Sutcliff & Rower (No 2)
[2023] FedCFamC2F 131
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sutcliff & Rower (No 2) [2023] FedCFamC2F 131
File number(s): ADC 3565 of 2016 Judgment of: JUDGE O'SHANNESSY Date of judgment: 30 January 2023 Catchwords: FAMILY LAW – final parenting orders – parties live in different states – the mother does not participate in these proceedings – whether the matter should proceed in the absence of the mother – whether the matter should proceed undefended –whether final orders should be made – whether orders proposed by the father are in the best interests of the children – consequences of relocation – change of children’s names – orders as proposed by the father. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 62G Cases cited: Sutcliff & Rower [2022] FedCFamC2F 437 Division: Division 2 Family Law Number of paragraphs: 88 Date of hearing: 30 January 2023 Place: Melbourne (via Microsoft Teams) The Applicant: Litigant in person The Respondent: No appearance Counsel for the Independent Children's Lawyer: Mr G. Hemsley Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 3565 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SUTCLIFF
Applicant
AND: MS ROWER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
30 JANUARY 2023
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 01/02/2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The child Y born in 2016 be known as Y with the surname or family name of Sutcliff and the Father have sole authority for any necessary change of name.
3.The child
Xborn in 2013 (also known asX) be known asXwith the surname or family name of Sutcliff and the Father have sole authority for any necessary change of name.4.The children
Xand Y (“the children”) live with the Father.5.Mr Sutcliff (“the Father”), have sole parental responsibility for the children.
6.Ms Rower (“the Mother”) be restrained from:
(a)Removing or attempting to remove the children from the state of South Australia; and
(b)Removing or attempting to remove the children from the care of the Father;
unless agreed with the Father in writing via Facebook message, text message or email.
7.The Mother communicate with the children;
(a)Via Skype, Facetime, Messenger, video call or telephone each Monday between 5:30pm and 6:00pm South Australia time, with:
(i)The Father to initiate the Monday 5:30-6:00pm call, unless the Mother has already initiated the call; and
(ii)The Father to arrange for the children to Skype or FaceTime the Mother on the night following the Monday if for any unforeseen circumstances they miss the call;
(b)Via Skype, Facetime, Messenger, video call or telephone at any reasonable time requested by the children or any other time the Mother calls provided it is at a reasonable time and no more than three times per week with the Mother to initiate the call;
(c)Via Skype, Facetime, Messenger, video call or telephone on Christmas Day when the Mother is not otherwise spending time with the children by arrangement in writing via Facebook message, text message or email; and
(d)Such further or other time as agreed between parents in writing by Facebook message, text message or email.
8.Notwithstanding the provisions in order 7(a) herein, that if for any reasons the Mother cannot receive the Monday 5:30-6:00pm call in the evening due to other obligations, then the Mother ensures that she notifies the Father of that in writing by Facebook message, text message or email;
9.During the time the children or either of them are with or in the care of either parent, that parent be and is restrained from:
(a)Questioning the children or either of them about the personal life of the other parent;
(b)Speaking of the other parent, their partner, their family and friends in any manner other than respectfully;
(c)Denigrating or insulting the other parent, their partner, their family or their friends to or in the presence or hearing of the children or either of them;
(d)Allowing others to denigrate or insult the other parent, their partner, their family or their friends to or in the presence or hearing of the children or either of them;
(e)Physically disciplining the children or allowing any other person to physically discipline the children or either of them; and
(f)Using illicit substances or drinking to excess.
10.The parties shall:
(a)Keep the other parent informed at all times of their Skype, FaceTime user name, telephone number and email address;
(b)Keep the other parent informed of the name and addresses of any medical treating medical or any other health practitioner who treat the children and authorise the practitioner to provide the other parent with information that they are lawfully able to provide about the children; and
(c)Inform the other parent as soon as reasonably practicable of any serious medical condition, significant health issue or illness suffered by the children.
11.Each parent do all acts and things to authorise the schools/day-care(s) attended by the children to give each parent information about the children's educational progress and other school related activities and supply them with school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost) if any.
12.The Mother spend time with the children at each school holiday period at times and/or conditions agreed by the parents in writing by text message, email or in writing.
13.The Mother spend time with the children when she is in Adelaide or South Australia at times and/or conditions agreed between the parents in writing by text message, email or in writing.
14.The Independent Children’s Lawyer be discharged.
15.All extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.The Father and the Independent Children’s Lawyer each attempted to contact the Mother by telephone this day but received no response.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sutcliff & Rower (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered orally on 30 January 2023. These settled reasons have had grammatical errors corrected and citations added from the transcript, and an attempt has been made to make the orally delivered reasons easier to read. However, the substance is unchanged.
This matter concerns the living arrangements for the children X, also known as a child with other names, combinations of names and spellings ('child X'), and the child, Y, also known as a child with other names, combinations of names and spellings ('Child Y', collectively 'the children'). Child X is now aged 9 and Child Y is now aged 7.
BACKGROUND
The applicant in this matter is Mr Sutcliff ('the Father'). He is 45 years old and he is employed in the service industry. The Father has three other children not the subject of these proceedings and who may reside with him, one of whom is now an adult. Hence, there are five children in the Father's current household.
The respondent in this matter is Ms Rower ('the Mother'), who is 40 years old. The Mother says she identifies now as indigenous or of Torres Strait Islander ancestry and it appears she is engaged full time in home duties. The Mother has eight other children not these proceedings, five of whom now reside with her and three of whom are now adults, in addition to the children in these proceedings.
The parties had an on-again and off-again relationship in South Australia. The relationship ended in September 2016 when the Mother unilaterally relocated to Queensland with the children, who were babies at the time, and with her other children. This was without the knowledge of consent of the Father. The Father first issues proceedings in this matter on 19 September 2016.
It is important to note that the children had lived all their lives with their mother until they were removed from her care, in the company of police, pursuant to a recovery order I made on 27 March 2022. The children have lived with the Father in South Australia since then.
On 23 March 2022, I made that recovery order, which provided that the children were to live with the Father until further order. I also adjourned the matter for further interim hearing. The orders of 23 March 2022 were made with the benefit of a child impact report dated 10 March 2022. The orders that were made on 23 March 2022 also provided that there be an updated or addendum to that child impact report.
This judgment should be read in conjunction with the previous judgment delivered in this matter and anonymised as Sutcliff & Rower [2022] FedCFamC2F 437 ('the previous judgment'). The previous judgment regarded the recovery order and the recovery of the children from the Mother in Queensland, where they had been living, to the care of the Father in South Australia. The previous judgment contains further background and details of the matter.
