Rutherford and Batey

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUTHERFORD & BATEY

[2016] FCCA 602

Catchwords:
FAMILY LAW – Parenting – sole parental responsibility – best interests of the children – Airport Watch List order – child spend time with Father – non-denigration – alcohol injunction.

Legislation:

Family Law Act 1975, ss.4, 60CC(2), 60CC(3), 61DA

Cases cited:
G & C [2006] FamCA 994
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

Applicant:

MR RUTHERFORD

Respondent:

MS BATEY

File Number:

MLC 2645 of 2014

Judgment of:

Judge Stewart

Hearing date:

11 May 2015

Date of Last Submission:

12 May 2015

Delivered at:

Melbourne

Delivered on:

24 March 2016

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

All previous orders in relation to the children X (“X”) born (omitted) 2004 and Y (“Y”) born (omitted) 2007 (“the children”) be and are hereby discharged.
The Mother have sole parental responsibility for the children.
For the purpose of order 2 hereof, before any such long term decisions are made in respect of X and/or Y:-
(a)the Mother shall advise the Father by email of her proposal relating to the children or either of them; and
(b)if the Father wishes to comment on the Mother’s proposal (or if the Father has any proposal he wishes to make relating to the children or either of them on this issue) he shall, within seven (7) days after the date of the Mother’s email, advise the Mother by one email (to the email address from which the Mother sent her communication) of his views;
(c)upon receipt of any comment or proposal by the Father, the Mother shall give consideration to the Father’s views;
(d)after the Mother has considered the Father’s comments, she shall make a decision and advise the Father by email or SMS text message of the outcome immediately after making that decision; and
(e)if the Father does not respond by email as provided in order 3(b) hereof, the Mother shall be entitled to presume that the Father does not wish to be involved and she may decide the issue.
The children live with the Mother.
The children spend time with the Father as follows:-
(a)during school terms, each third weekend from 10.00am Saturday until 4.00pm Sunday, such time to commence on 16 April 2016 and recommence on the first Saturday following the commencement of each school term;
(b)during school term holidays, for a period of three days and two nights to commence at 10.00am on the first day and conclude at 4.00pm on the third day, at times to be agreed between the parties and failing agreement such time to commence at 10.00am on the first Saturday of the school holidays and conclude at 4.00pm on the following Monday;
(c)during the long summer holidays, for two periods of three days and two nights to commence at 10.00am on the first day and conclude at 4.00pm on the third day, the dates of such times to be nominated in writing (by either email or SMS text message) by the Mother prior to 15 December in each year and in the event she fails to nominate such time shall commence on 26 December and 20 January of each long summer holidays;
(d)on the Father’s Day weekend from 10.00am Saturday until 4.00pm Sunday (and this weekend shall be in lieu of the next scheduled weekend pursuant to order 5(a) hereof);
(e)on the weekend closest to (religion omitted) and nominated at least 14 days prior by the Father as the weekend upon which he will be celebrating (religion omitted), from 10.00am Saturday until 4.00pm Sunday (and this weekend shall be in lieu of the next scheduled weekend pursuant to order 5(a) hereof);
(f)on the weekend closest to the “(religion omitted)” (as it is described by the Father) and nominated at least 14 days prior by the Father as the weekend upon which he will be celebrating the “(religion omitted)”, from 10.00am Saturday until 4.00pm Sunday (and this weekend shall be in lieu of the next scheduled weekend pursuant to order 5(a) hereof);
(g)at such further or other times as may be agreed between the parties from time to time;
The Father’s time with the children be suspended on the Mother’s Day weekend and in lieu thereof the Father shall spend the following weekend with the children.
Liberty is granted to the Mother to suspend the Father’s weekend time with the children pursuant to order 5(a) hereof, PROVIDED ALWAYS THAT:-
(a)she advise the Father in writing (by either email or SMS text message) of the suspension of time at least 14 days prior to the scheduled time;
(b)she advise the Father in writing (by either email or SMS text message) of which weekend the children will be made available in lieu of the scheduled time, which weekend shall be as agreed and failing agreement the Mother shall elect either the weekend prior to or following the scheduled time;
(c)such suspension is to accommodate an important activity, social or extra-curricular activity for the children or either of them.
Unless otherwise agreed, changeovers to facilitate the children spending time with the Father shall occur at (omitted) Railway Station, and for that purpose the parties and/or a nominee well known to the children be permitted to facilitate such changeover.
The Father is permitted to communicate with the children by telephone at times to be agreed and failing agreement at 5.00pm on a day nominated by the Mother in writing (by either email or SM text message) at least once per week.
Each of the parties advise and keep the other advised of:-
(a)their current residential address;
(b)their current telephone number, including landline and mobile telephone numbers;
(c)a current email address which is accessed and read regularly and not less than once per week.
Each of MR RUTHERFORD and MS BATEY and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2004 (male) and Y born (omitted) 2007 (female) from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child or children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s name(s) on the Watch List for a period of two years.
Upon expiration of the period referred to in Order 12 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
The Father be and is hereby restrained from consuming alcohol to excess (being defined as a blood alcohol count exceeding .05) during any period the children are in his care.
The Father be and is hereby restrained from:-
(a)denigrating, belittling or criticising the Mother, Mr B or other significant persons in the children’s family, to or in the presence or hearing of the children or either of them;
(b)allowing others to denigrate, belittle or criticise the Mother, Mr B or other significant persons in the children’s family, to or in the presence or hearing of the children or either of them.
The Father forthwith do all such acts and things as may be necessary to enrol in and complete a “Tune into Kids” program (a referral to which may be obtained through Relationships Australia) and provide the Mother with evidence of completion of same as soon as practicable.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in the Factsheet attached and these particulars are included in these orders.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2645 of 2014

MR RUTHERFORD

Applicant

And

MS BATEY

Respondent

REASONS FOR JUDGMENT

These parenting proceedings come before the Court in relation to the parties’ children X (“X”) born (omitted) 2004 and Y (“Y”) born (omitted) 2007 (“the children”). X is 11 years old and Y is 8 years old.
The children live with their Mother, their step-father and their little brother Z in suburban Melbourne. The children have always lived with their Mother. Their Father has been a sporadic and intermittent visitor to their lives. When he does enter their lives he does so with enthusiasm and gusto, seeking to assert his paternal rights and paying little attention to the reality of his children’s lives and in particular that they have a home and a family with a step-father who has fulfilled the role of father for them when he has been absent. The Father elevates his biological position such that he fails to appreciate that the children need time to adjust to him. Not only does the Father lack sensitivity towards the experiences of the children and their needs, he actively undermines the security of their primary home by denigrating their step-father and their Mother.
The Father is self-centred and demonstrates a personality style that is unlikely to change. He expects the children to gravitate to him like moths around a flame. Sadly, he has no appreciation that the children experience him as an unwelcome intrusion into their hitherto predictable and stable lives. They experience him as scary, inconsistent and loud and regard their visits to his home in (omitted) as inconvenient to their normal lives and at times a little boring, although there are parts of the visits they do enjoy, especially seeing their two older brothers.
The Father seeks what he regards as a normal style of time with the children, every second weekend and half of the school holidays. Consistent with a complete inability to appreciate that the children have difficulty relating to him and that he is not the centre of their paternal universe, he seeks to have them travel to (country omitted) with him to meet their paternal family and seeks to have them change their surname to accord with his own. Even though he was the one to move to (omitted), over 100 kilometres away, he would like the children to meet him at (omitted) Railway Station in central Melbourne (presumably with the Mother assisting them) ultimately with a view to have them travel by train to and from (omitted), thus avoiding (for him) the burden of travel which he complains about.
For the reasons that follow, and in accordance with the recommendations of the Family Report Writer, the orders sought by the Father do not accord with the best interests of the children. Although the orders sought by the Father superficially present as a reasonable and appropriate outcome for these children, they have the capacity to undermine the children’s stability, encroach on their self -esteem and affect their relationships with their Mother and their step-father. As the Father has no capacity to understand his behaviour and how it impacts on the children, his time with them must be limited.
That is not to say that the Father does not have anything to offer the children; he does. He certainly values his children and loves them. He has a larger than life, charismatic personality and is at times quite charming. When motivated to kindness I suspect he would be exceedingly generous. By his own account, he is culturally (nationality omitted) and seeks to share that aspect of his life with all of his children, including X and Y. He told me that he is not a religious person but partakes in the celebratory dates on the (nationality omitted) calendar in a joyous and festive way. He is a tall and good looking man with an undeniable confidence. In as much as the children share one half of their genetic and biological heritage with him, it is important that he remain a part of their life.
Thus, the orders that I make seek to balance the competing interests of providing the children with a stable, loving and primary home with their need and entitlement to have a positive experience of their Father and his/their heritage, without undermining the former.

