TELLAM & MARIANI

[2012] FamCA 330

FAMILY COURT OF AUSTRALIA

TELLAM & MARIANI [2012] FamCA 330

FAMILY LAW - CHILDREN – parental responsibility – with whom children live, spend time and communicate  – best interests of children –  history of family violence perpetrated by the father upon mother – allegations of drug abuse by parties - past family violence orders against the father for protection of mother – father incarcerated for a short period following breach of a family violence order – children had no interaction with the father whilst in prison – following father’s release and rehabilitation the father had some interaction with the children and mother – father’s interaction with children ceased by May 2009 and resumed with supervision in March 2012 – mother’s repeated non-compliance with court orders to facilitate children’s time with father and for the preparation of expert reports – children’s relationships with father not as meaningful as relationships with mother – finding father does not pose any tangible risk of emotional or physical harm to either the mother or children by commission of future family violence – father able and willing to facilitate a close and continuing relationship between children and mother – where the parenting capacity of both parties is impaired to some degree – mother’s deficient attitude to the responsibilities of parenthood as evidenced by her opinion about the desirability of severance of the children’s relationship with the father and her dismal record of compliance with Court Orders – presumption of equal shared parental responsibility rebutted – sole parental responsibility allocated to mother – orders children to live with mother and to spend supervised time with father on an interim basis

FAMILY LAW - PRACTICE & PROCEDURE – EVIDENCE - Conversion of hearing from final to interim when complexion of proceedings changed significantly once trial commenced – where father revealed he did not want the children to live with him as proposed but sought orders for the children to spend frequent time with him – where mother revealed she did not really want the children to spend any time with the father despite having proposed orders that they do – where the mother and father sought leave to rely upon additional affidavits not filed compliantly with existing procedural orders – leave refused

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38, 42.
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAC, 65DAE, 65DAA, 69ZN, 69ZR, 69ZX

Browne v Dunn (1893) 6 R 67
Goode & Goode (2006) FLC 93-286
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8
MRR v GR (2010) 240 CLR 461
Re David (1997) FLC 92-776
U v U (2002) 211 CLR 238

APPLICANT: Mr Tellam

RESPONDENT: Ms Mariani

INDEPENDENT CHILDREN’S LAWYER: Craney Family Solicitors

FILE NUMBER: NCC 2422 of 2009

DATE DELIVERED: 9 May 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 23 & 24 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C Boyd

SOLICITOR FOR THE APPLICANT: Fowler Predny Solicitors

COUNSEL FOR THE RESPONDENT: Mr R Wilkinson

SOLICITOR FOR THE RESPONDENT: Winder Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Sharrock

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Craney Family Solicitors

Orders, pending further order

1. All former parenting orders relating to the children J Tellam (also known by the surnames Mariani and Mariani-Izic), born on … April 2004, and P Tellam (also known by the surnames Mariani and Mariani-Izic), born on … July 2005, (“the children”) are discharged.

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

3. The children shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

   (a)For a period of four months from the date of these orders, for a period of two hours each alternate Saturday at the B Contact Centre conducted at Town C, NSW, commencing on the second Saturday after the last occasion on which the children spend time with the father at that location pursuant to Orders made on 28 April 2011;

   (b)For a further period of three months thereafter, from 1.00 pm to 5.00 pm each alternate Saturday, commencing on the second Saturday after the last occasion on which the children spend time with the father pursuant to Order 4(a) hereof;

   (c)Thereafter, from 9.00 am to 5.00 pm each alternate Saturday, commencing on the second Saturday after the last occasion on which the children spend time with the father pursuant to Order 4(b) hereof.

5. For the purpose of compliance with Order 4(a) hereof:

   (a)Each party shall comply with all reasonable requests and directions of the centre;

   (b)The children’s time with the father shall be supervised by staff of the contact centre;

   (c)The timing of the interaction between the children and the father will be determined by the staff of the contact centre;

   (d)The father shall pay the costs of the contact centre;

   (e)The parties shall authorise and direct the staff of the contact centre to make supervision reports available to the Independent Children’s Lawyer; and

   (f)The Independent Children’s Lawyer shall cause a sealed copy of these orders to be served upon the contact centre within 14 days hereof.

6. For the purpose of compliance with Orders 4(b) and 4(c) hereof, the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the Suburb D Railway Station, NSW, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.

7. The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Family Consultant.

8. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current landline and/or mobile telephone number.

9. The mother is restrained from commencing or proceeding with any application to the Australian Department of Foreign Affairs or any consulate or other appropriate authority for the issue of passports for the children.

10. Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the children to be removed from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on that Watch List for a period of 12 months.

11. Any and all outstanding applications for interim orders are dismissed.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.

13. The Family Consultant shall furnish the Court with an updated Family Report pursuant to s 62G of the Family Law Act 1975 by Friday 22 March 2013.

14. In order to facilitate preparation of the Family Report:

    (a)Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant, but not prior to 31 January 2013;

    (b)Each party must ensure the attendance of the children at such interviews and observation sessions at such times and places nominated by the Family Consultant, but not prior to 31 January 2013; and

    (c)The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.

15. These proceedings are adjourned to 9.30 am on 18 April 2013 for further procedural orders.

16. Liberty to restore the matter to the list on 7 days notice for further procedural orders or in the event of contravention of these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2422 of 2009

Mr Tellam

Applicant

And

Ms Mariani

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The complexion of these proceedings changed significantly once the trial started.

2. The father revealed he did not really want the children to live with him as he had proposed. Rather, he only wanted them to spend frequent time with him.

3. The mother revealed she did not really want the children to spend any time with the father at all, despite having proposed orders that they do.

4. The trial was fixed for two days in accordance with the estimates of the parties and Independent Children’s Lawyer, but that amount of time was not nearly enough. By the end of the second day only the parties’ evidence had been completed and the trial would need to have been adjourned part-heard for approximately four months to take the evidence of the single expert witness and Family Consultant.

5. The report initially furnished by the single expert witness was substantially incomplete, but in any event the single expert had been incorrectly instructed.

6. The trial was halted after the completion of the parties’ evidence and before the cross-examination of the single expert and Family Consultant. The antecedent intention to complete the trial and make final orders was abandoned and replaced by an intention to make only interim parenting orders, which would test both the suitability of the orders and the parties’ compliance with them.

7. Such a change of course was possible because of the provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). One principle governing the Court’s conduct of child-related proceedings is that the Court should actively direct, control and manage the conduct of the proceedings (s 69ZN(4)). To that end the Court may, at any time before making final orders, make a finding of fact, determine a matter, or make an order in relation to an issue arising out of the proceedings (s 69ZR(1)). More specifically, the Court may make orders about who is to give evidence in relation to each remaining issue (s 69ZX(1)(b)), limiting the time for the giving of evidence (s 69ZX(2)(d)), and limiting or preventing cross-examination of a particular witness (s 69ZX(2)(i)).

8. The parties and Independent Children’s Lawyer each agreed that the decision to convert the hearing from final to interim and to preclude cross-examination of the single expert and Family Consultant was both permissible and desirable in the circumstances exposed by the first two days of trial.

9. The scope of the residual disagreement was then confined to the nature of the interim orders that would provide for the children to spend time with the father. The mother contended for continuation of the existing regime of only two hours per fortnight supervised at a contact centre. The father contended for a regime of gradually escalating time and the delayed dispensation of supervision. The Independent Children’s Lawyer contended for a regime falling in the spectrum between the parties’ polarised views.