I have the benefit of family reports from 2017 and 2018, which I referred to in the previous judgment, in addition to an updated report from November 2022.
On 4 May 2022, the matter was set down for final hearing, with the benefit of a family report to be undertaken later in 2022 and for the final hearing to take place over three days, commencing today.
When the matter was called today, there was no appearance for the Mother. I stood the matter down and requested the Father to telephone the Mother and inform her of the proceedings being listed for final hearing today. He did so. In addition, he sent a text message to her to the same effect. Further to that, the Independent Children's Lawyer ('ICL') attempted to ring the Mother. He did so, and left two messages for her. Those messages from the ICL were left at 10.54 am and 11.03 am, by South Australian time. The phone call from the Father was made at 10.50 am and the text message was sent at 10.53 am, by South Australian time. The Father's text message provided the Teams telephone link and code, to facilitate the Mother attending remotely if she wished to.
This proceeding has been listed via video link and has proceeded by video link.
QUESTIONS TO DETERMINE
Today, there are three questions I must determine:
(1)Whether the matter should proceed in the absence of the Mother;
(2)Whether it is appropriate to make final orders in the absence of the Mother and on an undefended basis or whether I should take into account documents that she had previously filed; and
(3)Whether the orders now sought by the Father and substantially supported by the ICL are in the best interests of the children.
Recent history of the Mother’s participation
In dealing with the first question of whether to proceed in the absence of the Mother, it is important that I deal with the notice to the Mother.
The 2017 family report had been prepared or attempted to be prepared by Child Dispute services in Brisbane. The Father and his three children from his prior relationship had travelled to Brisbane for the purpose of that family report in 2017. The family report writer attempted to contact the Mother and have her participate in the proceedings. Those attempts were unsuccessful. Hence the 2017 family report was prepared without the report writer being able to assess the children or the Mother. In those circumstances, at public expense, a further family relationship was ordered and was undertaken in April and May of 2018. On that occasion, the Mother attended and she was interviewed on 3 May 2018. The previous judgment recites passages from the 2017 and 2018 family reports. I will not repeat those now.
Over the 36 Orders that were made by this Court from 2016 to January 2022, warrants for the arrest of the Mother had been issued on 15 February 2018, 13 March 2019 and 5 February 2021. On each of those occasions, after the issue of the warrant, the Mother engaged with the proceedings on the return of the warrant and on the next hearing but, thereafter, did not engage.
Of those three warrants that I referred to earlier, it is important to note that on the occasion of one of the warrants, the Mother was actually arrested, held in custody and bailed and was placed on a bond on the condition that she would comply with court orders and appear in Court thereafter.
Roughly three dozen Court Orders show that the previous judge, Judge Cole, with an extraordinary degree of patience and perseverance, gave the Mother every opportunity to participate in the proceedings or comply with court orders or put her side of the story before the Court.
The Mother did file documents in 2017; a response on 23 January 2017, an affidavit on 23 January 2017 and another affidavit on 7 March 2017. In the Mother's affidavits, she alleged that she and some of her other children were the victim of significant family violence at the hands of the Father and that she fled to Queensland to escape such violence. I take those allegations most seriously.
On 23 May 2022 I made a recovery order. It was executed on 27 March 2022. The children were placed into the Father's care on 29 March 2022 and had lived with the Father since.
The ICL's affidavit filed on 18 January 2023 annexes screenshots that show that on 29 March 2022, that is, two days after the children were removed from the Mother's care, the Mother left the following message to the world on her Facebook account:
To my dearest daughter, as you grow older I want you to fly out like a free bird.
Go forth and pursue all your dreams.
Live life to the fullest and make sure that your happiness is second to none.
And while you are at it, just remember that every time you need a hug or a place to call your own, I'm always here… [ellipses in original]
On the same day as the Facebook post to the world directed to her daughter (and I infer Child X), the Mother also posted a message which I infer was for Child Y headed "to my son". That message reads:
To My Son… [ellipses in original]
Never forget how much I love you and that I always will
AS YOU GROW OLDER, you will face many obstacles in life
STAY STRONG, BE CONFIDENT AND Just do your best
EVERY DAY MAY NOT BE GOOD BUT FIND SOMETHING GOOD IN EVERYDAY
FOLLOW YOUR DREAMS & BELIEVE IN YOURSELF & Remember to be awesome
I will always be with you
Love, mom
On 28 March 2022, that is, the day after the children were removed from her care, the Mother posted a Facebook message that read, "If you fall down, you get back up".
On 7 April 2022, my associates emailed, to an email address that was later demonstrated to be the Mother's active email address, a letter which enclosed a copy of the previous judgment and the sealed orders made in the matter.
With the children being in the care of the Father, the child impact report writer was able to prepare an addendum to the child impact report. The report was prepared on 11 April 2022. That report process was able to be undertaken because, on this occasion, the Mother travelled to Adelaide for the purpose of that addendum. She travelled there together with her father or step-father, Mr AB. That report contains the following:
4.The mother, who is seeking the return of the children to her full time care in Queensland, specifically requested an indigenous support person to accompany her to this assessment and following a telephone discussion with the mother, it was agreed for her father, [Mr AB], who is of Torres Strait Islander origins, to undertake this role. Accordingly, the mother arrived at this assessment accompanied by her father, (“Pop”) and the children’s 16-year old half-sister [Child AC], both of whom were included in an observation, at the request of the two children, more so [Child Y], who was very keen to see “Pop”.
…
6.[Child X], aged 8 years and [Child Y], aged 6 years were well presented, both dressed in clothes purchased by the father. Although [Child X] impressed as the quieter or more subdued of the two children, it was [Child Y] who repeatedly and spontaneously verbalised that he was ‘missing Mum’.
…
8.Neither the mother nor the children were aware that they would be seeing each other during this report process, with the mother bursting into tears when informed, and the children ‘freezing’ with astonishment, as if disbelieving the writer. Subsequent observations of the children with their mother commenced with [Child Y] literally knocking his mother off her feet in his exuberant race across the room to physically embrace her. There were moments when [Child Y] seemed inarticulate with grief, silent, unresponsive and draped across his mother, at which times the mother tried to console him by patting him on the back and telling him not to worry, unable to reassure him as he voiced wanting ‘to go home with her’. Indeed, [Child Y] asked the writer whether he could ‘go home with Mum’ and he seemed sad and frustrated when he could find no one who could give him the answer he wanted in this regard.
