Sinclair and Ellis

[2013] FamCA 125

FAMILY COURT OF AUSTRALIA

SINCLAIR & ELLIS [2013] FamCA 125

FAMILY LAW – CHILDREN – With whom children live – Undefended hearing – Where there is a history of family violence by the Father – Where the Father has not sought to spend time with the children since May 2012 – Children to live with Mother – Mother to have sole parental responsibility

Family Law Act 1975 (Cth)

APPLICANT: Mr Sinclair

RESPONDENT: Ms Ellis

INDEPENDENT CHILDREN’S LAWYER: Ms Best

FILE NUMBER: BRC 1190 of 2011

DATE DELIVERED: 26 February 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 26 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Best Wilson Family Law

Orders

IT IS ORDERED THAT

Residence

1. The children, T born … January 1998, J born … March 2001, G born … October 2002, and S born … June 2006 live with the Mother.

Responsibility for decision making

1. The Mother have sole parental responsibility for the children.

2. Each parent have sole parental responsibility to make decisions about the children’s day to day care, welfare and development whilst the children are in that parent’s care.

Father’s time and communication with the children

1. The Father spend time and communicate with the children at all times as agreed between the parties, but failing agreement, as follows:

   (a)On the giving of not less than twenty-one (21) days written notice by the Father of his intention to do so and providing the proposed dates to the Mother and the address that the Father will be residing together with the children to the Mother, during any New South Wales gazetted school holiday period in each year for a three-day long weekend with changeovers to take place at the Mother’s residence. Such time to commence at 9:00am on the first day of the three-day long weekend and conclude at 5:00pm on the third day;

   (b)       By telephone at all reasonable times;

   (c)       For the Father’s Day weekend, from 9:00am to 5:00pm on Sunday; and

   (d)       At all other times as agreed.

Mother’s time and communication with the children

1. The Mother spend time and communicate with the children as follows:

   (a)       By telephone at reasonable times when in the Father’s care; and

   (b)       For the Mother’s day weekend.

2. The Mother is at liberty to make her own arrangements to travel overseas with the children, at the Mother’s expense, on at least one (1) occasion each calendar year.

Specific Issues

1. Each party must advise the other of:

   (a)       Any illness, accident or injury suffered by a child;

   (b)       Any medical or dental treatment provided to a child;

   (c)Any medication a child is to take whilst the child is in the other parent’s care, including the dosage;

   (d)       Any special dietary requirements that apply to the children; and

   (e)Contact details if the children are to travel more than 150 kilometres from their usual residence.

2. Both parents be at liberty to obtain information regarding the children’s health and medical issues and this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the children to either parent and for the purpose of this Order, the Mother will provide the Father with the details of the children’s treating doctor from time to time.

3. Both parents inform the children’s school and day care providers:

   (a)       Of their address and contact details;

   (b)That both parents are authorised to contact the school or day care provider about the children’s progress and to obtain copies of all school information including newsletters, reports, photographs and details of any school or day care activities; and

   (c)That this Order can be regarded as authority for the school or day care provider to provide relevant information about the children to either parent.

4. Each party is restrained from criticising the other party and their family to or in the presence or hearing of the children and must use their best endeavours to ensure that no other person does this.

5. Both parents will be courteous and respectful in their communications with each other and respect each other’s right to privacy and not question the children about the personal life of the other parent.

6. That the parties shall:

   (a)keep the other parent informed at all times of their residential address, personal email address, mobile telephone number and landline contact telephone numbers; and

   (b)notify each other within 24 hours of any change of address or telephone number.  

7. Both parties shall be restrained from consuming alcohol such that they exceed the legal driving limit of .05 BAC whilst the children are in their care.

IT IS FURTHER ORDERED THAT

1. Whilst the children are in the Father’s care, the Father:

   (a)       Will not expose the children to family violence;

   (b)       Will not physically discipline the children;

   (c)       Will not verbally abuse the children; and

   (d)Will use child appropriate language to, and in the presence of, the children.

