WILKES & TRACEY

[2015] FamCA 486

FAMILY COURT OF AUSTRALIA

WILKES & TRACEY [2015] FamCA 486

FAMILY LAW – CHILDREN – Where the father is the biological father of only the youngest child and abandoned his application in respect of the eldest child at the commencement of the trial – Where the dispute therefore narrowed to the youngest child – Eldest child to live with the mother and mother to have sole parental responsibility for her

FAMILY LAW – CHILDREN – Best Interests – Magellan protocol – Where the youngest child has meaningful relationships with both parties – Where the evidence is sufficient to find the youngest child is at some risk of harm through his subjection to sexualised behaviours by his maternal cousins – Where the cousins live with the maternal grandparents, who are dismissive of such risk – Where the maternal grandparents endorsed the mother’s adverse views about the father and the undesirability of the youngest child’s relationship with him – Where the youngest child’s relationship with the father is likely to be damaged or lost if he lives with the mother – Child to remain living with the father – Child to spend regular time with the mother – Where an injunction is warranted restraining the mother from allowing the child to be in the company of the maternal grandparents or maternal cousins

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply in respect of the youngest child because the evidence proved either one or both parties engaged in family violence in his presence – Where sole parental responsibility should be vested exclusively in the party with whom the youngest child shall live – Father to have sole parental responsibility, subject to him taking all reasonable steps to ensure the child’s awareness of, and education about, his indigenous heritage

Crimes Act 1900 (NSW), ss 61AA
Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B, 69ZX

Wilkes & Tracey [2014] FCCA 2118

APPLICANT: Mr Wilkes

RESPONDENT: Ms Tracey

INDEPENDENT CHILDREN’S LAWYER: Mr Powe, Powe & White Family Lawyers

FILE NUMBER: NCC 3031 of 2012

DATE DELIVERED: 25 June 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 25 & 26 May and 15 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sharrock

SOLICITOR FOR THE RESPONDENT: Craney Family Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Powe, Powe & White Family Lawyers

Orders

1. All former orders relating to the child B, born … 2004, (“B”) are discharged.

2. The mother shall have sole parental responsibility for B.

3. B shall live with the mother.

4. All former orders relating to the child C, born … 2007, (“C”) are discharged.

5. Subject to Order 6 hereof, the father shall have sole parental responsibility for C.

6. The father shall do all acts and things reasonably necessary to ensure C:

   (a)identifies as an Aboriginal person;

   (b)is enrolled at school as a child of indigenous heritage; and

   (c)participates in any event relating to the promotion of indigenous heritage at, or sponsored by, the school.

7. C shall live with the father.

8. Subject to the mother’s compliance with Order 9 hereof, the parties shall take all reasonable steps to ensure that C spends time with the mother as follows, or as otherwise agreed:

   (a)       Up to and including Sunday 24 January 2016:

   (i)Each alternate Sunday, from 10.00 am until 4.00 pm, commencing on the first Sunday following these orders; and

   (ii)On Boxing Day, from 12.00 noon until 4.00 pm.

   (b)       From Monday 25 January 2016:

   (i)During school terms, each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday, commencing on the first Saturday of each term;

   (ii)For the first week of each Autumn, Winter, and Spring school holiday period, commencing at 9.00 am on the first day after the last day of term and concluding at 9.00 am on the seventh day thereafter; and

   (iii)For seven days each year, commencing at 9.00 am on Boxing Day and concluding at 9.00 am on 2 January.

9. The mother is restrained from causing or permitting C to be, or to remain in, the physical presence of:

   (a)       The maternal grandmother, Ms D Tracey;

   (b)       The maternal grandfather, Mr E Tracey;

   (c)       The maternal cousin, F; or

   (d)       The maternal cousin, G.

10. For the purpose of implementing Orders 7 and 8 hereof, the parties (or their nominees) shall exchange C at the McDonald’s Restaurant, H Street, I Town, NSW.

11. Pursuant to s 68B of the Family Law Act:

    (a)the mother is restrained from entering upon or approaching within 100 metres of:

    (i)The father’s residence; and

    (ii)Any school attended by C.

    (b)The father is restrained from entering upon or approaching within 100 metres of:

    (i)The mother’s residence; and

    (ii)Any school attended by B.

12. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that C communicates privately by telephone with:

    (a)The mother each Wednesday at 6.00 pm when he is living with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure the child is able to receive the mother’s calls on that number at that time.

    (b)The father each Monday at 6.00 pm when he is spending time with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure the child is able to receive the father’s calls on that number at that time.

    (c)

    The parent with whom he is not then staying, on his birthdays at

    
    

    6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

13. Each party is restrained from denigrating the other in the presence or hearing of either B or C and from permitting either child to remain in the presence or hearing of another person denigrating the other.

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

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

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

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

18. Leave is granted to the parties to furnish a copy of these orders to:

    (a)       The principal of any school attended by either B or C;

    (b)       Any medical professional providing treatment to either child;

    (c)       The Commissioner of NSW Police; and

    (d)The Secretary of the NSW Department of Family and Community Services.

19. Within seven days hereof the parties shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

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

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

22. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkes & Tracey 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 3031 of 2012

Mr Wilkes

Applicant

And

Ms Tracey

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern two children, now aged 11 and 8 years respectively.

2. The applicant (“the father”) is the biological father of only the youngest child, but he was regarded by the eldest child as her father-figure. The biological father of the eldest child has never been part of her life and was not a party to the proceedings.

3. The respondent (“the mother”) is the mother of both children.

4. The parties were in dispute about all aspects of the children’s care but, at the commencement of the trial, the father announced his abandonment of any application for orders in respect of the eldest child. The dispute therefore narrowed to the youngest child, and in particular, the allocation of parental responsibility for him, with whom he should live, and the nature of his personal interaction and communication with the other party.

History

1. There was uncertainty in the evidence about whether the parties’ relationship began in 2005 or 2006, but it certainly ended in mid-2009.

