Children previously split reunified by Court order

Children previously split reunified by Court order

Smythe & Banks


  1. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father engaged in family violence (s 61DA(2)(b)). Quite apart from the evidence about his violent, threatening and oppressive treatment of the mother, he undoubtedly assaulted his wife on 4 November 2015.
  2. It is still possible to vest the parties with equal shared parental responsibility for the children, but it would only be desirable to make such an order if it would serve the children’s best interests, which it would not.
  3. The mother said she and the father could not communicate well and gave examples of their inability to reach consensus over the appointment of an orthodontist for the children, the procurement of passports for them, the father’s unilateral decision to enrol the second child at a different school, and his decision to substitute his wife for the mother on the new enrolment forms which hindered the mother’s ability to obtain details about the second child’s progress at his new school. In any event, the mother is evidently still scared of the father and that would hinder any even-handed negotiation between them. Although the father sought to assert he and the mother could communicate well, he ultimately proposed that he should have sole parental responsibility for the children. In circumstances where the parties do not want to share parental responsibility and both Family Consultants recommended against it,[93] equal shared parental responsibility should not be foisted upon them. It follows that the parent with whom the children will live should have exclusive parental responsibility for them.
  4. Since no order is made for the parents to have equal shared parental responsibility for the children, there is no obligation to consider the options of the children living with the parties for equal time, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). In any event, both Family Consultants recommended against any shared-care arrangement.[94]
  5. Presently the children are split. The boys live with the father and the youngest child lives with the mother. The siblings are not seeing one another or their non-residential parent. It was not suggested by the parties, the Independent Children’s Lawyer, or the Family Consultants that the children should remain split between households. It was common ground that all three children should live with one party or the other and, in any event, no aspect of the evidence tended to indicate the children should be split.
  6. Just as the Family Consultants both recommended,[95] the mother offers a superior option as the primary residential carer for the children. That conclusion follows from a number of considerations. In particular:
      (a) The children’s relationships with the mother are just as strong and meaningful as their relationships with the father. That is certainly the case for the youngest child and probably the case for the boys. The boys’ present avoidance of the mother is most likely due to the pressure they perceive they are under to support the father and reject her. As recently as August 2016, the second Family Consultant independently witnessed the loving nature of their relationships with the mother, which could not have been destroyed in the short period of time elapsed since.
  7. (b) The father poses a potent risk of harm to the children by his likely exposure of them to family violence within his household, whereas the mother poses no appreciable risk of harm to the children. Although all children have meaningful relationships with the father, as the mother correctly submitted, this is a case in which their need for protection from harm trumps the benefit of them having meaningful relationships with the father (s 60CC(2A)).

    (c) The mother has greater capacity to provide the children with constant physical care and supervision because of the father’s existing and intended future work commitments and the uncertainty about his resumption of cohabitation with Ms H.

  1. Nevertheless, the wishes expressed by both boys to live with the father remains an important factor to consider. The boys’ situation can be differentiated from that of the youngest child because of their disparate ages and maturity. The boys are now well into their adolescence and are capable of absconding if orders are made with which they are dissatisfied. That creates considerable difficulty because, even though they both express the desire to live with the father, their interests would be better served by them living with the mother.
  2. If orders are made for the boys to live with the mother, there are two possible outcomes. Either they will abscond from the mother and return to the father, as he suspects they would,[96] because their expressed wishes to live with him are actually genuine, or alternatively, they will comply with the orders and settle into the mother’s care, as she and the second Family Consultant think is more likely, because the orders will relieve them of the pressure to submit to the father’s will.
  3. The latter is the more likely outcome for reasons already discussed, but that is only a finding made on the evidence in accordance with the civil standard of proof (s 140 Evidence Act 1995 (Cth)). Such a finding made on the balance of probabilities could possibly be wrong. That potentiality of error should not, however, militate against the boys being ordered to live with the mother. The Court cannot abstain from making orders demonstrably in the boys’ best interests and simply capitulate to their expressed views for fear they will do as they threaten. Their views are only one factor to be taken into account – and not a primary consideration at that (s 60CC(3)(a)). Findings have been made that it would be detrimental for the children to live with the father, so ordering the boys to do so just because that is what they say they want would be tantamount to corruption of the paramountcy principle (ss 60CA, 65AA).
  4. The making of orders for the boys to live with the mother will clearly signal to them the Court’s view that such an outcome is best for them. If they reject it, the mother will have the satisfaction of knowing she did all she could for them and she will have to decide, as an incident of her sole parental responsibility for them, whether she wants to try and enforce the orders. The chance of successful implementation of the orders will be enhanced if the children are presented to the second Family Consultant for an explanation of the orders. In that way, all children will receive an impartial interpretation of the orders and the reasons for them.
  5. Given that the children should live with the mother, the next question is what form of future interaction they should have with the father. The mother and Independent Children’s Lawyer proposed the children should only see the father four times each year under professional supervision. They considered that was the only way in which the risk of harm the father poses to them could be attenuated. The second Family Consultant agreed. She initially imposed a complete embargo on any interaction between the children and the father,[97] but in cross-examination she conceded they would not likely be at risk of harm during occasional supervised visits. The evidence does not reasonably allow orders that would permit the children to spend unsupervised time with the father. Their need for protection from harm he may cause them overwhelms their need for frequent interaction with him. Quarterly visits under the supervision of a commercial supervisor using adaptable venues will enable the children to retain their paternal link. When they are each mature enough to make their own decisions about the resumption of more meaningful relationships with him, if they choose to do so, the intervening irregular contact with him will enable the resumption to be more easily made.
  6. An order will be made permitting occasional written communication between the children and the father, as was proposed.[98]
  7. Other than for the restricted face-to-face interaction and the written communication, the father will be restrained from contacting the children and from allowing them to be at his home. If the boys abscond from the mother to his home, he will be obliged to take them away from his home – preferably back to the mother or to some authority like the police. That will also be a discouragement to the boys’ disobedience of the orders.


Related articles

Your passionate team of family lawyers

Let’s work out your next steps together. Book your free consultation to start the process.