Shadi and Chehab

[2011] FamCA 824

FAMILY COURT OF AUSTRALIA

SHADI& CHEHAB [2011] FamCA 824

FAMILY LAW – CHILDREN – all previous parenting orders discharged – All extant applications be dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Shadi

RESPONDENT: Mr Chehab

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Forster

FILE NUMBER: MLC 1743 of 2008

DATE DELIVERED: 25 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: Bennett J

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

No appearance

(Lampe Family Lawyers)

COUNSEL FOR THE RESPONDENT: Mr Dewberry

SOLICITOR FOR THE RESPONDENT: MLC Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Jean Forster & Associates

Orders

1.Paragraph 1 of the Order made on 18 May 2006 continue in full force and operation until 31 December 2011 whereupon it will lapse subject to any application by either parent being granted for a further Watch List Order in relation to the children B born … 1994, C born … 1996, D born … 1998 and E born … 2002.

2.Save for the Order of 18 May 2006, all previous parenting orders be and are hereby discharged.

3.All extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.

4.The reasons for decision this day be transcribed and when settled copies be made available to the parties.

5.The independent children’s lawyer be furnished with additional copies of the reasons for decision so that she may circulate them to such people as she considers are appropriate, including the following:-

a)     the proper officer of each school currently attended by any of the children; and

b)     Ms F, counsellor from Family Counselling Centre.

6.The Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner within 14 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1743 of 2008

Ms Shadi

Applicant

And

Mr Chehab

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. After proceedings that have lasted for five years or so in this Court, the reasons dismissing all extant applications and making no orders in relation to the children with whom the proceedings are concerned will be very brief. 

2. The children are B, who is nearly 17 years of age, C, who is 15, D, who is 13, and E, who is now 7 and a half years of age. 

3. The parents are Mr Chehab and Ms Shadi (formerly Chehab). 

4. The four children have resided in their father’s care since late 2005 when after the parties separated the children were removed from the care of the mother by the Department of Human Services.  There followed proceedings in the Children’s Court by way of care and protection.  At that point it was considered that the children should be spending time with their mother, but living with their father.  The proceedings were transferred to this Court, which was to make parenting orders. 

5. The Department of Human Services has not intervened in these proceedings.

6. Post separation, the mother did not see the children from approximately 2007 until the middle of 2009.  Shortly after that it was taken into my docket for a final hearing and has there remained whilst all concerned have said that they have pursued every possible avenue to in some way reunite the children with their mother. 

7. There have been a number of professional reports in the matter, which have provided evidence to the court and have been taken into account in interim decisions along the way. 

8. These reports include the report of Ms G in 2006 when the children were aged respectively: 12, 10, 9 and 4 years.  It is a lengthy but well-reasoned report which recommended that the most feasible way forward was for the children to remain in the care of their father, but have a relationship with their mother.  At the conclusion of the report, Ms G foreshadowed that the children spending any time with the mother would be a source of conflict for them because they “would be troubled by their obedience and loyalty to their father” and she opined “without preparation the children will find it difficult to move, unless their stated concerns about their mother are allayed and hence family support services … would need to be enlisted”.  That related to a possible move of residence.  But Ms G foreshadowed the same conflict of loyalties in relation to a mere order for spending time when she opined:-

   the children will need the support in the way of an order of the court to visit their mother.  The father may give a commitment to the court that he will take the children to any place to see their mother; however, his presence will diminish the children’s desire to see their mother. 

9. There was a report – a psychiatric assessment of both parties – by Dr H, psychiatrist, in 2007.  He opined that neither parent exhibited symptoms of psychiatric disorder.  He wrote:-

   this is essentially a case of two people whose diametrically opposed views of each other, their relationship and their parenting capacities are totally contrasting … it will be necessary for the court to sift out the relative contributions as to the parents’ parenting capacities. 

