Rio and McGrath

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIO & MCGRATH

[2013] FCCA 41

Catchwords:
FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – sole parental responsibility – family violence issues – two children – girls aged 10 years and 9 years – meaningful relationship – where evidence that children’s relationship with father has completely broken down – where recommendations made by Family Consultant in Family Report – where best interests of the children accord with recommendations in Family Report – where father no longer presses claim that children should reside with him – where order made that children should spend time with their father in accordance with their wishes.
COSTS – Costs of the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD,61DA,65DAA,69ZV

Cases cited:
Rio & McGrath [2010] FMCAfam 559

Applicant:

MS RIO

Respondent:

MR MCGRATH

File Number:

SYC 504 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

11 – 13 July 2012

Date of Last Submission:

13 July 2012

Delivered at:

Sydney

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicant:

Ms Nash

Solicitors for the Applicant:

Kinghan & Associates

Counsel for the Respondent:

Mr Wetmore

Solicitors for the Respondent:

Direct Brief

Counsel for the Independent Children’s Lawyer:

Mr Ladopolous

Solicitors for the Independent Children’s Lawyer:

Hamish Cumming Family Lawyers

ORDERS

The Applicant mother is to have sole parental responsibility for the children of the marriage [X] born [in] 2001 and [Y] born [in] 2003.
The children [X] and [Y] are to live with the mother.
The mother is to provide the father at least six (6) weeks notice in writing of any proposal to enrol either or both of the children in a new school including any language school.
The mother is to take into consideration any views expressed by the father in relation to any proposal made by the mother in accordance with Order (3) above.
Within 21 days of the date of these Orders the mother is to do all acts and things and sign all documents necessary to authorise any school which the children may attend from time to time to provide to the father copies of all reports, circulars, newsletters, notices, information about school photographs and other documents in relation to the children, including copies of all school reports, reports on school progress and behavioural issues and any other relevant notices.
Within 21 days of the date of these Orders the mother is to provide the father with the names, addresses and telephone numbers of the children’s treating medical practitioners and keep the father informed of any new practitioner.
Within 21 days the mother is to provide authorities to the children’s treating medical practitioners to enable the father to obtain information about the children’s medical status from any of those medical practitioners and provide an authority to any new practitioner as and when necessary.
The mother must notify the father in writing within seven (7) days if one or other of the children have been:
(a)admitted to hospital;
(b)involved in a medical emergency; or
(c)referred to a specialist medical practitioner
and the mother must do all acts and sign all documents necessary to authorise the release of information and reports to the father from any medical practitioner or hospital as requested by him.
The mother is to provide the father with her current residential address, telephone number and a contact email address and notify him within 24 hours of any change to any of those details PROVIDED THAT the father is restrained by injunction from going within one hundred (100) metres of the mother’s residence.
The father is to provide to the mother details of his contact email address and telephone number and notify her within 24 hours of any change to any of those details.
The mother is to make available to the children the father’s current email address and telephone number.
The mother is to permit the children or either of them to call the father on the telephone or contact the father by email at any reasonable time that they request to do so and do all things reasonably necessary to assist the children to do so.
The children are to spend time with the father in accordance with their wishes and in the event that the children or either of them inform the mother that they wish to spend time with the father then the mother is to do all things necessary to facilitate that request.
The father is permitted to send each child gifts and cards addressed to each child at the school they attend from time to time, provided that he has obtained the school’s agreement to do so, and in the event that the school does not agree to receive cards or gifts addressed to the children and pass those cards or gifts on to the children then the father may send cards and gifts by registered post addressed to the children at their home address.
The mother and the father are restrained by injunction from abusing, criticising or making derogatory remarks about the other parent in the presence or hearing of either or both of the children.
The mother and father are restrained from discussing these proceedings with the children.
The mother must arrange for the two children to attend upon the Independent Children’s Lawyer within seven (7) days of the date of these Orders for the purpose of the Independent Children’s Lawyer explaining these Orders to the children.
Upon the Independent Children’s Lawyer having explained the above Orders to the children in accordance with Order (17) then the Independent Children’s Lawyer is discharged.
The mother and father are to pay the costs of the Independent Children’s Lawyer fixed in the sum of $11,490.00 in equal shares. The costs are to be paid out of the statutory controlled moneys account entitled “Kinghan & Associates in Trust for Mr McGrath and Ms Rio” created by Order 8.4 made on 21 April 2010.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 504 of 2010

MS RIO

Applicant

And

MR MCGRATH

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for parenting orders by the mother of the parties’ two daughters, [X], now aged 11 years and 6 months, and [Y], now aged 9 years and 10 months. The two children live with their mother.

Orders Sought

The mother seeks Orders that:
a)she should have sole parental responsibility for the children;
b)she should authorise any school that the children attend to forward to the father copies of all reports and other information related to the children and their progress;
c)she should authorise any medical or health care professional who may attend the children to provide the father with information as to the welfare of the children and any treatment provided to them;
d)the father may write letters and cards and send presents to the children and the mother shall give them to the children; and
e)neither party shall denigrate the other in the presence or hearing of the children.
The mother does not seek any order that the children should spend any time with their father or speak to them on the telephone. Presumably she seeks an order that the children should continue to live with her.
The mother also seeks property orders.
The father seeks orders that the children should either live with him or that he have reasonable access to them with full co-operation of the mother. He also seeks property orders.
The Independent Children’s Lawyer proposes orders to this effect:
a)That the mother have sole parental responsibility for the two children;
b)That the mother should provide the father with at least six weeks notice in writing of any proposal to enrol the children in a new school and take his views into consideration before making a final decision;
c)That the mother give authority to the children’s schools and treating medical practitioners to provide the father with information about the children;
d)That the children should live with the mother;
e)That the parties provide each other with their residential addresses;
f)That the children be permitted to call or contact their father by email;
g)That the children should spend time with their father according to their wishes; and
h)That the father would be permitted to send the children gifts and cards.
It will be noted that the Independent Children’s Lawyer only proposes that the children should spend time with their father according to their wishes.

