SAIF & SAIF (NO.2)

[2020] FamCA 407

FAMILY COURT OF AUSTRALIA

SAIF & SAIF (NO.2) [2020] FamCA 407

FAMILY LAW – CHILDREN – Application by wife for sole parental responsibility – three children of the marriage – history of domestic violence – issues of substance dependency – where the husband has made no application for resumption of supervised time – matter proceeded undefended – consideration of best interests of the children – whether husband poses an unacceptable risk of harm to the children – orders made as sought by mother and consented to by Independent Children’s Lawyer.

Family Law Act 1975 (Cth) 60CA, 60CC, 61DA

APPLICANT: Ms Saif

RESPONDENT: Mr Saif

INDEPENDENT CHILDREN’S LAWYER: Joliman Lawyers

FILE NUMBER: PAC 180 of 2019

DATE DELIVERED: 16 June 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 25 May 2020

ORDERS MADE: 25 May 2020 and 16 June 2020

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bowman

Final Orders Made 25 May 2020

1. All previous orders be discharged.

2. The mother have sole parental responsibility for the children X born … 2008, Y born … 2011 and Z born … 2014 (‘the children’).

3. The children live with the mother.

4. The mother do all things reasonably necessary to facilitate telephone or other electronic communication between the children and the father on a telephone number or other facility nominated by the father, with such communication to be on and not less than two occasions each week at a time agreed by the parties, and in default of agreement each Wednesday and Sunday evening between 6.30pm and 7.00pm, with one such telephone communication each month to by FaceTime or similar.

5. The children spend time with and communicate with the father by agreement between the mother and the father, such agreement to be in writing and may include conditions, including that the children’s time spent with the father be supervised at a contact centre, with such contact centre to be agreed between the parties.

6. Otherwise all extant applications are dismissed and the matter is removed from the list of active cases.

AND THE COURT NOTES THAT:

A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

Orders Made 16 June 2020

1. The mother is to serve upon the father a copy of the orders made 25 May 2020 and 16 June 2020 as soon as it is practicable.

2. The father have 28 days after service upon him of the orders made 25 May 2020 and 16 June 2020 to seek to set aside the orders. Such application must be in writing and supported by affidavit evidence.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: PAC 180 of 2019

Ms Saif

Applicant

And

Ozal Saif

Respondent

REASONS FOR JUDGMENT

Background 

1. This matter proceeded on 25 May 2020. The Court made parenting orders as sought by the Applicant wife (‘the wife’) and consented to by the Independent Children’s Lawyer. 

2. The wife commenced this proceeding seeking parenting orders by Initiating Application filed by her on 16 January 2019 in the Parramatta Registry of the Court. At trial the wife relied upon an Amended Initiating Application filed by her on 3 May 2020. In that application, she sought by way of final orders:-

   1. That the Applicant Mother have sole parental responsibility of the Children X d.o.b (…2008), Y d.o.b (…2011) and Z d.o.b (…2014).

   3. As per Judgement by Justice Foster delivered on the 28 February 2020, Order 6 in reference to phone time to continue Wednesday and Sunday evening between 6:30pm and 7:00pm.

   4. That the Father, Mr Saif have one FaceTime phone call a month on one of his allocated phone times listed in order 3.

   5. As per Judgement by Justice Foster delivered on the 28 February 2020, Order 7, that the father be at liberty to apply as to the resumption of orders for supervised time with children. In addition, the Father Mr Saif have supervised visits with the children in Melbourne at a contact centre of his choice.

   6. That the Applicant Mother, Ms Saif be at liberty to travel on holiday with the 3 Children outside of the Commonwealth.

3. The proceeding is undefended by the husband. In those circumstances the wife’s evidence is unchallenged. It is contained in affidavits of evidence sworn or affirmed by her on 6 March 2019; 19 July 2019; 28 January 2020 and 30 April 2020. Statements of fact in these reasons are findings of fact on the balance of probabilities.

