SMYTHE & BANKS

[2016] FamCA 946

FAMILY COURT OF AUSTRALIA

SMYTHE & BANKS [2016] FamCA 946

FAMILY LAW – CHILDREN – Wishes – Where the children’s residences are currently split between the parties – Where the youngest child has a meaningful relationship with both parties but lives with the mother and does not see the father – Where the two older children live with the father and do not see the mother – Where both parties are acting in contravention of interim orders – Where the two older children are aged 16 and 15 years respectively and both express wishes to live with the father – Where the two Family Consultants recommend cautious evaluation of the children’s views – Concluded the father unduly influences the two older children’s views and it is immaterial whether such influence is intentional or inadvertent

FAMILY LAW – CHILDREN – Best Interests – Family Violence – Where the mother alleges the father perpetrated family violence upon her – Where the father perpetrated family violence upon his partner in a subsequent relationship – Where the father was convicted of an assault on his current partner – Where the father attributes the family violence to mental health issues – Where there is no reliable evidence the father’s mental health will improve – Where both the father and his current partner minimise the seriousness of family violence – Decided the children will likely be exposed to family violence in the father’s household – Ordered that the children live with the mother – Ordered that the mother have sole parental responsibility – Ordered that the children spend time with the father on four occasions per year under supervision

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC, 65DAE

Amador v Amador (2009) 43 Fam LR 268
B & B [2003] FamCA 274
B & K [2001] FamCA 880
Khalil & Tahir-Ahmani (2012) FLC 93-506
Marriage of Blanch (1998) 24 Fam LR 325
Marriage of JG & BG (1994) 18 Fam LR 255

APPLICANT: Ms Smythe

RESPONDENT: Mr Banks

INDEPENDENT CHILDREN’S LAWYER: Mr Haricharan, Hunter Family Law Centre Pty Ltd

FILE NUMBER: NCC 1359 of 2013

DATE DELIVERED: 8 November 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 25, 26 & 27 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rugendyke

SOLICITOR FOR THE APPLICANT: Ramsland Laidler Solicitor

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kelly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Haricharan, Hunter Family Law Centre Pty Ltd

Orders

1. All former orders in respect of the following children are discharged:

   (a)       B, born … 2000;

   (b)       C, born … 2001; and

   (c)       D, born … 2006.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. The parties shall take all reasonable steps to ensure that the children spend time with the father, supervised by staff of the E contact service (“the supervisor”), for two hours on:

   (a)The second Saturday of December, March, and June each year; and

   (b)The first Sunday of September each year.

5. For the purpose of implementing Order 4 hereof:

   (a)The parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

   (b)The time that is to be spent by the children with the father shall commence at the time designated by the supervisor;

   (c)The venue at which the time is to be spent by the children with the father shall be designated by the supervisor;

   (d)The father shall pay the costs of the supervisor;

   (e)The mother shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children (or any of them) with the father;

   (f)The parties shall comply with all reasonable requests and directions of the supervisor; and

   (g)Leave is granted to the parties to provide a copy of these orders to the supervisor.

6. Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:

   (a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day, and

   (b)By the mother promptly sending to the father:

   (i)Written acknowledgement of receipt of the father’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father.

7. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, postal address, and mobile telephone number.

8. Other than in accordance with Orders 4 and 6 hereof, the father is restrained from contacting the children.

9. The father is restrained from causing or allowing the children to be or remain at his residence.

10. In the event that any of the children contact the father or attend at his residence other than in accordance with Orders 4 and 6 hereof, he shall forthwith notify the mother of that fact by text message to her mobile telephone.

11. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

12. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

13. Each party is restrained from causing or permitting the children to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively, or any derivative thereof.

14. The father is restrained from causing or permitting the children to refer to the mother as “[Ms Smythe]”.

15. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

16. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

17. Leave is granted to the mother to provide to any general medical practitioner, counsellor, psychologist, or psychiatrist engaged to provide professional services to any of the children copies of:

    (a)These orders;

    (b)The reasons for these orders;

    (c)The two Family Reports dated 17 December 2013 and 31 August 2016.

18. Within seven days hereof the parties shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.

19. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21. Any and all other outstanding applications are dismissed.

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 Smythe & Banks 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 NEWCASTLE

FILE NUMBER: NCC 1359 of 2013

Ms Smythe

Applicant

And

Mr Banks

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders for the three children of the applicant mother and respondent father.

2. The children were born in 2000, 2001, and 2006. They are now aged 16, 15, and nearly 10 years of age. The two eldest children are male and currently live with the father. The youngest child is female and she currently lives with the mother. Those arrangements are contrary to existing interim orders.

3. The parties’ dispute covered all aspects of the children’s care, including the allocation of parental responsibility for them, with whom they should live, and the amount of time they should spend with the non-residential parent.

Background

1. The parties began cohabitation in 1998, when the parties were very young: the mother was aged 14 years and the father 15 years of age. They finally separated in August 2011. The mother commenced these proceedings in the Federal Circuit Court of Australia in June 2013 seeking orders to formalise parenting arrangements between them, which had varied from time to time.

2. Upon commencement of the proceedings, the mother filed a Notice of Risk alleging the father perpetrated abuse and family violence which exposed the children to risks of harm in his care. The father responded by later filing two Notices of Risk contending the children were at risk of harm by reason of their subjection or exposure by the mother to physical abuse and family violence.

3. The Federal Circuit Court made its first set of interim orders in December 2013, immediately following release of the first Family Report, which orders provided for all three children to live with the mother and for them to spend time with the father on alternate weekends and for periods of school holidays.

4. The Federal Circuit Court made its second set of interim orders in August 2014, with the consent of the parties, which discharged the earlier orders and provided for the parties to have equal shared parental responsibility for the children and for them to live with the parties for “equal time” on weekly rotations, if not otherwise agreed.

