TURNBULL & MEAGHER

[2013] FamCA 184

FAMILY COURT OF AUSTRALIA

TURNBULL & MEAGHER [2013] FamCA 184

FAMILY LAW – CHILDREN – Children’s living arrangements – where the children live with the mother – where the children spend time and communicate with the father as determined by the mother as part of her sole parental responsibility for them – where the children have meaningful relationships with the mother – where it would benefit the children to have ongoing relationships with the father, but the father had prevented the children from pursuing relationships with him and withdrawn from the proceedings – where there was no current risk of harm to the children from exposure to abuse, family violence or neglect – where the mother had demonstrated improvement in her capacity to meet the children’s emotional and physical needs – where the mother suffered from an intellectual disability – where the father’s parenting capacity was impaired for several reasons, including his chronic health problems – where both parties’ past neglect of the children had caused them harm

FAMILY LAW – INJUNCTIONS – Where the parties are restrained from bringing the children into contact with the paternal grandmother and a maternal uncle – where the paternal grandmother had assaulted the mother and physically abused one of the children – where the maternal uncle had a history of child sexual abuse

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the mother is allocated sole parental responsibility – where it was not in the best interests of the children for the parties to have equal shared parental responsibility

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

Allesch v Maunz (2000) 203 CLR 172
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Rice v Asplund (1979) FLC 90-725
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Ms Turnbull

RESPONDENT: Mr Meagher

INDEPENDENT CHILDREN’S LAWYER: Mr Squires, Legal Aid NSW

FILE NUMBER: NCC 3178 of 2011

DATE DELIVERED: 26 March 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 19 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Murray

SOLICITOR FOR THE APPLICANT: The Family Law Firm

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms V Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Squires, Legal Aid NSW

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)B, born … October 2007;

   (b)C, born … October 2008;

   (c)D, born … January 2010; and

   (d)E, born … June 2011.

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

3. The children shall live with the mother.

4. The mother and father are restrained from causing or permitting the children to spend time or communicate with:

   (a)The paternal grandmother, Ms F; or

   (b)The maternal uncle, Mr G.

5. The mother and father are restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

6. The mother and father shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number and email address.

7. The Independent Children’s Lawyer shall forthwith provide to the Director-General of the NSW Department of Family and Community Services copies of:

   (a)The Family Report dated 20 September 2012;

   (b)These orders; and

   (c)The reasons delivered for these orders.

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

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

10. Any and all outstanding applications are dismissed.

Notations

(A)No orders are made relating to either the time the children should spend with the father or the nature of their communication with him, the arrangements for which shall be determined by the mother as an incident of her sole parental responsibility for the children.

(B)These orders are consistent with the terms of the apprehended violence order made against the father in favour of the mother by the Local Court of NSW at Belmont on 26 October 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turnbull & Meagher 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 3178 of 2011

Ms Turnbull

Applicant

And

Mr Meagher

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant mother had four children during her relationship with the respondent father. There is some residual doubt about the paternity of the youngest child, but to date, neither party has been interested in scientifically investigating her paternity. The parties historically regarded her as their child, but the father’s attitude towards her recently changed.

2. Unfortunately, the children’s physical, emotional and intellectual progress has been impeded since they have not met ordinary developmental milestones. No doubt the children, the eldest of whom is still only aged five years, presented a difficult parenting challenge to the parties, but that difficulty was only compounded by the individual problems faced by the parties.

3. The parties disagreed about the children’s residence and so these proceedings essentially entailed consideration as to which of them offered the children the best prospects of advancement. However, the father’s recent abandonment of the proceedings meant that their residence with the mother was the only viable option.

Background

1. The parties first met as teenagers in 2006. There is no evidence about the duration of their cohabitation, but they finally separated in November 2011. They were never married.

2. The parties’ separation occurred when the father and the paternal grandmother, who was then living with the family, took the children and departed the family home.

3. The mother applied for and was granted a recovery order shortly afterwards in December 2011. The children were then returned to the mother and they have lived continuously with her ever since.

4. Orders were also made at that point for the children to spend time with the father for four hours at a time on three separate days each week. Those orders were consensually adjusted several months later in April 2012, providing for the children to spend six hours at a time with the father on the same three separate days each week.