2. The eldest child was born in 2004 and was only an infant when the parties began their cohabitation.

3. The youngest child was born in June 2007 during the parties’ cohabitation.

4. For about three years after their separation in 2009, the parties were able to informally agree upon parenting arrangements for the children, though their agreement was not always free of friction.

5. The father commenced these proceedings in November 2012, following an unsavoury series of incidents over preceding months. In September 2012 the parties were involved in an ugly confrontation, which necessitated police intervention, and then in October 2012 the father’s home was razed by arson, for which the father believes the maternal family was responsible.

6. Once commenced, the parties’ litigation soaked up an enormous amount of both public and private resources. No less than nine different sets of interim orders were made between the parties, separate hearings were necessary to confirm the mother’s contraventions of interim orders, two family reports were prepared, and the proceedings passed through the hands of two courts to reach a final conclusion.

7. The first set of interim orders was made in December 2012, with the parties’ consent. The orders provided for the children to live with the mother and to spend unsupervised time with the father.

8. The second set of interim orders was made in February 2013, with the parties’ consent. The orders made adjustments to the time the children were to spend with the father.

9. The third set of interim orders was made in August 2013, shortly after the release of the first Family Report. The earlier orders providing for the children to spend time with the father were suspended, apparently in reliance upon the contents of the first Family Report. The orders record there was no appearance by the father before the Court on that occasion, for which the father offered no explanation.

10. The fourth set of interim orders was made in September 2013, with the parties’ consent. The orders restored arrangements for the children to spend time with the father, but only for one day each week and only at the home of a maternal aunt or at a nearby park.

11. The fifth set of interim orders was made in December 2013, with the parties’ consent. The requirement for the children to spend time with the father at designated locations was discharged. The orders provided for the children to continue spending time with the father for one day each week without restriction.

12. The sixth set of interim orders was made in February 2014, with the parties’ consent. Apart from a short introductory period, the time spent by the children with the father was expanded to encompass alternate weekends and half of school holidays. The orders were styled such that the children “lived with”, rather than merely “spent time with”, the father during those periods.

13. To that point in time, both children were treated identically under the orders. However, the mother adduced evidence that the eldest child resisted visiting the father from April 2014. Her failure to spend time with the father prompted him to file contravention applications in April and August 2014. Both contravention applications were heard and determined in September 2014, when findings were made that the mother contravened the existing orders without reasonable excuse.

14. The seventh and eighth sets of interim orders, made in June 2014 and July 2014, included a combination of parenting and recovery orders designed to navigate the mother’s contraventions and ensure the children lived with the father largely in accordance with the orders agreed between the parties in February 2014.

15. The ninth set of interim orders was made in November 2014, shortly after the release of the second Family Report. The children’s parenting arrangements were substantially revised, apparently in reliance upon the contents of the second Family Report and also the revelation by the youngest child only weeks before that he was sexually abused by his young cousins at the maternal grandparent’s home while in the care of the mother. The father retained the youngest child in his care after the allegations of sexual abuse were made and the two children have lived separately ever since.

16. In respect of the eldest child, the order formerly made in February 2014 providing for her to live with the father on alternate weekends and during school holidays was suspended. The result was that she would live exclusively with the mother and have no enforced interaction with the father. She last spent time with him in the September 2014 school holidays.

17. In respect of the youngest child, the orders formerly made in February 2014 in relation to him were also suspended. Instead, he was ordered to live with the father and to spend only supervised time with the mother at a contact centre. The child began supervised visits with the mother at the contact centre in March 2015.

18. The orders made in November 2014 also caused the transfer of the proceedings from the Federal Circuit Court to this Court for determination.

The proposals

1. Both parties changed their views throughout the proceedings about the nature of the orders that would meet the children’s best interests.

2. The father eventually pressed for the orders set out in the minute of orders he tendered when the evidence closed.[1]

   [1] Exhibit F1

3. He abandoned his pursuit of any orders in respect of the eldest child.

4. In respect of the youngest child, he sought sole parental responsibility and his residence. He proposed that the youngest child spend time with the mother under extremely confined circumstances: for two hours each alternate Saturday at a contact centre for the next 12 months, and thereafter, for four hours each Saturday unsupervised.

5. The mother pressed for the orders set out within her Amended Response filed on 18 March 2015.

6. In respect of the eldest child, she sought sole parental responsibility and her residence. She proposed no orders to regulate that child’s interaction with the father.

7. In respect of the youngest child, she sought equal shared parental responsibility for him, his residence with her, and his visits with the father on alternate weekends, during school holidays, and on other special occasions. During final submissions, when she realised her primary proposal was under serious threat, she tendered an alternate minute setting out the regime she proposed for the youngest child to spend time with her if ordered to live with the father.[2]

   [2] Exhibit M1

8. The Independent Children’s Lawyer tendered the minute of orders he proposed during cross-examination of the Family Consultant.[3] Relevantly, in respect of the youngest child, he proposed the father should have sole parental responsibility, the child should live with the father, and the child should spend six hours each alternate Sunday with the mother.

   [3] Exhibit ICL1

The evidence

1. The father relied upon:

   (a)His affidavit filed on 20 April 2015; and

   (b)The affidavit of his partner, Ms J, filed on 20 April 2015.

2. The mother relied upon:

   (a)Her affidavit filed on 16 April 2015;

   (b)The affidavit of the maternal grandmother, filed on 16 April 2015; and

   (c)The affidavit of the maternal grandfather, filed on 16 April 2015.

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

   (a)The Magellan Report, dated 21 January 2014, furnished to the Court by the NSW Department of Family and Community Services (“the Department”);

   (b)The first Family Report, dated 21 July 2013; and

   (c)The second Family Report, dated 8 October 2014.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought 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 a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

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

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, 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 parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. There is no doubt the youngest child loves both parties. He told the Family Consultant so,[4] and nobody doubted his sincerity. The mother knows the youngest child loves the father,[5] and the father admitted in cross-examination he knew both children loved the mother.