5. In March and May 2015, further procedural orders were made for the parties to again confer with a Family Consultant and for them to submit to mediation funded by the Legal Aid Commission. Those orders did not induce settlement of the parties’ dispute.

6. The Federal Circuit Court made its third set of interim orders in August 2015, with the consent of the parties, amending the orders last made in August 2014 insofar as they applied to the two boys. The new orders provided for them to live with the father and to spend alternate weekends with the mother, but only until December 2015, when the former orders would revive. The former orders in respect of the youngest child were to remain in force, meaning she should continue to live with the parties for equal time.

7. The orders made in August 2015 also compelled the parties to approach a medical practitioner “for the purpose of family therapy”, directed the parties to participate in another “family dispute resolution conference” in December 2015, and adjourned the proceedings until February 2016 with liberty granted to vacate that date if “terms of settlement [were] filed” in the interim. The parties did not settle the dispute and so, in January 2016, the Federal Circuit Court ordered the preparation of a second Family Report and fixed the matter for trial on 14 September 2016.

8. The second Family Report was prepared on 31 August 2016. The trial judge then re-listed the proceedings on 5 September 2016, released the second Family Report, and confirmed the trial would start on 14 September 2016.

9. For reasons not revealed by the Court file, the trial judge then re-listed the proceedings only a week later on 12 September 2016, at which time the trial was vacated and the proceedings were transferred to this Court. Consequently, only two days before the commencement of the trial, the Federal Circuit Court deprived the parties of the trial for which they had been waiting for more than three years. The Federal Circuit Court’s orders of that date note:[1]

   The [second] family report was released in the matter on 5 September 2016. The family consultant [Ms F] recommends a Chapter 15 expert report be prepared. It is the view of this court that this matter will take not less than 5 days to be heard.

   [1] Notation A made on 12 September 2016

10. Such a notation was unsatisfactory for a number of reasons.

11. First, the second Family Report was available to the Federal Circuit Court, the parties and the Independent Children’s Lawyer at the penultimate court event on 5 September 2016, so the recommendation of the Family Consultant for the engagement of a single expert witness was then known, but her suggestion for the procurement of another report from a single expert was not seized upon to frustrate the trial. In fact, the trial dates were then confirmed. Why that was then advanced as the reason for vacation of the trial dates only a week later remains unexplained.

12. Second, neither party nor the Independent Children’s Lawyer wanted a single expert witness appointed, either when the proceedings were before the Federal Circuit Court or after the proceedings were transferred to this Court.

13. Third, the parties and the Independent Children’s Lawyer agreed the trial in this Court would be contained to only four days and they denied they represented to the Federal Circuit Court that the trial would take any longer. As it transpired, it was confined to only three days.

14. Having regard to the gross delay experienced by the parties in the Federal Circuit Court, once the proceedings were transferred to this Court in September 2016, they were immediately listed for trial and heard in October 2016.

15. Up until September 2016, the children each maintained their relationships with both parties, albeit not necessarily in accordance with the prevailing interim orders. The eldest child lived permanently with the father but only occasionally visited the mother, the second child lived with the father but still visited the mother on alternate weekends, and the youngest child still lived with the parties for equal time on weekly rotations. However, the parties’ have different perceptions about whether they caused or allowed the children’s relationships with the other party to sever or deteriorate after the second Family Report was released in September 2016. The two boys now live with the father, but they see none of the mother, and the youngest child now lives with the mother but sees none of the father.[2]

    [2] Mother’s affidavit, para 148; Father’s affidavit, paras 120-123

Proposals

1. The mother proposed orders in her Amended Initiating Application filed on 23 September 2016 for her allocation of sole parental responsibility for all three children, for all children to live with her, and for none of the children to spend any time with the father. By the time of final submissions, she altered her position slightly by instead embracing the orders proposed by the Independent Children’s Lawyer.

2. The father started the trial seeking the orders set out in his Amended Response filed on 30 September 2016, which orders differentiated the children. In respect of the boys, he proposed that he have sole parental responsibility for them, that they live with him, and that they spend time with the mother on alternate weekends and for a few hours on Christmas Day. In respect of the youngest child, he proposed that he and the mother share parental responsibility for her and that she live with the parties for equal time on weekly rotations. However, during cross-examination, the father recanted and proposed different orders, which were identical in respect of all three children. He proposed that he have sole parental responsibility for them, that they live with him, and that they spend time with the mother on alternate weekends, for portions of school holiday periods, and on other special occasions.

3. As would be obvious from that synopsis, the parties had remarkably different ideas about what form of orders would serve the children’s best interests. The Independent Children’s Lawyer tendered a minute of the orders he proposed just prior to the commencement of final submissions,[3] which essentially provided for the mother to have sole parental responsibility for the children, for the children to live with her, and for the children to only spend time with the father on four occasions each year under professional supervision.

   [3] Exhibit ICL12

Evidence

1. The mother relied upon:

   (a)Her affidavit filed on 7 October 2016; and

   (b)The affidavit of her partner, Mr G, filed on 7 October 2016.

2. The father relied upon:

   (a)His affidavit filed on 7 October 2016;

   (b)The affidavit of his wife, Ms H, filed on 7 October 2016; and

   (c)The affidavit of Mr I, filed on 7 October 2016.

3. The parties and Independent Children’s Lawyer relied upon:

   (a)The Family Report of Ms J, dated 17 December 2013 (“the first Family Report”), about which she was not cross-examined; and

   (b)The Family Report of Ms F, dated 31 August 2016 (“the second Family Report”).

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. There was no dispute that the youngest child enjoys loving relationships with both parties,[4] though there was some argument about the benefit she does or should derive from those relationships. That argument hinges on findings about risks of harm under s 60CC(2)(b) and the parties’ respective parenting capacity under s 60CC(3) of the Act.

