PREECE & MULDER

[2011] FamCA 595

FAMILY COURT OF AUSTRALIA

PREECE & MULDER [2011] FamCA 595

FAMILY LAW - CHILDREN – Parenting orders – parental responsibility – substantial weight given to the views of the children – the children are reasonably mature – the children wish to spend time with the father in accordance with own wishes – history of family violence perpetrated by father – father’s attitude to the children and responsibilities of parenthood deficient – mother demonstrates proper attitude to the children and the responsibilities of parenthood – the orders do not entail any real change from existing arrangements – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to the mother – children shall live with the mother – the children shall spend time with the father in accordance with their wishes

FAMILY LAW - PROCEDURAL ORDERS – injunction – restrictions on father when children spend time with him – father restrained from inflicting corporal punishment on children – father restrained from leaving children unaccompanied by an adult at night whilst in his care – father restrained from allowing adult males to reside in his home whilst children are in his care- father restrained from contacting the mother or attending her residential premises

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38, 42
Family Law Act 1975 (Cth) ss 60K, 64B, 60B, 65D, 60CA, 65AA, 60CC, 61DA, 61B, 65DAC, 4, 65DAE, 65DAA,

Allesch v Maunz (2000) 203 CLR 172
Goode v Goode [2006] FLC 93-286
MRR v GR (2010) 240 CLR 461
M v M (1988) 166 CLR 69
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Ms Preece

RESPONDENT: Mr Mulder

INDEPENDENT CHILDREN’S LAWYER: Peter Hamilton & Associates

FILE NUMBER: NCC 1334 of 2010

DATE DELIVERED: 29 July 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 1 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Melville, The Charlestown Law Firm

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hamilton, Peter Hamilton & Associates

Orders

1. All former parenting orders relating to the children C and T, both born on … September 1997, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure that the children, or either of them, spend time with the father at times desired by them.

5. For the purposes of implementing Order 4, the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at Location 1, Newcastle Suburb 1, NSW, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.

6. The father is restrained from:

   (a)Causing or permitting the children to be unaccompanied by an adult after 9.00 pm;

   (b)Causing or permitting the infliction of corporal punishment upon the children;

   (c)Causing or permitting any adult male, other than Mr B, to reside within his home whilst ever the children are spending time with him at his home;

7. Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

8. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

9. The mother shall keep the father informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

10. The mother shall authorise and request the principal of any schools attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

12. The father is restrained from:

    (a)Contacting the mother, either orally or in writing, other than for the purpose of compliance with Orders 4, 5, 8, and 11 hereof; and

    (b)Attending at, or being within 100 metres of, the residential premises of the mother.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

14. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

15. Save as to costs, any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1334 of 2010

Ms Preece

Applicant

And

Mr Mulder

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These reasons determine the parenting orders applicable to the twin children of the applicant mother and respondent father.

2. Unfortunately, the father resiled from active participation in the proceedings some months ago and thereby deprived himself of the opportunity to be heard about the proper outcome of the proceedings.

3. Largely, there was concurrence between the mother and Independent Children’s Lawyer about the orders that reflected the best interests of the children, but in the absence of consent by the father it was necessary for the Court to evaluate the evidence and finalise the litigation by formal determination.

Background

1. The children were born to the parties in September 1997. They are now aged nearly 14 years.

2. The parties separated many years ago when the children were quite young.

3. Litigation over the children was commenced in early 2004 and parenting orders were first made concerning the two children with the consent of the parties on 20 July 2004. 

4. Further litigation was commenced by the mother in October 2005. That litigation was contested until final parenting orders were made on 13 December 2007.  There were numerous interim disputes along the way.

5. The orders made on 13 December 2007 made provision, generally, for:

   a)The parties to have equal shared parental responsibility for the children (Order 1);

   b)The children to live with the parties for equal time on a weekly rotation and for half of all school holidays (Orders 3-7); and

   c)Reasonable telephone communication between the children and the parties (Order 18).