2. All previous parenting orders be discharged. 

3. The Independent Children’s Lawyer be discharged.

4. The Mother have liberty to apply within fourteen (14) days of the date of this Order with such application to be limited to Order (2), providing the Mother with sole parental responsibility for the children.

5. The Independent Children’s Lawyer’s oral application for costs made today be dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1190 of 2011

Mr Sinclair

Applicant

And

Ms Ellis

Respondent

REASONS FOR JUDGMENT

1. The Applicant Father, Mr Sinclair, is a 40 year old indigenous man who grew up in Town A, New South Wales.  The Respondent Mother is a 37 year old woman of Maori heritage who grew up in New Zealand before moving to Australia. 

2. The parties met and formed a relationship in 1992 when the Father was then 19 years of age and the Mother 17 years of age.  They lived in Town B, Queensland during their relationship but also lived in New Zealand for about three years from 2004 to 2007 before they returned to Australia to live in Town A.  The parents remained living in Town A until their separation in late 2010.  This separation occurred after some 18 years of cohabitation.

3. There are five children of the relationship but the oldest child, C, is 19 and is not sought to be the subject of any parenting orders.  The other children are T, born in January 1998, who is 15 years of age; J, born in March 2001, who is 11 years of age; G, born in October 2002, who is 9 years of age; and S born in June 2006, who is 6 years of age.

4. The proceedings before me had their genesis in an Application filed by the Father in the Magistrates Court in Town B on 4 February 2011.  After transfer from that court to the Federal Magistrates Court and then to this Court, the Father filed, on 25 May 2011, an Amended Application for final parenting orders.  In summary, that Application sought that there be an order for equal shared parental responsibility for the children but that the children live with him and have effectively school holiday time with the Mother.

5. As to the last of the “time orders” just referred to, that is in circumstances where the Mother has continued to reside in Town A in New South Wales whilst the Father seemingly has initially moved from Town A to Town B, Queensland soon after separation, but most recently was understood to be living in Town D in New South Wales, some hours travel time by car from Town A. 

6. The chronology of relevant events concerning these parties and their family is set out in some detail in the amended case information document filed by the Independent Children’s Lawyer on 1 February 2013.  Relevantly, after the parties’ separation in 2010, it seems that the two children, G and T, then chose to live with their Father whilst C, J and S chose to live with the Mother.  In January 2011, without reference to the Mother, the Father relocated himself and the children, G and T, from Town A to Town B. 

7. A protection order was made in January 2011, sought by the Mother who was named as the aggrieved person in the order and the Father being the respondent.  As earlier noted, it was in February of 2011 that the Father commenced proceedings culminating in the hearing before me today.  It would seem that over the years 2010 and 2011, following the Father’s relocation of himself and the two children, there was a period of little time and contact between the two households and more particularly as between the children living in the respective households as they were. 

8. I have noted that the Father filed his Amended Application on 23 May 2011 but it would seem that thereafter there has not been much in the way of material filed by the Father.  Indeed, the last document on file is a Notice of Ceasing to Act which was filed by the Father’s then solicitors on 11 April last year.  The Father did participate for the purpose of the family reports that have been prepared in this matter that are read and relied upon by the Independent Children’s Lawyer. 

9. It would seem that in July of 2011, the child, S, returned to live with the Mother after being temporarily retained by the Father. That return followed an episode where the Father, having spent time with the children in July of 2011, retained both J and S and, unilaterally, without reference to the Mother, enrolled them in a school in Town B. 

10. The Independent Children’s Lawyer was appointed by order made by Registrar Stoneham on 28 September 2011. 

11. Following that appointment in October 2011, all of the children spent some time with the Father during a school holiday period but thereafter, J remained in the Father’s care while S returned to the Mother’s care at the conclusion of holiday time.  In December of 2011, the Father apparently was moving between Town B in Queensland and Town D in New South Wales.  At that stage, the Father had primary care of J and G and, as already noted and as commented upon by the family report writers, there seemed to be little in the way of time and communication between T and G in the Father’s household and the other children in the Mother’s household. 