   [4] First Family Report, para 135; Second Family Report, paras 130-135

2. As for the boys, there was a dispute about the quality of their relationships with both parents. They currently live with the father and do not see the mother. The father asserted that was due to them making their own mature decisions based upon their disaffection with the mother because of her past misconduct and lack of any satisfactory reformation, but the mother contended they only tend to reject her because their will is subjugated by the father, whom they fear rather than respect. The mother believed the father was aligning the boys against her because of former threats he made to do so if they ever separated,[5] but the father denied he discouraged the boys from spending time with her.[6]

   [5] Mother’s affidavit, para 147

   [6] Father’s affidavit, paras 64, 101

3. When the first Family Report was compiled in December 2013, the Family Consultant found both boys to have a “close and familiar relationship with both the mother and father”.[7] Their love for the mother was also evident when the second Family Report was compiled in August 2016.[8] However, between times, there was enormous upheaval in the boys’ relationships with the mother.

   [7] First Family Report, paras 120, 135

   [8] Second Family Report, paras 130, 131, 134, 135

4. In August 2014, fresh interim orders were made, discharging the existing orders providing for the children to live primarily with the mother and to spend time with the father and replacing them with orders requiring the children to live with the parties for equal time. By the time the second Family Consultant initially met with the family some months later in April 2015, both boys strongly expressed they wanted nothing more to do with the mother, did not wish to spend time with her, and would run away if forced to do so. At or about that time, the eldest child ceased spending any time with the mother and cut himself off from her,[9] contrary to the orders made in August 2014. The second child also began spending less time with her, though he at least continued to visit her on alternate weekends.[10] However, by the time the second Family Consultant again conferred with the family in August 2016, both boys were regularly spending time with the mother on weekends, though they tended to be secretive about their continuing relationships with her.[11] Those uncontroversial facts beg the question of why the boys were avoidant of the mother in the period between early 2015 and early 2016, but demonstrated perfectly loving relationships with her both before and afterwards when independently observed by the Family Consultant.

   [9] Mother’s affidavit, para 138

   [10] Mother’s affidavit, paras 139-140

   [11] Mother’s affidavit, paras 142-145

5. The father deposed how both boys attended their school counsellor in November 2014 and complained they were “unhappy living with their mother” because she is “continuosly [sic] naked in front of them and that she screams at them”,[12] which he presumably believes accounts for why the eldest child ceased his visits with the mother in early 2015 and why the second child curtailed his visits with her at about the same time. He could not account for why the boys’ relationships with the mother strengthened during 2016, but then failed again in September 2016, other than to say “they feel that any progress made with her has been fake”.[13] The father asserted in the Summary of Argument he filed before the trial that he “encourages and facilitates on-going visits and a close and continuing relationship between the children and the mother” but, if that is true, it necessarily means any encouragement he gives them to do so is useless because the boys have not seen her at all since early September 2016. They even now refuse to accept her telephone calls.

   [12] Father’s affidavit, para 57

   [13] Father’s affidavit, para 120

6. There was an inherent inconsistency in and illogicality about the father’s evidence. It is difficult to accept he encourages the boys’ relationships with the mother when he contends he was and remains “very troubl[ed]” about her physical abuse of them[14] and “extremely alarm[ed]” about her prostitution at home.[15] Why would he encourage them to see her if he genuinely believes they were and remain at risk of physical and psychological harm in her care? His evidence failed to satisfactorily explain why the boys’ relationships with the mother recovered during 2016, but then regressed contemporaneously with the release of the second Family Report in September 2016. The father’s assertion that the boys individually evaluated and concluded the mother’s “progress” was “fake” raised more questions than it answered. In respect of what aspect of the mother’s life did they expect “progress”? How would the father know of the boys’ expectation of and dissatisfaction with her progress unless he engaged them in discussion about it and empowered them to express critical views about her? Why would the boys’ alleged dissatisfaction with the mother manifest itself afresh in September 2016, if it was not in direct response to the youngest child ceasing visits with the father following the release of the second Family Report which was critical of him and raised the prospect of his exertion of influence over them? None of those questions were convincingly answered by the father in either his evidence or submissions.

   [14] Father’s affidavit, paras 56, 58, 110

   [15] Father’s affidavit, para 118

7. In cross-examination, the mother said she told the second child he did not have to return to the father’s home but he responded he felt he had to. She said both boys have told her in the past they are too scared to stay with her and are fearful of not returning to the father’s care. Ms H told her doctor in December 2015 that the eldest child told her he would prefer to go with her if she separated from the father[16] and the eldest child recently sent a text message to the mother asking “…how come we can’t see our little sister?”, which implied his despair at the severance of family relationships.[17] He seems torn by his predicament, and in particular, by the demands he feels are made of him by the father.

   [16] Exhibit ICL10

   [17] Mother’s affidavit, para 149, Annex F

8. During cross-examination the second Family Consultant endorsed the mother’s opinion that the father exerted pressure upon the boys to demonstrate allegiance to him. She believed the boys genuinely wanted to retain their loving relationships with the mother, but they perceived the father was against it. Because they were well aware of his violent propensity, by which they felt intimidated, they found it safer to placate him rather than irritate him. She agreed the boys, by choosing to limit their time with the mother, may simply be avoiding conflict and demonstrating loyalty to the father.

9. Each child still has a meaningful relationship with the mother, from which they do and should derive benefit. The danger though, particularly in respect of the boys, is that their relationships with the mother will be lost or at least impaired if they remain resident with the father. As the second Family Consultant said in cross-examination, if the boys continue to live with him, they may disconnect with the mother, just as they did before and just as is occurring now.

10. The youngest child still has a meaningful relationship with the father, even though the mother has unilaterally stopped her from spending any time with him. However, unlike the father’s past and present non-compliance with interim orders in respect of the boys, I am satisfied the mother would adhere to any orders made in respect of the children. She has not done so since the release of the second Family Report in early September 2016, but she still did so for years beforehand despite her concerns about the children's welfare when in the father’s care. The mother’s long-held concerns about the father were endorsed by the opinions and recommendations expressed in the second Family Report, upon which she was emboldened to act. Significantly, the father admitted in cross-examination it was reasonable for the mother to be concerned about the children’s safety when in his care after she read the second Family Report, which admission dampens any criticism of her for contravention of the interim orders. The risks of harm to the children identified in that report must be the subject of separate consideration under s 60CC(2)(b) of the Act.