The uncontroversial matters

The Father is 50 years old and the Mother is 46 years old and employed as a (occupation omitted). The Father was born in (country omitted) and the Mother was born in (country omitted). Each of the parties have lived in Australia for many years.
Each of the parties have been married or partnered at least once before their relationship commenced (and continued as an extra marital affair for the Father). On the Father’s case at least the parties conducted themselves in an adulterous fashion in one way or another throughout their relationship and their relationship overlapped with committed relationships for each of them, covering the period the two children were born in 2004 and 2007 respectively.
The Mother is currently in a relationship with Mr B (“Mr B”) and has been in that relationship since 2009. The Mother and Mr B have their own child Z who is a year old. The Mother is engaged in full time home duties, caring for Z and the children.
The Father has two older sons B and A, who are in mid and early teens respectively. B and A live with their Mother in the (omitted) area. The Father sees B and A regularly and is an active spectator at their sporting events in or around the (omitted) area.
The Mother has two older children, Mr L and Ms C who are in their early twenties.
The Father is in a relationship with Ms J (“Ms J”) who is in her mid to late thirties. He has been in that relationship for a number of years. The Father and Ms J have no children together but they would like to. Sadly, the Father and Ms J suffered a still birth when the children’s sister C was born.
The children have always lived with their Mother. Following X’s birth the Father would see the Mother secretly two or three times a week until his then wife discovered the relationship. When X was still an infant there was a short period when the parties no longer saw each other, however they resumed their relationship in 2005.
In (omitted) 2006 the Mother advised the Father that she was pregnant. For six months between (omitted) 2006 and (omitted) 2007 the Father did not see the Mother or X. Y was born in (omitted) 2007 and the Father did not see her until she was a few weeks old.
Between (omitted) and (omitted) 2007 the Father saw the children two or three times per week. In (omitted) 2008 the Father travelled overseas for around eight months, returning in (omitted) 2008. It is around this time that the Father’s marriage broke down. His older two children remained living with their mother. When the Father returned from overseas he resumed his relationship with the Mother, however they remained in separate households except for a period of three days when they unsuccessfully attempted to live together.
In early 2009 the Father commenced another relationship and the Mother commenced her relationship with the children’s step-father Mr B. On the Father’s case at least, the parties continued their affair notwithstanding their other relationships.
It seems that the relationship between the parties faltered between (omitted) and (omitted) 2009 and the parties did not see each other. In late 2009/early 2010 the Mother sought the Court’s permission to obtain passports for the children so that she could travel overseas for a holiday, which was approved.
In 2010 the Mother applied for an administrative assessment of child support and in late 2010 the Father commenced seeing the children relatively regularly, in the Mother’s presence around once a week for a short period.
Throughout 2010 and 2011, at least on the Father’s case, the parties continued their affair and the Father continued to see the children at times when he was seeing the Mother. However, between (omitted) and (omitted) 2011 the Father only saw the children five or six times. Ultimately, in 2012 the parties entered into an agreement for the Father to see the children on a regular basis but his time with them was sporadic and infrequent.
In (omitted) 2012 the Father’s older sons moved to (omitted) with their Mother. In (omitted) 2012 the children travelled overseas for a period of around six weeks. The Father had very little contact with children at that time.
In September 2012 the parties struck an agreement that the Father would see the children for three hours on a Tuesday with some time on the weekend (not overnight), however such time did not occur on a consistent basis. Each of the parties suggest that the inconsistent time during this period was the fault of the other. The parties attended a further mediation in February 2013 and struck a further agreement that the children spend time with the Father each Tuesday for a few hours and every second weekend from Saturday morning to Sunday morning. At around this time the Father moved his residence to (omitted) to be closer to his older children. He continues to live in the (omitted) area.
The children’s time with the Father, following this further agreement, was again inconsistent. In the latter half of 2013 it was clear that the Father was spending some time with the children and driving to Melbourne to exercise such time. However, it is unclear whether the time the Father spent with the children was consistent, regular or satisfactory but certainly time was taking place including on a least one religious festive occasion.
In November 2013 the Father was able to have the children spend time with him for a (omitted) celebration. It seems that the tensions regarding the Father undertaking the travel required for the children to spend time with him came to a head with the Father refusing to deliver the children to the Mother’s home, preferring to have her collect them from (omitted) Railway Station. The Mother refused to collect the children from there. This dispute resulted in the Father failing to return the children to the Mother until she travelled to (omitted) to collect them on the following Wednesday. The children missed three days of school and as a result of the impasse the children were not made available to spend time with the Father; a situation which continued until the first return date in these proceedings in May 2014.
The Father filed his Initiating Application in these proceedings on 28 March 2014. The Mother filed her Response on 6 May 2014 on the same day the matter first came before the Court. On that first return date, orders were made by consent providing for the children to spend each alternate Sunday with the Father and for the parties to attend a Child Dispute Conference with a Family Consultant. There were various other orders, including an order that the Father not consume alcohol or illicit drugs when the children were in his care and for the Father to travel to collect the children.
The parties attended the Child Dispute Conference and the Family Consultant indicated that the children’s views surrounding spending time with their Father should be sought. Accordingly a further Child Dispute Conference, with the children, was ordered on 14 July 2014. The matter returned to Court on 23 September 2014, at which time the existing arrangements were ordered to continue on an interim basis and there were further orders for the Father to spend two periods of time with the children during the 2015 summer holidays.
In or around January 2015 the Father had filed a Contravention Application which was returnable before the Court on 21 April 2015. The contravention application was struck out as neither party, and in particular the Applicant Father, attended.

The Parties

Each of the parties appeared before the Court as a self-represented litigants. I am satisfied that each of them had an appropriate opportunity to put their case before the Court and that each of them understood the nature of their case, the issues in dispute between them, and the procedural requirements for the presentation of their case. Given they were self -represented litigants there was less emphasis on the formal requirements of case presentation and more focus on the practical and substantive issues raised.