5. Notwithstanding those consent orders in April 2012, the children have spent little time with the father since then, although the parties’ explanations for that situation are incompatible. The father alleged the mother had not made the children available to him, but the mother alleged the father had failed to attend the changeover venue to collect them.[1]

   [1] Family Report, paras 11-12; Mother’s affidavit, paras 28-31, 41-42

6. The mother and children presently live in the southern suburbs of Newcastle and the father lives with the paternal grandmother in an inner suburb of Newcastle. Their homes are about 18 kilometres apart and the journey by car between them takes about 25 minutes.[2]

   [2] Family Report, para 8

7. Neither party is employed. The mother receives a disability pension due to her “intellectual difficulties” and the father receives a disability pension due to his “chronic medical condition”.[3]

   [3] Family Report, paras 9-10

Proposal and primary evidence of the mother

1. The mother abandoned the orders set out in her Initiating Application filed on 6  December 2011, and instead orally proposed that she have sole parental responsibility for the children and that they live with her.

2. The mother’s former proposal about the time spent by the children with the father was also jettisoned in light of his withdrawal from the proceedings. She instead proposed that no specific order be made about the time to be spent by the children with the father, nor in relation to their communication with him, with those decisions to be made by her as part of her sole parental responsibility for them.

3. In support of her proposal the mother relied upon her affidavit filed on 14 February 2013 and the affidavit of Ms J filed on 15 February 2013.

Absence of the father

1. The father remained engaged in the proceedings until only a few months ago.

2. He appeared at Court and was represented when the original interim parenting orders were made in December 2011, he filed a Response in February 2012, and he appeared at Court and was represented when orders were subsequently made in April 2012, June 2012, July 2012 and October 2012. He also attended upon the Family Consultant for consultation in September 2012. The father also appeared at Court, albeit unrepresented, when orders were made in December 2012 for the appointment of single expert witnesses.

3. Notwithstanding the father’s engagement in the proceedings until at least December 2012, the mother gave evidence at trial that he ceased involvement with both her and the children prior to that time. The mother said he had only made the effort to see the children, and not necessarily all together, on nine occasions after the interim parenting orders were made in April 2012 and has not seen or communicated with any of the children since November 2012.

4. The father knew the matter was fixed for trial on Tuesday 19 March 2013 because he was present in Court when the trial date was fixed in October 2012. Notwithstanding, he failed to file any affidavit material in readiness for the trial and failed to appear at the trial.

5. Recently, but on a date which remains unknown, a document was received by the Independent Children’s Lawyer which, although unsigned, purported to be prepared by the father. The document was tendered into evidence.[4] Relevantly, it provided:

   I [the father] would like to notify all parties concerned in the family law matter…That I will no longer be taking part in this court matter due to the inconsistency of the court orders put in place for visitation rights for me to see my children…I feel comfortable waiting upon a future time, where my children will need to be with their father on a full time basis through children’s services…Therefore I will not be attending any further hearing dates/ & times (sic).

   [4] Exhibit M2

6. I draw the obvious and most probable inference that the father decided to voluntarily withdraw from the proceedings and abstain from participating in the determination about the nature of the parenting orders that would serve the children’s best interests. The trial therefore proceeded in his absence.

7. Procedural fairness requires that parties should be afforded a reasonable opportunity to appear and present their case in the resolution of their disputes. However, the consequences of forsaking a given opportunity to do so fall upon the party who makes that decision. There is no miscarriage of justice by the Court’s continuation of a trial in the absence of further participation by a party who voluntarily chooses to disengage. The court is not required to indefinitely delay proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

8. The consequence of the father’s decision is that the mother’s evidence, unless inherently improbable, must be accepted as truthful and correct because it is unchallenged. The affidavit previously filed by the father in the proceedings was not read since he did not submit to cross-examination. Wherever there is discrepancy between the mother’s evidence and the father’s comments to the Family Consultant, the mother’s evidence is accepted in preference.

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer tendered a minute of the orders he proposed.[5] The Independent Children’s Lawyer agreed that the children should live with the mother and she should have sole parental responsibility for them.