9.Although [Child X] referred to her mother ‘missing them’ and that she too missed her mother, she seemed intuitively aware of a ‘bigger picture’ in that her mother might be ‘struggling’ to care for them. She referred to her mother leaving them with their older sisters and going to bed before them, as if this was indicative of her mother’s “struggle”. [Child X] had also observed that her father’s house was ‘cleaner’ than her mother’s, and both children seemed acutely conscious of the ‘new’ clothes (and shoes) they were wearing as if ‘new’ clothes were a novelty, or an exception.
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11.Both children spoke to their mother of having new clothes and toys bought for them by “him” since arriving in Adelaide, with the father reporting that they only had inadequate and/or ill-fitting footwear and clothing when they were placed in his care by police. The children referred to their father as “He” or “[Mr Sutcliff]” when talking to their mother and repeatedly sought reassurance from her that they would be returning “home”, reassurances the mother was unable to give, much to her visible unhappiness. [Child Y] seemed the more needy of his mother’s, then his ‘Pop’s’ attention, while [Child X] seemed more self-reliant, often playing or drawing on her own, although there were also occasions when the mother and both children played games together on the floor.
12.When it came time for the mother to leave, [Child Y] clung fiercely and quietly to his mother and he needed to be literally peeled off her by the writer and Childcare worker, the latter of whom he then clung onto for some time, after the mother had left. Amidst his obvious distress about not being able to leave with his mother, [Child Y] complained that he wanted some “bikkies” and by the time the father arrived with “bikkies” and a gift from the market for each child from [Child AD] and [Child F], [Child Y] had completely settled down and was quietly playing a game of Uno.
13.Whilst it is clear that the children are missing their mother, as would be expected, [Child Y’s] speedy recovery after displays of emotion reflecting his need for his mother, suggests that he will adjust to his new circumstances with consistent, stable and loving support. Indeed, the two children left seemingly happily with their father, excited at the prospect they were going to the zoo and/or museum with [Child AD] and [Child F].
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14.While the current orders for the two children to live with the father is in the context of the mother’s repeated refusal to engage in a court process that has endeavoured to support the father to maintain a relationship with the children, it seems that the children’s living conditions with their mother may be such that their long term needs might be better met if they remained living with their father, than if they returned to live with their mother. Certainly, information from Queensland child protection services would seem to suggest that the mother has struggled to provide a hygienic and/or safe living environment for the children, even with the support of services, including twice weekly cleaners visiting the home.
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17.The mother referred to having been [Child X] and [Child Y’s] primary caregiver all their lives and she questioned the merits of the two children living with the father, who she said still makes her feel ‘fearful’. She said that she had ‘fled’ to Queensland almost six years ago due to alleged family violence on his part, allegations which the father refutes, claiming that the mother makes such allegations in order to justify not facilitating time with each of the father’s respective children after the end of the relationships. This is consistent with the mother acknowledging that she had become similarly fearful around [T]’s father, [Mr H] (who is referenced in child protection reports, with [X] and [Y] calling him ‘Dad’) who she reported having become “aggressive and violent” before she separated from him, although she added that he has had no contact with [T] ‘because he moved to Victoria’. The mother spoke in terms of having always acted protectively in regard to the children, with respect to the children’s ongoing relationships (or not) with their respective fathers.
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21.However, the mother was less able to provide a coherent account of her rationale for not participating in these court proceedings, especially in circumstances wherein she reported only having moved from her father’s home two years ago, which is where Court documents were being sent to her, from the time the father initiated proceedings in 2016. Nor was the mother able to explain why she ‘disappeared’ with the children after interim orders were made mid trial in 2019, allowing the father to have visits with the children in the event he travelled to Queensland to see them. Indeed, the mother sought to claim that the father only wanted “one visit”, which is not only contrary to the father’s report in this regard, but also lacks credibility on the mother’s part given that the father, accompanied by [G], had travelled all the way from South Australia to Queensland at his personal expense, to spend time with the children.
22.The mother acknowledged that she had not understood the potential consequences of her failure to either comply with orders for her to facilitate the father’s time with [X] and [Y] or to attend court events about them, until they were removed from her care on 27 March 2022, in what sounds like highly distressing circumstances for the children. The mother impressed as saddened and burdened that inaction on her part had resulted in the children having been “traumatised” by their sudden removal by Commonwealth police.
23.The mother referred to the children’s removal from her care as being viewed by her ‘mob’ in similar terms to ‘the stolen generation’ such that she reported that her trip to Adelaide had been funded by her supportive indigenous family and friends. However, in interview, when reference was made to the past six years of litigation, the mother seemed more inclined to accept that it was her avoidance of these proceedings and/or her repeated failure to facilitate contact between the father and children that had caused [X] and [Y] to be removed from her care. Nonetheless, the mother spoke of wanting the children to return to her full time care, and of her readiness to support the father to have regular Skype calls with the children. She said that the court ordered Skype calls had only ceased in September 2021 after she had lost her Skype connection. She denied purposely stopping or withdrawing support for the children to speak to their father, although she said that the children often spoke of not wanting to talk to him.
24.The mother’s inability to provide a rationale for ‘disappearing’ after one visit between the children and their father after the father visited Queensland to see the children, nor provide an explanation for why she changed [Y]’s surname when enrolling him at school, with the Queensland Education Department advising the father that no ‘[Y]’ was enrolled at the school, instils little confidence in the writer as to the mother’s readiness to genuinely support the father’s relationship with the children if they were returned to her care.
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26.This addendum report would seem to indicate that [X] and [Y] are adjusting as well as can be expected to the abrupt change in their living circumstances, albeit missing their mother and wanting to return “home”. It will be important that they have regular opportunities to talk to their mother, such as each night to say goodnight, at which time they could tell her about their day, whilst establishing a routine of saying goodnight to her before they go to bed. If this bedtime routine is to have a settling effect on the children, it will require the mother to be consistently available to make such calls, whilst also ensuring that she does not instil unrest in them by saying that she misses them, or wants them to return home.
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29.A fuller more comprehensive assessment is recommended in Term 4 of 2022, before any final decisions are made about the children.
On 11 April 2022 my associate emailed to the parties, including to the Mother at her active email address, a copy of the child impact report, and I made that email of 11 April 2022 exhibit C1, 30 January 2022.
On 20 April 2022, my associate sent an email to the parties, including the Mother at her active email address, that notified her of the matter returning on 4 May 2022 for interim defended hearing, now with the benefit of the child impact report addendum. On 26 April, the Mother filed a notice of address for service, which gave her address at a residential premises in a town in Queensland together with a mobile phone number and an email address being the email address previously relied upon by the court, ('the Mother's active email address').
