.
The Police are recorded as sighting both the shattered laptop and the bruising to the mother’s arm. The father was placed under arrest and charged with assault, stalk/intimidate and malicious damage to property. During the course of his interview it is recorded that the father admitted to throwing the laptop but denied assaulting the mother and asserted that he was acting in self-defence. Ultimately the assault charge was withdrawn and the charge of malicious damage was dealt with pursuant to section 10 of the Crimes (Administration of Sentences) Act 1999. A final Apprehended Domestic Violence order was made for the protection of the mother and the children for a period of two years until 22 January 2020.
The father deposes that it was in fact the mother that assaulted him on this occasion in front of the children; striking him in the face causing his mouth to bleed and scratching his arm. He asserts that the mother’s version of events to the police was false. The Police records indicate that the mother, fearing for her safety, pushed the father two times in the chest and punched the father in his chin with a closed fist. Those records do not indicate that the father sustained any injuries.[3]
[3] Mother’s Affidavit filed 29 November 2022, paragraph 22 (“Mother’s Affidavit”).
The father deposes with respect to the damage to the laptop is that he “disposed of a laptop that I had purchased for myself in front of my home at the time”.[4]
[4] Father’s Affidavit filed 29 September 2022, paragraph 17 (“Father’s Affidavit”).
The 30 January 2021 Incident
It is not disputed that the father attends the children’s activities when they are spending time with the mother despite the mother’s requests that he not do so.
On 30 January 2021, some eight days after the Apprehended Domestic Violence order made for the protection of the mother and the children had expired, the mother deposes that she and X had walked to a café whilst Y was in his dancing class. The father followed the mother and X into the café and upon refusing to leave their table, the mother and X returned to the mother’s car and were followed by the father. Upon the father apparently leaving, the mother and X returned to the café and placed an order. The father returned and was again asked by the mother to leave. He stated that he would be sitting in a chair right behind the mother. He then showed X his phone and said words to the effect of
Mummy doesn’t want to be with you. Look at the message mummy sent me saying she doesn’t want to be with you.[5]
[5] Mother’s Affidavit, paragraph 33.
The mother deposes that X read the text message and looked uncomfortable. The mother and X left the café and waited in the car for Y’s dancing class to conclude.
The father deposes to the same event of 30 January 2021. His evidence is that he attended his usual café as he is a regular there. Upon his arrival, he saw X and greeted her before the mother “started to fire at me” saying words to the effect of “You need to leave now or I’ll call the police.” The father vehemently denies that there was any form of intimidation, harassment stalking, threats or violence.[6]
[6] Father’s Affidavit, paragraph 28.
The mother reported this and other behaviour which is particularised later in these reasons to Suburb K police station on 31 January 2021 and obtained a Provisional Apprehended Domestic Violence Order for her protection and restricting the father’s behaviour. From this date the parties communicated through the maternal grandmother. Interim orders were made in the same terms as the Provisional Apprehended Domestic Violence Orders on 5 February 2021.
A final Apprehended Domestic Violence Order was made on 11 June 2021 for a period of six months; expiring on 10 December 2021. In addition to the standard condition it restricted the father from attending within 200 metres of the mother’s home or place of employment.
On 11 June 2021, the father was found guilty of contravening the Apprehended Domestic Violence Order. The Father asserts that he was found not guilty on this charge: “I attended court and the Judge found me not in breach of the apprehended domestic violence order.”[7] An Advice of Court Result from the Local Court at Suburb L dated 15 June 2021 records that the father’s plea of guilty was accepted to this charge but again no conviction was recorded. The father does not dispute the authenticity of this document and I find that he did plead guilty to contravening an Apprehended Domestic Violence Order.
[7] Father’s Affidavit, paragraph 38.
The 19 June 2022 Incident
The father deposes that on 19 June 2022, the mother “disrespected” a place of worship on the day of Y’s Holy Communion by assaulting the father in the presence of the children and his friends and family. He provides no further written evidence of this event.[8]
[8] Father’s Affidavit, paragraph 41.