6. The mother commenced parenting proceedings for a third time in May 2010. The catalyst for the fresh proceedings was a concern about the promiscuity of one of the children with other adolescents, particularly when she was living with the father, and the father’s violent response to such developments, including an alleged assault of that child.

7. The mother filed a Form 4 Notice of Child Abuse or Family Violence contemporaneously with her Initiating Application on 26 May 2010.

8. Consistently with the Court’s obligation to afford expedition to such cases (s 60K), the proceedings were listed for determination of the interim orders sought by the mother in her Initiating Application. That interim hearing occurred on 9 July 2010 and resulted in the Court making interim parenting orders to the following effect (see Preece & Mulder [2010] FamCA 657):

   a)Suspension of Orders 3-14 inclusive made on 13 December 2007 (Order 1);

   b)The children live with the mother (Order 2);

   c)The children spend time with the father each alternate weekend and for a further 5 hours on each intervening Sunday (Order 3.2), and for half of the school holidays (Orders 3.3, 3.4);

   d)Changeovers occur at the father’s home (Order 5); and

   e)The mother was permitted to change the school enrolment of one child to a different school (Order 6).

9. The orders were amended because of a finding that the children’s best interests would be promoted by such a change, not because of the untested allegations made by the mother in the Form 4 Notice of Child Abuse or Family Violence (see Preece & Mulder (supra) at [48], [81]).

10. The parties and children subsequently conferred with the Family Consultant on 17 August 2010, who later affirmed an affidavit setting out her observations and opinions. The affidavit was released to the parties.

11. After receiving that affidavit, on 8 October 2010 the father filed his Amended Response setting out the amended parenting orders he proposed. That was the last document filed by the father in the proceedings.

12. An Independent Children’s Lawyer was appointed on 25 October 2010 to advocate the interests of the children.

Absence of the father

1. The father failed to appear at Court for the first day of trial on 10 June 2011, appointed pursuant to Rule 16.08 of the Family Law Rules. At that time it was noted:[1]

   a)The father wrote to the Independent Children’s Lawyer on or about 16 December 2010 indicating that he no longer wished to pursue any further legal proceedings in respect of the children;[2]

   b)The father filed a Notice of Discontinuance on 27 April 2011, albeit that it only expressly referred to discontinuance of his initial Response and his Response to an Application in a Case, and not his Amended Response filed on 8 October 2010;

   c)The father failed to attend the appointed child dispute conference with the Family Consultant on 6 May 2011;

   d)The mother’s solicitor wrote to the father at his last known address on 6 May 2011 indicating that the mother would press ahead with her application for parenting orders notwithstanding his failure to participate in the proceedings;[3] and

   e)The father was served on 2 June 2011 with a copy of the mother’s Amended Initiating Application filed on 2 May 2011.

   [1] Notation A made on 10 June 2011

   [2] Exhibit ICL1

   [3] Exhibit M1

2. An order was also made on 10 June 2011 requiring the father’s service with a sealed copy of the Court orders made that day,[4] it being noted that the trial would proceed on an undefended basis if the father failed to appear on the appointed trial date.[5]

   [4] Order 6 made on 10 June 2011

   [5] Notation B made on 10 June 2011

3. In compliance with those orders the mother proved service of the orders upon the father on 23 June 2011 by filing an affidavit of service on 30 June 2011. According to another affidavit filed by the mother on 30 June 2011, an earlier attempt to serve the father on 16 June 2011 failed because he had vacated his former residential address.

4. The father again failed to appear at the appointed trial on 1 July 2011.

5. In the circumstances, I conclude that the father has voluntarily withdrawn and intends taking no active part in the proceedings. He is fully aware that the Court will proceed to adjudicate orders in his absence.

