REDFORD & REDFORD

[2018] FamCA 33

FAMILY COURT OF AUSTRALIA

REDFORD & REDFORD [2018] FamCA 33

FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility is rebutted through the parties’ mutual disaffection – Where the father disengaged from the proceedings – Ordered the mother shall have sole parental responsibility for the children and they live with her

FAMILY LAW – CHILDREN – With whom a child spends time – Where the father maintained the children were at risk of harm in the mother’s care without bothering to participate in the trial – Concluded that no orders are made regulating the circumstances under which the children may spend time with the father – Ordered the father may maintain written communication with the children

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAC

Allesch v Maunz (2000) 203 CLR 172
Betros & Betros [2017] FamCAFC 90
Redford & Redford [2017] FamCA 114
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Ms Redford

RESPONDENT: Mr Redford

INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

FILE NUMBER: NCC 2484 of 2013

DATE DELIVERED: 29 January 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 11 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Ramsland Laidler Solicitor

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ticehurst

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)       B, born … 2006;

   (b)       C, born … 2010; and

   (c)       D, born … 2011.

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

3. The children shall live with the mother.

4. Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school attended by any of the children.

5. The parties shall take all reasonable steps to ensure the children are able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and

   (b)By the mother promptly sending to the father:

   (i)Written acknowledgement of receipt of the father’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father.

6. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address.

7. Each party is restrained from permitting the children to refer to any person other than the parties by use of the terms “Mum” and “Dad” respectively.

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

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

10. Costs are reserved for 28 days.

11. Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redford & Redford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2484 of 2013

Ms Redford

Applicant

And

Mr Redford

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders for the three children of the applicant mother and respondent father under Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The three children were born in 2006, 2010, and 2011 and, at the time of trial, were aged eleven, seven, and six years respectively. The eldest and youngest children are hampered by numerous cognitive impairments.

3. Regrettably, both for the children and the parties, several past attempts to quell this dispute have failed. The father remains convinced the children are at unacceptable risk of harm in the mother’s care but, when offered the chance to lead evidence at trial to prove the nature and gravamen of the risk, he eschewed the opportunity and declined to participate. That left the mother as the only active party and, with the Independent Children’s Lawyer’s endorsement, the adoption of her uncontested proposal for the children became inevitable.

History

1. The parties separated in June 2012, though they both continued to live in the family home until December 2012, when the father asked the mother to leave. The father remained in occupation of the family home and was then the children’s primary carer. The parties reached agreement over the time the children would spend with the mother in fortnightly cycles, which typically entailed two days in one week and three days in the next.

2. The cycle was disrupted in November 2014, when the father alleged the middle child was sexually abused while in the mother’s care. The allegation was not substantiated when investigated by the authorities and so, after an interruption of some two months, the parties restored the former regime.

3. In September and October 2015, more allegations of both sexual and physical abuse arose in respect of all three children and so the father again terminated their visits with the mother. The allegations were again unsubstantiated by the authorities after investigation, but the father refused to restore the children’s visits with the mother, so she commenced proceedings before the Federal Circuit Court seeking parenting orders in respect of the children. It was not until March 2016, when interim parenting orders were made, that the children began seeing her again.

4. The interim orders made in March 2016 provided for the children to spend four hours each week with the mother under professional supervision. Because the proceedings entailed allegations of child sexual abuse, the proceedings were transferred to this Court for determination.

5. Once before this Court, the parties reached agreement upon final parenting orders, which were then made with their consent in June 2016. The orders provided for the parties to have equal shared parental responsibility for the children, for the children to instead live with the mother, and for them to spend time with the father. Relevantly for present purposes, both parties confessed they resiled from their former reciprocal allegations that the children were at risk of harm through subjection or exposure to abuse by the other party.[1] They also both acknowledged the orders were made in the children’s best interests and were reasonably practicable to implement.[2]

   [1] Notation A.A made on 16 June 2016

   [2] Notation B made on 16 June 2016

6. In December 2016, the father again withheld the children during a Christmas visit, following another allegation that the children were abused while in the mother’s care. He reported the allegation for investigation, but again it was not substantiated by the authorities.

7. The mother commenced these proceedings in January 2017 seeking a recovery order, though the children were restored to her care in late January 2017 via police intervention at the children’s schools.[3] The revived dispute was determined by an interim hearing in February 2017, at which time the June 2016 orders were suspended and fresh interim orders were made for the mother to have sole parental responsibility for the children, for the children to live with the mother, and for the children to spend two hours each alternate weekend with the father under professional supervision at a contact centre. Those orders were not appealed and remained in place until the trial in December 2017.