RECORDED  :  NOT TRANSCRIBED

1. More recently there was the Children and Parents’ Issues Assessment prepared by Mr I, family consultant, dated 7 July 2009.  For that purpose he saw the children, then aged 14, 13, 11 and 6 years and the parents.  The family consultant noted that there was a very high degree of parental conflict.  In his summary he commented – from pages 7 and 8 of the report – as follows:- 

   During their respective meetings, [Ms. Shadi] and [Mr. Chehab] presented conflicting views about how and why the conflict between them is ongoing, each parent apportioning blame to the other parent as the source of their impasse. [Ms. Shadi] rejects [Mr. Chehab's] views, including the comments made by the children in relation to her treatment of them prior to the parents’ separation. [Ms. Shadi] considers the children's rejection of a relationship with her is a consequence of [Mr. Chehab] having ‘brainwashed’ the children; she considers the children are scared of their father and that they simply echo ‘his views’ about the value of having a relationship with her.  Meanwhile, [Mr. Chehab] claims that not only is [Ms. Shadi] not committed to an ongoing relationship with the children, her past abusive treatment of the children and her decision to separate may be explained by [Ms. Shadi] having mental health problems. This, however, is contrary to [Dr H’s] psychiatric assessment. Although it is apparent the parents disagree on many aspects which led to their separation, and about who is perpetuating the ongoing conflict, it is apparent, and common ground, that [Ms. Shadi] and [Mr. Chehab] are unable to communicate about the children, despite their agreement that parenting responsibility should remain shared.

   Complicating the parents’ conflict and incapacity to communicate is the spectre of the significant disclosures and recollections made by the children about their experience of their mother’s treatment of them prior to separation and which apparently resulted in the Department of Human Services and Victoria Police placing the children in their father’s care. Notwithstanding [Ms. Shadi's] denials of such treatment, and indeed her allegations that [Mr. Chehab] actually behaved in a similar manner to that which of she is accused, the statements made by the children are plausible, and weight will need to be given to their views.  It is beyond the capacity of the family consultant to attest to the veracity, or otherwise, of either parent’s claims, however, it is difficult to accept [Ms. Shadi's] claim that the children are scared of their father, this being the underlying reason for their rejection of a relationship with their mother. Without exception, the children have individually spoken positively about their experiences of living with their father, and without exception are not supportive of an ongoing relationship with their mother, at this point in time. Observations of the children’s positive interactions with their father add weight to this view. It is entirely plausible, however, that [Mr. Chehab], or [B] or indeed a combination of both, have added to the complexity of this matter by sabotaging the children’s relationship with their mother. Although difficult to know to what extent this has occurred, it is reasonable to say that by the children not attending counselling, the opportunity to test this aspect has been lost and may indeed support [Ms. Shadi’s] view that her relationship with the children has been undermined. 

   What can be said with greater certainty is that, without exception, the children have been exposed to significant and chronic inter-parental conflict which has added to their developmental load, and despite their current presentation as happy, intelligent and articulate children this load will not be relieved by simply excluding their mother from their lives. To that extent it is extremely regrettable that the children have not been supported effectively by [Mr. Chehab] to continue to attend counselling to address not only the children’s views about their relationship with their mother, but also their experiences of exposure to family violence. Thus a trauma assessment will provide an opportunity for the children’s needs to be prioritised and for [Mr. Chehab] and [Ms. Shadi] to be supported to examine the potential for the re-establishment of a relationship between the children and their mother, and to particularly address their memories of their experience of their parents’ unresolved conflict and their experiences of alleged mal-treatment. To delay such a referral risks the likelihood that current views and experiences will become more entrenched having the potential for lifelong detrimental effects on the children.

   Having said that, it is likely to be a significant challenge for all involved in this process, not least of which are the children who will need consistent encouragement from [Mr. Chehab]. This is particularly the case given B’s age and views, and that he may seek to undermine the counselling process, thus contributing to further challenges for [Mr. Chehab] to manage. In the same manner, [Ms Shadi] will need to demonstrate her commitment to her children by attending every counselling session.

   If upon hearing evidence the Court finds that there is any prospect of a future relationship formed of their own accord particularly between [E], and [D] with their mother, and this is not supported and nurtured by [Mr. Chehab], the Court may need to consider the youngest children living in their mother’s care; this being dependent on any recommendations made by the Department of Human Services. It is recognised that this option presents the spectre of the sibling group being separated and, as such, further increases the importance of the aforementioned assessment.  Finally, given the level of animosity which exists between [Ms. Shadi] and [Mr. Chehab], the Court, upon making findings in respect to the various allegations, is likely to need to reconsider the concept of parenting responsibility remaining shared.