12. It would seem an important event in the history occurred on 1 April 2012 when the Father was arrested in Town D allegedly for an incident of domestic violence with his then partner.  The Mother made reports to the Department of Family and Community Services.  On 12 April 2012, the Mother filed her Amended Response and affidavit seeking that all four children live primarily with her.  As a consequence of the involvement of the Independent Children's Lawyer and her efforts to locate the Father over the period of February, March, April in 2012, it became apparent that the Father had relocated himself and the children, J and G, to his girlfriend’s residence in Town D.  It was at that point that the parties attended upon Mr E for the purpose of a family report on 19 April 2012. 

13. As noted, at that stage, J and G were still in the primary care of the Father whilst T and S were then in the Mother’s primary care and Mr E’s report and interviews were conducted on that understanding.  He made certain recommendations in his report which will be discussed further. Fundamentally Mr E’s recommendation was that all four children should be reunited and commence residing with their Mother immediately. 

14. An interim hearing was listed to be heard on 22 May 2012 before Principal Registrar Filippello.  By that stage, Mr E’s report was available.  In the result, it seems that the Father who appeared on his own behalf by telephone consented to the orders made on that date. 

15. Those orders saw the children, that is, all four children, living with the Mother thereafter.  It would seem that all four children, the subject of these proceedings, have resided in their Mother’s care since on or about 24 May 2012. Significantly, it seems to me, the Father has not sought to have time and communication with the children to the extent that the order on 22 May 2012 contemplated.  He did spend a weekend with the children on 30 September 2012 but that occurred without any advance notice to the Mother.  In the event on that occasion, she acquiesced in the children spending overnight time with the Father once she learned that the paternal aunt had permitted the Father to have the children in his possession. 

16. The process to trial involved directions being made by Registrar Stoneham on 26 October 2012.  The Father failed to appear on the directions hearing held before Registrar Stoneham on that date.  On 10 December 2012, Ms Best, as Independent Children’s Lawyer, filed an affidavit relating to the Father apparently expressing views to the effect that he did not seek to participate in the proceedings.  In paragraph 5 of her affidavit, Ms Best records:

    I then again confirmed that it was imperative that he (a reference to the Father) give priority to being involved in the proceedings and receiving correspondence from the Court and from my office in order to establish structured time with the kids as it was important for them to.  He (a reference to the Father) advised again that he, “Couldn’t be bothered”, and “What’s the point?”

17. The Father on that occasion refused to provide the Independent Children’s Lawyer with his address.  I note that this seems to be further evidence of a theme expressed by Mr E in his family report to the extent that the Father seems ready and willing to portray himself as some kind of victim in all of this without regard to his own actions or behaviours where the children are concerned. 

18. In the event, the Father has failed to file any updated material and, most particularly, has not filed documents in accordance with orders and directions made by the Court to facilitate the trial of parenting proceedings.  Importantly it must be remembered that the proceedings were instituted in the first place by the Father.

19. The Father’s non-compliance has included his failure to appear at the directions hearing referred to on 26 October 2012; his failure to file an amended initiating application; his failure to file any list of documents; and his failure to file a case information document for the purpose of the trial, all that on top of the failure to file any current updating affidavit or other evidence.  In this context, it is to be noted that Mr E made some very significant observations, it seems to me, about the Father’s evasiveness and unwillingness on the occasion of the interviews for the purpose of the family report to be full and frank in terms of provision of information.

20. On 6 February 2013 the Mother, via her then solicitor, Ms Stevens, and Ms Best as the Independent Children’s Lawyer appeared for the purpose of a callover of the matter to be listed for trial.  In the circumstances as at that stage, both the Mother and the Independent Children’s Lawyer sought that orders be made in default of appearance and compliance by the Father.  In the result, on that date I listed the proceedings for a trial today before me.  I also ordered that in the event that the Father did not file any response or other material in accordance with Registrar Stoneham’s orders of 25 January 2013 that the matter would be heard and determined on an undefended basis. 