Background

The parties were married [in] 1992. They separated in December 2005 but remained living under the same roof until the mother left the former matrimonial home on 20 May 2009, taking the two children with her.
The father was born [in] 1965, so he is now 47 years of age. The mother was born [in] 1968, so she has recently attained the age of 45 years.
There are two children of the marriage.
[X] was born [in] 2001. She is currently aged 11 years and 6 months.
[Y] was born [in] 2003. She is aged 9 years and 10 months.
The Applicant mother is from China and met the Respondent father in Japan. The parties were married in China. The father returned to Australia shortly after the marriage but the mother remained living in China, where she [occupation omitted].
The mother arrived in Australia in January 1994. She later sold the [business] in China.
The mother, who had been working in [omitted], stopped work about a month before the parties’ first child, [X], was born. She returned to work on a part-time basis in April the following year. The baby [X] lived with her maternal grandmother in China for 8 months.
The mother became pregnant with the parties’ second child, [Y] and stopped work in [omitted] 2003, about a month before [Y] was born. [Y] was born [in] 2003. The maternal grandmother arrived in Australia to assist with the care of the children and stayed for a year.
The mother returned to work part-time in January 2004. The relationship between the parties began to deteriorate. The mother complained that the father was verbally abusive to her and physically chastised [X].
The mother attempted suicide in late 2004 and was admitted to hospital. She consulted a psychiatrist on a monthly basis until 2006.
The parties separated but remained living under the same roof at the end of 2005. They remained living under the one roof until the mother left with the children on 20 May 2009. The father remained living in the former matrimonial home.
The parties arranged for the children to spend time with their father from 3:00 pm to 5:30 pm on Friday afternoons and from 10:00 am until 4:30 pm on Saturdays.
On 12 November 2009 the mother obtained an Apprehended Violence Order against the father at [omitted] Local Court. On 3 December 2009 that Order was set aside and a fresh interim Apprehended Violence Order was made.
The mother alleges that on 9 January 2010 the child [X] told her that her father had slapped her.
On 29 January 2010 the mother commenced proceedings by filing an Application for parenting and property orders. The Application was returnable on 22 March 2010.
The father filed a Response on 1 March 2010.
The mother filed a Notice of Child Abuse or Family Violence on

3 March 2010.
In Part E of the Notice, at paragraph 6, the mother set out what she claimed were the acts that she alleged that constituted abuse. They were:
1. The Respondent has slapped the children in the past in particular [X] who he continues to slap for the slightest infringement and he frequently shouts at them.
2. The Respondent says very racist things to the children. On one occasion when the children came back from contact with the Respondent they told the Applicant that he was saying bad things about the Applicant and about Chinese in general. He was talking about the teachers that teach the children piano and was saying that they were all ugly and as they were Chinese all they wanted was money. The children told him that they were Chinese and the Applicant was Chinese. The Respondent said to them that they weren’t Chinese they were Iranian.
3. The Respondent speaks to the children as though they are adults.
4. The Respondent manipulates the children, telling them what they should say to the Applicant in relation to time they want with the Respondent.
5. The Respondent shouts at the children.
In Part G of the Notice, the Applicant set out what she claimed were the acts that constituted family violence:
1. The Respondent was very abusive to the Applicant both physically and mentally before and during their marriage. When they were students and living together he poured petrol over the Applicant and held a cigarette close to her tormenting her with it. The Applicant ended up with burning to her skin as a result of the petrol.
2. The Respondent has pushed and slapped the Applicant over the years and called her names like “pumpkin head”, “short woman” and “big head small brain”.
3. When the Respondent visited the Applicant in hospital after she had attempted suicide the Respondent said to her “If you want to kill yourself those tablets won’t do it”.
4. The Respondent continued to harass the Applicant after she left the former matrimonial home, telephoning her and coming to her [workplace]. Several times he has said to her words to the effect “one of us has to die or four of us have to die”.
5. Since the making of an AVO against the Respondent on the 12 November 2009 the Respondent has telephoned the Applicant twice, visited her [workplace] and also slapped [X].[1]
[1] Notice of Child Abuse or Family Violence filed 3.3.2010 Parts E and G
The mother’s Application was returnable on 22 March 2010. The parties were directed to attend a Child Dispute Conference with a Family Consultant.
The parties attended the Child Dispute Conference on 26 March 2010 and were interviewed separately. The Family Consultant reported that no agreement was reached in relation to when and how the children should spend time with their father and whether or not that time needed to be supervised.
The Family Consultant noted in the Family Consultant Memorandum to Court that there were significant allegations of family violence.
The Family Consultant recommended that:
a)A Family Report should be prepared;
b)An Independent Children’s Lawyer should be appointed; and
c)Judicial decision required on an interim as to whether the children spend time with their father and if so whether their time together should be supervised.
On 30 March 2010 the Court ordered that the father was to have contact with the children by telephone on two occasions each week and an Independent Children’s Lawyer was appointed to represent the interests of the two children.
On 21 April 2010 the parties entered into consent orders that they would sell the former matrimonial home and place the net proceeds of sale into a Statutory Controlled Moneys Account in trust for the parties.
On 12 May 2010 an interim hearing took place. An Order was made that:
UNTIL FURTHER ORDER the order made on 30 March 2010 is varied so as to provide that the Father is to have telephone conversation with the children [X] born [in] 2001 and [Y] born [in] 2003 to take place each Wednesday and Sunday at 8:30 pm for a period not to exceed 15 minutes on each occasion.[2]
[2] Rio & McGrath [2010] FMCAfam 559
On 17 June 2010 the Application for parenting and property orders was listed for final hearing on 9 to 11 March 2011.
The final hearing did not proceed on 9 March 2011. Instead, the parties entered into consent orders providing that:
1. That the Father shall spend time with the children-
·    [X], born [in] 2001
·    [Y], born [in] 2003
as follows
1.1    As supervised by [Ms W] Family Services or [omitted] Family Services:
1.1.1 for one hour each alternate Saturday for 2 occasions at a time as agreed and failing agreement as determined by the Supervisor
1.1.2 on 4 occasions, for 1.5 hours each alternate Saturday, following conclusion of time at Order 1.1.1 and such time by agreement or as determined by the Supervisor.
2. That following the conclusion of time provided for at order 1, the Supervisor shall provide a report to the ICL.
3. In the event that issues of concern are raised in the report, the ICL has liberty to relist the matter on 7 days notice.
4. In the event no issues of concern are raised in the report, the time the father spends with the children shall progress as follows.
5. for 3 hours each alternate Saturday at a time agreed by the parties and failing agreement from 10am – 1pm with changeover to occur at[3]
6. That the father shall be responsible for all costs associated with the period of supervised time.
[3] No venue was recorded in the orders
A Family Report was ordered. The proceedings were allocated dates for final hearing from 7 to 9 March 2012.
On 17 June 2011 the parties entered into consent orders providing that the parties would attend the “Keeping Contact” program administered by Unifam.
The final hearing did not take place on 7 March 2012, due to judicial unavailability.
The Applications were heard on 11 to 13 July 2012.