   [4] First Family Report, para 115

   [5] First Family Report, para 58

2. In June 2013, the Family Consultant observed the youngest child to resist his separation from the mother but to also embrace the father affectionately. The Family Consultant described his interaction with both parties as “warm, loving and relaxed”.[6]

   [6] First Family Report, paras 126-127, 134

3. From her subsequent observations in June 2014, the Family Consultant concluded the youngest child’s relationship with the father flourished after the orders made in February 2014, allowing them to spend substantial amounts of time together.[7] It stands to reason their bond only solidified once the child began living with the father in October 2014.

   [7] Second Family Report, paras 2, 160

4. Given the youngest child derives benefit from meaningful relationships with both parties, the only plausible reason any orders should be made impinging upon either of those relationships is if the child’s physical or psychological safety is at risk because of his subjection or exposure to abuse or family violence. Since these proceedings were commenced after enactment of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), the need to protect the youngest child from the risk of such harm outweighs the need to ensure continuity of his meaningful relationships with both parties (s 60CC(2A)).

Section 60CC(2)(b)

1. The parties made many allegations against one another concerning the risks of harm they each pose to the youngest child. The evidence pertaining to those risks of harm contemplated by s 60CC(2)(b) of the Act was as follows.

Family violence

1. The mother made grave allegations of family violence against the father, which he refuted. She alleged that during their relationship he regularly pushed her, punched her, blackened her eyes, throttled her, threatened her, humiliated her in the presence of others, and referred to her in derogatory terms.[8]

   [8] First Family Report, paras 47-50, 80

2. The maternal grandmother partly corroborated the mother about the father’s conduct,[9] though the veracity of the maternal grandmother was questionable for two obvious reasons. First, the children’s school principal regards her as an “out and out liar”,[10] and secondly, she denied the mother struck the father during a violent incident between them in September 2012,[11] even though the eldest child told the Family Consultant she did[12] and photographs of the father’s facial injuries were contemporaneously taken.[13]

   [9] First Family Report, paras 84, 87

   [10] Second Family Report, para 99

   [11] Maternal grandmother’s affidavit, paras 30-31

   [12] Second Family Report, para 144

   [13] Father’s affidavit, Annex A

3. The incident between the parties in September 2012 arose out of a dispute over the father’s belated return of the youngest child to the mother. Even though the parties have different versions of the event, it is common ground the mother entered the father’s property without invitation and a violent altercation ensued. The parties physically struggled over the youngest child and the eldest child was present to witness the scene. The police were called. The mother was charged and convicted for her assault of the father, but the conviction was later quashed on appeal, apparently in the father’s absence. Regardless, the absence of conviction does not mean the mother was innocent – merely that the offence was not proven beyond reasonable doubt. Regardless of whether or not the mother assaulted the father, she was a willing participant in a melee that would not have occurred but for her ill-considered decision to trespass upon the father’s property and confront him.

4. The father made allegations of the mother’s past violent conduct towards him, which included her punching him and brandishing a knife at him.[14]

   [14] Father’s affidavit, para 35

5. Curiously, until the violent incident between them in September 2012, the parties were unknown to the police for violent conduct.[15]

   [15] First Family Report, para 50

6. Regrettably, both children reported to reliable sources (the Family Consultant and a school counsellor) that they witnessed the parties assaulting one another on numerous occasions.[16] It could hardly be doubted they were emotionally scarred by such experiences.

   [16] First Family Report, para 118; Second Family Report, para 36

7. In all probability, both parties acted towards each other on numerous past occasions in a manner that comfortably meets the definition of “family violence” (s 4AB). It serves no useful purpose to try and sift through the irreconcilable evidence in an attempt to conclude which party was most at fault. They both have reason to be embarrassed by their behaviour, which surely compromised the children’s psychological health.

8. Although the parties made counter-allegations they each continue to make threats of physical violence,[17] at least there have been no overt instances of physical violence between them since the altercation in September 2012.[18]

   [17] Second Family Report, paras 29-30; Maternal grandmother’s affidavit, para 32

   [18] Second Family Report, para 6

9. Save in one respect, there is no evidence at all of either party committing acts of family violence upon or towards any family member other than each other. The only exception can be easily dismissed as unreliable.

10. It was revealed during the mother’s cross-examination that, only weeks before the trial began, she reported to the Department that the father had beaten Ms J so severely that she was admitted to hospital for treatment of her injuries.[19] Ms J attended Court and gave evidence on the first day of trial, before the mother gave evidence. No injuries were evident upon her body and during her cross-examination she denied any domestic violence occurred between her and the father. She was not directly challenged about the accuracy of the mother’s recent report to the Department (which at that point was still not revealed), but she should have been if it was to be contended the mother’s allegations were accurate. Medical records relating to Ms J were later tendered, which proved she was not recently hospitalised.[20] The mother’s recent report to the Department, which relied upon the truth and accuracy of information conveyed to her, was plainly wrong. I reject any implication that the child is at risk of harm through exposure to family violence between the father and Ms J.

    [19] Exhibit ICL7

    [20] Exhibit F6

11. Given the absence of frank physical violence between the parties for some years, logically, if the parties are kept apart then the risk of the children’s exposure to family violence is at least abated, if not extinguished.

12. However, keeping the parties separated presents a formidable challenge. The orders need to provide for the youngest child to be exchanged between the parties at a heavily populated public venue. The maternal grandmother is unsuitable as the mother’s delegate at changeovers because she is just as ill-disposed to the father and his partner as the mother. Nor can the maternal grandfather be used for that purpose, since he cannot drive.

13. The orders should also provide that the non-residential parent cannot attend at the school of either child. The past hostile confrontations between the parties, the maternal grandmother, and Ms J at the children’s school should be prevented.

Sexual abuse

1. The children have three cousins named F, K, and G. They are children of the mother’s sister, but they live with the maternal grandparents pursuant to child welfare orders made by the NSW Children’s Court about six years ago. The cousins are aged between 11 and 8 years respectively, and so are of similar age to the children.[21]

   [21] Maternal grandmother’s affidavit, para 9

2. On the evening of 27 October 2014, the youngest child had a conversation with Ms J about F and G. Relevantly, their conversation was in the following terms:[22]

   Child:… [F] and [G] sometimes touch my willy.