Evidence

1. There are three children the subject of this parenting order proceeding. They are X born … 2008 and now aged nearly twelve years; Y born … 2011 and now aged nearly nine years; and Z born … 2014 and now aged six years (‘the children’).

2. The wife was born on … 1988. She is aged 32 years.  The Respondent husband (‘the husband’) was born on … 1982. He is aged 38 years.

3. Prior to the parties meeting, the husband had been imprisoned as a result of his criminal conviction.

4. The parties met in or around April 2006 and married on … 2007.  At the time, the wife was 18 years of age.  The husband was almost 25 years of age.  The wife’s family did not approve of her marriage to the husband and ceased contact with her following the marriage. 

5. On 18 May 2007, the parties commenced to cohabitate. The parties’ period of cohabitation was approximately 11 years and four months, with the parties physically separating on 18 September 2018. At that time, the wife, who had renewed her relationship with her family, departed the former matrimonial home together with the children, and took up residence in her parents’ family home in a Sydney suburb. They remained so residing until the wife’s parents’ sale of their home, and relocation to Melbourne. 

6. The wife’s affidavit evidence detailed family violence perpetrated upon her and the children by the husband.  It included verbal abuse and threats of physical abuse including a threat to kill.  The wife’s evidence was that in or about August or September 2018, when she told the husband that she wished to end the relationship, he said to her “I will pop you if you leave me”, “You will not see your kids”, “You will never be allowed to move on”, “I’ll never leave you alone.”[1] 

   [1] Affidavit of Ms Saif sworn 6 March 2019, [8].

7. The wife’s evidence described a period of cohabitation wherein the husband was unemployed throughout, with her working both full and part-time, together with being in receipt of parenting payments to support the household and the children.  The husband has not paid child support for the children since the parties physically separated in September 2018. 

8. The wife described in her evidence,[2] how the husband would, on many occasions during an argument, grab items such as chairs, and on one occasion a bar stool, and “act like he was going to launch it at [the wife].”[3]  He would throw the item past the wife “damaging/denting the nearby wall and at one time denting the fridge”.[4] The wife’s evidence was that the children would always be around.  They would “usually just freeze up and watch what was happening”.[5]  The husband would then say to the children “[g]et the fuck in your room.”[6]

   [2] Affidavit of Ms Saif sworn 6 March 2019, [9].

   [3] Affidavit of Ms Saif sworn 6 March 2020, [9].

   [4] Ibid.

   [5] Ibid.

   [6] Ibid.

9. On 1 June 2018, the husband was served with a firearms prohibition order (issued 21 March 2014) relating to his association with an outlaw motorcycle club. In a raid on the parties’ home, the police found two vials of unprescribed steroids, one vial of Enanthate and one vial of Equipoise. The husband was charged in respect of those matters. It was at that time the wife decided to pack her and the children’s belongings and leave the home.

10. The wife’s evidence as to the parties’ date of separation was somewhat inconsistent. She claimed that from on or about 4 December 2008, the parties were, in fact, separated.  It was around this time that the husband advised the wife that he had joined the motorcycle club. The wife’s evidence was that the husband formally lived with his mother from December 2008, but it is clear on both parties’ affidavit evidence that the parties’ residing under the one roof, and at different locations as detailed hereafter, fairly much continued with the parties’ three children being born in 2008, 2011 and 2016.  In 2013, the wife terminated a pregnancy. The wife also continued to do the husband’s washing and to cook for him, as well as engaging in gainful employment, looking after the three children and dealing with the family’s difficult financial situation.

11. During cohabitation, and at about 10.30pm on 31 March 2011, the paternal grandparent’s family home in New South Wales was the subject of a shooting in which the husband’s brother-in-law was shot multiple times in the head and chest, resulting in a six-month induced coma.  The perpetrators were not caught.  On the night of the shooting, the wife said to the husband words to the effect of “I will go and stay at my parents’ house with X.”  The husband responded “You are not fucking going anywhere.”[7]  The wife was, at the time, five months pregnant with the child Y and working full-time with the L Group. Two weeks after this incident, the husband required the wife and X to move to a more secure residence where they remained living for some two to three years. 