6. If a party eschews the given opportunity to be heard by voluntarily withdrawal from litigation, in the knowledge that the proceedings will continue in that party’s absence, there is no miscarriage of justice by continuation of the trial in that party’s absence. The court is not required to indefinitely delay the trial merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

7. The last proposal of the father, evident from his Amended Response filed on 8 October 2010, is that the orders previously made on 13 December 2007 should prevail, requiring return to the equal time parenting regime. That, however, is a quite different position from the attitude he indicated to the Family Consultant only shortly before on 17 August 2010, which was that the children spend time with him “as per the children’s wishes”.[6]

   [6] Affidavit of Family Consultant 18 August 2010, page 1

Proposal and evidence of the mother

1. The mother pressed for the orders set out within her Amended Initiating Application filed on 2 May 2011, in which she generally proposed:

   a)Discharge of all former parenting orders (Order 1);

   b)The children live with her (Order 2);

   c)The mother have sole parental responsibility for the children (Order 3);

   d)The children spend time with the father “as requested by each child” (Order 5);

   e)Changeovers occur at Location 1, Newcastle Suburb 1, NSW (Order 5);

   f)Liberal telephone communication between the children and the father (Order 6);

   g)Multiple restraints upon the father’s care and supervision of the children (Orders 7-9); and

   h)Restraint of the father from contacting the mother except as expressly envisaged by other orders (Order 12).

2. In support of her proposal the mother relied upon her affidavit filed on 15 June 2011 and the affidavits of the Family Consultant affirmed on 18 August 2010 and 6 May 2011.

3. The mother also gave some short oral evidence, confirming that the father refuses to disclose to her where he now lives. One of the children recently elected to see the father for a few hours on his birthday, but the other child refused and remains resistant.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer supported all of the orders sought by the mother, with the exception of the injunctive order (Order 12), and did not propose any supplementary orders.

2. The Independent Children’s Lawyer also relied upon the affidavits of the Family Consultant affirmed on 18 August 2010 and 6 May 2011.

3. The Family Consultant was not required for cross examination by either the mother or Independent Children’s Lawyer.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode v Goode [2006] FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the children – primary considerations

Section 60CC(2)(a)

1. The children both have meaningful relationships with the mother. There was no debate about that.

2. The quality of the children’s relationships with the father is inferior, but not uniformly so. C has no wish to even see the father currently, although she contemplates that she may wish to in the future. T wishes to continue spending time with the father, but only when it suits her. The father remains an important figure in their lives, but not as important as the mother.

3. The children will benefit from maintaining their relationships with both parents, and the orders permit them to do so in a way which is consistent with their wishes.

Section 60CC(2)(b)

1. From the mother’s perspective, exposure of the children to abuse and family violence is a significant issue in this litigation. The previous equal time parenting regime created friction between the parents, and between the father and the children. The allegations of abuse and family violence arise out of those tensions.

2. The mother perceived that the father was not vigilant enough in his supervision of the children and not encouraging enough in their application to academic performance.

3. The children’s perceptions mirror those of the mother. The Family Consultant observed that T’s perception of the parties’ disparate parenting styles caused her a great deal of anxiety and confusion, and noted she was “highly aware” of the animosity between the parties. As for C, the Family Consultant reports her view of the father as an “irresponsible parent”, and notes that she senses the mother’s stress.[7]

   [7] Affidavit of Family Consultant 18 August 2010, page 3

4. At least partially as a consequence of the freedom allowed to her by the father, T experienced a period of promiscuity with other adolescents. The parties both became aware of that behaviour, and understandably, both were concerned by it. The father’s reaction was more explosive than the mother’s. On one occasion late in the evening he drove to a location where he believed he would, and did, find T. There was a tense scene, which involved shouting and physical confrontation. The father struck T in the face and she suffered bruising as a result.