Background

1. According to the mother, the parties commenced a relationship in 2001 and began cohabitation in 2002.[1] The father asserted their relationship began slightly later,[2] but nothing turns on the discrepancy so there is no need to resolve the factual dispute.

   [1] Mother’s affidavit, par 14

   [2] Father’s affidavit, par 6

2. The parties’ two children were born in April 2004 and July 2005.[3] The children are now aged eight and six years respectively.

   [3] Mother’s affidavit, par 1; Father’s affidavit, par 7

3. The parties separated in February 2007.[4] The separation occurred following an incident of domestic violence, which entailed the father’s arrest and his subsequent conviction and sentence to imprisonment.[5] The perpetration of family violence by the father was a central theme in this litigation.

   [4] Father’s affidavit, par 6

   [5] Father’s affidavit, pars 11-12; Mother’s affidavit, pars 28-29

4. The mother and children moved into a refuge for several months following separation, but by May 2007 the mother and children lived independently.[6] The mother has since kept their residential address secret from the father.[7]

   [6] Family Consultant’s affidavit 12/9/11, par 52

   [7] Mother’s affidavit, par 3

5. The father was released from prison in about August 2007 and then entered into a residential rehabilitation program to assist in his abstinence from illicit drug use and alcohol misuse, which he completed in about June 2008.[8]

   [8] Father’s affidavit, pars 12-13

6. The children had no interaction with the father whilst he was in prison and afterwards undertaking his rehabilitation. There was an apprehended violence order then in existence precluding such interaction.[9] The mother was the “protected person” under the order, but since the children lived with the mother they were also “protected persons” (see ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

   [9] Mother’s affidavit, par 29, Annexure C; Father’s affidavit, par 14

7. There was a profound factual controversy about the children’s interaction with the father following his rehabilitation. The mother alleged the children rarely saw the father, and only then by accident.[10] However, the father alleged the mother contacted him in early 2009 as a consequence of which the children and the mother then spent some days with him, although such interaction ceased by May 2009.[11]

   [10] Mother’s affidavit, pars 30-32

   [11] Father’s affidavit, pars 15-20

8. The father was obviously dissatisfied with the absence of interaction between him and the children. He commenced these proceedings by filing an Initiating Application in September 2009. Since the father was unaware of where the children lived with the mother, a location order was among the interim orders proposed in his Application.

9. The location order was made by the Court on 13 October 2009 and was later fulfilled by Centrelink. On 18 November 2009 the Court authorised release of the mother’s residential address to the father’s lawyers.

10. The father’s efforts to serve process upon the mother were fruitless for many months. Finally, the mother was informed of the litigation and she appeared self-represented by telephone at the Court event on 1 October 2010.

11. The matter was later listed before the Court for hearing on 25 January 2011 in relation to interim parenting orders. The hearing proceeded on that date and interim orders were then made providing for, among other things:

    a)The children to live with the mother (Order 1);

    b)The children to spend supervised time with the father at a Sydney contact centre for one hour each Saturday (Orders 2-3);

    c)The parties to submit to urinalysis (Order 5);

    d)Preparation of a Family Report (Orders 10-11); and

    e)Appointment of a single expert witness (Orders 12-18).

12. The interim orders were adjusted on 28 April 2011 so as to permit the children to spend supervised time with the father for two hours each fortnight at a contact centre on the Central Coast because of the long waiting list at the Sydney contact centre (Orders 1-2, Notation A).

13. The mother failed to register at the Central Coast contact centre and so there was considerable delay in the implementation of the interim parenting orders. Despite informing the Court she had registered by September 2011,[12] that was not so. In fact, she had belatedly registered with the Sydney contact centre,[13] but by then her obligation was to register at the Central Coast contact centre.

    [12] Notation A made on 12 September 2011; Notation C made on 7 December 2011

    [13] Family Consultant’s affidavit 12/9/11, pars 9-10

14. On 6 February 2012 another specific order was made requiring the mother to register with the Central Coast contact centre,[14] and her eventual compliance resulted in the children commencing supervised visits with the father at that centre in late March 2012.

    [14] Order 2

15. Subject to the controversy about whether the children spent some time with the father in early 2009, the children did not spend any time with the father after the parties’ separation in February 2007 until they met with the father in the presence of the Family Consultant in September 2011[15] and then with the single expert in February 2012[16], followed by the supervised visits at the contact centre beginning in March 2012.

    [15] Family Consultant’s affidavit 12/9/11, pars 26, 40-42

    [16] Father’s affidavit, par 64

16. The children have not had any telephone communication with the father since at least August/September 2010.[17]

    [17] Father’s affidavit, pars 21-23, 64, 66

17. The mother presently lives with the children in Sydney.[18]

    [18] Mother’s affidavit, par 3

18. The father presently lives alone on the NSW Central Coast.[19]

    [19] Father’s affidavit, par 53

Proposal and primary evidence of the father

1. The father began the trial pressing for the orders set out within his Further Amended Initiating Application filed on 20 December 2011, which essentially sought a reversal of the children’s residence. The father proposed he have sole parental responsibility for the children, that they live with him instead of the mother and that they spend time with the mother on alternate weekends and during school holidays.

2. However, during his cross-examination the father confirmed that was not really his desire. He was actually proposing a parenting regime under which the children continued to live with the mother and spend time with him. That was the position he had adopted since he commenced the proceedings in September 2009. His change of heart in December 2011 was due to his exasperation with the mother’s failure to implement the interim orders providing for the children to spend time with him.[20]

   [20] Notation A made on 12 September 2011; Orders 2-3 made on 6 February 2012

3. In support of his proposal the father relied upon his affidavit filed on 24 February 2012.

4. At the commencement of the trial the father sought leave to rely upon an additional affidavit filed and served by him on 20 April 2012, but leave to do so was refused, consistently with the objection of the mother. The affidavit was not filed compliantly with existing procedural orders and the father did not re-list the matter in a more timely way to seek and obtain leave to file it.[21] The Court was informed the affidavit addressed, in the main, the father’s perception of the successful way in which the children had spent time with him at the contact centre on two visits in March and April 2012. It was an agreed fact that the children had spent time with the father on those two occasions, and further, no attempt had been made by the father to subpoena the records of the contact centre, which records would independently address the success of those visits. Given the mother’s refusal to concede the contents of the affidavit, the father’s uncorroborated and controversial opinion about the success of the visits was unlikely to advance the quality of the evidence available to the Court, if at all.

   [21] Orders 5, 10 and 15 made on 7 December 2011

5. The father then alternatively sought leave to adduce oral evidence-in-chief of a recent incident during which the mother allowed the children to spend time with him unconfined by the strictures of the interim orders made on 25 January 2011 and 28 April 2011, requiring the children’s time with the father to be supervised at a contact centre. Leave was granted to both parties to adduce oral evidence-in-chief about that incident.

Proposal and primary evidence of the mother

1. From the commencement of her involvement in the proceedings the mother contended the children should have no interaction at all with the father, which contention apparently arose from the mother’s allegations of past family violence committed by the father.

2. The mother’s attitude later appeared to soften to some degree. In December 2011 she filed an Amended Response in which she proposed an order that the children spend time with the father as determined by the Court.[22]

   [22] Order 3

3. At the commencement of the trial on 23 April 2012 the mother informed the Court of her more specific proposal that the children spend time with the father each fortnight, albeit supervised indefinitely at a contact centre. Such proposal reflected the interim orders made by the Court on 25 January 2011 and 28 April 2011.