Evidence

For the parenting proceedings, the Applicant mother relied on:
a)Her Application filed on 29 January 2010;
b)Her affidavit filed on 29 January 2010 (affirmed that same day); and
c)Her affidavit of 22 June 2012 filed on 25 June.
The father relied on the following affidavits:
a)His affidavit of 18 March 2010;
b)His affidavit of 19 March 2012;
c)His affidavit of 13 June 2012;
d)The affidavit of Mr M, a Forensic Psychologist, affirmed 26 June 2012;
e)The affidavit of Ms S sworn or affirmed on 13 February 2012;
f)The affidavits of Ms V sworn or Affirmed on 18 March 2010 and 15 June 2012;
g)The affidavit of Ms K sworn or affirmed on 28 June 2010; and
h)The affidavits of Mr W sworn or affirmed on 19 March 2010 and 28 June 2012.
Ms K, Ms V, Ms S and Mr W were not required for cross-examination.
The mother deposed that she was always the main caregiver for the children. Her mother came from China to help her after the birth of the children as the father did not give her any assistance. She sent [X] to live with her mother in China for a year when she was 10 months old so she could return to work.
It was the mother’s evidence that the father spent very little time with the children and even after he was having limited contact with them he did not know how to interact with them. She complained in her affidavit of 29 January 2010 that:
The Respondent has slapped the children in the past in particular [X] who he continues to slap for the slightest infringement and he frequently shouts at them.[4]
[4] Affidavit of Ms Rio 29.1.2010 at paragraph [20]
The mother also deposed that the father had been very abusive to her physically and mentally. As a result, she made an attempt on her life:
Towards the end of 2004 I became very depressed and attempt4d suicide. I consider that this was a result of the Respondent’s abuse and the breakdown of our marriage. At that stage the Respondent was also suffering from depression and had been prescribed anti-depressants. I took approximately 15 of his tablets. The Respondent was out at the time and he came back and discovered me and telephoned the ambulance. When the Respondent came to see me the following day he said to me words to the effect “If you want to kill yourself those tablets won’t do it.” I stayed in hospital for one night and was then allowed home however as a result of my suicide attempt I was seen by social workers and referred to [omitted] Mental Hospital for counselling. I r3ceived counselling from a psychiatrist at the hospital once a month until 2006 and I was on anti-depressants for some time.[5]
[5] Ibid at [22]