In this case, it is not possible to refer to every fact and matter that has been raised by the parties, nor is it necessary to do so. Those facts and matters are set out in detail in the parties’ affidavits and in the expert reports. In these reasons, I will make numerous references to some of the facts in the proceedings, and, in the particular circumstances of this case, unless the contrary is clear from the context in which I make a statement, a statement of fact in these reasons should be regarded as a finding of fact.
The Father raised numerous matters in the presentation of his case which are largely personal to he and the Mother and peripheral to an assessment of the best interests of the children.
The Father put his case on the basis that his relationship with the Mother was purely for sex. He has asserted this in his affidavit material and also told each of the Family Consultants the same. There is no doubt that the Father has sought to portray himself as a victim or a dupe to the Mother’s wiles; a man who had little capacity to resist the Mother’s sexual demands and her desire to continue their sexual relationship.
The Mother asserted, and I agree, that the Father’s affidavit material was at times scandalous. It was certainly offensive to and disparaging of the Mother. On one view, it is difficult to understand the relevance of such material in the context of the parenting issue before the Court and how it might promote the Father’s case. However, the material is simply so offensive that it speaks to the Father’s complete lack of respect for the Mother, a complete lack of empathy for the Mother’s position and is suggestive of a lack of insight as to how the promotion of his own position, at the expense of the Mother’s reputation and character, might impact on the children. This is particularly so in circumstances where the Father shows little, if any, capacity to shield the children from his poor view of the Mother and his self-aggrandising position as a victim of the Mother’s actions.
By way of example, some of the things said by the Father about his relationship with the Mother are as follows:-
a)as stated previously, the relationship with the Mother was purely for sex;
b)the Mother continually telephoned him and called him, wanting to see him and seeking financial support;
c)that prior to his wife discovering their affair the Mother coerced him into seeing her two or three times per week, reassuring him that if he did so his wife would never know about the existence of X;
d)he was furious when the Mother applied for child support as a letter from the Child Support Agency was found by his wife;
e)that upon his wife finding out about X that the parties continued their affair but the Mother could no longer “blackmail” him;
f)the Mother did all she could to have him back in her life and told him as long as she could “service” him once or twice a week that things would be “fine” and that she would come to his shop to seduce him;
g)the Mother intentionally left a message on his work answering machine advising the Father of her second pregnancy, knowing that the message would be retrieved and discovered by his wife. He said he was furious because he had given her enough money to cover the cost of the contraceptive pill and she had not taken it. He said that after this she came to his shop with the children and “As usual I got sucked in and we ended up having sex at the shop while the kids were having pizza”.
h)After he had “finished my business” she told him they were having a girl;
i)he said that the Mother’s home was so unclean that he should have called children’s services;
j)he suggests that when the Mother had commenced her relationship with Mr B (who was, according to him, helping her with the bills and the children) she was also seeing the plumber who had come to fix the shower, all the while planning how to keep their relationship going without Mr B knowing and at the same time receiving $220 per week in child support from him;
k)additionally, he said that they continued to have sex while “the kids were playing”;
l)she insisted that the Father leave by 3.00pm to ensure he was not present when Mr B arrived home and insisting that he leave some money for her;
m)in (omitted) 2011 they continuing their affair and the Mother was visiting him with the children in his house in (omitted) when his girlfriend came home to find them. He said there was verbal and physical abuse between the two women in front of the children, such that the police were contacted. One cannot help but sense the implication that he enjoyed being the subject of the altercation;
n)as at (omitted) 2011 the Mother told the Father that they needed to be careful and “lay low” as X had told Mr B he had seen the parties kissing and she could not lose her partner because she would lose the “roof over her head”;
o)in possibly the most offensive passage in the Father’s written material he said:-
with Christmas approaching (as there obvious need for extra cash), Ms Batey responded to my previous requests (over the last few months), and arranged to visit me with my children. For the next few weeks until approximately 20th December, she came around to my place 4/5 times offering sex and asking for money.
p)told a Family Consultant that the affair between he and the Mother ended when he refused to respond to the Mother’s “financial demands” and collapsed after he refused to consent to the children obtaining a passport for international travel;
q)told the Family Consultant who prepared the Family Report dated 31 March 2015 that:-
“…her bohemian lifestyle and the way she spoke to her kids, she is a dirty person…I never had any intention to be her partner” and cataloguing their relationship as “…a nine year affair.”
r)indicated to the Family Report Writer when asked to consider his relationship with the Mother that the Mother’s only utility was both her (language omitted) speaking and that he enjoyed sexual relations with her;
s)in a consistent theme of having demanded the Mother terminate her pregnancies he said to the Family Report Writer that “I offered the Mother cash for an abortion”;
t)during the Family Report interviews her referred to the Mother as an “unchosen mother”;

The Child Dispute Conferences

The Family Consultant accurately identified the matters in dispute between the parties in the Child Dispute Memorandum dated 19 June 2014, as being:-
·The nature of the father's relationship with the children and his role in their lives to date
·Parental responsibility
·What time the children should spend with the father
·Whether the children’s surnames should be changed to Rutherford, as proposed by the father
·Whether the children should be permitted to travel to (country omitted) with the father each alternate year
·Whether the children should celebrate dates on the (religion omitted) calendar with the Father and their half siblings.
At the interviews for the Child Inclusive Conference the Mother told the Family Consultant that the children were frightened of the Father. Although that assertion was not necessarily reflected in the comments the children made to the Family Consultant, they did say as follows:-
a)when describing the previous time with the Father in (omitted) on the weekends (before such time ceased in November 2013). They described the time as “boring”. Y recalled "All we'd do was stay at the house and do boring things," whilst X asserted it was "not that fun" and said that he felt "kind of happy" when the arrangements changed and he no longer had to travel to (omitted) as he had no friends there to socialise with;
b)the children were disappointed that they no longer got to see their brothers, A and B, as they missed them. A key reason that X was positive about time resuming with his Father was because he would get to see his brothers;
c)the children spoke positively about the arrangements that were occurring at the time of the interviews, implying that the Father made more of an effort to arrange activities that were fun. Both children indicated a preference for the current arrangement of alternate Saturdays and day visits only;
d)although the children’s view of their Father was generally positive, Y did recall an occasions when the Father had reportedly not permitted her to call the Mother when she was spending time with him, “though he promised she could”. X had also noted that Father was not always truthful. As an example X recalled an occasion where the Father had promised the children a party, “but when they arrived no one was there, not even A or B [sic]l”. The Family Consultant observed that:-
These experiences appeared to have reduced their trust in their Father and to threaten the security of this relationship;
e)only X seemed aware of other aspects of the Father’s proposal, including his application for the children to travel with him to (country omitted) and for their surnames to be changed to Rutherford. X was also aware that his Father wanted the children to move to (omitted) and said that “he wanted to enrol him at (omitted) School”. X adamantly told the Family Consultant that he did not want any of the Father’s proposals to occur because “I don’t know him that well”.
f)the children asserted that they only wanted to spend holiday time with the Father in (omitted), with X clarifying that he only wanted to go for a couple of nights. The Family Consultant concluded that this assertion was related to X’s experience and that the children’s time with the Father in (omitted) was “boring”.
Ultimately the Family Consultant considered that there was a lack of intimacy in the relationship between the Father and the children. Her interim recommendations were that the Father should continue to spend time with the children during the day on alternate weekends and some limited overnight time during the school holidays.