    [7] Ibid, [23].

12. In 2014, the family moved to an estate which had security guards at the front gates.  The husband insisted on putting security cameras at the front door. 

13. In February 2015, there was a knock on the door at about 10.30pm.  The wife answered the door to an unidentified male who asked her whether the husband’s brother was home.  When she answered “no” the man laughed and indicated that he was sure he was there. 

14. The wife was very frightened by this episode and those that had proceeded it and again indicated her intent to take the children and leave the husband. She claimed she was “…still not allowed to leave with my children”.[8] 

    [8] Affidavit of Ms Saif sworn 6 March 2020, [28].

15. The wife’s evidence was as follows:-

    On or about July [sic] 2018, my residence was raided by the Federal Police looking for the Respondent to serve him with the [firearms] protection order.  They knocked on my door from 2014 until the day of the raids in June 2018.  I was forced to tell the police I didn’t know where he was even though he was inside the property at times as I feared what he might do to me. He would say things like  “You know what they do to dogs.”  “If you tell them I’m here and they raid the place, they can plant something in the house.” “This property is under your name, you’ll get done too.”  This gave me so much anxiety and fear I continued to tell the police I didn’t know where he was.[9]

    [9] Affidavit of Ms Saif sworn 6 March 2020, [30].

16. After the wife left the husband in September 2018, he threatened her by saying “I am back with my boys” in a WhatsApp text, insinuating he was affiliating with outlaw motorcycle clubs.[10] 

    [10] Ibid, [33].

The Husband’s Medication Addiction

1. Throughout the entirety of the parties’ relationship, the husband took medication.  He claimed it was for back pain, to assist him to sleep and control his anxiety and for other ailments.  The wife’s evidence as to this matter was as follows:-[11]

   47. The Respondent has an addiction to prescription medication such as Xanax, Endone, Tramadol, Valium, OxyContin and Panadeine Forte which are mostly obtained both legally and illegally.

   48. I have personally experienced The Respondent having prescription drug related seizures on two occasions.  I have also witnessed him having several panic attacks. 

   49. The Respondent on several occasions admitted himself to hospital advising he had a bike accident or feels chest pain so he can be given endone or morphine-based medication. The Respondent on many occasions would admit himself out of hospital without being discharged, and he has had several issues with the hospital staff at M hospital due to his anger and hostile behaviour if he’s [sic] medication wasn’t brought to him on time.  The Respondent once said to me, words to the effect of “I can’t go M hospital I’m going to get asked to go N hospital because they hate me at M hospital.”  The Respondent has explained to me on various occasions the arguments he would have with the nurses resulting in security being called. 

   …

   55. I have observed The Respondent to be drowsy, cross eyed and groggy when he takes his medication.  He displays forgetfulness and I have observed him to fall asleep with cigarettes in his hand burning his clothing.  When the Respondent is coming off his medication he is agitated, unable to tolerate any noise from the children, becoming verbally abusive toward me and the Children. 

   [11] Affidavit of Ms Saif sworn 6 March 2020, [47]–[49], [55].

2. The husband’s medication addiction and his mixing of steroids with such medication was the source of ongoing marital issues between the parties and caused the wife to be very fearful that the husband would hurt her and/or the children. 

Post-Separation

1. Between the separation on 18 September 2018 and until 21 December 2018, the husband spent time with the children each week, as instigated by the wife.  These visits occurred in one week from Friday to Saturday, and in the next from Friday to Sunday, and thereafter alternating, with changeover at McDonald’s in Suburb O.

