RADLEY & RADLEY
[2013] FamCA 346
FAMILY COURT OF AUSTRALIA
| RADLEY & RADLEY | [2013] FamCA 346 |
| FAMILY LAW – CHILDREN – With whom the children spend time – where the children initially spend time with the father under supervision at a contact centre graduating to unsupervised contact on occasional weekends and in school holidays – where the children would benefit from ongoing meaningful relationships with both parents – where the children were previously at risk from harm through exposure to family violence by the father – where the father needed time to achieve full rehabilitation – where the father had an extensive history of perpetrating family violence upon the mother – where the father had voluntarily engaged various medical and psychological services in order to rehabilitate his excessive use of alcohol and behaviour FAMILY LAW – RELOCATION – Where the children live with the mother – where the mother was not restrained from relocating her residence with the children from its current location – where the mother was restrained from relocating their residence to a place outside a three hundred and twenty five (325) kilometre radius from Sydney city post office – where the mother desired to relocate closer to her family and to an area with greater access to education and employment opportunities – where the mother remained fearful of the father FAMILY LAW – CHILDREN – Parental Responsibility – where the mother has sole parental responsibility for the children – where the presumption of equal shared parental responsibility does not apply due to the family violence perpetrated by the father – where the parties were unable to communicate about the children FAMILY LAW – CHILDREN – Family Violence – finding on the balance of probabilities the father perpetrated family violence upon the mother throughout their relationship – where the father was convicted of assaulting the mother on two separate occasions – where injunctions were granted against the father restraining his attendance at the mother’s home and the children’s schools FAMILY LAW - PRACTICE AND PROCEDURE – Evidence of Family Consultant – where the Court rejected the Family Consultant’s recommendation that the children spend no time with the father – where the Court must evaluate and not uncritically adopt the evidence of the Family Consultant – Bostoi & Bostoi [2011] FamCAFC 132 and Whipp & Richards [2012] FamCAFC 11 applied |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA, 65DAA, 65DAC and 65DAE, 68B Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Bostoi & Bostoi [2011] FamCAFC 132 Cales & Cales (2010) FLC 93-459 Goode & Goode (2006) FLC 93-286 Hepburn & Noble (2010) FLC 93-438 Malcolm v Monroe [2011] FLC 93-460 McCall v Clark (2009) 41 Fam LR 483 MRR v GR (2010) 240 CLR 461 Sampson v Hartnett (No.10) (2007) FLC 93-350 Taylor v Barker (2008) 37 Fam LR 461 U v U (2002) 211 CLR 238 Whipp & Richards [2012] FamCAFC 11 |
| APPLICANT: | Mr Radley |
| RESPONDENT: | Ms Radley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 3296 | of | 2011 |
| DATE DELIVERED: | 21 May 2013 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 29, 30 April & 1, 2 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Mr B Kelly |
| SOLICITOR FOR THE RESPONDENT: | Bridge Street Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Gorton |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All former orders relating to the following children (“the children”) are discharged:
(a) J, born … January 2001;
(b) E, born … December 2004; and
(c) Y, born … March 2009.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The mother is restrained from changing the children’s place of residence to a place outside a radius of 325 kilometres from the Sydney city post office.
Until 30 April 2014, subject to the father’s compliance with Orders 14, 15 and 16 hereof, each of the parties shall take all reasonable steps to ensure that the children spend supervised time with the father for two hours on the second Saturday of every alternate calendar month, commencing on the second Saturday in June 2013.
Unless otherwise agreed, for the purpose of implementing Order 5 hereof:
(a)The supervisor of the time spent by the children with the father shall be staff at the B Contact Centre situated at … C Street, Sydney Suburb D or some other contact centre located in Sydney alternatively nominated by that organisation (“the supervisor”);
(b)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;
(c)The time that is to be spent by the children with the father shall commence at the time designated by the supervisor;
(d)The venue at which the time is to be spent by the children with the father shall be designated by the supervisor;
(e)The parties shall pay in equal shares any costs due to the supervisor;
(f)The mother shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children (or any of them) with the father;
(g)If on an occasion that the children (or any of them) are due to spend time with the father that time together cannot be accommodated by the supervisor the time that the children (or any of them) would otherwise have spent with the father shall be made-up at another time as close to the original time as can be arranged;
(h)The mother and father shall comply with all reasonable requests and directions of the supervisor; and
(i)Leave is granted to the mother and father to provide to the supervisor a sealed copy of these orders.
From 30 April 2014 until 31 January 2015, subject to the father’s compliance with Orders 14, 15 and 16 hereof, each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
(a)From 9.00 am until 5.00 pm on the fifth Saturday of each school term; and
(b)For the first three days of each school holidays, commencing at 9.00 am on the first day after the last day of term and concluding at 5.00 pm three days later.
From 1 February 2015 onwards, subject to the father’s compliance with Orders 14, 15 and 16 hereof, each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
(a)On the fifth weekend of each school term, from 9.00 am Saturday until 5.00 pm on Sunday;
(b)For the first week of each school holidays, excluding the Christmas school holidays, commencing at 9.00 am on the first day after the last day of term and concluding at 5.00 pm seven days later; and
(c)For seven days each year commencing at 9.00 am on 27 December and concluding at 5.00 pm seven days later.
For the purposes of implementing orders 7 and 8(a) hereof:
(a)The mother shall nominate to the father in writing, not less then 7 days in advance, the venue at which the children are to be exchanged;
(b)The mother shall cause the delivery of the children to that venue at the commencement of the time the children are to spend with the father; and
(c)The father shall cause the delivery of the children to the same venue at the conclusion of the time spent by the children with him.
For the purposes of implementing Orders 8(b) and 8(c) hereof:
(a)The father shall nominate to the mother in writing, not less then 7 days in advance of the children’s delivery to him, the venue at which the children are to be exchanged (“the first venue);
(b)The mother shall nominate to the father in writing, not less then 7 days in advance of the children’s return to her, the venue at which the children are to be exchanged (‘the second venue”);
(c)The mother shall cause the delivery of the children to the first venue at the commencement of the time the children are to spend with the father; and
(d)The father shall cause the delivery of the children to the second venue at the conclusion of the time spent by the children with him.
Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:
(a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and
(b)By the mother promptly sending to the father:
(i)Written acknowledgement of receipt of the father’s written communication, and
(ii)Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.
For the purposes of implementation of Order 11 hereof:
(a)The mother shall, within 7 days hereof, obtain and thereafter retain a post office box to which the father may send written communication;
(b)The mother shall, within a further 7 days, notify the father in writing of the address of that post office box; and
(c)The father shall thereafter keep the mother informed in writing of the address to which mail directed by her to him may be sent.
From 30 April 2014, unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The father each Wednesday when the children are living with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;
(b)The mother each Wednesday when the children are spending time with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time; and
(c)The parent with whom they are not then staying, on the children’s birthdays, between 6.00 pm and 6.30 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
The father is restrained from consuming alcohol during any period in which the children spend time with him, and also during the period of 24 hours immediately preceding such time.
Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:
(a) The mother’s residence; and
(b) Any school attended by any of the children.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
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.
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 child.
The mother shall authorise and request the principal of any school 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.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.
Leave is granted to the parties to provide copies of the following documents to any counsellor engaged to provide therapy to the parties or any of the children:
(a) A sealed copy of these orders; and
(b) The reasons published for the orders.
Within seven days hereof the mother shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.
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.
Costs are reserved for 28 days.
Any and all outstanding applications for orders pursuant to Part VII of the Family Law Act are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Radley & Radley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3296 of 2011
| Mr Radley |
Applicant
And
| Ms Radley |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The applicant father and respondent mother have three children, the eldest two of whom have been gravely disturbed by conflict between the parties.