The mother went on to depose:
I have recovered fully from my depression, however I fear that the Respondent is getting worse from his behaviour towards the girls, that is the slapping, the racist remarks and the manipulation.[6]
[6] Ibid at [23]
Further, the mother stated in her affidavit that the father kept harassing her after she left the former matrimonial home, so she went to the Police, who applied for an Apprehended Domestic Violence order on her behalf.
On 12 November 2009 an Apprehended Domestic Violence Orders was made by [omitted] Local Court, in the absence of the father. The mother deposed:
In any event he has now applied to have the AVO revoked and that matter is for hearing in April 2010…[7]
[7] Affidavit of Ms Rio 29.1.2010 at [23]
In her trial affidavit of 22 June 2012, the mother deposed that she had refused to let the father have contact with the children from about early February 2010 unless the time was supervised. Although the father was able to have telephone contact with the children:
…this contact has not always been consistent and since June 2011 he has not telephoned the children at all.[8]
[8] Affidavit of Ms Rio 22.6.2012 at [3]
The mother also referred to the consent orders in March 2011 that provided for the father to spend time with the children supervised by [Ms W] Family Services:
The children very reluctantly went for such contact for two occasions however on the third occasion they again showed reluctance and the contact was not pressed by Ms W the supervisor.[9]
[9] Ibid at [5]
The mother deposed that, as a result of the consent Orders of 29 June 2011 she enrolled in the “Keeping Contact Program” and had at the time of her affidavit attended fourteen sessions. She stated:
I intend to continue participating in the programme as I find it informative and of assistance with the children.[10]
[10] Ibid at [6]
The current arrangements for the children are that they live with the mother in rented accommodation, where there are two students boarding with her, one of whom, Ms G, is a family friend and helps her with the children.
The mother described in her affidavit what she saw as the children’s views about spending time with their father:
7. I do not question the children about their relationship with the Respondent however they have told me that they do not want to see the Respondent. With telephone contact [X] has always been adamant that she does not want to speak to the Respondent and [Y] does not seem that concerned whether she speaks to him or not…
12. The children appear to be a lot happier and confident since they have not had contact with the Respondent, in particular [X] the eldest child who used to be very quiet and looked quite sad at times. She now appears to be a lot happier and is very talkative. Both the children undertake counselling once a month with Dr E, Psychologist. I consider that the counselling is helpful to the children.[11]
[11] Affidavit of Ms Rio 22.6.2012 at [7] and [12]
The mother gave oral evidence with the assistance of an interpreter in the Mandarin language. She was cross-examined by Mr Wetmore, who appeared for the father, and then by Mr L, counsel for the Independent Children’s Lawyer.
In cross-examination by Mr Wetmore of counsel, the mother agreed that when the Apprehended Domestic Violence Order came on for hearing in December 2010 it was dismissed.
The mother maintained her evidence that the children were basically afraid of their father and did not recognise him when they saw him at a bus stop.
She reiterated her view that the children were afraid of the father and did not want see him in cross-examination by counsel for the Independent Children’s Lawyer. She said that she was fearful of the father’s influence on the girls. She denied that she did anything to influence the children against their father.
The mother said she believed that the father loves his daughters and said that she had told them that when they are older they might want to see him.
The father deposed in his affidavit of 18 March 2010 at paragraph 26:
In the event that I am unable to see my children except in a supervised Contact Centre, I will wait until I see my children in the normal course. I do not wish my children to wonder why I need to be supervised, and therefore think that I have done something wrong, to make me a danger to them. Even if they do not think that now, they might think that later, little older. I am not a danger to them, and never will be.[12]
[12] Affidavit of Mr McGrath 18.3.2010 at paragraph [26]
The father’s affidavit sworn on 19 March 2012 relates how he attempted to speak to [Y] on the telephone on one occasion but she refused to talk to him and hung up the phone.
The father expressed the view in separate paragraphs of his affidavit that he believed that the mother had “brain-washed” the children.[13]
[13] Affidavit of Mr McGrath 19.3.2012 at paragraphs [5] and [13]
The father annexed to his affidavit a Contact Report dated 28 April 2011 from Ms W, social worker, giving her observations of the father’s time with the children under her supervision on 19 March and 2 April 2011.
In her Report, Ms W described the children as being tearful and quiet when in the presence of their father. [X] said to him:
“You are just being nice because there is a stranger in the car. I know what you are really like.”[14]
[14] Ibid Annexure “A”
Ms W reported that the girls did not respond when their father farewelled them. On the return trip [X] said that she did like seeing her father and that he made her scared, to which [Y] agreed.
On the second occasion, 2 April 2011, Ms W reported that the children said they did not want to go but walked willingly to the car with her. On this occasion, although the children did not display any physical contact or verbal interaction with their father, they listened to him when he explained the skills of badminton and then practised hitting a shuttle cock to each other “with determination and interest”. On this occasion the children accepted food and drink from the father. However, they did not engage in eye contact with him or answer any of his questions other than in monosyllables.
On 16 April 2011, when Ms W attended the mother’s [workplace] to collect the girls, they were both crying and saying that they did not want to go as they were very scared of their father. Ms W reported:
My words did not change their view around their father and again they expressed their fear of him and their concerns about seeing him for another visit. As they were crying and still seated I said I would go and wished the family well. I said I would not force them to attend the visit as that was not my role.[15]
[15] Affidavit of Mr McGrath 19.3.2012 Annexure “A”
The father gave oral evidence and was cross-examined. He said that he was living with two people but did not want to give their names. He said that he was on anti-depressant medication and was seeing a psychiatrist regularly.
The father said that he had refused to see the children under supervision from January 2010. The reason why he did this was, what would the children think? He said he did not taken any responsibility for the relationship he had with the children breaking down because he would not see them under supervision. He said it was all his wife’s fault.
The father said that when he saw the children under the supervision of Ms W he was surprised at the way the children reacted. The first thing [X] said to him was:
“I know you’re acting”.
He had seen the children unexpectedly near a bus stop at [suburb omitted]. He knew that they recognised him but thought that they were afraid of what their mother would do if they said hello to him. They did not scream or run away. He said he did not follow them across the road.
The father told Mr L of counsel that in his view his daughters have no fear of seeing him. He did not think they were afraid of him at all.
The father was rather at a loss to say what he could do to re-establish his relationship with the girls. He said he would participate in a program and would see the children at a supervised contact if the Court were to make an order. He said it was difficult for him to communicate with the mother:
“There is a problem but not from me”.
The father relied on an affidavit from Mr M, a Consultant Forensic Psychologist, who prepared a report a psychological assessment of the father at the request of the father’s counsel.
Mr M said of the father that:
It is clear that he has been greatly affected by the absence of contact with his children. …He further alleges that she[16] coached the children to spy on him and claims now that they have been alienated from him because of her adverse influence.
I questioned Mr McGrath regarding the allegations that his children are scared of him. He steadfastly denied that this was the case and although I have not had an opportunity to observe him with his daughters he produced a portfolio of letters and cards from them professing their love for him as well as photographs which would tend to suggest positive interactions and bonding. He further denied that he has ever assaulted her[17] but despite this an AVO was taken out against him. This was determined at [omitted] Court and the matter was dismissed.[18]
[16] i.e. the mother
[17] i.e. the mother
[18] Affidavit of Mr M 26.6.2012 Annexure
Mr M expressed the following opinion:
1...I note that you seek my views regarding his clinical profile and in this context my report is confined to your client. In other words I have not had an opportunity to assess his daughters nor to observe the interactions between Mr McGrath and his children. Mr McGrath acknowledges that various accusations have been made regarding his behaviour which he strenuously denies and certainly from my interactions with him, it appears to be the case that he is a devoted father who wants nothing more to have some involvement with his children’s lives.
2. He claims that his children have been progressively alienated from him by their mother whom he believes has had a separate agenda to raise them on her own because of their parents having divergent cultural values and attitudes towards child rearing. Mr McGrath stated that prior to the separation from his partner, there were frequent arguments concerning these issues and his claim subsequent to separation that the children were being at times physically and emotionally neglected. He continued to express concerns regarding their psychological and physical safety. This issue however is a matter to be determined by the Court.
3…It is clear that he is suffering reactive depression referable to the protracted nature of these proceedings and attendant upon this ongoing anxiety in dealing with the prospect of not having any involvement with his children for some years to come…Your client appears to have rejected supervised contact because of an underlying sense of pride and a concern that his children may negatively infer that he is not a fit father to be with them unless his behaviour is monitored by others. I have counselled him in this regard suggesting that it is important for some form of interaction to commence with him accepting that given the extended nature of the absence of contact, a period of time will be required for re-familiarisation to occur.[19]
[19] Affidavit of Mr M 26.6.2012 Annexure
Mr M was cross-examined by Ms Nash of counsel, who appeared for the wife. He conceded that he prepared very few reports for the children’s Court or the Family Court but mainly dealt with adult offenders.
He said that the father’s view of his wife was a hostile view. He felt his wife was deliberately stopping him from seeing his children. He expressed a very negative view of his wife, saying:
Certainly, there’s no love lost there.
Mr W was not required for cross-examination. His evidence was that he and Ms V were tenants at the rear of the former matrimonial home in [suburb omitted]. During that time he had observed interaction between the children and the father. He described their relationship as “a very friendly and playful and loving relationship”.[20]
[20] Affidavit of Mr W 19.3.2010 at [5]
The affidavits of Ms K and Ms V were in similar vein. Neither of the deponents was required for cross-examination.
Ms S deposed that she and her husband socialised with the mother and father until they moved to [omitted] in May 2002. The main point of her affidavit was that she deposed that in mid-2010 the mother telephoned her and said to her words to the effect of:
“I am really upset with [name omitted] and would like you to come to court for me to tell them that he was violent to me and beat me”.[21]
[21] Affidavit of Ms S 13.2.2012 at [20]
Ms S declined to do so and said:
“I cannot do that, it is not true”.[22]
[22] Affidavit of Ms S 13.2.2012 at [20]
Ms S was not required for cross-examination.