5. The incident was later reported to the police. T made a statement to police about the incident and the father was charged with her assault. An application for an apprehended violence order was also made against the father in favour of T.[8] The father was later convicted of the assault charge in his absence, but the conviction was later quashed on appeal.[9]

   [8] Mother’s affidavit, pars 59-62

   [9] Mother’s affidavit, pars 73, 79

6. The quashing of the conviction does not of course mean that the father did not assault T – it simply means that the offence was not proven beyond reasonable doubt. It remains open for the assault to be proven in these proceedings on the balance of probabilities.

1. The father maintained to the Family Consultant that it was not his intent to harm T,[10] which is potentially, but not necessarily, consistent with his denial in the former interim proceedings of any intent to strike T, it being allegedly accidental (see Preece v Mulder (supra) at [40-42]). The father has not, however, adduced evidence at trial of his version of the event or submitted himself to cross examination about it.

   [10] Affidavit of Family Consultant 18 August 2010, page 4

2. The mother’s evidence about the incident is entirely predicated upon the version of T, and for reasons which require no elaboration, T has not been tested upon her version of the event either.

3. In the circumstances, I decline to make a finding on the balance of probabilities about whether the father assaulted T on that occasion. It is really unnecessary to do so, and the High Court has directed that findings of fact on such issues should not be made unless it is necessary (see M v M (1988) 166 CLR 69 at 76-77). Whether or not it is true, the children both believe the father intended to strike T in the face that evening, and it has profoundly affected their relationships with him. That fact will not be altered by any finding about whether the father did or did not deliberately strike T so as to constitute an assault.

4. T is now fearful of the father, and also fearful for the safety of her male friends as a consequence of things the father has said to her. T described the father violently punching the wall in her presence as a demonstration of his anger or frustration.[11] That evidence is somewhat different from the father’s admission in the former interim proceedings of slamming a cupboard door in such circumstances (see Preece v Mulder (supra) at [39]), but it is still obvious that the father has been unable to contain himself and has acted violently.

   [11] Affidavit of Family Consultant 18 August 2010, page 2; Mother’s affidavit, par 30

5. C is frightened of the father because of the incident with T and her perception of his volatility. She told both the mother[12] and the Family Consultant[13] of those concerns. Indeed, it seems that is the principal reason she is resistant to spend time with the father.

   [12] Mother’s affidavit, par 64

   [13] Affidavit of Family Consultant 18 August 2010, page 3

6. The father’s volatile and unpredictable behaviour is not a recent phenomenon. The available evidence suggests the father physically assaulted the mother’s older son on two occasions in 2007 and 2008.[14] The mother’s son is a member of the children’s family and so those incidents were episodes of family violence within the meaning of the Act (s 4).

   [14] Mother’s affidavit, pars 17-19

7. The father has more recently reacted towards the mother in a hostile way, gesticulating offensively and using profane language towards her.[15] The father has also continued to make telephone calls to the mother at odd hours, repeatedly sent her text messages, and loitered around her home,[16] which behaviour the mother reasonably regards as intimidating. That too capably constitutes family violence, even absent physical confrontation.

   [15] Mother’s affidavit, par 39

   [16] Mother’s affidavit, pars 81-89

8. The evidence leads inexorably to a finding that the father has perpetrated family violence. While the level of violence can properly be regarded as mild, it has certainly deleteriously affected the relationships between the parties and between the father and each of the children. The findings of past family violence are sufficiently compelling to substantially influence the orders made by the Court. It is clear there is an existent need to protect the children from physical and emotional harm from exposure or subjection to abuse or family violence perpetrated by the father.

Best interests of the children – additional considerations

Section 60CC(3)(a)

1. The Family Consultant described both children as “shocked and relieved” when informed in August 2010 that the father was no longer insisting upon an equal time arrangement and that they could dictate terms about when they spent time with him.[17]

   [17] Affidavit of Family Consultant 18 August 2010, page 2, 3

2. It was their preference to spend time with the father at their discretion.

3. Both children presented to the Family Consultant as intelligent and articulate. Given their age and apparent maturity, I accept the submissions of the mother and Independent Children’s Lawyer that substantial weight should be accorded to the children’s views.