21. Orders were made to ensure that the Father would be given notice of that order and the fact that the proceedings might proceed in his absence, and it is clear on the current affidavit evidence provided by the Independent Children’s Lawyer that the Father was indeed served within days of the order of 6 February being made, but nevertheless there has been no appearance by him today for the purpose of the trial, nor has the Court received any other communication from him.

22. Ms Best has provided an affidavit filed yesterday which records, apart from her urging of the Father to seek legal advice with respect to the orders or proposed orders sought by the Mother and the Independent Children’s Lawyer, urging him to advise the Court of his position in relation to the orders as sought.  The only indication Ms Best received from the Father was that he was not agreeable to any orders which would give the Mother liberty to have the children travel to New Zealand because “in his mind, it was the respondent's intention not to return the children to Australia”.

23. In that context Ms Best encouraged the Father to raise his concerns with the Court should he wish to oppose any such order.  I note that, at that point it seems, as the affidavit records, the Father became agitated and was offensive to the Independent Children’s Lawyer and disconnected the telephone call.  Attempts by Ms Best since to contact the Father have been to no avail.  There has been no response to the message the Independent Children’s Lawyer left for the Father yesterday.

24. As already noted, on 6 February 2013 the Mother was represented by her solicitor.  She does not have continuing legal aid funding for the purpose of today’s proceeding.  In the event, it now being a little after midday, the Mother has not attended at today’s trial.  I record that in recent days there have been significant weather events affecting all areas between Brisbane and the Mother’s place of residence, with many reports of flooding and the severing of road and highway connections between Town A and Brisbane.  It is speculative as to why the Mother is not here.  It may well be that she is affected by the flooding.  She has not made any contact with Ms Best, nor has she made contact with the Court.

25. However, it seems to me, in circumstances where the Mother was ready and willing to proceed and attended on 6 February, that the Court ought bring finality to these proceedings in the interests of these children in the circumstances I have already described.

26. Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the statutory framework in which the Court exercises its power to make parenting orders. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court should regard the best interests of the child as the paramount consideration. Section 60CC of the Act identifies both the primary and additional considerations the Court must consider in determining what is in the child’s best interests.

27. Section 65D of the Act provides the source of the Court’s power to make a parenting order as defined in section 64B, and section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, section 61DA of the Act.

28. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and, further, 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 responsibility.

29. As already noted, Mr E undertook his interviews for the purpose of his family report now sometime ago, in April of last year.  At that stage J and G were living with the Father, and T and S with the Mother.  It is plain on Mr E’s report that J and G expressed to him clear and unequivocal views to the effect that they wished to live with the Mother.  It is also clear from what they told Mr E that they had been subjected to the unfortunate dynamics of the relationship between the Father and his then partner.  Those dynamics seem to have included episodes of domestic or family violence, aggravated when the Father and his partner were abusing alcohol.  They also involved episodes of the Father, and thus J and G, being excluded from the home of that reconstituted family. There appears to have been times when the Father was spending overnight periods in his own vehicle and the position probably reached its lowest point when the Father spent an overnight period with the children in a police watch house as a consequence of the dynamics referred to. 

1. Also of significance are the observations Mr E was able to make as to the strength of the bonds between all of the siblings.  As already noted, since early last year all of the children have been living together with the Mother, albeit that the oldest child, C who is 19, has some plans to commence living with his girlfriend.

2. On all the evidence before me, orders which would see the children placed in the primary residential care of the Mother would be entirely consistent with the views they have expressed and I am satisfied that weight should be given to those views, particularly with respect to the older three children who are between the ages of 15 years in T’s case and G who is 10.