2. On 1 November 2018, the husband met the definition of the New South Wales Ministry of Health “drug dependant”.

3. On 13 December 2018, the husband approached the wife in the underground car park of her workplace, she having continued in her same employment. He approached the driver’s side window, the wife being in the vehicle, and banged repeatedly on the glass.  When the wife arrived home that day, she received a letter from lawyers acting for the husband. The letter stated the husband was seeking 30 per cent of the wife’s motor vehicle accident claim payment, a payment received by the wife in respect of a proceeding first commenced by her in April 2016. The husband had earlier claimed an entitlement to the wife’s personal injury claim in a verbally abusive telephone call he made to her, continually saying “I will fuck you over”.[12]  The wife advised the husband in response that he had been on Newstart for almost 15 years; that he had not contributed toward her or his children financially; and that the parties had been separated at the time of her accident. The husband continued to be abusive and threatening toward both the wife and her parents, saying in respect of her father “tell your dad to watch himself”.  The wife did not wish to hand the children over to the husband on the weekend following the episode of 13 December 2018. Her brother spoke with the husband’s brother to defuse the situation, and the husband’s brother responded with “Call the police, we can’t stop him from coming there, tell [Ms Saif] and the family to leave the property.”[13]

   [12] Affidavit of Ms Saif sworn 6 March 2020, [59].

   [13] Affidavit of Ms Saif sworn 6 March 2020, [60].

4. The wife reported the incident to the police on 13 December 2018.  The husband was charged by police with intimidation, and an AVO was granted on 30 December 2018.  Such order was an interim order, with the matter otherwise adjourned to 6 March 2019.

5. On 21 December 2018, the wife agreed for the arrangements between the children and their father to continue, those arrangements being for the husband to spend weekend time with the children. She was afraid of the husband. The children were to be returned to their mother’s care on 23 December 2018, but the husband unilaterally over-held them.

6. During the period of 21 December 2018 to 23 January 2019, the husband did not allow the children phone or face-to-face contact with their mother. The husband’s family threatened to change the children’s place of school.  The wife was required to seek a recovery order for the return of the children to her care.  They were recovered by the Australia Federal Police on 23 January 2019, and the wife thereafter sought that any time spent with between the husband and children be supervised.

7. On 6 March 2019, the AVO was granted for a two year period with various conditions. The two year AVO order protects the wife from the husband. The wife’s claims were the husband had stalked her at her workplace and threatened her and the family.

8. On 25 July 2019, consent orders were made in the Parramatta registry of the Court for the husband to have supervised time with the children at a contact centre.  On 26 July 2019, the husband attended the contact centre for intake and assessment, and claims he was advised by the contact centre that he would thereafter be contacted by them, and that such contact did not in fact emanate from the contact centre.  On 22 August 2019, the husband was advised by his solicitor, on his own evidence, that the contact centre had been trying to contact him without success.

9. B Contact Service (‘BCS’) attempted to contact the husband via phone and email on a number of occasions, but were unable to get in contact with him. Due to the husband’s lack of co-operation, the placement held for the children was no longer available to the family, due to the demand on that contact service.  The parties were advised of that decision by BCS in August 2019.

10. The husband did not pursue spending time with his children in a supervised setting. He continues to not pursue that form of time spent with. He communicates with the children twice a week by telephone, and that arrangement is one supported by the wife, who holds a view that it is in the children’s best interests that they continue a dialogue with their father.

The Children 

1. Pursuant to an order by consent made by Acting Senior Registrar Campbell on 23 January 2019, the children were placed on the airport watch list, also known as the PACE Alert System.

2. On 15 April 2019, a Child Responsive Program Memorandum (‘the memorandum’) was prepared by family consultant Ms Q (‘the family consultant’) following her meeting with the children and their parents on 25 March 2019.

3. The wife stated to the family consultant (as reported in paragraph 27 of the memorandum) that the husband had “hit and punched her on a number of occasions” and that he had “also choked her”.