   [3]Redford & Redford [2017] FamCA 114 at [4]

Procedural fairness

1. When procedural orders were made in September 2017 setting the proceedings down for trial, the father was legally represented. However, when he appeared at the trial in December 2017, he was not. The loss of legal representation in the intervening months obviously interrupted his preparation because, in breach of the procedural orders, he did not pay his share of the trial fee and his trial affidavits were filed and served late.[4] He was permitted to rely upon his late affidavits over the mother’s objection, but the commencement of the trial was delayed to enable him to attend the registry office to either pay his share of the trial fee or secure waiver of the fee if warranted by his financial circumstances.

   [4] Orders 2, 5, and 7 made on 19 September 2017

2. The commencement of the trial was initially postponed for only about 20 minutes, but the father and the persons who accompanied him to Court left the Court precincts during the adjournment and did not return. Consequently, the start of the trial was delayed until 12.00 noon to ensure some misadventure had not befallen the father but, when by then he had neither returned nor notified the Court of his inability to return, the trial was commenced in his absence on the joint application of the mother and Independent Children’s Lawyer.

3. Most probably, for reasons which remain unknown, the father decided to disengage from the proceedings and renounce his opportunity to be heard about the future of his children. If the father was unavoidably detained away from the Court and did not voluntarily choose to abandon the proceedings, then he is not without remedy if he disagrees with the orders pronounced in his absence (see Allesch v Maunz (2000) 203 CLR 172; Taylor v Taylor (1979) 143 CLR 1), but the Court is not required to indefinitely delay the finalisation of the proceedings merely because a party declines to appear (see Allesch v Maunz at 182-186, 189-191; Taylor v Taylor at 4).

Proposals and evidence

1. The mother pressed for only a selection of the orders set out within her Amended Initiating Application filed on 5 October 2017. She sought sole parental responsibility for the children (Order 1), for the children to live with her (Order 2), a mechanism for the children and father to communicate in writing (Order 5), the parties’ obligation to inform each other of their postal addresses (amended Order 6), enablement of the father to obtain the children’s school reports and school photographs (Order 7), and an injunction against the children’s exposure to any denigration of the parties (Order 9). The mother expressly intended that there be no orders regulating the children’s expenditure of time with the father. The Independent Children’s Lawyer supported her application in all respects.

2. The Independent Children’s Lawyer additionally sought an injunction precluding the father from attending at or near the mother’s residence and the children’s schools. The order was intended to restrain the father from subverting the intent of the orders by visiting the children at their schools or by spying on them around their home. The mother acceded to the injunction proposed by the Independent Children’s Lawyer.

3. In support of the joint proposal, the mother and Independent Children’s Lawyer relied upon:

   (a)The mother’s trial affidavit, filed on 16 November 2017;

   (b)The trial affidavit of the mother’s partner, Mr G, filed on 16 November 2017;

   (c)The mother’s short updating affidavit, affirmed on the first day of trial, deposing to very recent and material developments between her and the father’s wife, which was marked as an exhibit;[5]

   (d)The Memorandum dated 8 June 2016, prepared by the Family Consultant; and

   (e)The Family Report dated 21 August 2017, prepared by the Family Consultant.

   [5] Exhibit M1

4. The mother and Mr G were not required for cross-examination by the Independent Children’s Lawyer and neither the mother nor Independent Children’s Lawyer required the Family Consultant for cross-examination.

5. Given the father’s apparent abandonment of the proceedings, no heed was paid to the last application he made in respect of the children in his Amended Response filed on 3 February 2017, which application must be dismissed. He did not thereafter file any further Amended Response, as was permitted by procedural orders.[6] In view of the father’s failure to make himself and his witness (his wife, Ms H Redford) available for cross-examination, their affidavits filed on 30 November 2017 are disregarded.

   [6] Order 4 made on 19 September 2017

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

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

3. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

4. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. There was no controversy about the importance of the children’s relationships with both parties. The children certainly derive benefit from both of their filial relationships, which situation should desirably continue unless the maintenance of those relationships exposes them to an unacceptable risk of harm. Each party contended the other did expose the children to the risk of harm, which risk could only be averted by imposing quite sever restrictions upon the children’s interaction with the other.

2. In the father’s case, he contended the children were exposed to the risk of sexual and physical abuse in the mother’s care, which is an allegation of primary importance under s 60CC(2)(b) of the Act.

