Tuck and Tuck

[2016] FamCA 520

FAMILY COURT OF AUSTRALIA

TUCK & TUCK [2016] FamCA 520

FAMILY LAW – CHILDREN – Parenting Orders – Undefended hearing – Whether the father poses a risk of family violence – where orders for parties to agree time father spends with children likely to lead to no time – father’s time with children reserved

Family Law Act 1975 (Cth) ss 4, 4AB(1), 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAC
Evidence Act 1995 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
K v R (1977) 22 FamLR 592
Mauldera & Orbel (2014) FLC 93-602
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re W (sex abuse - standard of proof) [2004] FamCA 786
S v Australian Crime Commission (2005) 144 FCR 341
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Mr Tuck

RESPONDENT: Ms Tuck

INDEPENDENT CHILDREN’S LAWYER: Ms Meade

FILE NUMBER: TVC 786 of 2015

DATE DELIVERED: 29 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 16 June 2016

REPRESENTATION

THE APPLICANT: No formal appearance

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Ms Keegan

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Legal Aid Queensland

Orders

1. All previous parenting orders and parenting plans be discharged.

2. The mother have sole parental responsibility for the major long term issues of B born … 2001 and C born … 2004 (“the children”).

3. The children live with the mother.

4. The parents shall only communicate with each other via email and to this end, shall keep each other informed of any change to their email address.

5. The mother shall keep the father informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the father with information that they are lawfully able to provide about the children and this order shall serve as such authority.

6. The mother shall keep the father informed of any school, educational facility or extracurricular activity provider and authorise those providers to provide the father with information that they are lawfully able to provide about the children and the option to purchase school photographs and this order shall serve as such authority.

7. In the case of a medical emergency regarding the children, the parent who has the children in their care at that time is to immediately advise the other parent of the emergency via text message.

8. The father have liberty to apply upon 21 days’ notice in relation to the time which the children spend with him.

9. The children are at liberty to telephone, email or text the father at all reasonable times noting that each child has their own mobile telephone and the father has access to these telephone numbers.  The mother shall inform the father if the children change their mobile telephone number within 48 hours of any change to same.

10. The parents are restrained from and an injunction issue restraining the parents from:

    (a)denigrating the other parent, the other parent’s partner and/or the other parent’s family members while in the presence of hearing of the children and they shall remove the children from the presence or hearing range of any third party who is doing so;

    (b)discussing these proceedings within the hearing of presence of the children and they shall remove the children from the presence or hearing range of any third party who is doing so;

    (c)discussing any adult issues or adult matters within the hearing or presence of the children and they shall remove the children from the presence or hearing range of any third party who is doing so. 

11. Leave be provided for the Independent Children's Lawyer to provide to the children’s treating psychologist, from time to time, the following documents:

    (a)the Family Report by Ms D;

    (b)the psychiatric assessment of Dr E;

    (c)the reasons for judgment by Judge Coker dated 7 October 2015 and 10 March 2016;

    (d)a copy of these orders and reasons for judgment given by Justice Tree.

12. The mother continue to access counselling and/or therapeutic services from her consultant psychologist and/or psychiatrist and shall follow their recommendations.

13. The parties provide a copy of the report of Dr E to their treating psychiatric or psychological professionals.

14. The Independent Children's Lawyer continues to work with the parties for a period of 18 months in order to monitor these orders and at the expiration of that time, the Independent Children's Lawyer be forthwith discharged, unless court proceedings have been initiated during this 18 month period of time and the court formally re-appoints the Independent Children's Lawyer.

15. The Independent Children's Lawyer is to advise the children of these orders.

16. Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.    

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC786/2015

Mr Tuck

Applicant

And

Ms Tuck

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings were commenced by Mr Tuck (“the father”) by Initiating Application filed 4 August 2015.  Ms Tuck (“the mother”) is the respondent, and the proceedings relate to the parties’ two children, B, born in 2001 and hence presently 14 years of age, and C, born in 2004 and hence presently 11 years of age (“the children”).