4. The family consultant reported that the child X has moderate to severe autism and a moderate intellectual disability, requiring his then attendance at Suburb P Public School, where he was in a special class in their support unit. X received support from the National Disability Insurance Scheme and the wife used this to pay for the speech pathologists and occupational therapists in respect of his diagnosis of autism. The wife told the family consultant that X was heavily dependent on routine, and “starts biting himself and ripping his clothes if he is anxious.” X attended speech therapy and upon a behavioural psychologist and occupational therapist each fortnight. The wife reported to the family consultant that X’s speech was extremely limited and confined to a number of stereotypical phrases; that he did not cope well with the separation from his mother in the seven-week period that the husband over-held the children; and that he was particularly “clingy” after the children were returned to the wife. 

1. The recommendations of the family consultant were:-

   58. The Court may be assisted by access to documents from NSW Police, Family and Community Services, Education and Health.

   …

   60. If the court holds concerns about [the husband’s] drug use or his perpetration of family violence, then supervised contact may require consideration before a fuller understanding of these issues is achieved.

   61. The Court may be assisted by a Family Report should the matter proceed to final hearing.

Move to Melbourne

1. On 10 December 2019, the wife (through her solicitors) advised the husband (through his solicitors) that she and the children proposed to relocate to Melbourne at the end of January 2020, taking up residence near the wife’s brother in Suburb R. The husband was informed that the wife’s parents had sold their home in Suburb K and would be travelling overseas for a period of time.  Upon the maternal grandparents’ return, they would be living in the Suburb R area in a property they proposed to purchase with the sale proceeds from their Suburb K home.  The wife would then take up residence in the property of the maternal grandparents once they had settled same.  The husband was further advised that the children would be attending the S School in Suburb T, and that X would be attending the U Special School (‘USS’).

2. The husband was advised that the school proposed for X had bike tracks, hydrotherapy and music therapy. All therapy would be in-house, unlike the arrangements that were then in place for X in Sydney.  The husband was also advised that the wife would have support from her brother in looking after the children and facilitating their attendance at school, whilst maintaining her employment. Her current employment would be transferred to Melbourne from Sydney.

3. The correspondence of 10 December 2019 concluded noting that the husband had not spent any time with the children at the contact centre since orders had been made on 25 July 2019, despite the wife co-operating and the contact centre being able to facilitate time.  The wife’s solicitors noted that the wife would contact the centre and arrange a time prior to Christmas for the husband to see the children.  Again, the husband’s lack of co-operation meant that did not occur.

4. The husband’s response was that the proposed relocation was not in the best interests of the children, and in particular the child X.  The husband sought to restrain the wife from removing the children from the Sydney metropolitan area, and thus the proceedings, which culminated in the interim decision of Foster J, occurred on 28 February 2020.

The Law

1. Section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) provides that:-

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. Section 60CC of the Act provides relevantly:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   …

   (2)The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   …

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   …

3. Section 60CC(3) of the Act provides additional considerations further to the primary considerations as stated above.

4. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. That section is as relevantly follows:-

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   …

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person’s family); or

   (b)family violence.

   …

5. The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied, pursuant to section 61DA(4) of the Act:-

   The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

6. In the circumstances of this case, the Court finds that there are reasonable grounds to believe that the husband has engaged in abuse of the children and in family violence perpetrated by him upon both the wife and children.  Further, on the evidence, the Court is satisfied that it would not be in the best interests of the children for their parents to have equal shared parental responsibility.

7. There is in these proceedings the primary consideration at the forefront, as set out in s 60CC(2)(b) of the Act, being the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

Consideration

1. The children have now not seen their father since 23 January 2019.[14]  That is a period of approximately 17 months.  Whilst their father communicates with them by telephone, he does not indicate to the children when it is that he shall next physically spend time with them.[15]  

   [14] Affidavit of Ms Saif sworn 28 January 2020, [21]; Affidavit of Ms Saif sworn 12 February 2019, [43]-[44]; Order of Senior Registrar Campbell made on 23 January 2019.

   [15] Affidavit of Ms Saif sworn 28 January 2020, 22;  Affidavit of Ms Saif sworn 8 April 2019, 21.