On 4 May 2022, the Father, the Mother and the ICL appeared in person via telephone or video link. On that day, further orders were made which did not interfere with the interim orders for residence that had been made on 23 March 2022 but which set the matter down for final hearing this day. On that day, the Mother told me that she had received via email the child impact addendum report dated 11 April 2022.
On 5 May 2022, my associate sent to the Mother at the Mother's active email address an email as follows:
Good morning Parties and Practitioners,
As per our discussions in court yesterday, could you please provide us with a list of names that the children have been known as, recorded as, or alleged to be known or recorded as, so that Judge O'Shannessy can finalise his orders.
Thank you in advance for your assistance.
On Thursday 5 May 2022 at 11.10 am, the Mother replied to that email, stating as follows:
Good morning.
The 2 children in this matter have been known as
[list of names the children have been known as]
Thank you for you're [sic] time
[The Mother].
This response from the Mother and her attendance at the hearing on 4 May 2022, demonstrate that the Mother's active email address is, in fact, a valid and active email address for the Mother.
On 10 May 2022, my associate emailed to that same email address a letter which advised as follows:
Good morning parties and practitioners,
Please see attached sealed interim orders made by Judge O'Shannessy on 4 May 2022.
The matter is listed for final hearing for 3 days from 30 January 2023.
The orders of 4 May 2022 as settled had order number 2, which recited the 12 different names that Child X had been known of and the three names that Child Y was said to be known by. When I say "different names", I mean different names or different spellings of the same names. Those orders also provided for the preparation of a family report pursuant to section 62G(2) of the Family Law Act 1975 (Cth) ('the Act').
On 25 October 2022, the Mother did not attend in South Australia for the family report interviews, but the report writer was able to speak to the Mother by telephone and records her as having had a telephone interview. The report writer was able to speak to the Mother again on 27 October 2022, and the Mother set out her account of family violence and what had happened to her.
On or about 14 November 2022, the 2022 family report was finalised. That family report has some more heart-rending observations of the extent to which the children miss their mother. The relevant paragraphs from that family report read as follows:
8.The mother, who remains living in her 5 bedroomed home in [Town AE] Queensland, where she has lived for almost 3 years, now only has five of her ten children in her care… with the mother’s three oldest children… now living independently. [Child F] and [child G] are reportedly estranged from the mother, while [child AF], who is in sheltered accommodation due to her disabilities, including global developmental delay, reportedly contacts her mother from time to time. [Child F] and [child G] are allegedly supportive of the father having [Child X] and [Child Y] in his full time care due to their shared concerns about their safety in their mother’s care.
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11.Although the aforementioned report recommended that [Child X] and [Child Y] have “regular opportunities to talk to their mother”, it appears that the mother has made no contact with the children for the past 4½ months, apart from a birthday text to [Child X] [in] 2022.
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15.[Child X] and [Child Y] last saw their mother (and paternal grandfather and older half-sister [Child AC]) for the Child Impact Report on 4 April 2022. The mother has not communicated with them for more than four months, apart from texting [Child X] for her 9th birthday [in] 2022. The mother provided a multiple reasons for her failure to maintain contact with [Child X] and [Child Y], including that she has suffered from PTSD since [Child X] and [Child Y] were “taken” from her; that she has a new phone and lost all her contact details and that she had lost her Facebook account, which had been set up by [child F], from whom she is estranged.
16.The mother was due to see the children for this Family Report on 24 October 2022 and when she was contacted by phone after she failed to arrive, the mother said that she had “forgot” due to the death of a close relative…
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23.The mother’s ten children all reportedly have no relationship with their respective fathers, with the exception of [Child AG’s] father, [Mr AH], who the mother reports only has “supervised” time with [child AG]. By the mother’s account, most if not all the fathers have allegedly been perpetrators of family violence, with the mother reporting that she had recently become fearful that [child AJ] and [child AL’s] father, [Mr AM], had moved back into her local area.
24.The mother continues to allege that [Child X] and [Child Y’s] father was controlling and verbally abusive toward her and that he had physically and verbally abused her children, including allegedly smacking [Child AF] with a wooden spoon, swinging [Child AJ] around by her hair, duct taping [Child X] and yelling at [Child Y]. She alleged she ended the relationship and relocated to Queensland to escape his violence.
25.The father, who denied ever having been a perpetrator of family violence, either toward the mother or any of the mother’s children, including [Child X] and [Child Y], raised concerns about the mother fabricating family violence allegations against all the fathers of her children in order to maintain sole care of them (and sole parent Centrelink benefits) and to prevent the fathers from being able to have meaningful relationships with their respective child/ren.
26.Family violence would seem to be a risk factor in this matter.
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30.The Queensland Department of Children, Youth Justice & Multicultural Affairs report longstanding concerns about the mother being unable to maintain a hygienic environment for the children, with concerns also raised about the mother’s household often being chaotic, with the children allegedly physically attacking one another.
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32.The father claimed that the Department of Children, Youth Justice & Multicultural Affairs Department had been involved with the mother since 2003, predating his relationship with the mother, due to the mother’s unsanitary living circumstances and the mother’s alleged “association with men” with concomitant heightened risk of physical or sexual abuse of the children, which is consistent with the mother’s report that she had prevented one of the children’s father’s from having any contact with that child due to his alleged sexual abuse of one of her daughters.
33.Child safety and wellbeing appears to be a significant risk factor in this matter.
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35.The mother, who identified having been [Child X] and [Child Y’s] primary carer all of their lives up to 27 March 2022, and who seeks their return to her care, expressed concern about the negative impact and trauma from the sudden severance of the two children’s attachment relationships with her and with their five siblings still remaining at home, and from their extracurricular and school friendships. She added that she and the five children in her care have been traumatised by [Child X] and [Child Y’s] court ordered removal from Queensland, with [child AJ] still reportedly having nightmares.
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38.[The Father], aged 45 years presented as open, cooperative and child focussed. He was accompanied to the assessment by the paternal grandmother, [Ms L], his second oldest son, [Child AD], his oldest daughter, [Child F] and [Child X] and [Child Y], all of whom participated in this report, and all of whom were interviewed separately.
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47.The father described the mother as “lazy”, adding, “She’d never go out of her way for the kids…like she’d never read to them…she was always on her phone…on her laptop…rarely cooking…rarely cleaning”. He added, “It was left to me to do everything and Mum lived with us too for a while”. The father believed the mother was also likely to have been overwhelmed and depressed by the competing needs of her ten children, some of whom have disabilities, adding “she always referred to her depression”.