Ms M, the father’s sister-in-law, deposes that whilst most parents were taking photos with their children following the Holy Communion Ceremony the mother reached over the bench, screamed at the father saying “Give me my son”, shook the father aggressively and yelled in his face once again saying “Give me my son.” Ms M deposes that the mother then grabbed Y by the hand and dragged him out of the church.[9]
[9] Affidavit of Ms M filed 27 September 2022.
The mother deposes that the father arrived with the children just as the Mass was starting and thus she had no time to take photos with the children prior to its commencement. During the Mass the mother asked the children whether they had taken photos with the father prior to the Mass, to which they responded that they had. She then asked the children whether she could take some photos with them following the ceremony and they agreed.[10] After Mass the mother deposes that the father was calling the children to leave with him and refused her request to take photos with the children. She walked up to the father from behind, tapped him on the shoulder and said: “No, you had them before, and you will have them after. I would like to take photos with them.[11]”
[10] Mother’s Affidavit, paragraph 70.
[11] Mother’s Affidavit, paragraph 71.
The mother and children then walked outside and took some photos whilst the father stood next to the maternal aunt and waited. The mother and her family then left.[12]
[12] Ibid.
During an interview with Police on 20 June 2022 the mother denied the allegations made by the father. No charges were laid but a Provisional Apprehended Domestic Violence Order was issued for the protection of the father and restricting the behaviour of the mother. The father’s assertion to the court child expert that a final Apprehended Domestic Violence Order was made for his protection is incorrect as it is to be defended by the mother.
Harassing Behaviour
The mother alleges that the father has persistently harassed her post separation. Such harassment has occurred through his communications with her and by approaching her uninvited both at her home and in public. This is alleged to have occurred despite the existence of apprehended domestic violence orders and the mother’s numerous requests that the father desist from such behaviour.
It is undisputed that in February of 2017 the father left the home for a period of two weeks and then attended the home to take the children out. The mother deposes that the father came inside after asking to use the toilet, walked to the main bedroom and laid down on the bed stating “the lease is under my name. I have a right to be here. I’m not leaving.” The mother called the Police but no action was taken as the father was on the lease.[13] The father remained living in the home for a further seven months despite the mother’s repeated requests that he leave. The father vacated the property when the first Apprehended Domestic Violence Order was made. The mother alleges that the father continued to threaten her that he was going to move back into the property and that she would not be able to stop him.
[13] Mother’s Affidavit, paragraph 17.
The mother deposes that post separation she did not invite the father into the home but when he attended the home to collect the children he would ask the children if he could come inside the home and they would say “yes.” The mother deposes:
The children became upset at me when I said no saying “You are rude to daddy.” [Mr Alvarez] encouraged the children by saying “Yes mummy is rude to daddy. But it’s okay. Daddy still loves mummy,” “mummy is being difficult” and “see daddy is trying but mummy is rude.” [Mr Alvarez] would say this with a smile on his face….[Mr Alvarez] behaved in similar ways when I made plans with the children and said no when he asked to join.[14]
[14] Mother’s Affidavit, paragraph 23.
The mother deposes that despite her requests that he not do so, the father has continued to attend at her home uninvited and unannounced subsequent to her moving into her own rental property in July 2018 with an increased in frequency from December 2020 to January 2021. The children were happy to see the father and became angry at the mother for asking the father to not attend her home unannounced and uninvited. She alleges that on a number of occasions the father would open her side gate and walk inside her backyard without permission. Upon asking him not to do this the father said: “Yeah, okay, …” (meaning little dumb girl in Country N).[15] The mother further deposes that on one occasion when the father had attended her home twice in one day when the children were spending time with him she asked him to not attend at her house unannounced and without permission. She deposes that the father’s response was:
I will come whenever I want. If I stay outside of your fence, its public property and you can’t make me leave.[16]
[15] Mother’s Affidavit, paragraph 25.
[16] Mother’s Affidavit, paragraph 27.
