READDIE & KERMODE
[2019] FCCA 6
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| READDIE & KERMODE | [2019] FCCA 6 |
| Catchwords: EVIDENCE – Where the mother is self-represented – where the mother did not call her new partner as a witness – where the father asserts the rule in Jones v Dunkel (1959) 101 CLR 298 should be applied – where the rule of Jones v Dunkel is applied – where the father relies on video footage of the children being interviewed by the police in relation to the alleged misuse of firearms – where the interviews are given little weight. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 44, 60B, 60CA, 60CC, 61C, 61DA, 62G, 68B, 65D, 65DAA, 65DAB, 69ZN, 69ZT, 69ZV, 69ZX Evidence Act 1995 (Cth), s.140 Firearms Act 1996 (NSW), s.39 |
| Cases cited: Amador & Amador (2009) 43 Fam LR 268 ASIC v Hellicar (2012) 247 CLR 345 Bondelmonte & Bondelmonte [2016] FamCAFC 48 Brandi v Mingot (1976) 12 ALR 551 Briginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407 Donaghey & Donaghey [2011] FamCA 13 Godfrey & Sanders (2007) FamCA 102 Goode & Goode [2006] FamCA 1346 Ho v Powell (2001) 51 NSWLR 572 HML v R (2008) 235 CLR 334 M & S (2007) FLC 93-313 M v M (1988) 166 CLR 69 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 Morse & Duarte [2017] FamCA 1039 Murphy & Murphy [2007] FamCA 795 Sigley & Evor (2011) 44 Fam LR 439 Stott & Holgar & Anor [2017] FamCAFC 152 |
| Applicant: | MR READDIE |
| Respondent: | MS KERMODE |
| File Number: | SYC 7857 of 2015 |
| Judgment of: | Judge Harper |
| Hearing dates: | 12, 13 February 2018 & 22 May 2018 |
| Date of Last Submission: | 31 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ford |
| Solicitors for the Applicant: | Kells The Lawyers |
| Counsel for the Respondent: | In person | |
| Counsel for the Independent Children's Lawyer: | Ms Conte-Mills | |
| Solicitors for the Independent Children's Lawyer: | Phillip A Wilkins & Associates | |
ORDERS
All previous orders in respect of the children, [X] born …2005, [Y] born …2007 and [Y] born …2011 (hereinafter "the children") are discharged.
That the parties shall have equal shared parental responsibility for making decisions about long term care, welfare and development of the children, including but not limited to:
(a)Education of the children both current and future;
(b)Religion of the children;
(c)Health of the children; and
(d)Changes to living arrangements.
That each party respectively shall have sole parental responsibility for making decisions about the day to day care, welfare and development of the said children whilst the children are in their respective care.
That the children live with their father.
During the Queensland School Terms the mother may spend one weekend each calendar month with the children in the Region 1 area from 5:00pm Friday until 5:00pm Sunday.
(a)Unless otherwise agreed in writing by the parties, such time may commence on Friday 22 February 2019 upon the mother giving notice to the father by 5:00pm on 8 February 2018 of her intention to spend time with the children in accordance with this order and thereafter is to occur on the last weekend of each calendar month, with the exception of the month of May in which the mother will spend time with the children on the Mother’s Day Weekend.
(b)If Father’s Day falls on the last weekend of the calendar month, the mother’s time with the children will be suspended during that month and may occur on the weekend immediately after the Father’s Day Weekend.
(c)After 22 February 2019, the operation of this order is conditional upon the mother providing the father with at least twenty-eight (28) days’ notice, including by email or text message, of her intention to spend time with the children in accordance with this order.
(d)This order may be varied by agreement and in writing between the parties.
During the gazetted Queensland mid-year school holiday periods (school holidays for Term 1, 2 & 3) the mother shall spend time with the children in the
Australian Capital TerritoryTown A for the first ten (10) days of the school holiday periods calculated as commencing from the last day of the school term and concluding on the tenth day of those school holidays, or as such other times as agreed between the parties in writing.If the Easter break falls outside of the gazetted Queensland school holiday periods, the mother shall spend time with the children from 10am Good Friday until 5pm Easter Sunday, with such time to be spent in the
Australian Capital TerritoryTown A or as agreed between the parties in writing.In the gazetted Queensland Christmas school holiday period the mother shall spend time with the children in the
Australian Capital TerritoryTown A as follows:(a)In 2019/2020 and each alternate year thereafter, for the first half of the holiday period; and,
(b)In 2020/2021 and each alternate year thereafter, for the second half of the holiday period.
That for the purpose of implementing the mother's time with the children in Queensland in accordance with order 5 herein:
(a)The mother shall be responsible for the payment of flights and accommodation when she spends time with the children in Queensland; and
(b)The parents shall meet at the McDonald's Restaurant in Town B, or any other location as may be agreed between the parties in writing from time to time, for changeover.
That for the purpose of implementing the mother's time with the children in accordance with orders 6, 7 & 8 herein:
(a)The mother is responsible for organising the travel for the children from Queensland to the
Australian Capital TerritoryTown A including payment of the travel fares;(b)The father is responsible for organising the travel for the children from the
Australian Capital TerritoryTown A to Queensland including payment of the travel fares;(c)Each parent shall ensure such travel is arranged at least twenty-eight (28) days prior to the scheduled travel day and that the other parent is advised by email of such arrangements including a copy of the tickets;
(d)The mother is responsible to collect and deliver the children to and from the airport located in the Australian Capital Territory; and
(e)The father is responsible to collect and deliver the children to and from the airport located in the Region 1 area.
That each parent may communicate with the children while they are in the care of the other parent via telephone or internet services, including Skype, with the calls to be made to either of the children's mobile telephones.
That each party keep the other informed as to any serious illness or emergency affecting any of the children as soon as reasonably practicable.
That each party keep the other informed as to their residential and email address, telephone number and the children's telephone numbers and shall advise the other within twenty-four (24) hours of any change to these details.
That each party is restrained from denigrating the other party or anyone else living in the household in the presence or hearing of the children and will use their best endeavours to ensure that no other person denigrates the other party or member of their respective households to the children or in the presence of the children.
That each party be and is hereby restrained from the discussing the details of these proceedings, or any matters that had arisen from these proceedings, with the children.
That each party authorise and do all things, and sign all documents and give all consents necessary to enable any health or educational professional and any school attended by the children to provide each parent with copies of reports and any other documentation relevant to the health and education of the children. This order acts as sufficient consent in relation to both parents obtaining information from health and education authorities.
Each party shall ensure the other parent's details are provided to the relevant authorities, including but not limited to the children’s school and health care professionals, as an emergency contact.
That parties do all acts and things and give all consents necessary to ensure each child maintains a current Australian passport with the cost of any application to be shared equally by the parents.
That the father be responsible for holding the children's passports while ever the children are not travelling internationally with the mother.
The father will provide the children's passports to the mother at least twenty-one (21) days prior to any proposed travel should the mother advise she is travelling internationally with the children and the mother is to return the passports to the father within seven (7) days of returning from any overseas travel with the children.
IT IS NOTED that publication of this judgment under the pseudonym Readdie & Kermode is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7857 of 2015
| MR READDIE |
Applicant
And
| MS KERMODE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between the applicant father Mr Readdie (“the father”) and the respondent mother Ms Kermode (“the mother”) in relation to the children of the relationship [X] born on …2005, [Y] …2007 and [Z] born on …2011 (collectively referred to as “the children”).
The mother has a child from a previous relationship, [W] born on …2001 and presently 17 years of age.
The children also have a younger half-brother, [V] born on …2015 and presently 3 years of age. [V] is the child of the mother and her husband Mr C.
Background
The relevant background facts in this matter are as follows:
a)The father was born on …1976, and is currently 42 years of age.
b)The mother was born on …1981, and is currently 37 years of age.
c)On …2001, the mother’s first child [W] was born. [W] is not the subject of these proceedings.
d)The parties commenced cohabitation at a property situated at Town D in 2004.
e)On …2005, the parties first child, [X] was born and is currently 13 years of age.
f)On …2007, [Y] was born and is currently 11 years of age.
g)On …2011, [Z] was born and is currently 7 years of age.
h)The parties and the children relocated to Town E in Queensland in February 2013.
i)The parties separated in January 2014 and the father left the matrimonial home at Town E.
j)The mother relocated back to Sydney with the children in May 2014.
k)The mother and Mr C married on …2015.
l)On …2015, the mother and Mr C had their first child, [V] who is currently 3 years of age.
m)On 30 November 2015, the father initiated parenting proceedings in the Federal Circuit Court of Australia (“the Court”).
n)In June 2017, the mother and Mr C relocated to Town A.