The parties’ relationship was characterised by the father’s violent domination of the mother, which behaviour was no doubt compounded by the father’s excessive consumption of alcohol. The mother contended, with support from the Family Consultant, that the children’s relationships with the father should be completely severed in order to promote their best interests and enable her to cope more easily. In order to enhance their fresh start away from the father and to garner the support of her extended family, the mother proposed to relocate herself and the children to the Illawarra district from the New England district of NSW.
The father belatedly recognised the gravamen of the family’s predicament and implemented changes in his life shortly prior to the hearing. Importantly, he began educative counselling and abstained from consumption of alcohol. The mother was doubtful about his commitment to change, but in any event, she asserted he did too little too late to prove his value to the children.
The father acknowledged the children must remain living with the mother, but he proposed she and the children should remain resident in reasonable proximity to him in the New England district and that the children should spend time with him under a gradually expanding program.
These reasons explain why the mother and children should not be restrained from moving their residence away from the New England district and why the children should be able to maintain their relationships with the father, albeit not in the expansive manner envisaged by the father.
The parties’ respective applications for property settlement orders are yet to be separately heard and determined.
Background
The parties were married and began their cohabitation in August 2000. They separated several times during the marriage, but their final separation occurred in August 2011 following the father’s assault of the mother.
The parties have three children who are now aged twelve, eight and four years respectively. They have lived with the mother since the parties’ separation.
The parties lived in south-western Sydney until 2006 when they relocated to the rural New England district. The parties have remained in the New England district since separation and the townships in which they live are situated about 50 kilometres apart, but the mother now wishes to move with the children to the Illawarra district nearer to family and friends.
Following the parties’ separation in August 2011 an apprehended violence order was made against the father for the protection of the mother. Thereafter for several months, the children only spent time intermittently with the father, with arrangements made on an ad hoc basis.
In February 2012 the parties consensually arranged for the children to begin spending time with the father on a reliably regular basis.
It was not until July 2012 that interim orders were first made. Those orders provided for the children to live predominantly with the mother, but for them to live with the father on alternate weekends and during portions of school holiday periods. That regime reflected what had been occurring since February 2012, but fresh arrangements were made for the children to be exchanged between the parties at the Town E Contact Centre.
Another set of interim orders were made in December 2012, which completely revised the existing regime. Orders were then made for the mother to have sole parental responsibility for the children, for the children to live with the mother, and for the children to spend only supervised time with the father for two hours each weekend at the Town E Contact Centre. The mother filed an application seeking interim orders of that ilk upon release of the Family Report in early November 2012, the contents of which were highly disparaging of the father.
The revised interim orders prevailed until the final hearing in April 2013.
Proposal and evidence of the father
The father pressed for the orders set out within his Third Amended Initiating Application filed on 20 February 2013, which essentially provided for:
a)The parties to have equal shared parental responsibility for the children;
b)The children to live with the mother;
c)The children to spend time with him under a gradually expanding regime, which involved continuation of the existing program of supervised time for a short period and culminated with the children spending alternate weekends and school holiday periods with him from 2014 onwards;
d)Frequent telephone communication between the children and both parties;
e)His restraint from consuming alcohol during, and at times proximate to, his care of the children; and
f)His mandatory submission to therapeutic counselling.
The father relied upon his affidavit filed on 22 February 2013 and the affidavit of the paternal grandmother filed on 20 February 2013.
Proposal and evidence of the mother
The mother abandoned the orders set out within her Amended Response filed on 11 December 2012 and instead sought the orders set out in her tendered minute of orders.[1] Her proposal entailed the children living with her at a place away from the New England district and she having sole parental responsibility for them. She proposed the children not spend any time with the father at all.
[1] Exhibit M7
The mother relied upon her affidavit filed on 7 February 2013.
Proposal of the independent children’s lawyer
The Independent Children’s Lawyer did not disclose the orders he proposed until the close of the evidence. He then tendered a minute of orders,[2] which provided for the children to live with the mother and for her to have sole parental responsibility for them. The Independent Children’s Lawyer agreed the mother should not be restrained from relocating away from the New England district, but did propose her restraint from moving beyond the Illawarra district, which is the area to where the mother had deposed wishing to move.
[2] Exhibit ICL3
As for the children’s interaction with the father, the Independent Children’s Lawyer proposed it only occur under supervised conditions at a contact centre near to the mother’s new residence on four occasions each year.
Although the Independent Children’s Lawyer did not adduce evidence from any witness of his own, he relied upon the evidence of the Family Consultant. The Family Report dated 30 October 2012 was read in evidence and the Family Consultant was cross-examined.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
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).
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).
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).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and 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 presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
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 living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
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.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
These proceedings were commenced in December 2011 and so the amendments to the Act, and in particular to the provisions concerning the definition of “family violence” and the considerations relevant to findings about the children’s best interests, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 do not apply (see Schedule 1, items 44 and 45).
Best interests of the children – primary considerations
Section 60CC(2)(a)
There was no argument about the quality of the relationships enjoyed by each child with each parent. The relationships are uniformly close and meaningful.[3]
[3] Family Report, para 133
A meaningful relationship is one which is important, significant and valuable to the child. For the purposes of application of s 60CC(2)(a) of the Act, firstly, those concepts are evaluated qualitatively rather than quantitatively, and secondly, the children’s derivation of benefit is assessed prospectively rather than retrospectively (see McCall v Clark (2009) 41 Fam LR 483 at 507-510).
The father’s acknowledgement that the children will continue to derive benefit from their meaningful relationships with the mother was manifest from his proposal that the children should continue to live primarily with her.
However, the mother did not hold a reciprocal view about the children’s derivation of benefit from their relationships with the father. Rather, she contended the children will actually experience detriment by maintaining their relationships with him. That contention and the reasons for it was the focal point of this litigation.
The principal reason advanced for the severance of the children’s relationships with the father was the risk he posed to the children’s welfare by his exposure of them to family violence, which is a consideration of relevance pursuant to s 60CC(2)(b) of the Act.
The subsidiary reasons offered to justify that outcome all pertained to the father’s parenting capacity and should therefore be considered under s 60CC(3) of the Act. It was asserted the father’s parenting capacity was impaired in various ways, including his willingness to involve the children in the parental conflict, his denigration of the mother to the children, and his probable continuing use of illicit drugs and excessive consumption of alcohol.
Section 60CC(2)(b)
For the purposes of these proceedings, “family violence” is defined to include actual or threatened conduct that causes a member of the family to reasonably fear for or to be reasonably apprehensive about his or her personal wellbeing or safety (s 4(1)). The new definition of “family violence” does not presently apply (s 4AB).
The father’s past commission of family violence upon the mother was uncontroversial. The controversy was over the extent of its occurrence – both as to its frequency and severity.
The parties’ versions of past violent events were irreconcilable. The factual disparity could not be rationally explained by the parties genuinely holding different perceptions of such events. Consequently, in order to make factual findings in relation to the disputed evidence, the reliability of the parties’ evidence needed to be carefully evaluated. The mother proved a superior witness and I accept her evidence in preference to the father’s evidence, at least in respect of the history germane to the issue of family violence.
The mother was demonstrably distressed by her recollection of past events, but still gave measured and exact evidence in response to the questions she was asked. She was emphatic the past violent events occurred as she described in her affidavit and was able to provide additional details when pressed. She gave a clear impression of describing actual memories rather than reciting a rehearsed or embellished story.
The demeanour of the father was less convincing and he was contradicted in some respects by independent contemporaneous records compiled by police and the NSW Probation and Parole Service, which often prompted him to respond by denying any specific memory of the events.
Consequently, I make the following findings of fact.