4. However, when the mother gave evidence she confirmed it was really her desire for the children to spend no time at all with the father.

5. The mother’s proposal for the children to live with her and for her to have sole parental responsibility for them remained unchanged.

6. In support of her position the mother relied upon her affidavit filed on 12 January 2011.

7. The mother sought leave to rely upon her fresh affidavit, which was not sworn or affirmed until literally minutes before the trial commenced on 23 April 2012. Leave was refused, consistently with the objection raised by the father. The mother failed to comply with the procedural orders made on 7 December 2011 requiring her affidavit evidence to be filed by 24 February 2012.[23] She could not adequately explain either her non-compliance with the procedural orders or the abject lateness of the fresh affidavit.

   [23] Order 5

8. The father had not even seen the mother’s affidavit in draft format so he was understandably prejudiced in trying to meet it during a trial that was fixed for only two days duration. The father’s prejudice was irremediable without sufficient time within which to consider the mother’s fresh evidence, which could only be afforded by an adjournment. The mother declined to seek an adjournment, presumably fearing exposure to an application for costs of the father thereby thrown away. The mother therefore reverted to reliance upon the historical affidavit she filed in the proceedings.

9. There were numerous unsatisfactory aspects of the mother’s evidence which tended to compromise her reliability as a witness, but one stark example of her mendacity impeached her credit to such an extent that, in the event of factual conflict, I prefer the evidence of the father and/or independent documents to the evidence of the mother.

10. The mother told the single expert she had not been abused during her childhood and thereby led the single expert to believe her childhood had been “stable and unremarkable”.[24] In cross-examination the mother said that information was truthful and she also acknowledged the importance of being truthful to the single expert. She was then shown a NSW police record dated 28 July 2003, which was subsequently tendered.[25] The record disclosed she had attended a police station to complain she had been sexually assaulted as a child by a person whose identity had been redacted from the document.

    [24] Single expert report, par 154

    [25] Exhibit ICL5

11. The mother asserted in cross-examination she had never been to that police station in July 2003, although she had been to that police station on occasions both before and after July 2003. She also denied ever making a complaint to police of her sexual assault as a child. The mother’s assertions were startling because the police record identified her by name, correctly identified her former residential address, and correctly identified the father by use of his name as her then current boyfriend. In all probability, the police record must be an accurate account of the mother’s complaint to police in July 2003. The mother was unable to offer any explanation about how the police record could be incorrect.

12. The contradiction between the contents of the formal police record and the evidence of the mother was therefore probative of two things – the mother gave a false account to the single expert about the absence of any abuse during her unremarkable childhood and the mother falsely denied in evidence her complaint about that abuse to the police in July 2003. While the mother’s false account to the single expert could plausibly have been an honest mistake by oversight, her evidence in cross-examination must have been deliberately false when confronted with the police record.

13. It is noteworthy that the single expert’s psychometric testing of the mother also revealed her to be “less than frank”,[26] prone to portray herself “in an overly favourable light”,[27] and “reluctant to admit any problems across many areas”.[28]

    [26] Single expert report, par 150

    [27] Single expert report, pars 147, 152

    [28] Single expert report, par 148

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer confirmed at the commencement of the trial that he did not propose any particular orders, preferring to wait and see how the evidence developed.

2. When the trial was halted at the end of the second day the Independent Children’s Lawyer was clear that the children should spend time with the father, that the time spent with the father should be expanded incrementally, and eventually the supervision should be dispensed with. The Independent Children’s Lawyer was therefore generally supportive of the father, but took a more cautious view about the rate at which the parenting regime should expand and the timeliness of when the supervision should be dispensed with.

Additional evidence

1. The parties and Independent Children’s Lawyer additionally relied upon the reports of the single expert witness and Family Consultant.

2. On 25 January 2011, with the consent of the parties and Independent Children’s Lawyer, the Court appointed an unidentified single expert witness to report upon:[29]

   a)The psychiatric or psychological condition of the mother;

   b)The causal relationship between any psychiatric or psychological condition of the mother and the alleged family violence perpetrated upon her by the father; and

   c)The effect upon the mother’s parenting capacity by reason of implementing parenting orders which ensure a meaningful relationship between the children and the father.

   [29] Order 12

3. The parties and Independent Children’s Lawyer subsequently engaged Dr O, clinical psychologist, as the single expert witness.

4. There was significant delay between the orders for the appointment of the single expert and the ultimate provision of the single expert report. That was due, firstly, to inadequate legal aid funding,[30] and secondly, the mother’s failure to attend appointments with the single expert.[31]

   [30] Notation C made on 28 April 2011; Notation B made on 12 September 2011

   [31] Notation F made on 7 December 2011; Order 1 made on 6 February 2012

5. There were some unsatisfactory aspects about the report finally provided by the single expert.

6. The single expert initially provided the Court with a report signed and dated 26 March 2012, comprising 29 pages and 110 paragraphs – all of which were numbered sequentially. Some time after the trial had commenced the Court was informed by the Independent Children’s Lawyer that the single expert’s report was incomplete. The complete report, also signed and dated 26 March 2012, was then electronically transmitted to the Court by the single expert and it surprisingly comprised 48 pages and 217 paragraphs. The progress of the trial was interrupted by the need for the parties and Independent Children’s Lawyer to familiarise themselves with the substantial amount of extra evidence.

7. In any event, the single expert incorrectly represented that the Court had ordered her engagement to “enquire into and report upon the following matters”:[32]

   a)The mother’s psychological state with reference to her previous drug use and possible paranoia or mental instability;

   b)The mental state of the children… their relationship with each parent and the reasons for any negative aspects of their relationship with each parent and the likely impact of each parent’s proposal on their psychological wellbeing;

   c)The father’s psychological state with reference to his previous drug use and possible previous violent behaviour and anger issues as a result of a brain injury.

   [32] Single expert report, par 2

8. As would be evident from comparison between the procedural orders made in January 2011 and the terms of reference quoted by the single expert, there was a material disparity.

9. There was also a material disparity between the terms of the single expert’s engagement and the extent of the opinions she ultimately expressed. For reasons which are presently unknown, the opinions expressed by the single expert encompassed “the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, and to identify any risk of harm to the child”[33] even though the single expert’s terms of engagement expressly did not solicit opinions on those issues.[34]

   [33] Single expert report, pars 216(c), 217

   [34] Single expert report, par 2(c)

10. The Court was informed the Independent Children’s Lawyer had instructed the single expert in different terms from those ordered by the Court, but why that occurred remained unexplained. The point of the single expert’s engagement was the Family Consultant’s recommendation in her report dated 6 January 2011 that:[35]

    A Chapter 15 psychiatric assessment of the mother with respect to the potential impact of past family violence may be useful.

    [35] Family Consultant’s affidavit 10/1/11, page 9

11. The terms in which the single expert was subsequently instructed and upon which she then reported went well beyond both that objective and the terms of the orders agreed upon by the parties and Independent Children’s Lawyer to fulfil that objective. In effect, the single expert was invited to duplicate the role of the Family Consultant.

12. The Family Consultant confirmed the need for the separate assessment of the mother in March 2011,[36] but then later suggested the separate assessment be broadened to incorporate the father and children.[37] However, the terms of the orders made in January 2011 in respect of the single expert were not changed by the Court and the single expert report went well beyond a simple psychological assessment of the parties and children.