I will refer to additional facts as necessary during the course of these reasons.
Procedural History
The father instituted parenting proceedings in the Court by filing his Initiating Application, Notice of Risk and Affidavit in support on 30 November 2015.
The mother filed her Response, Notice of Risk, Financial Statement and Affidavit in support on 16 February 2016 and sought parenting and property orders in her Application.
Both parties had legal representatives when the matter commenced.
The matter first came before the Court on 19 February 2016, in her Honour Judge Sexton’s duty list. On that occasion her Honour made orders for the father to reply to the mother’s property orders, noting that the mother sought leave pursuant to s.44(6) of the Act to institute property proceedings out of time. The parties were also referred to a Child Inclusive Conference.
On 19 February 2016, the parties also consented to various interim parenting orders. These included that the parties have equal shared parental responsibility for the children, that the children live with the mother, and spend time with the father during certain periods of the NSW school term and school holidays.
The parties attended a Child Inclusive Conference with Family Consultant Ms F on 19 May 2016. The children subject to these proceedings attended the conference.
The matter was next before the Court on 10 June 2016. On that occasion the parents were ordered to attend a parenting after separation course, the father was ordered to complete a “Taking Responsibility” course with Relationships Australia and a Family Report was ordered pursuant to s.62G(2) of the Act.
On 27 June 2016, final property orders were made by consent and the property aspect of the parties’ dispute was finalised.
The Family Report by Ms F dated 10 March 2017 was released to the parties on 13 March 2017. At the time of writing the Memorandum the Family Consultant indicated that the issues in dispute were “where the children should live, where the current weekend time between the girls and the father is to occur and whether the mother should be permitted to relocate to Town G.”
The matter was next before the Court on 16 March 2017 and on that occasion her Honour Judge Sexton appointed an Independent Children’s Lawyer (“ICL”) to represent the children.
The matter was next before the Court on 9 May 2017 and on that occasion the matter was transferred to my docket. Her Honour Judge Sexton also made the following notations:
a) It’s estimated the matter will require 3 hearing days;
b) The Father lives in Queensland;
c) The Mother seeks to relocate with the Children from Town H to Town A;
d) The Father resists that relocation; and
e) Each party seeks an Order providing for the Children to live with that party.
The matter then came before the Court on 22 May 2017 and on that occasion the matter was adjourned to 8 December 2017 for mention and set down for final hearing on 12 February 2018 for an estimate of three days.
On 8 December 2017, the parties consented to interim parenting orders which had the effect of relocating the children to Queensland to live with their father. The orders also provided that the children spend time with their mother from 28 December 2017 until 10 January 2018. On a without admission basis the mother agreed to not leave the children unsupervised in the presence of Mr C and that all guns and ammunition located within the mother’s property be stored in separate locked cabinets.
On 12 February 2018, the father appeared by counsel and the mother was self-represented. The hearing ran for two days and regrettably the final day could not go ahead due to judicial illness.
The final day of hearing took place on 22 May 2018. At the close of the hearing written submissions were ordered.
Issues in dispute
During the course of the hearing, the mother indicated that she no longer pressed for the children to return to her care and live in Town A. Consequently, the issue of relocation fell away.
Therefore, the scope of the debate between the parties was narrowed and the main outstanding issues between the parties became:
a)Whether the Court should grant an injunction restraining the mother from leaving the children unsupervised in the care of her husband, Mr C.
b)The length of time the mother is to spend with the children and where that time is to occur, that is in Town A or Queensland.
Proposals
The father sought orders as set out in Annexure A of this judgment. These orders were tendered in Court on 13 February 2018 and were marked Exhibit B.
As set out in her submissions filed on 3 July 2018, the mother sought orders and made submission as set out in Annexure B of this judgment.
The ICL sought orders as set out in submissions filed on 23 July 2018, set out in full at Annexure C of this judgment.
The father’s central case on the remaining issues was that the children had witnessed family violence between the mother and the mother’s husband, Mr C, and had been subjected to threatening behaviour by Mr C. He argued that Mr C presents an unacceptable risk of harm to the children, justifying the imposition of injunctions pursuant to s.68B of the Act, restraining the mother from leaving the children in the care of Mr C without her supervision, and compelling her to ensure firearms are safely stored. If the father’s allegations are found to be correct, the question would be whether injunctive relief can ameliorate the alleged risk, and how a meaningful relationship with the mother can be maintained.
The mother strongly resisted the imposition of any injunction. She denied the factual basis of the father’s case.
Evidence
The father relied on the following documents:
a)Amended Initiating Application filed 8 January 2018;
b)His Affidavit sworn 4 January 2018 and filed 8 January 2018;
c)His Affidavit sworn and filed 11 January 2018;
d)The Affidavit of Mr J sworn 4 January 2018 and filed on 8 January 2018.
The father was cross-examined.
The mother relied on the following documents:
a)Her Response filed 16 February 2016;
b)Her Affidavit sworn 8 January 2018 and filed 12 January 2018;
c)The Affidavit of Ms K affirmed 9 January 2018 and filed 12 January 2018;
d)The Affidavit of Ms L affirmed 30 December 2017 and filed on 12 January 2018;
e)The Affidavit of Ms M sworn 10 February 2016 and filed 16 February 2016.
The mother was cross-examined.
The Independent Children’s Lawyer relied on the Family Report of Ms F which become Exhibit ICL 1.
The following documents were received into evidence:
Exhibit Label
Document
Tendered by
ICL1
Family Report by Ms F dated
10 March 2017.
ICL
A
Three DVDs containing police interviews with the children.
Father
B
Father’s proposed minute of final orders.
Father
C
Tender Bundle.
Father
1
Ariel Photograph of the Mother’s property in Town A.
Mother
Expert evidence
The Family Report was based, as described by Ms F, on the material filed by the parties so far in the proceedings, the Child Inclusive Conference Memorandum, some documents produced on subpoena and the interviews conducted, as set out at the commencement of her report.
I will note here, that at the time of writing the Family Report, the children were living with their mother and Mr C. That circumstance has now changed, and the children live with the father.
I will refer to the content of the report as necessary during the course of these reasons.
Ms F also gave oral evidence and was cross-examined.
Family Report Recommendations
The family report writer made recommendations in paragraphs [100] – [104] of her report to the following effect:
a)That Mr Readdie and Ms Kermode share parental responsibility for [X], [Y] and [Z] and that Orders include the proviso that Ms Kermode provide regular information to Mr Readdie about the children’s activities and their well-being.
b)That the children live with Ms Kermode and be permitted to relocate to Town A.
c)That the children spend time with Mr Readdie in Queensland for all the short school holidays plus half of the Christmas school holidays.
d)That the children spend a minimum of one weekend per term in Sydney with Mr Readdie from Friday evening until Sunday afternoon, or Monday if it is a long weekend.
e)That Mr Readdie be able to telephone the children and vice versa whenever they wish and at the least according to the current arrangements.
It can be seen that events have overtaken most of these recommendations. Specifically, the mother now accepts that the children should live with their father in Queensland and visit her during school holidays. In addition to the risk factors, the debate became about the extent of holiday time with the mother, rather than the father, and contact with the mother, not the father, by telephone or other means during term time.
The Children
As noted above, [X] is currently 13 years of age, [Y] is currently 11 years of age and [Z] is currently 7 years of age.
Since 8 December 2017, the children have been living with their father in Queensland.
[X] attends School 1 and has completed Year 8. [Y] and [Z] attend School 2, and have completed Year 5 and Year 2 respectively.
The father’s evidence
The father was cross-examined. I found his evidence to be generally reliable.
The mother’s evidence
As already mentioned, the mother was self-represented. She gave the impression of being intelligent and capable. I formed the view she tried to give her evidence honestly. She was prepared to give answers in cross-examination which were not necessarily in her interest.
Relevant Law
The Approach in Goode & Goode
Although the issues which remain for determination are narrow, it is necessary to follow the statutory pathway to resolve those issues.
The Full Court of the Family Court of Australia (“Full Court”) in Goode & Goode [2006] FamCA 1346 set out a number of steps for approaching the resolution of a parenting hearing, namely:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Legislative framework
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.[1]
[1] There is no relevant parenting plan so s 65DAB of the Act does not apply.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child. All parties agreed that an order for equal shared parental responsibility should be made. This would usually render further discussion of the presumption unnecessary.
However, the presumption does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or it may be applied but be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have such equal shared parental responsibility (s.61DA(4) of the Act). Since the father seeks injunctive relief and relies upon allegations, which, if sustained, could establish abuse or family violence or suggest a conclusion that equal shared parental responsibility would not be in the best interests of the children, I will return to consider the presumption later in these reasons.