   Ms J:Have you spoken to your mother about this because that is wrong as nobody should ever touch your body.

   Child:Yes but mum just laughed […] They also make me put my mouth on their willy and touch their bottoms. They put my willy in their bottoms and have put their mouths on my willy and play with it.

   Ms J:When did this happen?

   Child:Not long ago but I wouldn’t let them put their willy’s in my bottom and [G] and I would fight and I would throw him on the ground.      

   [22] Ms J’s affidavit, paras 39-49

3. It is uncontroversial the youngest child was referring to a penis when he used the term “willy”.

4. Ms J related that conversation to the father when he arrived home and the father then decided to retain the youngest child in his care.

5. The youngest child’s allegations were reported to the Department and, within the next couple of days, he was interviewed by members of the NSW Joint Investigative Response Team (“JIRT”). During that interview, the youngest child made similar disclosures to those he had made to Ms J. He alleged during the JIRT interview (albeit using different words):[23]

   (a)F and G kissed his penis;

   (b)He was coerced to kiss the penises of both F and G;

   (c)F and G both put their penises on his bottom when they were in the bath at the maternal grandmother’s home; and

   (d)He was coerced to eat his own faeces and the faeces of both F and G.

   [23] Magellan Report, page 3; Father’s affidavit, para 54

6. The JIRT team conducted another interview with the youngest child a month later, during which he repeated the allegations he made in the first interview.[24]

   [24] Magellan Report, page 3

7. JIRT concluded the child was at “very high” risk of harm through his subjection to such conduct when in the care of the maternal family.[25] The risk of harm posed by F was considered “substantiated”, though that conclusion was not reached in respect of G, but apparently only because he was “under the age of criminal responsibility”.[26] Even though the age of both F and G may render them doli incapax, that consideration only excuses their criminal culpability for such misconduct, not the impropriety of it.

   [25] Exhibit ICL8

   [26] Magellan Report, pages 3-4

8. Significantly, within a period of approximately one month, the youngest child made consistent reports on three separate occasions about his abuse by F and G. On two of those occasions the allegations were made to JIRT staff, who are specially trained to interview children without contaminating the nature of their disclosures.

9. There can be no doubt about the accuracy of the youngest child’s disclosures to JIRT staff. Such interviews are always recorded and there was no challenge to the correctness of the summary of his disclosures contained within the Magellan Report.

10. Of course, the youngest child may not have been speaking truthfully when he made those disclosures, but it would be dangerous to dismiss their validity out of hand. Although graphic – perhaps even deviant – the allegations are not inherently improbable and are conceivably consistent with impish misbehaviour by young boys. Just the same, behaviour of that sort would be highly improper and the youngest child should be protected from it.

11. The children’s cousins are apparently capable of uncontained behaviour. Until recently, they attended the same school as the children. The school principal reported to the Family Consultant that G demonstrated “abominable” behaviour at school during 2014.[27] Even members of the maternal family described G to staff of the Department as both “a naughty boy” and “a little shit”, who stirs up trouble with the other children in their home. The maternal family even conceded G was exposed to “excessive sexualised behaviours” by F. The Department was satisfied F indecently assaulted G by “putting his penis in his bottom”[28] and formed the view that the risk of “sexualised behaviours” occurring within the maternal grandparents’ home was “high”.[29]

    [27] Second Family Report, para 98

    [28] Exhibit F5

    [29] Exhibit F4

12. The mother has always had a close relationship with the maternal grandparents. She usually spends some time at their home most days,[30] so the children frequently associated with their cousins on weekdays and weekends, sometimes overnight. The maternal grandmother told the Family Consultant the children used to have breakfast with her every morning and they often stayed overnight.[31] The maternal grandparents’ home is situated on three acres in a rural area. Neither the mother nor the maternal grandparents kept the children and their cousins under constant close supervision, so the youngest child’s allegations of impropriety by his cousins are plausibly truthful.

    [30] First Family Report, para 11

    [31] First Family Report, para 95

13. Given the maternal family’s concessions about the sexualised behaviour between F and G, the indiscipline of those boys generally, and the opportunity for them and the youngest child to engage in mischief while not under direct surveillance, the youngest child’s allegations demanded careful and considered deliberation. Unfortunately, that was not the attitude of the maternal family.

14. The maternal grandparents were particularly dismissive of the youngest child’s allegations of abuse by his cousins. The maternal grandmother stated simply she did not believe the allegations and asserted the youngest child was not at any risk of harm in her home, even though she conceded she would not supervise the youngest child outside of the house. The maternal grandfather said he was doubtful the allegations were true. Both of them said during cross-examination that they thought the child was “put up to it [to make the false allegations]” by the father, whom the maternal grandfather regarded as a recalcitrant liar. Such evidence by the maternal grandparents was entirely consistent with comments they earlier made to JIRT or Department officers, immediately following the youngest child’s JIRT interview.[32]

    [32] Exhibit F2

15. The maternal grandfather said he expected the youngest child should still visit them and associate freely with F and G, as that would be “natural” and “normal”, though he recognised that “no-one can be everywhere at one time [to supervise]”. He would not be around to personally supervise them though, because he regularly camped out in the bush.

16. The mother contended in cross-examination she took the allegations seriously, but it was difficult to accept she was genuine. The youngest child reported to Ms J that the mother simply laughed when he told her F and G touched his penis, which if true would merely have implied to him either she did not take him seriously or she regarded the misconduct as trivial. Even if she did not dismiss the youngest child’s report with such jocular derision, other aspects of her evidence still implied her dismissive attitude. She said the maternal grandparents took the allegations seriously, when it was plain they did not. She denied the maternal grandparents’ past supervision of the children and their cousins was lax, when it obviously was, given they could roam freely upon a large rural property.