    [36] Family Consultant’s affidavit 31/3/11, par 41

    [37] Family Consultant’s affidavit 12/9/11, pars 56, 64

13. The Family Consultant prepared numerous memoranda and reports, all of which were adopted by affirmation and annexed to her affidavits. Those affidavits were dated 25 October 2010, 10 January 2011, 31 March 2011, and 12 September 2011.

14. Caution must be exercised in acceptance or rejection of the evidence contained within the reports of the single expert and Family Consultant, given that they have not yet been cross-examined.

Applicable principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon 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 properly 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 with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (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 major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the children – primary considerations

Section 60CC(2)(a)

1. There is no dispute the children are attached to the mother and enjoy meaningful relationships with her.[38] It is imperative those relationships be preserved as they will be of benefit to the children.[39]

   [38] Single expert report, pars 153, 167, 172, 214, 216(b)(II)

   [39] Single expert report, par 214

2. An important issue in the proceedings was the quality of the children’s relationships with the father, given the paucity of contact between them over recent years. The mother asserted the children are frightened of the father, but her opinion is uncorroborated. The father denied they react towards him with fear and the mother’s opinion is not supported by the independent observations of the Family Consultant and single expert.

3. The Family Consultant finally had the opportunity to see the children with the father at an observation session in September 2011. The reticence expressed and displayed by the children about the father swiftly dissipated.

4. The comments of the children about the father prior to their reunion with him were both ambivalent and apprehensive.[40] They separated easily from the mother even though they knew they were to then meet the father. Their behaviour upon introduction to the father was also apprehensive, although they settled very quickly and then interacted with the father excitedly and inclusively.[41] The mother witnessed that the children were not upset by their interaction with the father in the presence of the Family Consultant, telling the Family Consultant that the children were “fine”.[42]

   [40] Family Consultant’s affidavit 12/9/11, pars 35-39, 57

   [41] Family Consultant’s affidavit 12/9/11, pars 35, 40-42

   [42] Family Consultant affidavit 12/9/11, pars 26, 43

5. The single expert observed the children and father together in February 2012.[43] The children appeared initially nervous but not frightened of the father. The children were relatively passive in their interaction with the father and the single expert concluded there was no bond or attachment between the children and the father,[44] although bonds were capable of re-establishment.[45]

   [43] Single expert report, par 3

   [44] Single expert report, pars 79, 86, 87, 167, 172, 216(b)(II)

   [45] Single expert report, par 87

6. The father conceded in cross-examination that his relationships with the children were in need of repair. He said words to the effect “I still have to bond with the boys and that takes time” and later “it would be totally stupid to rip the children from the mother”. The father also told the single expert the children were not presently bonded with him.[46]

   [46] Single expert report, par 57

7. Clearly the children’s relationships with the father are not as meaningful as the relationships they enjoy with the mother. Consequently, inquiry was warranted as to whether it is in their best interests for their relationships with the father to be improved.

8. Abusive relationships aside, children generally benefit from the development of meaningful relationships with both their parents (see U v U (2002) 211 CLR 238 at 285-286). The mother contended no such benefit would accrue to the children because of the risk of their emotional harm caused by the father’s past commission of family violence and the potentiality for him to act similarly in future, whereas the Family Consultant wondered about the risk of the children’s emotional harm by reason of their awareness of the mother’s staunch opposition to their continued involvement with the father.[47]

   [47] Family Consultant’s affidavit 12/9/11, par 57

9. The mother’s concern will be addressed under s 60CC(2)(b) of the Act and the Family Consultant’s concern under s 60CC(3) of the Act.

Section 60CC(2)(b)

1. A principal issue in the case was the mother’s allegations against the father of his commission of gross family violence.

2. The mother alleged the father’s violence began when she was pregnant with the eldest child in 2003, which was exacerbated by his ingestion of alcohol and illicit drugs.[48] She gave examples of the father’s violent outbursts which resulted in her being struck and injured.[49] In August 2006 the police acted to obtain a family violence order against the father for the protection of the mother.[50] The parties’ final separation in February 2007 was caused by another violent incident which resulted in a variation and extension of the family violence order.[51]

   [48] Mother’s affidavit, pars 15, 16, 18, 19, 25; Single expert’s report, pars 122, 126

   [49] Mother’s affidavit, pars 18, 20-23

   [50] Mother’s affidavit, par 26

   [51] Mother’s affidavit, pars 28-29

3. The mother did not allege any incidents of family violence against the father since separation and she expressly admitted in cross-examination that the father has not intimidated her or behaved violently during the course of these proceedings. Notwithstanding, the mother asserted that she still holds “grave fears of the father’s violence”.[52]

   [52] Mother’s affidavit, par 34

4. The father conceded he had acted violently towards the mother in the past, for which he credibly expressed regret and shame, but he asserted he had reformed and was no longer violent. His contention of reformation was corroborated by the absence of any evidence of his involvement in any violent conduct since the parties’ separation occurred over five years ago, despite his past brain injury allegedly leaving him prone to “emotional dysregulation and disinihibition”.[53]

   [53] Single expert report, par 212; Family Consultant’s affidavit 12/9/11, par 20

5. The father attributed his reformation to his abstinence from alcohol and illicit drugs. His efforts in that regard have indeed been impressive.

6. The father served a short sentence of imprisonment for his assault of the mother at separation.[54] Upon his release several months later he undertook residential rehabilitation for nearly 12 months. Except for one relapse by use of cannabis and alcohol in about October 2008,[55] the father has been abstinent from alcohol and illicit drugs since early 2009. He regularly attends meetings at Alcoholics Anonymous, still engages in counselling, and regularly consults his doctor.[56]

   [54] Father’s affidavit, par 12

   [55] Father’s affidavit, pars 27-28

   [56] Father’s affidavit, pars 29-33, 49

1. Unlike the mother, the father complied with requests made by the Independent Children’s Lawyer for him to submit to urinalysis. On each occasion he has undertaken the random urinalysis his test result has been negative.[57]

   [57] Father’s affidavit, par 50; Exhibit ICL3

2. Although the mother harbours fear the father will not remain abstinent from alcohol and/or illicit drugs,[58] I am satisfied the prospect of the father’s relapse is now quite remote. The father accepted the proposition put to him in cross-examination that he is not “cured”, but his cognisance of that fact increases his vigilance against relapse. He realistically agreed he could not give an absolute guarantee against relapse, but I am quite satisfied of his resolve. The Family Consultant was also seemingly convinced by the father’s remorse and resolve.[59]

   [58] Mother’s affidavit, par 35

   [59] Family Consultant’s affidavit 10/1/11, page 5

3. The mother also remained concerned that the father’s cognitive deficit, caused by past traumatic brain injury, may also cause him to act violently at any time, quite apart from any compounding effect of alcohol or illicit drug consumption.[60] While that may be her genuine belief, there is no evidence to give the Court reasonable concern. The single expert reported that the father’s cognitive deficit impairs his ability to learn, comprehend, solve problems and hold employment,[61] but she said nothing of any connection between his cognitive deficit and a propensity to act violently.

   [60] Mother’s affidavit, par 36

   [61] Single expert report, pars 20, 64-78

4. I am not satisfied the father now presents any tangible risk of emotional or physical harm to either the mother or children by reason of the commission of future family violence. Alternatively, any such risk is certainly not quantifiable as unacceptably high.