The best interests of a child are the paramount consideration (s.60CA of the Act).
It is convenient to consider the best interests of the children at this point. The best interests of a child are to be determined by an examination of the primary and additional considerations set out in s.60CC of the Act. These factors are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act.
I also respectfully adopt the recent comments by the Full Court in Tibb & Sheehan [2018] FamCAFC 142; 58 Fam LR 351 at [83], that to “consider” is to engage in something that occurs inside the mind. The Full Court also said at [87] in relation to the nature of parenting cases:
[87] In a case without pleadings (as is the case here) the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial. In turn, those matters will inform what is, and what is not, included in the reasons.
I have taken account of each consideration in s.60CC. It is not necessary to discuss each primary and additional consideration: Jollie & Dysart [2014] FamCAFC 149 at [49]. I will discuss the relevant considerations as defined by the manner in which the case was conducted and the issues joined between the parties.
Best interests of the children
The best interests of a child are to be determined by an examination of the considerations as set out in s.60CC of the Act. These factors are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act. It is unnecessary to set out those objects verbatim. No party referred to them. I must however take them into account. I have done so. In considering the role to be played by these objects and principles in the determination of the parenting orders in this matter, I follow what the Full Court said in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74]-[75], particularly:
a)In its current form, s.60B of the Act does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operates as an aid to construction of the Part and the Act; and
b)The current s.60B of the Act cannot be used to change the ordinary and clear meaning of s.60CC of the Act nor where the s.60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, will s 60B be decisive.
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s.60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
As to s.60CC(2)(a), I am guided by earlier judicial statements of interpretation endorsed by the Full Court in Sigley & Evor (2011) 44 Fam LR 439:
a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: (citing Mazorski & Albright [2007] FamCA 520 and McCall & Clark (2009) FLC 93-405); and
b)A “prospective approach” is the preferred approach to s.60CC(2)(a) requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]-[119];
c)Depending on the factual circumstances “the present relationship approach” may be relevant, requiring the Court to examine the evidence “of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which finding will be reflected in the orders ultimately made”; however, it is not the preferred approach since s.60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons, and application of the present relationship approach would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall (surpa) at [118]-[119];
d)The legislation aspires to promote a meaningful relationship, not an optimal relationship, (M & S (2007) FLC 93-313 per Dessau J; Godfrey & Sanders (2007) FamCA 102 per Kay J and Champness & Hanson (2009) FLC 93-407 per the Full Court); and
e)A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: at [136] following Champness (supra) at [191].
The “meaningful relationship” consideration in s.60CC(2)(a) of the Act supports the position that as much time as possible with both parents is in the children’s best interests.
There was no dispute that the children would benefit from a meaningful relationship with both parents. There was no dispute that the children should spend time with both parents. The children currently live with the father. The mother does not seek to disturb this position. The children previously lived with the mother and I am satisfied they have a meaningful relationship with the mother and would benefit from that relationship continuing.
Since the father’s primary argument was that Mr C presents an unacceptable risk of harm to the children, the main focus of the evidence and submissions was upon the next primary consideration and risk factors.
Section 60CC(2)(b), “abuse” and “family violence”
For the purposes of considering the father’s arguments, it is necessary to set out some statutory definitions at this point. The terms “abuse” (see s.4) and “family violence” (see s.4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (see s.4AB(3)). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The father argues that several of these definitions have been satisfied on the facts of this case. But before turning to the evidence, it is convenient to discuss the concept of “unacceptable risk” as it has been elucidated in earlier decisions.
A Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse (M v M (1988) 166 CLR 69). That “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm. (In the Marriage of A (1998) FLC 92-800).
In Johnson and Page [2007] FamCA 1235; (2007) FLC 93-344, the Full Court (May, Boland and Stevenson JJ) at [68] considered the application of “unacceptable risk” principles following M v M (supra), and referred, with approval, to a number of factors expressed by the Hon. John Fogarty AM, formerly of the Family Court of Australia, inter alia, as follows:
a)The decisive issue is and always remains the best interests of that child. All other issues are subservient.
b)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
c)The onus of proof in reaching the conclusion (that there is an unacceptable risk) is the ordinary civil standard.
d)...the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In Donaghey & Donaghey [2011] FamCA 13 at [30] to [31], Murphy J adopted the statements of Mr Fogarty, including:
…the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
Murphy J also referred to Mr Fogarty in adopting the following at [261]:
...unacceptable risk in the High Court’s formulation in M v M (citation omitted) requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the best interests of the child and protection from risk.
The High Court and the Full Court have made clear that findings about abuse, violence or risk are subservient to the Court's determination of what is in the best interests of the child. Different evidentiary considerations may apply in relation to determining an allegation of unacceptable risk as opposed to determining whether a serious abusive, violent or criminal act, such as uttering threats or rape, has occurred (Briginshaw v. Briginshaw [(1938) 60 CLR 336 or s 140 of the Evidence Act, 1995). Thus findings about the occurrence of violence or abuse may need proof to a higher standard than findings about the existence of an unacceptable risk, although the two may be interrelated: M v M (1988) 166 CLR at [76]; Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [94]-[96]. As Justice Le Poer Trench put it recently in Morse & Duarte [2017] FamCA 1039; 58 Fam LR 131 at [540]:
“The above authorities make it clear that a positive finding of abuse having occurred or not is “subservient and ancillary to the court's determination of what is in the best interests of the child”…Further, it is important to note that where a positive finding of sexual abuse cannot be made in accordance with the Briginshaw standard (or the standard in s 140 of the Evidence Act), this does not preclude a finding of unacceptable risk of future harm.”
In Napier & Hepburn (2006) 36 Fam LR 395; (2006) FLC ¶93-303 at [84], and [91], the Full Court said:
[84] There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[91] That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future. Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated....
The Full Court has recently confirmed that there is no category of “fact” which is neither proven nor unproven but upon which the Court can act as if it has been proven – that is, that there is a risk that the non-accepted evidence might nonetheless be correct: Sahrawi & Hadrami [2018] FamCAFC 170 at [50]. In Sahrawi at [52] the Full Court also endorsed the following articulation of the correct approach in Stott & Holgar & Anor [2017] FamCAFC 152 at [38]:
We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn [2006] FamCA 1316; (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [124] and [125]; Johnson and Page [2007] FamCA 1235; (2007) FLC 93-344 at [66] and [67]).
After citing this passage from Stott, the Full Court said in Sahrawi at [53]:
53. The point is that the identification of a risk and its nature or magnitude and the likelihood of occurrence are important considerations. The focus is on the best interests of the child and how any risk to that child may be managed. The primary judge undertook none of these considerations. Instead, his Honour focussed on whether there had been an assault, found that he could not be certain that there had been, but found there was a risk that it could have occurred. In doing so, the primary judge was impermissibly applying the approach dealing with assessing whether there is an unacceptable risk of harm to the child to a finding of fact as to whether an assault had occurred.
Recently, in Morse & Duarte [2017] FamCA 1039; (2018) 58 FamLR 131 at [541], Le Poer Trench J concluded after a discussion of the authorities that the standard of proof to establish unacceptable risk of harm is the ordinary standard on the balance of probabilities, although a higher standard may apply to a more serious allegation such as sexual abuse or the consequences of a finding of abuse that is of sufficient gravity. I respectfully adopt this conclusion. The applicable standard of proof for the father’s allegations is the ordinary standard on the balance of probabilities.
I turn then to give real and substantial consideration to the facts, to decide what is proven by way of violence or abuse, and the nature, magnitude and likelihood of any risk and the prospect of its future occurrence. The nature of the risk which the father identifies here lies in alleged abusive and violent behaviour of Mr C towards the mother and the children, and an attitude of animosity towards the children which may be inferred from this behaviour. The behaviour in question consisted of verbal statements and dangerous use of firearms.
At this point some further facts should be detailed, in two areas. First, the children’s older half-sister, [W], was part of the household of the mother and Mr C when the Family Report interviews took place in December 2016. At that time the household was located in Sydney. According to the Family Report (paragraph 26), [W] may have been living with her paternal grandmother for about six months before returning to the mother’s household in December 2016. Although the evidence was not entirely clear, when the mother relocated to Town A, it appears [W] divided her time between Sydney, where she stayed with her paternal grandmother, and Town A.