The Family Report

A Family Report was prepared in this matter and is dated 26 March 2015. It provides a valuable insight into the personalities of the parties and the children and their respective views and feelings.
The interviews for the Family Report took place on 18 March 2015. The Family Report Writer interviewed both parents and the children.
The Family Report Writer identified the following issues in the proceedings: –
·The time the children should spend with their father;
·The children’s emotional welfare in relation to their father’s reappearance in their life;
·Mr Rutherford’s insensitive approach to the children about their life and his lack of child focus;
·Mr Rutherford’s denigration of Ms Batey and Mr B;
·Whether Mr Rutherford has the capacity to work co-operatively as a parent;
·Mr Rutherford’s weak understanding of the rights and responsibilities of a parent.
The Family Report Writer cites a number of matters which give rise to a concern on her part that the Father presents as “a man of little insight and little sensitivity, oblivious to the needs or views of others”. She said variously of the Father:-
a)      Mr Rutherford, although complaining about his age appears youthful in manner and appearance. He is chatty and voluble, expressing clear views and strong opinions but it becomes apparent that this sea of narrative is designed to overwhelm the listener and present as facts impressions not always consonant with reality.
b)      Mr Rutherford demonstrates difficulty accepting responsibility for his own behaviour and choices, historically holding Ms Batey accountable for his difficulties, his marital separation and financial concerns.
c)     Mr Rutherford is disrespectful of Ms Batey as an individual and as the mother of his children and he speaks about her with contempt…
d)     Although spending several nights a week with Ms Batey, over several years, he reported he did not approve of “…her bohemian lifestyle and the way she spoke to her kids, she is a dirty person…I never had any intention to be her partner” and cataloguing their relationship as “…a nine year affair.” Mr Rutherford asserted repeatedly that he and Ms Batey were “…from two different worlds” and he considered her only utility was both her (language omitted) speaking “…and I enjoyed sexual relations with her.”
e)     Mr Rutherford’s difficulty understanding the views of others is reflected in his narrative about Ms Batey’s pregnancy with X, which he was described as “…affecting my behaviour, I lived with a secret…I didn’t know how to handle having a kid with someone I didn’t want to have a kid with…I offered her cash for an abortion.” Mr Rutherford stayed away from Ms Batey for extended period but advising “…I was stupid” he resumed spending time with Ms Batey believing she was using contraception. Mr Rutherford also expressed concern about the impact of these children from an ‘unchosen mother’ on his social standing “…as the father of B and A, I had good social status.”
f)      Mr Rutherford was clear that since 2010 “…there has been no alcohol in my house” and moreover continued to assert that he drinks “…only on social occasions”. Mr Rutherford’s statement about how he managed alcohol was revealed as a deliberate obfuscation of reality. Mr Rutherford has a fridge in his garage containing alcohol, and he is reported as spending considerable time in this garage where he plays pool, consumes alcohol and smokes. When queried about his drinking Mr Rutherford repeated “…there is no alcohol in the house”, but when the children’s observations were reported he admitted both the semantic game about where the alcohol was located and that he had “…one maybe two beers or three beers on New Year’s Eve.” Mr Rutherford was aware that court orders explicitly prohibited him from drinking either prior to or during the children’s spending time with him and other than minimizing his conduct he could not explain why he did not adhere to Court Orders other than noting he did not consider that his breach mattered.
g)     Mr Rutherford spoke about “…being fascinated by child psychology” identifying that he reads widely in the area and as a (occupation omitted) he “…understands children.” Despite this Mr Rutherford is unable to hold in mind any possible implications arising from his choice not to be engaged with the children during their significant developmental milestones. His reported expectation is that he can step into the children’s life and take on the role of father “...because I am entitled, it is my basic right” but without demonstrating any capacity to reflect on the children’s thoughts and feelings about his need to be their father or the timeliness or otherwise of his conduct.
h)     Mr Rutherford spoke at length about Ms Batey’s partner, Mr B whom he described as having “…walked into a chick and four kids” and despite never having met Mr B his disapproval appears to be patriarchal and competitive as he expressed bitter resentment that the children may call Mr B ‘dad.’ Mr Rutherford advised he had instructed the children, repeatedly that “…Mr B is not your dad, I am your dad, and Mr B is your mother’s partner.” Mr Rutherford noted that this advice has left “…X a bit confused, but X should know the right way, I am his dad, I am his (omitted) ((nationality omitted) title) Mr B is his mother’s partner. I am capable of looking after my children I am dad.” Mr Rutherford believes that the children “…are told by their mother that Mr B (Mr B is your daddy”, but the children deny this.
i)      Mr Rutherford stated “…I love my children to bits” and he commenced describing X, but rapidly segued into a discussion about Ms Batey’s limitations “…that she loves babies not kids” and this easy distraction from the children was a pattern of his responding as matters tend to become self-referring. As would be expected Mr Rutherford’s knowledge of his children is painted positively but with a broad brush and lacks the detail or shared confidences generated from frequent contact with the children.
The Family Report Writer made the following observations regarding the Mother: –
a) Ms Batey presents as gentle, but tense, and gives the appearance of being vulnerable. Ms Batey explained that “…I had lived as an (occupation omitted) for 15 years,” and when X was born, as Mr Rutherford was an absent father, she reflected on her need to have a regular income to support him and she qualified as a (occupation omitted).
b) Ms Batey was clear that her primary concern about Mr Rutherford spending time with the children in part arises from Mr Rutherford’s historical lack of engagement with the children “…because he is unreliable” and she is fearful he will cause the children distress as well as the children’s alleged reservations about spending time with their father. These factors have created anxiety for her about the impact of any contact on the children but she does not consider that she has imparted these concerns to the children. Ms Batey conceded that since Court Orders have been in place Mr Rutherford has been consistent in the time he has spent with the children, but she considers that he places considerable pressure on the children to support a review of arrangements.
The Family Report Writer interviewed the children to ascertain their views and feelings about spending time with the Father.
At first instance she interviewed X. During those interviews with X:-
a)she reported that X appeared burdened and oppressed about the circumstances in his family and the dilemma his Father has created for him;
b)observed that:-
X is able to articulate that he feels stuck between his parents and that he is highly anxious about his father’s role in his life. Mr Rutherford is a complex figure for X, both as a ‘father’ who has suddenly stepped into his life and a person he sees creating divisions and difficulties in his life.
c)She noted that:-
X, when with his father reports he most enjoys seeing his half-sibling A although he asserted A “…hogs the Play Station.” As A is not always present X then finds the time boring as there is little to do unless Ms J plays a game with him. He described time at his father’s home as “…often boring” and he misses his friends and notes Y is playing Barbies on her own in her bedroom.
d)During the interviews X expressed his feelings about the Father, saying that:-
X is aware of the pressure he feels from his father and he has a fairly sophisticated understanding of his father as “…someone who thinks I love him and says he wants me to be with him, but he (Mr Rutherford) doesn’t think about my life, or that I love mum.” X reported that he had only spent regular time with his father since the Court case commenced and prior to that “…I hardly knew him, and now it is like seeing a stranger,” and a person whom he finds “…doesn’t listen to me.” X would like the opportunity to take time “…to get to know each other first” before spending extended time with Mr Rutherford. X observed “…he doesn’t give me enough time” to adjust and he considers this is because Mr Rutherford is driven by his own desires explaining “…he (Mr Rutherford) wants to have a full house…a full family.” X noted that this issue of family “…a little bit it matters that it is me, but after a while it doesn’t, he is in the garage”, and he admits to being “…a bit resentful that he wants a full family so I have to be with him,” but he doesn’t actually spend the time with him. X explained his father “…wants to be kept updated about school…but he is not that interested in me…dad doesn’t play much with me.”
e)Further, X reported to the Family Report Writer that:-
his father “…is not a big part of my life.” X admits he is apprehensive about the relatively recent presence of his father “…because I am scared of dad, I have this weird gut feeling about him” which seems to be more noticeable prior to and after his visits with his father. X described the recent “…long holiday as less boring but I was worried all the time.” X reports his anxiety about his father “…is not getting less overtime” but he advised that his mother tries to encourage him “…telling me that there is nothing to be afraid of really.” X explained he had told his mother he was scared and he wanted her to be close by him during his extended stay with his father, but she refused. X explained both that his father “…is big and has a loud voice” and “…I am worried he (Mr Rutherford) won’t return us…early last year he kept us for a few days, he wouldn’t return us and I missed school.” X is apprehensive his father may over-hold him again, he is fearful of not being returned to his mother, and generally wary of his father who appears unable to hear X’s views. X is able to comprehend that his anxiety about been taken away from his mother by his father has been exacerbated by his experience of being over held but he also reports that his anxiety is not reducing over time and is directly related to his father. X explained repeatedly his need for his father to take things slowly and to “…get to know each other better” prior to spending extended time together.
f)X expressed to the Family Consultant what he wanted in relation to spending time with the Father in the future:-
X, is clear his place and home is with his mother, he does not wish to be separated from her and he sees his father as forcing this separation, without regard to X’s feelings who “…likes to spend time with people I know.” X stated he “…does not want to stay overnight with dad” and he was clearly reluctant about spending regular overnight time with his father but he did suggest he would consider a regular overnight, but only if his sister accompanied him. X feels his father does not understand that his mother “…is a big part of my life” and he “…misses mum.” X indicated that although not directly derogatory about Ms Batey, Mr Rutherford is entirely dismissive about her views of events and explains that things will “…be done his (Mr Rutherford’s) way.”
X is also hesitant about time with his Father because he is required to listen to his Father’s enduring complaints about doing all the driving and Mr Rutherford’s desire that “…I go on a train.” X observes, that for Mr Rutherford “…spending time with the children is his choice but he complains” and X reported his Father’s plan is that X will travel by train to (omitted). X also believes the intent is that he will travel, at some stage, without an adult accompanying him. Regardless, he is resistant to the notion of train travel, as this is another new element he is required to accept as part of spending time with his Father. X repeatedly raises concerns that he feels required to make all the adjustments to meet his Father’s needs.
X’s perception is that spending time with his Father is intrusive in his life, and something he has to do for his Father, and he appears uncertain as to what benefits flow to him from this reconnection. X is also concerned that some things in his life remain unchanged and he requested that time with his Father be suspended so he does not miss out on (hobby omitted) meetings (Monday night) or (hobby omitted) camps and other important social events.