2. During the course of the proceedings, the father chose to disengage from them for reasons which I will explain in due course.  However his disengagement was not complete: he attended the undefended hearing from which this judgment arises, and even, at my invitation on that occasion, made some submissions.

3. The Independent Children's Lawyer and the mother were substantially agreed as to the orders which should be made.  They were that the mother should have sole parental responsibility for the children, who should live with her and spend time with the father as may be agreed in writing between the parents.  However the difficulty with those orders is that it is nigh inevitable that the result of them will be that for the foreseeable future the children will neither spend time nor communicate with their father, a situation which is manifestly not in their best interests. 

4. Notwithstanding me pointing that out to the father in somewhat forceful terms, he maintained his disengagement from the proceedings, and identified that he did not seek any orders which would permit the children to spend time or communicate with him under any circumstances.  Moreover, he made it plain that even if orders were made which permitted him to spend time or communicate with the children, he would not avail himself of them, because he was opposed to his relationship with the children being regulated by the court.

5. This case is therefore an unfortunate one: the orders which the Independent Children's Lawyer and mother urge me to make, insofar as they are unlikely to see the children maintain a relationship with their father, are demonstrably not in their best interests, and yet because of the father’s disengagement from the proceedings, and his avowed intentions, fashioning orders which would be in their best interests is essentially a waste of time.  I will discuss the options during the course of these reasons.

BACKGROUND FACTS

1. The father was born in 1973 and hence is 43 years of age.  The mother was born later in 1973 and hence is presently 42 years of age.  The parties commenced their relationship in 1990 when the father was aged 17 and the mother 16.  The mother says that very early in the relationship she was sexually assaulted by the father, and that this was the commencement of domestic violence which she says was a constant feature of their relationship over the years.  For his part the father denies any domestic violence, although of course his disengagement meant that the veracity of the mother’s allegations, and his denials, could not be determined.

2. It is plain that in the first year of their relationship, the father made a serious effort at suicide, which resulted in him being hospitalised in an intensive care unit.  The father identified to Dr E, a consultant psychiatrist who examined him for the purposes of these proceedings, that at the time he was disappointed by his failure to enter university, was abusing alcohol and had generally lost direction in life.

3. In 1994, when the parties had been in a relationship for about four years, the father’s older brother committed suicide.  This greatly affected both parties.  Also in that year the mother completed her Bachelor degree, and in the following year commenced employment in F Town.  The parties lived in F Town for five years and then returned to G Town in 2000.

4. Whilst they were living in G Town, both of the children were born and commenced school.

5. It appears as though the parties had a brief separation in 2012 which resulted in them reconciling, but only after a “no violence” agreement had been signed by both of them.  They continued to cohabit, although the mother had some periods when she was away from G Town working in Brisbane, during which the father had the sole care of the children.  During one of those absences, on 4 June 2015 there was an incident between the father and C in relation to her iPad.  Precisely what the incident comprised is unclear, however whatever occurred, it resulted in C making a complaint to her school, the principal of which recommended that C needed a safe place away from her father to stay that night.  C in fact went to stay at the father’s parents’ home.

6. Notwithstanding the mother being told of this incident, she remained in Brisbane and did not return to G Town until 8 June.  The following day she moved out of the former matrimonial home and says that this was the date of final separation.  It follows that the parties were in a relationship for 25 years.

7. Immediately after separation the children remained living with the mother, but spent time with the father.  However on 11 July 2015, without any warning to the father or the children, the mother left G Town with the children and moved to Brisbane.  She has remained living there with the children, and was doing so at the time of the hearing before me.

8. On 4 August 2015 the father commenced these proceedings, in which he sought a recovery order for the children, together with interim parenting orders seeking equal shared parental responsibility and equal shared care for the children in G Town.