Secondly, establishing her own business was one motivation for the mother’s relocation to Town A. When they moved, Mr C purchased a business in School 2 for the mother. In her cross examination, she said the business had a full time manager, a part time employee and one volunteer. The mother herself goes “in and out as required”. She sometimes works at special occasions such as weddings, which requires her to work in the business. Her commitments in this business explain her absence when some of the events, detailed below, are alleged to have taken place.
The father’s case concerning risk rested on three types of evidence: complaints made to him by the children; DVD’s of interviews conducted by police, and documentary evidence from Police and FACS records. I will refer to aspects of this evidence in considering a series of events or incidents alleged to have taken place over 2016 and 2017.
Alleged Abusive and Violent Behaviour of Mr C
The FACS material, contained in Exhibit C, notes that there were 13 risk of harm reports between 14 February and 9 September 2016, “with issues related to domestic violence, risk of psychological harm, risk of physical harm” between the mother and Mr C or those in their household.
The FACS material in Exhibit C records contact with [W] on 23 February 2016 in which she reported “an escalation in scapegoating, criticising and demeaning behaviour by the mother and the step-father.”
There was a report to FACS on 4 May 2016 that [W] and [X] saw Mr C hitting the mother in the bedroom. According to the report, he was seen to put his hands around the throat of the mother. He is also alleged to have said “Which of one of your kids do you want me to kill?’. The mother slept on the lounge that night and Mr C went away for 3 days. According to the FACS material, [Y] reported to FACS that [W] and [X] had told her they had witnessed this incident. There seems to be no direct follow up with [W] or [X].
There is a record of another contact which was made with FACS on 21 June 2016. The caller refers to a note in the records of a school counsellor, consulted by [Y], which appears to repeat the details of the incident on 4 May 2016. The note of the contact on 21 June 2016 states “[X] reported to the father about the abuse.” The father makes no mention of this specific incident in his Affidavit. There is no police report about it in evidence. Annexure “R” to his Affidavit is a copy letter to the mother’s solicitors dated 25 August 2016, which does contain general allegations concerning verbal and physical abuse directed at the children by Mr C, and reference is made to material produced on subpoena by FACS. The letter states that the children are fearful of Mr C.
In Exhibit C there is a police report of an incident on 20 August 2016. This did not involve the children the subject of this judgment, but rather [V] the child of the mother and Mr C. According to the COPS report both the mother and Mr C had been consuming alcohol. They had an argument during which Mr C picked up [V] and pushed the mother over. He alleged the mother slapped him in the face. The COPS report notes that [W] was to be followed up as a witness. [W] ultimately contacted the police by telephone at about 6.00 pm on 4 September 2016 and said she “did not see anything and was not willing to provide a statement”.
By letter dated 25 August 2016, the father’s solicitors made allegations to the mother’s then solicitors about aggressive behaviour of Mr C towards the children, asserting that they were fearful of him. (Annexure “R” to the father’s Affidavit).
A report of the outcome of a …Hospital referral states that it was reported that on 4 September 2016, Mr C psychologically abused the children “as he said he was going to get a gun and shoot” their father, or hang him up naked “and shoot bullets at him”. By letter dated 19 October 2016 (Annexure “S”), the father’s solicitors confirmed that he had made a report to police about these threats on 5 September 2016.
On 9 September 2016 a domestic violence incident was alleged to have taken place, witnessed by the children, between the mother and Mr C during which he is said to have held a knife to her back, punched and kicked her. It is not clear who made the allegation. In a letter dated 27 September 2016 to the father’s solicitors, the mother’s solicitors stated the police had attended the mother’s residence on 15 September 2016 in response to a report that Mr C had threatened her with a knife. The mother’s solicitors accused the father of making the report to police. In his Affidavit (paragraph 90) the father denies making the “complaint” saying he only became aware of the incident in later discussions with the children. His solicitors’ letter dated 19 October 2016 (Annexure “S”) contains a denial of making any such contact with police about this incident.
The allegations appearing in this evidence, as they relate to Mr C are concerning. It is important to observe that they all took place prior to the Family Report interviews.
In the Family Report, the mother described Mr C’s relationship as “loving” towards her and the children (paragraph 42). She denied there had been any family violence between her and Mr C, although she agreed they did argue, usually as a result of stresses caused by Court proceedings (paragraph 43). Mr C agreed they argued but denied any family violence. He agreed the Court proceedings had imposed stresses on the relationship. He referred to the knife incident, saying the visit of the police had been “a low point in his life.” (paragraph 51).
I note here that at the interviews for the Family Report, Ms F’s observations of the children, the mother, Mr C, [W] and [V] “indicated similarly warm and comfortable relationships amongst the adults and children” (paragraph 81).
At the interviews, [W] told Ms F that she was closer to Mr C than she had been, and she views him as a “father figure” even if they had argued (paragraph 77). [X] told Ms F that her mother and Mr C fought, and got cranky and stressed but they “get over it and nobody gets hurt.” (paragraph 60) [X] said she got on well with Mr C, “as long as he is not with his best friend” who apparently made Mr C angry with the children. (paragraph 63). [Y] said “it is sometimes “OK” with Mr C” and she sometimes gets a cuddle from him at night. (paragraph 68). [Z] said her mother and Mr C fight even though they get on well. She “gets on” with Mr C but he yells at the children and makes them do chores (paragraphs 71, 72).
Ms F also noted that at the time of the interviews for the Family Report, neither the mother nor Ms F had attended family violence counselling, and both appeared to minimise “what appeared to be some difficult family violence incidents between them in 2016 as reported by the children, alleged by Mr Readdie and noted in subpoenaed documents”. She also observed that neither the mother nor Mr Readdie referred to [W] having lived outside the home for some months in 2016 “due to difficulties and argument” between her and Mr Readdie. (paragraph 90)
It can be seen that the material in Exhibit C, set out earlier, concerning events in 2016, is not entirely consistent with the Family Report evidence just discussed. The evidence from both sources is consistent in depicting a strong relationship between the mother and Mr Readdie. The material in Exhibit C suggests it may have been subject to some anger and violence. It is also consistent in supporting a conclusion that Mr Readdie had occasional angry interactions with the children, including [W], even though their relationship was generally positive. In the Family Report, the responses of the children when asked about Mr C suggest some reservations about him on their part. However, in the Family Report none of the children refer to threats by Mr C to kill the father, or strangulation of the mother or the knife incident. [W] did not refer to “scapegoating, criticising and demeaning behaviour” by the mother or Mr C. The evidence of the Family Report, referred to above at [88] and [89] is not wholly consistent with the extreme behaviours alleged in Exhibit C.
Consequently, the Court is left in the position that none of the allegations of incidents in 2016, found in the Exhibit C material, are the subject of direct confirmation by either participants or child witnesses, despite the opportunity for such confirmation through the Family Report interviews. Even allowing for a pattern by the mother and Mr C of minimising difficult family violence incidents, as Mr C observed, the evidence about the violence alleged during 2016 is equivocal.
On balance I am satisfied that it is likely the household of the mother was at times struck by high tension in 2016. It is likely the mother and Mr C argued at times. The competing claims of [W], the children and [V] would be difficult for any couple to juggle. Angry outbursts may have taken place. However, I cannot be satisfied that the evidence establishes that Mr C engaged in the threatening behaviours alleged in 2016. Overall the evidence is more consistent with a reasonably functional family unit, despite a number of pressures and strains, including those arising from unresolved litigation. I bear in mind that during 2016, the question of relocation, and with which parent the children would live remained a source of contention between the mother and father.
The alleged dangerous use of firearms
The father next relied heavily on incidents said to have taken place on 23 July 2017. The allegation was twofold. First, that Mr C and a friend were shooting at or near the chicken shed while the children, or some of them, were riding quad bikes near the tennis court and a round narrowly missed [Y]’s head (“bike incident”). Secondly that, possibly later the same day, Mr C pointed a gun at the children while they were watching television (“gun pointing incident”).
The children were visiting Town A from Queensland in school holidays for the first time. Although not entirely clear, the evidence seems to suggest [W] was not present during the gun incident. I discuss this further below. She had returned to Sydney after an argument with Mr C.
The mother was not present at the residence because she was working in her business. This element in the narrative was something the father focussed upon. For example, in questioning Ms F, the father’s counsel asked her to assume the mother frequently left the children in the care of Mr C.
There was no dispute that Mr C owns six registered firearms.