The Family Report Writer interviewed Y. In relation to Y the Family Report Writer said as follows: –
a)     Y, presented as thoughtful and constrained and appears to be as burdened as X about current events but she too can be coaxed to a quick smile. It is apparent the current matter weighs heavily on her and largely because she feels pressured by her father’s conversations with her about Mr B.
b)     Y explained her reservations about her father are “…he is like a stranger…I am not sure about him.
c)     Y reports “…some nice times with dad” and she does like to play with her half-sibling A“…but they (A and B) don’t always come…they are often not there on Saturday.” She described activities like going to (omitted) or watching her older brother play (hobby omitted) but she also reported that if either her or X’s choice does not coincide with Mr Rutherford’s choice it is her father’s choice that prevails. Y also explained that her father “…spends most times with my brother” that her father talks less to her and she is frequently left in solitary play with her Barbies and Lego when in Mr Rutherford’s care. Ms J, at times plays with Y and she enjoys time with her also reporting that the changeovers are more pleasant now as Ms J drives and she does not complain about the driving as does Mr Rutherford.
d)      Y reported her father has discussions with her about his need to have “...more time with the children” and Y explains she feels pressured by her father. In contrast Y claimed that her mother does not have such conversations with her but when she has been upset her mother explained that “…it doesn’t have to be his (Mr Rutherford’s) opinion.” Y reported a profound sense of discomfort at the possibility of being separated for extended periods from “…my family, mum, dad, Z, (omitted)…it is fine as it is now, I can see my brothers (B and A), sometimes.” When pressed Y considered that “…overnight is too long” especially as she claimed that she had asked “…once” to ring her mother and her father initially said no but let her call the next day. Y reflected on the idea of staying overnight with Mr Rutherford and felt that she was only prepared to so this if X was also present “…as I wouldn’t go if I was by myself.”
The Family Report Writer made the following recommendations: –
I.      That X and Y continue to reside with their mother in Melbourne and spend time with their father in the following pattern:
a. It is recommended that the children spend time with their father from 10.00 am-4.00 pm Saturday, each alternate weekend until July 2015 after which the children will spend time each alternate weekend with their father from 10.00 am Saturday until 12 noon Sunday ;
b. Mr Rutherford to be responsible for collecting the children and returning the children to their mother’s residence;
II.     If either child has an event that they are unwilling to forgo on their father’s time Ms Batey is notify Mr Rutherford and if possible to schedule an alternate arrangement for the children to spend time with their father;
III         If Mr Rutherford fails to collect the children without prior notification to Ms Batey the children’s time with the father will be suspended for that period;
IV     It is recommended that the Court determine appropriate time during holidays for the children to spend with their father but it is recommended that such time not correspond with the children’s activities and that the children spend no more than three consecutive nights with their father and in the Christmas vacation only. During this holiday period the normal pattern for spending time is to be suspended;
V      Mr Rutherford is to be restrained from consuming alcohol or illicit drugs either 24 hours prior or during the children’s time with him. Should Ms Batey form the view that either of these activities have recommenced then Mr Rutherford’s contact with the children to be suspended;
VI     Both parents are to be subject to restraints not to discuss parenting arrangements with the children nor to speak about the other parent in a derogatory manner either to the children or in their hearing;
VII    Mr Rutherford is to be restrained from directing the children as to their behaviour towards either Mr B or their mother. Should he have issues of concern he is to directly approach Ms Batey in the first instance;
VIII   Mr Rutherford is only to attend the children’s school on the direct invitation of Ms Batey who will undertake to provide copies of all school reports to Mr Rutherford;
IX     It may assist the Court if parenting arrangements for B and A could be clarified and the time X and Y spend coincides with the time their half-siblings are spending time with their father;
X      It is recommended that an Airport Watch be in place for X and Y;
XI     Given the incapacity of the parents to communicate and jointly negotiate about major long term issues it is recommended that Ms Batey continue to have sole parental responsibility for X and Y;
XII    It is recommended that Mr Rutherford undertake a Tune into Kids Parenting Course email: (omitted) and provide a certificate of completion to the Court.
The Family Report Writer attended Court and was cross-examined by each of the parties. Towards the conclusion of the cross-examination the Family Report Writer amended her recommendation for the children to have time with the Father once every fortnight and rather said that once every three weeks would be appropriate. The Family Report Writer’s evidence in Court was as incisive and useful as her Family Report which had been prepared. The concerns that she set out in her report were elaborated on during oral evidence. For instance she said: –
a)that what is in the best interests of the children was not necessarily about the quantity of time but about the quality of time. She said that the repeated themes to emerge during the preparation of the report were that the Father was pushy. She said for X at least this creates anxiety;
b)she described X as intelligent and capable of expressing himself. She said that he did not oppose spending time with the Father but not for large blocks of time. She said that X was realistic in his appraisal of the Father. She said he was scared of the Father but could not explain why.
c)she said that the process of the Father developing a relationship with the children will take time and sensitivity.
d)she said a recurring theme was that the children were saying that Dad doesn’t listen;
e)with respect to the proposed travel to (country omitted) she said that there were a sequence of problems associated with that travel including the Mother’s anxiety regarding the children not being returned. The Family Report Writer indicated that the children were too young for this type of travel;
f)in response to a question from me, the Family Report Writer said that the Father has a self-centred view of the world and his capacity to contain information regarding his attitude towards he and the Mother’s history and even the children’s conception, is limited. She said that if this information becomes available to X that it has the capacity to cause issues for him as he enters adolescence. With respect to Y and particularly the Father’s continued reference to her conception as an unwanted pregnancy, overlaid with issues as to Y experiencing some level of gender discrimination in the Father’s household, the Family Report Writer said these issues have the potential to affect Y sense of her own self-worth and could affect her self-esteem.
g)The Family Report Writer said that whereas the Mother thought that alcohol and drugs were the issue, in her view the risk factors were far more subtle. She said that every active denigration of the Mother had the potential to impact on the children;
h)the Family Report Writer said that the fundamental scaffolding for a deep and meaningful relationship between the Father and the children was missing due to the familial history. She did not discount that such relationships may be formed into the future, provided that a reasonable relationship could be built now;
i)ultimately the Family Report Writer was not prepared to suggest that the children could tolerate even two consecutive nights and considered that a regime of once every three weeks, rather than once each fortnight might be more considerate of the children’s needs and sensitivities.
The evidence of the Family Report Writer was cogent and compelling. I find it most persuasive. Further, her observations accord with my own observations of the parties in Court and in particular my observation of the Father lacking insight and sensitivity into the children’s needs and having a more self-centred approach rather than any real ability to look outwards and approach his relationship with the children in a way which would be responsive to how they feel and how they interpret the Father’s actions.

The Law

I turn to the legislative pathway which will assist me in the ultimate outcome of these proceedings. In doing so, I do not propose to repeat matters earlier in these reasons
I first propose to turn to issues of parental responsibility.

Parental responsibility

Section 61DA of the Family Law Act 1975 (“the Act”) provides that when making a parenting order, I must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.
Parental responsibility in relation to children means all duties and powers, responsibilities and authority which by law parents have in relation to children.
Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in section 4 of the Act as follows:-
…issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent
In this case I apply the presumption, as I do not find that abuse or family violence considerations are applicable to the children.
The presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility may be rebutted by evidence that satisfies the Court that it would not be in their best interests for that to be so.
In order to make that assessment for this family it is useful to consider the requirements placed on the parties if equal shared parental responsibility were to apply:-
a)the parties would be required to make decisions jointly;
b)shared parental responsibility carries with it the requirement to consult with the other parent about issues;
c)shared parental responsibility carries with it a requirement to make a genuine effort to come to a joint decision about issues.;
Therefore, in considering whether it is the best interests of X and Y for their parents to share parental responsibility it is relevant to consider whether there is any capacity for the parties to consult and discuss with each other about long term decisions for the children or either of them. Although I cannot be sure, the decisions which are most likely to impact on the children are issues with respect to education and health. I have considered whether religion is also likely to impact, but in my view it is not. The Father told me that he is (religion omitted), enjoying the social festivities surrounding those beliefs, but does not otherwise hold any strong religious views.
There are a number of factors which impact on my assessment as to whether the parents have equal shared parental responsibility or whether I should accede to the Mother’s application that she have sole parental responsibility. For large parts of the children’s lives, when the Father has not been involved in any significant way, the Mother has been solely making decisions for the children’s welfare. She seems to have made appropriate decisions to date. However, this would not be determinative of the issue.
In considering this issue I give significant weight to the Father’s imperious attitude towards the Mother, his unwarranted elevation of his own role in the children’s lives, and how these factors impact upon the parties’ capacity to communicate and consult in an effective and meaningful way.
During interviews for the Family Report the Father asserted his position in relation to the Mother obtaining sole parental responsibility
Mr Rutherford objected to Ms Batey “…making solo decisions” but cannot consider how she would have managed if she had not done so. During discussions about how Mr Rutherford might manage an impasse in decision making say in changing schools between the parents Mr Rutherford stated unhesitatingly that the child in question would remain where he (Mr Rutherford) wishes. When this was examined further Mr Rutherford identified “…as I am a reasonable man there would have to be good reasons for change.”
The Mother set out her position to the Family Report Writer and her concerns regarding her capacity to communicate and reach decisions with the Father:-
Ms Batey repeatedly stressed that she considered that Mr Rutherford’s need for control made it difficult to resolve matters as parents and has led to her concerns that in order to achieve his goals Mr Rutherford may be manipulative of the children. An example of the latter is Mr Rutherford’s conversation and instructions to the children that they are not to call Mr B dad. The children were instructed by Mr Rutherford to refer to Mr B as “…Mr B because he is not your (omitted), I am he (Mr B) is only your mother’s partner.”
She said variously to the Family Report Writer:-
…that historically sole parental responsibility has been hers as it was segued to her in a defacto manner by Mr Rutherford complete lack of involvement or interest in the lives of the children. Ms Batey noted that currently Mr Rutherford remains uninvolved in day to day matters and does not assist with homework whilst the children are in his care. Ms Batey experiences difficulties with what she describes as Mr Rutherford’s reported position “…that all decisions should flow from him,” explaining that as he cannot accommodate the views of others “… he (Mr Rutherford) shows no capacity to co-operate” and she is unable to consider if he even has the capacity to be genuine about parenting co-operatively. Ms Batey although not raising the matter directly suggested that Mr Rutherford’s changed approach may not be long-lasting and it may not be of benefit to the children to change the current process of parental decision making. Ms Batey appreciates that Mr Rutherford may now wish to be appropriately informed about children’s matters.
Ultimately the Family Report Writer considered:-
96. Issues of parental responsibility are to be determined by the Court, however there is to be noted an extensive history of a lack of parental co-operation, current poor communication between the parents and Mr Rutherford presents as contemptuous of Ms Batey.
I acknowledge that to deprive a child of having both parents involved in exercising parental responsibility for their long term decisions is serious and requires careful consideration. However, I am of the view that such an approach is warranted for this family. I have no faith in the capacity of the Father to consult with the Mother in good faith and without the imposition of his own views, founded in his sense of entitlement rather than any intimate or sensitive understanding of the children’s needs. The Mother has said that she would find it difficult to negotiate outcomes with the Father and I find her concern to be objectively realistic.
Accordingly, I am satisfied on the basis of the evidence presented that the Mother should have sole parental responsibility for the children. I will however require the Mother to consider the Father’s views in relation to those issues and I will make provision for that in the orders that I make.