   [5] Exhibit ICL1

2. Although the Independent Children’s Lawyer initially proposed an order providing for the children to spend time and communicate with the father “as agreed between the mother and father”,[6] that proposal was sensibly abandoned. These proceedings were instigated precisely because the parties could not agree on such details. Sending them away with orders of that sort would solve nothing and render the proceedings largely futile.

   [6] Exhibit ICL1, Order 3

3. The Independent Children’s Lawyer also proposed a number of injunctive orders,[7] to which the mother consented.

   [7] Exhibit ICL1, Order 4

4. The Independent Children’s Lawyer relied upon:

   a)The Family Report dated 20 September 2012; and

   b)The affidavit of Dr K sworn on 7 March 2013, to which the doctor’s single expert report was annexed.

5. Orders were also previously made for the preparation of a single expert report by Dr L concerning the father’s blood/immunology disorder,[8] but those orders were not fulfilled.

   [8] Order 3(a)(i) made on 6 July 2012; Order 3 made on 21 December 2012

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“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 in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied 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 presumption applies to the allocation of parental responsibility and not to 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 living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (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 child

Primary considerations (s 60CC(2))

1. The children all have close and secure attachments with the mother. That was not a controversial issue. It is important to make orders that preserve those relationships as the children will undoubtedly derive benefit from them.

2. However, the quality of the children’s relationships with the father is, to some extent, discrepant. The eldest child has a close bond with the father,[9] the second child also has a close bond with the father, although not as close as the bond she has with the mother,[10] the third child has an equal attachment to both parents,[11] and the youngest child is much less attached to the father.[12]

   [9] Family Report, paras 69, 88

   [10] Family Report, paras 75, 88

   [11] Family Report, paras 80, 87

   [12] Family Report, paras 84, 87-88, 94

3. Clearly, at least the three eldest children derive benefit from their relationships with the father, even though those relationships in some instances may not be as strong as the comparative relationships the children enjoy with the mother. The children would continue to derive benefit from their relationships with the father, provided he permitted the children to spend time and communicate with him, but he refuses to let them do so for reasons known only to him. The longer the father persists in his campaign of estrangement from the children the more tenuous the children’s relationships with him will become.

4. These proceedings do not involve allegations of family violence between the parties which prove the existence of an unacceptable risk of harm to the children, counteracting the benefit the children would derive through continued interaction with the father. Although the parties traded verbal abuse, the mother reported the father had not been physically violent to her or the children.[13]

   [13] Family Report, para 52

5. More recently, a family violence order was made against the father for the protection of the mother as a consequence of threatening text messages sent by him to her,[14] but it was not contended the existence of that order should preclude any interaction between the children and the father on account of their prospective exposure to family violence. Quite the contrary, the mother’s position was that the children should spend some time with the father if he would reliably show interest in allowing them to do so. She believes the children should have strong relationships with the father.[15]

   [14] Family Report, paras 5, 109; Mother’s affidavit, para 44

   [15] Mother’s affidavit, para 27

6. While both parties conceded the children were harmfully exposed to family violence between the father and other members of the maternal family when the family formerly lived as a unit with the maternal family over a period of years[16] that is not presently a salient consideration.

   [16] Family Report, paras 30-31, 50-51, 144

7. The children were grossly disadvantaged by their former neglect by the parties, the explanation for which lies in both parties’ impaired parenting capacity, which will be addressed under s 60CC(3) of the Act.

Additional considerations (s 60CC(3))

1. The parenting capacity of both parties was and remains compromised, albeit for different reasons and to different extents.

2. The parties were at least able to acknowledge to the Family Consultant that their sub-standard care of the children was lamentable. While living together, either individually or jointly, they expended their money on illicit drugs, cigarettes and alcohol, thereby depriving the household of other comestibles, and neglected the children badly.[17] As a consequence, the children failed to thrive in the parties’ joint care.