Section 60CC(2)(b)

1. The issue of pre-eminent importance in the proceedings was the mother’s contention that the children were at profound risk of physical or psychological harm by reason of their exposure to family violence perpetrated by the father – regardless of whether they live with him or spend any unsupervised time with him. She alleged the children were exposed to such violence during the parties’ relationship and, more recently, to violence similarly inflicted by the father upon Ms H. There was an abundance of evidence to support her claims.

2. The mother alleged that, during her relationship with the father, he shouted at her, denigrated her, physically assaulted her, and suppressed her financial autonomy.[18] She gave an account of one frightening incident she could specifically recall in 2008 in which she grabbed a knife to protect herself and the father took it from her, held it to her throat, and threatened her.[19] The second Family Consultant extracted and summarised that and other incidents from records produced on subpoena.[20] Threats to kill were features of the allegations reported by the mother to police and the mother deposed threats were often made by the father to her.[21] The police were summoned to intervene on occasions and the mother told them there was no physical violence, which she alleged was a lie.[22] The fact she may have then lied to police does not necessarily destroy her credit now, as her motive to placate the father plausibly explains (though does not excuse) her dishonesty.

   [18] First Family Report, paras 35, 36

   [19] Mother’s affidavit, para 50

   [20] Second Family Report, para 94

   [21] Mother’s affidavit, para 51

   [22] First Family Report, para 37; Father’s affidavit, para 33

3. The mother told the first Family Consultant that she retained a letter the father wrote to her after an argument between them in which he threatened to kill her.[23] She produced the letter in evidence, which she said in cross-examination she received in about 2005, and it was chilling.[24] It reads in part:

   You don’t think I want to see your eyes bulge out your face while I’m strangling you? Then I will be truely be at peace. I will lay beside you and kiss you and I will tell you how much I truely do love you. Then I will find peace because only then will you be mine, only then you will not be able to cheat on me…Do you realise that im only human? that eventually I will have to snap !? [sic]

   [23] First Family Report, para 35

   [24] Mother’s affidavit, para 46, Annex A

4. The mother deposed how the father occasionally told her “[i]f I can’t have you then no one else can”,[25] which repeatedly implied his apparent willingness to murder her if she abandoned him as a partner. Threats of that ilk cannot be passed off or trivialised as mere hyperbole.

   [25] Mother’s affidavit, para 47

5. The mother alleged the father’s violent, threatening and controlling behaviour towards her continued at and after separation.[26] He denied her the use of a car, even though he already had one himself, which impaired her mobility and her capacity to ensure the children’s attendance at school.[27] She said in cross-examination that, even now, she remains intimidated by the way the father stands and peers at her.

   [26] First Family Report, para 39; Mother’s affidavit, paras 61, 64, 69

   [27] Mother’s affidavit, paras 49, 63-66

6. The father told the first Family Consultant he was never physically violent towards the mother, but rather, she was violent to him. He also denied any financial or social control of the mother.[28] He gave evidence to the same effect, both in his affidavit[29] and during cross-examination. He conceded the incident with the knife in 2008 occurred, but he asserted the mother was the aggressor and he only then acted in self-defence.[30] He seemed to reason that, because he was not charged with any criminal offence on that occasion, he was blameless.

   [28] First Family Report, paras 39, 82, 83

   [29] Father’s affidavit, paras 32, 35

   [30] Father’s affidavit, para 34

7. The parties’ evidence about the occurrence of family violence between them was irreconcilable. It is conceivable they each honestly hold incompatible perceptions about who was responsible for the violent incident between them in 2008, but the mother’s evidence about the father’s threats to and domination of her was very persuasive, since it tallied with independent evidence. Violence is characteristic of the father’s interaction with many other people, including his perceived enemies, neighbours, and his current wife. He venerates physical strength and dominance, as demonstrated by his past use of steroids to enhance his physique, his past association with members of a motorcycle gang, and his interest in mixed martial arts, which interest he is trying to imbue in the boys.

8. The father was formerly employed as a security guard and the mother saw him engage in fist fights with neighbours.[31] One of the boys once reported to the mother he witnessed the father search for people to confront while armed with a bat.[32] The children told the mother of the father’s use of steroids[33] and the mother said in cross-examination she witnessed it herself. The mother produced a photograph of the father in the company of other men in a gang and, while the father did not admit he made threats to enlist gang members to help enforce his will, it was uncontroversial he took the boys to the gang’s premises.[34] Intimidation by the father was the subject of an allegation made by a third party to police in 2011.[35] Despite the boys’ young age, the father told the mother of his intention to obtain firearms licences for them[36] and he ensures their regular training in mixed martial arts.[37]

   [31] Mother’s affidavit, para 43

   [32] Mother’s affidavit, para 44

   [33] Mother’s affidavit, para 59

   [34] Mother’s affidavit, paras 54-56, Annex B; First Family Report, paras 49, 77

   [35] Second Family Report, para 94

   [36] Mother’s affidavit, para 58

   [37] Father’s affidavit, para 50

9. While those facts could conceivably be regarded more benignly than they first appear, the father’s treatment of his domestic partners is incapable of any form of justification. His treatment of Ms H is just as violent and domineering as was his treatment of the mother, which the Family Consultant was moved to describe as “pathological” and “coercive controlling violence”.[38]