3. In terms of the nature of the children’s relationship with each of the parents I am satisfied on the expert evidence, particularly that of Mr E, that there is a strong and positive relationship between all of the children and the Mother.  I have some doubts about whether or not the children continue to have a meaningful relationship with the Father in the circumstances earlier described of his lack of involvement in their lives more generally since May of last year.  It appears he has had very little time or communication, there has been no telephone communication of any regularity or significance and it is to be noted that there seems to be have been no assistance by the Father in any financial arrangements for the children and the Mother. 

4. It follows that the Father seemingly has failed to take the opportunity to participate in spending time with the children and communicating with them and consequently has failed to take opportunities to participate in making decisions about them.  Most fundamentally, the Father’s failure to participate in making decisions about major long term issues in relation to the children is borne out by his failure to involve himself in these proceedings as earlier referred to.  The Father has, at least since early last year, failed to fulfil his obligations so far as maintenance of the children is concerned. 

5. Plainly, the Mother’s proposal really involves no significant change for the children in that it simply formalises a continuation of their circumstances in terms of them living with her. 

6. There are obvious practical difficulties and expenses involved in time and communication with the children and their Father if they are living with the Mother, as would be the case if the position were reversed given the geographical distance between the parents.  Those difficulties might be able to be overcome in a practical sense but the Father’s lack of participation in the proceedings leaves the Court and, indeed, the Independent Children’s Lawyer with little scope for formulating proposals or proposed orders that would maximise his maintenance of personal relations with the children in circumstances where he himself seems to have determined to take a very passive role so far as any future involvement is concerned. 

7. I am satisfied, on the Mother’s evidence and the expert evidence, that she has the capacity to provide for the needs of the children including their emotional and intellectual needs. 

8. The history of the matter shows, particularly the event in September earlier referred to, that the Mother has a willingness to promote the relationship between the children and the Father notwithstanding the history of the matter.  The children are, of course, partly of Aboriginal origin as well as being partly Maori on the Mother’s side.  Whilst they have the right to enjoy their Aboriginal culture, it does not seem to me that the Mother’s proposed orders or by the Independent Children’s Lawyer, in and of themselves, have any impact upon that right.  It would seem that it is in the hands of the Father as to whether or not his involvement with them will also include involvement with their aboriginal culture although I note that there is little in the way of evidence before me that that has been a significant feature historically for either the Father or the children. 

9. It is clear that there is a need for these children to be protected from potential physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.  On the evidence of Mr E, both parties advanced propositions to the effect that family violence was a feature of their relationship although they gave varying accounts as to the degree of this.  Significantly, on the events described post separation in the Father’s household with his new partner, it would seem that that volatile relationship also presents difficulties.  It would seem that, on all the evidence, the Father’s capacity to engage in violent behaviour, aggravated by his abuse of alcohol from time to time, presents difficulties in terms of protecting these children when in the Father’s care. 

10. The Independent Children’s Lawyer’s written submissions contain extracts from Mr E’s family report.  At paragraph 14, reference is made to Mr E’s reporting the Father’s concession to Mr E that he had been taken into custody and charged with assault a month prior to the interview as a consequence of a violent incident between he and his new partner whilst they were both heavily effected by alcohol as recorded in paragraph 19 of Mr E’s report.  It is on that occasion that both J and G spent the night at a police watch house.  Mr E speculates that this was one of a number of serious altercations between the Father and his new partner given information imparted by the children to Mr E.  As already noted, Mr E found the Father to be highly evasive in terms of freely providing relevant information.  In paragraph 18 of the Independent Children’s Lawyer’s written submissions, the conclusions of Mr E, set out in the report at paragraphs 65 to 71, are set out in their entirety. 