While the parties associated with one another as teenagers, the father struck the mother and sexually assaulted her.[4] Their adolescent relationship then ended, but resumed some years later when the mother believed the father had reformed his behaviour. She fell pregnant and the parties married.[5]
[4] Mother’s affidavit, paras 74-76; Family Report, para 1
[5] Mother’s affidavit, paras 77-79
The father’s tendency to violent behaviour emerged again on their honeymoon when he threw a bowl at the mother.[6]
[6] Mother’s affidavit, para 81
Even from the outset of their married life the father often became intoxicated and then assaulted or abused the mother.
The father called the mother offensive and disrespectful names like “bitch”, “cunt” and “slut”, sometimes in the presence of the children.[7]
[7] Mother’s affidavit, paras 82, 90, 109, 120; Family Report, para 10
He frequently assaulted her by throttling her and holding her body weight off the ground by the throat. He kicked and hit her, even at times when she was pregnant.[8] He also locked her out of the house away from the children.[9]
[8] Mother’s affidavit, paras 82, 83, 85, 87, 120, 138, 148
[9] Mother’s affidavit, para 104
Shortly after the birth of the eldest child in January 2001 the father pushed the mother off a chair onto the ground and kicked her in the stomach where she was still sutured from the caesarean section.[10]
[10] Mother’s affidavit, para 103
On another occasion in 2001 he pushed her off a swing and kicked her while she lay prone on the ground.[11]
[11] Mother’s affidavit, para 109
In June 2002 the father assaulted the mother in their car. He punched her in the head and bashed her head against the side window whilst the eldest child was in the rear seat. Outside the car the father tried to hit the mother but missed and connected with the child who was being held by the mother. The following day the mother was taken by a family member to the hospital for treatment of her injuries. She had two black eyes and her left eye was swollen shut. The father was charged and convicted for the assault.[12]
[12] Mother’s affidavit, paras 111-115; Family Report, para 7; Exhibit M3
The father’s final assault of the mother occurred in August 2011 and was the catalyst for their final separation. The father pushed the mother to the ground in their yard, held her by the throat and the chest, and said to her “I’m going to bury you bitch”. It took the intervention of the eldest child, who was still then only 10 years of age, for the father to let the mother up. The father confiscated the mother’s car keys and mobile telephone in an attempt to prevent her escape but she still left the home and walked 10 kilometres to the hospital for treatment. The father was again charged and convicted for the assault and an apprehended violence order was simultaneously issued against him for the mother’s protection.[13]
[13] Mother’s affidavit, paras 152-155; Father’s affidavit, paras 43-44;
Regrettably, the mother’s fear of the father was not satisfactorily addressed by the apprehended violence order. The father continued to clandestinely attend the former matrimonial home to remove items of property and he continued to contact her and the children.[14] He was later successfully prosecuted for contraventions of the apprehended violence order.[15] The mother eventually left the former matrimonial home with the children some months later and settled elsewhere because of apprehension about her safety.[16] She presented to the Family Consultant in October 2012 as suffering symptoms of Post Traumatic Disorder as a result of her experiences with the father.[17]
[14] Mother’s affidavit, paras 191, 193-195, 208-210, 213-214, 218
[15] Father’s affidavit, para 59; Family Report, para 27; Exhibit M3
[16] Mother’s affidavit, para 215; Family Report, para 69
[17] Family Report, para 140
At the commencement of his cross-examination the father was asked how he defined “family violence” and he responded by explaining he believed it included “physical, emotional, financial and intimidation (sic)”, by which he presumably meant physical abuse, emotional abuse, financial control and intimidation. It is irrelevant the father misunderstood the legal definition of the phrase which is applicable in these proceedings. Most importantly, he was aware relationships can be impaired or even destroyed by aggressive behaviour which manifests in forms other than outright physical assault.
Notwithstanding his belief in the breadth of the concept of family violence, the father contended the only two episodes of family violence during the parties’ relationship occurred in 2002 and 2011, which were the two incidents that resulted in him being charged and convicted for assault of the mother.
He asserted none of the children could ever have witnessed him be physically violent or emotionally abusive towards the mother, nor to have intimidated the mother. He asserted, both in his affidavit[18] and during cross-examination, the extent of the children’s exposure to the conflict was to witness he and the mother arguing. The father said the mother’s extensive allegations against him of violence, intimidation and degradation were either fabricated or exaggerated.
[18] Father’s affidavit, para 47
The father’s evidence was disingenuous. In all probability, despite his express denial, the father realised his behaviour was far more appalling than he conceded and he minimised his culpability for the purpose of trying to present himself more favourably in these proceedings. The Family Consultant also formed the opinion the father minimised his culpability to both the police and to her.[19]
[19] Family Report, paras 26, 44, 53, 98, 139
The father’s violent conduct was not confined to the mother. He acted similarly even towards strangers. He was banned from attending two hotels in the township in which he lives because of his contrary behaviour, he has been belligerent with police, he has intimidated the children’s school teachers, and he has been hostile and abusive to others with whom he has had business and neighbourhood disputes.[20] Such behaviour could not possibly amount to “family violence” because the victims were not family members, but the evidence serves to demonstrate his propensity to resort to either violence or aggression to solve his problems and assert his authority.
[20] Mother’s affidavit, paras 124-128, 130, 134, 136; Exhibit M4
When she conferred with the family in October 2012, the Family Consultant was convinced about the psychological harm already suffered by the children as a consequence of their exposure to the family violence committed by the father. She described the two eldest children as presenting consistently with having experienced “significant trauma, most likely as a result of experiencing the effects of significant family violence”.[21] The Family Consultant believed the father’s past conduct amounted to “controlling coercive behaviour” and opined the father presented a “serious, high level risk” of harm to both the mother and children.[22] I accept the validity of that opinion at the time it was expressed.
[21] Family Report, page 4, paras 119, 141
[22] Family Report, paras 53, 135-138
The father’s past conduct, particularly towards the mother, was certainly shameful. I accept the Family Consultant’s evidence that the mother and two eldest children suffered terribly because of it. However, the Court must look forwards, not just backwards. The Act requires the Court’s consideration of the future need to protect the children from physical and psychological harm through their exposure to family violence.
The Family Consultant logically observed that the prospects of reformation by a perpetrator of family violence are influenced by that person’s willingness to accept responsibility for past behaviour and express genuine remorse for it.[23] The father’s minimisation of his violent past manifests little in the way of either acceptance of responsibility or contrition, but they are not the only considerations. The father adduced evidence of significant lifestyle changes since the Family Report was published which bear upon the virulence of the risk he poses of exposing the children to family violence in the future. Those lifestyle changes are analysed under s 60CC(3) of the Act. Presently, it is sufficient to recognise that the risk of the children suffering further psychological harm through exposure to more family violence is an important and influential consideration in the outcome of these proceedings.
Best interests of the children – additional considerations
[23] Family Report, para 139
60CC(3)(a)
The eldest child was the only child to express a view about parenting arrangements. The second child was unco-operative with the Family Consultant and the youngest child expressed no view.
The eldest child told the Family Consultant in October 2012 that he wanted to live with the father when he attained 12 years of age and did not want to relocate to the Illawarra district.[24] However, the mother reported the child had since changed his attitude. She said he recently expressed contentment about a move to Sydney, which she perceived to be an expression of his willingness to move to the Illawarra district.