This does not appear to be disputed by the father. He deposes that his statement that “I will go to her house when I want” has been taken out of context but it is not explained by the father how. The father deposes that he does not go inside the mother’s home but does not deny the mother’s allegation that he has opened her side gate and gone into her backyard without permission. Despite the mother’s clear assertions to the contrary, the father maintains that he and the mother have always attended each other’s homes and are both “fine with items being dropped off without formal communication.”[17]
[17] Father’s Affidavit, paragraph 25.
It is undisputed that the father has continued to attend the children’s activities on the days they are spending time with the mother despite her repeated requests that he not do so. The mother deposes that this makes her feel uncomfortable and has led to confrontations between the parties in front of the children. In response to the mother’s request in an email on 21 January 2021 not to attend the children’s activities on her days the father wrote to the mother on 22 January 2021:
I will be there for my children in all events no matter what day it falls on. YOU create the problems and I have always made amends. So no deal. I know what is best for me because I’m the one that has been attending all of the activities - not you!!
The father denies that he has ever made the mother feel unsafe or uncomfortable and that he has in fact been her first point of contact to assist her when she has been stranded, unable to make payments, in picking up the children, or when she has been stuck at work for dinner.[18]
[18] Father’s Affidavit, paragraph 21.
The mother’s evidence is that since the parties’ separation the communication from the father has been threatening, incessant and intimidating and has caused her stress and anxiety. The mother deposes that the father threatened not to tell her about the children’s whereabouts on 19 February 2021 and threatened to withhold the children from her on 13 April 2021, in October 2021 and in November 2021.
The father did not contend that the contents of the communications tendered by the mother at the interim hearing were not sent by him. Such correspondence has either been sent to the mother or, during a period of time, to the maternal grandmother. The tone and tenor of such correspondence is troubling. It is abusive, threatening, aggressive and demeaning. Some examples are:-
·On 10 December 2022 the father sent an email to the mother accusing her of filing false evidence, being in contempt of court and perverting the course of justice and noted that these are criminal offences. The father threatened to both file a formal complaint with the Legal Services Commissioner:
For your dishonest and wilful deception of the court lying under oath and bringing false claims which will impact your ability to hold a law licence. You will very likely lose your licence and be disbarred.
·The father threatened to further file an application in these proceedings for contempt of court and stated that:
If you concede the appeal and agree to appropriate orders for your contact with the children whilst they return living with me in Sydney, I undertake not to commence the formal complaint and the contempt proceedings stated…
Given Hearing is on Monday I require an urgent answer.
Thus the father was threatening to expose the mother to a possible loss of her livelihood if she did not accede to his demands in these proceedings; the very definition of coercive and controlling behaviour. The father’s attempt to disallow this tender on the basis that it was a settlement offer was not successful.
·On 26 September 2019 in response to an email from the mother regarding the parties’ communication with the children the father responded:
Aww, so every time you call me day or night suddenly changed? I’ll let my children know as well that you will not answer their calls when they are with me (since they use my phone to call you).
Love you long time!
·On 14 May 2021 the father sent a text to the mother stating
….It’s for the children you retard NOT for me…..
... you’re bf will see right through you one day and will run before he knocks you up with what’s left of you……
You should be dropping my things off if you’re here but you didn’t because you’re a bitch!!!!Now F off since you are never useful for your own kids.”
·On 17 May 2021:
…I’m only exchanging msgs [sic] because YOU AND HAVE CHILDREN TOGETHER!! Other than that you’re just used goods [Ms Orana]…
·On 18 February 2021 in communication with the maternal grandmother:
Tell her to get her shit together and to stop being a useless mother!
…everyone knows she is the devil (to say the least) but she’s your daughter! I hate having to deal with her but unfortunately I have to, she’s a dead beat mother who dumps my children to you….
·On 7 January 2021 the mother deposes that the father sent the mother the following text message after she told the children she was going on an airplane:
I just gave you over $900 yesterday go spend it on your trip (don’t ever tell me you use it for the children).