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51.Although the father believed the children had settled in well, he reported that [Child X] and [Child Y] are still on a waiting list to see a counsellor, and they are monitored at school as to their emotional wellbeing. He added that the children have asked “a couple of times” about why their mother does not ring them, adding that the mother ceased calling them at the end of Term 2. He said that [Child F] and [Child X] share the largest bedroom, while [Child AD] and [Child Y] have their own rooms, and [child L] has the granny flat. He described all the children getting on well together and that they seem mutually supportive. He added, with respect to [Child X] and [Child Y], “I think they are happy here”.
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62.[The Mother] impressed as struggling emotionally when endeavouring to respond to questions for the purpose of this assessment. The mother said that she had “totally forgot” about the family report. She said she had been suffering from depression and PTSD after [Child X] and [Child Y] were removed from her care (“it’s breaking my heart”). She added that she was also dealing with the loss of a close relative from [town AN]…
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69.The mother did not seem to have any insight as to her seeming alleged history of choosing violent and/or abusive partners, who were allegedly perpetrators of family violence…
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75.The mother spoke in terms of wanting [Child X] and [Child Y] returned to her care. She said that she and the children had all been “traumatised” by their removal from the family home by “eight police…no warning…they came after lunch on Sunday…I’d just come back from the shops…the kids were screaming, ‘Mum please no’””…
76.The mother expressed her outrage that the children had been forcibly removed from her care. She seemed unable to comprehend or take any responsibility for any behaviours on her part that led to this outcome such as failing to comply with orders since 2016. Instead, she seemed to view herself as the victim of an injustice. During the interview, she appeared to be constantly re-living the trauma of having the children removed from her care…
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80.[Child X], aged 9 years is in Year 3… She was again well presented with a pretty flowing dress. Although she continued to present as subdued or guarded at times, she also smiled a lot, maintained more eye contact than previously, and impressed as a happy child… There was a strong sense that [Child X] did not want to say anything negative about either parent, but especially her mother, to whom she is likely to feel a powerful loyalty, given that her mother has been her primary carer all of her life until March 2022.
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83.When asked if she would like to return to live in Queensland, [Child X] paused at length before replying, “That’s a hard question”, adding, “I wish we could all live together…all of us”. Asked whether she might like to stay with her father during school terms and spend time with her mother and maternal siblings during school holidays, [Child X’s] face lit up with a smile, as though this might be a solution to her conundrum. However, when asked what she would wish for if given three wishes, she said, “Live with my Mum…I wish we all lived together and I wish I had a pony”.
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85.[Child Y] asked the writer if his mother was coming, and he looked away into the distance when informed she had not come, and rather than tell him she had forgotten, told him instead that she had needed to take [child AJ] to hospital after [child AJ] had had an epileptic fit. He nodded understandingly but he still looked momentarily bereft at the reality of not being able to see his mother that day.
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87.When asked whether he would like to stay living with his father, [Child Y] nodded in the affirmative, but his brow was furrowed as though he was conflicted or weighing up the cost of such an answer. He said, with what seemed like sadness or confusion, “Mum hasn’t rung for a while”. He added, “I kinda miss my Mum so much…she’s a long way away…I bet [child M] is 3 now”. He said that he still had vivid memories of having been “taken away from Mum”, with some wonderment or confusion evident in his face as to why this had occurred. It was clear that [Child Y] had mixed feelings about wanting to stay with his father…
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103.The overall sense was happy, relaxed and spontaneous interactions between adult and child, with the father, [P] and the grandmother responsive and interested in whatever the children were doing…
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105.In 2020 and 2021, there were ongoing child protection concerns in relation to the poor hygienic living conditions in the mother’s household, including “rubbish throughout”, notwithstanding that the mother had cleaning services twice a week. However, Child Safety concluded in July 2021 that “no actual harm or risk of harm of a significant nature has been identified at this time…the information provided does not indicate that [list of 7 children] have experienced harm that is considered significant or detrimental in nature. Whilst acknowledging the notifiers concerns the information does not suggest that [the seven children] are without a parent willing and able to meet their ongoing care and protection needs…as such…the family have enough support…further departmental intervention is not warranted at this time”. (Ibid, page 12)
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106.[Ms AO], [Child Y’s] Year 1 teacher described [Child Y] as “exceptionally friendly and quite a way behind” in his learning when he arrived at the end of Term 1 2022, “especially in literacy skills”. She reported that [Child Y] had since made “significant gains”, especially in reading, with the school’s interventions involving [Child Y] in small group learning and SSO 1:1 support where he is showing “a really good work ethic”.
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110.[Ms AP] seemed pleased to report that [Child X] was showing “great improvement especially in reading [similar to [Child Y]]”, adding, “I’m thrilled with the way she’s working… she’s showing real progress”. She said that [Child X] had also developed “a growth mind set…a real work ethic” and although she did poorly in a recent NAPLAN test, her attitude to learning had changed markedly, adding, “She loves to show me her homework”.
111.[Ms AP] described [Child X] as “very happy”. She said that she always arrived at school clean and well-presented and that her father is in regular contact with the school to ensure the children are up to date with any school work. She recalled [Child X] approaching others in her class when she first arrived and asking them, “Will you be my friend?” and then later saying, “I can’t believe I’ve got so many friends”. She concluded, seemingly indulgently “[Child X’s] so popular…a lovely thing”.
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115.Observations of the two children with their two older siblings [Child AD] and [Child F] and their father and paternal grandmother, “Oma” and revealed relaxed, happy and spontaneous interactions, consistent with loving relationships…
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120.The father has consistently denied ever having been a perpetrator of family violence, either toward the mother or toward any of the mother’s children…
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122.Whilst this assessment reveals that [Child X] and [Child Y] seem to be thriving in their father’s care, both continue to identify that they miss their mother, with [Child X] expressing a wish to live with her, but also wishing, “we all lived together”, which suggests that she is genuinely struggling to choose between her parents. The children’s sense of loss with respect to the absence of a relationship with their mother is likely to be confounded by their mother’s seeming abandonment of them, after she ceased contacting them at the end of Term 2 and then failed to attend this assessment. There was no sense that the mother understood in any way the likely hurt, disappointment and confusion [Child X] and [Child Y] are likely to be feeling as a result of her continuing failure to comply with orders.