5. It should be observed that, despite the mother’s denials, I am satisfied the mother has voluntarily made arrangements on several past occasions for the children to spend time with the father, which tends to cast doubt on the level of actual fear the mother claimed she still feels about the father.[62]

   [62] Single expert report, par 126

6. In early 2009 the mother called the father and made arrangements for her and the children to spend time with the father for several days. That meeting entailed sexual relations between the parties.[63] The same thing occurred about two weeks later.[64]

   [63] Father’s affidavit, par 15

   [64] Father’s affidavit, par 17

7. On 14 April 2012 the children spent the second of the two supervised visits they have so far had with the father at the Central Coast contact centre. Following the supervised visit the mother and children met with the father at the railway station and then spent another few hours with him.

8. The father said, and I accept, that such arrangement was reached consensually by the parties. They then travelled by train from Town C to Town E where they alighted and spent over an hour at a local shopping centre. They then boarded a bus and went to Town F beach. Some hours later they returned to Town E railway station and the mother and children caught the train back to Sydney in the late afternoon.

9. The mother agreed she and the children accompanied the father to Town E and spent over an hour with him, but she denied they went with him to Town F and spent several more hours with him. I prefer the father’s evidence. Apart from the father being more credible, the mother had said in evidence-in-chief that it takes her two hours to travel from Town E station to her home in Sydney. She later admitted in cross-examination she arrived home with the children that evening at 7.00 pm, which would have meant her departure from Town E station at about 5.00 pm, consistently with the father’s evidence, but inconsistently with her evidence of a 3.00 pm departure. The mother then attempted to reconcile her evidence by explaining her delay was due to breaking her journey at Suburb G for some reason but I do not accept her explanation.

10. The mother also asserted the time spent by her and the children with the father that day was not voluntary. In effect, she implied her will was overborne. I do not accept that. The mother admitted the father requested her to allow the children to spend time with him. It was not a demand. The mother may well have felt some degree of apprehension, but feeling apprehensive and being compelled to act involuntarily are two different things. It beggars belief the mother and children spent approximately five hours with the father that afternoon – the whole of that time in public places – against her will.

11. The mother conceded in cross-examination such facts “looked bad” for her assertion of overwhelming fear of the father. She acknowledged she could have sought assistance from railway staff that day if she genuinely thought it was necessary and she had not.

12. The father conceded in cross-examination it was reasonable for the mother to be frightened of him as a consequence of his past behaviour, but he was keen to impress his changed attitude. He assured that his violent conduct is consigned to the past and I accept the veracity of his evidence. Because the mother was the victim of the father’s past violence she is understandably more sceptical of his reformation, but her victimisation last occurred over five years ago. Although the mother could not be drawn on whether she conceded the father had changed, it is no longer reasonable to deny the children relationships with the father only on the basis of that aging history.

13. Apart from the issue of subjection or exposure to family violence, there was some evidence adduced about the risk of the children’s physical abuse.

14. Both parties asserted the other had physically abused the children in the past. The mother alleged the father assaulted the children, and particularly the eldest child on a regular basis.[65] Conversely, the father alleged he had seen the mother kick the children.[66]

    [65] Mother’s affidavit, pars 24, 34; Single expert’s report, par 121

    [66] Family Consultant’s affidavit 31/3/11, par 26

15. I do not accept the mother’s allegations. The mother did not mention the allegations to the Family Consultant in December 2010 and were not included among the reasons the mother was concerned about the children spending time with the father.[67] In her later interview with the Family Consultant in September 2011 the mother mentioned the father “wacked” the children when asked a direct question about it, but the father’s alleged physical abuse of the children was still not a reason advanced by the mother for why the children’s time with the father should be curtailed.[68] If the allegations were genuinely contended to be influential in the outcome of the proceedings then procedural fairness required that the father be confronted with them in cross-examination for his admission or denial (Browne v Dunn (1893) 6 R 67) and he was not. The father expressly denied physically abusing either child and he was not challenged about that assertion either.[69]

    [67] Family Consultant affidavit 10/1/11, page 5

    [68] Family Consultant’s affidavit 12/9/11, pars 25, 27

    [69] Father’s affidavit, par 43

16. Similarly, I do not accept the father’s allegations against the mother. Although he made the allegations to the Family Consultant, he adduced no evidence of the allegations in his affidavit and, likewise, the mother was not cross-examined about the allegations.

17. No allegations of neglect were raised or pursued by the parties.

Best interests of the children – additional considerations

Section 60CC(3)(a)

1. The children expressed to the Family Consultant either ambivalent or negative comments about their interaction with the father.[70] Their comments to the single expert were in a similar vein.[71]

   [70] Family Consultant’s affidavit 12/9/11, pars 35-39

   [71] Single expert report, pars 163-166, 170-171

2. I attribute no weight to the expressed views of the children because of their young age, relative immaturity, and their probable awareness of the mother’s negativity about their relationships with the father. The pressure exerted by the mother upon the children will be elaborated under s 60CC(3)(c) of the Act.

Section 60CC(3)(b)

1. Curiously, despite the attachment of the children to the mother, the Family Consultant observed that the children identified their relationship with one another as most important.[72]

   [72] Family Consultant’s affidavit 12/9/11, par 39

2. The children spend time regularly with members of the maternal family,[73] with whom I impute they have warm and close relationships.

   [73] Mother’s affidavit, par 5; Single expert report, pars 92, 115, 170

Sections 60CC(3)(c), (4)

1. A compelling feature of the case was the mother’s unabashed opposition to the children having any relationship with the father. She thought it would be of no benefit to the children at all to know their parents could “get on OK”. Nor could she conceive any advantage the children may accrue by spending time with the father.[74] She candidly conceded she did not like the father.

   [74] Family Consultant’s affidavit 12/9/11, par 25; Single expert’s report, par 139

2. Notwithstanding her opposition to the development of relationships between the children and the father, the mother asserted she had been able to keep her sentiments well guarded from the children. Even if the mother believed that to be true, it is plainly incorrect. The mother conceded in cross-examination “I tell the children that it’s not really [the father’s] fault for not being there for them”, and additionally, “I have told the children I have to abide by the law”.

3. The children can only rationally impute from such comments the mother has a very dim view of the father and she only ensures they see him in order that she complies with the law. The message the children therefore receive from the mother, implicitly or otherwise, is that she is against them having relationships with the father. Even the youngest child knows the mother is “sad” about the prospect of the children spending time with the father.[75] In the circumstances of such covert, perhaps even overt, pressure it is wholly unsurprising the children act with some degree of trepidation when they are first introduced to the father.

   [75] Family Consultant’s affidavit 12/9/11, par 36

4. The mother attributed the children’s alleged fear of the father to them having witnessed past domestic violence, rather than the impression of her negativity upon them. The mother alleged in evidence the children were “always present when the father engaged in domestically violent behaviour towards [her]”.[76] She told the single expert the same thing.[77] If that was true, the children have no independent recollection of events now five years distant, when the eldest child was not even aged three years and the youngest child was barely 18 months of age. The eldest child told both the Family Consultant and single expert he has no independent memory of family violence and relies upon what he is told of it by the mother.[78] The youngest child told the single expert he had no “negative memories” of when he lived with the parties.[79]

   [76] Mother’s affidavit, par 34

   [77] Single expert report, pars 126, 138

   [78] Family Consultant’s affidavit 12/9/11, pars 37-38, 57; Single expert report, par 164

   [79] Single expert report, par 172

5. Surprisingly, even the mother admitted the children have told her they have no recollection of past family violence,[80] which makes her position on the issue quite impossible to understand.