Now fuck off with trip and use my money to support it hahahahahahahahaha
Fucking retard!!
·On 18 January 2021 in response to an email regarding child support the father sent an email to the mother calling her a “Shifty Country O!” a “gold digger” and stating: “Court or no court you’re a failure.”
·On 12 May 2021 in response to correspondence from the mother stating she was unable to take X to dancing, the father wrote:
You’re definitely just a part parent – shitty mother to be honest.
·Undated screen messages of text messages show the father saying to the mother
You mother fucker
Don’t ever speak about me like that to my children
My niceness is finished mother fucker
Belittle me like that you think I can’t hear you stupid bitch
You made your choice CUNT
Because of you my son is how he is!! You ignored everything I told you about how has been affected be everything YOU have caused!! Because he finds it hard to deal with everything that he is going through!!
Drop dead SCUM!
·And on a further undated occasion:
Your [sic] good for a couple of years [Ms Orana]
Then down hill from there
You’re just a whore
Who has been in a minimum of 10 or so relationships
…No one wants YOU…
I am satisfied having regard to the uncontested evidence that the father has perpetrated family violence upon the mother and the children have been exposed to such violence. The father’s conduct has included controlling and intimidating behaviour and has continued post separation. Thus if I was to make an interim order that the children were to live with the father as sought by him, the children will be living with a perpetrator of family violence.
In relation to the parties competing allegations of the perpetration of family violence the court child expert opines that:
[Ms Orana’s] account is of concern, as she alleged that [Mr Alvarez] has engaged in persistent, threatening and intimidating behaviours in the post separation period. This type of behaviour is likely to undermine her capacity as a parent and she may be additionally vulnerable given her pregnancy. The children being consistently exposed to this behaviour is also likely to be harmful to their emotional wellbeing, their sense of safety and security and it could undermine their relationships with one or both parents.[19]
[19] Child Impact Report, paragraph 21.
The court child expert considers that if the court accepts the mother’s account of family violence, her move with the children to the Region B:
May be protective of her emotional well-being and mental health, and, may relieve her of the pressure she experiences from having ongoing contact with [Mr Alvarez]. It would also mean that the children are not living with a perpetrator of family violence.[20]
[20] Child Impact Report, paragraph 33.
The risks arising from the perpetration of the father of family violence which has continued post separation weight heavily against it being in the children’s best interests that they live with the father.
Additional Risk Issues
Parental Conflict
It was not disputed that the children reported to the court child expert that they have both witnessed arguments and disagreements between their parents. The court child expert opines that:
Exposure to parent conflict, which may have escalated to family violence, is detrimental to children’s wellbeing and it models to them inappropriate behaviours in managing conflict.[21]
[21] Child Impact Report, paragraph 22.
On the father’s own evidence he has engaged the children in the dispute. It is concerning that Y is reported as saying to the court child expert that “Mr Alvarez feels sorry for arguing with Ms Orana and wants her to forgive him.”[22]
[22] Child Impact Report, paragraph 11.
I am satisfied on the uncontested evidence that there is a significant possibility that the children are at risk of psychological harm from being exposed to the conflict between their parents.
The Mother’s Current Partner
The father alleges that the children have reported to him that Mr C has bullied and intimidated Y, called him a “dick” and placed his feet in Y’s face after being requested by Y not to do so. As discussed below, both the children reported to the court child expert that Mr C had called Y a “dick.”[23] The father deposes that X has said to him words to the effect of:
I don’t like it there. Mummy always just wants to do what she and [Mr C] plan for themselves. [Mr C] doesn’t care about us, and mummy only listens to [Mr C] and agrees with him when he is rude to us.”[24] The father further deposes that [X] has said “I have found mummy and [Mr C] naked in the house and I don’t like being in the house daddy.[25]
[23] Father’s Affidavit, paragraph 54-55.
[24] Father’s Affidavit, paragraph 46.
[25] Father’s Affidavit, paragraph 49.