11. I accept the evidence provided by Mr E on the basis that I accept his expertise and I accept that his conclusions are well reasoned and well based on evidence.  Notably as part of his conclusions, Mr E recorded that in speaking of the Father he thought it rare to meet a parent, even in the Family Court, who is so open about their hatred and anger for their ex partner and still so blindly affected by the residual emotions of their breakup.  I include in these reasons, as did the Independent Children’s Lawyer in her submissions, Mr E’s conclusions in their entirety:

    65. I believe it is rare to meet a parent, even in the Family Court, who is so open about their hatred and anger for their ex-partner and still so blindly affected by the residual emotions of their breakup. There was no sophistication in [the Father’s] strategies for interrupting and interfering with the children’s relationship with their mother, nor any real attempt to hide the emotional reasons for this. It seems clear that the majority of [the Father’s] actions are motivated by hurt and revenge as well as quite petty ‘tit for tat’ gameplaying, such as refusing to allow the children living with him to speak to their mother because his eldest son won’t speak to him.

    66. Conversations with [the Father’s] own mother suggest these personality traits have been long-standing and that they extend to anybody who [the Father] sees as not supporting him. It seems quite clear he operates from a ‘you’re for me or against me’ standpoint and that this dispute has very much become a battle of wills for him and even a desire to simply beat [the Mother]. [The Father] has clearly been controlling and entirely unilateral in his decision-making around the children and I have no doubt that this would continue or even worsen greatly if the situation developed where all 4 children lived with him.

    67. [The Father] had a tremendous capacity and desire to pain (sic) himself as the victim in this scenario and seemed to completely lack any capacity to have insight into his own motivations or to take responsibility for his actions. In many ways it appeared as though [the Father] had developed the ability to shut out awareness of his faults and then resist any challenging of these through denial or deflection.

    68. Even in the face of what seemed overwhelming evidence about what has occurred in the past few months in his relationship and living situations, [the Father] still appeared determined to resist acknowledging the events, any of the obvious difficulties or possible problems that this presented. This could be seen as denial to protect his desired outcome, or simply straight out dishonesty. It would seem quite clear that not only have [the Father] and the children needed to live away from [Ms H] after the most recent fight, but that they weren’t even staying in the place [the Father] insists they were. It is uncertain what was happening with the children’s school attendance during this time, but again I suspect [the Father] has likely been dishonest about this. In many ways it seemed as though [the Father] truly believed that he was being hard done, (sic) by not only by [the Mother], but also by his own family, the report writer and the system.

    69. [The Father] presented as entirely self centred with virtually no concept of child focus, regardless of his own image of himself as being a champion for the children. It was clear that he was quite willing to sacrifice the children’s relationship with one another and their mother in order to punish [the Mother].

    70. I had very little confidence in the information being presented by [the Father] and certainly developed the impression that he was willing to say whatever was necessary to gain the outcome he wanted. I had the sense that [the Father’s] statements and allegations became more extreme and aggravated throughout the day when it seemed initial allegations did not receive the reaction he expected or hoped for. I’m greatly concerned by the possibility that allegations [the Father] has made about [the Mother] may either come from highly unreliable sources, or are potentially deliberately misrepresented or even fabricated.

    71. It also seems incredibly clear that not only has [the Father] developed issues with alcohol again, but that this has contributed to violence or abuse within his relationship with [Ms H], which the children have been exposed to. It is quite clear that [the Father’s] relationship and living situation is completely unstable as he has no assured housing of his own and is more or less homeless whenever he is ‘kicked out’ by [Ms H], meaning he is not able to guarantee a home for the children either at those times.

12. Notably, Mr E’s conclusion about the Father is that he is self centred with virtually no capacity to focus upon the children’s needs.  Mr E records conclusions to the effect that the Father was more than willing to provide adverse allegations about the Mother and Mr E had significant doubts about the veracity of these.  Whether or not they are true, the making of the allegations informs whether or not it would be in the best interests of these children for their parents to have shared parental responsibility for them. 

13. It would seem that the Father’s capacity to be self centred or selfish extended in the period when two of the children were living primarily with him for a lengthy period to cut off contact between his household and that of the Mother in some kind of perceived punishment of the Mother.  It seems, at least at one point, on the basis that C was not willing to speak with the Father, the Father then determined that the children living with him would have no communication or time with the Mother’s household and their siblings. 