9. That interim application was determined against the father on 7 October 2015 by Judge Coker.  However his Honour did make orders permitting a regime which saw the children spending time and communicating with the father.  Until recently, the father has availed himself of those orders, which saw him spend time with the children both in G Town and Brisbane, although he says that the mother has actively sought to arrange the children’s lives so that it is inconvenient for them to in fact spend time or communicate with him.

10. The parties and children were interviewed by Ms D, whose Family Report was filed under cover of an affidavit of 18 March 2016.  By then, the parties had also been psychiatrically assessed by Dr E.  Whilst Ms D was, understandably, not able to conclude which of the parties’ versions in relation to domestic violence was accurate, she did correctly observe that, given the mother’s qualifications and long professional experience, it was noteworthy that she remained in a domestically violent relationship for some 25 years.  For her part, the mother says that she did so because she did not recognise that it was domestically violent, but rather thought that it was the product of the father’s alleged psychiatric illness, which she therefore accommodated.

11. It is plain from a reading of the Family Report that both of these children are suffering considerably from the conflict between their parents.  However it is C who Ms D opined was “at a high risk of future harm by her exposure to the parental conflict and becoming emotionally overwhelmed.”  Further, she opined that “C is most at risk of developing future mental health problems, addictions and chronic adjustment problems.”  Whilst B is also at some risk, she assessed it as much lower in magnitude.

12. I should say that at the time of the Family Report, the father was still engaged in the proceedings, and Ms D’s recommendations were not given in the context of the situation that prevailed before me.  Moreover, whilst cognisant of the conflict between the parties’ conflicting versions as to the father’s alleged domestic violence, she certainly did not recommend, even if the father had been violent as alleged by the mother, that the children’s relationship with the father should wholly cease.  Indeed in the event that the court was not persuaded as to the veracity of the mother’s assertions, she recommended ongoing unsupervised time between the children and the father.

13. To Ms D, both children expressed strong desires to continue regularly spending time and communicating with the father.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence.  Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.   

The standard of satisfaction required

1. S 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the  parties’ allegations, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

SECTION 60CC CONSIDERATIONS

Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. Leaving aside for one moment the question of the father’s domestic violence which I will shortly address separately, there is no doubt that the children would benefit from having a meaningful relationship with both of their parents.  Indeed even if the father had been domestically violent as alleged, Ms D did not opine that the children would not still benefit from having a meaningful relationship with the father, but rather that their experience of it would need to be strictly supervised, so as to ensure their safety.

Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. This was the nub of the litigation when the father was engaged.  The mother says that she and the children have endured many years of violence at the father’s hand, principally comprising controlling and coercive behaviours, but also extending to violence and threats of violence against both himself and the mother and children on occasion. 

2. For his part, when engaged in the proceedings, the father asserted that the mother was actively attempting to alienate the children from him.  Certainly in the Family Report the children told Ms D that although they had no recollection of the father’s alleged violence, the mother had nonetheless told them about it.  For instance in paragraph 71 of that report Ms D notes “In Brisbane, C was still unhappy, however now her mother had told her more information about the violence. “She said she was scared he’ll hurt her.  She said he once threatened to kill her.  I didn’t know that and she was very upset.””

3. Although she did not seek to cross-examine Ms D, in her submissions before me, the mother told me that she disagreed that she had done anything like that to C, or that she had in any respects sought to alienate the children from the father.  Indeed she went so far as to say that she was actively facilitating a relationship between them and him, although I would have to say that her conduct in leaving G Town without any warning to the children or the father would tend to undermine the likelihood of that assertion being true.

Section 60CC(3)(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

1. Both children have expressed the desire to maintain a relationship with the father comprising regular communication and face-to-face time.  Given their age, those wishes deserve weight.   

Section60CC(3)(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)  

1. In the Family Report interviews the children identified that they recognised that the father can on occasions be angry with them, for instance if he perceives that they are not preparing quickly enough to go to school, but nonetheless whilst acknowledging that, also strongly indicated a desire to maintain a relationship with him.