The legislative pathway

The best interests of the children are paramount in these proceedings.
In determining the best interests of X and Y there are two primary matters or considerations and several additional matters or considerations to take into account.
The primary considerations as set out in section 60CC(2) of the Act. I must consider: –
a)the benefit to the children in having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The second primary consideration is not relevant in this case. Although there are issues of the Father’s insight, sensitivity and capacity to provide for the children’s needs, and which may have an ongoing psychological effect on the children, these issues do not arise from being exposed to abuse, neglect or family violence and are more appropriately considered when I consider the additional factors.
It is of benefit to the children that they have a meaningful relationship with their Father. Both parties agree in relation to that but disagree as to how that should be achieved.
The term “meaningful” was discussed by Justice Brown in the case of Mazorski & Albright [2007] FamCA 520. At [26] her Honour set out: –
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.
The Full Court in McCall & Clark [2009] FamCAFC 92 at paragraph 117 adopted the approach discussed by Bennett J in G & C [2006] FamCA 994 and said the enquiry as to whether a relationship is meaningful is:-
a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
In drawing a conclusion in relation to the children’s particular circumstances, I conclude that the relationship with their Father is meaningful to them and will be of advantage to them. The real issue in this case is how to progress that relationship in the most appropriate way which will ensure not only the significance of the relationship and a sense of value attributable to it, rather than it being a relationship that is fraught with tension and anxiety.
For these children a less frequent, more contained spend time with regime is more likely to promote their welfare and the meaningful nature of the relationship with their Father in a positive way, than imposing too much time and placing unnecessary stress on the children.

The relevant factors in section 60CC(3)

I turn now to the additional considerations which will assist me in the determination of how the primary considerations impact on the children’s welfare and best interests overall. Some of the additional considerations are more relevant than others for X and Y. For instance, the nature of the children’s relationship with the Father as it is has evolved through sporadic and unpredictable time with him has had a significant impact on the outcome of this case. That factor, coupled with the assessment that I make of the Father as having limited capacity to deal sensitively with the needs of the children, dictate that their relationship with him should be relatively contained.
In dealing with the additional factors in turn, I find as follows.

X’s and Y’s views

It is the Mother’s position that X experiences anxiety surrounding his relationship with his Father. She said to the Family Report Writer:-
…X had informed her on several occasions he “…is scared of his father” and he is so fearful he has claimed “…he (Mr Rutherford) will kill me.”
Although I accept that X does experience anxiety surrounding his relationship with his Father, there is also some ambivalence surrounding the same.
The Mother also indicated that Y is reluctant to spend time with her Father but is not as fearful or anxious as her brother. Her reluctance seems to arise out of her experience of her time at the Father’s home.
Ultimately the Family Report Writer concluded as follows: –
The message from the children is clearly that they are not opposed to a relationship with their father, but they would like one that is respectful, that accommodates their needs and views and one in which Mr Rutherford is perceived as making some effort to develop a mutual relationship. They would like a father who listens to them, spends time with them and who is prepared for this relationship to develop over an extended period, they do not wish to feel rushed. They would like Mr Rutherford to step into their world and to be respectful of their life and specifically their mother, Ms Batey as well as Mr B. They do not wish to feel compelled to Mr Rutherford’s wishes, nor frightened that they will not be returned to their mother. The children do not want to be emotionally overwhelmed by their father’s view of how their life should unfold. These are some elements that are making the children scared about spending time with their father.
Although the children’s wishes are not determinative, the orders that I intend to make in this case will reflect their underlying desire to maintain their own life in the Mother’s home while accommodating the need to have a relationship with their Father. This will include accommodating the children’s extra-curricular activities in Melbourne, which are of significant importance to X.

The Nature of the children’s relationship

Historically the Father’s relationship with the children has been intermittent and as a result is not of the quality which would support the children spending significant time or extensive overnight periods with him. The children’s relationship with their Father of more recent times has been significantly impacted by:-
a)the Father’s almost complete incapacity to appreciate that the children have experienced a disjointed relationship with him;
b)the Father’s assertion of that which he regards as his rights and entitlements;
c)a lack of sensitivity and empathy on his part as to how the children experience their time in his care;
d)The Father’s inability to appreciate that the children have a primary home, a full and happy life within that home, and a step-father who has fulfilled the paternal role in the Father’s absence;
It is the nature of the Father’s relationship with the children which has a significant impact on the outcome of this case.
The children live with their immediate family which is constituted by their Mother, their step-father Mr B and their younger sibling, Z.
The Mother has an intimate understanding of the children’s needs and role within her primary family unit. The children’s relationship and history of primary care in the Mother’s household, including their relationship with the step-father in the parental role, needs to be respected and acknowledged. Due to the Father’s incapacity to understand sensitively the children’s needs, he has undermined Mr B’s role in the children’s lives and has caused confusion to them regarding that.
The Family Report Writer explored the issues of the children’s relationships with their immediate family. She reported that: –
a)     X spoke both with great fondness for his sibling Z and wry amusement about the amount of noise Z makes at times.
b)      The divisions Mr Rutherford generates have to do with X’s relationship with Mr B and Ms Batey. The difficulty for X is that Mr B is reported as being a far stricter disciplinarian than is Ms Batey, and his particular focus of concern appears to be the tidiness or otherwise of X’s room. In general X does not report any discipline that is inappropriate other than on one occasion when he describes laughing repeatedly at Mr B, who pushed him and X knocked his head. X’s strong sense is that his mother is more relaxed about these matters, and it has to be noted that steps have now been taken to ensure that only Ms Batey disciplines the children.
c)      X spoke about how Mr Rutherford had explained “…Mr B (Mr B) is not your dad, he is not your biological dad…I am your (omitted) (father)...Mr B is only your mother’s partner.” X finds these conversations with his father difficult and confusing as Mr Rutherford has generated a sense of disloyalty in X, because he is fond of Mr B “…who is pretty good except for the strict stuff” and he is aware that this is a view he not allowed to voice to Mr Rutherford.   X is worried that he should not be feeling the attachment he does to Mr B because he is aware that his father disapproves of this and he struggles with his ambivalence about his father’s advice, uncertain how to manage the pressure from his father not to consider Mr B as significant in his life.   X is able to acknowledge that it has been his father’s demands on him that has caused a re-examination of his relationship with Mr B, and it is Mr Rutherford’s direct influence that created some emotional difficulties and resentment between himself and Mr B.
d)     Y though is not confused about her relationship with Mr B as she appears strong willed and is unwavering in her affection for Mr B.   Y draws breath and stated that “…he (Mr B) is my dad” and she explained that he is available to help her and to comfort her when she is distressed; she identifies him as a strong attachment figure and a reliable and protective person in her life. Y commented freely on Mr B’s kindness to Z (Ms Batey’s baby) and how he comforts Z if he cries. Y described “…lots of nice things” about her life with her mother and Mr B, the most significant being her mother who “….is really nice” as well as Mr B, her little brother, and her puppy ((omitted)) and her collection of teddy bears including her favourite “…Piggy.” Mr Rutherford is a novelty in her life and represented as someone who is insensitive to the people in her life with whom she has formed significant attachments.
e)     Mr B is reported as “…working hard” as he has long hours and is not always available for the children, but when he is present X acknowledges that Mr B plays with him and their time together is pleasant. X reported he would go to Mr B to help with a problem, if he could not wait for his mother, but he would not seek assistance from his father “…as I can’t talk to (omitted).”
f)      Y explained her reservations about her father are “…he is like a stranger…I am not sure about him” claiming that Mr Rutherford can be abrasive “…as he (Mr Rutherford) sticks his nose in…he can get really angry and he is not interested in your view.” She reported apprehensions about experiencing her father’s “...angry voice” on several occasions, notably when she referred to Mr B as dad, and on other occasions when Mr Rutherford wants her to be immediately obedient. Mr Rutherford is reportedly quick to be angry with X and to correct his behaviour swiftly, which “…makes me feel uncomfortable” and citing an incident she believed her father misunderstood, Y took the view “…it is not his place to correct X.” Y summarised her concerns about spending additional time with her father as “…(omitted) usually doesn’t listen to me a bit, I don’t like it that he doesn’t because I always listen to him,’ at which she cried explaining “…it upsets me a lot…I would like it if he did (listen to me).” B requested “…tell dad to listen to me a bit more, be a bit more nice, stop butting into other people’s business.”
The Father’s willingness to undermine the children’s relationship in the primary home is a matter of significant concern. It was clearly a matter of primary concern to the Family Report Writer when she spoke of the subtle denigration of the Mother and her household to the children and the ongoing impacts that that may have upon them.
I also note that the children’s relationship with the Father is fractured and severely diminished by reasons of his failure to be involved in their lives during the early years of their life. There is no real foundation upon which their relationship can be built to the same extent as the relationship that they enjoy with their Mother, Mr B and their siblings.
The competitiveness of the Father regarding the Mother and her household, particularly with Mr B, has also impacted on the children’s relationship with him. The children find it difficult to understand concepts of adult jealousies and feelings and merely experience the Father’s comments about Mr B as conflictual and representing discord between the two homes between which they are supposed to negotiate time.
The children have a rich and full life in their Melbourne home, a life which the Father obtrudes into from time to time.
The children enjoy a close and intimate relationship with their Mother.
The children have a relationship with the Father’s older children which they value and look forward to, although the nature of that relationship is unpredictable because the older children do not always attend at the same time the children are there.
I have no significant information with respect to the children’s relationship with Mr L and Ms C but assume that it is functional.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child to spend time with the child and to communicate with the child