[24] Family Report, paras 108, 110
The eldest child found himself at the epicentre of the parental conflict and his expressed views are probably tainted by that experience. I accept the Family Consultant’s opinion that little weight should be reposed in the eldest child’s “affinity or preference” for the father.[25]
[25] Family Report, para 145
Likewise, I attribute little weight to the views he has more recently expressed to the mother, albeit for different reasons. The child has been reprieved from the father’s pressure for some months due to the time he spends with the father being supervised at a contact centre. He is likely conscious of the preference he previously expressed to live with the father and may now be attempting to restore his relationship with the mother by making statements he perceives are sympathetic to her cause. The eldest child moved with the parties to the country when he was only five years of age. He would have no recollection of life in Sydney before that, so a recent expression of a desire to live in Sydney could not be born of his own experience and probably reflects what he knows to be the mother’s preference.
Section 60CC(3)(b)
There was no debate about the quality of the children’s relationships with the parties and members of the extended maternal and paternal families.
Sections 60CC(3)(c), (4)
The capacity and willingness of both parties to facilitate and encourage close and continuing relationships between the children and the other parent were impaired, albeit for different reasons.
The father’s persistent denigration of, and alignment of the children against, the mother in the past betrayed his difficulty in appreciating the importance of the children’s relationships with the mother. The abatement of that behaviour in recent months and his proposal for the children to remain living primarily with the mother demonstrate his acquisition of some insight into the need for the children’s relationships with the mother to be promoted.
The mother has lost all faith in the father. Her emotional detachment from the father was clear in several tangible ways. She could not bear to engage his gaze when giving evidence, part of her motivation to relocate is to get herself and the children away from him, she wants to keep her new residential address secret from him, and she wants the children to have no personal contact or communication with him. Her capacity and willingness to facilitate the children’s relationships with the father are all but destroyed. Of course, her adverse experiences with the father are apt to justify her attitude, but she cannot remain wilfully blind to the efforts the father has made to reform. Her interests are important, but the children’s interests are paramount.
Section 60CC(3)(d)
The children have been forced to adapt to profound changes in the past two years.
Following separation in August 2011 they only saw the father infrequently for nearly six months.
Between February and December 2012 the children spent alternate weekends and parts of each school holidays with the father.
Since December 2012 the children have only spent two hours per week with the father under supervised conditions at a contact centre.
Now, the mother proposes that they be relocated to another part of the State and be deprived of all interaction with the father and members of the paternal family. Self-evidently, such a move would also entail fracture of their friendships and enrolment at new schools and in new sporting groups.
Evidence was sparse about how the children would likely be affected by the fresh changes proposed by the mother. Undoubtedly they would experience a wrench in the short term but their adaptation in the mid to longer term is difficult to predict. The Family Consultant was nonetheless supportive of the mother’s proposals.[26]
[26] Family Report, para 143
Section 60CC(3)(e)
The mother envisages no practical difficulty or expense in the implementation of the orders because she proposes obliteration of the children’s relationships with the father.
However, if the mother and children relocate their residence to the Illawarra district and orders are made for the children to retain some form of personal interaction with the father, who remains resident in the New England district, then there will certainly be both practical difficulty and expense in arranging it.
The father was adamant in cross-examination he would remain resident in the New England district, even if the children moved to the Illawarra district, thereby disavowing any contrary belief held by the children.[27]
[27] Family Report, paras 79, 110
The driving time between the New England and Illawarra regions, on the father’s estimate, was at least seven hours. He said he would not undertake that journey on a regular basis to spend only restricted supervised time with the children. He said it was impractical and he could not afford it. He was not asked if he would undertake that journey in order to enjoy less frequent but more expansive unsupervised time with the children. Any more than infrequent travel between the Illawarra and New England regions would be burdensome and expensive, particularly if it entailed the cost of overnight accommodation. However, it seems the paternal grandmother retains a property on the south western fringe of Sydney which is available to the father and his sister to use for their accommodation.[28]
[28] Father’s affidavit, para 137
If the children remain living with the mother in the New England district there would, of course, be no practical difficulty or expense involved in them spending time and communicating with the father.
Section 60CC(3)(f)
There was no dispute in these proceedings about the capacity of both parties to provide adequately for the physical and intellectual needs of the children.
Nor was there any contest about the mother’s capacity to provide for the children’s emotional needs. The real controversy was about the father’s ability to provide for the children’s emotional needs.
The father surely failed to insulate the children from the conflict he engendered with the mother. In fact, he actively involved them in that conflict.
In the months following separation the father sent text messages to the eldest child saying:[29]
Your mother needs to get over herself, not everything is about her. I will find a woman who treats you better than your own mother.
I will find a woman that is not so cranky that will treat you better than your own mother. Don’t be upset you won’t have to be with her forever.
[29] Mother’s affidavit, paras 176, 184
The father said in a telephone conversation with the eldest child about the mother:[30]
That bitch. She is trying to upset you, just ignore her mate and she will stop if you don’t let it bother you.
[30] Mother’s affidavit, para 205
The father had no compunction about referring to the mother as a “bitch” directly to the eldest child, which distressed, confused and upset the child.[31]
[31] Mother’s affidavit, para 211
The eldest child told the mother:[32]
[The father] told me that he only drank to get away from you because he didn’t like you and that he only married you because you were pregnant with me.
[32] Mother’s affidavit, para 241
I accept as correct the Family Consultant’s opinion that such messages and comments were highly inappropriate and appear to be attempts to align the children or involve them in the parental conflict.[33] It is difficult to imagine the messages could have served any other purpose. The Family Consultant’s opinion was corroborated by the children’s school principal, who commented how the father tended to expose the children to his opinions about the family conflict at the school and how the children were unsettled at school after having spent weekends with the father.[34]
[33] Family Report, para 34
[34] Family Report, paras 99, 102, 103
The father asked the eldest child to act as his agent and secretly obtain items for him from the former matrimonial home, which deception caused the child such anxiety he felt physically ill.[35]
[35] Mother’s affidavit, para 187
The father also openly informed the eldest child he had taken the mother’s wedding and engagement rings from the former matrimonial home.[36] The child would have had no interest in such matters, but must certainly have inferred his parents’ relationship was irretrievably broken down. The father probably also wanted the child to report back to the mother that he had symbolically taken possession of her wedding jewellery.
[36] Mother’s affidavit, para 217
The father convinced the eldest child he had seen the mother and her boyfriend engaging in sexual intercourse when in fact the child had only walked into their room while they were asleep.[37]
[37] Mother’s affidavit, paras 198-202
The pressure on the eldest child from his involvement in the conflict became unbearably heavy. He expressed an intention to kill himself and armed himself with a knife and a pen as if to do so. When the items were confiscated by the mother the child wistfully told her “I just want the pain to stop”.[38] On another occasion he said “I just want to die. I’m not coming home. I hope I get murdered”.[39]
[38] Mother’s affidavit, para 229
[39] Mother’s affidavit, para 260
The pressure upon the second child was just as intense. He, just like the eldest child, tended to be physically violent by fighting, striking inanimate objects, and damaging or destroying possessions.[40] He also ran away from the mother’s home and refused to participate with his counsellor and with the Family Consultant.[41]
[40] Family Report, paras 62, 64
[41] Family Report, page 4, paras 37-38, 116-118
The unrelenting pressure tended to cause the two eldest children to align themselves with the father and reject the mother. Despite his young age, the eldest child repeatedly made disrespectful and profane statements to the mother such as:[42]
Fuck you
I’m not staying at this shithole
Nobody likes you. They all say you’re a bitch
You’re an a hole (sic)
Go fuck yourself you cunt
[42] Mother’s affidavit, paras 246, 247, 255, 265; Family Report, paras 63, 65
By the time the children conferred with the Family Consultant in October 2012, more than a year had elapsed after the parties’ separation, during which time the children had remained in the primary care of the mother. Notwithstanding their residence with the mother, the eldest child was highly critical of her and advocated for the father’s cause.[43] As already noted, the second child was unco-operative. The youngest child seemed blissfully ignorant.[44]
[43] Family Report, paras 105, 108, 110
[44] Family Report, para 128
I accept as valid the Family Consultant’s concerns about the “loyalty demands” placed by the father upon at least the eldest child which had “distorted” his perception of his filial relationships.[45]
[45] Family Report, para 114
While the above summary accurately represents the emotional turmoil created in the family by October 2012, when the Family Report was prepared, there is now reason to conjecture about improvement in the father’s level of insight and his capacity to meet the children’s emotional needs.