The father gave evidence of a conversation with [Y] after 23 July 2017 at paragraph [112] of his Affidavit:
[Y] then asked me who she would be spending her birthday with, and I confirmed that she was due to spend her birthday in Town A with Ms Kermode. [Y] then said to me words to the effect “it’s meant to be a happy day I don’t want a gun pointed at me”. I replied to [Y] “what do you mean by that?” and she replied words to the effect “Mr C was shooting guns while we were riding our motorbikes around and then he pointed and waved the gun at all of us and [W]”. I then replied words to the effect “guns should be held in a safe place. Where does Mr C keep his guns?” to which [Y] responded “they’re on a wall in a little room and there are both just lying around outside”
At paragraph [113] he also says:
All three girls reported that they felt unsafe at the Town A property when Mr C is present. All three girls said to me words to the effect “we don’t want to go back down there we Mr C is there dad.”
The NSW Police attended the Town A property on 24 July 2017 at 7.55 pm. According to the police COPS records in Exhibit C, under questioning by police about the use of guns, Mr C explained that he was concerned about foxes attacking his chickens, and taking the food of his dogs, and he was trying to control this pest using a firearm. According to the report, he told police that he kept a .410 shotgun unloaded and broken on the top shelf in the pantry of the kitchen, which is the room closest to the chickens and dog food. The police record states that Mr C denied any incident and invited the police into his house to inspect the guns. The mother was not present. The police report notes that Mr C was “completely accommodating” and he was “forth coming with his reasons for the unsecured .410 and police believe due to the nature of the situation this is not an offence.” Mr C made allegations about “ongoing issues” with the father harassing him and the mother. The police decided to seize the firearms “as per DV legislation”.
FACS became involved and sought an interview with the mother, Mr C and their child [V]. The identity of the person making contact with FACS was redacted. According to the FACS File Note Record in Exhibit C, this took place on 3 August 2017. It appears from the record that the interview was more focussed on the safety of [V] than the children, although concern for [V] arose in the context of the allegation that Mr C was shooting while the children were on their bikes. The record notes that Mr C had held a gun licence for 20 years and “displayed awareness of firearm safety, including safe storage of guns and ammunition” and Mr C used guns “for valid purposes like shooting rabbits on the farm.” The Record does not mention foxes, but it cannot be known exactly what was said in the interview. Both the mother and Mr C are also noted as accusing the father of making vexatious reports. The file records that the mother and Mr C spoke of “ongoing difficulties and stress managing family law and arrangements for the girls after their father had taken them to Queensland.”
A follow up home visit took place on 7 August 2017. Thereafter, FACS wrote to the mother and Mr C saying the outcome of their assessment failed to substantiate that [V] was subject of harm and would “now cease involvement and close this matter.” (Annexure “A” to the mother’s Affidavit)
On 9 September 2017, the children were interviewed by Queensland Police in relation to events on 23 July 2017. No further action was taken by police in either Queensland or NSW after these interviews.
The interviews were recorded and became Exhibit A. They were admissible as evidence because they were relevant and by reason of s.69ZT of Division 12A of the Act, which excludes a number of provisions of the Evidence Act1995 (Cth) from application to parenting proceedings, and probably by reason of s.69ZV(2) which provides that a representation by a child is not rendered inadmissible because of the law against hearsay. However, their weight is a separate question, and is left to the discretion of the Court: ss.69ZT(2) and 69ZV(3) of the Act.
In dealing with Exhibit A, I also take account of s.69ZN of the Act which sets out five principles for conducting child-related proceedings. These include consideration of the “impact that the conduct of the proceedings may have on the child”, and that “proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.”
The parties subjected the police interviews to minute examination, almost as if they constituted evidence in chief of the children. The nature of child related proceedings and the question of weight made this difficult to avoid. It was not permissible of course for any of the children to be questioned about their version of events recorded in the interviews.
The ICL submitted that the value of the interviews in Exhibit A is limited by the absence of any testing, and because they recorded evidence not given under oath. There is some force in this, but the absence of testing of children’s evidence will be normal in parenting proceedings.
However, the interviews in Exhibit A are not evidence in chief concerning the events on 23 July 2017. They must be weighed together with the other available evidence.
The father submitted the records of interview had the ring of truth to them. The versions given by each child were slightly different but sufficiently consistent to form a coherent version of events, substantiating the allegations described in [94] above. The father submitted that the presence of inconsistencies added to the credibility of the children’s accounts, because no child would have exactly the same recollection.
The mother submitted that the inconsistencies detracted from their credibility.
The ICL submitted that the versions given by the children were probably subject to embellishment. She did not support an injunction in relation to Mr C.
It is very difficult to determine where the truth lies in relation to the events of 23 July 2017.
In my view some of the inconsistencies between the differing versions of the children were significant, as the following examples indicate. On [Y]’s version of events, the gun pointing incident took place in the evening after the bike incident and the last day of their holiday. [Y] stated early in her interview that in the gun pointing incident [W], herself, [X], [Z] and [V] were all present. She then seemed to say that nothing happened in the gun pointing incident because [V] was there and Mr C was just showing the gun to him, and Mr C put it away. [Y] alleged that after the gun pointing incident, the mother and Mr C had a fight in which Mr C said “[W] needs to be gone by tomorrow”. The inconsistency in [Y]’s version of events is apparent in reference to when [W] was present and when she was sent back to Sydney. According to [Y], [W] had been present for the gun pointing incident, but was not present for the bike incident because she had been sent home. However, as previously noted, [Y] indicated that the bike incident occurred before the gun pointing incident. This would only make sense if [W] was still in Town A, but [Y] said she had been sent home before the last day of holidays.
Like [Y], [X] said that during the gun pointing incident all the children were present. However, there are two significant inconsistencies between [Y] and [X]’s version of events. Firstly, whilst [Y] states the gun pointing incident took place on the last day of the holidays, [X] said the gun pointing incident took place earlier in the holiday before [W] had been sent home. Secondly, [X] alleged Mr C pointed the gun at each of the children, including [W], and she felt like “killing him” for doing so. This diverges from [Y]’s statement that nothing happened.
[Z] alleged she was with her sisters when the bike incident occurred but both [X] and [Y] said she was inside playing with [V]. [Z] seemed to say that during the gun pointing incident only she and [Y] were watching television. She also said Mr C was going “hunting with [V]”. She also alleged Mr C pointed a gun at [W] while she was riding a bike. It was not clear whether this was on the same occasion that [Y] and [X] were riding bikes or another occasion.
As I have already said, and as the foregoing discussion demonstrates, it is very difficult to form a view about the alleged events on 23 July 2017.
Although I accept there is force in the father’s submissions about the likely veracity of the interviews, the inconsistencies just discussed undermine their weight. Absence of testing is also a factor going to their weight, especially where such inconsistencies are present.
The mother flatly rejected the possibility that any of the allegations about Mr C on 23 July 2017 were true.
The mother went to some lengths to impugn the evidence of the children. She submitted, on the basis of Exhibit 1, an aerial map of the Town A property, that it would not be possible to observe anyone shooting at the chicken shed while riding quad bikes near the tennis court. However, the aerial map (Exhibit 1) is too unclear to allow a sensible view to be formed about the capacity of a person on the ground near the tennis courts to observe shooting near the chicken shed, or vice versa.
She did not accept that [Y] was being truthful in her interview. She said in cross examination that the children “made up” their asserted fears when at Town A. She argued that the father probably coached the children to make the allegations. I am dubious about that possibility. The father denied it. The inconsistencies in the children’s interviews militate against the likelihood of coaching. On the other hand the inconsistencies also diminish the weight of the interviews as evidence.
Overall, the Court is left with the impression that the children had during 2016 and 2017 a somewhat tense relationship with Mr C. The mother’s relationship with her children also seems to be characterised by some tension, which seems supported by the very fact the mother argued they “made up” stories about Mr C which she completely rejected.
Mr C may have held a gun near the children in the house, but it is impossible to tell on the basis of the evidence whether he deliberately pointed the gun at the children or they placed a sinister interpretation on his ordinary handling of the gun as he put it away. It seems likely on the balance of probabilities that Mr C went shooting on his property while the children were riding bikes. However, according to the evidence in the interviews, the children believed Mr C did not know they were riding bikes at the time. The evidence is too ambiguous to form a view whether Mr C discharged a gun either maliciously or irresponsibly around the children.
On balance, I find that in 2016 and 2017 there was at times a high degree of tension in the household of the mother and Mr C. The domestic circumstances of the mother and Mr C are very complicated. The mother was at times likely sandwiched between the claims of her relationship with Mr C and those of her children, while she was in a legal contest with the father. I accept Mr C may have become angry at times and may have made some abusive remarks to the children. I accept he may have been physically or verbally abusive towards the mother on occasions. I accept that the relationship between Mr C and [W] has been problematic. In her oral evidence, Ms F expressed concern about this relationship, and said it could indicate lack of parental experience or inability to regulate emotions.