2. It appears as though the children also have good relationships with the paternal grandparents, but the material did not descend into any great detail in relation to that.    

Section 60CC(3)(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

1. Although up until recently the father has been fully engaged in making decisions about the children, and spending time and communicating with them, he no longer intends to seek orders permitting him to do so.  That is not to say that he does not anticipate that in fact the children may wish to continue to spend time and communicate with him, and perhaps even anticipates that the children may be so distressed by not seeing him that they will vote with their feet and leave the mother and go to live with him.  However at least according to his statements to me at the hearing, he does not wish to have the benefit of orders permitting that.

Section 60CC(3)(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

1. There is no suggestion that either parent has not attended to their duty to maintain the children.

Section 60CC(3)(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

1. It is inevitable that the children will grieve for their father if they do not see him or communicate with him for a lengthy period.  It cannot be said that the father is unaware of this, however for reasons which he set out in a long email which formed part of exhibit 1 before me, he does not believe that the family law system will adequately support him to maintain a relationship with the children.  Moreover, he expressed frustration and exhaustion at having to deal with the mother’s allegedly untrue allegations against him.

2. In part his response might be explicable by reference to the diagnosis of depression which Dr E made in relation to the father.

Section 60CC(3)(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

1. By virtue of having removed herself to Brisbane with the children, inevitably there are considerable expenses associated with the father spending time with the children, and practical restrictions on the amount of time he can spend.

Section 60CC(3)(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

1. Both parents have problems in their capacity for providing for the needs of the children.  However because the father does not seek any orders which would in fact see him care for the children, it is unnecessary to discuss them further.

Section 60CC(3)(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

1. This is not a significant matter in this case.

Section 60CC(3)(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

1. The children are not aboriginal.

Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. This has been sufficiently addressed earlier.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. The mother asserts a long history by the father of threats, intimidation, controlling behaviours and the like.  Further I note that in 2012 the parties both agreed not to behave in a violent way towards each other, and post-separation there have been domestic violence orders in the mother’s favour.

Section 60CC(3)(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

1. The family violence order was made without admission by the father.  In those circumstances there is nothing I can infer from that.

Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Whilst it would be preferable to make an order that concluded the prospects of further litigation between the parties, that consideration can outweigh the children’s best interests.

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant

1. The father has disengaged as discussed above.

PARENTAL RESPONSIBILITY

1. The father expressly eschews any desire for an order for parental responsibility in his favour, whether sole or shared.  Therefore the only practical candidate for parental responsibility is the mother, notwithstanding the concerns that I have that she will use that to further restrict the children’s relationship with the father.  In those circumstances I have some considerable reservations about whether or not such an order is indeed in the children’s best interests, but there is no practical option other than making no order, which would be unworkable.

TIME AND COMMUNICATION WITH FATHER

1. Again the father expressly disavows any desire for orders facilitating, or even permitting, the children to spend time or communicate with him.  In those circumstances, the court’s response is a difficult one.  Both children wish to maintain a relationship with him, and whilst the father apparently wishes that to occur, does not feel as though he will be adequately listened to in these proceedings, were they to have continued to a contested trial, or that his time with the children should be regulated by orders in any event.

2. Although initially the Independent Children's Lawyer proposed an order that “the children spend time with the father at all times as may be agreed to in writing between the parents” and giving the children liberty to telephone, email or text the father at all reasonable times, during the course of submissions, she accepted that a preferable alternative in relation to the father’s time with the children was that is simply be reserved.  In part her initial position was because of the proposed order 13 which the Independent Children's Lawyer had sought, which was in the following terms:

   13. That the father be at liberty to re-apply to the court after June 2017, without the need to satisfy the court of the Rice & Asplund rule, for specific time arrangements with the children if the following is provided:

   (a)      the father engages with a treating psychiatrist;

   (b)the father obtains a psychiatric report addressing his improved mental health status, his parental capacity and his positive engagement in treatment;

   (c)the father provide a copy of this report to the Independent Children's Lawyer and the mother.