Section 60CC(3)(g)
The father’s lifestyle of illicit drug use and excessive alcohol consumption was said to be a factor that contributed to the abysmal manner in which he treated the mother and children both before and after separation. The evidence unquestionably proves that contention.
The issue of illicit drug use, while a significant part of the family history, is not an issue of current importance.
The father admitted his use of amphetamines up to 2002,[46] when he assaulted the mother and could not remember the event, but his denial of use of amphetamines since that time is probably true.[47] Despite the suspicions of the Family Consultant,[48] he was corroborated rather than contradicted.
[46] Family Report, para 7
[47] Father’s affidavit, paras 23-24
[48] Family Report, pages 3-4
The father previously told the NSW Probation and Parole Service in October 2011 he ceased use of amphetamines when he was aged 24 years.[49] He also deposed to his participation in random drug screens for his employment, which were all negative.[50] He was willing to submit to random drug testing in these proceedings,[51] which he did when asked. The test was inconclusive, but probably negative.[52] The urine sample was diluted, but the father explained he needed to consume water in order to fill his bladder so he could provide the necessary urine sample on demand.
[49] Exhibit M5
[50] Father’s affidavit, paras 25, 98-99; Family Report, para 92; Exhibits F3, F4
[51] Father’s affidavit, paras 26, 100-101
[52] Father’s affidavit, paras 102-103; Exhibit F2
The mother purported in cross-examination to be completely unaware of the father’s past use of amphetamines, despite deposing otherwise in her affidavit.[53] The mother’s asserted ignorance tends to verify the father’s assertion that his use of that drug ceased many years ago. The mother would likely have known of it if it was problematic over a protracted period.
[53] Mother’s affidavit, para 117
The father also denied his use of cannabis after 2002.[54] Although the mother said in cross-examination she had seen the father use cannabis up until 2006, when they moved from Sydney to the New England district, in her affidavit she only deposed to seeing him smoke cannabis on one occasion in 2001.[55] The negative drug tests adduced in evidence by the father also demonstrate he has not used cannabis for at least some years.
[54] Father’s affidavit, para 24
[55] Mother’s affidavit, para 106
The mother deposed to the father growing cannabis for the purpose of its sale for financial gain in 2010.[56] I reject the father’s false denials of the cultivation. While such criminal conduct was liable to compromise his suitability as a role model to the children, it does not prove he then ingested cannabis to intoxicate himself, thereby impairing his ability to care for the children or disposing him to abuse them or the mother.
[56] Mother’s affidavit, paras 139-144
The problem which really blighted the father’s life was his excessive consumption of alcohol.[57] The father’s admission in cross-examination that he “used to drink a lot” was not an understatement. While the father has taken recent steps to address the problem, the prospect of his relapse remains an issue of concern.
[57] Family Report, pages 3-4, para 26; Mother’s affidavit, para 88, 131-134; Exhibit M5
Sections 60CC(3)(h), (6)
The children indisputably have Aboriginal heritage through the maternal family.[58] The father was criticised for demeaning that heritage,[59] which he denied, but it is unnecessary to unravel that factual conflict. If the father behaved as was alleged, he obviously should not have, but the issue was moot because the mother has taken steps to inculcate the children with knowledge of their cultural heritage notwithstanding.[60] Given that, even on the father’s case, the mother will retain at least equal shared parental responsibility for the children there is no reason to suspect she will not continue to allow the children to experience and enjoy their cultural heritage.
[58] Mother’s affidavit, paras 305-310, 320; Family Report, paras 18, 73, 97
[59] Family Report, paras 19-20, 74
[60] Mother’s affidavit, paras 313-314; Family Report, para 73
Sections 60CC(3)(i), (4)
The only reason the mother proposed severance of the children’s relationships with the father was her concern the father would consume alcohol and then expose the children to his “aggressive and violent behaviour”.[61]
[61] Mother’s affidavit, paras 69-70, 283
The father experienced a profound attitudinal change some months ago, which was no doubt stimulated by the coalescence of several events. Firstly, the Family Report was released in early November 2012, the contents of which laid bare the very real prospect of his relationships with the children being severed. Secondly, the issues debated at Court some days later on 9 November 2012 served to emphasise that prospect. Thirdly, the interim orders made by the Court on 20 December 2012 radically curtailed the nature of his interaction with the children.
The father must have realised his predicament was dire. He said as much during cross-examination, making statements like:
I have become a different person since 9 November. I realised every bad thing in my life revolved around alcohol and I decided to make a stand.
I came out of here [Court] distraught thinking I was going to lose my children and had a good hard look at myself…I had to go get help. That’s the first time it really hit home.
I now realise alcohol caused problems throughout my whole life.
I am getting the tools to work through alcohol, anger, how I treat other people, how to parent (sic).
I did put my work and my problem before my children.
My focus should have been on getting help.
The father attempted to cease, or at least moderate, his alcohol consumption on three prior occasions. Those attempts occurred in 2002, 2006 and late 2011, but each attempt failed. He said he had been “too proud to get help in the past” whereas now he realised he could not reform without professional assistance.
His expressions of regret and commitment to change seemed much more genuine than mere platitudes he perceived the mother and the Court would want to hear. However, a note of caution is warranted. When the father conferred with his probation officer on 6 December 2012 the probation officer noted the father “does not really believe he needs these interventions, but wanting to demonstrate that he is doing something (sic)”.[62] Such a confession is troubling, but on balance I am not convinced it undermines the remainder of the evidence which was uniformly positive.
[62] Exhibit M6
Importantly, the father’s commitment to change is demonstrated by his conduct, not just his words.
Save for his consumption of a small amount of beer in the company of the paternal grandfather in about February 2013, the father has been abstinent from alcohol since he made the decision to be so on 9 November 2012, following his appearance at Court that day. Even though the father had not become intoxicated on that occasion, he was so troubled by the relapse he raised it with his counsellor at their session on 5 April 2013.[63] I accept the father’s evidence that his counsellor mistakenly noted the incident as consumption of alcohol with the paternal grandmother instead of the paternal grandfather. That single minor slip, which occurred mid way through a period which now approximates six months of concerted effort, only serves to prove the reality of the father’s struggle and his determination to succeed. I reject any express or implied suggestion that it connotes failure, or worse still, no struggle at all.
[63] Exhibit ICL2
The father consulted his medical general practitioner several times about his need to rehabilitate and was prescribed medication designed to “help with alcohol abstinence”, which suppressant medication he continues to use. A liver function test performed on the father in early February 2013 disclosed “no evidence of alcohol use”.[64]
[64] Father’s affidavit, para 104(f), Annexure A
The father supplements the physiological strategy with a psychological one. He attends Alcoholics Anonymous meetings on a weekly basis.[65] He also attends specific drug and alcohol counselling.[66]
[65] Father’s affidavit, paras 75, 104(e)
[66] Father’s affidavit, para 104
During cross-examination the father said he was prepared to abide by an injunction that would permanently restrain his use of alcohol, which would be a more extensive embargo than the one he proposed himself.[67] He said he had given up drinking and had no intention to resume.
[67] Third Amended Application, Order 20
The father’s rehabilitation is not restricted to the issue of alcohol consumption, but is more broadly attitudinal. He voluntarily sought out counselling and other educational courses.