The Family Report

A Family Report was prepared at the Court’s Direction by Ms M, a Regulation 7 Family Consultant, on 10 June 2011. The Report was released to the parties on14 June 2011.
For the purpose of preparing her Report, Ms M interviewed:
a)the father;
b)the mother; and
c)the two children.
Ms M also observed the two children with their mother, but not with their father.
Ms M explained in her Report why she made the decision not to conduct an observation of the two girls with their father:
[X] and [Y] both appeared to be extremely nervous and fearful when they arrived for the Report interviews and observations. They, especially [Y], appeared to be close to tears. I spoke with the children about spending a short time with their father and they became considerably more distressed by this suggestion. They appeared to be very guarded when speaking with me and did not seem able to relax into any interaction with me. I suggested that we only spend a very short time with their father and that they could leave the room we were in at any time if they wanted to. They became increasingly distressed while I spoke with them. Given their high level of distress, I decided it would not be appropriate to conduct observations of the children with their father.[23]
[23] Family Report page 13 at paragraph [27]
However, Ms M persuaded the mother to agree to the father speaking briefly to the children in her presence as he left the premises. The father spoke briefly to the children, telling them that he loved them:
Neither child responded to him or made any eye contact with him.[24]
[24] Family Report page 13 at [28]
In her evaluation, Ms M expressed the opinion that the children have a very close relationship with their mother but their relationship with their father seems to have broken down completely. She stated:
It seems that [X] and [Y] view their father in a very negative way and appear fearful about spending time with him. Irrespective of why they feel this way, the fear appears real and their anxiety about spending time with their father clearly causes them distress.[25]
[25] Ibid page 15 at [33]
The Family Report Writer expressed the view that the mother was unable to be supportive of the children having a positive relationship with their father and opined that this would be unlikely to change unless the mother were to become involved in a program such as “Keeping Contact”.
Notably, Ms M expressed criticism in the Report of the father’s decision not to spend time with the children at a contact centre when it was first proposed in 2010. It will be recalled that Mr M expressed a similar view in his Report annexed to his affidavit (see at [68] above).
Ms M said of the father’s decision:
Although he expressed concern about what message the children might receive about him if they saw him at a contact centre, his decision not to spend any time with them, rather than attend a contact centre, seems to be more focused on his own feelings than on his concerns about his relationship with them.
…Mr (McGrath’s) resistance to spending time with [X] and [Y] at a contact centre indicates his lack of awareness of his children’s emotional and developmental needs and he probably did not understand the likely effect on the children and his relationship with (them), of not having any contact with him for a substantial amount of time.[26]
[26] Ibid page 16 at [35]
The Family Consultant recommended in the Report that:
a)The Court consider the mother having sole parental responsibility for the children on condition that she provides the father with information about the children’s schooling and medical condition;
b)The children should live with their mother; and
c)The family be referred to the “Keeping Contact” program to assist the parents to develop a positive co-parenting relationship.
Ms M was cross-examined by Counsel for the Independent Children’s Lawyer and Counsel for the father.
She told Mr L that she had made no recommendation about what amount of time the children should spend with their father because it would have been unlikely to have been abided by. She made no recommendation because it was not in the children’s best interest to do so. If nothing had changed since June 2011 it would have been extremely difficult to have made a recommendation.
Ms M maintained that when she saw the girls they were genuinely fearful of spending time with their father. She told the court that the father’s decision not to spend time with the girls at a contact centre would have been extremely detrimental to the children’s relationship with their father.