14. Equal shared parental responsibility requires parents to be able to communicate with each other about important long term decisions for children.  It involves the ability to communicate and consult with each other and to consider the views of each other in formulating decisions that will be in the best interests of their children.  I find that on the history of this matter, including the nature of the Father’s allegations against the Mother and his attitudes more generally, particularly in the period since early last year, that it would not be in the best interests of these children for their parents to have equal shared parental responsibility.  I find that it would be in their best interests for their Mother to have sole parental responsibility, an order which is urged upon the Court, I note, by the Independent Children’s Lawyer. 

15. I have earlier referred to the feature so far as family violence and abuse is concerned. Given the existence of family violence historically, the resumption in section 61DA does not apply or is at least rebutted. And in any event, on the findings I have made, so far as best interests are concerned, it would not be in the best interests of these children for their parents to have equal shared parental responsibility. As I do not propose to make an order for equal shared parental responsibility, it is unnecessary for me to consider the reasonable practicability of equal time or substantial and significant time orders as referred to in section 65DAA, rather, the parenting orders to be made so far as time and communication are concerned are at large.

16. I am satisfied, on the Mother’s affidavit filed on 11 December 2012 that the children’s current circumstances are well catered for in terms of their health issues, their accommodation in the Mother’s home, and their educational arrangements. 

17. I am satisfied that the Mother has demonstrated a history of initiating contact between the children and their Father and, indeed, with other extended paternal family members.

18. I therefore make orders in terms of the draft orders proposed by the Independent Children’s Lawyer with the modification that orders cannot be framed on the basis of undertakings provided by the Father because he is unlikely to provide them.  I will convert the subject of proposed undertakings into orders of the Court.  The other amendment in terms of the draft orders that were submitted is that the Independent Children’s Lawyer seeks an order for sole parental responsibility to vest in the Mother and that is an order I propose, as I have indicated, to make. 

19. Otherwise, I will order that all previous parenting orders be discharged. However, as confirmed by exchanges between the Court and the Independent Children’s Lawyer at the hearing today, it seems to me that it would be in the best interests of the children to include, or at least remake orders similar to those contained in paragraphs 6 to 12 of the orders earlier made in the interim stage which were consented to by both parties on 22 May 2012.

20. I propose to include a liberty to apply provision for the Mother in circumstances where the orders I have made today are somewhat different to those sought so far as the order being made for sole parental responsibility is concerned in case the Mother wishes to be heard further on that order.

21. There is a further oral application in the proceedings by the Independent Children’s Lawyer for an order for costs to be made in favour of the Independent Children’s Lawyer.  The costs incurred total some $6550, and $1350 of that amount was incurred with respect to the family report of Mr E. 

22. In terms of justifying circumstances within the meaning of section 117(2) of the Act for an order for costs there is much force in the submissions of the Independent Children’s Lawyer concerning the conduct of the Father relevant as being a justifying circumstance with respect to making a costs order. However, on all of the evidence before me, there is little evidence of the Father either having the capacity to engage in employment or at least exercising that capacity. On the evidence before me, he seems to have been unemployed for a significant period or periods. Although reference is made to him perhaps seeking to obtain work at one point, there is no convincing evidence before me as to his financial circumstances.

23. Whilst the Father did have notice from correspondence at the outset of the Independent Children’s Lawyers appointment on 20 October 2011 to the effect that, ultimately, the Independent Children’s Lawyer may seek an order for costs against him, there is the potential that in circumstances where he has been told about the orders that would be sought on a final basis, which did not include, necessarily, an emphasis upon an order for costs being sought against him, he has chosen not to be involved in ignorance of the feature that an application would ultimately be made. 

24. In all of those circumstances, I decline the application for costs on behalf of the Independent Children’s Lawyer but understand the circumstances in which it was made.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 26 February 2013.

Associate:                 

Date:  26 February 2013