The father consulted a psychologist and has already undertaken several sessions with her over the last few months. The psychologist’s comments about his progress are encouraging.[68]
[68] Father’s affidavit, paras 73-74; Exhibit F1
The father also undertook and completed the following educational and parenting courses with recognised institutions:[69]
“Building Connections”
“Being Men”
“Hey Dad”
“Anger Management”
[69] Father’s affidavit, para 48; Exhibits F5, F6, F7
When alerted to those developments during her cross-examination, the Family Consultant said “the initial steps are encouraging but I stick to my original position”. However, in my view, the Family Consultant’s “original position” is liable to disapproval on two fronts. Firstly, it was expressed prior to any of the father’s rehabilitative efforts being made and the description of his subsequent reform as only “encouraging initial steps” unreasonably devalues the extent of his effort over the last six months. Secondly, the Family Consultant’s “original position” was not so unequivocally expressed. In the Family Report the Family Consultant said:[70]
This may be a case where no time with the father is the only way to protect the children…
It will be necessary to weigh up the long term risks…
It is therefore suggested that the Court give consideration to making an order for the children to spend no time with the father.
It is recommended that the children spend no time with the father…
[emphasis added]
[70] Family Report, paras 144, 147, page 44
The Family Consultant subsequently said of the father “he is talking the talk, not walking the walk”. I do not agree with the Family Consultant’s assessment. Every long walk begins with a first step and I am satisfied the father has already taken a good many steps at a brisk pace.
What else could the father have conceivably done to prove his commitment to rehabilitation? The ideas were few.
The Family Consultant said it was her “preference” for the father to complete a residential alcohol rehabilitation program instead of the non-residential programs he already attends. The only reason she gave for holding that view was she believed a residential program convenor would retain records of the father’s progress, which presumably meant she envisaged the records could later be procured by subpoena (either in these proceedings, if only interim orders were made, which neither she nor the parties suggested should occur, or in later proceedings) to verify the father’s progress. I do not find that reason persuasive. It was conceded on behalf of the mother that the father’s sobriety and abstinence could be verified by random liver function and blood tests at any time. His completion of non-residential rehabilitation programs therefore does not preclude verification of his success or failure, even if those programs do not retain records.
The Family Consultant also said in cross-examination she expected the father to participate “in a men’s group for violence”, but there was no evidence about the advantages of the father’s participation in such a group over his participation in the courses he has already completed.
The mother submitted the father should have adduced detailed evidence from his psychologist about his therapeutic progress, rather than simply rely upon the superficial comments set out in the psychologist’s letter tendered as an exhibit.[71] That would have been better, but one cannot lose sight of the fact the father was not legally represented in the latter stages of the proceedings and may not have appreciated the evidentiary distinction. The mother and her legal representatives knew from reading the father’s affidavit some time before trial that he deposed to his continuing therapy with a psychologist as part of his rehabilitative process. Even when armed with that knowledge the mother did not re-list the matter to seek the appointment of a single expert witness to assess the father, nor to seek permission for the issue of subpoenae to the father’s psychologist and general practitioner requiring production of their files about the father.
[71] Exhibit F1
When closely scrutinised, the opinions of the Family Consultant and the submissions of the mother essentially distil to the single proposition that the father has not yet proven himself. They believe more time needs to pass without adverse incident. The Independent Children’s Lawyer explained it as a need for the “recuperative process” to take hold.
Of course, there are two sides to that paradigm – time for the children to recover their emotional stability and, just as importantly, time for the father to consolidate his alcohol abstinence and acquire some insight into the trouble his past behaviour caused. The mother’s evidence proves that the children are already well on the way to recovery of their emotional stability[72] and the father’s evidence proves his rehabilitation is reliably underway.
[72] Mother’s affidavit, paras 49-59
Section 60CC(3)(j)
The past occurrence of family violence has been satisfactorily addressed under s 60CC(2)(b) of the Act.
The orders do not expose the mother or the children to an unacceptable risk of family violence (s 60CG(1)(b)).
Section 60CC(3)(k)
The apprehended violence order formerly made for the protection of the mother from the father expired on 30 April 2013.[73]
[73] Mother’s affidavit, paras 24, 170, Annexure B
Section 60CC(3)(l)
It is undoubtedly preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. It was not suggested otherwise.
The mother and Family Consultant both contemplated the prospect of further litigation, if the father satisfactorily proved his long-term rehabilitation, in which the nature of the children’s future interaction with the father would be determined. Neither suggested the annihilation of the children’s relationships with the father should be permanent.
In view of the finding about the father’s rehabilitative progress thus far and the reasonable grounds for prediction about his ultimate reformation, making the orders sought by the mother and recommended by the Family Consultant would simply guarantee more litigation. That would not serve the interests of the parties, or more importantly, the children. The preferable course is to make orders that steadily restore the children’s relationships with the father in light of the conclusions reached about their respective progress.
Section 60CC(3)(m)
No other facts or circumstances were addressed by the parties or the Independent Children’s Lawyer as relevant to the outcome of the proceedings.
Conclusions and orders
Parental responsibility
The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to conclude the father engaged in family violence (s 61DA(2)(b)).
It is still possible to allocate equal shared parental responsibility for the children to the parties, but that outcome would depend upon the evidence illustrating such an order would serve the children’s best interests. The evidence, however, illustrates the exact opposite.
One issue upon which the parties do agree is their inability to communicate. They have not spoken since the day of their separation. They used a communication book for some time, but that was regarded as a failure.[74] They also communicated via their solicitors, but that was equally unsatisfying.[75]
[74] Family Report, para 70
[75] Family Report, para 84
The father admitted in cross-examination that effective communication was integral to their exercise of equal shared parental responsibility, but he was bereft of ideas about how the lines of communication between them could be improved. The best he could suggest was that they correspond by email.
I accept the mother remains apprehensive of the father because of her past adverse experiences with him. Moreover, she heard the father give evidence and minimise the extent of the violence he inflicted upon her, so her distrust of him would only have been accentuated. The mother probably does not have the capacity to civilly consult with the father and negotiate significant decisions in the children’s lives, which the law would require of her if equal shared parental responsibility was allocated (s 65DAC).
One of the parties must logically have sole parental responsibility for the children and since it was agreed the children should continue living primarily with the mother, she should be the recipient of sole parental responsibility.
Residence with the mother
Because equal shared parental responsibility is not allocated, the Court is not obliged to consider the residential options of the children living with the parties for “equal time”, or alternatively, living primarily with the mother and spending “substantial and significant time” with the father (s 65DAA).
The extent of the children’s future interaction with the father was the subject of widely disparate views. The father proposed orders under which, by 2014, the children would be spending substantial and significant time with him. On the other hand, the mother proposed injunctive orders precluding their interaction with him, which proposal enjoyed the support of the Family Consultant. The Independent Children’s Lawyer proposed another approach which was much more closely aligned with the mother’s proposal.
The mother’s desire to relocate with the children a substantial distance away from the father is integral to the decision about the nature of the children’s future interaction with the father. The proposed relocation of children to a geographically distant place should be considered as just one of the proposals for the children’s future living arrangements rather than as a discrete issue (see Taylor v Barker (2008) 37 Fam LR 461 at 475).
Ordinarily, the relocation proposal must be evaluated not only in the context of findings about what is in the children’s best interests, but also in the context of s 65DAA of the Act, which mandates consideration of the children spending equal, or alternatively substantial and significant, time with the other parent in the event of allocation of equal shared parental responsibility. However, because sole parental responsibility is allocated to the mother there is no obligation to approach the task by giving separate and real consideration to the options of “equal time” and “substantial and significant time” without regard to the relocation proposal, as would be required if equal shared parental responsibility was allocated (see Taylor v Barker at 480).