   [80] Family Consultant’s affidavit 12/9/11, par 27

6. The mother alleged in cross-examination the children have told her they are scared to see the father and become upset at the prospect. The mother disavowed the children may express apprehension, or even fear, of the father because of their perception of her negative sentiments about him. If the mother’s evidence was honest it demonstrates remarkable lack of insight. Of course, if her evidence was untruthful it is a poor reflection upon both her parenting capacity and trustworthiness.

7. The single expert’s opinion that the mother is “unlikely to voluntarily facilitate an ongoing relationship between the children and the father” must surely be correct.[81]

   [81] Single expert report, pars 141, 216(c)(III)

8. Conversely, I am satisfied the father is both willing and able to facilitate and encourage close and continuing relationships between the children and the mother. It was not contended otherwise.

Section 60CC(3)(d)

1. The children are resilient and have coped well, in the opinion of the single expert.[82]

   [82] Single expert report, par 214

2. Given that the orders are made on an interim basis and supervision will remain in place for several more months there will likely be no adverse effects upon the children. It is improbable the incremental expansion of the time the children spend with the father, and the delayed dispensation of supervision, will have deleterious repercussions for them. I conclude they will adjust satisfactorily.

Section 60CC(3)(e)

1. There will be no practical difficulty or expense incurred by implementation of the orders.

2. Supervised time between the children and father at the Central Coast contact centre each fortnight has already proven to work. The mother and children are able to travel to and from the centre easily by train, as is the father. The father bears the expense of the supervised visits.

3. When supervision is dispensed with the children will be exchanged between the parties at Suburb D railway station. That venue is chosen for two reasons. Firstly, it is a public venue and so the mother’s apprehension about being near the father will be alleviated. There will be plenty of public assistance if she feels the need to call upon it. Secondly, that station is a main station through which she presently passes when travelling between her home and the Central Coast contact centre. It is therefore convenient for her and reasonably convenient for the father.

Section 60CC(3)(f)

1. The parenting capacity of both parties is impaired to some degree.

2. The father acknowledged the testing conducted by the single expert demonstrated he had impaired cognitive function, but he did not concede there was any causal nexus between the cognitive impairment and his ability to care for the children. The single expert’s opinion directly conflicts with his.[83]

   [83] Single expert report, pars 75, 84

3. The single expert identified the father had no “entrenched mental health concerns” but did have some “dysfunctional personality traits”.[84] Nevertheless, the single expert did not say such personality traits impaired the father’s parenting capacity in any material way.

   [84] Single expert report, par 46

4. The concern identified by the single expert about the father’s parenting capacity was his apparent inability to identify any specific “physical, cognitive, socio-emotional or developmental needs” of the children and his “poor reflective capacity and unrealistic expectations and goals”.[85] The single expert considered that despite his good intentions the father “would be unlikely to be able to provide adequately for their needs”[86] and “he is not capable of independent parental responsibility”.[87]

   [85] Single expert report, pars 55-56, 60

   [86] Single expert report, par 60

   [87] Single expert report, par 216(c)(II)

5. Those observations were apparently offered by the single expert in the context of the father’s proposal that the children live with him instead of the mother. I did not impute such opinions were intended as a reflection upon the father’s capacity to care for the children for periods of short duration. If that was the intention of the single expert then her report failed to explain, either adequately or at all, the nexus between the father’s perceived shortcomings and the children’s safety with him for short periods.

6. The father does have sufficient insight to make concessions when they are justified, which itself reflects favourably upon his capacity to meet the children’s emotional needs. He said both to the Family Consultant[88] and in cross-examination the mother had been a “good mum” to the children. He also told the single expert the children seemed “happy and well-cared for” as a result of the mother’s parenting.[89]

   [88] Family Consultant’s affidavit 10/1/11, page 7

   [89] Single expert report, par 58

7. The single expert also commented upon the mother’s parenting capacity, finding her egocentric and unable to separate her own feelings about the father from the children’s needs.[90] That opinion was borne out by the mother’s evidence when she expressed absolute disinterest in any attempt to salvage a working parental relationship with the father. She said she desired no communication with him, wished no co-operative parenting with him, and did not wish to participate in any post-separation parenting program. Self-evidently, such an attitude betrays a lack of capacity to meet the children’s emotional needs.

   [90] Single expert report, pars 131, 141

Section 60CC(3)(g)

1. The father alleged prior drug use by the mother,[91] but the purpose of such evidence being adduced was not apparent. The mother was not cross-examined about the evidence and ultimately the father acknowledged the children should remain living with the mother, so he implicitly accepted any past illicit drug use by the mother does not now compromise her parenting capacity. For her part, the mother denied any drug use, but for some brief experimentation with cannabis when she was much younger.[92]

   [91] Father’s affidavit, par 9

   [92] Single expert report, pars 102-105

2. The mother failed to comply with requests made by the Independent Children’s Lawyer to submit to urinalysis, which she explained was due to the unaffordable cost of each test.[93] I am not satisfied that was a sufficient explanation for non-compliance with Court orders, particularly ones made with her consent. However, equally, I am not satisfied the mother declined to submit to urinalysis because she feared the test results would be positive. Rather, it is more likely she ignored the Independent Children’s Lawyer’s requests because of inconvenience. I accept the single expert’s opinion that the mother is egocentric and unlikely to be compliant if she deems it inconvenient.[94]

   [93] Single expert report, par 106

   [94] Single expert report, pars 131-132

3. As has already been explained, I accept the father’s evidence of abstinence from use of alcohol and illicit drugs for some years.

4. Otherwise, there was no aspect of the parties’ maturity, sex, lifestyle or background submitted to be relevant to the outcome of the proceedings.

Sections 60CC(3)(h), (6)

1. Neither party identifies themselves or the children as Indigenous Australian.

Sections 60CC(3)(i), (4)

1. In January 2011 the father intimated to the Family Consultant his openness to resumption of a romantic relationship with the mother,[95] but denied in cross-examination he now entertained any such notion. He credibly denied he was pursuing relationships with the children in order to re-assert control over the mother. The mother said in cross-examination that could “possibly” be a motive of the father, but she did not embrace it as a probability.

   [95] Family Consultant’s affidavit 10/1/11, page 5

2. If that was the father’s real motive then it would reveal a poor attitude to the children and responsibilities of parenthood. However, I accept the father’s evidence of genuine concern about the children and disinterest in the mother.

3. The mother was unable to conceive why the father may wish the children to spend regular time with him, but she was certain it was not because he wanted to pursue “father/son relationships” with them. Her evidence was consistent with what she had told the single expert.[96]

   [96] Single expert report, par 130

4. The mother demonstrated a deficient attitude to the responsibilities of parenthood in numerous ways. They included her opinion about the desirability of severance of the children’s relationships with the father and her dismal record of compliance with Court orders.

1. The mother believed the children should have nothing to do with the father until they were old enough to make their own decisions about having relationships with him. The mother said to the Family Consultant,[97] single expert[98] and in evidence she considered the children would be 16 years of age before they have the maturity to make such a decision, which is eight years hence for the eldest child and nearly ten years hence for the youngest child. Astonishingly, the mother denied that after the elapse of such time the father would be a stranger to the children in the absence of any intervening interaction. Obviously he would be and efforts must be made to avoid that outcome.

   [97] Family Consultant’s affidavit 10/1/11, page 7

   [98] Single expert report, par 138

2. The mother’s historical contravention of Court orders is protracted and incapable of satisfactory explanation. A summary will suffice to illustrate the point.