This factor is a significant issue in this case. Although the Father asserts that the Mother has been involved in parental gate keeping in terms of his relationship with the children, his own material reveals that his involvement with the children is intermittent at best and has been characterised by long periods of absence in their lives. It is because of this that the children’s relationship has not developed as well is it would have had the Father been intimately involved in their lives from the early stages.
As the Family Report Writer said:-
Mr Rutherford is seeking extended time with this children but he does so having refused to engage with the children during their formative years and never having sought to establish a pattern of attachment to the children. He comes to these children as the ‘known stranger’, with the title father and expectations that the children will cohere with his wishes and form a family with him as the central focus. At no stage has Mr Rutherford considered that the children may be apprehensive about this sudden transition nor has he considered that they might considered his behaviour from a range of perspectives, both positive and negative including that his presence in their life is disruptive and scary. It what appears to be a pattern Mr Rutherford does not expect to be held accountable for his behaviour and his expectation appear to be that others will conform to his views.

The extent to which each of the parents have fulfilled or failed to fulfil his or her obligations to maintain the child

The Father has paid very little child support for the children. To some extent his cavalier attitude towards the payment of child support mirrors his parenting style and attitude to the children.
He did say that he had paid cash amounts to the Mother which were not credited against his child support arrears, however on any view the Mother has received very little by way of financial support from him.
This issue has little influence on the outcome of these proceedings.

The likely effect of any changes in the children in the children’s circumstances

It is the Father’s application that he spend every second weekend and extended school holiday time with the children. For the reasons that I have set out, I do not regard such an arrangement as being in the best interests of the children. The children would experience that style of time with their Father as anxiety provoking and interruptive to their day-to-day lives.
I do however propose to order some limited overnight time and some time during religious festivals for the Father, namely (omitted). Although the orders will introduce some change for the children, the reduction in frequency will also alleviate some of the burdens of the way the time impacts on activities that they have in the Melbourne area close to their primary home. The children should be able to cope with the minimal changes I propose.

The practical difficulty and expense associated with face to face time and/or communication with the other parents

The children’s home and the Father’s home are about an hour and a half driving distance. The travel is the cause of some consternation to the Father who has been required to facilitate the travel. There is a suggestion that the children should be able to travel by train to (omitted) which is about a 1 hour and 15 minute train trip from (omitted) Railway Station. I would not impose train travel for the children alone unless it was agreed to between the parties.
There are some practical issues with respect to geographic distances and it is for that reason that the children are unable to enjoy their extra-curricular activities while spending time with their Father. In particular, for X (hobby omitted) is important. By reducing the weekends that the children spent with the Father to once every three weeks that too will alleviate some of the travel issues which are considerable but not insurmountable.
It was the Mother’s position that the Father should do all of the travelling. She cites her own commitments with a young child, together with the poor financial support provided by the Father, as reasons for her position. Although her position is valid I have decided that changeovers should take place at (omitted) Railway Station by either the parties or their nominee, who should be well known to the children. Because I have reduced the frequency of the children’s time with the Father and given the distances involved, this will maximise the children’s time with the Father and alleviate some of the burden of travel for the Father which has caused him such consternation, I would hope that the parties can now settle down to the reality that they live over 100 kilometres from each other and will have the burden of travel in order to advance the children’s right to have a relationship with the Father in an appropriate way, without exposing the children to petty or petulant complaints regarding travel.
In those circumstances, I do not regard it as unreasonable for the parties to meet at (omitted) Railway Station, which will provide each of them with the opportunity to either catch a train or drive as they see fit. The Mother shall not be required to place the children on a train to (omitted) without adult supervision unless she agrees to do so.

The capacity of the parents to meet the children’s needs

The capacity of the Father to meet the children’s needs is impaired. Although I have no issue about his capacity to meet the day-to-day needs of the children, even with the allegation of alcohol misuse made by the Mother, I am concerned about his capacity to meet their emotional needs in a way that will not provoke anxiety. These issues are set out in the Family Report and were elaborated on by the Family Report Writer during her evidence. In particular I am concerned that the Father’s critical stance and attitude towards the Mother cannot be contained and he will fail to shield the children from information about the circumstances of their births.
I note the comments of the Family Report Writer:-
a)      Mr [sic] Batey believes Mr Rutherford has no capacity to understand what has been involved in her role as solo parent, nor does he have any current ability to consider the needs of the children as either a priority or the emergent emotional issues for the children with regard to their father’s sudden interest in them. Ms Batey reflected that probably her greatest concern is that Mr Rutherford “…is unaware of another’s difficulties…and I am uncertain if he is genuine in his desire to reconnect” and these future considerations are at the forefront for Ms Batey.
b)      Mr Rutherford frequently discusses parenting arrangements with X which often leaves him further distressed and worried that he will have to stop his activities, such as (hobby omitted) to spend time with his father.
c)     The garage, containing a refrigerator and pool table is the place Mr Rutherford reportedly spends most of his time when the children are visiting unless they are engaged in some activity outside the home. Mr Rutherford smokes here, not in the house, and it was in the garage that X reported “…seeing a plastic bag” with grass and twigs “…when I first started going there but no more”,
d)      X explained from his perspective the situation is “…I am here but he (Mr Rutherford) is in the garage,” and although ambivalent about his time with his father there is a clear irritation that Mr Rutherford does not seek to spend time with X and allow each to get to know the other in a manner that would help X be more relaxed in his father’s company.
e)      Y reported she has been instructed by her father to call Mr B “…Mr B” and that Mr Rutherford’s conversations and instructions have caused her great distress, something she does not believe her father has thought about.
f)      Mr Rutherford operates from a position of his rights and his entitlement to have a relationship with the children he believes accrues to him entirely as a consequence of biology. He does not hold himself accountable for his behaviour as he entirely dismisses the past as another’s responsibility such as “…my wife introduced us” or he is demeaning of Ms Batey suggesting her alleged inadequacies are the cause of his behaviour.
g)      Mr Rutherford has demonstrated little genuine understanding of parental responsibility and his claims about his impact on the children and their response to him appear grandiose.   In actuality his self-reports as a father reflect his need for admiration and confirm he is without both awareness and empathy for the emotional pressures he has created for X and Y. Mr Rutherford’s flawed sense of entitlement allows him, unblushingly and destructively to intercede in the children’s pre-existing parental relationships. He fantasises an importance in the children’s lives he has not yet earned and has demonstrated self-serving controlling behaviour in his apportioning of parental roles. Dismissing Mr B and his on-going disrespect of Ms Batey can be construed as either deliberate patterned behaviour, designed to manipulate the children to favour him or the unconscious act of an immature self-serving and unprotective parent focused on his own needs. X may well have been prescient when he identified his father’s need is for “…a full family” and moreover it didn’t really have to be X, filling that bill.