2. Most recently the court has the benefit of a full family report by Mr I, which is dated 30 May 2011, which I will discuss later. 

3. Today, the applicant mother does not attend court.  On 19 July 2011 she filed a notice of discontinuance of the proceedings. 

4. The mother seeks to discontinue her original initiating application filed on 19 February 2009 and her amended initiating application filed on 19 August 2010. 

5. In spite of being ordered on 10 February 2010 to file an amended response by 27 August 2010, the father has no application (or response) before the court.  That is, there is no document in which he seeks specific parenting orders.  Or, most significantly, of which the mother has notice or has been accorded procedural fairness. 

6. The independent children’s lawyer, Ms Forster, attends today in person, as she has appeared throughout the proceedings.  The independent children’s lawyer, in my assessment, has done all that could possibly have been done to facilitate there being some meaningful relationship between the mother and the children.  And, more recently, the mother and the younger children.

7. Ms Forster says that she has misgivings about any resolution – and cannot support an outcome which sanctions the children not having a meaningful relationship with the mother.  That is a view that she is entitled to take.  Ultimately, however, it has not come about and the question today is whether the proceedings ought continue or what (if any) final orders ought be made.  No one seeks that the proceedings continue. 

8. In making any parenting orders, the Court has regard to the best interests of the children as the paramount consideration.  In ascertaining what is in the best interests of the children, there are two core considerations.  First is the benefit to the children of having a meaningful relationship with both parents.  In this case that brings into focus what benefit the court can assess to the children having a meaningful relationship with the mother, as it is not contested that they have anything but a meaningful relationship with the father. 

9. This first consideration is very much to the forefront in this case. Parental conflict which has been identified by various skilled experts, being Ms G (psychologist), by Dr H (adult and child psychiatrist) and Mr I (family consultant) is to the effect that these children cannot have a daily involved or meaningful relationship with both parents at the same time. 

10. The second core consideration is the Court’s assessment of the extent to which the children need to be protected from physical or emotional abuse or harm.  Whatever the previous concerns about the children in the care of the mother, I am satisfied that those concerns about her physical care no longer apply, having regard to the current ages of the children.  The major aspect in relation to this factor is that a continuation of the proceedings is impacting adversely on all of the children to the point of being, in my view, abusive in itself. 

11. There are certain additional considerations to which the Court has regard in determining what is in the best interests of children.  These are vantage points from which aspects of the parents’ capacity to parent and the children’s relationship with others are assessed by the Court.  They have more scope in fully-contested proceedings than they do in proceedings where one party has discontinued and seeks to play no part, and the other party does not have an application currently before the Court. 

12. This is a court of private law.  It can not or will not compel parties to seek orders or to continue litigation.  It is apparent that the children – from all of the professional assessments and from the information which I have taken from counsel who have from time to time represented the mother and the father, and also from the independent children’s lawyer it has become abundantly clear  - are reluctant to see the mother.  Why they are reluctant to see the mother is a complex issue.  But their view, if now taken, would be that they do not want to see their mother.  That is not to say that that is a correct view for them to have or one which is consistent with their best interests.  It is, I suspect, a view which reflects them as victims of the parental conflict that has been identified by the professionals. 

RECORDED  :  NOT TRANSCRIBED

1. Since the matter has been before me, commencing on 4 October 2010, each appearance has involved some cobbling together by relevant practitioners, led by the independent children’s lawyer, of a regime or experiment of time between the children or some of them and the mother, which it was hoped would give rise to a sustainable relationship between the children and the mother.  All of those initiatives have failed. 