   [17] Family Report, paras 25, 153

1. Although the mother has effectively had sole care of the children for the past 15 months, the children’s uniform failure to meet milestones inferentially stems from their deficient care, nurture and stimulation over the years whilst the family was together. I agree with the Family Consultant’s assessment in that regard.[18]

   [18] Family Report, paras 144-145

2. None of the children currently present within normal developmental parameters.[19] The eldest child’s teeth are so rotten they are all shortly to be surgically removed. The second child also has tooth decay. None of the children are capable of age-appropriate speech. None of the children are capable of age-appropriate mathematical and spatial tasks. None of the children are appropriately socialised.[20]

   [19] Family Report, paras 63, 70, 77, 81

   [20] Family Report, paras 65-66, 70-71, 77, 96-97

3. The Family Consultant observed, and I accept:[21]

   It is of concern that the children have been so severely neglected for most of their young lives, leading to significant delays in their development and their general well-being being compromised. Whilst the mother has an intellectual delay and the father has serious issues with his health, this is in no way an excuse for the level of neglect that has taken place.

   [21] Family Report, para 143

4. The Family Consultant explained the adverse repercussions for the children of such neglect, which include long-term impingement of their emotional and intellectual development.[22]

   [22] Family Report, paras 151-152

5. The father’s personal problems were and remain of significant concern.

6. The father’s treating physician reported to his former lawyers some time ago that his medical condition did not preclude his adequate care for the children.[23] That opinion does not, however, coincide with the evidence of the single expert witness, in whose evidence I repose more weight.

   [23] Family Report, paras 33-34

7. Dr K reported that the father suffers from a respiratory condition known as “bronchiectasis”. Measurements of his lung capacity demonstrate that he has very severe impairment of lung function, so severe that he has a “very poor prognosis both in terms of morbidity and mortality in the short to medium term”.

8. The father’s medical condition is complicated and worsened by a variety of other factors, including his asthma, his smoking habit, his failure to diligently comply with therapy for his blood disorder, his use of illicit drugs, and his continued heavy use of alcohol.[24]

   [24] Affidavit of Dr K, Annexure B; Family Report, paras 30, 32, 33, 35, 38, 148-149;

9. Although the father’s health may not prevent him caring for the children for short periods in the short term, the severity of his condition and the prognosis of his morbidity and mortality in the “short to medium term” suggest he is unable to care for the children indefinitely on a full-time basis.

10. Apart from his physical limitations, the father demonstrates a lack of insight into the emotional needs of the children. The father has recently differentiated the youngest child from the other children, apparently on the basis of her doubtful paternity, which is concerning because if she is ostracised by the father the child is liable to lose self-esteem and her siblings may learn to treat her differently. Although the father previously told the Family Consultant he wanted all of the children to live with him,[25] more recently he told the mother he would not allow the youngest child to spend time with him when the other children did.[26] Sensibly, the mother wants all the children treated equally.

    [25] Family Report, para 16

    [26] Mother’s affidavit, paras 31-32, 38

11. Even more recently, the father has chosen to disengage from the children altogether without satisfactory explanation. If the existing family violence order made against the father on 26 October 2012 is the reason for the father’s attitude,[27] then he is mistaken about its effect. The terms of the family violence order do not preclude the children’s interaction with him because the order is expressly subject to any “current parenting order”.[28] Any parent with an appropriate attitude to the children and the responsibilities of parenthood would not have done as the father has. The decision to disengage from the children must have been for his benefit not theirs.

    [27] Mother’s affidavit, para 43

    [28] Exhibit M3

12. The father’s recent decisions concerning the children demonstrate a continuing failure to appreciate and meet the emotional needs of the children.

13. There are also residual concerns about the mother’s parenting capacity. She experiences intellectual delay, which will compromise her ability to cater to the children’s intellectual needs as they age and mature.[29]

    [29] Family Report, paras 54-55, 58

14. That aside, the previous shortcomings in the mother’s parenting capacity, evident from the children’s delay in reaching milestones, are fortunately showing progressive improvement. With assistance from both the maternal grandmother and caseworkers from a non-government agency named “[Organisation V]”, the quality of the mother’s care for the children in all respects has markedly improved.[30]

    [30] Mother’s affidavit, paras 76-78, 81-110; Affidavit of Ms J;

15. The evidence demands a conclusion that the mother is better suited than the father to provide for at least the children’s physical and emotional needs.

Parenting orders

1. The presumption of equal shared parental responsibility is rebutted by the evidence, which discloses that the children’s best interests would not be served by such an order (s 61DA(4)). The reasons for that are twofold.