   [38] Second Family Report, paras 20, 68

10. On 24 March 2016, Ms H consulted her general practitioner over her alleged assault by the father the night before. She told the doctor she was subjected to the father’s continuing “psychopathic behaviour”.[39] The doctor was so concerned about Ms H’s presentation that she arranged for her to immediately report the matter to police, which sparked an investigation. Ms H reported to police she was subjected to “daily threats and intimidation” by the father.[40] That was probably not idle exaggeration. She managed to successfully film her assault by him the night before without him knowing, so she must have been anticipating it. She told police she genuinely feared being killed by the father, as he regularly threatened, which was why she had not reported any domestic abuse in the past. She told police she wanted her own child away from him and even the two boys removed from his care.[41] The police were “extremely concerned” about her and believed the father was “capable of causing serious harm” to her,[42] which opinions one officer subsequently confirmed directly with the Family Consultant.[43]

    [39] Exhibit ICL11

    [40] Second Family Report, paras 93, 139, Annex A

    [41] Second Family Report, para 114

    [42] Second Family Report, paras 93, 139, Annex A

    [43] Second Family Report, para 119-123

11. While Ms H was at the police station making her statement, the police read text messages being sent to her by the father, one of which implied his imminent murder of her and his suicide in the following terms:[44]

    So you go call the cops on me and steal my money all you like you dog. I’m very close to snapping and ending us both.

    [44] Second Family Report, paras 93, 139, Annex A

12. As a consequence of the allegations she made to police, the father was charged with a number of offences relating to his assaults of Ms H on 4 November 2015 and 23 March 2016. The father appeared before a State court in respect of those offences in September 2016 and, following his plea of guilty, was convicted of assaulting Ms H in November 2015. It seems that the other charges related to the incident in March 2016 were withdrawn as part of a plea bargain; not defended and dismissed on their merit.

13. Consequently, it is undeniable that on 4 November 2015 the father assaulted Ms H in their home, after he checked her mobile telephone, by leaning over her, putting his fist to her face, strangling her, and threatening to kill her by “cut[ting] [her] fucking head off”.[45] He has not yet been sentenced for that offence, but a family violence order has already been made against him for the protection of Ms H.[46] The father’s protestation to the second Family Consultant that his altercations with Ms H were “only verbal” was plainly false.[47] His assertion in cross-examination that the incident in November 2015 was the only incident of family violence between them was also false.

    [45] Second Family Report, paras 93, 139, Annex A; Father’s affidavit, para 72, Annex I

    [46] Second Family Report, para 5; Exhibit M1

    [47] Second Family Report, para 54

14. Although the criminal charges pertaining to the alleged assault in March 2016 were not pursued, that does not preclude a factual finding being made in these proceedings on the balance of probabilities that the father assaulted Ms H as she alleged. The evidence comfortably proves that, on that occasion, the father smacked her forcibly across the side of her head causing her ear to ring.[48] Ms H confirmed in cross-examination the truth of that allegation. The father said in cross-examination he simply pushed her, but it is quite unlikely Ms H would have consulted her doctor the next day if she was only pushed by the father. On 31 March 2016, shortly after the father was charged and released on bail, he attended upon his doctor and admitted he had been in custody because he “threaten[ed] to kill his wife” as she “threatened to take his kids away”.[49]

    [48] Second Family Report, paras 93, 139, Annex A

    [49] Exhibit ICL1

15. As Ms H told the police, her altercations with the father in November 2015 and March 2016 were not isolated occurrences. She told her doctor the same thing at numerous consultations between June 2014 and March 2016.[50] Family violence must have been a reasonably regular occurrence for her to be ready, willing and able to surreptitiously film the father’s attacks upon her.[51] She also told the police the father was jealous and possessive of her, she was financially dependent on him, and he destroyed her self-confidence.[52] The children described to the second Family Consultant witnessing “lots of fights” between the father and Ms H[53] though they were quite reluctant to discuss the household environment,[54] suggesting they are grossly apprehensive about offending the father. The mother said in cross-examination the two youngest children reported the same thing to her, confirming her earlier comments to the second Family Consultant.[55]

    [50] Exhibits ICL7, ICL8, ICL9, ICL10, ICL11

    [51] Second Family Report, para 140

    [52] Second Family Report, Annex A

    [53] Second Family Report, para 89

    [54] Second Family Report, para 87

    [55] Second Family Report, para 33

1. Ms H also told police the father was sexually aroused by watching small animals tortured.[56] She said in cross-examination she could not recall making such an allegation, but the police records are probably accurate and it is unlikely she fabricated the allegation given the solemn circumstances in which she was then discussing her concerns about the father with the police. Additionally, she told her doctor much the same thing at consultations in June and July 2014[57] and could not account for the similarity of those complaints to her doctor and those she later made to the police. The intentional infliction of injury to an animal is capable of constituting “family violence” (s 4AB(2)(f)), but regardless, the father’s excitement at watching such gratuitous, deviant violence deserves mention as part of the factual matrix.

   [56] Second Family Report, Annex A

   [57] Exhibits ICL7, ICL8, ICL9

2. Ms H was interviewed by the second Family Consultant in August 2016. The Family Consultant found her presentation “odd” and concluded she “may have been coerced to attend the interview and was under duress”.[58] Given the nature of her allegations against the father to her doctor and the police over the period between June 2014 and March 2016, it would be stretching credulity to think she attended upon the Family Consultant voluntarily. Most likely she did so because the father demanded her support. Most probably she gave evidence at trial in support of his case for the same reason. Little weight can be attributed to her remarks to the second Family Consultant, not least because she failed to mention the family violence[59] and, when asked directly about it, falsely denied any physical assault by the father and maintained “it was just verbal” and said it was a “one off incident”.[60] Similarly, little weight can be attributed to most of her evidence, which was glib and unconvincing. She regularly answered questions by asserting her lack of recollection, even in relation to recent and startling revelations. For example, she professed she could not remember telling her doctor in March 2016 that her relationship with the father was worsening and he called her disparaging names like “dog” and “cunt”,[61] which vile treatment she could hardly have forgotten within only a few months.

   [58] Second Family Report, para 104

   [59] Second Family Report, para 137

   [60] Second Family Report, paras 109, 111

   [61] Exhibit ICL11

3. There is every reason to suspect the dynamic of the father’s violent domination of his domestic partner, whoever that may be from time to time, will continue into the foreseeable future for a number of reasons.