I am unable to find Mr C threatened to kill any of the children, or that in fact he fired at or pointed a gun at the children on 23 July 2017. I am unable to find that he used his firearms on 23 July 2017 in a dangerous or illegal manner. I am not satisfied that the father’s evidence reaches the requisite standard and establishes that the events alleged by him took place on 23 July 2017.
It is at this point that the absence of Mr C as a witness in the mother’s case requires consideration. The father submitted that the rule in Jones v Dunkel (1959) 101 CLR 298 should be applied such that an inference should be drawn to the effect that Mr C’s evidence would not have assisted the mother’s case. This submissions was made, as I understood it, in relation to events said to involve Mr C in 2016 and 2017, already discussed above.
The inference potentially available is that the evidence of Mr C would not have assisted the mother’s case, not that his evidence would have been positively adverse. Heydon J, in a separate judgment in ASIC v Hellicar (2012) 247 CLR 345 at [232].
In Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, at [63], [64] confirmed that “The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness”. The father referred to Kuhl , Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 at 576 and Cook’s Construction Pty Ltd v Brown & Anor [2004] NSWCA 105; (2004) 49 ACSR 62 at [67], for the proposition that the Court would make positive findings that his allegations against Mr C should be upheld.
However, parenting proceedings are not subject to all the rules of evidence. The scope for the application of the rule in Jones v Dunkel in parenting proceedings has been described as “limited”. In Murdock & Madden [2011] FamCAFC 219 the Full Court said:
[68] … it is, we think, necessary to point out that, even in circumstances where the pre-conditions to the application of the rule are made out, a court is not compelled to draw an adverse inference. Nor can it be presumed “that the uncalled evidence would have been damaging” (LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 129) [1215], citing HML v R (2008) 235 CLR 334; Brandi v Mingot (1976) 12 ALR 551 at 559-560).
[69] But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until “enough has been proved to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can be sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
[70] The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case.… The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.
[71] As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful...
The father bore the onus of establishing a case for the orders he seeks. Evidence from Mr C would have been desirable. The allegations made by the husband directly involved his interactions with the children. The need for the mother to “answer, explain or contradict” was real.
The mother was self-represented. Although capable and intelligent, she clearly had no grasp of the rules of evidence. Under questioning from the father’s counsel, the mother confirmed Mr C was not in hospital or prevented from giving evidence by illness. In cross examination by the ICL, the mother explained the absence of Mr C by saying “He is hurt, to the point he doesn’t want to talk about it”, but then said “I don’t know why he wouldn’t come. Maybe it didn’t happen, why should he have to defend it?”
These answers raise the question of how helpful Mr C’s evidence would have been. There is no presumption that evidence from Mr C would have been damaging to the mother’s case. The mother’s evidence about his attitude is not inherently implausible. It suggests his evidence would have been consistent with the mother’s denials that anything untoward took place in 2016 and 2017, particularly on 23 July 2017, and would not have added a great deal.
The mother’s explanation for Mr C’s absence as a witness also raises the extent to which the mother was able to prevail upon Mr C to appear as a witness, take the time to travel to Sydney for a hearing over several days, and subject himself to the aggravation of litigation. In Ho v Powell at 576, [15] Hodgson JA pointed that it is important to have regard to the “ability of parties bearing the onus of proof, to lead evidence on a particular matter”, because all evidence “is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.” Self-representation of itself does not justify a litigant escaping the need to call relevant evidence or the applicable rules of evidence.
It may be that the mother, as a self-represented litigant in a domestic situation with a number of inherent tensions, did not have it in her power to lead evidence from Mr C. Her evidence about Mr C’s attitude to giving evidence can be understood as an explanation for his absence as a witness. It is true she may have compelled him to come to Court by using a subpoena. But that would be an unusual and provocative step for one spouse to take in relation to the other, and likely to cause great friction between them. Seeking to compel her husband’s involvement in the hearing against his will may well have added significant strain their relationship, which may have impacted negatively on the children when in Town A. Such considerations do illustrate in some measure the need for circumspection referred to in Murdock and why recourse to the operation of the rule in Jones v Dunkel may sometimes be unhelpful in parenting matters.
Nonetheless, in my view the present case is appropriate for the application of the rule in Jones v Dunkel. My reasons for this conclusion are that the evidence lead by the father about the events in 2016 and 2017 was sufficient to raise a case for the mother to contradict, Mr C was a central participant in the alleged events while the mother was not always present, and the allegations were serious. The mother’s explanations for not calling Mr C are insufficient when viewed in the context of this case. I draw the inference that Mr C’s evidence would not have assisted the mother’s case.
But having said that, I repeat my earlier conclusions about the alleged events in 2016 and 2017 at [92], [121], [123] and [124] above. In child related proceedings, in which the rules of evidence are attenuated in accordance with s.69ZT(1), it is difficult to determine how much assistance the Court derives from inferring Mr C’s evidence would not have assisted the mother’s case. In Fabre v Arenales (1992) 27 NSWLR 437 at 449–50 the NSW Court of Appeal said:
“The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance.”
The father’s case succeeds or fails on the basis of a consideration of all the evidence. I am unable to conclude that even if the mother could have called Mr C, she failed to do so because she feared what his evidence might be. It is equally likely that she may have feared the consequences for her relationship.
The Jones v Dunkel inference is available but of limited significance. Even if it was drawn, in my view this does not alter the conclusions about the events in 2016 and 2017, reached in [91], [92], [93], [123] and [124] above. Applying the inference does not justify positive findings that the father’s allegations about Mr C should be upheld.
I am not satisfied that the evidence presented by the father justifies a finding either that the alleged events of 2016 and 2017 are proven or a finding of future risk to the children in Town A, if left for periods in the care of Mr C, which is unacceptable to the extent it requires imposition of the injunctive relief he seeks.
I give weight to this consideration.
Additional considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In Bondelmonte & Bondelmonte [2016] FamCAFC 48 the Full Court of Family Court of Australia said at [97] that it is not, and never has been, the case that a Judge is obliged to make orders consistent with a child’s stated views (here the Full Court made reference to H & W (1995) FLC 92-598; and Maldera & Orbel (2014) FLC 93-602). In dismissing the appeal from this decision the High Court of Australia said in Bondelmonte v Bondelmonte [2017] HCA 8 at [34]:
In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child [something approaching a decisive] weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
In other words, context is critical and it is a matter for a judge to determine how giving effect to a child’s stated view accords with the child’s best interests (R & R (Children’s Wishes) [2002] FamCA 383; Gillard & Gillard [2015] FamCAFC 169 at [81]).
There was some evidence of the views of the children. They stated that Mr C yelled a lot, and they were fearful of him.
In taking account of the views of the children, I make allowance for their young age, and other evidence of affectionate and warm interactions with Mr C, referred to above at [87], [88] and [89].
I give weight to this consideration.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
I refer to the discussion under ss60CC(2)(a) and (b). I have nothing to add here.
I give weight to this consideration.
(ii) and other persons (including any grandparent or other relative of the child);
I refer to the discussion under ss60CC(2)(a) and (b) and s60CC(3). I have nothing to add here.
I give weight to this consideration.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
I am satisfied each parent has taken these opportunities, within the limitations imposed by the geographic separation.
I give weight to this consideration.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
I am satisfied each parent has fulfilled their obligations to maintain the children. This was not in dispute.
I give weight to this consideration.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents;
The injunction sought by the father would result in a significant change in the children’s circumstances when they stay at Town A. I refer to the discussion below under s.60CC(3)(m).
I give weight to this consideration.
(ii) or any other child, or other person (including any grandparent or other relative.
I have nothing to add here.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The distance between the dwellings of the parents raises practical difficulties. However, the orders proposed by all parties make allowance for these, and they will not affect the children’s rights and ability to maintain contact with both parents.
I give weight to this consideration.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
Both parents have demonstrated a satisfactory parenting capacity. This was not in dispute.
I give weight to this consideration.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The capacity of Mr C to provide for the needs of the children was put in issue by the father, as the basis for the injunction he seeks. I refer to the earlier discussion under s.60CC(2)(b).
The mother maintained in her evidence that Mr C was a warm and loving parent. He may be so to his own child. I refer also to the observation of Ms F referred to in the family report.
My discussion of the evidence above, particularly in relation to s.60CC(2)(b) suggests Mr C’s capacity to provide for the needs of the children, as their step father, has some deficiencies. However, on balance I am satisfied it is reasonable in the circumstances, and take account of the fact the children will live most of the year with the father.