2. The most recent report of Mr I, received on 30 May 2011, contains an evaluation by him by way of a summary as follows:

   61.      Based on the available information it is apparent that the children have been exposed to longstanding conflict between their parents which has adversely impacted on the children’s relationship with their mother. [Ms Shadi] indicates she wants such a relationship, as does [Mr Chehab]. However, despite significant efforts to facilitate this occurring, the efforts of a number of very experienced professionals has done little to ameliorate the central issues which result in the conflict being perpetuated between the parents, who both continue to apportion blame toward the other parent for the ongoing impasse. [Mr Chehab] claims quite openly that [Ms Shadi] is not committed to the children and cannot and will not provide them with an appropriate environment within which such relationships can flourish. He has held this view for a considerable period of time, as was documented in the Children and Parents Issues Assessment in 2009. [Ms Shadi] continues to express her view that [Mr Chehab] undermines her efforts to have a parent / child relationship with [B], [C], [D] and [E]. Despite what appeared to be some progress in facilitating the children’s relationship with their mother, the situation is now made significantly more complicated by the role assumed by the elder children – [B] particularly, given his apparent role as ‘peacemaker’ and seeming protector of the children, and possibly [C], given her overt rejection of her mother, which has occurred in all probability in response to their parents inability or unwillingness to address their conflict. Thus the family have become problem saturated as opposed to solution focussed as evidenced by the parents’ ongoing and increasing claims about the other parents’ role in the conflict.

   62.      Whilst both parents have undoubtedly made a contribution to the currently intractable dispute, if considered from another perspective, although it will probably not alter the final outcome, it may serve to provide some different understandings to why the situation has developed and been perpetuated in the manner that it has. In addition a consideration of the cultural aspects of this family may offer some insight into how best to proceed, particularly now that [Ms Shadi] has established another relationship and recently become engaged.

   63.      [Ms Shadi] and [Mr Chehab] identify as having an Arabic cultural background and heritage. When considered from this perspective, when a family separates and questions are raised about the mother’s parenting ability, as has previously occurred with [Ms Shadi], the father is considered to have significant responsibility in respect of providing care for the children when ‘talaq’ or divorce occurs. This has implications for where a child will live, and in instances such as this where the children are to live with the father, has implications for whom the child or children can have ‘contact’ with, or who may be present in the mother’s home. These matters relate to the culturally sensitive need for the father to ‘protect’ the child or children from, in this instance ‘strangers’, or other males.   Whilst this explanation might go some way to overt the additional complexities associated with this matter it does little to diminish the fact that the children have been, and continue to be exposed to their parents conflict to such an extent that [B] reports, he has assumed the role of mediator between his parents in seeking that his mother stop the Court proceedings. In addition he has thought about and reportedly discussed such a proposal with his sister, that being, that he remove his siblings from the current conflictual environment to ameliorate the pressure they all experience.  

   64.      In respect of their physical wellbeing it appears common ground that [Mr Chehab] provides well for all four children, and no concerns have been raised at this point in time. 

   65.      In respect of [B] and [C], given their ages and developmental stages, they have clearly articulated their rejection of any opportunity to spend time with their mother, albeit [B’s] view is compromised by him interacting with his mother in respect to the ongoing conflict, and [C] modified her view somewhat indicating she could explore an informal arrangement but remained adamant that she would not stay over night.  It is likely that even if the Court was to make provision for such time that either, or indeed both adolescents, will decide what they want to do, and will act accordingly. The impact of their views about their mother should not, however, be underestimated in having a significant and ongoing influence on their younger siblings irrespective of whether [Mr Chehab] was to choose to positively promote a relationship between [E] and [D] and their mother in the future.  Whilst it is sad that [B] and [C] have developed such views, it is likely that their views will continue to remain fixed, although, it is possible that when the Court proceedings are finalised, that some informal time may be spent together with their mother. 