Section 60CC(3)(b)

1. The nature of the children’s relationships with each of the parties has already been addressed under s 60CC(2) of the Act. There is nothing to add.

2. There is no evidence about the children’s relationships with members of the extended maternal and paternal families.

Sections 60CC(3)(c), (4)

1. The parties each have the willingness and ability to facilitate and encourage close and continuing relationships between the children and the other party. Their mutual commitment to an equal time parenting regime between 2007 and 2010 is testament to that.

2. The change to that arrangement in 2010 was caused by deterioration in the relationships between the children and the father by reason of their experiences with him, not because of any change in attitude by the mother to the promotion of those relationships.

3. Although the father alleged to the Family Consultant that the mother had “alienated” the children from him,[18] that was not the opinion of the Family Consultant, nor my finding on the evidence.

   [18] Affidavit of Family Consultant 18 August 2010, page 4

4. The children have attained an age and level of maturity where, in the opinion of the Family Consultant, they are “reducing their emotional reliance on parents…and distanc[ing] themselves from [parents] as they shift to prioritise peer relationships”.[19]

   [19] Affidavit of Family Consultant 18 August 2010, page 4

5. The father has not availed himself of every opportunity to spend time with the children, which has perhaps served to reinforce the children’s perceptions that they should exercise greater control about when they spend time with him. For example, the father told the mother and T that he did not wish to see the children if the apprehended violence proceedings were pursued against him.[20] The father has also not been available to take the children, without explanation, on occasions when he was expected to do so.[21]

   [20] Mother’s affidavit, par 72, 74

   [21] Mother’s affidavit, par 76

6. The mother does not wish the father expunged from the children’s lives. She desires him to remain part of their lives, but wishes the children to dictate the terms under which that should occur. That is not an unreasonable position.

Section 60CC(3)(d)

1. The orders do not entail any real change from existing arrangements. Despite orders being made on 9 July 2010 for both children to spend time with the father each weekend and for portions of school holidays, that has not occurred. C has not spent time with the father since her refusal to do so on 17 September 2010,[22] and T has only spent time with the father intermittently since then.

   [22] Mother’s affidavit, par 78

2. Consequently, since September 2010 the children have only spent time with the father in accordance with their individual desire, and the parties have acquiesced to that arrangement. The orders endorse that regime, consistently with the submissions of the mother and Independent Children’s Lawyer.

3. Such an outcome was also supported by the father when he spoke with the Family Consultant in August 2010, although his Amended Response filed on 8 October 2010 proposed a different outcome. The father told the Family Consultant that the children should spend time with him when they wish to do so and that he was willing to “leave the door open” and arrange his time to suit the children.[23] The father did not give evidence to explain why he may have changed his mind.

   [23] Affidavit of Family Consultant 18 August 2010, page 1

Section 60CC(3)(e)

1. There will be no practical difficulty or expense incurred in implementing the orders. The parties both still live in the lower Hunter Valley area. They have arranged the exchange of the children between them for many years and no reason has been advanced why that will not continue.

2. Although the father has apparently contemplated relocating his residence to the mid north coast of NSW, where he has family, friends, and business interests,[24] that has not occurred in the period of some 11 months since he mentioned the prospect to the Family Consultant.

   [24] Affidavit of Family Consultant 18 August 2010, page 5

3. More recently, attempted service of documents upon the father at his former residential address in Newcastle failed, and he was later served at a hotel in Town 1 in the lower Hunter Valley. Although the father’s current residential address is unknown, he is obviously still in the general vicinity.

4. As already mentioned, the mother gave oral evidence that the father refuses to disclose his current residential address to her.

Section 60CC(3)(f)

1. The mother has the capacity to provide for all of the children’s needs, including their physical, emotional, and intellectual needs.

2. The father also generally has the capacity to provide for the needs of the children, subject to the observations already made about his behaviour not catering to the children’s emotional and intellectual needs. There is no need to repeat those conclusions.