3. In the mother’s case, she contended the children were exposed to the risk of psychological harm in the father’s care by reason of his unjustified use of them as pawns in the litigious dispute, which is an allegation worthy of consideration under s 60CC(3) of the Act, since it was contended to be an aspect of the father’s impaired parenting capacity and his deficient attitude to the children and the responsibilities of parenthood.

Section 60CC(2)(b)

1. The father’s ardent belief in the risk of harm to which the children are allegedly exposed by the mother has been a constant feature of the parties’ conflict over the last few years.

2. The evidence tends to suggest the father still honestly believes the children are liable to be both sexually and physically abused while in the mother’s care. At times he contended the perpetrators of such abuse were the mother, Mr G, and other adults within their milieu. His allegations extravagantly included their complicit intoxication and sexual abuse of the middle child, including his anal rape, and the mother’s forceful striking of the eldest child’s mouth causing dislodgement of her tooth.[7] In April 2016, the father even arranged for the middle child to be medically tested for the presence in his body of the genital herpes virus. The test was negative, but as was observed during the interim hearing between the parties in February 2017:[8]

   Plainly enough, the father would not have submitted the child to that test unless he entertained a real suspicion the child had, in some way, been sexually molested.

   [7]Redford & Redford [2017] FamCA 114 at [38]-[41]

   [8]Redford & Redford [2017] FamCA 114 at [25]

3. The mother harbours some doubt about the genuineness of the father’s belief, most probably because he recently inconsistently told the Family Consultant he would like the children to spend unsupervised time with her on at least one weekend each month, but possibly as frequently as on each alternate weekend.[9] Ostensibly, such a proposal is irreconcilable with his genuine belief in the children’s exposure to the risk of harm in her care. In addition, the mother is aware the investigating police officers believe the past allegations of child abuse were fabricated by the father and/or his wife. The father and his wife know that to be true because they admitted it.[10]

   [9] Family Report, para 28

   [10] Memorandum, paras 53, 61

4. Regardless, if the father asserts his genuine belief in the children’s exposure to the risk of harm, he should be taken at his word, even if the evidence does not objectively measure up. It must be expected he will act consistently with his asserted honest beliefs.

5. The mother denied abusing the children in any way and was available for cross-examination on her evidence.[11] Inexplicably, the father did not take the opportunity to test her credibility, but the Independent Children’s Lawyer was completely satisfied with her credibility.

   [11] Mother’s affidavit, paras 164-165, 178

6. Each one of the father’s allegations about the children’s abuse has been reported and, upon investigation, found wanting. None has been substantiated. The eldest child was formally interviewed once (in February 2016) and the middle child was formally interviewed twice (in September 2015 and February 2016). The two youngest children were even physically examined.[12]

   [12] Family Report, para 12

7. Despite the allegations of the children’s physical abuse, as was observed during the interim hearing between the parties in February 2017:[13]

   …not a skerrick of evidence was placed before the Court to verify the sufferance of any physical injury of any sort by any of the children at any time.

   [13]Redford & Redford [2017] FamCA 114 at [41]

1. Save for the middle child reporting the mother’s physical abuse to the Family Consultant in June 2016,[14] there is no evidence at all that any of the children have repeated the allegations of abuse to anyone other than the father and his wife.[15] The children certainly did not repeat any allegations of their abuse to the investigating authorities on any of the occasions they were interviewed. The middle child actually disavowed his abuse by anyone at any time when he spoke to the Family Consultant on the second occasion in August 2017.[16]

   [14] Memorandum, paras 65-66

   [15] Memorandum, para 75; Family Report, para 56

   [16] Family Report, para 44

2. In August 2017, the father reported his belief to the Family Consultant the middle child was “chronically anxious and stressed”,[17] which perception tallied with the Family Consultant’s assessment he was “anxious”.[18] But the middle child’s anxiety is not necessarily a sign of his victimisation while in the mother’s care, as the father seemed to wrongly assume. It is just as consistent with him being grievously troubled by being the focus of the parties’ acute conflict as it is with the father’s theory he is distressed by his past abuse. The theory advanced by the father to explain the middle child’s anxiety is quite inconsistent with the child’s obvious affection for the mother.[19] Significantly, there was more than a hint in the evidence that the father’s behaviour tended to align the children with him against the mother.[20]

   [17] Family Report, para 39

   [18] Family Report, para 44

   [19] Memorandum, paras 62, 70; Family Report, para 49

   [20] Memorandum, paras 62, 63, 65, 66, 69, 71, 76; Mother’s affidavit, paras 43(i), 46, 47

3. The father and his wife are mistaken if they believe the children, or any of them, repeated any of the allegations to their counsellor. On the available evidence, only the father’s wife told the counsellor of the abuse allegations. The counsellor only ever observed the middle child to be emotionally stressed,[21] which observation of his demeanour was entirely consistent with the Family Consultant’s assessment.