   66.      In respect of [E] and [D], the question arises as to whether they may benefit from living in their mother’ care, either together or separately and by extension to spend substantial and significant time with their father.  In considering such a proposal it is important to reflect on the efforts made by community agency staff to positively influence [E] and [D’s] strongly held views about their mother. It is apparent that despite such efforts [D] and [E] have not altered their views and there would seem little prospect of change occurring even if they were placed primarily in [Ms Shadi’s] care, and in spite of the sibling group being split. A decision to separate the children is not considered in [D] and [E’s] best interests, given the length of time they have lived in their father’s care, and given that there is no evidence that their physical needs are not well provided by [Mr Chehab]. In addition, it is apparent that [E] and [D] have a sound relationship with their older siblings who present as being are very protective of their younger siblings. If the children are separated from their older siblings in order to reduce the negative influence to which they are exposed, irrespective of the source, such a decision is likely to have a limited effect. On improving the children’s relationship with their mother.  This is considered to be the case, because the children will continue spend time with [B] and [C] at their father’s home, in addition to [D] attending the same school as his elder siblings. Thus, considerable opportunities remain for such arrangements to be undermined, and to result in the unresolved conflict being further perpetuated in to the future.  

   67.      In respect of a proposal to separate [E] from her sibling group, it is likely that such an option may result in her becoming resentful, primarily towards her mother with whom she has spent very limited time throughout her life. [E] is likely to feel that she has been ‘singled out’ and, given her views about her mother, will in effect feel that she has been punished, if she is required to live with her mother. To that end, any proposal to separate the sibling group is not considered to be in [E] and [D’s] best interests.  

   68.      Despite this, there is no doubt in the family consultant’s mind, about the benefit to [D] and [E] having a relationship with their mother nurtured. The question which arises from this, however, is to what extent this can occur, particularly given the cultural implications of [Ms Shadi] re-partnering. Given such complexities, it may leave the Court with one of two options, either to support the children’s views to not spend any Court defined and imposed time with their mother, a decision which may result in a significant reduction in the conflict to which the children are exposed irrespective of whether [Mr Chehab] has been the main proponent. Alternatively, that consideration is given to the children spending day time together with their mother, when her fiancé is not present.  This may have some appeal to [Mr Chehab], and although it is likely to be a challenge to [Ms Shadi], given her application, a further question arises as to whether such an arrangement is sustainable when [Ms Shadi] marries.

   69.      What can be said more categorically, irrespective of their alliances and whether as might appear to be the case, [Mr Chehab] has actively influenced them in their views, is that all four children have and continue to experience significant emotional burdens as a consequence of their parents’ conflict. In all likelihood the situation is further exacerbated by the ongoing Court events, to the extent that the older children have now begun to take matters into their own hands, in view of their parents’ unwillingness and inability to resolve their conflict. The professional literature, in that respect, is unequivocal about the impact on children when they are exposed to long term unresolved parental conflict. Thus, in the absence of an agreement between [Ms Shadi] and [Mr Chehab], and given their history that would seem unlikely, the children will benefit significantly if the Court prioritises their need to be shielded from further ongoing conflict and litigation. In essence this may well mean that, sadly, [Ms Shadi’s] application to spend substantial and significant time with the children is not supported at this point in time, as it is unlikely to result in a cessation of conflict, and therefore litigation.      

1. The family consultant recommended that all of the children continue to live primarily with the father, that significant weight be given to B and C’s view about not wanting to spend time with their mother at this point and

   consideration of the cultural complexities are included in negotiations regarding [D] and [E’s] time with their father, and that consideration be given to this being for day periods on alternate weekends and at such other times as may be agreed between the parents. 

2. The matter returned to Court following that report on 1 July 2011.  That was the date upon which the matter had been listed for mention in anticipation of a final hearing today, 25 July 2011. 

3. On 1 July it was agreed that there would be one further mini-trial of E and D seeing their mother and that the hearing date today would remain, because it would be obvious over two weeks whether or not it was going to be feasible for the mother to continue to see the children at all.  On 1 July, it was necessary for me to decide whether both D and E attended the mother on the Saturdays and Sundays of the weekends of 9 and 23 July.  The mother sought that only E attend on the first weekend, and that D be permitted to attend on the weekend commencing 23 July.  The hours were from 2pm to 7pm on the Saturday, and 5pm to 7pm on the Sunday. 