4. First, the father and Ms H attribute the family violence between them to the father’s psychological ill health.[62] The father deposed to his sufferance of “complex trauma”, which his general practitioner suspected may be “PTSD”, and for which he was seeking counselling, but which is now complete.[63] The reports of the father’s counsellor to his general practitioner reveal her belief in his “progress” but warn about his symptoms “fluctuat[ing]”. Since the father’s current course of therapy is now complete, he was advised to manage his fluctuating symptoms by “breathing and mindfulness”.[64] There was no independent expert evidence adduced about the father’s diagnosis, the precise nature of his therapy or treatment for the condition, or his prognosis, so there was no rational basis to conclude his condition will imminently resolve. The father’s inexpert and optimistic opinion about his recovery is not an evidentiary foundation for such an inference.

   [62] Father’s affidavit, paras 71, 73; Affidavit of Ms H, para 18

   [63] Father’s affidavit, para 59, Annex E; Exhibits ICL3, ICL6

   [64] Exhibits ICL5

5. Secondly, the father minimises his past violence. During his interview with the second Family Consultant in August 2016, at which time he had been receiving counselling for months, the father said he and Ms H “did have some issues…months ago” but there had been no physical violence between them and “the kids were shielded from it”.[65] Obviously the counselling he had received to that point in time had not enlightened him about his violent past. There was no hint of remorse in his comments.

   [65] Second Family Report, paras 54-56

6. Thirdly, Ms H also minimises the seriousness of the situation. She deposed that, even though the boys were in their household at the time of one assault upon her by the father, they did not see or hear the assault.[66] It would beggar belief that the children were blissfully unaware of such serious violence. In fact, at least the second child was present when the father was arrested by police in March 2016 and, more generally, the children were aware of the conflict in the household, Ms H’s subornation by the father, and her disengagement from the household.[67] Her minimisation is also evident from her apparent belief the father has now been held accountable for the crime he committed.[68] On the available evidence, the father’s conduct towards her over the past few years has been pervasively criminal, even though he has only been formally convicted of one offence. The father was anxious to impress that he has never been charged with any criminal offences, save for those in March 2016 on the complaint of Ms H,[69] implying it was an aberration. It was not an aberration. It was an example of the way in which he commonly treats his domestic partners. The second Family Consultant logically considered Ms H was “powerless” in the relationship.[70] Ms H most probably felt overborne by the father to support him in this litigation by attending the interview with the second Family Consultant and by giving evidence as a witness in his case. It is most unlikely she would have voluntarily supported his parenting application given her domestic experiences with him.

   [66] Affidavit of Ms H, para 15

   [67] Second Family Report, paras 86, 89, 141

   [68] Affidavit of Ms H, para 15

   [69] Father’s affidavit, paras 73, 105

   [70] Second Family Report, para 141

7. Fourthly, the father and Ms H apparently intend to continue their matrimonial relationship. The father denied they had separated and denied any intention to do so.[71] Ms H told the second Family Consultant she was not “officially separated” from the father[72] and she denied in evidence any intention to separate.[73] If they remain domestic partners, it is all the more reason to suspect the power imbalance in their relationship will continue just as before. Even if the father and Ms H do separate, any partner with whom the father establishes a future relationship is likely to be dominated by him in the same way as were the mother and Ms H.

   [71] Father’s affidavit, para 71

   [72] Second Family Report, para 106

   [73] Affidavit of Ms H, para 17

8. As a consequence, all of the children are likely to be exposed to family violence within the father’s household. Such exposure is liable to be very harmful to them. During her cross-examination, the second Family Consultant described the effects upon the children as “profound” and “insidious”. The exposure of a child to family violence, even when confined to a pattern of domination rather than frank physical abuse, notoriously has the potential to harm the child by impairing the child’s psychological health and development and by modelling unacceptable family relationships. The psychological sequelae are known to be insecurity, fear, unhappiness, anxiety, and hyper-vigilance, each with long-lasting deleterious effects (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33]-[37]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmani (2012) FLC 93-506 at [189]).

9. Self-evidently, such risk of harm to the children can only be mollified by restricting the children’s interaction with the father and by ensuring they do not spend any time with him at or in his home, where they are liable to encounter an unhealthy domestic relationship between him and his wife or new partner.

10. The father maintained the children were at risk of harm through their subjection by the mother to physical abuse. The foundation for such an allegation was the mother’s past corporal punishment of the children, and additionally, a complaint made by the second child to a school counsellor in late 2014 that the mother dragged him from a car and repeatedly punched him.[74]

    [74] Father’s affidavit, paras 56, 58

11. In respect of past corporal punishment, the mother conceded long ago that had been the disciplinary practice, which the boys confirmed was employed by both parties.[75] The mother denied she now used corporal punishment and there was no evidence to contradict her and no reason to disbelieve her.

    [75] First Family Report, paras 53, 88, 110, 111, 129

12. In respect of the incident in late 2014, the mother was cross-examined about it and she credibly denied any physical abuse. She explained the second child kicked the youngest child in the face while they were both in the back of a car. The second child complied with her demand for him to alight and she then smacked him on the bottom. The mother’s direct evidence is likely to be more reliable than the second child’s report to his school counsellor. There is a real risk he exaggerated the incident for dramatic effect, as he was then only 13 years old and well aware of high conflict between his parents

13. The evidence does not support any finding that the children are at risk of harm through their subjection to physical abuse by the mother. The father must really accept that conclusion, for otherwise he would not propose that the children should visit the mother every alternate weekend and for portions of school holidays. It would be absurd for him to make that proposal and still harbour fear about their safety when in the mother’s care for such substantial amounts of time.