17. The mother ultimately admitted in cross-examination she believed there was some truth in the youngest child’s allegations and it was reasonable for the father to have acted protectively by retaining the child in his care. Her admission was either truthful or it was contrived, but in either case her evidence was supportive of the father’s case.

18. If the mother’s admission was truthful, she finally demonstrated some insight and it represented vindication of the father’s reasonable concern for the child. His past trenchant criticism by members of the maternal family for coaching the child to fabricate such allegations was exposed as empty banality.

19. However, the mother’s admission could have been contrived to deflect any criticism for her failure to take the allegations seriously. Such an inference is open because the sincerity of her admission was undermined by the remainder of her evidence. She still remained satisfied with the maternal grandparents’ past standard of supervision of the youngest child and she still proposed that they continue their active involvement in his care.

20. The only impediment the mother was prepared to countenance during her cross-examination was an injunction that required her to ensure the youngest child was kept away from F and G, which would be exceedingly difficult for her to enforce, since F and G continue to live with the maternal grandparents and she intended to continue visiting the maternal grandparents as frequently as ever. 

21. It is unnecessary to determine whether the youngest child was actually engaged in sexualised behaviour by his cousins or forced by them to eat excrement. The evidence is sufficient to find the youngest child is at some risk of harm through his subjection to abuse of that kind by his cousins, to whom he would likely still be exposed without adequate restrictions. Some order must be made to eliminate that risk while still permitting the child to enjoy his relationship with the mother.

22. The form any such order should take was the subject of debate during final submissions. The father and Independent Children’s Lawyer both asserted it must entail an injunction precluding the youngest child’s future interaction with both his cousins and the maternal grandparents, which even the mother ultimately admitted may be necessary.

Physical abuse

1. The father contended the youngest child alleged during his JIRT interviews that he was physically abused by both maternal grandparents. It was contended he alleged the maternal grandfather hit him with a whip and that the maternal grandmother hit him with a belt.

2. The father’s contentions were false. The youngest child made no such allegations at all. Although the mistake was inadvertent, it was regrettable the maternal grandparents’ cross-examination was infected by such an error.

3. Such allegations implicating the maternal grandparents were in fact made by G, in an interview conducted with him by officers of the Department on 26 November 2014. The handwritten notes of that interview and the consequent conclusions of the Department are in evidence.[33] The youngest child was not interviewed on that date. He was interviewed by JIRT on 29 October and

   
   

   27 November 2014.[34]

   [33] Exhibits F3, F4, F5

   [34] Magellan Report, page 3

4. The allegations made by G suggested the maternal grandparents used implements to inflict corporal punishment upon him. Although asked about the use of that form of discipline on the youngest child, the maternal grandparents both denied inflicting any such discipline on any of their grandchildren. They did, however, admit the grandchildren were smacked to correct their behaviour.

5. G, who is still only eight years of age, is obviously capable of incorrigible behaviour. Even though the maternal grandparents do use physical discipline to try and manage his behaviour, there is no evidence at all they do so on the youngest child. The father was wrong to positively assert otherwise.

6. The evidence is insufficiently strong to fairly permit an inference that, because the maternal grandparents physically discipline G, there is an unacceptably high risk they will punish the youngest child with such physical force as to amount to his physical abuse.

7. It should not be inferred from such analysis of the evidence that corporal punishment of children is, or should be, encouraged. It is merely recognition that, while such punishment is now generally discouraged by evolving social standards, subject to conditions, it remains a lawful form of discipline in NSW (s 61AA Crimes Act 1900 (NSW)).

Best interests of children – additional considerations

1. The risk of the youngest child’s exposure to the risk of harm when within the mother’s care was one of two planks to the father’s case. The other was that the mother would, either intentionally or unintentionally, undermine the youngest child’s relationship with him if he lived with her, just as occurred with the eldest child. He contended the only satisfactory antidote was for the youngest child to live with him. There was an abundance of evidence to support the father’s submission.

2. The obvious place to start is with the findings made by the Federal Circuit Court in September 2014, when that court determined the mother contravened past interim parenting orders on numerous occasions without reasonable excuse (see Wilkes & Tracey [2014] FCCA 2118). The findings within that judgment may be adopted by this Court (s 69ZX(3)(b)).

3. The mother’s various motives for non-compliance with the orders were rejected as baseless by the Federal Circuit Court. Critically for present purposes, the judge concluded:[35]

   …the mother’s barely concealed dislike for the father coupled with her wish that [the eldest child] not have a relationship with him has resulted in the mother being unwilling and refusing not only to comply with the orders but also not being prepared to foster a relationship between [the eldest child] and the father.

   …I find on the whole of the evidence before me that the mother is unable to insulate [the eldest child] from her own hostile feelings towards the father.

   …the evidence establishes that the mother has clearly embarked upon a course of action deliberately to thwart wherever possible [the eldest child’s] relationship with [the] father.

   [35]Wilkes & Tracey at [185], [188], [197]

4. The evidence adduced in these proceedings demanded similar conclusions. The mother’s denial of her deliberate interference with the relationship between the eldest child and the father was false. Her protestations that she had encouraged the eldest child to pursue her relationship with the father and that she intended to support the eldest child if she genuinely wants a relationship with the father were also false.

5. The improbability of the mother’s assertions was exposed by the lack of any rational explanation for the eldest child’s rejection of the father, apart from the pressure exerted upon her by the mother and maternal grandmother. The best explanation the mother could offer was that the eldest child once expressed some anxiety about an argument she witnessed[36] and she felt as though the eldest child may not be treated as part of the paternal family.[37] Given the eldest child and father always looked upon their relationship as filial, despite the absence of any biological connection between them, and they adored each other until after the parties separated, they are weak excuses indeed.

   [36] Mother’s affidavit, para 45

   [37] Second Family Report, para 55

6. The most probable reason for the eldest child’s rejection of the father was revealed by her own innocent statement to Ms J in October 2014:[38]

   Mum told me to run away. I’m not coming with you because Mum said I don’t have to. He’s not my Dad so I don’t have to come. I have a Dad.