4. The mother’s case to exclude D from the first weekend of time was based at least in part on an allegation by her that on an earlier occasion, that is 11 June 2011, D in the company of three friends had attended at her residence at approximately 8pm and had taken mobile phones from her possession (which were never returned) and that the youngest son D had held a knife as a weapon.  The father said he had no knowledge of any incident involving a knife and, as best I recall, had not much knowledge of there having been any incident between D and the mother at all, save that in his view that time was not proceeding well.  The independent children’s lawyer indicated that she would require production of documents by Victoria Police in relation to the incident.  She has done so.  It appears from those documents that the mother reported a burglary on 11 June 2011, in which her son D was one of the perpetrators.  There was no mention at all, in the police notes, that he had a knife.  And when asked by Victoria Police to press charges, she refused. 

5. Today counsel for the husband says that I ought not make any finding as to whether or not there was a knife, whether D attended at the mother’s home aggressively and threateningly and had with him a knife.  In particular, he says, I ought not make any finding about a knife.  It was submitted by him that I might have healthy suspicion that a knife was present, but I should also have as much confidence in finding that there was not one present, or not a knife involved, having regard to the fact that the mother, when reporting the fact to Victoria Police did not mention that there was a knife.  Furthermore, that D has told his father that he attended in the company of three males and therefore from the point of view of anyone feeling threatened or in need of defence or having to resort to weaponry, it was not he and his three companions who would have needed a knife, but the mother who would have been outnumbered. 

6. There is an allegation from the father, emanating from D, that during the incident the mother asked her partner to go to the kitchen and get a knife and the partner left the room and did not return.  But as far as the father is concerned, he accepts D’s version that the only mention of a knife came from the mother. 

7. Counsel for the father makes the obvious point that the mother’s evidence has not been tested.  She does not attend court. She did not give evidence directly on the last occasion.  The allegation came through her counsel, as is the case with many less adversarial trial matters and indeed the rebuttal to the allegation comes through him today.  No evidence was obtained directly from the mother on the last occasion, and no evidence was sought to be led by the father on this occasion.  It seems to me that in that respect, their versions are fairly equal. 

8. What does have a ring of truth about it though is that the mother’s allegation is made without me being able to discern any ulterior motive for her doing so.  The allegation once made really puts on a new level the consequences of the parental conflict in this matter, and the pressure that the children are under by virtue of being required, time and time again, to comply with orders that they see their mother and in the context of these proceedings, continuing.  The allegation once raised by the mother was more likely to work against her having any time with the children amidst the unresolved and apparently unresolvable conflict than it was to do her any benefit whatsoever.  Furthermore, if there was a knife, the failure of the mother to mention it is in my view consistent with her position in relation to being invited to lay charges in relation to the intrusion, and refusing to do so.  If there is one version that has a greater ring of truth about it than the other, it is the mother’s, to the effect that D visited her residence with a knife, in the context of a court-ordered visit for him and his sister to spend time with the mother. 

9. I mention the incident because it demonstrates, in my view, the disturbing and also potentially very dangerous consequences of permitting these proceedings to continue when there is no end in sight to the parental conflict or the conflict of loyalties that the children have. 

10. I share the independent children’s lawyer’s sense of foreboding for these children now and as they grow into adults.  I am fairly certain that they will be lessor functioning adults as a result of the conflict between their parents.  And as a consequence of that conflict, the children’s inability to have a relationship with both of their parents.  This is particularly so in relation to the girls, who are likely to feel most potently that they carry the shortcomings and deficiencies which they have come to believe their mother has. 

11. I have heard from counsel for the father that in anticipation of today he and his instructing solicitor, who are very new to the proceedings, have given the matter much thought and consideration and whilst they had not been aware that the mother had discontinued, their proceedings had been prepared to put certain constructive proposals to the court and to the mother, as a means of trying to ignite some willingness in the children to spend time with – for any of them to spend time with their mother. 

12. The independent children’s lawyer’s comment was that she had seen all of those matters come to no avail.  I do not interpret that as a cynical comment, more so that it is reflective of the fact that everything that could have been done for this family to bring the children together with their mother, in my view, has already been tried and it has failed.

13. The negative manner in which the three eldest children view their mother now has, in my view, become their own personal view and is not likely to be upset or displaced in the near future.  It is likely to have its origins and cause in the manner in which these children have been raised by their father, who has been their primary and effectively their only parent since late 2005.  It is easy to feel frustration and disappointment if not anger in relation to a parent who will not permit children to have a relationship with their other parent, to the extent that the other parent is able to have a relationship with the children.  However, ultimately, decisions have to be made which are in the best interests of children and I cannot be distracted by the fact that one parent may have, with little justification and somewhat destructively, succeeded in limiting or extinguishing a relationship between the other parent and their children. 