2. Firstly, the father has chosen to disengage from the lives of the mother and children, which he has demonstrated in several ways. He only inconsistently availed himself of the interim orders made in April 2012, so the children were deprived of regular and reliable interaction with him, and he has cut himself off from the children altogether since November 2012. Nor has he spoken to or corresponded with the mother about the children since November 2012. The father’s conduct manifests disinterest in participation in any decision related to the issues of significance in the children’s lives. As the Independent Children’s Lawyer correctly submitted, the father has “abdicated” his parental responsibility for them.

3. Secondly, even when the parties formerly did converse about issues related to the children, agreement eluded them. Their relationship is highly conflicted. The mother asserted she remained fearful of both the father and the paternal grandmother, who continue to live together. Her apprehension about the father no doubt stems from the threatening texts he sent to her in recent months, while her fear of the paternal grandmother arises from the paternal grandmother’s serious assault of her and unauthorised entry into her home.[31] An existing family violence order protects the mother from the father. In such circumstances the mother is understandably loathe to engage the father in conversation lest it lead to further confrontation.

   [31] Family Report, paras 139-140

4. The mother[32] and Independent Children’s Lawyer reversed their former views and mutually proposed that the mother have sole parental responsibility for the children. That is the only pragmatic outcome in circumstances where the children must continue to live with the mother.

   [32] Family Report, para 60

5. I reject the contrary views expressed by the father[33] and Family Consultant[34] about the allocation of equal shared parental responsibility. It should be remembered those opinions were expressed in September 2012, at a time when the father was still engaged in these proceedings and still making at least some effort to maintain his relationships with the children.

   [33] Family Report, para 40

   [34] Family Report, paras 158, 162

6. It is inevitable the children must continue to live with the mother. Quite apart from other impediments to their residence with the father, such as his cohabitation with the paternal grandmother in inappropriate accommodation,[35] it is impossible to even contemplate making an order pursuant to which the children would live with the father. Although that was historically his proposal, his withdrawal from the proceedings necessarily means he has abandoned that proposal and the children. Since the children must live with the mother it would be incongruous to allocate parental responsibility to anyone other than her.

   [35] Family Report, paras 155-156

7. The Family Consultant considered the children should spend “substantial and significant time” rather than “equal time” with the father.[36] The parties agreed the children should spend substantial and significant time with the non-residential parent, at least when the father was still engaged in the proceedings. However, his withdrawal from the proceedings and disengagement from the children make it impracticable to make any orders specifying the nature of the children’s expenditure of time and communication with him.

   [36] Family Report, paras 159-160

8. I accept the mother’s evidence, corroborated as it is by the maternal grandmother,[37] that the father has failed to collect the children at appointed changeover times. It would be futile now making orders stipulating a regime under which the children should spend time with the father because the Court could have no confidence the father would implement the orders. Such orders would oblige the mother, on each and every occasion specified by the orders until the children attain their majority, to attend the changeover venue in the hope the father will also attend and collect the children. To impose such an obligation upon the mother would be absurd in circumstances where the father has not reliably attended changeovers for the last 12 months, has not attended any changeovers at all for the past four months, and has now indicated an intention not to do so for the foreseeable future.[38] It would also repeatedly expose the children to the disappointment of the father failing to attend.

   [37] Family Report, para 108

   [38] Exhibit M2

9. For reasons already explained, it would be just as futile to make an order that the children spend time with the father “as agreed between the parties”. They have not been able to reach agreement about the children and will not likely be able to do so in future.

10. The only feasible alternative open to the Court in light of the father’s attitude is to make no orders at all regulating either the time the children should spend, or the nature of their communication, with him and to leave such arrangements to the mother in the exercise of her sole parental responsibility for the children.

11. Of course, the absence of such orders is not tantamount to orders that preclude the children from spending time or communicating with the father at all. As the mother, Independent Children’s Lawyer and Family Consultant all recognised, the children should do so, but the conditions upon which that may occur in the future will be determined by the mother. If the father is dissatisfied with the future decisions the mother makes on those issues then he will have no option but to initiate fresh proceedings, firstly explaining why he chose to squander the opportunity to be heard about proper parenting orders by his disengagement from these proceedings and what circumstances have materially changed (see Rice v Asplund (1979) FLC 90-725), and then proving preferable arrangements for the children.