   [38] Affidavit of Ms J, para 24

7. The mother’s alienation of the eldest child against the father was shameless and deliberate. She refused to take the eldest child to the first consultation with the Family Consultant,[39] she kept her home from school during 2014 to avoid her collection by the father,[40] and she openly told the Family Consultant during the second consultation she did not think the eldest child should have any relationship with the father.[41] The complicit efforts of the mother and maternal grandmother to thwart the eldest child’s visit with the father in October 2014 were asinine.[42] Such deliberate obstruction occurred in the face of the good behaviour bond imposed upon the mother only weeks before by the Federal Circuit Court for her past unjustified contravention of the orders.

   [39] First Family Report, para 133

   [40] Second Family Report, para 5

   [41] Second Family Report, paras 51, 55

   [42] Affidavit of Ms J, paras 13-35

8. The father had sufficient insight to understand the pressure exerted upon the eldest child to reject him. He told the Family Consultant he believed the maternal family members were “getting in her head” and he did not want her subjected to even greater pressure by the enforcement of parenting orders.[43] The Family Consultant verified the degree of stress suffered by the eldest child.[44] That is why he ultimately elected to abandon any application for orders that were designed to force the retention of their relationship. It must have been a difficult decision for him. It was certainly a selfless one, made in the best interests of that child, for which he deserves commendation.

   [43] Second Family Report, paras 32, 37, 43

   [44] Second Family Report, paras 127, 130, 131, 137

9. Even though the mother’s alignment of the youngest child against the father was not quite so pronounced, she still sought to exert her place as his primary carer. She boldly coerced him to express a wish to live with her, which he then repeatedly did to both the Family Consultant[45] and the father.[46] The mother said in cross-examination she did not tell either child to say they wanted to live with her, but I do not accept her evidence as truthful.

   [45] First Family Report, para 105; Second Family Report, para 154

   [46] Second Family Report, para 34

10. The evidence disclosed the mother attempted to sabotage the child’s visits with the father, just as she had done with the eldest child. The youngest child reported to Ms J in October 2014:[47]

    …mum and [the eldest child] said to punch, scratch and kick if you try and put me in the car.

    Mum and [the eldest child] said if you’ve got me in the car try and get out of the car and run to nan and pop but I didn’t want to do any of that because I love you all the same.

    [47] Affidavit of Ms J, para 36

11. The Family Consultant concluded the mother engaged in “deliberate parental alienation” and influenced both children to reject the father,[48] which opinions coalesced in a conclusion she expressed thus:[49]

    …when a parent is deliberately seeking to fracture the relationship between a child and their key attachment figure for reasons other than the child’s safety, it is considered psychological abuse and in the most severe cases it is recommended that the child be placed in the care of the other parent to protect the relationship. In this case there appears to be a multitude of evidence that appears to imply that [the mother] has systematically and deliberately sought to fracture [the eldest child’s], and to a lesser extent [the youngest child’s], relationship with [the father].

    [48] Second Family Report, paras 34, 49, 154

    [49] Second Family Report, para 170

12. It is unnecessary to speculate whether such abusive behaviour is liable to constitute “serious psychological abuse” and thereby render it a form of “abuse” (s 4), which elevates the conduct to a level requiring primary consideration under s 60CC(2)(b) of the Act. It is a serious feature of the case whether considered under that sub-section or under s 60CC(3) of the Act.

13. The mother’s adverse views about the father and the undesirability of the youngest child’s relationship with him were endorsed by the maternal grandmother. She told the Family Consultant – not once, but twice – she did not think the youngest child should spend any time with the father.[50] She said in cross-examination her view had not changed.

    [50] First Family Report, para 101; Second Family Report, para 60

14. The maternal grandmother’s enmity towards the father and those associated with him runs so deep it seems incapable of attenuation. She threatened to have the father shot, in the presence of his solicitor, on their departure from the Court one day.[51] She also openly called Ms J a “fat bitch” in the presence of police officers and brazenly told them she would “take her out” if she even dared to walk near her again.[52] Even the presence of credible witnesses does not deter her from making serious threats of violent harm.

    [51] Second Family Report, para 29; Father’s affidavit, para 69

    [52] Affidavit of Ms J, paras 30-33

15. The maternal grandfather was little better. He told the Family Consultant he was willing to “knock [the father] out”, which he apparently has the capacity and inclination to do.[53]

    [53] First Family Report, paras 43, 92; Second Family Report, paras 73-74; Exhibit ICL5

16. The maternal grandmother, in particular, was an important cast member in this long-running drama. She and the mother were staunch allies in a vendetta conducted against the father. Far from providing the mother with objective and sensible advice, the maternal grandparents aggravated an already acrimonious feud. For good reason, the father’s concern about them was just as pronounced as his worry about the mother.

17. The maternal grandmother continued to attend at or near the contact centre with the mother,[54] despite an injunction precluding it,[55] and despite the mother having been found by the Federal Circuit Court to have contravened a similar injunction made in February 2014. The evidence also demonstrated that the maternal grandmother unnecessarily intervened at the children’s school in a number of ways. She demanded the teachers provide her with schedules of when the father collected and returned the children, instructed them who should collect the children, reported back to them events said to have occurred in court, discussed with them the orders that then provided for the children to spend alternate weekends with the father, and regaled them with stories about police intervention.[56] The school principal formed an adverse opinion about the maternal grandmother’s attitude and her influence over the mother.[57]

    [54] Father’s affidavit, paras 60-61

    [55] Orders 8-9 made on 14 November 2014

    [56] Exhibit ICL9

    [57] Second Family Report, paras 95-104

18. The mother had no satisfactory answer to the father’s complaints about the conduct of her and the maternal grandparents or the safety of the youngest child in their collective care. The mother’s case for recovery of the youngest child’s residence was effectively posited on two grounds: first, the need for the two children to live together, and second, the inability of the youngest child to be adequately inculcated with his Aboriginal heritage if he lived with the father.