The mother deposes that the children were warm and engaging when meeting Mr C for the first time in April 2021. She alleges that upon returning from the father’s home the children’s attitude and behaviour towards Mr C had changed; they said mean things to or about him.[26] The mother has formed the view after discussing the children’s behaviour with them that the father has been denigrating Mr C to them, telling them that he is not a good person, that he is not family and that they do not need to talk to him. Subsequent to a display of bad behaviour by the children in September 2021 at Mr C’s home including slamming doors, yelling and hitting each other and hiding an iPod in Mr C’s bedroom whilst in record mode, the children have been attending upon a child psychologist arranged by the mother.[27] The mother deposes that after seeing the psychologist she has observed the children display less resentment towards Mr C.
[26] Mother’s Affidavit, paragraph 56.
[27] Mother’s Affidavit, paragraph 57.
The mother expresses concern that the father speaks negatively about both herself and Mr C. She provides the following examples of what the children have said to her on occasion:
You use all your money on [Mr C]
Family is the most important thing. [Mr C] isn’t family.
Daddy’s work is more important than yours.
Daddy needs his money to buy a house. [Mr C] has his own house, so you don’t need your money.
Daddy gives you money to buy things for us, so you need to buy our things, not daddy.[28]
[28] Mother’s Affidavit, paragraph 65.
Further, on one occasion, after being returned from the fathers care, both children said words to the mother to the effect of “We don’t like Mr C. He is annoying.” Shortly after, Y whispered to the mother “Mummy, I do like Mr C but daddy said we can’t so I said I don’t. But I do like him. He is a nice person.”[29]
[29] Mother’s Affidavit, paragraph 65.
Mr C is also on Affidavit and his evidence as to the children’s behaviour with him supports that of the mother’s. He does not dispute the allegations concerning his behaviour towards Y, however his affidavit was filed prior to the filing of the father’s affidavit and the release of the Child Impact Report and I cannot in those circumstances draw any inferences or conclusions from this.
The court child expert opines that name calling and swearing at children is emotionally abusive and harmful to their wellbeing.[30]
[30] Child Impact Report, paragraph 35.
I further discuss the mother’s current partner later in these reasons.
Mental Health Issues
The father submits that of concern is the mother’s state of mind and mental health. The mother deposes that the behaviour of the father has caused her considerable stress and anxiety and she now attends upon a psychologist to address these issues. She deposes that whilst residing in Sydney she felt unsafe in her home as the father would attend unannounced. She deposes that when she is required to communicate with the father:
I become nervous, tense and restless. There is a rock feeling in my stomach, and I begin sweating. I have a strong feeling of panic and at times I begin trembling.[31]
[31] Mother’s Affidavit, paragraph 76.
In circumstances where the mother has engaged the assistance of a psychologist and the alleged causes of her symptoms would have been reduced by way of the now physical distance between the parties, I am not satisfied that there is an unacceptable risk of harm to the children in the mother’s care.
THE ADDITIONAL CONSIDERATIONS: S60CC (3)
Views of the Children
Both of the children were interviewed by the court child expert for the purposes of the Child Impact Report on 20 September 2022. The court child expert opined that X presented as a cooperative and engaging child who appeared open and comfortable in her interview. She stated that her parents being separated is “ok” but expressed her frustration that her parents have been unable to make a decision without the court’s assistance.
When the opposing proposals were explored with X she stated that she would feel more comfortable living with the father because she feels “uncomfortable” with Mr C and that on one occasion he called Y the “d word”. The court child expert opined that part of X’s discomfort with Mr C is him being the mother’s partner and that it feels “weird.”
Y presented to the court child expert as a polite and friendly child. The court child expert opined that Y became withdrawn when the opposing proposals were explored and that this seemed to arise out of his clear preference that the mother remain living in Sydney so that the children’s arrangements can continue as they are.[32] Y spoke negatively of Mr C, stating that he called Y a “d word”.[33] Understandably, Y stated that his first preference would be for his parents to reconcile. His second preference would be for the mother to continue to live in Sydney so that the children can spend equal time with each of the parties as that is “fair.” He stated that the bad things about living with the mother would be that he would have to change schools and it would be “tough to live with” Mr C.”[34]
[32] Child Impact Report, paragraph 10.