2. The husband participated in these proceeding for a time up to and including the hearing before His Honour Justice Foster on 28 February 2020. Prior to that date, and on 23 January 2019, an Independent Children’s Lawyer had been appointed in the proceeding. Throughout the period of the husband’s participation, the husband filed affidavit evidence. Since the making of orders by His Honour Justice Foster on 28 February 2020 the husband has failed to further participate in the proceeding.  His solicitor filed a Notice of Ceasing to Act on 24 March 2020. 

3. The orders of the Court of 28 February 2020 were interim in nature and, relevantly, as follows:-  

   …

   2.That the mother have sole parental responsibility for the children X born … 2008, Y born … 2011 and Z born … 2014 provided always that the mother shall inform the father in a timely manner of any major long term decisions made by her in relation to the children, in particular, as to schooling and medical issues. 

   3.That the said children live with the mother. 

   4.That the mother be at liberty to relocate the children to the Melbourne area. 

   5.That the mother shall:

   (a)Inform the father in writing within seven days from this date of the schools at which the children are enrolled and do all things necessary to authorise and direct that the father be entitled to obtain from the children’s schools such information as may be reasonably requested by him; 

   (b)Inform the father in writing within seven days of her email and phone contact numbers and keep the father informed in the event of any change;  and 

   (c)Inform the father of any treating medical or related health practitioners who attend upon the children and do all things necessary to authorise and direct that the father be entitled to obtain from such practitioners such information as may be reasonably requested by him. 

   6.The mother do all things reasonably necessary to facilitate telephone or other electronic communication between the children and the father on a telephone number or other facility nominated by the father with such communication to be on not less than two occasions each week at a time agreed by the parties and in default of agreement each Wednesday and Sunday evening between 6.30 pm and 7.00 pm. 

   7.The father be at liberty to apply as to the resumption of orders for supervised time with the children. 

   8.That these proceedings be transferred to the Melbourne Registry of this Court to be listed for Judicial Case Management at 10.00 am on Monday, 6 April 2020 before her Honour Justice Hartnett. 

   (Emphasis omitted) 

4. Following the transfer of this proceeding to the Melbourne registry of the Court, the matter proceeded on 6 April 2020.  On that occasion, the wife appeared in person by telephone.  There was no appearance by or on behalf of the husband and counsel appeared on behalf of the Independent Children’s Lawyer. The husband had not made any application for resumption of orders for supervised time with the children.  The orders made on 6 April 2020 provided for the husband to make such application within 28 days of service of the 6 April 2020 orders upon him, and that otherwise, order 7 of the orders made on 28 February 2020 was discharged.  The husband continued to make no application in respect of a resumption of orders for supervised time with the children and nor did he participate further in the proceeding. 

5. The Court ordered that the Independent Children’s Lawyer effect service upon the husband of the orders of 6 April 2020 and heard evidence on the final hearing that there was compliance with the order as to service upon the husband. The wife was granted liberty to seek to proceed on an undefended basis for the parenting orders as sought by her and was so able to proceed.  The Court heard evidence and was satisfied as to the wife’s service upon the husband of her Amended Initiating Application together with further affidavits of evidence by her, both filed and sworn, on 30 April 2020. 

6. The Independent Children’s Lawyer did not file any material nor rely on any material produced pursuant to the issue of subpoenas.

7. The issue of with whom the children shall reside was not a disputed issue.  The husband conceded in his Response filed on 23 January 2019 that the children should live with the wife.

8. The issue of parental responsibility was an issue in dispute between the parties until such time as the husband ceased to participate in the proceeding. The wife sought sole parental responsibility of the children and the husband sought that the presumption, as set out in s 61DA of the Act apply namely that the parties have equal shared parental responsibility of the children.

9. In the undefended hearing, the wife placed evidence before the Court to support the making of a sole parental responsibility order in her favour, rebutting the presumption both on the basis of a risk to the children, and on the basis of the evidence as before the Court.  The Independent Children’s Lawyer supported the making of the order as sought by the wife.