19. The Family Consultant made clear reference to the importance of sibling relationships.[58] Few relationships endure as long as sibling relationships, so they should be retained and promoted whenever possible. Although not expressed so clearly, the mother implied the children’s emotional advancement would be retarded if they did not live in a common household and, since it was uncontroversial the eldest child would live with her, she reasoned the youngest child must also live with her.

    [58] First Family Report, para 139; Second Family Report, para 174

20. Unfortunately for the mother, her own conduct betrayed the weakness of her argument. Although she has been travelling to the contact centre to regularly see the youngest child since March 2015, she only once took the eldest child with her to enable the children to spend some time together.[59] Even though the mother realised from comments made to her by both children that they missed one another,[60] she failed to take the eldest child to any more visits with the youngest child. If their sibling relationship was so important to the mother, she had no reasonable explanation to offer for why she did not take the eldest child with her each and every time she visited the youngest child.

    [59] Exhibit M2

    [60] Mother’s affidavit, paras 58-60

21. Undoubtedly sibling relationships are important, but it is only one factor to weigh in these proceedings. The father acknowledged it caused him some concern the children would live in different households, but he considered the features upon which he relied necessitated such an outcome in the youngest child’s best interests. As the Family Consultant correctly said in cross-examination, sibling solidarity is an important objective, but it must yield to more important considerations such as keeping children safe.

22. The importance of the child’s right to enjoy his Aboriginal heritage is enshrined by the Act (s 60CC(3)(h)), but as with sibling solidarity, it ranks no more importantly than a variety of other additional considerations.

23. Similarly, the mother’s conduct was not commensurate with the level of interest she asserted should be paid to the children’s Aboriginal heritage. She acknowledges her Aboriginality and could name her tribe, but she does not apparently foster that sense of identity in her children. She did not perpetuate the enthusiastic interest the maternal grandfather obviously has in his indigenous heritage.[61] Apart from NAIDOC week activities, the mother could not name any spiritual or cultural activity within the “indigenous community” in which she arranged for the children participate, despite the Family Consultant’s assumption to the contrary.[62] She acknowledged her children’s upbringing was little different from that of any other child.

    [61] Maternal grandfather’s affidavit, paras 13-20

    [62] First Family Report, para 69

24. The mother told the Family Consultant the father was disdainful of her indigenous heritage,[63] but such disdain was not on display during the trial. The father admitted he has no plans to educate the youngest child about his Aboriginal heritage, though he has no objection to such cultural education. He envisaged that would happen at school, for example, through his participation in the activities of NAIDOC week.

    [63] First Family Report, para 69

25. The flaw in the mother’s analysis was her assumption that, failing the youngest child’s residence with her, he will be deprived of enjoyment of his indigenous heritage. That does not follow. Provided he visits the mother, she will be able to devote as much time as she thinks appropriate to his cultural instruction. He would be more immersed in his indigenous heritage if he lived with the mother and spent plenty of time in the company of the maternal grandfather, but his residence with the father would not be tantamount to denial of the opportunity to be educated about his Aboriginality.

26. Both parties criticised the other for past use of illicit drugs,[64] but that was not an issue upon which either of them was cross-examined. There is no justification to treat the issue with more importance than did the parties.

    [64] First Family Report, paras 61, 70, 71, 137; Second Family Report, para 40

27. The issue of child support was mentioned in the evidence, but it did not feature prominently either. The father bore no child support liability for the eldest child because he was not her biological parent, but his child support payments for the youngest child were derelict. Arrears accumulated to some $8,000 while the youngest child lived with the mother, which the father said occurred because his work was irregular and he was unaware he could apply for re-assessment. That is hardly an adequate excuse for his failure to help the mother support the youngest child, but he said he is now repaying the arrears at $250 per month, even though the youngest child is now living with him and the mother has not paid him any child support since the child began living with him in October 2014. Neither party seems particularly committed to the financial support of the youngest child.

28. The homes of the parties are situated in different townships of the Hunter Valley, but are only separated by a drive of about 20 minutes duration.[65] The father does not have a driver’s licence, which remains suspended due to his failure to pay traffic fines. However, Ms J is able to drive the children to and from exchanges. There is no practical difficulty or expense in the transaction of the youngest child between the parties.

    [65] First Family Report, para 12

Conclusions and orders

1. The presumption of equal shared parental responsibility does not apply in respect of the youngest child because the evidence proved either one or both parties engaged in family violence in the presence of both children, particularly on an occasion in September 2012 (s 61DA(2)(b)).

2. Although equal shared parental responsibility for the youngest child could still be conferred upon the parties, nothing about the evidence suggested such an outcome would meet his best interests.

3. The father plaintively conceded he did not believe he and the mother could come to any decision over the youngest child. He said they once communicated by text message, but even that had not occurred for some years. He was reluctant to resume any dialogue with the mother. He said when the mother knows his telephone number he “[gets] harassed all the time”. He confirmed his statement to the Family Consultant that the allocation of equal shared parental responsibility “can’t work”.[66]

   [66] Second Family Report, para 27

4. The mother conceded the physical altercation between the parties in September 2012 was a good example of their failure to communicate effectively. They disagreed over the time the father should return the youngest child to the mother. They were unable to rationally discuss the impasse. The mother’s solution was to drive to the father’s home, trespass upon his property, and start a physical fight in the presence of both children. She conceded there had been no effective communication between the parties since that incident.

5. The mother said she expected they could share parental responsibility by written correspondence, so they did not have to speak to one another. That could solve the problem about the method of their communication, but it would not solve their underlying unwillingness to consult and compromise. That is best exemplified by the father’s offer to the mother to participate in mediation when this litigation commenced, but she refused his offer.

6. Parental responsibility for the youngest child should be vested exclusively in the party with whom the child shall live. That conclusion enjoyed the support of the Family Consultant.[67]

   [67] First Family Report, recommendation VI

7. The youngest child should continue to live with the father. The need for his protection from the risk of harm when in the care of the maternal family

   
   

   (s 60CC(2)(b)) and the likelihood of his relationship with the father being damaged or lost if he lives with the mother (s 60CC(2)(a)) were significantly more profound considerations than any others in aggregation (s 60CC(3)).