[33] Child Impact Report, paragraph 12.
[34] Child Impact Report, paragraph 13.
The court child expert opined that the children’s expressed ambivalence about moving to the Region B region with the mother does not appear to be because of the quality or nature of the relationship with her but because of their reservations regarding Mr C and their reluctance to change schools. She states that:
It seems that there is a possibility that the children’s views of [Mr C] have been influenced by [Mr Alvarez] and it is likely that this is also in part due to their difficulty adjusting to the changes in their family system. Similarly, it is not uncommon for children to be reluctant to change schools, but this does not necessarily mean that they are not capable pf doing so if needed, rather it is difficult for them to imagine what the experience will be like.[35]
[35] Child Impact Report, paragraph 26.
The father concedes that he has discussed with the children his feelings about the mother wanting to relocate. He provides written evidence that the children do not want to move to live with the mother based on these conversations.
Despite the father’s allegations that the children are at risk of harm in the care of Mr C he does not seek any orders, on either an interim or final basis to restrain the children’s contact with him. Given the nature of an interim hearing and the limited evidence before me I can make any findings as to the nature of the relationship between the children and Mr C and the accusations as to his behaviours towards Y. I accept that the children expressed ambivalence towards living in a household with Mr C. The reasons underlying such ambivalence will be determined at a final hearing. I cannot be satisfied at this stage of the matter that the children are at an unacceptable risk from coming into contact with Mr C.
I further accept that the children expressed ambivalence and a reluctance to change schools. This concern is now nugatory. The children have already pursuant to the interim orders, commenced school in the Region B.
The practical difficulty and expense of the children spending time with a parent
This is a significant issue in circumstances where the parties are now living a significant distance from each other. This issue will remain irrespective of whether the children continue to live with the mother in the Region B or move to live with the father in the Sydney area as the mother is not proposing to relocate back to Sydney.
The mother proposes that the children fly unaccompanied between Town G and Sydney once a month and for a significant proportion of each of the school holidays to spend time with the father. She proposes that the parties share equally in the costs of such flights. The father’s proposal is less clear although he is proposing that the children spend time with the mother were they to live with him. His evidence is clear that he does not agree that the children travel unaccompanied and that the mother should bear the totality of the costs of travel for both the children and himself.
There is no evidence as to any potential risk to the children travelling unaccompanied.
The father is engaged in full time employment. The Child Support Assessment for the period October 2022 to November 2023 assesses that the father’s provisional income as $175,680 and the mother’s as $99,284.
The mother proposes to remain on maternity leave for a period of time. It is the responsibility of parents, irrespective of where the children live, to actively encourage and facilitate time with the non-resident parent. I am satisfied that both parties are able to contribute towards the costs of the children travelling between the parties’ households and that this cost should be borne equally. The evidence does not support an order requiring that the father accompany the children for such travel and it is refused.
If the children are to remain living with the mother she proposes that they will have electronic communication with the father three times a week which will assist in maintaining a meaningful relationship with the father. The father does not propose any specific orders in this regard were the children to live with him.
The Parenting Capacities of each of the Parties
This is a significant and concerning issue in this matter having regard to the reasons above. The evidence and relief sought by the father raises additional concerns.
As outlined above the mother seeks specific orders as to face to face time between the children and the father. Whilst her proposal decreases the frequency in which the children are to see the father, she submits that the children will be able to continue to have a meaningful relationship with the father through monthly weekend time, for most of the short school holiday periods and a significant proportion of the long school holiday period together with electronic communication three times each week. Having regard to the distance between each of the parties’ households reducing the frequency in which they are to undertake the required travel appears to be in their best interests. The mother deposes that the children continue to speak with the father almost daily subsequent to their relocation to the Region B despite the current interim orders that this occur three times a week. The mother deposes that she encourages the children to call the father outside the time currently provided for in the orders.