Section 60CC(3)(g)

1. No submission was made about the maturity, sex, lifestyle, or background of the parties as an issue of significance in the proceedings, nor does any of the evidence adduced bear upon those issues.

Section 60CC(3)(h)

1. Neither party identifies themselves or the children as Indigenous Australian.

Sections 60CC(3)(i), (4)

1. The mother demonstrates a proper attitude to the children and the responsibilities of parenthood. That fact was not the subject of any contest.

2. The mother contended that the father’s attitude to the children and the responsibilities of parenthood are deficient, primarily because of his much more lax attitude towards supervision of the children and their peer relationships. Although the evidence demonstrates that the father’s control over the children is looser than that exercised by the mother, the evidence does not prove that the father is irresponsible. Nevertheless, the mother and children are more comfortable with a stricter regime.

Section 60CC(3)(j)

1. The issue of family violence has already been addressed under s 60CC(2) as a primary consideration bearing upon the children’s best interests. There is nothing to add.

Section 60CC(3)(k)

1. A family violence order was made against the father by the Local Court of NSW at Newcastle Suburb 2 in mid July 2010 for a period of 12 months.[25]

   [25] Mother’s affidavit, par 73

2. The order was made for the protection of T, but the order additionally protects the mother and C because they live with and therefore share a domestic relationship with T (see ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

3. There is no inconsistency between the family violence order and the parenting orders because the family violence order expressly provides, relevantly:

   The [father] must not approach, contact, or telephone the [mother and children] by any means whatsoever except…as authorised by a parenting order under the Family Law Act 1975…

4. The orders made by this Court do expressly authorise the father to approach, contact, and telephone the mother and children.

5. The family violence order expired in mid July 2011. The mother gave evidence of continuing harassment by the father that would seemingly warrant enforcement and extension of the family violence order,[26] including making telephone calls at odd hours, repeatedly sending text messages, and lurking in and around the mother’s home without warning, but the police have declined to intervene.[27]

   [26] Mother’s affidavit, par 81-84, 86-89

   [27] Mother’s affidavit, pars 85, 88

6. I am satisfied on the evidence that the father should be restrained from such conduct in the future, beyond the expiration of the family violence order in mid July 2011. Accordingly, an order is made precluding the father from contacting the mother, other than for the purpose of implementing the parenting orders, and from approaching her residence.

7. The Independent Children’s Lawyer argued against the imposition of such an injunction, on the basis that it may impede operation of the parenting orders, but the order is fashioned so as to avoid that result. The evidence justifies such an order.

Section 60CC(3)(l)

1. The parenting regime ordered is less likely to lead to the institution of further proceedings than any other form of regime because it reflects the wishes of the children, the submissions of the mother and Independent Children’s Lawyer, the recommendation of the Family Consultant, and the concessions made by the father to the Family Consultant in August 2010.

2. Although the father seemingly adopted a different view when he filed his Amended Response in October 2010, he has taken no active part in the proceedings since December 2010.

Section 60CC(3)(m)

1. Neither the mother nor the Independent Children’s Lawyer submitted that any other fact or circumstance was relevant to the outcome of the proceedings.

Orders

1. The mother and Independent Children’s Lawyer submitted the mother should have sole parental responsibility for the children, but for different reasons.

2. The mother submitted that the presumption of equal shared parental responsibility did not apply by reason of family violence (s 61DA(2)), whereas the Independent Children’s Lawyer submitted that the presumption did apply but was rebutted by evidence which demonstrated such an outcome was not in the children’s best interests (s 61DA(4)). That was the mother’s alternate submission.