   [21] Memorandum, paras 48, 55-57

4. The admissible evidence did not demonstrate the children are in need of protection against any physical or psychological harm they are liable to suffer by their subjection or exposure to any form of abuse in the mother’s care. Inferentially at least, the father’s withdrawal from the proceedings corroborates that finding. Surely he would not have disengaged from the dispute at the last minute if he honestly believes he has the evidence to substantiate the existence of such risk. If he did, but disengaged regardless, then it necessarily follows his concern for the children ranks lower in priority than whatever other interest motivated his disengagement.

5. The father also complained to the Family Consultant that the children are at risk of harm by reason of the mother’s neglect of them,[22] but his complaint lacked any evidentiary support. The Family Consultant found the mother to be thoughtful about the children’s various needs and well organised in respect of them.[23] The mother’s unchallenged evidence demonstrated her commitment to ensuring the children’s needs are properly met.[24]

   [22] Family Report, para 30

   [23] Family Report, para 36

   [24] Mother’s affidavit, paras 157-158

6. As the mother and Independent Children’s Lawyer submitted, the children are now happily ensconced in the mother’s care. They attend school and regularly receive multiple medical interventions under the National Disability Insurance Scheme, so they are visible in the community and are constantly monitored by teachers and medical providers. The father can therefore have some confidence that any future abuse or neglect of the children would likely be exposed and investigated.

Children’s best interests – additional considerations

1. Few factors prescribed by s 60CC(3) of the Act were addressed by the mother and Independent Children’s Lawyer, so only those which are germane and influential are the subject of discussion.

2. The father has historically been coy about revealing his residential address but, according to the evidence, he now lives a long distance away from the mother and children. Consequently, there would be considerable practical difficulty and expense involved in ensuring the children spend time with him, particularly if the professional supervision of their visits is necessary, as both the mother and Independent Children’s Lawyer contended was the case.

3. When litigation was first commenced between the parties in December 2015, the father refused to disclose his residential address within the Newcastle environs.[25] When those proceedings were consensually concluded by final parenting orders made in June 2016, the father chose to move to rural NSW,[26] some seven hours’ drive away from the mother and children in Newcastle,[27] so it was expected the children would only spend time with him intermittently, mostly during school holiday periods.

   [25] Family Report, para 15

   [26] Family Report, para 19

   [27] Family Report, para 59

4. In the following months, he apparently returned to live in Newcastle, but he refused to disclose his address, even at the interim hearing between the parties in February 2017.[28] When interviewed by the Family Consultant most recently in August 2017, he revealed he moved from Newcastle back to rural NSW some months before in April 2017.[29] The affidavit filed by the husband only weeks before trial disclosed his residential address in rural NSW. That was the first time within the last few years he disclosed his address to the mother.[30]

   [28]Redford & Redford [2017] FamCA 114 at [2], [50]

   [29] Family Report, paras 4, 23

   [30] Mother’s affidavit, para 37

5. However, more recently, the father’s wife persuaded police to take out a provisional family violence order for her protection from the mother, at which time she informed police she was “so fearful that she has moved interstate and refuses to provide her address to any organisations”.[31] Since the husband made himself unavailable for cross-examination, it remains unknown whether he also moved interstate with his wife. As a result, there is still considerable uncertainty about his current residential address.

   [31] Exhibit M1, Annexure A (page 7 of 10)

6. The father identifies as an indigenous man and regards the children to be indigenous.[32] He believes the mother will not promote their cultural identity,[33] which could be right. He is the one best placed to provide the children with cultural tuition, but his disengagement from the litigation deprives his complaint of any force.

   [32] Family Report, para 5

   [33] Family Report, para 31

7. The father does not properly fulfil his obligations to maintain the children because substantial child support arrears have accrued since the children were restored to the mother’s primary care in June 2016.[34]

   [34] Mother’s affidavit, paras 147, 189

Conclusions and orders

1. Neither the mother nor Independent Children’s Lawyer contended the presumption of equal shared parental responsibility ceased to apply because of reliable evidence of child abuse (s 61DA(2)(a)). Rather, they contended the evidence rebutted the presumption of equal shared parental responsibility (s 61DA(4)) because it proved the parties’ mutual disaffection precluded them from sharing parental responsibility in the manner the law would require (s 65DAC). They were right. The parties did not formerly actually share parental responsibility, despite the order for equal shared parental responsibility made with their consent in June 2016. The father’s past text messages to the mother have been intemperate,[35] so they cannot communicate easily.