The court child expert reported that the mother acknowledged the importance of the children’s relationship with the father and that the children desire to have both parents actively involved in their lives.
The mother and the court child expert both raise concerns as to the father’s capacity to encourage and facilitate a meaningful relationship between the children and the mother. The mother told the court child expert that the father may not directly say negative things about her to the children but makes subtle references that reinforces to the children that it was the mother that left the family.
In contrast to the mother’s specific proposals to maintain a relationship between the father and the children, the father’s specific proposals if the children were to live with him are unclear.
The mother deposes that on one occasion shortly after the making of the first apprehended domestic violence order Y came back from spending time with the father and said: “Daddy wants to come back but you don’t let him. Why don’t you let him come back? It’s your fault. Daddy says it’s because of you.” The mother alleges that she was required to comfort Y as he was crying and screaming. The mother further deposes that the children have said to her on various occasions:
Daddy loves you. It’s your fault we are not a family.
Daddy says you are mean to him.
Daddy wants us to all go out together.
Daddy is a nice person, but you are mean.[36]
[36] Mother’s Affidavit, paragraph 43.
Mr C deposes that on one occasion when he took Y to the shops, Y and Mr C had a conversation to the effect of:
[Y]: My mummy takes my daddy’s money. In the morning, my daddy has lots of money and by the end of the day he has nothing because mummy takes it all.
[MR C]: That can’t be right. I doubt your mother would do that.
[Y]: It’s true. Daddy showed us.[37]
[37] Affidavit of Mr C filed 20 September 2022, paragraph 17.
The tone and tenor of the father’s own evidence and written submissions in support of the relief sought by him causes significant concern. The father contends that the mother’s motive in relocating the children away from him, their school, friends and family is solely for monetary gain and financial abuse, and that the children are at risk of being neglected by the mother given the birth of her child last year.
One such example as contained within the father’s written submissions filed on 3 October 2022 is:
The fact that the mother is 7 months pregnant as of the date of her affidavit [of] 2022, noting her relationship commenced with her partner on or about [2021], suggests recklessness, imprudence and parental irresponsibility. Especially given the prematurity of the short term and long-distance relationship and the obvious implications which are now playing out for all parties including children. The applicant mother is the author of her own dilemma and petitions this court for an order to make it everyone’s dilemma to uproot the entire children’s world against their wishes and their entire family’s wishes in order to accommodate the applicant’s recklessness.
In addition to the demeaning and rude nature of such a submissions it is perhaps telling that the father clearly does not include the mother as part of the children’s family in the above statement.
The court child expert opined as to some concerning features of the father’s interview with her. She reports that the father gave the impression of being very ambivalent towards the mother whilst at other times referring to her in depersonalising terms. He mentioned on several occasions his belief that the relationship broke down due to the mother’s infidelity. In observing the father the court child expert opined that he gave the impression of being somewhat rigid and unwilling to reflect on the impact of his behaviour and choices on the children’s experiences and focussed rather on his belief that the mother is responsible for the difficulties in their co-parenting relationship.[38]
[38] Child Impact Report, paragraph 30.
The court child expert opined that the motivation of the father’s description of himself as the primary carer of X when she was younger appears to have been to diminish the mother’s role. He was unable to recognise any disadvantages to the children in living with him. He emphasised the importance of the children continuing to spend close time with his friend “Ms P” and appeared, at least to the court child expert, to be prioritising his relationship with her with very little consideration as to the children’s relationship with their maternal sibling or Mr C. Importantly, the court child expert was of the view that, with respect to the father:
It seems likely that he will have difficulty supporting, if not purposefully undermine, the children’s relationship with [Ms Orana].[39]
[39] Child Impact Report, paragraph 31.