10. Otherwise, the wife sought that the children continue to spend the time they currently spend with the husband each week by telephone, the wife noting that she herself had spoken with the husband on the evening before the final hearing of the matter. The wife is supportive of this ongoing communication and connection between the children and their father and has acted to ensure continuity. More recently, as an example, she contacted the husband’s brother as to the whereabouts of the husband, in circumstances where he had not spoken to the children, and the children were desirous of speaking to their father.  Her actions resulted in the children speaking with the husband on 4 April 2020. She is also supportive of the husband spending time with the children, but initially in a professional supervised setting.  

11. The presumption as to equal shared parental responsibility, on the evidence, does not apply.

12. There is no disagreement between the parties that the children shall remain living with the wife, who has now secured appropriate accommodation and schooling for the children. She is supportive of moving forward to facilitate a meaningful relationship between the children and their father, but is hampered in that regard by the husband’s response.  He does communicate weekly, and that is of benefit to the children, and supported by their mother. He has not taken up the opportunity to see the children in a supervised setting for some 10 months now, and gives no indication that he will do so in the short to immediate future.

13. The children’s established relationship is with their mother, who has been, and is, their primary carer.  The children have a strong attachment to her and rely on her for all their emotional, physical, intellectual and financial needs. The husband is in their life in a very limited way, albeit the children indicated, as reported in the family consultant’s memorandum, that they missed their father and/or would like to see him more often.

14. The children have a significant relationship with their maternal grandparents, having resided with them in Sydney since 18 September 2018, and now continuing to reside with them in Melbourne. They and their maternal uncle provide the wife with assistance in the care of the children, and the wife’s employment provides for the children’s financial needs.  No financial support is forthcoming from the husband.

15. The children’s general health needs are all met by their mother, and the more extensive needs of the parties’ son X, by virtue of his diagnosis with autism, have been met almost exclusively by the wife. Those needs for X have included speech therapy, occupational therapy, and attending upon a behavioural psychologist, whilst Z has had gymnastic lessons, and Y tutoring.  These extracurricular activities, including swimming lessons for all three children, have been arranged and funded by the wife.

16. On the wife’s evidence as set out in her affidavit sworn 30 April 2020, the children have adjusted exceptionally well within their new school environments, and in particular X’s transition to USS “has been fantastic”.  The wife describes X as “flourishing” in his new school environment because of the extensive therapies and opportunities available to him.

17. The child Y continues to attend school counselling at his new S School, as requested by the wife, she being of the view that it was beneficial to his overall self-esteem.

18. As a result of COVID-19 restrictions, the children learnt from home, as assisted by their mother.  The wife ensured that the children submitted all their class assessments and homework when due, and had access to all necessary learning IT applications to progress their academic knowledge.

19. The wife exhibited a good understanding of X’s response to the social distancing and limited social time outside of the home, which caused him to be anxious, having about two to three tantrums a week. She requested of his teachers a social story to explain to X why everybody was at home.  Her evidence was that it was provided, and was read by her to X when required. It had “improved his anxiety significantly”.

20. The children residing with their maternal grandparents is progressing well, and the area provides opportunity for the children to engage in daily walks, sometimes on bikes and scooters.

21. The wife emailed the children’s schools with a consent to enable the husband to contact the schools to obtain academic information and school reports.

Conclusion 

1. For the reasons as set out above, the wife’s application, supported by the Independent Children’s Lawyer, shall be acceded to save for the following. The wife sought an order giving her liberty to travel on holiday with the children outside of the Commonwealth of Australia. There was no evidence before the Court to support that application. As such, the Court did not make the order as sought by the wife. Rather it shall be for the wife, in the event she seeks for the children or any of them to travel outside the Commonwealth of Australia, to put a proposal to the husband and if necessary, the Court which is a proposal that can be considered by the Court at the relevant time.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 16 June 2020.

Associate: 

Date:  16 June 2020