Submissions

In his submissions on behalf of the Independent Children’s Lawyer,

Mr L said that even on the mother’s version of events the Court would have enormous difficulty in concluding that there would be an unacceptable risk of harm to the children from their father.
However, it was the view of the Independent Children’s Lawyer that it is not in the interests of the girls to be made to spend time with their father and Mr L referred the Court to the report of Ms W annexed to the father’s affidavit of 19 March 2012.
It was the view of the Independent Children’s Lawyer that neither parent is blameless in this situation. The father has a rigidity in his personality and thinking. He displayed a rigid attitude towards the children and declined an opportunity to spend time with them at a supervised contact centre.
The mother had stopped the children from seeing their father. There has been a total absence of encouragement on the part of the mother to the girls to spend time with their father. She has not offered any explanation to the children to appease their concerns.
The situation is now that the children have no relationship with their father and their view is that they do not want to see him. The relationship has completely broken down. It is the view of the Independent Children’s Lawyer that it is now too late to re-establish the relationship without risking very significant distress to the girls.
Counsel for the father submitted that his client would not press his claim for the girls to live with him but sought some form of time with them. The problem with the proposed Order 13 by the Independent Children’s Lawyer that an order should be made that the children spend time with their father in accordance with their wishes is the supposed “brain washing” of the children by their mother.
The proposed Order 13 states:
That the children shall spend time with the Father in accordance with their wishes and in the event the children advise the Mother directly or through any third party that they wish to spend time with the Father, the Mother shall facilitate any such request.
If the only way that the children can see their father is to make a request to their mother there would be a difficulty. He submitted that the mother was a person with little respect for the truth and could even intercept and delete incoming emails from the father to the children.
Essentially, Mr Wetmore submitted that the father would not object to the other orders proposed by the Independent Children’s Lawyer. He said that the father presented no real problem to the children, except that there is an attitudinal problem The father is rigid and set in his ways.

Counsel for the father said of the mother that her attitude was one where her regimen was such that she could “move her head to bend her neck to see what is around her”. The mother was depriving the children of half of their cultural heritage and her behaviour would not change.
Counsel for the mother, Ms Nash, submitted that the mother would consent to all of the orders proposed by the Independent Children’s Lawyer except the proposed Order 9, which says:
That the Mother shall provide the Father with her current residential address, telephone contact details and a contact email address and notify him within 24 hours o9f any change to such details.
Her proposal was that instead of her address she would provide a post office box. Although there is no current Apprehended Violence Order the mother wants privacy in her own home.
It was submitted on behalf of the mother that the father had every opportunity to re-establish his relationship with the children but wilfully chose not to do so. Ms M was clear that the children have a genuine fear of their father. It would be disastrous for them to live with him. They had not seen him from March 2011[27] until June 2012.
[27] 2 April 2011, in fact
It was further submitted that the father’s relationship with the children had broken down. It was not good from the beginning. The father is the author of his own problems. The mother had tried to facilitate a relationship but the father had not taken up the option. The effect of change on the children would be disastrous.
Although the father was no longer pressing his claim that the children should live with him, Ms Nash submitted that the father could not care for them. The mother had been the children’s primary carer all their lives.[28]
[28] This claim does not appear to be strictly in accordance with the mother’s evidence in so far as [X] is concerned. [X] spent a year in China when she was a baby in the care of her maternal grandmother.
It was submitted that, apart from the proposed order 9, to which the mother did not agree, the Orders proposed by the Independent Children’s Lawyer are the orders least likely to lead to further proceedings.