14. As the incident on 11 June 2011 demonstrates, the children can collaterally be damaged by orders and procedures which are designed to bring them toward their mother.  I am satisfied that it is not in best interests of these children for any further orders to be made at this point which require them to see or spend time with or communicate with their mother.

15. This brings me to the disposition of the proceedings. The mother has discontinued her application. The father does not have an application or response before the court despite having been directed to file an “amended response”. In all of the circumstances of this case, I am satisfied that to make any parenting orders would be contrary to the best interests of the children. Accordingly, I will not do so.

16. If I had been inclined to make a parenting order, I would have (subject to a few exceptions) been required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[1]

    [1] Family Law Act 1975 (Cth) s 61DA(1).

17. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[2]    Equal shared parental responsibility relates to decision making about “major long term issues”, which is defined in s 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 children to spend time with a parent.

    This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents. 

    [2] Family Law Act 1975 (Cth) s 61B.

18. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[3]  The concept of joint responsibility carries with it the requirements to “consult the other parent in relation to the decision to be made about that issue”[4] and to “make a genuine effort to come to a joint decision about that issue”.[5]  These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared. 

    [3] Family Law Act 1975 (Cth) s 65DAC(2).

    [4] Family Law Act 1975 (Cth) s 65DAC(3)(a).

    [5] Family Law Act 1975 (Cth) s 65DAC(3)(b).

19. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:

    a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[6] or abuse of the child or another child who is a member of the parent’s family;[7]

    b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[8] or;

    c)Where evidence is adduced, upon which the court is satisfied 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.[9] 

    [6] Family Law Act 1975 (Cth) s 61DA(2)(b).

    [7] Family Law Act 1975 (Cth) s 61DA(2)(a).

    [8] Family Law Act 1975 (Cth) s 61DA(3).

    [9] Family Law Act 1975 (Cth) s 61DA(4).

20. In this case, I would be satisfied that the parents are wholly unable to make any decisions jointly and that they are unable to consult. Likewise, however, I could not be satisfied that the father should have sole parental responsibility.

21. I am satisfied with the outcome of no parenting orders, including leaving intact the position under s 61C whereby both parents have parental responsibility. That means that the father can attend to the needs of the children but the mother’s right to obtain information from government agencies and schools and the like is not diminished.

22. The only other issue that I need to consider is the Watch List Order.  Since 2005, there has been an order preventing the children from leaving Australia.  I assume it operates vis-à-vis the husband and the wife.  It seems to me that this order may well have been overlooked by the mother when she decided to discontinue her proceedings. 

23. The father says that he has no intention of taking the children out of Australia, but does speculate that C may be fortunate enough to go overseas to Country J next year as part of a school trip.   She would, on my reading of the case, be the first of their children to have done so.  The father says he has very modest financial means, so an overseas trip may not be viable in any event.

24. It seems to me that a period of six months is enough to let the dust lie in this case and for the order to continue in the meantime.  It should thereafter lapse, subject to either party applying for it to continue or for another order to take effect in its place.  That said, it will not mean that either parent can take the children overseas or send them overseas without the consent of the other, because they have no travel documents, that is, passports. 

25. So, I will continue the Watch List Order until 31 December 2011, whereupon it will lapse. 

26. If the father does seek travel documents, that is a passport, for any of the children, he should allow at least two to three months between the time of filing his application and the date by which he needs any passport.  In order to expedite that matter, however, I will order that any such application – if at all practicable – be listed before me. 

27. I am satisfied that a dismissal of all applications and the discharge of all parenting orders is the only course open to me today which is consistent with the children’s best interests.  It is in many respects a least-worst result, but it is a result which I think serves the children best in the circumstances.  That concludes the reasons for judgment.

ORDERS DELIVERED

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennet delivered on 25 July 2011.

Associate:

Date:  26 October 2011