123.It seems that whatever orders are made, even those for her to be able to maintain contact with her children, the mother is only able to comply with orders for a short period of time, in this instance, for one Term… Accordingly, if the children were to be returned to her full time care in Queensland, it is likely to be at the expense of any type of relationship with their father and paternal family in Adelaide, with the mother having a long and established history of failing to consistently support or facilitate the children’s relationship with their father, to the extent that she is still questioning [Child X’s] paternity.
124.However, conversely, if the children remain living with their father in Adelaide, it appears it will also be at the expense of any type of relationship with their mother, who has not contacted them for the past four months apart from a text wishing [Child X] a Happy Birthday …
125.The geographical distance between the parties is prohibitive to any parenting arrangement other than the two children living in the primary care of one parent. Furthermore, this tyranny of distance in the context of both parties being on low incomes and currently responsible for five children in their respective households, would seem to suggest that any orders for the children to spend time with the non-resident parent during school holidays, would be financially difficult to action or sustain in the long term by either party.
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127.In the meantime, [Child X] and [Child Y’s] healthy, happy and seemingly well-adjusted presentations, along with the reports from their teachers of their significant progress at school, strongly argues in favour of the children remaining with their father in Adelaide…
RECOMMENDATIONS
The following is recommended:
128.That the children remain living with their father.
On 16 November 2022, the 2022 family report was emailed to the parties, including to the Mother’s active email address via a blind cc so as not to publicise her email address.
The Father has deposed at paragraph 8 of his affidavit filed 1 December 2022 as follows regarding communication following the orders of 23 March 2022:
Every Monday evening, the Mother would call the children by phone (NO VIDEO CALLS) on and off, but sometimes failing to call for an extended period of time. The Mother had not called the children since her last communication with the children which was on June 27, 2022, at the time of filing this Affidavit, With the exception of texting X on her birthday [in] 2022.
On 2 December 2022, the Father sent by email, to the Mother's active email address, a copy of his amended initiating application filed on 1 December 2022, the affidavit of his mother, Ms AM, filed on 1 December 2022 and the affidavit of himself filed on 2 December 2022. That email did not bounce back. On the same day, the Father posted a copy of those same documents plus a copy of the 2022 family report and the interim orders made on 16 November 2022 to the Queensland address provided on the notice of address for service the Mother had filed on 26 April 2022. The Father sent the documents by registered post and from the records attached to the Father's affidavit of service filed on 22 December 2022, it is apparent that there was some delay in the documents being delivered; however, it is clear enough from the records that the Father was provided with by Australia Post that the posted bundle of documents had been received or delivered at the Mother’s address in Queensland on 21 December 2022 at 9.43 am.
On 25 December 2022, Christmas Day, the Mother posted a Facebook message to the world and to Child X as follows:
[Child Y], you have grown up so fast. I sometimes wish that we could go back to a time when you peeked at me from under your blanket as I tried to sneak presents under the tree. I saw you, but knowing that you were happy meant the world to me. Merry Christmas, my daughter!
On the same day, the Mother sent or posted a message to (I imply) Child Y, which read as follows:
Dearest son, no matter how grown up you are, i hope your Christmas season will always be magical and full of anticipation for you. May it fill your heart with joy, peace and love. Merry Christmas, my precious son. I love you to the moon and back.
On 10 January 2023, by a document which was an exhibit marked C1, 23 January 2023, my associate emailed to the parties and to the Mother's active email address a letter alerting the mother as follows:
The above family law matter has been listed before Judge O’Shannessy on Monday 23 January 2023 at 9.30am (AEDT / Melbourne time) for compliance hearing. Please note that 9.30am in Melbourne is 8.30am in Queensland and 9.00am in South Australia.
The hearing will proceed via Microsoft Teams and there is no requirement to physically attend the court building.
Please find the Microsoft Teams link in this email below. …
[Emphasis in original]
On 23 January 2023, I held a compliance hearing to ascertain organisation of the final hearing listed for 30 January 2021. The Father appeared and the ICL appeared by counsel. The Mother did not appear on 23 January 2023, despite being on notice of that hearing. On 23 January 2022 at 4.55 pm, my associate sent the parties an email, including to the Mother at the Mother's active email address, which included the following:
Please find attached sealed interim orders made in Chambers today.
If you have any questions please contact Chambers.
Final Hearing
I refer to the above family law matter listed before Judge O’Shannessy on Monday 30 January 2023 at 10.00 AEDC [sic] for Final Hearing. Please note that 10.00am AEDT (Melbourne time) is equivalent to 9.30am ACDT (South Australian time) and 9.00am AEST (Queensland time).
The hearing will proceed via Microsoft Teams and there is no requirement to physically attend the court building.
Please find the Microsoft Teams link in this email below. Please forward this link on to any counsel, instructing solicitor or client as required.
Attn: [Ms Rower] – if you have any questions about accessing the hearing, please contact Chambers by reply to this email or on […].
There are a number of other matters listed at this time. Please ensure you wait on mute with your camera off until your matter is called.
[Emphasis in original]
On 23 January 2023, I made two orders:
(1)The Applicant Father is to file and serve a further affidavit annexing the children’s school reports.
(2)The matter remains listed for Final Hearing on 30 January 2023.
When the matter was called this morning, as I have discussed earlier, there was no appearance by the Mother. In those circumstances, I am satisfied that the Mother has had ample opportunity to participate in the proceedings if she wished to. I am satisfied that the Mother is well aware of the matter being listed for final hearing.
For reasons that I cannot determine, the Mother has only rarely participated in these proceedings in the past and does not participate in this hearing today.
The first question
In all the circumstances described above, I find that the matter should proceed in the absence of the Mother.
The second question
In all the circumstances described above, I find that it is appropriate to make final orders in the absence of the Mother and I have read the Mother’s material from 2017 and her side of the story as told to the family report and child impact report writers.
The third question; which final orders should be made
The Father today seeks final orders that the children live with him, that the children have regular video call contact with the Mother and that the children travel to Queensland for school holiday time with the Mother. The Father had sought, together with the travel to Queensland orders, an order for an automatic recovery order in the event that the children were not returned. When I pointed out to him that a self-executing order for a recovery order would not be made as a matter of law, the Father changed his position to seek school holiday time to be at times and on conditions as agreed in email or text message between the Mother and the Father.
The ICL, in the broad, supports the orders that the Father seeks and in a detailed outline of case, filed on 20 January 2023, pressed that case. Relevant passages from that document include the below:
1.Since the change in living arrangements with the children 23 March 2022, there has not been a meaningful relationship between the children and the mother. However, that appears to be because the mother has not sought to pursue that. The only explanation she has given is that her Facebook account was changed by others, so that she could not use it (as explained to the Court Child Consultant.) In this regard we note the recent affidavit of [Mr R], where there are extracts from the mother's Facebook which suggested she has used her Facebook account both before and following her attendance upon the Court Child Consultant.