The Law to be applied in proceedings for parenting orders

Proceedings involving children are situated in Part VII of the Family Law Act. The objects of Part VII and the principles underlying those objects are to be found in subsections (1) and (2) of s.60B of the Act. The objects are to ensure that the best interests of the children are met, which is made clear in s.60CA, which provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child (or children, in this case) as the paramount consideration.
The Court determines what is in children’s best interests by considering the matter set out in subsections (2) and (3) of s. 60CC.
The primary considerations are found in subsection (2):
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.
Of these two primary considerations, the Court is required by subsection 60CC(2A) to give greater weight to the consideration set out in paragraph (2)(b).
There are additional considerations set out in subsection 60CC(3), from paragraphs (a) through to (m) inclusive. The issue of family violence, which is referred to in paragraph (2)(b), is also referred to in paragraphs (3)(j) and (3)(k), the latter of which refers to family violence orders in place or formerly in place.
Some of the additional considerations are very important, such as:
a)Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give the children’s views; and
b)The nature of the relationship of the children with:
i)Each of the children’s parents; and
ii)Other persons (including any grandparent or other relative of the children).
As to the consideration in s.60CC(3)(a), the views of the children, section 60CD provides how the views of a child are expressed. Subsection 60CD(2) provides that:
(2)     The court may inform itself of views expressed by a child:
(a)     by having regard to anything contained in a report given to the court under subsection 62G((2); or
(b)     by making an order under section 68L for the child’s best interests in the proceedings to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
In this case, the Court has the benefit of a Family Report under s.62G from Ms M. The Court has also ordered that the children’s interests should be independently represented by a lawyer under s.68L of the Act.
It is also relevant that the Report by Ms W annexed to the father’s affidavit of 19 March 2012 contains statements of her observations of the children and statements by the children on three occasions. Section 69V of the Act provides for the reception of evidence of representations by children as an exception to the law against hearsay. Subsection 69ZV(2) provides:
(2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
However, s.69ZV only applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.
In my view, the children’s views and factors relevant to the weight to be given to those views in paragraph (3)(a) should properly be considered in conjunction with the matters referred to in paragraph (3)(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.
Clearly, the evidence of the Family Consultant will be of importance in assessing the children’s maturity and level of understanding in order to decide the weight to be given to the children’s views.
The consideration in paragraph (3)(d) is of relevance here, even though it is no longer the father’s case that the children should live with him:
The likely effect of any changes to the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
There has been evidence and there have been submissions about the consideration in paragraph (3)(f):
the capacity of:
(i) each of the child’s parents; and
(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.
There are some considerations that are not relevant, such as the consideration in paragraph (3)(h), which relates specifically to Aboriginal and Torres Strait Islander children only.
Evidence has been given and submissions have been made concerning the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents (see s.60CC(3)(i)).
When making a parenting order, the Court is required by s.61DA(1) to apply a presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for the children.
This presumption does not apply if there are reasonable grounds to believe that a parent or other person has engaged in:
a)Abuse of the children or another child; or
b)Family violence (see s.61DA(2)).
Subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s (or children’s) best interests for the parents to have equal shared parental responsibility.
The Court must also consider the matters in s.65DAA where a parenting order is made that provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child.
Under subsection (1), in such a case the Court must consider whether the child spending time with each parent would be:
a)in the child’s best interests; and
b)reasonably practicable; and
c)if so, consider whether to make such an order.
It is important to note that the Court must be satisfied about both paragraphs (a) and (b). Satisfaction about one or other of them is not sufficient to enliven the consideration in paragraph (c).
If the Court, after considering the matters referred to above, does not make an order for the child or children to spend equal time with both parents, the Court is required by s.65DAA(2) to carry out the same exercise in considering whether it would be both in the child’s or children’s best interests and reasonably practicable for the child or children to spend substantial and significant time with each of the child or children’s parents.
“Substantial and significant time” is defined by s.65DAA(3).
In determining reasonable practicability for the purposes of subsections (1) and (2) of s.65DAA the Court must have regard to the matters in subsection 65DAA(5).
All of these matters, where relevant, have been considered.