The mother bears no onus of proving the existence of compelling reasons for the relocation (see U v U (2002) 211 CLR 238 at 261). Nor does the father bear any onus of proving the existence of compelling reasons for his desire for both he and the children to remain resident in their current locale, albeit in different households (see Malcolm v Monroe (2011) FLC 93-460 at [83]). However, the reasons for maintenance and relocation of the parties’ places of residence should be explored at hearing because those reasons will inform the inquiry about whether the proposed relocation is a proper exercise of parental responsibility (see U v U at 285; Malcolm v Monroe at [81], [83]).
The mother advances valid reasons for her desire to relocate with the children to the Illawarra district or an area proximate to southern Sydney. She will be closer to members of the maternal family, friends, tertiary education facilities, and work opportunities.[76] The availability of family support, including such things as reliable quality child care, financial assistance, and emotional support for a parent and children, can be very important considerations in parenting cases involving relocation, and are matters to be balanced and weighed when considering competing proposals (see McCall v Clark (2009) FLC 93-405 at [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]).
[76] Mother’s affidavit, paras 28-34, 280-282; Family Report, para 78
The mother also frankly conceded that her desire to be further away from the father was a motivating factor. It was not unreasonable for her to have such a motivation in view of her past experiences with him. Of course, the mother’s interests, just like the father’s interests, are relevant, but it is the children’s interests which are most persuasive (see McCall v Clark at [88]). The Family Consultant said the children would indirectly benefit from the mother being more relaxed after their relocation because she would then be more able to cater to their emotional needs, but that evidence carries marginal weight. Despite the difficulties she has faced, the mother has done an excellent job parenting the children. There seems little room for improvement in her parenting capacity.
The father’s reasons for retention of the children’s residence in the New England area included avoidance of the need for their separation from their friends, their schools, and their counsellors. Those features merit consideration, but they are not particularly influential because they are common occurrences whenever any child’s residence is changed. The children will likely endure those disruptions without undue difficulty. The benefits of living near to the maternal family would likely soon subsume that disruption.
The most important consideration from the father’s perspective is the likely curtailment of the children’s relationships with him if they move so far away. However, nor is that a feature of significant weight in the circumstances of this case because of the need, for some time yet, to curtail their interaction with him in order to consolidate their emotional recovery and the father’s rehabilitation.
The Court should only cautiously make injunctive orders concerning the location of a child’s residence (see Cales & Cales (2010) FLC 93-459 at [74]-[91]). That is because parents enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for children (see AMS v AIF (1999) 199 CLR 160 at 196, 206, 207-208, 210). Parents have as much residential freedom as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350).
On balance, the children’s best interests, which are paramount, will not be promoted by restraining the mother from relocating their residence away from the New England region. They are likely to be as content living away from the New England district as they are living within it. Moreover, the evidence discloses the mother’s satisfaction with the relocation would be greater than the father’s disappointment by it.
However, an injunction is imposed to restrain the mother from capriciously relocating the children’s residence to an absurdly distant place. She must relocate the children’s residence within a radius of 325 kilometres of the Sydney city post office, which radial distance will enable her to remain in the New England region or to move to the Illawarra district or to an area in Sydney, as is her expressed preference.
Interaction with the father
The mother adduced evidence about the improvement in the children’s demeanour since supervision of their visits with the father was introduced in December 2012. The mother said:[77]
I have noticed an improvement in all of the children’s behaviour toward me and to each other.
[The two eldest children] appear to be less stressed.
All of the children but particularly, [the eldest two children] have become a lot more relaxed, less stressed and there has not been one incident of explosive behaviour by either [of the eldest two children] since 20 December 2012.
I have noticed a big difference in their behaviour.
I have noticed a remarkable change in their attitudes…
[77] Mother’s affidavit, paras 49, 52, 56, 57, 59
The mother described the extent of improvement in the children’s “wellbeing and health” as “vast”.[78]
[78] Mother’s affidavit, para 68
The only reasonable inference to draw from such evidence was that the imposition of supervision was a successful ploy because it achieved the desirable objectives of allowing the children to retain their meaningful relationships with the father, their protection from psychological harm caused through exposure to family violence, and alleviation of the emotional pressure upon them. The strategy proved that such outcomes are compatible rather than mutually exclusive.
The Family Consultant was asked why it was therefore necessary to alter the proven regime of supervised visits. Her initial answer was only that the children “needed a complete break”, but her reasons for holding that opinion were not explained or elaborated in any meaningful way and so the validity of such a bald proposition could not be fairly evaluated or tested. The Family Consultant conceded she had considered, but rejected, as an option the children spending time with the father only a few times each year for “identity” purposes because she perceived the children would “benefit from a complete break”. Despite the veracity of the mother’s evidence about the children’s improvement, the Family Consultant said she did not think “everything is going fantastically”, but again she was not asked and did not explain why she held a view in apparent contradiction to the evidence. The Family Consultant also opined how continuation of supervised visits would still “subject the children to loyalty demands” by the father, particularly if the supervision was provided by the paternal grandmother.
I do not accept those aspects of the Family Consultant’s evidence for several reasons. Firstly, the paternal grandmother will not be used as a supervisor for reasons yet to be explained, so her involvement in the Family Consultant’s reasoning is irrelevant. More importantly, there is no evidence the children have been exposed to “loyalty demands” by the father since supervision was imposed in December 2012. Supervision by independent persons precludes that possibility, which is precisely why the children have flourished so noticeably in such a short period of months. It was clear the Family Consultant could not abandon her fears about how the father may influence the children through the nature of his conversation with them, but their rapid improvement demonstrates how that problem has been successfully averted by the imposition of supervision.
The Family Consultant acknowledged the children would experience “grief and loss” through severance of their relationships with the father, but considered the mid to long term benefit of their emotional stability outweighed the short term disadvantage when their needs were balanced. I remain unconvinced and am not ultimately satisfied the children’s best interests require the obliteration of their relationships with the father, as the mother submitted and the Family Consultant recommended.
Rejection of some parts of the Family Consultant’s evidence should not be regarded as heretical. The Court is not bound to accept or reject the whole or any part of the evidence of a Family Consultant (see U v U (2002) 211 CLR 238 at 261). The Court would fall into error by simply adopting, without critical appraisal, the opinions of a Family Consultant as if they were an oracular pronouncement (see Whipp & Richards [2012] FamCAFC 11 at [101]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]-[44]). The Court, not the Family Consultant, is vested by the Act with exclusive jurisdiction to determine proper parenting orders.
The mother’s counsel conceded it would be a “draconian” step to sever the children’s relationships with the father. I reject the submission that the evidence warrants such a draconian step being taken.
It is instructive to observe that the mother’s attitude was driven by her reliance upon the Family Consultant’s opinions. Up until the release of the Family Report, the mother’s proposal was for the children to spend unsupervised time with the father as frequently as could be conveniently arranged, whether she lived in the Illawarra or New England regions. Her mind was changed by the contents of the Family Report and she therefore altered her final and interim proposals in December 2012 to seek severance of the children’s relationships with the father. Although the mother feels the Family Report conceptualised the problems she had perceived but was unable to express herself, the fact remains her current proposal relies tenaciously upon all of the Family Consultant’s evidence. Given the rejection of important components of the Family Consultant’s evidence, it no longer makes sense for the mother to adhere blindly to it.
The preceding conclusions should not induce any expectation that the children and the father are ready to embark upon a program of frequent unsupervised visits of protracted duration, let alone a program which would meet the definition of “substantial and significant time” (s 65DAA(3)). There is indeed still some way to go. The maintenance of supervised visits between the children and the father for some time yet is needed to consolidate the gains.