3. The Independent Children's Lawyer also contemplated that she would maintain engagement with the parties for 18 months before being discharged.  In a sense therefore she was anticipating that the father would seek to re-engage in the proceedings, or at least she would likely agitate to have him do so.

4. During submissions I expressed some doubt that a single judge can circumvent the operation of Full Court decisions by crafting orders which say that if certain things occur, otherwise binding authority will not apply.  However in the unusual circumstances of this case, if the father were to wish to litigate again in the future, I am well satisfied that he should be able to do so, because subject to the question of domestic violence, the children’s right to maintain a relationship with their father, as they plainly and strongly wish to do, should not be thwarted by his failure to remain engaged in this litigation.

5. Therefore I am not persuaded that there should be an embargo on the father commencing proceedings until July 2017, but rather there should be no barrier to him doing so should he change his mind.

6. In so concluding I do not ignore the desirability that this litigation should finally conclude, but that cannot outweigh the desirability of these children maintaining a relationship of substance with their father through their adolescent years.

7. I am satisfied that the best interests of these children are to give the father liberty to apply in relation to his time with the children, but to indeed leave the Independent Children's Lawyer in the proceedings for a further 18 months to facilitate the desirable eventuality that the father seeks to further re-engage.

8. As to communication, I am satisfied that the order proposed by the Independent Children's Lawyer that the children are at liberty to telephone, email or text the father is in their best interests, and should be made.

OTHER ORDERS

1. The Independent Children's Lawyer proposed a regime of uncontroversial orders requiring the mother to provide certain information to the father and for the provision of information to the parties’ various treaters.  I will make those orders as they are plainly in the best interests of the children.

2. For her part the mother sought two further orders which were opposed by the Independent Children's Lawyer.  The first was an injunction restraining the father from a variety of actions, including committing family violence, contacting or attempting to have someone contact the mother, eliciting information in relation to her whereabouts, attending the children’s school or approaching the mother.  The Independent Children's Lawyer opposed this order on the basis that domestic violence orders are already in place in the State Courts and to the extent that the mother seeks additional protections, she should do so by amendment to those orders.

3. I accept those submissions.  Moreover as I have indicated, notwithstanding the disengagement of the father from these proceedings, there are some valid concerns in relation to the mother’s assertions, not least of which is that the children have no recollection of any violence of the kind asserted by her, and that the allegations only surfaced at about the time that she unilaterally relocated from G Town to Brisbane.  Moreover, there is the curiosity that notwithstanding that her professional life has largely been spent dealing with victims of violence, including domestic violence, the mother did not contemporaneously identify violence during the course of her own 25 year long relationship.  Finally there is the further curiosity that although the mother was absent from G Town when the school principal recommended that C go to a safe place for the evening after iPad incident, she remained in Brisbane for another four days.  All of those are matters which it would be necessary for me to traverse in some detail before I was persuaded to make an order of the kind sought by the mother at paragraph 6 of her Amended Response file 13 June 2016.

4. The mother also sought, by paragraph 10 of that Amended Response, an order requiring the father to authorise Telstra to release to her a certain email address from his account.  In her affidavit the mother says that this is a mechanism by which the father is deliberately obtaining information in relation to her, including her whereabouts, because people still inadvertently send emails to that address.  The Independent Children's Lawyer submitted that I should not make such an order because I do not have that power to do so in children’s proceedings.  It is unnecessary for me to determine that point because even if I do have power, I am not persuaded that it would be an appropriate exercise to make the order in these circumstances, as the material falls far short from persuading me that the father is only maintaining that account to stalk the mother.

CONCLUSION

1. For these reasons there will be orders pronounced as set out at the commencement of this judgment.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 June 2016

Associate: 

Date: 29 June 2016