3. The mother first participated in the proceedings on 1 October 2010. She was ordered to confer with the Family Consultant[99] but then failed to attend upon the Family Consultant on 22 October 2010.[100]

   [99] Order 5

   [100] Family Consultant’s affidavit 25/10/10; Notation b made on 27 October 2010

4. The mother appeared before the registrar on 27 October 2010. She was ordered to file and serve her Response within two weeks,[101] but failed to do so.[102] She also later failed to file and serve her Amended Response.[103]

   [101] Order 2

   [102] Order 3 made on 13 December 2010

   [103] Notation B made on 7 December 2011

5. The mother failed to take the children to the consultations arranged consecutively by the Family Consultant on 13, 14 and 22 December 2010 and then informed the Family Consultant she would not guarantee the children’s attendance at any time before the next Court date in late January 2011, when the matter was listed for interim hearing. The mother did not take the children to the re-scheduled appointment on 6 January 2011.[104]

   [104] Family Consultant’s affidavit 10/1/11, pages 2-3

6. On 25 January 2011 the Court made interim orders, in the presence of the mother who was legally represented, for the children to spend one hour each week with the father, supervised at a contact centre.[105] That order was consistent with the recommendation of the Family Consultant.[106] The mother failed to register at the contact centre and so the orders could not be implemented.

   [105] Orders 2-3

   [106] Family Consultant’s affidavit 10/1/11, page 9

7. The contact centre venue was later changed by orders made on 28 April 2011,[107] but she still did not register with that contact centre. The mother informed the Court she did so in September 2011[108] but that was not correct and another order was made on 6 February 2012 compelling her to do so.[109]

   [107] Order 2

   [108] Notation C made on 7 December 2011

   [109] Order 2

8. The parties were also ordered on 25 January 2011, in accordance with their consent, to submit to urinalysis at the random written request of the Independent Children’s Lawyer.[110] It is common ground the mother failed to comply with written requests of the Independent Children’s Lawyer on numerous occasions.[111]

   [110] Order 5

   [111] Notation Bb made on 12 September 2011; Notation E made on 7 December 2011

9. In addition, the parties were ordered on 25 January 2011 to attend with the children upon the Family Consultant to enable the preparation of a Family Report[112] and also upon the single expert to enable preparation of the single expert’s report.[113]

   [112] Orders 10-11

   [113] Orders 12, 17

10. The mother and children failed to attend the scheduled appointments with the Family Consultant in March 2011.[114] Fresh appointments were made for August 2011,[115] but the mother and children also failed to attend that appointment because of the mother’s recuperation from surgery.[116] The mother and children finally attended upon the Family Consultant in September 2011 following another ordering compelling it,[117] even though the mother still tried to avoid the appointment by reliance upon medical certificates.[118]

    [114] Family Consultant’s affidavit 31/3/11, page 1, pars 30-31

    [115] Notation B made on 28 April 2011

    [116] Family Consultant’s affidavit 12/9/11, page 2

    [117] Orders 1-2 made on 18 August 2011

    [118] Family Consultant’s affidavit 12/9/11, pages 2-4

11. The mother and children also failed to attend the initial appointment with the single expert in November 2011. For that reason, at the request of the Independent Children’s Lawyer, an order was made permitting evidence to be adduced about that failure.[119] The mother failed to attend a second appointment in January 2011[120] and so an order was made compelling the mother’s attendance with the children upon the single expert at a third appointment at a particular address, specifying the date and time.[121]

    [119] Order 8 and Notation F made on 7 December 2011

    [120] Single expert report, par 3

    [121] Order 1 made on 6 February 2012

12. The mother also thwarted efforts by the Independent Children’s Lawyer to confer with the children.[122]

    [122] Notation B(a) made on 12 September 2011

13. The persistent unco-operative attitude of the mother raised an issue about her psychological stability. Although both the Family Consultant and the NSW Department of Family and Community Services have entertained concerns about the mother’s mental health and parenting capacity,[123] the single expert said of the mother “there is no specific evidence of mental health problems in this case”,[124] and further, she “seems not to have any serious psychological problems”.[125] Nor does the mother believe she has any mental ill-health.[126]

    [123] Family Consultant’s affidavit 31/3/11, pars 34-35, 38

    [124] Single expert report, par 114

    [125] Single expert report, par 155

    [126] Family Consultant’s affidavit 12/9/11, par 28

14. If the mother truly is psychologically stable then her recalcitrance has been egregious, demonstrating an impaired attitude to the children and the responsibilities of parenthood.

Section 60CC(3)(j)

1. The issue of family violence has already been satisfactorily addressed under s 60CC(2)(b) of the Act.

Section 60CC(3)(k)

1. The former family violence order made against the father for the protection of the mother expired in May 2009.[127]

   [127] Mother’s affidavit, par 29; Family Consultant’s affidavit 31/3/11, par 5

2. There are no relevant family violence orders currently in existence.

Section 60CC(3)(l)

1. Having regard to the mother’s past non-compliance with orders, making final parenting orders would likely result in further proceedings anyway, so nothing is lost by making only interim orders.

2. Whilst ever the mother is aware her compliance with Court orders is on trial, with the prospect of their revision if she is unco-operative, it is more likely the orders will be successfully implemented.

Section 60CC(3)(m)

1. There is an issue about the children’s surnames that needs to be resolved, but since the trial was truncated, only interim orders are now made, and no submissions were made with respect to the issue, its resolution is best left until resumption of the trial.

2. The children are known by the surname “Tellam” by both Medicare and Centrelink, but their surname is disclosed as “Mariani-Izic” on their birth certificates[128] and their school enrolment forms.

   [128] Family Consultant’s affidavit 12/9/11, pars 44-45

3. The reason for the difference is that the mother registered, or perhaps re-registered, the children’s births after the parties had separated and the father was in prison. At that time she registered the children with her surname and without disclosing their paternity. Their birth certificates disclose that they were formerly known by the surname “Tellam”.[129] The children are known by the father’s surname by government departments because, upon birth, the father’s surname was endorsed upon their “Blue Books”.

   [129] Exhibit F4

4. The father believes the name change occurred so the mother could obstruct his interaction with the children.[130] That could be so, but presently it is unnecessary to decide.

   [130] Family Consultant’s affidavit 31/3/11, par 29

Conclusion and orders

1. Once the trial was transformed into an interim hearing the issue of parental responsibility was ignored by the parties and the Independent Children’s Lawyer as their concentration was focussed upon the proposed short-term interaction between the children and the father. Nevertheless, the allocation of parental responsibility is the first issue which must be considered whenever the Court is enjoined to make parenting orders.

2. The presumption of equal shared parental responsibility does not apply because of the finding of past family violence. Even if the presumption applied it would be rebutted in the children’s best interests. The parties are unlikely to constructively discuss and reach considered decisions about matters of long-term importance to the children. The mother has, for all practical purposes, made unilateral decisions in the exercise of parental responsibility since the time of the parties’ separation. There is no reason why that situation should be changed, at least for the moment, particularly when it is common ground the children will presently continue living with her.

3. The pivotal questions at this stage are whether, and under what circumstances, the children should spend time with the father.

4. At no stage in her consultations with the single expert or Family Consultant, or in her evidence, was the mother specific about why it was disadvantageous for the children to spend time with the father. Generic reference was made by her to their past exposure to domestic violence, the children’s alleged fear of the father, and the necessity to travel distance to see the father,[131] but none of those reasons are compelling, either individually or in aggregation.