Conclusions

After evidence extending over two and a half days, admittedly a substantial amount directed to the property aspects, the parties each submitted that they would agree to 17 out of the 18 Orders proposed by the Independent Children’s Lawyer, although not the same 17 proposed orders. It is surprising, then, that the parties could not have submitted a Minute of Proposed Consent Orders and confined their parenting submissions to the orders with which they did not agree. However, they chose not to do that, and the Court has therefore considered what particular parenting orders are in the children’s best interests, according to the matters set out in ss.60B, 60CA, 60CC and 65DAA.
The mother and father do not oppose an Order being made providing that the mother will have sole parental responsibility for their two daughters, subject to the provisos going to parental responsibility in proposed orders 2 through to 7 inclusive.
It appears to be clear that this is a case where equal shared parental responsibility just would not be at all practicable, noting the lack of communication between the parties and the animosity that each one has towards the other. I am satisfied that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.
The children live with their mother and the father, after all the evidence has been taken, no longer presses his claim that the children should live with him.
I note that the Family Consultant recommended in the Family Report that the mother should have sole parental responsibility for the children, and I see no reason to depart from this recommendation. I will order that the mother have sole parental responsibility for the children subject to the recommended conditions.
It is not, therefore, necessary, to consider the matters in subsections (1) or (2) of s.65DAA.
Orders 2 to 7 proposed by the Independent Children’s Lawyer appear to accord with the recommendation of the Family Consultant and are not opposed by either of the parties. Accordingly, I have adopted these proposed Orders, albeit with minor drafting alterations, as they appear to be in the children’s best interests.
The Family Consultant recommended in the Family Report that the two children should live with their mother. The Independent Children’s Lawyer has proposed such an order, which the mother seeks. The father no longer presses his claim for an order that the children should live with him.
In the light of the history of this matter, including the views of the children, to which some weight should be given, it appears that the best interests of the children require that they continue to live with their mother, and I will order accordingly.
Where there remains a controversy between the parties is in the issue of the time, if any, that the children should spend with their father.
There is also a comparatively minor issue about the provision by the mother of her current residential address to the father. The mother submits that she wishes to preserve her privacy in her own home. Noting that there have been Apprehended Violence proceedings between the parties, although they were dismissed by the Local Court, I am satisfied that an order should be made that the mother should make known her current residential address, but with the proviso that the father is restrained from going within 100 metres of that address.
Counsel for the father has submitted that if an order were to be made in terms of the ICL’s proposed Order 13, providing that the children shall spend time with their father in accordance with their wishes, that would be likely to lead to a situation that they would not se their father at all. The father’s negative view of the mother is such that he believes she has brainwashed the children against him and would be unlikely to facilitate the children’s seeing their father if they were to express the wish to do so.
The difficulty is with this submission is that the evidence all points to the fact that the father’s relationship with the children has completely broken down and they do not wish to see him at all.
Whilst the mother is not entirely blameless in this issue, as counsel for the Independent Children’s Lawyer has submitted, it is also clear that the father has contributed to the breakdown by his refusal to spend time with the children under supervision at a contact centre. Whilst he took the view that if he were to agree to such an arrangement the children would form the idea that he did in fact pose an unacceptable risk to them, he appears to have overlooked the consideration of what the children would think about his refusal to see them.
The Court must consider the benefit to the children of having a meaningful relationship with both of their parents. The evidence from the Family Report is that the children have a very close relationship with their mother. However, their relationship with their father “seems to have broken down completely” and the children “view their father in a very negative way and appear fearful about spending time with him”.[29] Whatever the cause of the breakdown of this relationship, and each parent blames the other, it is now an established fact and it is difficult to see the benefit to the children in pursuing a relationship with their father, unless and until they themselves desire to re-establish contact with him.
[29] Family Report page 14 at [33]
I am not of the view that the father poses an unacceptable risk to either of the children through abuse, neglect or family violence, although if the children were to be forced to spend time with him when they express such a fear of him, there may be a risk of psychological harm to them.
The views expressed by the children are very strongly against spending time with their father. This comes out both from the Family Report and the evidence of Ms W in her report of the supervised time with the children in March and April 2011. In my view, the children are old enough for their views to be given some weight and they seem to be of a sufficient level of maturity for those views to be considered. [X] is a girl aged 11 years and 6 months and [Y] is a girl aged 9 years and 10 months.
The nature of the relationship of each of the children with their mother appears to be a warm and loving one but their relationship with their father appears to have broken down completely.
The children appear to have a close sibling relationship with each other. There is no evidence of their relationship with any other relatives except that their maternal grandmother has visited Australia to care for the children when they were young and [X] spent a year in China as a baby in the care of her grandmother. The children’s paternal grandfather is deceased. The father’s other family reside in Iran.
One consideration under s.60CC(3) is that in paragraph (c). The father, by his own actions, has failed to take the opportunity to spend time with the children. He has chosen not to do so, and when he did take part in time with the children, supervised by Ms W, in March and April 2011, it was too late. The relationship with the children had broken down and they did not want to see him.
The likely effect of a change of the children’s circumstances would be a cause of distress to the children if they were made to spend an enforced period of time with their father. It was only on the third day of the final hearing that the Court was told that the father was not pressing his application for the children to live with him. It appears to have been rather unrealistic for the father to maintain that claim up to that time, noting the fact that he had spent so little time with the children.
The mother appears to have the capacity to provide for the children’s physical needs, noting the comments in the Family Report that the children:
presented as healthy looking and well cared for children. They were well dressed in identical clothes.[30]
[30] Family Report pages 12-13 at [27]
The mother has expressed doubt as to the father’s capacity to care for the children on the basis that he never took part in the care of the children when the parties lived together.
The parents each have been criticised by the Independent Children’s Lawyer for their attitudes to the children and to the responsibilities of parenthood. The mother sees very little value in the children spending time with the father, and her attitude appears to coloured by her negative perceptions of the father in his relationship with her. She has previously been criticised for a lack of ability to separate the children’s needs from her own, although in fairness to her she gave evidence that she has enrolled in the “Keeping Contact” program, which she found helpful and informative in dealing with the children.
The father, by comparison, retains a very rigid view and blames the mother for the breakdown of his relationship with the children.
The mother has claimed that there was violence directed towards her during the marriage. There is one incident where the father slapped [X], which he concedes in his affidavit of 18 March 2010 at paragraphs [4] and [5]. He denies that he has ever hit [Y].
There is no current family violence order. The evidence is that the Local Court at [omitted] dismissed an Apprehended Domestic Violence Order.
In my view, the order proposed by the Independent Children’s Lawyer, with some modifications to which I have referred, are in the children’s best interests and least likely to lead to the institution of further proceedings in relation to the children.
The children are of a mixed heritage. Their mother is Chinese. Their father is Iranian, although now an Australian citizen. As the father’s counsel submitted, by not having a relationship with their father the children are missing out on access to their Iranian heritage, which is regrettable. However, the father has, by his own actions and the rigidity of his attitude, largely contributed to this state of affairs.
The father should take advantage of the order allowing him to forward gifts and cards to the children to keep himself present in their minds. If he does not do so, he runs the risk that the children will consider that he has abandoned them.

Costs of the Independent Children’s Lawyer

The Independent Children’s Lawyer seeks an order for costs against both parties in the sum of $11,490.00, inclusive of Counsel’s fees.
Counsel for the mother has submitted that, whilst the amount sought is a modest amount in the circumstances, her client is a person of modest income and would not be in a position to meet the costs order sought. Her half share would be $5,745.00.

Counsel for the father has also submitted that his client would have difficulty meeting a costs order as he is virtually impecunious. Any order against him would be crushing.
I take those submissions into account. However, I am satisfied that this is an appropriate case to make an order for costs in favour of the Independent Children’s Lawyer. Neither party is in receipt of a grant of legal aid. The parties have taken up a lot of court time in litigating this matter, and I refer to my comments at [139] above in noting that the parties each agreed to 17 out of the 18 orders proposed by the Independent Children’s Lawyer but were apparently unable to agree to any parenting orders being made by consent. The father’s claim that the children should live with him, which he did not abandon until the final day of the hearing, was patently unrealistic in the light of the evidence.
The litigation has lasted considerably longer than it should, noting that the Court was ready to hear the matter on a final basis in early March 2011.
The parties had consented to orders selling the former matrimonial home and until March 2012 there was a contract for the sale of the property on foot. The purchaser was unable to proceed and forfeited the deposit of $20,000.00, which was placed in a controlled moneys account which was provided for in the Consent Orders into which the parties entered on 21 April 2010.
The costs should be paid out of the moneys held in that account. I am satisfied that the circumstances warrant an order for costs being made against the parties in favour of the Independent Children’s Lawyer. The amount of $11,490.00 sought appears to be appropriate in the circumstances.

I certify that the preceding one hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date: 19 April 2013

[2013] FCCA 41

19 April 2013

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Costs

Remedies