Best interests of children – additional considerations

1. Over a long period, the boys have generally expressed wishes to live primarily with the father. The eldest child did so with both Family Consultants in 2013 and 2016,[76] as did the second child.[77] The youngest child told the first Family Consultant she wanted to live with the father,[78] but was not specifically asked by the second Family Consultant and seemed content with the “equal time” arrangement then in place for her.[79]

   [76] First Family Report, para 109, 119; Second Family Report, para 84

   [77] First Family Report, paras 126, 133; Second Family Report, para 81

   [78] First Family Report, para 126

   [79] Second Family Report, para 76

2. Notwithstanding such clearly expressed wishes, both Family Consultants recommended cautious evaluation of their stated views, but for different reasons. In 2013, the first Family Consultant did not consider the children were mature enough to understand the long-term implications of their expressed views and wondered whether they had been influenced by the father.[80] Nearly three years later, in 2016, the second Family Consultant considered the children’s views were unduly influenced by the father,[81] which she elaborated during cross-examination and thereby endorsed the mother’s belief.[82]

   [80] First Family Report, paras 28, 119, 126, 133, 134, 146

   [81] Second Family Report, para 145

   [82] Second Family Report, paras 24, 29

3. Axiomatically, if the children’s views are contaminated by the father’s overt or covert pressure, less weight should be reposed in them. The parties understandably subscribed to the belief that coincided with the cases they each conducted. Only the Family Consultants were able to independently express opinions on that issue. The first Family Consultant was open-minded, but she at least suspected undue influence of the children’s views by the father, though the second Family Consultant was adamant that was the case. Nevertheless, because of the boys’ ages, their views cannot be entirely discounted.

4. The conclusion that the father unduly influences the boys’ views about the mother had a firm foundation in the evidence. It is really the only convincing explanation for why their relationships with the mother have waxed and waned over the last couple of years. Of course, it is immaterial whether the influence the father exerts over the boys is intentional or inadvertent, because the effects are the same. The father has a dim view of the mother and it is doubtful he has quarantined the boys from those views. The father has no respect for the mother, as he believes she is of no value to the boys and doubts her value to the youngest child, which the first Family Consultant found concerning.[83] It seems the father showed the children critical text messages he sent to the mother, which the first Family Consultant also said would tend to induce the children’s disrespect for the mother.[84] The father admitted he liked and encouraged the children to refer to Ms H as “Mum”. Although he may not expressly direct the children to refer to the mother by her Christian name, he knows they do so and he does not actively discourage it. The practice should be discouraged. The important filial relationships between children and their parents should not be weakened by the elevation of other adults to parental status by the use of psychologically significant appellations like “Mum” and “Dad” for them.

   [83] First Family Report, paras 23, 28, 71, 95, 138

   [84] First Family Report, paras 125, 145

5. During the trial the father continued to criticise the mother for reasons that currently had no sound basis. Complaints he made about her parenting capacity to the first Family Consultant long ago in December 2013, concerning the children’s school attendance, their nutrition, and her prostitution,[85] were complaints he illogically perpetuated. He could not explain to the first Family Consultant why he would propose that the children spend so much unsupervised time with the mother in the face of such complaints.[86] Nor could he explain in evidence why, given his complaints, he agreed to orders in August 2014 for the children to live with the mother for equal time.

   [85] First Family Report, paras 61, 63, 87, 91, 93

   [86] First Family Report, para 96

6. In final submissions, the father maintained that the children were still at risk of harm in the mother’s care because of her physical abuse of them, her screaming at them, and her still holding wild parties at her home. Significantly, his belief about those dangers in the mother’s home were based almost entirely upon Facebook messages he said were posted in 2012, the mother’s admission of experimentation with illicit drugs in 2013, and what the children told him back in 2014,[87] all of which he well knew before he agreed to the “equal time” orders in August 2014. He deposed the children still now tell him of parties held at the mother’s home,[88] but even if that is true, the evidence is too weak to conclude the children are thereby at risk of harm in the mother’s care as a consequence. Even if they are at some risk in her care, the risk is far less potent than the risk of harm they face in his care.

   [87] Father’s affidavit, paras 113, 117, 118, 119, Annexures J, K

   [88] Father’s affidavit, para 119

7. Although this litigation was principally concerned with the parties’ ability to meet the children’s emotional needs, one aspect of the evidence bears upon their respective capacity to provide primary care for them. The mother is available to care for and supervise the children on a full-time basis, whereas the father is not. Although the mother works, she only does so casually, and only within ordinary school hours. The father works for 11 full days of each fortnight[89] and is reliant upon Ms H to care for and supervise the children outside ordinary school hours when he is at work, including on weekends and during school holidays. The children maintain they are not enamoured of Ms H,[90] though perhaps it is the conflict between her and the father they dislike. The mother is understandably concerned about the children’s proper supervision in the absence of the father, because even Ms H has often been absent,[91] and that will remain the case for as long as Ms H remains living with her mother and does not resume cohabitation with the father. It should be noted that Ms H told her doctor in March 2016 that she was “exhausted looking after [the father’s] children”,[92] so it is not a role she relishes.

   [89] First Family Report, para 18; Father’s affidavit, para 63

   [90] Second Family Report, para 90

   [91] Second Family Report, paras 37, 61; Mother’s affidavit, paras 78, 170

   [92] Exhibit ICL11

8. Other evidentiary issues which were initially contentious were eventually abandoned as influential considerations, so it is unnecessary to discuss the disputes about the children’s alleged declining academic performance, their alleged failure to commit to sporting engagements, and the father’s alleged derision of or disinterest in the children’s indigenous heritage.

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father engaged in family violence (s 61DA(2)(b)). Quite apart from the evidence about his violent, threatening and oppressive treatment of the mother, he undoubtedly assaulted his wife on 4 November 2015.

2. It is still possible to vest the parties with equal shared parental responsibility for the children, but it would only be desirable to make such an order if it would serve the children’s best interests, which it would not.