   [131] Single expert report, pars 126, 138, 143

5. Plainly, the mother is against the children having any relationship with the father, which objective she believed would be served by them not spending any time with him. Her opinion about that outcome is repugnant to the views held by the father, Independent Children’s Lawyer, Family Consultant and single expert.

6. I am satisfied the children’s best interests are served by them spending time with the father. They will benefit from relationships with him and the evidence does not justify any conclusion that such benefit is outweighed by any risk to their physical or emotional safety.

7. The Family Consultant opined the re-establishment of the relationships between the children and the father would need to be “sensitively considered” in view of the children’s awareness of the mother’s opposition to such an outcome.[132] It was implicit the Family Consultant considered the children should enjoy relationships with the father, but the manner of implementing that objective needed to be pondered carefully.

   [132] Family Consultant’s affidavit 12/9/11, pars 57, 60

8. The single expert also believed the children would benefit from relationships with the father, which needed to be nurtured in a “safe and secure environment”. The only caution offered by the single expert was that the children should not live with the father, nor spend overnight time with him.[133]

   [133] Single expert report, pars 215, 216(b)(IV), 216(b)(V), 216(c)(II)

9. There is an obvious danger the mother will deliberately disobey orders requiring her to ensure the children spend time with the father. The mother assured the Court at least twice during cross-examination that she would comply with the Court’s orders – even if they were not to her liking. Hopefully the mother can be taken at her word, but the evidence does not presently permit unconditional acceptance of her integrity.

10. The mother denied the single expert’s opinion about her wilful and deliberate contravention of past Court orders,[134] saying she had made real efforts to comply with orders, but then later inconsistently conceded her history of compliance with Court orders was “not good”. Although she finally made such a concession, it was both an understatement and offered grudgingly.

    [134] Single expert report, pars 141, 157

11. In addition, the mother told the single expert she would not force the children to continue attending visits to the father if she perceived signs of their distress or behavioural problems.[135] I accept the single expert’s opinion that the mother is unlikely to comply with orders she finds difficult, onerous or inconvenient.[136]

    [135] Single expert report, pars 89, 138, 140

    [136] Single expert’s report, pars 131-132, 140

12. The mother’s evidence caused such a sense of disquiet that the most desirable course was to make only interim orders to test the mother’s commitment to compliance. Naturally, the children’s best interests will always be paramount, but in the event of the mother’s deliberate and persistent contravention of the orders she would need to be prepared to confront the possibility of removal of the children from her care when the hearing of these proceedings is ultimately resumed (see Re David (1997) FLC 92-776 at 84,574 – 84,575).

13. The next issue to therefore be addressed is how the time to be spent by the children with the father can be implemented in order to best develop their relationships with him.

14. There was a slight change between the interim orders made in January and April 2011. Under the latter orders the children presently spend two hours per fortnight in lieu of one hour per week with the father at a contact centre, albeit that the orders were not actually implemented until March 2012.

15. The mother proposed that such supervision continue indefinitely, but the father and Independent Children’s Lawyer both proposed the ultimate dispensation of supervision, albeit at different times. The father conceded in cross-examination the temporary continuation of supervision of the time spent by the children with him was advisable.

16. It is therefore common ground that the children’s time with the father should be supervised for at least a further few months.

17. The single expert concluded the mother’s compliance with Court orders was more likely if the children spent time with the father under supervision at a local contact centre.[137] But the mother knows the waiting list at the Sydney contact centre nominated by the Court at first instance in January 2011 is too long.[138] That was the reason why the orders were changed in April 2011 to permit use of the Central Coast contact centre instead. The interim parenting orders are now operational at the Central Coast contact centre. To avoid further interruption which may be caused by switching to the Sydney contact centre it is expedient for the parties to continue using the Central Coast contact centre, which is already in use by the parties under the existing interim orders.

    [137] Single expert report, par 142

    [138] Single expert report, par 143

18. I am satisfied it is appropriate to dispense with supervision after a period of months, consistently with the submissions of the father and Independent Children’s Lawyer.

19. The Family Consultant agreed the supervision should remain in place for “some time”, but was otherwise unspecific.[139]

    [139] Family Consultant’s affidavit 12/9/11, par 62

20. The single expert recommended supervision at a contact centre for 12 months,[140] and then all going well, the children’s time with the father to thereafter be unsupervised.[141]

    [140] Single expert report, par 217.3

    [141] Single expert report, par 217.5

21. I do not accept the single expert’s opinion on that issue, which remains untested. The mother submitted the Court should accept and implement the single expert’s opinion, at least pending cross-examination of the single expert on the issue. I do not accept that submission.

22. The single expert offered no explanation as to why she selected 12 months as a trial period for supervision, which consequently appears entirely arbitrary. On the face of it, for example, periods of 6 or 18 months duration are just as feasible. The failure of the single expert to explain her selection of 12 months as the appropriate period of supervision impugns the reliability of her bare opinion. The Court is not bound to accept or reject the whole or any part of the evidence of a Family Consultant (see U v U (2002) 211 CLR 238 at 261). The same is true in respect of the evidence of a single expert. The Court is always at liberty to accept all, some or none of the evidence given by a witness (see McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9).

23. By the time these reasons are published the children should have already spent time with the father under supervised conditions at the contact centre on several occasions over a period of about two months. The orders therefore provide for continuation of the supervision for a further four months. That will ensure supervision over a total period of about six months, together with several more months of unsupervised time before the matter is brought back before the Court for further review.

24. By the time of the next Court event in April 2013 an update Family Report will be available from the Family Consultant. It is superfluous to also order an update of the single expert report, given the circumstances addressed earlier in these reasons.

25. If the matter remains contested when the proceedings are next back before the Court in April 2013, the proceedings will then be listed for further trial with a view to making final parenting orders.

26. The orders require the parties to exchange telephone numbers and keep one another informed of any change to their telephone numbers. The mother agreed to such an order in the event of the Court ordering the children spend time with the father. She recognised the desirability of the parties being able to contact each other in the event of emergency.

27. The mother was against the father being permitted to attend the children’s school or extra-curricular activities, such as sporting fixtures. Her reasoning was that the children would be distressed. She did not contend she would be distressed. I do not accept the children will be distressed, but equally, there is no evidence the children’s best interests are likely to be promoted by any order permitting the father to attend such events whilst the interim orders are in operation.

28. The parties are both ordered to attend and complete a post-separation parenting program, consistently with the general recommendations of the Family Consultant and single expert.[142] Although the mother was disinterested in such a program, any attempt to improve the parties’ co-operation could not draw reasonable criticism.

    [142] Family Consultant’s affidavit 12/9/11, par 65; Single expert report, pars 217.8, 217.9

29. The Family Consultant and single expert both recommended the mother participate in counselling if orders are made for the children to spend time with the father.[143] No such order is made. The mother will already be required to undertake a post-separation parenting program and if she is unmotivated to seek out counselling it is unlikely to be of benefit to her. Doing so under compulsion of a Court order will more likely stimulate her resentment.

    [143] Family Consultant’s affidavit 12/9/11, par 66; Single expert report, par 217.10

30. The orders precluding the mother from obtaining passports for the children and prohibiting the removal of the children from Australia are simply a continuation of the orders formerly made on 28 April 2011.

31. An order is made permitting the matter to be re-listed on seven days notice in the event of alleged contravention of the interim orders.

I certify that the preceding one hundred and eighty eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 May 2012.

Associate: 

Date:  9 May 2012

     Family Consultant’s affidavit 12/9/11, pars 55-56