I give weight to this consideration.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
I refer to the discussion under ss.60CC(2)(a) and (b) and s.60CC(3). I have nothing to add here.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant on the facts of this case.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I am satisfied each parent has shown a satisfactory attitude to the responsibilities of parenthood.
I note that in the evidence at times, each sought to impugn the other’s attitudes to promoting a positive relationship between the children and the other parent.
In light of the extensive agreement about the appropriate orders this does not require further discussion.
(j) any family violence involving the child or a member of the child's family;
I have nothing further to add beyond the discussion above in connection with s.60CC(2)(b).
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
This is not relevant on the facts of this case.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The father’s proposed orders for supervision and to compel the mother to ensure guns and ammunition are locked away would place real practical limitations on the ability of the mother to conduct her domestic and working lives in the manner she sees fit when the children were in Town A. It would be in place for many years. It would be likely to cause friction with Mr Readdie whenever the children were staying at Town A which could be adverse for the children and their relationship with their mother. Moreover, the ability of the mother to meet compliance with an order to ensure guns and ammunition are locked away when the children are in Town A and are not used “unless reasonably and lawfully necessary” and not “recreationally” would impose upon the mother an onus of interpretation as to where the line fell between reasonable and lawful on the one hand, and recreational on the other. These are matters upon which minds might reasonably differ. The order could thus create situation of conflict with Mr C who had a different interpretation.
These factors also make breach of the injunction more likely. The injunction proposed by the father would thus make further litigation likely. Although any injunction would be imposed in the best interests of the children, finalisation of this parenting litigation is preferable for all parties.
The mother submitted it would create a barrier between the children and their step-father. It would also result in a barrier between the girls and [V]. It could well create an unhealthy atmosphere in which the father would routinely seek information from the children about compliance. The mother also submitted the injunction makes no allowance for the practicalities arising if she was hospitalised or called away in an emergency. I accept there is force in those submissions.
I note here that the orders proposed by the father and ICL included orders dealing with the issuance and holding of passports. The mother made no submissions about orders covering these matters. I will make the orders proposed by the ICL in this regard to help avoid further Applications to the Court.
I give weight to this consideration.
(m) any other fact or circumstance that the court thinks is relevant
I have nothing to add here.
Parental Responsibility
I return to the question parental responsibility.
The Full Court of the Family Court of Australia’s decision in Goode & Goode [2006] FamCA 1346; [2006] FLC 93-286, and s.61C of the Act, together make clear that, unless displaced by Court order, the parties’ parental responsibility may be exercised either jointly or severally. The parties have since 19 February 2016, when interim orders were made, consented to orders for equal shared parental responsibility. They seek such an order on a final basis, including the ICL.
Thus no party submitted that I should find either that the presumption of equal shared responsibility did not apply by reason of s.61DA(2) or I should find it has been rebutted as it would not be in the best interests of the children, for the purposes of s.61DA(4). They took this position despite the argument of the father about unacceptable risk.
I refer to the discussion and findings in relation to s.60CC(2)(b) of the Act above. I am not satisfied there is a sufficient basis to deny application of the presumption pursuant to s.61DA(2).
The Court must also form its own view about rebuttal of the presumption in the best interests of the children. In light of my discussion and conclusions concerning the considerations in s.60CC(2) and (3), and the consensual approach of the parties to equal shared parental responsibility, I am also not satisfied that the presumption is rebutted in the best interests of the children, for the purposes of s.61DA(4).
The Court will order equal shared parental responsibility by consent.
Live with the Father
The parties agree that the children should live with the father.
Time with the Mother
Substantial and significant time
Since an order will be made for equal shared parental responsibility, s.65DAA(1) of the Act applies.
Equal time with the mother is not practically possible. No party sought an order for equal time with the mother.
Substantial and significant is also strongly affected by the geographic distance between households.
The parties proposed that the mother should have one weekend regularly with the children in Queensland. The father and the ICL propose one weekend each calendar month upon the mother giving 28 days’ notice. The mother proposes any weekend on 14 days’ notice. In my view the proposal of the father and the ICL is more realistic and will enable both parents and children to organise their affairs with appropriate notice.
The time with the mother will otherwise have to fall substantially in the school holiday periods. Ms F pointed out in her oral evidence that absence of stress and stable sibling relationships are among the most protective factors for children. The creation of stable relationships not only between the children but also with [W] and [V] would be given the best opportunity by block holiday time.
The father and mother proposed 10 days with the mother in the non-Christmas holidays; the ICL proposed 8 days. I think 10 days is appropriate.
The father and the ICL proposed 16 days in Christmas holidays, the mother proposed 4-5 weeks during school holidays. In my view neither period is appropriate. No particular reason was given for either period. In my view, in order to allow maximisation of time with the mother the Christmas holiday period should be divided equally. The Christmas school holiday period is six weeks and an equal division will enable each parent to spend three weeks with the children, with minimal changeovers.
In answering questions from the ICL, Ms F also emphasised that the mother should take off as much time as possible during school holidays to be with the children. The Court expects the mother to take careful note of this.
Supervision & injunctions
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627.
The basis for supervision was described by Carmody J in Murphy & Murphy [2007] FamCA 795 as follows:
Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships.
I refer to the discussion and the conclusions above under s.60CC(2)(a) and (b). I am not satisfied the father has established a sufficient factual basis for the injunction he seeks. It is relevant to observe that legislative provisions criminalise the failure to store firearms safely, for example, s.39 of the Firearms Act 1996 (NSW). Mr C would be exposed to criminal sanction for failure to do so.
The ICL did not support the proposed injunction. I refer also to the discussion above at [172]. Taking all these considerations together I am not persuaded that the father’s proposed injunction and order for supervision are in the best interests of the children.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am of the view that the orders as set out at the commencement of these reasons, which substantially follow the proposal of the ICL, are in the best interests of the children and accordingly, will so order.
I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 1 February 2019
Annexure A
That the parties shall have equal shared parental responsibility for making decisions about long term care, welfare and development of the children [X] born …2005, [Y] born …2007 and [Z] born …2011 (hereinafter "the children"), including but not limited to:
1.1Education of the children both current and future;
1.2Religion of the children;
1.3Health of the children; and
1.4Changes to living arrangements.
That each party respectively shall have sole parental responsibility for making decisions about the day to day care, welfare and development of the said children whilst the children are in their respective care.
That the children live with the father in Queensland ("QLD").
That the children spend time with the mother as follows:
4.1During the QLD school term:
4.1.1The mother be at liberty to spend one weekend each calendar month (being the last weekend of the calendar month) with the children in the Region 1 area from 5.00pm Friday until 5.00pm Sunday unless otherwise agreed, conditional upon the mother providing the father with at least 28 days’ notice via email.
4.1.2During the QLD mid-year school holiday periods for the first ten days of the school holidays calculated as commencing from the last day of school term and concluding on the tenth day of the school holidays.
4.2For sixteen days during the QLD Christmas school holiday periods as follows:
4.2.1In 2018/2019 and each alternate year thereafter, from 20 December until 5 January; and
4.2.2In 2019/202 and each alternate year thereafter, from 5 January until 21 January.
4.3At Easter (in years that fall outside of the QLD school holiday periods) from 10am Good Friday until 5pm Easter Sunday, with such time to be spent either the Sydney or Region 1 areas.
4.4On the Mother's Day weekend each year, from 5.00pm Friday immediately preceding Mother's Day until 5.00pm Mother's Day, with such time to be spent either in the Sydney or Region 1 areas.
4.5At such other times as agreed between the parties.
That all time spent with the mother pursuant to these Orders is subject to the mother ensuring that the children are not at any time left unsupervised in the care of her husband Mr C and if the mother is not personally available that she make arrangements for the children to be supervised by the maternal grandmother, Ms K.
The mother do all acts and things to ensure all guns and ammunition located within or on her property are stored in separated locked cabinets and are not to be removed during the period when the children are spending time with the mother, in accordance with these orders, unless reasonably and lawfully necessary and not for any recreational purposes.
That for the purpose of implementing the mother's time with the children in the Region 1 (with the exception of school holiday periods):
7.1The mother is responsible for arranging and paying for all of her flights to and from Region 1 Airport and any necessary accommodation for herself and the children whilst spending time with the children.
7.2The parties shall meet for changeover at McDonald's Town B at the commencement and conclusion of the mother's time with the children.