The mother deposes that the father encourages Y to behave violently. The father does not dispute the mother’s evidence as to an incident in November 2021 where another student punched Y on the lip. The mother overheard the conversation between the father and Y:
FATHER: “When I was little, someone punched me, and I hit them 3 times and busted their nose. That’s what you need to do when someone punches you.”
[Y]: “What is busting?”
FATHER: “It is breaking someone’s nose. That’s what you do when someone touches you. Break their nose.”
[Y]: “No. No one is breaking anyone’s nose.”[40]
The likely effect of any changes in the child's circumstances
[40] Mother’s Affidavit, paragraph 60.
The children have already experienced a significant change as a result of their relocation to live in the Region B. The mother’s proposal will continue the current parenting arrangements for the children. The father’s proposal will involve another significant change in the children’s lives within a very short space of time. There is no evidence before the court as to the possible effect a further significant change will have upon the children.
The mother deposes that since her move to the Region B the children have made new friends at school and at sports activities. The mother’s evidence is that she is organising play dates with X’s school friends and that Y has had play dates with his sports friends. The children attended the birthday party of a school friend on 11 December 2022.[41] The mother deposes that the children look happy and relaxed in her care at the Region B.[42]The maternal grandmother has visited the mother and children twice since their move, and Mr C’s parents have also visited on 1 or 2 occasions.[43]
[41] Mother’s Affidavit, paragraph 80.
[42] Mother’s Affidavit, paragraph 80.
[43] Mother’s Affidavit, paragraph 80.
In the event the children are to live with the father, they will be separated from their maternal sibling. The court child expert opines that if the children are excluding from the planning and arrival of a new sibling this may cause relationship difficulties between the children and the mother. In the circumstances of the mother’s re-partnering and move away from the father I am satisfied there is a risk that if the children were to live with the father away from the mother and their maternal sibling “the children may feel rejected and may feel as though she is prioritising their maternal sibling over them.”[44]
[44] Child Impact Report, paragraph 26.
PARENTAL RESPONSIBILITY
The mother seeks that no orders be made as to the allocation of parental responsibility save for an order that she have sole responsibility for making decisions as to the children’s schooling. The father seeks an order that he have sole parental responsibility.
As the Court is being asked to make orders as to parenting, the first question to be determined is whether the presumption in s 61DA(1) of the Act that it is in the best interests of the children that the parents have equal shared parental responsibility is rebutted as:
·there are reasonable grounds to believe one of the parties (or a person who lives with a party) has engaged in abuse of the children or family violence; or
·it would not be appropriate in the circumstances for the presumption to be applied.
As a consequence of the reasons above I am satisfied that there are reasonable grounds to believe that that the father has engaged in the perpetration of family violence. The presumption is therefore rebutted.
Even if I were so not satisfied, pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the children. The Full Court in Marvel & Marvel (2010) 43 Fam LR 348, 371 at [103]; [2010] FamCAFC 101 acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility, stating that:
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
Having regard to the conflictual nature of the interactions between the parties and the children’s exposure to it, I am satisfied that it would not be satisfied for the presumption to be applied. I am further satisfied in those circumstances that it is appropriate for the mother’s application to be solely responsible for making decisions as to the children’s schooling to be granted. Otherwise each party will continue to have parental responsibility for the children pending final orders being made.
DETERMINATON
Considering all of the above I am satisfied that it is in the best interests of the children that they remain living with the mother pending a final determination of this matter.
I am satisfied that weighing the competing considerations of the children maintaining a relationship with the father against the need to protect them from the risk of harm arising from the father’s own conceded behaviours that reducing the time the children spend with him during school terms is in their best interests. This will reduce the potential for the children to be further exposed to the conflict between the parties and may provide some comfort to the mother as their resident parent. It further decreases the frequency in which the children have to travel between each of the parties’ households.
I am satisfied that the mother’s proposal that children spend the majority of the school holiday periods with the father will support their continued meaningful relationship with him.
I am satisfied that the orders as proposed by the mother are in the children’s best interest and thus the Application for Review filed by the father will be dismissed.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 30 January 2023
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