3. For reasons already explained, the father did commit family violence and so the presumption of equal shared parental responsibility does not apply. Even if it did, I am also satisfied that the children’s best interests would demand an outcome other than equal shared parental responsibility. The conflict between the parents about the children still precludes their rational discussion and compromise. The father’s refusal to advise the mother of his current residential address is a simple example. Another example is their inability to agree upon T’s enrolment at a different school, despite the former school principal raising concerns about her,[28] necessitating a decision by the Court.[29] T is now thriving at her new school.[30]

   [28] Mother’s affidavit, pars 47-48

   [29] Order 6 made on 9 July 2010

   [30] Mother’s affidavit, pars 92-95

4. It is clear from the evidence that the mother should have sole parental responsibility for the children and that the children should live with her. That outcome is warranted because the children’s relationships are stronger with the mother than the father, they need consistent parenting, and the mother is more supportive of their academic progress. It is the mother who has been largely responsible for the children’s scholastic performance.[31] The Family Consultant holds the same view.[32]

   [31] Mother’s affidavit, pars 92-98

   [32] Affidavit of Family Consultant 18 August 2010, page 6

5. Given the uniformity between the children’s views, the submissions of the mother and Independent Children’s Lawyer, and the recommendations of the Family Consultant, I am persuaded that the children should spend time with the father in accordance with their individual desire. I accept the Family Consultant’s opinion that forcing the children to spend time with the father contrary to their wishes is more likely to increase their resistance to do so.[33]

   [33] Affidavit of Family Consultant 18 August 2010, pages 6-7

6. It is conceivable that, under such an unstructured regime, C will never see the father and T will rarely see the father. That would be unfortunate, but it is an improbable outcome in the mid to long term.

7. It is likely that C will re-establish trust in the father as she ages and matures. She told the Family Consultant she expected to do so, but she “just need[ed] some space”.[34] T still occasionally sees the father, and apparently harbours the desire that should continue.

   [34] Affidavit of Family Consultant 18 August 2010, page 3

8. The mother, with the support of the Independent Children’s Lawyer, proposed use of Location 1, Newcastle Suburb 1, NSW as the venue for changeovers. That is the venue the mother said the parties have been using recently and so I adopt that proposal. Given the recently expired apprehended violence order, and the injunctive order made in these proceedings, it is better for the changeovers to occur at a public place and not at the father’s home as was previously ordered.[35] In any event, the father’s current residential address is unknown to the mother and children.

   [35] Order 5 made on 9 July 2010

9. The mother, again with the support of the Independent Children’s Lawyer, proposed the imposition of some restrictions upon the father whenever the children spend time with him. Such restrictions are imposed upon the father so that his supervision of the children is stricter than before and so they are not exposed to adult males in the father’s home, other than their half-brother Mr B. The father is also restrained from inflicting corporal punishment upon the children.

10. No specific orders are made providing for communication between the children and the father. The mother petitioned the Court for specific orders dictating the times for telephone communication between the children and the father, but I decline to make such orders.

11. The absence of such orders should not be interpreted as an intention that there be no telephone communication between the children and the father. Rather, there is simply no need for it to be regulated. Telephone communication has occurred satisfactorily between the children and father for years, notwithstanding that the orders made in December 2007 made no specific provision for it,[36] and the orders made in July 2010 made no provision for telephone communication at all.

    [36] Order 18 made on 13 December 2007

12. The mother gave evidence that she purchased a dedicated mobile telephone for the children to use for the purpose of communication with the father. The mother ensures the telephone is kept in credit for that purpose. The children and father are free to use that service whenever they please. T, at least, is prepared to make liberal use of it.[37] Even if C does not resort to it as regularly as T, she is aware of her entitlement to do so.

    [37] Affidavit of Family Consultant 18 August 2010, page 3

13. For reasons already explained, the father is restrained from contacting the mother, other than for the purpose of compliance with the orders, and from being near to her home.

14. The remaining orders ensure the parties keep one another informed about their own contact details and the children’s circumstances, and that they treat each other with respect in the presence or hearing of the children.

15. The children’s best interests are met by the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on Friday, 29 July 2011.

Associate: 

Date:  29 July 2011