That for the purpose of implementing the mother's time with the children in Sydney
(with the exception of school holiday periods):8.1The mother is responsible for arranging and paying for all flights for the children between Region 1 Airport and Sydney Airport at the commencement and conclusion of the children's time with her;
8.2All flights arranged by the mother for the children shall be arranged as unaccompanied minors that depart after 5pm on the first day of the period and depart before 5pm on the last day of the period;
8.3The mother or her nominee are responsible for collecting the children from Sydney Airport at the commencement of her time with the children and delivering them to Sydney Airport at the conclusion of her time with the children;
8.4The father or his nominee are responsible for delivering the children to Region 1 Airport at the commencement of the mother's time with the children and collecting them from Region 1 Airport at the conclusion of the mother's time with the children;
8.5Both parties are to arrange such travel at least 28 days prior to the scheduled travel day and advise the other party of the arrangements including copies of the tickets by email.
That for the purpose of implementing the mother's time with the children in
SydneyCanberra during school holiday periods:9.1The mother is responsible for arranging and paying for flights for the children as unaccompanied minors between Region 1 Airport and
SydneyCanberra Airport for the children at the commencement of the children's time with her;9.2The father is responsible for arranging and paying for flights between
SydneyCanberra Airport and Region 1 Airport as unaccompanied minors at the conclusion of the children's time with the mother;9.3All flights arranged by the mother and father shall depart before 12 noon on the first day of the period and depart before 3.00pm on the last day of the period;
9.4Both parties are to arrange such travel at least 28 days prior to the scheduled travel day and advise the other party of the arrangements including copies of the tickets and itinerary by email.
That each party be permitted to communicate with the children during the time the children are in the care of the other party, and for that purpose the following shall apply:
10.1That the parties communicate with the children via telephone with calls directed to either [X]’s mobile or [Y]’s mobile, or via internet/skype on a flexible and liberal basis.
10.2That the party with whom the children are spending time with will facilitate and encourage the children communicating with the other party.
10.3That the party with whom the children are spending time with ensure the children are afforded privacy during their telephone communication with the other party.
That each party keep the other informed of any serious illness or emergency that affects the children as soon as is practicable to do so.
That each party be restrained from denigrating the other party to the children or in the presence of the children and each party will use their best endeavours to ensure that no other person will denigrate the other party to the children or in the presence of the children.
That each party notify the other of any change to their address, telephone number, [X] or [Y]’s telephone numbers or their email address within 24 hours of such change occurring.
That each party be restrained from discussing adult issues with or in the presence of the children including but not limited to the discussion of these proceedings.
That each party authorise and do all things, and sign all documents and give all consents necessary to enable any relevant health or educational professional and any school attended by the children to provide to each parent copies of reports and any other information or documentation relevant to the children's health and education and to record each parents details as emergency contact persons, provided this order shall act as sufficient authority for such consent.
That the parties do all acts, sign all documents, and give all consents necessary to ensure each child maintains a current Australian passport, with the cost of same to be shared equally between the parties.
That the father be responsible for holding the children's passports while ever the children are not travelling internationally with the mother and the father will provide the mother with the children's passports should the mother be travelling internationally with the children at least 21 days prior to the proposed travel with the mother to return the children's passports to the father within 7 days of returning from the proposed travel.
Annexure B
There is no risk of harm to the children while in mine and Mr C’s care. We are love caring parents who just want happiness for all our Children. To Grant the injunction proposed by Mr Readdie would cause unnecessary and significant strain on the relationships between all parties. The children need to feel secure and loved which we both support, not a barrier between them and their step father whom before these allegations has a close and loving relationship. It would also pose a barrier between the girls and [V] for obvious reasons. While I’ll be with the children for most of their Holidays we need to consider if l get sick am hospitalised or am called away in an emergency. Mr C and I always abide by Gun Laws and will continue to do so. Unless absolutely necessary (in the case of pest control) will not allow the children to site the rifles. If on the occasion of pest control is needed we will keep the children inside at all times.
The time spent with the Children during the School Holiday periods poses some difficulties if they are only granted limited time. As both their siblings reside In NSW and they are in QLD their holidays often fall at different times. To continue to maintain the most meaningful relationships possible I propose they spend 10 Days in Town A during the mid-year holidays and 4 -5 weeks during the Christmas Break in Town A. I also propose that given 14 days’ notice the children be able to spend any weekend given with me if I am able to afford to fly to QLD to stay in QLD with the children from the Friday night to the Sunday night.
I have had difficulties with telephone contact with the children. I propose that I be able to contact the children at any time and vice versa and that the children be given privacy to talk to me freely.
I also propose that we have shared responsibility of the children that the children not are able to move from within 10km of their current residence and that All Schooling choices (as in where they attend) are agreed upon in writing.
That the mother is responsible for all airfares to Canberra or Sydney from QLD and the father pay for all flights from CANBERRA to the Region 1 or Brisbane airport.
Annexure C
All previous orders in respect of the children [X] born …2005, [Y] born …2007 and [Z] born …2001 (hereinafter "the children") are discharged.
That the parties shall have equal shared parental responsibility for the children.
That the children shall live with their father.
That the mother shall spend time with the children as follows
4.1During the Queensland School Terms:
4.1.1The mother may spend one weekend each calendar month (being the last weekend of the calendar month and in May, the Mother's Day weekend) with the children in the Region 1 area from 5:00pm Friday until 5:00pm Sunday or as otherwise agreed, conditional upon the mother providing the father with at least twenty-eight (28) days’ notice by email.
4.1.2During the Queensland mid-year school holiday periods, with the mother in New South Wales, for the first eight (8) days of the school holiday periods calculated as commencing from the last day of the school term and concluding on the seventh day of those school holidays.
4.2In the Queensland Christmas school holiday period for sixteen (16) days with the mother in New South Wales as follows:
4.2.1In 2018/2019 and each alternate year thereafter, from 20 December until 5 January; and,
4.2.2In 2019/2020 and each alternate year thereafter, from 5 January until 21 January.
4.3Such other times as agreed between the parties.
That for the purpose of implementing the mother's time with the children in Queensland in accordance with order 4.1.1 herein, the mother shall be responsible for the payment of flights and accommodation when she spends time with the children in Queensland and parents shall meet at the McDonald's Restaurant in Town B for changeover.
That for the purpose of implementing the mother's time with the children in accordance with orders 4.1.2 and 4.2 herein, the mother is responsible for organising the travel for the children from Queensland to New South Wales or the Australian Capital Territory including payment of the travel fares and the father is responsible for organising the travel from New South Wales or the Australian Capital Territory to Queensland including payment of the travel fares and each parent shall ensure such travel is arranged at least twenty-eight (28) days prior to the scheduled travel day and that the other parent is advised by email of such arrangements including a copy of the tickets.
That each parent may communicate with the children while they are in the care of the other parent via telephone or internet service with the calls to be made to either of the children's mobile telephones.
That each party keep the other informed as to any serious illness of emergency affecting any of the children as soon as reasonably practicable.
That each party is restrained from denigrating the other party or anyone else living in the household in the presence or hearing of the children and will use their best endeavours to ensure that no other person denigrates the other party or member of their respective households to the children or in the presence of the children.
That each party keep the other informed as to their residential and email address, telephone number and the children's telephone numbers and shall advise the other within twenty-four (24) hours of any change to these details.
That each party is restrained from discussing adult issues including these proceedings in the presence or hearing of the children.
That each party authorise and do all things, and sign all documents and give all consents necessary to enable any health or educational professional and any school attended by the children to provide each parent with copies of reports and any other documentation relevant to the health and education of the children to which parents are ordinarily entitled to receive and shall ensure the other parent's details are provided to the relevant authority as an emergency contact. This order acts as sufficient consent in relation to both parents obtaining information from health and education authorities.
That parties do all acts and things and give all consents necessary to ensure each child maintains a current Australian passport with the cost of any application to be shared equally by the parents.
That the father be responsible for holding the children's passports while ever the children are not travelling internationally with the mother and the father will provide the children's passports to the mother at least twenty one (21) days prior to any proposed travel should the mother advise she is travelling internationally with the children and the mother is to return the passports to the father within seven (7) days of returning from any overseas travel with the children.
CORRECTIONS
Order 6 – Order amended pursuant to sub-rule 16.05(2)(h) of the Federal Circuit Court Rules (2001).
Order 7 – Order amended pursuant to sub-rule 16.05(2)(h) of the Federal Circuit Court Rules (2001).
Order 8 – Order amended pursuant to sub-rule 16.05(2)(h) of the Federal Circuit Court Rules (2001).
Order 10(a) – Order amended pursuant to sub-rule 16.05(2)(h) of the Federal Circuit Court Rules (2001).
Order 10(b) – Order amended pursuant to sub-rule 16.05(2)(h) of the Federal Circuit Court Rules (2001).
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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Natural Justice
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Procedural Fairness
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Reliance
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Standing
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Statutory Construction
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