3. The mother said she and the father could not communicate well and gave examples of their inability to reach consensus over the appointment of an orthodontist for the children, the procurement of passports for them, the father’s unilateral decision to enrol the second child at a different school, and his decision to substitute his wife for the mother on the new enrolment forms which hindered the mother’s ability to obtain details about the second child’s progress at his new school. In any event, the mother is evidently still scared of the father and that would hinder any even-handed negotiation between them. Although the father sought to assert he and the mother could communicate well, he ultimately proposed that he should have sole parental responsibility for the children. In circumstances where the parties do not want to share parental responsibility and both Family Consultants recommended against it,[93] equal shared parental responsibility should not be foisted upon them. It follows that the parent with whom the children will live should have exclusive parental responsibility for them.

   [93] First Family Report, paras 13, 148; Second Family Report, paras 32, 48, 60, 70, 153, 155

4. Since no order is made for the parents to have equal shared parental responsibility for the children, there is no obligation to consider the options of the children living with the parties for equal time, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). In any event, both Family Consultants recommended against any shared-care arrangement.[94]

   [94] First Family Report, para 149; Second Family Report, para 146

5. Presently the children are split. The boys live with the father and the youngest child lives with the mother. The siblings are not seeing one another or their non-residential parent. It was not suggested by the parties, the Independent Children’s Lawyer, or the Family Consultants that the children should remain split between households. It was common ground that all three children should live with one party or the other and, in any event, no aspect of the evidence tended to indicate the children should be split.

6. Just as the Family Consultants both recommended,[95] the mother offers a superior option as the primary residential carer for the children. That conclusion follows from a number of considerations. In particular:

   (a)The children’s relationships with the mother are just as strong and meaningful as their relationships with the father. That is certainly the case for the youngest child and probably the case for the boys. The boys’ present avoidance of the mother is most likely due to the pressure they perceive they are under to support the father and reject her. As recently as August 2016, the second Family Consultant independently witnessed the loving nature of their relationships with the mother, which could not have been destroyed in the short period of time elapsed since.

   (b)The father poses a potent risk of harm to the children by his likely exposure of them to family violence within his household, whereas the mother poses no appreciable risk of harm to the children. Although all children have meaningful relationships with the father, as the mother correctly submitted, this is a case in which their need for protection from harm trumps the benefit of them having meaningful relationships with the father (s 60CC(2A)).

   (c)The mother has greater capacity to provide the children with constant physical care and supervision because of the father’s existing and intended future work commitments and the uncertainty about his resumption of cohabitation with Ms H.

   [95] First Family Report, para 153; Second Family Report, para 156

1. Nevertheless, the wishes expressed by both boys to live with the father remains an important factor to consider. The boys’ situation can be differentiated from that of the youngest child because of their disparate ages and maturity. The boys are now well into their adolescence and are capable of absconding if orders are made with which they are dissatisfied. That creates considerable difficulty because, even though they both express the desire to live with the father, their interests would be better served by them living with the mother.

2. If orders are made for the boys to live with the mother, there are two possible outcomes. Either they will abscond from the mother and return to the father, as he suspects they would,[96] because their expressed wishes to live with him are actually genuine, or alternatively, they will comply with the orders and settle into the mother’s care, as she and the second Family Consultant think is more likely, because the orders will relieve them of the pressure to submit to the father’s will.

   [96] Second Family Report, para 60; Father’s affidavit, para 121

3. The latter is the more likely outcome for reasons already discussed, but that is only a finding made on the evidence in accordance with the civil standard of proof (s 140 Evidence Act 1995 (Cth)). Such a finding made on the balance of probabilities could possibly be wrong. That potentiality of error should not, however, militate against the boys being ordered to live with the mother. The Court cannot abstain from making orders demonstrably in the boys’ best interests and simply capitulate to their expressed views for fear they will do as they threaten. Their views are only one factor to be taken into account – and not a primary consideration at that (s 60CC(3)(a)). Findings have been made that it would be detrimental for the children to live with the father, so ordering the boys to do so just because that is what they say they want would be tantamount to corruption of the paramountcy principle (ss 60CA, 65AA).

4. The making of orders for the boys to live with the mother will clearly signal to them the Court’s view that such an outcome is best for them. If they reject it, the mother will have the satisfaction of knowing she did all she could for them and she will have to decide, as an incident of her sole parental responsibility for them, whether she wants to try and enforce the orders. The chance of successful implementation of the orders will be enhanced if the children are presented to the second Family Consultant for an explanation of the orders. In that way, all children will receive an impartial interpretation of the orders and the reasons for them.

5. Given that the children should live with the mother, the next question is what form of future interaction they should have with the father. The mother and Independent Children’s Lawyer proposed the children should only see the father four times each year under professional supervision. They considered that was the only way in which the risk of harm the father poses to them could be attenuated. The second Family Consultant agreed. She initially imposed a complete embargo on any interaction between the children and the father,[97] but in cross-examination she conceded they would not likely be at risk of harm during occasional supervised visits. The evidence does not reasonably allow orders that would permit the children to spend unsupervised time with the father. Their need for protection from harm he may cause them overwhelms their need for frequent interaction with him. Quarterly visits under the supervision of a commercial supervisor using adaptable venues will enable the children to retain their paternal link. When they are each mature enough to make their own decisions about the resumption of more meaningful relationships with him, if they choose to do so, the intervening irregular contact with him will enable the resumption to be more easily made.

   [97] Second Family Report, paras 154, 157

6. An order will be made permitting occasional written communication between the children and the father, as was proposed.[98]

   [98] Exhibit ICL12, Order 7

7. Other than for the restricted face-to-face interaction and the written communication, the father will be restrained from contacting the children and from allowing them to be at his home. If the boys abscond from the mother to his home, he will be obliged to take them away from his home – preferably back to the mother or to some authority like the police. That will also be a discouragement to the boys’ disobedience of the orders.

8. The various other orders were all the subject of evidence and/or submission or could not be the subject of reasonable objection.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 November 2016.

Associate: 

Date:  8 November 2016