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4. The Court Child Consultant does not place a great deal of weight on the subpoenaed material as raising questions about the mother's living circumstances. The Independent children's lawyer has some concerns about that material which would seem to suggest that her care of the children and their living conditions are sub optimal.
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5. It is the submission of the Independent Children's Lawyer that the children should not be returned to the mother in circumstances where she has simply not engaged in the proceedings. That position is supported by the fact that the children clearly have a developing relationship with the school and their peers, and they now appear to be well-settled in that environment.
6. The interviews with his other children suggest that the father is an appropriate person to have the care of the children. The Independent Children's Lawyer is not aware of any information which would suggest that submission is incorrect.
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8. Lastly, the Independent Children's Lawyer supports the final subparagraph of section s60CC(3) insofar as the court should make a decision which minimises the likelihood of further legal proceedings and/or further involvement of these parties with the courts. Seven years on, these proceedings need to be brought to their conclusion.
I accept those submissions as made by the ICL.
I accept the evidence and observations of the April 2022 child impact report (including passages recited earlier) and the 2022 family report (including passages recited earlier).
APPLICABLE LAW
In deciding what particular parenting orders to make, I regard the best interests of the children as the paramount consideration under section 60CA the Act. I must consider the matters described in the act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act including sections 60CA and 60CC, which are as follows:
60CA:Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
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60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I now turn to the consideration of the factors of section 60CC. The following headings are for convenient paraphrasing of the factors set out at section 60CC (2) to (3)(a)-(m) of the Act, recited above. I only address those that touch on the issues in dispute.
Primary considerations
I proceed on the basis that the best interests of the children are the paramount consideration. I consider that there is a real benefit to the children having a meaningful relationship with the Mother and with the Father.
That issue of the primary consideration of having a meaningful relationship with both of the child's parents is at the heart of this case. As pointed out by the early family report writers, the crux of this case is that if the children live with the Mother in Queensland, they will not have a relationship with the Father. That is because of the Mother's inability to support that relationship. The reasons for the Mother's inability to support the children's relationship with the Father are not clear. She alleges significant family violence. I am not satisfied on the balance of probabilities that such family violence occurred. There are real question marks over the veracity of the Mother's account of most things, including her account of family violence. I do not dismiss those allegations, however it is clear that if the children live with the Mother in Queensland, they will not have a relationship with their father or any opportunity to have a relationship with their siblings or half-siblings on the Father’s side.
I must also consider the need to protect the children from physical or psychological harm. I find that there is a risk to the children of physical and psychological harm in the Mother's household. The Mother has demonstrated a capacity to have relationships with violent men and that raises the risk of violence and abuse to the Mother and exposure of the children to that violence.
Further, there is a real risk of the children being neglected in a physical sense in the Mother's household. I find there is no risk of harm to the children in the Father's household. The risk to the psychological welfare of the children in the Father's household is the extent to which they miss their mother and long for her attention and affection. I am satisfied that there is a real benefit to the children of having a relationship with the Father. I do give greater weight to the second primary consideration, the need to protect the children, than I do to the meaningful relationship aspect.
Any views expressed by the child
I am to consider the additional considerations. I refer to the 2022 family report reciting the equivocal views of the children.
Nature of relationships
It is clear that the children long for connection, time, affection and attention from their mother. It is likely that the children are more closely attached to the Mother than to their father because of the circumstances of having lived with her most of their lives. I take that into account when considering the nature of the children's relationship with each of their parents and any other persons, such as siblings, half-siblings and grandparents. The children have some affection for the Mother's father. They also miss, in particular, their younger siblings or half-siblings in the Mother's household.
They also have affection for the Father's mother, who assists the Father diligently in their care. They have an appropriate relationship with their siblings or half-siblings in their father's household.
Extent failed to take opportunity
The tragedy of this case is that the Mother has not taken the opportunity to communicate with the children since June of 2022. Prior to that, her attempts to communicate with the children were not reliable but, at least, occurred more often than not.
As recounted in the 2022 family report, there is no evidence that the Mother has any insight or understanding of the extent to which her failure to communicate with the children would cause distress to the children.
The children have a close and appropriate relationship with their father notwithstanding that that relationship is not as close as their relationship with their mother. It may be so in time, and I will also take into account that the Father has taken every opportunity he can, including by pursuing litigation year after year, to be able to spend time and communicate with the children.
Extent of fulfilled obligations
The Father solely maintains the children. Prior to that, the Mother maintained the children. The Father demonstrates an adequate ability to maintain the children, including with the assistance of his mother. He juggles his work life around his obligation to care for the children.
The likely effect of any changes
I am to take into account the likely effect of any changes in the children's circumstances, including the likely effect of separation from either of their parents or from any other significant person. The children were devastated to be removed from their mother and their half-siblings on 23 March 2022. Unfortunately, that tragic order was in the best interests of the children in the circumstances of their life at that time. I must now consider whether it is in the children's interests to change the current arrangements that have been in place since 29 March 2022.
The reality is that for the children to return to live with the Mother in Queensland, their circumstances would be uncertain. I am uncertain as to what male companions the Mother would have living in the house. I am uncertain as to the children's safety when exposed to any male companions in the Mother's household. I am certain that were I to order the children return to Queensland, the Mother would not cooperate with or promote the children having a relationship with the Father, spending telephone time with him or spending any time with him. It is possible that the Mother may well cooperate with telephone time for a period before this would cease, as it has in the past. The advantage of the children returning to Queensland is that they would be reunited with their mother, who they miss so much. However, I am also satisfied that were they to live with their mother in Queensland, that they would miss their father, their maternal grandmother and also, their siblings or half-siblings who live in the Father's household.
Practical difficulty of regular time
I am to take into account the practical difficulty and expense of the children spending time and communicating with the other parent. In this case, the distance is significant. The 2022 family report writer refers to it as “the tyranny of distance”. The reality is that there is little money to go round in this household or combination of households.
However, the Father has, on at least two occasions, undergone the significant expense of travelling to Queensland for the purpose of either family report interviews, or to see the children. He has taken every opportunity. The practical distance and expense did not prevent the Father from travelling to Queensland to see the children on the rare occasion that that was able to be organised.
The Mother is unable, I am satisfied, to organise herself or the resources to travel to South Australia to see the children in South Australia. I am not satisfied that the Mother has the resources at this point in time to be able to organise the children to travel to Queensland to spend time with her there, or that she would be able to organise their return journey, even were the Father to pay for it.