8. The father’s exclusive parental responsibility for the youngest child is subject to an order obliging him to take reasonable steps to ensure the child’s awareness of, and education about, his indigenous heritage. That was the Independent Children’s Lawyer’s proposal, which was accepted by the father.

9. Undoubtedly the youngest child should spend time with the mother (and the eldest child), but there was considerable debate about the form such interaction should take. The mother asserted the youngest child should spend “substantial and significant time” (s 65DAA(3)) with her on an unsupervised basis.[68] The Independent Children’s Lawyer thought their visits should be far more limited, but still unsupervised.[69] The father, however, maintained the visits should be supervised for another 12 months and, once supervision was suspended, the visits should still never exceed four hours duration each Saturday.[70]

   [68] Exhibit M1

   [69] Exhibit ICL1, Orders 3-5

   [70] Exhibit F1, Orders 3-7

10. There is no justification for the continued imposition of supervision, provided the youngest child is kept safe from his cousins who are under the care of the maternal grandparents. The father unsuccessfully tried to extract a concession from the Family Consultant that supervision was probably still required, but the Family Consultant did not really deviate from her original recommendation that supervision of the youngest child when spending time with the mother was only a possibility as a protective measure.[71]

    [71] Second Family Report, recommendation I

1. There is no evidence before the Court that the mother has tried to disrupt the harmony of the youngest child’s residence with the father since he began to spend supervised time with her in March 2015. The father may feel that was due to the imposition of supervision, which deterred her, but it is just as likely it was due to the mother realising she should get on enjoying her relationship with the youngest child in the short time they had together. In the knowledge the Court has now determined the youngest child should remain resident with the father and the issue of his residence is foreclosed, the mother will more likely abandon her past attempts to damage the child’s relationship with the father. That expectation will be enhanced if the child’s visits with her are kept relatively short.

2. The orders impose a restraint upon the mother precluding her from allowing the youngest child to be in the company of the maternal grandparents or his cousins who live with them. It is indeed a serious step to eliminate one parent’s extended family from a child’s life, but such an injunction is necessary here to protect the youngest child from the harm posed to him by the cousins, which risk the maternal grandparents do not accept exists. They will not protect him from the cousins, who will continue to live with them. It will also serve to exclude the possibility of the mother’s decisions about the youngest child being overborne by the maternal grandparents, keep the child inured from the maternal grandparents’ animosity towards the father, and diminish the chance of them undermining the child’s relationship with the father. I accept the submissions of the father and Independent Children’s Lawyer, and the evidence of the Family Consultant, that such an injunction is warranted in this case.

3. The confinement of the youngest child’s visits with the mother to short periods, combined with the injunction which keeps the youngest child away from the maternal grandparents and cousins, renders the youngest child’s supervision with the mother unnecessary.

4. The orders provide for the child to spend six hours each alternate Sunday with the mother for the next six months. The frequency and duration of those visits accord with the Independent Children’s Lawyer’s proposal. The mother cannot reasonably complain about visits of that frequency and duration because it is what she formerly proposed for the child’s visits with the father in reverse.[72]

   [72] First Family Report, para 15

5. However, six months hence, the child’s visits with the mother expand to encompass alternate weekends (Saturday morning until Sunday afternoon) and a one-week holiday in each school vacation. That regime is not so different from the regime recently proposed by the father, both to the Family Consultant in June 2014[73] and in his Amended Application filed in September 2014. The only reason he thereafter changed his mind, in October 2014, was because of his concern about the child’s exposure to the risk of harm in the home of the maternal grandparents. That risk will be eradicated by the injunction precluding the youngest child’s interaction with the maternal grandparents and his cousins.

   [73] Second Family Report, para 12

6. The mother’s observance of that injunction will be a condition of the youngest child’s continued visits with her.

7. The orders preclude the father from attending at or near to the mother’s home and the eldest child’s school. Similarly, the orders preclude the mother from attending at or near to the father’s home and the youngest child’s school.

8. The youngest child must be exchanged between the parties at a public venue in the nearest rural centre to their homes, as suggested by the Independent Children’s Lawyer,[74] which is not a distant drive for either of them. The father agreed. Although the mother proposed a different venue close to her own home, she could point to no aspect of the evidence that recommended selection of her preferred venue instead. The parties are too volatile to consider any venue other than the busiest imaginable in their local region. Embarrassing publicity is the best deterrent to their tendency to fight.

   [74] Exhibit ICL1, Order 6

9. The orders permit limited telephone communication between the child and both parties.

10. The Independent Children’s Lawyer proposed a raft of parenting orders in respect of the eldest child, including orders requiring her to spend time with the father.[75] I reject that proposal. The father abandoned his application for orders in respect of the eldest child for good reason. Orders providing for the eldest child to spend time with him proved an abject failure in the past. So they would again. It was unnecessary for the Family Consultant to express a view that it was unlikely the mother would support fresh orders to that effect. Although the Independent Children’s Lawyer did not resile from the proposal, he conceded the idea was doomed. Orders in respect of the eldest child will be confined to those requiring her to live with the mother and allocating her parental responsibility exclusively to the mother.

    [75] Exhibit ICL1, Orders 19-32

11. In respect of the eldest child, the presumption of equal shared parental responsibility did not apply to capture the father because he is not that child’s biological father. The presumptive inclusion of the child’s biological father in the allocation of equal shared parental responsibility was rebutted by application of s 61DA(4) of the Act, because he has never been part of her life and his whereabouts are unknown.

12. The orders require the parties to promptly deliver the children to the Independent Children’s Lawyer for an objective and impartial explanation of the orders and, if the Independent Children’s Lawyer considers it appropriate, the reasons for such orders.

13. The remaining orders could not be the subject of reasonable objection.

I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 25 June 2015.

Associate:

Date:  25 June 2015