The father deposed he was prepared to continue his attendance at a contact centre to see the children for as long as the Court orders,[79] though presumably he was referring to the contact centre currently being used in Town E. The mother wants freedom of choice about the location of her new residence and contemplates Sydney as an alternative to the Illawarra region. Since the orders enable her freedom of choice, the appropriate venue for future supervised visits between the children and the father is in Sydney, which is situated between the New England and Illawarra regions. It would be absurd to prescribe use of a contact centre in the Illawarra region if the mother and children live in Sydney. If they live in the Illawarra region then their travel to Sydney will not be unduly troublesome.
[79] Father’s affidavit, para 88
I am convinced the preferable form of supervision is that provided at a commercial contact centre, just as presently occurs in Town E. The father considered the paternal grandmother to be a viable supervisor because her residence is in reasonably close proximity to his,[80] she is not currently employed, and she is prepared to do anything she can to ensure the children can maintain meaningful relationships with him.[81] However, the paternal grandmother is not a suitable supervisor, but not because she suffers with Bipolar Disorder.[82]
[80] Father’s affidavit, para 68; Paternal grandmother’s affidavit, para 4
[81] Paternal grandmother’s affidavit, paras 85-86, 126
[82] Family Report, paras 22-23; Father’s affidavit, para 125; (footnote continued next page)
The paternal grandmother deposed to her knowledge of the father previously assaulting the mother and professed to awareness of how domestic violence affects female victims,[83] but notwithstanding that knowledge and awareness she boldly and foolishly said in cross-examination she did not accept the truth and accuracy of the mother’s account of the father’s domestic violence. It is well accepted that aligned family members are generally not ideal supervisors (see Marriage of B & B (1993) FLC 92-357 at 79,780 – 79,781).
[83] Paternal grandmother’s affidavit, paras 44, 123-124, 135
The paternal grandmother also conceded she was unable to protect the father, when he was a child, from violent abuse by her own partner. That man assaulted the father when he was only 10 years of age, resulting in him sustaining a broken nose. The paternal grandmother disbelieved the father’s complaint to her of his assault, preferring to support her former partner against her own child, even though she admitted suspicion of her former partner’s guilt for years afterwards.
In such circumstances, the mother has good reason to have little confidence in the paternal grandmother. It is difficult to conceive her acting protectively of the children if the father did expose them to family violence or abuse. She may not even recognise the father’s behaviour towards them as being abusive when it is, or alternatively, she may disbelieve their reports of his abusive behaviour.
The period of the supervision will endure for approximately another year, during which the children will experience six visits, provided the contact centre’s intake procedures are implemented in sufficient time for the first intended visit to occur in early June 2013. By the time supervision is discarded the children will likely have recovered their sense of emotional security, the father will likely have consolidated his rehabilitation, and the interaction between them can probably return to an orthodox unsupervised regime without compromising the children’s emotional recovery.
Once supervision is discarded the children will not have spent any more than short periods of supervised time with the father for some 16 months. Therefore, the children will initially spend one day in the middle of each school term and three consecutive days in each school holiday period with the father. That regime will apply until the commencement of the 2015 academic year, affording the children some nine months to acclimatise. Thereafter, the time the children spend with the father will be expanded to one weekend in the middle of each school term and seven consecutive days in each school holiday period. The holiday with the father over the Christmas period will be proximate to Christmas Day, commencing early on 27 December so as to enable the father’s travel on Boxing Day.
Since it is presently unknown precisely where the mother will relocate with the children it is impossible to prescribe the venue at which the children will be exchanged between the parties, once the contact centre is no longer used. The orders therefore require the parties to provide one another with adequate notice of the venues they nominate. The orders are structured in such a way that the father is effectively obliged to remain with the children in the area local to the children’s residence, other than when they spend a full week with him in school holiday periods from 2015 onwards. In those instances, the father can travel further afield with the children and the parties will bear an equal travel burden.
The time spent by the children with the father, both supervised and unsupervised, is conditional upon the father’s observance of injunctions which restrain him from consuming alcohol, attending at or near to the mother’s residence and the children’s schools, and inflicting corporal punishment upon the children.
The mother’s counsel suggested that the children could enjoy written communication with the father to ameliorate the harshness of them spending no time with him. I am satisfied it is appropriate for the children to maintain intermittent written communication with the father in addition to their personal interaction with him. The orders enable the mother to use a postal address so she is not required to divulge her residential address.
It is also appropriate for the children to have some telephonic communication with the father, but that form of communication is not introduced by the orders until the time at which supervision of the children’s visits with him is discarded. The children’s telephonic communication with the mother is confined to the periods when the children spend a week at a time with the father during school holidays from 2015 onwards. There is no need for their telephonic communication with her when they are only with the father for short periods. Separate provision is made for telephone communication on the children’s birthdays.
Miscellaneous orders
The orders forbid the parties from allowing the children to be privy to denigration of them. Such an order could not be the subject of reasonable opposition.
The injunction restraining the father’s use of alcohol is restricted to the periods during which the children spend time with him, and for a reasonable period in advance of their visits with him. That is all that is necessary to ensure the children’s safety. A permanent and total embargo is unnecessary, even though the father’s stated intention is to remain permanently abstinent from alcohol.
The injunction precluding corporal punishment of the children binds both parties. Neither party made any submission about the other’s physical abuse of the children, but some evidence was adduced of the children being disciplined roughly. The injunction, binding each party equally, could not therefore be reasonably opposed.
An injunction precludes the father from attending the children’s schools, consistently with the recommendation of the Family Consultant,[84] the proposals of the mother and Independent Children’s Lawyer, and the concession of the father.[85]
[84] Family Report, paras 89, 100-101
[85] Father’s affidavit, para 109
The father is also restrained from attending at or near to the mother’s home. The father was conscious of the recent expiration of the apprehended violence order and volunteered to continue being bound by a similar restraint. No aspect of the evidence suggested the father was likely to harass or stalk the mother at her new address, which will likely be a great distance away from where he lives, but the injunction will afford the mother some comfort.
The mother was anxious not to have to disclose her new residential address to the father. She is under no obligation to do so. She is only required to exchange mobile telephone numbers and email addresses with the father so as to enable any important communication between them about the children. Any such electronic written communication between them should be benign because there will be a permanent record of it which may be used in evidence in any subsequent proceedings.
An order is made permitting the father to procure the children’s school reports and school photographs. The mother opposed such an order as the children’s school reports and photographs would alert the father to the identity of the schools they attend and hence the locality of the mother’s new residential address. That will occur naturally anyway when the father converses with the children, as they are likely to discuss with him the schools they attend and the sporting teams in which they play. The mother may still harbour fears of the father, but that does not mean her fears are now reasonably held.
The parties are obliged to notify one another if the children suffer more than transient sickness or injury in their respective care.
The orders permit the parties to provide copies of the orders and reasons to any counsellor retained to provide therapeutic treatment to either of the parties or any of the children. It would be helpful to such a counsellor to understand the problems which have arisen in the family.
Finally, provision is made for the orders to be independently explained to the children by a Family Consultant. That will avoid either party affording the children with an explanation coloured by their own perception. It is probable both parties will be dissatisfied with the orders made; the mother because the children will retain their relationships with the father, contrary to her wish, and the father because the extent of the children’s interaction with him is far less than he wanted. An impartial explanation to the children of future parenting arrangements is therefore highly desirable.
I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 May 2013.
Associate:
Date: 21 May 2013
Family Report, paras 25-27; Exhibits M1, M2, M3
Family Report, page 3, paras 9, 11, 12, 14, 20, 100
Paternal grandmother’s affidavit, paras 70-81; Mother’s affidavit, paras 288-299
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