The capacity of the child’s parents
I am to take into account the capacity of each of the parents to provide for the children’s needs, including their emotional and intellectual needs. I am satisfied that the Father has demonstrated an appropriate attitude to care for the children's' needs, including physical needs, educational needs, health needs, and emotional and intellectual needs. I am satisfied that the Father seeks to promote a relationship between the children and the Mother, but he has been thwarted in doing so by the Mother's inability to maintain ordinary, everyday communications between Queensland and South Australia by the modern facilities of video link, Skype, or telephone contact.
Maturity, sex, lifestyle, and background of the children
I am to take into account the maturity, sex, lifestyle, and background of these children, and little turns on that, save that the children have five half-siblings in the Mother's household aged between 17 years old down to 3 years old, and they spend no time with those siblings.
The Mother has three older children, and those three older children communicate with the father and the children in the father's household by telephone on a regular basis. It would be far preferable for these children if they were able to maintain relationships with all of their siblings, not just the ones who live in Adelaide, but also with the ones who live in the Mother's household in Queensland. But tragically, in this case, that is not able to happen, at least for the foreseeable future.
Aboriginal or Torres Strait Island children
I am not satisfied that these children are Aboriginal or Torres Strait Island children. It appears that the Mother has identified as being of a Torres Strait background via her understanding of her father's ancestry, at least in recent times. However, there is no evidence that the Mother has ever participated in or understands any Torres Strait Islander culture, practices, or customs. If the Mother is of Torres Strait Islander descent, her lack of knowledge and participation in that culture is a tragedy. Notwithstanding that if the Mother does have Aboriginal or Torres Strait Islander ancestry, that would mean the children would be able to identify with that culture via the Mother. At this stage, there is no likelihood of that occurring. That may be another loss to the children of the circumstances of their mother not being involved in their life. However, this aspect does not bear largely in my decision.
Attitude to the responsibilities of parenthood
The Father has demonstrated an appropriate attitude to the responsibilities of parenthood. He cares for the children in a physical and intellectual sense quite well. He is assisted by his mother who is diligent in her care of the children, and raising the children with responsible attitudes to matters such as education, manners, and common courtesy. Such matters are very important to assist the children to get on in life. An important aspect of the responsibility of parenthood is the ability to promote the other parent's relationship with the children. The Father has attempted to promote such relationship by facilitating electronic communication between the Mother and the children on those occasions when the Mother was able to organise herself to call them.
The Mother has demonstrated an inappropriate attitude to the responsibilities of parenting. She has failed to promote the relationship between the children and the Father, and in fact she has actively thwarted the same.
Family violence
I am to take into account any family violence involving the children or a member of their family, as well as any family violence orders. The Mother had applied for family violence orders on occasion, but when the Father contested them, the proceedings were either abandoned or dismissed. The Mother alleges significant family violence at the hands of the Father. I am not satisfied of the veracity of those allegations. I am concerned at continuing family violence in the Mother's household, as the Mother ends one relationship with a man and commences another. The Mother herself deposes to having been under the sway or control of at least one of the other fathers of her children. She has relied upon that control or sway or coercive control as the reason why she has been unable to promote the children's relationship with the Father.
Whether to make orders least likely to lead to further proceedings.
I am to take into account whether it would be preferable to make a final order. These proceedings have been on foot since September 2016. The Mother's participation in the proceedings has been scant and difficult to obtain. The patience of the judge who dealt with the matter in South Australia can only be admired. I take that into account.
I find that the Mother has an inability to deal with modern society in such matters as attending court and participating in proceedings. I am troubled that that extends further to an inability to get the children to attend school and protect the children from conflict or family violence in further relationships. There is a real issue that hangs over the Mother's organisational ability, including the cleanliness and order of her home.
CONCLUSION
I conclude that it is very much in these children's interest that final orders be made settling the question of their accommodation on a final basis. The matter had been listed for final hearing before me previously when I had, in what turns out to be an excess of caution, merely made interim orders and adjourned the matter for final hearing with a further family report. I did so to give the Mother an opportunity to put her side of the story and to participate in the proceedings. That did not happen.
I find that the Father, the ICL, the court, and the various report writers have given the Mother every opportunity and bent over backwards to permit her and encourage her and indeed order her, to participate in the proceedings, and she has been unable to do so.
In all of those circumstances, save with the changes that I will indicate now, I am satisfied that the broad sweep of the orders that the Father seeks are in the children's best interests.
Change of the children’s names
I will now address the issue of the change of the children’s names.
The orders made on 23 March 2022 refer to Child Y as being “Y Sutcliff”. Child Y is now enrolled in school in South Australia as Y. I will make an order that the Father be and is at liberty to register Child Y’s name as “Y Sutcliff”. That name is currently the one used at school, and further, I understand that to be the name that is on his birth certificate.
In terms of Child X, the previous orders referred to her as “X AR”. The origin of the AR connection appears to be that is the family name of the Mother's father and may have been the name that the Mother had herself as a child. The Mother has long been known as Rower, and may well have been known also as an adult as AR, AS, H and possibly even Sutcliff.
There is some benefit to Child X having the name AR in her name. One matter that I am considering is that the name AR remains in Child X’s name, but as a middle name. That is, the same as her current middle name, X, but that her surname or family name will be Sutcliff. The reason that I am contemplating that is that as Child X grows older, her own origins and sense of connection may be important to her. The tragedy of Child X’s life is that she has very slim connection with her mother's side of the family at all, and the retention of the word AR in her name, not as her surname but as an ordinary name, may be of benefit to her. I have a reluctance to dismiss from her name any connection with her mother when that name may be to Child X some semblance of connection to her loved but absent mother.
In the Father's amended initiating application, he had sought an order that the children's names, including change of last names, be to that of the Father, namely, Sutcliff. Child Y already has the name Sutcliff. Child X does not. I have discussed with the ICL and the Father this day that the lack of connection with the Mother and that circumstance is a tragedy for Child X, and given that AR is likely to have been or may have been the Mother's name as a child, or at least is the name of the Mother's father or stepfather, that the name AR may, for Child X, have some connection to her mother.
Following discussion about that issue, the Father changed his position and now seeks that the name AR be retained in Child X’s name, but not as a surname or family name, but as an ordinary name, similar to her other middle name. Hence, I find that it's in Child X’s best interest that Child X’s name be changed and the Father be empowered to change Child X’s name so that it is “X AR Sutcliff”.
Those are my reasons.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 February 2023
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