12. I decline to make only interim orders, as recommended by the Family Consultant.[39] Six months have elapsed since the Family Consultant made that recommendation and in the meantime the mother has shown marked improvement in her parenting capacity and the father has disengaged from the children. The proceedings have been pending since December 2011 and should be finalised.

    [39] Family Report, paras 163, 168

13. The mother proposed in final submissions that the Court grant the parties “liberty to apply” – presumably to enable either of the parties to re-list the matter before the Court to seek further parenting orders should that be desired. I decline to grant such liberty. The purpose of these proceedings is to determine final parenting orders, not delay the decision at the whim of the parties. The Court’s jurisdiction was regularly invoked and it should be exercised. Although never immutable, final orders are intended to be final.

14. If ever the father again shows interest in the children and the mother consents to them spending time with him, the children would best be exchanged between the parties at a public venue. The mother told the Family Consultant[40] and also said in cross-examination she would submit to exchange of the children with the father at her home, but her clear preference was to use a public venue such as a local shopping centre.

    [40] Family Report, para 15

15. An order is made compelling the parties to keep one another informed of their respective contact details so that they are able to communicate with one another over the children should the need arise. Communication by text message or email is a relatively safe method since a record of the communication will exist if proof of its contents is ever needed. 

16. The mother and Independent Children’s Lawyer jointly proposed an order restraining the parties from allowing the children to interact with the paternal grandmother, which proposal enjoyed the support of the Family Consultant.[41] The evidence justifies such an order.

    [41] Family Report, paras 157, 164

17. The paternal grandmother was joined to the proceedings as a party when the mother nominated her as the second respondent to the Initiating Application filed in December 2011, but she was consensually discharged as a party on 21 December 2012.[42]

    [42] Order 1 made on 21 December 2012

18. Although a party for some 12 months, the paternal grandmother failed to engage with the proceedings. She repeatedly breached orders requiring her to file a Response[43] and she refused to co-operate with the Family Consultant.[44] Her “poor behaviour” eventually led to her being requested to leave the building during the interviews which were conducted for preparation of the Family Report.[45]

    [43] Order 14 made on 6 July 2012; Order 6 made on 19 October 2012

    [44] Family Report, page 1, paras 114-115, 129

    [45] Family Report, paras 101-102, 119-125

19. The paternal grandmother has not been a significant part of the children’s lives. She was estranged from the father for some years and pursued a lifestyle that was inimical to responsible care and supervision of the children.[46] The evidence suggests there is no imperative to ensure the children’s continuing association with her. She openly derides the father’s intelligence,[47] is inclined to violent and abusive conduct towards the mother and others,[48] has physically abused one of the children,[49] and has stolen money from the mother.[50] The mother appears to justifiably regard the paternal grandmother as an impediment to better co-operation between the parties.[51]

    [46] Family Report, paras 13, 27, 138

    [47] Family Report, paras 126-130

    [48] Family Report, paras 131-132, 134, 139

    [49] Family Report, para 141

    [50] Family Report, para 136

    [51] Family Report, para 59

20. The mother and Independent Children’s Lawyer also agreed the children should not be exposed to the mother’s maternal uncle because of his propensity to sexually molest children.[52] The father concurred,[53] so an order is made to that effect.

    [52] Family Report, paras 45-47

    [53] Family Report, para 39

21. An order is also made at the joint request of the mother and Independent Children’s Lawyer for the parties not to denigrate one another in the child’s presence. Even if the father disagreed, his opposition would be unreasonable.

22. The Family Consultant suggested that a copy of the Family Report be furnished to the NSW Department of Family and Community Services.[54] There would be utility in the Department having not only the Family Report, but also the orders made between the parties and these reasons for those orders in case the mother’s continuing care of the children suffers an unexpected setback. An order is made for the Independent Children’s Lawyer to furnish copies of those documents to the Department.

    [54] Family Report, para 171

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 March 2013.

Associate:

Date:  26 March 2013

     Mother’s affidavit, paras 14-16

     Family Report, para 56