The child’s maturity, sex, background and other characteristics I consider the maturity, sex, lifestyle, background, including a lifestyle, culture and tradition of the children and their parents

The Father cites this as an important matter. He says he would like the children to experience and be familiar with his (nationality omitted) cultural background. I have formed the view, and the Mother agrees, that the children should be permitted to attend religious days and I will make those orders.
The Father also would like to travel with the children to (country omitted). I concur with the Family Report Writer that due to other considerations, this would not be in the children’s best interests. The reason for this includes the Mother’s anxiety, the fragile nature of the children’s existing relationship with their Father and a lack of consistent care by him of them.

The Father told the Family Report Writer that:-
Mr Rutherford reported he wanted “…the boys to have privileges and opportunities to know my background” and he would like to take the children to (country omitted). Reminded that he also had a female child Y he adjusted his statement to include taking all the children, to (country omitted) together, advising that “…Australia is my home”, he would not wish to live in (country omitted) again and agreed he may post a substantial bond to ensure the children’s return.
In support of his position to travel he said:–
“…two different worlds” and for the children to “…to know it is OK to be different”, but it is unclear what are the points of difference to which he is referring. Mr Rutherford wishes to “…be involved in the children’s life” and “…it is my entitlement to have time with the children” and in addition “…to access the children anytime I want” and Mr Rutherford identifies the children as “…needing to experience my world”.
The Family Report Writer concluded that:-
Mr Rutherford wishes to emphasise the children’s need to experience difference, and whether that is the observance of different religions, or life with either separated parent is unclear. The strength of his “…two different worlds” theory is that it exposes the children to new knowledge. The limitation of this world is either parent may operate as silos in regard to the children, insensitive to the notion that it is they who must live in two worlds. It is also a situation opportune for parents unwilling to negotiate or resolve differences. Mr Rutherford does not appear able to define how, if contentious these differences would be managed but his behaviour indicates that his expectation is that others will adhere to his views and this reflects concerns expressed by the children that Mr Rutherford is controlling. Mr Rutherford does not demonstrate a child focused view of the inherent tensions for children travelling between different homes and the discrete values of either parent. The goal of co-operative parenting is to support the needs of the children and not promote one parent’s view to the detriment of the other parent and children.
In relation to an exposure to the Father’s religious beliefs, the family report writer reported:-
In a similar vein neither of the children professes to be of (omitted) faith and it appears to be of little benefit to the children if they were required to take on the additional pressure of their father’s preferred form of worship, especially in light of his non-complained with his own basic religious precepts. Again, X clarifies that it is not reality that it is significant but the image that Mr Rutherford projects and it is not the role of the children to address their father’s religious needs.
Although I can understand the Family Report Writer’s position, in my view there is some benefit for the children to be exposed to the Father’s religious beliefs, particularly if they are in the style of celebratory events. I accept that is the case as the Father told me that and I have no reason to doubt his evidence in that regard.

The attitude to the children to the responsibilities of parenthood demonstrated by each of the child’s parents

This factor has been dealt with in detail in these reasons. Suffice to say that the Father’s attitudes to the responsibilities of parenthood are impaired in many respects.
I find that the Mother’s attitude to such responsibilities is satisfactory.
There is a suggestion by the Family Report Writer that the Father applies an unequal model of gender between Y and his sons. Although the Father denied that position, he should be careful to ensure that he treats all of his children in the same way. I accept that there are some demonstrably concerning incidents with respect to gender imbalance. However, on balance, I find that the Father’s position in this regard is satisfactory.

Family violence involving the child or any member of the child’s family and family violence orders

Not relevant.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children

These orders should be final orders. Although I noticed that the Family Report Writer indicated there was some possibility for improvement in the Father’s position, if that is to occur the parties should at first instance negotiate and, if necessary, engage in alternative dispute resolution. The children are fast reaching the age where their wishes and expressed views will carry significant weight.

Other Matters

Travel to (country omitted)

The Mother is opposed to the children travelling to (country omitted) and for the reasons that I previously set out. I do not regard that travel as being in the children’s best interests.
I shall dismiss the Father’s application to travel with the children.

Name Change

The Father seeks a name change for the children to reflect his surname, whereas the Mother opposes that application. It is difficult to understand why the Father pursues this application in circumstances where X has reported to the Family Report Writer that he would prefer to maintain the name that he has been using and where Y did not wish to change her name “For reasons of her own.”
It would seem to me that the Father’s notion of having the children use a surname that reflects his own surname is more in keeping with his own needs, rather than those of the children. The children have coped well with the names they use now and there would seem to be nothing to suggest that should change into the future. There are much more significant matters in this case regarding the children’s welfare than their names.

Alcohol

The Mother has concerns regarding the Father’s alcohol consumption. The Family Report Writer set out her concerns about the semantic approach the Father took to the interim orders restraining his alcohol use during periods the children were in his care. The Father’s approach to the interim orders does him no credit at all and shows a concerning disregard for the importance of the orders made.
Nevertheless, and notwithstanding the Mother’s historical concerns, there seems to be no recent concerns regarding excessive alcohol use by the Father and on that basis, and because the orders are to be final, it would seem unreasonable to restrict the Father’s alcohol use entirely. I propose to restrict the Father’s alcohol consumption to reasonable limits (being defined as a blood alcohol count not to exceed .05) during any period the children are in his care.

Non-denigration

The Family Report Writer has identified the Father’s subtle denigration of the Mother and the Mother’s primary home for the children, including Mr B, as an issue which impacts on the emotional functioning of the children. For the reasons I have previously set out I concur with the Family Report Writer’s view that this is a significant welfare issue for the children. Accordingly, I propose to make an order restraining the Father from denigrating, belittling or criticising the Mother, Mr B or other significant persons in the children’s family, to or in the presence or hearing of the children or either of them.
In an effort to make myself clear, such an order is intended to encompass subtle undermining of Mr B’s role in the children’s lives, such as challenging the children when they reference Mr B as “Dad”, or comparing the Father’s biological status as father with Mr B’s non-biological status as step-father.

Not removing the children from school

The Mother sought an order that the Father not be permitted to remove the children from the school grounds. I decline to make that order but make it clear in these reasons that I would regard such conduct as being in breach of the spend time with orders I have made, unless the Father is scheduled to spend time with the children when he removes them from the school grounds. The children should be free to enjoy their attendance at school as a safe place, without being burdened by any anxiety that their Father will collect them without the Mother’s knowledge or permission.

Special events for the children

In the unique circumstances of this case, and particularly as the children’s care has evolved to very much having a primary home in Melbourne with a fulfilling life, I propose to allow the Mother the opportunity to swap weekends in the event one of the children has a specific event which is important to them on the Father’s weekend. As I have observed the Mother in Court and made a detailed assessment of her commitment to the children’s well-being, I am confident that she will not abuse this entitlement but rather apply it appropriately. In any event I shall also order that make-up time take place on either the weekend prior to or the weekend following the scheduled weekend, at the Mother’s election.

School holidays

During school holidays I propose to extend the time the children spend with the Father in order to give them an experience, albeit limited, in the Father home without the burden of travel each day

Conclusion

For the reasons that I’ve set out I am of the view that the children should spend time with the Father on a three week cycle for one weekend from Saturday morning through to Sunday afternoon. In my view this will promote a meaningful relationship between the children and their Father, without exacerbating pre-existing anxieties and concerns about the children’s time and how they feel about living with the Father.
In conclusion and having regard to all of the various factors impacting on the family, the orders as set out are proper and appropriate for X and Y.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Date: 24 March 2016

[2016] FCCA 602

24 March 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Injunction

Remedies

Jurisdiction