   [35] Mother’s affidavit, para 54

2. Given the father’s disengagement from the litigation, it is only practicable to order that the children live with the mother and so she should be vested with exclusive parental responsibility for them.

3. What arrangements, if any, should then be made for the children to spend time with the father? The mother would like the children to have meaningful relationships with the father but, as she told the Family Consultant, she fears his involvement of them in the conflict means there is no option but to require professional supervision of the children’s engagement with him.[36] Until the father’s abandonment of the litigation at the commencement of trial, that was the proposal she actually made.[37] The Family Consultant confirmed that the father’s repetitive termination of the children’s relationships with the mother because of false allegations about their abuse amounts to their “emotional abuse” which likely has a “very significant negative impact” upon them.[38] It does not matter that the father might honestly believe he was acting protectively because, if the abuse allegations are factually untrue, the adverse implications for the children are the same.

   [36] Family Report, para 27; Mother’s affidavit, para 190

   [37] Amended Application filed 5/10/17, Orders 3-4

   [38] Memorandum, paras 71-72

4. Most probably, had the father remained engaged with the litigation, the prospect of his interaction with the children being supervised would have featured prominently because the evidence suggested the cycle of unsubstantiated abuse allegations and consequent interruptions to the implementation of orthodox parenting orders is liable to continue in the future. As the Family Consultant reported:[39]

   It would appear highly likely that [the father and his wife] will continue to be hypervigilant to the slightest negative comment the children might make about [the mother or her partner] and interpret that as (further) evidence of abuse and to subsequently continue to report that evidence to [the child welfare authorities]. It also appears highly likely that [the father] will continue to act on his concerns and to continue to unilaterally retain the children…

   [39] Family Report, para 57

5. Of course, there are inherent problems in making orders that subject children and a parent to permanent supervision of their interaction (see Betros & Betros [2017] FamCAFC 90 at [13]). Taking the punt on making permanent orders for the children to only visit the father at a contact centre would be unwise when it remains unknown whether he would commit to implementation of such orders. His voluntary decision to abandon interest in the outcome of the proceedings invites speculation about his future intention to also abandon his interest in the children. There would be no utility in making orders for the children to spend supervised time with the father if he fails to attend the supervised visits. In fact, there would be emotional detriment for the children. They love him and want to see him. If the mother takes them to the contact centre and they expect to see the father, their hopes will be dashed if he fails to attend. There is a real risk the children will feel unimportant to him and wonder what they have done to warrant his apparent loss of interest in them. Their self-esteem should not be compromised in that way.

6. The Family Consultant considered it was only feasible for the children to spend unsupervised time with the father “if and only if” he agreed to refrain from reporting allegations of the children’s abuse to the authorities and from disobeying parenting orders without his simultaneous recourse to the Court with evidence to substantiate the need to vary such orders, pending investigation of the allegations.[40] Not only did the father fail to commit to such restraint, he audaciously maintained the children were still at risk of harm in the mother’s care without bothering to participate in the trial to prove it. Acceptance of the Family Consultant’s advice forecloses any orders for the children to spend unsupervised time with the father.

   [40] Family Report, para 62

7. For those reasons, no orders are made regulating the circumstances under which the children may spend time with the father. The mother will have exclusive parental responsibility for them, which authority enables decisions about if, when, and how the children might spend time with the father. She will have the unfettered discretion to decide whether some form of personal interaction between the children and the father is warranted in the future and, if so, how it will be achieved.

8. An injunction is made restraining the father from attending at or near to the mother’s home or the children’s schools. An order to that effect minimises the chance of the father trying to abduct the children. While there is no evidence he has ever abducted them, he has withheld them from the mother on several occasions in the past for weeks or months at a time. If he has no intention to abduct the children, he suffers no prejudice by his submission to such an injunction.

9. Orders are made enabling the father to maintain written communication with the children. Should he choose to do so, his occasional written communication with them will prove to them he wishes to retain his paternal link.

10. The evidence suggests the children have, on occasions, referred to the parties’ partners by the emotionally-loaded terms of “Mum” and “Dad” rather than by their first names. As the Family Consultant advised, that practice should be discouraged.[41] An injunction is made to restrain it.

    [41] Memorandum, para 83

11. The remaining orders should be uncontroversial, since they could not be the subject of rational dispute.

12. On the admissible evidence, the orders set out at the commencement of these reasons most ably promote the children’s best interests.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 January 2018.

Associate: 

Date:  29 January 2018